1931425 (Refugee)

1931425 (Refugee) [2024] AATA 2943 (11 July 2024)

DECISION RECORD

DIVISION:

Migration & Refugee Division

REPRESENTATIVE:

Thanh Mai-Hang Nguyen (MARN: 1802335)

CASE NUMBER:

1931425

COUNTRY OF REFERENCE:

Ethiopia

MEMBER:

Fraser Robertson

DATE:

11 July 2024

PLACE OF DECISION:

Perth

DECISION:

The Tribunal sets aside the decision of the delegate and remits the application for reconsideration with a direction that the applicant satisfies s 36(2)(a) of the Act.

Statement made on 11 July 2024 at 3:12pm

CATCHWORDS
REFUGEE – protection visa – Ethiopia – ethnicity – Oromo – actual, or imputed, political opinion – supporter of Oromo Liberation Front (OLF) – anti-government – arrested in connection with anti-government protests – involvement in Oromo cultural group – worked towards promoting Oromo culture – history of adverse attention from authorities in Ethiopia – applicant and family member sustained serious injuries whilst in police custody – feared harm of systematic and discriminatory conduct – applicant and his family forcibly displaced from their home and land – credible witness – no effective protection measures available to the applicant – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5 (1), 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
DQU16 v Minister for Home Affairs [2021] HCA 10
Fox v Percy [2003] HCA 22; 214 CLR 118
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Trawl Industries v Effem Foods Pty Ltd (1992) 27 NSWLR 326
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

The applicant is an Ethiopian national who arrived in Australia in August 2018. He is [age] years old and is of Oromo ethnicity. He applied for a protection visa claiming that he faced a real chance of persecution arising out of his ethnicity and his family's involvement in the Oromo Liberation Front ('OLF').
The applicant was interviewed by the Department in May 2019. Following that interview, a delegate of the Minister for Home Affairs refused the application under s 65 of the Migration Act 1958 (Cth) (the 'Act').
Despite refusing to grant the applicant a protection visa, the delegate largely accepted the underlying factual claims made by the applicant including:
(a)that he was of Oromo ethnicity, had previously been assaulted by a Ethiopian security officer, had been arrested and seriously harmed whilst in police custody on one occasion and on another occasion was arrested following a protest in 2016 and detained for a 3 month period;
(b)his brother was a member of the military for the Oromo Liberation Army ('OLA'), the armed wing of the OLF, and was missing;
(c)his father was arrested and tortured by police, leaving him with permanent injuries; and
(d)his family were forcibly displaced from their home and land and that he had made complaints to the government about that fact.
The delegate did not accept that the Ethiopian authorities were searching for the applicant prior to his departure or have been searching for the applicant since he arrived in Australia.
I have considered the claims made in the applicant's protection visa application, the documents submitted to the Department and during his interview. I agree with the conclusions reached by the delegate about the underlying factual claims made by the applicant.
Respectfully, I depart from the decision of the delegate when it comes to the assessing whether the applicant faces a real chance of persecution. This is because of changes in the country information that is available at the time of this decision.
I have determined that the applicant does satisfy the criteria for the grant of a protection and that the decision under review should be set aside and remitted with a direction that the applicant satisfies s 36(2)(a) of the Act. These are my reasons.
RELEVANT LAW
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c).
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the decision‑maker is satisfied Australia has protection obligations because the person is a refugee. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country.[1]
[1] Migration Act 1958 (Cth), s 5H(1)(a).
A person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.[2] Persecution must involve serious harm[3] and systematic and discriminatory conduct.[4]
[2]        Migration Act 1958 (Cth), s 5J(1); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
[3]        Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act sets out non-exhaustive examples of serious harm.
[4]        Migration Act 1958 (Cth), s 5J(4)(c).
A fear of persecution will be "well‑founded" if there is a "real chance" that the person will suffer the feared persecution if returned to the receiving country and the real chance relates to all areas of that country.[5] A "real chance" is a prospect that is not "remote" or "far‑fetched", but does not require a likelihood of persecution on the balance of probabilities.[6] Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person is taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which appear in the attachment to this decision.
[5] Migration Act 1958 (Cth), ss 5J(1)(b)-(c); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
[6] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 407, 429.
Complementary protection criterion
If a person is found not to meet the ‘refugee criterion’ in s 36(2)(a) of the Act, they may satisfy the 'complementary protection criterion' under s 36(2)(aa). That inquiry is prospective and asks whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a "necessary and foreseeable consequence" of return to the receiving country.[7]
[7] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
'Significant harm’ is exhaustively defined in s 36(2A) of the Act.[8] The circumstances in which a person is taken not to face a real risk of significant harm are set out in ss 36(2A) and (2B), which appear in the attachment to this decision.
[8] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
Credibility
In determining this application, it is necessary to make findings of fact. The task of fact-finding may involve an assessment of an applicant’s credibility. I recognise that assessing credibility is an inherently difficult task,[9] which should be conducted carefully, fairly and reasonably.[10] Inconsistencies in an applicant’s account may or may not be significant.[11] I should give the benefit of the doubt to those who are generally credible but are unable to substantiate all of their claims.[12]
[9]        See Fox v Percy [2003] HCA 22; 214 CLR 118 at [31] citing with approval the reasons of Samuels JA in Trawl Industries v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 348 and the material there cited.
[10]       See AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 at [22]–[28] (Kenny, Griffiths and Mortimer JJ); see also, Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5] (Burchett J), W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; 67 ALD 757 at [15]–[19] (Lee, Carr and Finkelstein JJ); ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271 at [39]–[45] (Griffiths, Mortimer and Steward JJ).
[11]       ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271 at [39]–[45] (Griffiths, Mortimer and Steward JJ).
[12]       Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; see also Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines); UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, HCR/1P/4/ENG/REV 4 at [203]–[204].
ANALYSIS, FINDINGS AND REASONS
The issue in this application is whether the applicant satisfies the refugee criterion for protection contained in s 36(2)(a), or the complementary protection criterion contained in s 36(2)(aa) of the Act.
The applicant is responsible for providing sufficient evidence to establish their claim to be a person in respect of whom Australia has protection obligations.[13] When assessing the claims made, I am not required to uncritically accept any or all the allegations made.[14] Rebutting evidence is not required before I can find a particular factual assertion is not made out.[15]
[13]       Migration Act 1958 (Cth), s 5AAA; AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227, [43] (Kenny, Griffiths and Mortimer JJ); EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804 at [148] (Ladhams J).
[14]       SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 (Middleton J).
[15]       CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [65] (McKerracher, Griffiths and Rangiah JJ); Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347 at [7] (Heerey J).
In making my decision, I have considered the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs[16] and the DFAT Country Information Report.[17]
[16] See Migration Act 1958 (Cth), s 499 together with Ministerial Direction No.84 made under that section.
[17] 'DFAT Country Information Report Ethiopia', Department of Foreign Affairs and Trade, 12 August 2020, 20200812101229.
MATERIAL FINDINGS
I am satisfied that the applicant is an Ethiopian national. I am satisfied that he is of Oromo ethnicity.
I accept that the applicant is of Oromo ethnicity and had previously been assaulted by an Ethiopian security officer. In 2016, the applicant was arrested following a protest and detained for a three-month period. His brother was a member of the military for the Oromo Liberation Army, the armed wing of the OLF, and is currently missing. The applicant and his family were forcibly displaced from their home and land, and he had made complaints to the government about this displacement. Additionally, the applicant was involved in an Oromo cultural group that met secretly and worked towards promoting Oromo culture.
The applicant's father was arrested by police in 2010, and the applicant was also arrested at this time. They were questioned about the applicant's brother and his whereabouts. While in police custody, the applicant was thrown from a police vehicle and sustained serious injuries. His father was subsequently tortured by the police and suffered permanent injuries. The applicant's brother remains missing.
I do not consider the fact that the applicant was able to depart Ethiopia by sea in the course of his employment or to travel to Australia undermines his claims. Whilst that might be indicative that the applicant was not of active interest to Ethiopian authorities at the time, it does not mean that he is not of any interest, that he will not be of renewed interest in the future or that if he becomes of adverse interest that he will avoid serious harm.
COUNTRY INFORMATION
Ethiopia held its first multi-party elections in May 1995.[18] The Ethiopian People’s Revolutionary Democratic Front ('EPRDF') won this and all other subsequent elections, bringing stability and economic growth but restricting political dissent and media and civic freedoms.[19] The EPRDF was a coalition of four parties representing Ethiopia’s most powerful ethnic communities, including the Tigray People's Liberation Front ('TPLF') and the Oromo Democratic Party ('ODP'), formerly the Oromo People’s Democratic Organisation.[20]
[18]       2020 DFAT Report, [2.2].
[19]       2020 DFAT Report, [2.2].
[20]       2020 DFAT Report, [2.35].
The OLF was formed in 1973[21] as an ethnic separatist guerrilla group with the goal of establishing a separate state within the current borders of Ethiopia as a homeland for the Oromo people.[22] The OLF was designated as a terrorist organisation in June 2011 by the EPRDF.[23]
[21]       'Country Policy and Information Note - Ethiopia: Oromos, the Oromo Liberation Front and the Oromo Liberation Army', UK Home Office, March 2022, 20220317153007, [6.1.1].
[22]       'Oromo Liberation Front (OLF)', 28 May 2006, CX156562.
[23]       2020 DFAT Report, [2.38].
Between 2014 to 2018, protests occurred in both Oromia and Amhara, which resulted in a state of emergency being declared during which approximately 20,000 people were arrested and 1,000 people killed.[24] It is reported that the Oromo were the most vocal of the opponents to the ruling party during this period, resulting in them bearing the brunt of the associated arrests and detentions.[25]
[24] 2020 DFAT Report, [2.3].
[25] 2020 DFAT Report, [3.6].
In early 2018, Abiy Ahmed became the first Oromo leader of the EPRDF and was sworn in as Prime Minister.[26] In June 2018, federal parliament removed the OLF and the Ogaden National Liberation Front (ONLF) from the list of terrorist organisations.[27] Following this, the OLF agreed to disarm and started to operate as a registered political party.[28]
[26]       'Country Policy and Information Note - Ethiopia: Oromos, the Oromo Liberation Front and the Oromo Liberation Army', UK Home Office, March 2022, 20220317153007, [6.1.1]
[27]       2020 DFAT Report, [2.38].
[28]       2020 DFAT Report, [3.7].
It is reported that the OLF as an opposition political party experiences considerable government harassment.[29] Around October 2018[30], part of the military wing of OLF, the OLA, officially separated from OLF leadership.[31]
[29]       Ethiopian Insight, ‘Guji Oromo need freedom from liberators’ 3 August 2020 by Nagessa Dube; <       'Country Policy and Information Note - Ethiopia: Oromos, the Oromo Liberation Front and the Oromo Liberation Army', UK Home Office, March 2022, 20220317153007.
[31]       Oromo Legacy Leadership Advocacy Association, ‘The Security Situation in Oromia’, by Beresa Abera Jebena <>
The on-going conflict between the OLA and the government has resulted in a significant number of deaths, including civilian deaths, and other atrocities against civilians, including torture and rape.[32] It is reported that arrests and summary executions have become commonplace in parts of Oromia as the Ethiopian security forces engage in armed conflict with the OLA. [33]
[32]       Ethiopian Insight, ‘Guji Oromo need freedom from liberators’ 3 August 2020 by Nagessa Dube; <       The Economist,’ A hidden war threatens Ethiopia’s transition to democracy’ 21 May 2020; <>
The EPRDF was disbanded in December 2019.[34] Three of the four parties that previously made up the EPRDF, including ODP, then formed the Ethiopian Prosperity Party ('EPP').[35] The TPLF refused to join the EPP.[36]
[34]       2020 DFAT Report, [2.2].
[35]       2020 DFAT Report, [2.39].
[36]       2020 DFAT Report, [2.39].
In May 2021, the OLA was designated a terrorist organisation, alongside the TPLF.[37] In August 2021, despite their historical grievances and conflict, the OLA and the TPLF formed an alliance opposed to the government. It is reported that the crackdown on the OLA intensified after the OLA forged its alliance with the TPLF.[38]
[37] 'Country Policy and Information Note - Ethiopia: Oromos, the Oromo Liberation Front and the Oromo Liberation Army', UK Home Office, March 2022, 20220317153007, [6.1.1].
[38] 'Ethiopian government accused of deadly air strikes on Oromiya region', Reuters, 27 October 2023, 20231031162439.
It is reported that since the OLA had been designated a terrorist group, incidents of political violence have increased.[39] It has been reported that there has been widespread impunity for ongoing rights abuses in Oromia, including in areas already suffering from conflict.[40] Security forces have targeted young Oromos, accusing them of support for, or affiliation with, the OLA.[41] It has been reported that a culture of impunity for abuse has emboldened unaccountable security forces and done nothing to prevent further harm.[42]
[39]       'Ethiopia: 20231025121315 – Security situation – Oromos/Oromia – Oromo Liberation Front – Oromo Liberation Army – Returnees', Country of Origin Information Services Section (COISS), 24 November 2023, 20231124144217, pg 2.
[40]       'Ethiopia's Other Conflict', Human Rights Watch, 04 July 2022, 20231102150033.
[41]       'Ethiopia's Other Conflict', Human Rights Watch, 04 July 2022, 20231102150033.
[42]       'Ethiopia's Other Conflict', Human Rights Watch, 04 July 2022, 20231102150033.
In July 2023 it was reported that members of the OLF had been detained without charge and the government had ignored judicial orders for their release.[43]
[43] 'Ethiopia: Oromo Opposition Figures Held Despite Court Orders', Human Rights Watch (HRW), 24 July 2023, 20230728103900.
As noted above, the OLF and OLA separated in 2018. However, it has been reported that "the extent to which OLF controls the OLA or more precisely the fighters who used to be connected to OLF/OLA is open to debate”,[44] with it being suggested that covert contact between the two factions is continuing.[45]
[44] 'Country Policy and Information Note - Ethiopia: Oromos, the Oromo Liberation Front and the Oromo Liberation Army', UK Home Office, March 2022, 20220317153007, [8.1.1].
[45] 'Country Policy and Information Note - Ethiopia: Oromos, the Oromo Liberation Front and the Oromo Liberation Army', UK Home Office, March 2022, 20220317153007, [8.1.2] and the information there cited.
Significantly, there is credible country information which contends that the distinction between OLF/OLA members and the general population in Oromia region is non-existent.[46] It suggests that accusations of OLA affiliation have been deployed by authorities to combat all forms of political opposition, regardless of whether actual ties to the OLA exist as a matter of fact or reality.[47]
[46] 'Country Policy and Information Note - Ethiopia: Oromos, the Oromo Liberation Front and the Oromo Liberation Army', UK Home Office, March 2022, 20220317153007, [8.1.4] and the material there cited.
[47] 'Country Policy and Information Note - Ethiopia: Oromos, the Oromo Liberation Front and the Oromo Liberation Army', UK Home Office, March 2022, 20220317153007, [8.1.4] and the material there cited.

Human Rights Watch has commented on the treatment of politically active Oromos, who are perceived to be part of the OLF by the government, as follows:[48]
In the vast majority of interrogations involving Oromos, there are accusations that they are either members of OLF, or are involved in the Oromo opposition, which many take to mean OLF. There is very rarely any evidence that there is a connection to the OLF, rather anyone who expresses dissent, mobilizes for mainstream politics, or is involved in Oromo cultural associations, are at risk of being associated to the OLF. If you have a family connection from the past to OLF, you are at particular risk. Torture and mistreatment in detention is common among the Oromo, particularly those who have been accused of having connections to the OLF.
[48]       Human Rights Watch 27 Apr. 2015 Immigration and Refugee Board of Canada, Ethiopia: The Oromo Liberation Front (OLF), including origin, mandate, leadership, structure, legal status, and membership; treatment of members and supporters by authorities (2014-2015), 7 May 2015, ETH105146.E, available at: >
The conflict within Ethiopia remains rife and hostilities are at a national scale.[49] Following the execution of a Cessation of Hostilities Agreement between the government and the TPLF, hostilities in Oromia between the OLA and the Ethiopian National Defense Force (ENDF) re-escalated.[50] Negotiations between the Federal Government and the OLA collapsed in April 2023 and the government responded by engaging in military operations against the OLA in May 2023.[51] It has been reported that in Oromia:[52]
The Commission investigated several emblematic incidents of extrajudicial killing, including the detention and killing of leaders of the Karrayyu community at the hands of government security forces in Fentalle District, East Shewa Zone on 1 December 2021. Security forces detained 39 men, including the senior leadership of the Karrayyu community, who were participating in a Waaq Kadhaa prayer ceremony, summarily executing 14 and holding 23 others in a military detention camp for over one month. In another incident, a 17- year-old boy was publicly executed by government security forces in Dembi Dollo, Kellem Wollega Zone, on 11 May 2021. He had been accused of being a member of a local armed group. Despite widespread outrage in both cases, as far as the Commission is aware, no one has been held accountable. Oromos living in Kellem Wollega and West Wollega also described killings of family members, often accused of being members of armed groups, with total impunity.
The Commission further uncovered a pattern of arrest and detention of Oromo civilians, in particular men, accused of having links with the OLA. Detentions documented between November 2020 and February 2023 were perpetrated primarily by the federal or regional police, Oromia Special Forces and at times the ENDF and were accompanied by torture and ill-treatment. Violations are ongoing. Family members of suspected OLA fighters were also targeted for arrest and detention – including women who experienced sexual violence. Arrests, detentions and killings often took place against a backdrop of curfews and restrictions on movement, contributing to an overarching climate of fear. Large areas of Oromia appear to have been administered throughout the mandate periods under militarized Command Posts, whether or not State of Emergency legislation was in force.
[49]       'Report of the International Commission of Human Rights Experts on Ethiopia', Office of the High Commissioner for Human Rights (OHCHR), 25 September 2023, 20230925135340.
[50]       'Report of the International Commission of Human Rights Experts on Ethiopia', Office of the High Commissioner for Human Rights (OHCHR), 25 September 2023, 20230925135340, pg 4.
[51]       'Report of the International Commission of Human Rights Experts on Ethiopia', Office of the High Commissioner for Human Rights (OHCHR), 25 September 2023, 20230925135340, pg 5.
[52]       'Report of the International Commission of Human Rights Experts on Ethiopia', Office of the High Commissioner for Human Rights (OHCHR), 25 September 2023, 20230925135340, pg 8-9.
The UN Commission concluded that in the Oromia region, there were:
reasonable grounds to believe that the ENDF and Oromia regional authorities committed serious violations of human rights, in particular of the right to life; prohibition of torture and ill-treatment, including rape and other forms of sexual violence; and arbitrary arrest and detention.
The UN Commission reported that it "found a pattern of arrest and detention of Oromo civilians, in particular men, accused of having links with OLA or of supporting or sharing information with the group.[53] The UN Commission further reported that whilst:
the majority of the cases were of individuals accused of links with OLA, the Commission found two instances where women and men were arrested and accused of other anti-government activities, including protests. According to human rights defenders and civil society activists working on Oromia, such detentions are common.
[53] See 'Comprehensive investigative findings and legal determinations for Report of the International Commission of Human Rights Experts on Ethiopia', Office of the High Commissioner for Human Rights (OHCHR), 13 October 2023 [accessible: [369], pg 63.
As recently as October 2023, both the OLF and the OLA accused the government of conducting air strikes in Oromo which killed hundreds of civilians.[54]
[54] 'Ethiopian government accused of deadly air strikes on Oromiya region', Reuters, 27 October 2023, 20231031162439.
DOES THE APPLICANT SATISFY THE REFUGEE CRITERION?
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed.[55]
[55] Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 1997 CLR 559 at [124] (Brennan CJ; Dawson, Toohey, Gaudron, McHugh, Gummow JJ).
Does the applicant have a well-founded fear of persecution?
The applicant has longstanding links familial links to the OLF and OLA. He has repeatedly been the subject of adverse attention from authorities. I am not satisfied that his past ability to leave Ethiopia means that he no longer faces any risk of harm.
As I have referred to above, there is credible country information which contends that the distinction between OLF/OLA members and the general population in the Oromia region is non-existent.[56] It suggests that accusations of OLA affiliation have been deployed by authorities to combat all forms of political opposition, regardless of whether actual ties to the OLA exist as a matter of fact or reality.[57] That fact, combined with the applicant's past involvement in protests, arrests and familial encounters with the authorities suggests that the applicant may be at a risk of serious harm. Moreover, his brother having joined the OLA would leave the applicant particularly vulnerable to such an allegation.
[56] 'Country Policy and Information Note - Ethiopia: Oromos, the Oromo Liberation Front and the Oromo Liberation Army', UK Home Office, March 2022, 20220317153007, [8.1.4] and the material there cited.
[57] 'Country Policy and Information Note - Ethiopia: Oromos, the Oromo Liberation Front and the Oromo Liberation Army', UK Home Office, March 2022, 20220317153007, [8.1.4] and the material there cited.
In a 'country guidance' decision of the UK Upper Tribunal, Roba[58], the Upper Tribunal confirmed the country guidance in the United Kingdom included that:
(a)OLF members and supporters and those specifically perceived by the authorities to be such members or supporters will in general be at real risk if they have been previously arrested or detained on suspicion of OLF involvement;
(b)those who have a significant history, known to the authorities, of OLF membership or support, or are perceived by the authorities to have such significant history will in general be at real risk of persecution by the authorities;
(c)‘significant’ should not be read as denoting a very high level of involvement or support. Rather, it relates to suspicion being established that a person is perceived by the authorities as possessing an anti-government agenda. This is a fact sensitive assessment.
[58] Roba (OLF - MB confirmed) Ethiopia CG [2022] UKUT 00001
I respectfully agree with the conclusions reached by the Upper Tribunal in Roba.
The applicant has previously been arrested in connection with anti-government protests. The applicant has a brother who joined the OLA, the armed wing of the OLF. His family has been disposed of their land and the applicant has disputed that action with the government. The applicant has a history of adverse attention from authorities in Ethiopia.
The mere fact that the applicant was able to depart Ethiopia, by sea, for work and by air from Addis Ababa to travel to Australia does not cause me to conclude that the risk of serious harm to the applicant, if he were to be returned to Ethiopia, can be characterised as being remote. The chance of serious harm faced by the applicant is neither remote nor far-fetched; it is a real chance.
I am satisfied that it is for the essential and significant reasons of the applicant's ethnicity and actual, or imputed, political opinion as a supporter of the OLF or for being anti-government. I am satisfied that the feared harm involves systematic and discriminatory conduct.
I am satisfied that the applicant has a well-founded fear of persecution within the meaning of s 5J(1) of the Act.
Do any of the exceptions apply?
There is no evidence to suggest that the applicant has a right to enter and reside in a third country.
I am also satisfied that the applicant could not modify his behaviour in a permissible way to avoid the real chance of serious harm. As the harm which the applicant faces is from the Ethiopian authorities, I am satisfied that the real chance of serious harm relates to the whole of Ethiopia and there are no effective protection measures available to the applicant.
CONCLUSION
For the above reasons, I am satisfied that the applicant is a refugee within the meaning of s 5H(1) of the Act. The applicant satisfies the criterion in s 36(2)(a) of the Act.
Having reached that conclusion, it is not necessary to determine whether the applicant satisfies the alternative criterion for protection in s 36(2) of the Act.
DECISION
The Tribunal sets aside the decision to refuse to grant the applicant a protection visa and remits the application for reconsideration with a direction that the applicant satisfies s 36(2)(a) of the Act.
Fraser Robertson
Member
ATTACHMENT – EXTRACT FROM MIGRATION ACT 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:       For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:       For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:       For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:       Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally

[2024] AATA 2943

11 July 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

DIVISION:	Migration & Refugee Division
REPRESENTATIVE:	Thanh Mai-Hang Nguyen (MARN: 1802335)
CASE NUMBER:	1931425
COUNTRY OF REFERENCE:	Ethiopia
MEMBER:	Fraser Robertson
DATE:	11 July 2024
PLACE OF DECISION:	Perth
DECISION:	The Tribunal sets aside the decision of the delegate and remits the application for reconsideration with a direction that the applicant satisfies s 36(2)(a) of the Act.
Statement made on 11 July 2024 at 3:12pm