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1931425 (Refugee)

1931425 (Refugee)

Case [2024] AATA 2943 11 July 2024

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1931425 (Refugee)

Details

AGLC: 1931425 (Refugee) [2024] AATA 2943
Case: [2024] AATA 2943
Decision Date: 11 July 2024

CaseChat Overview and Summary

The applicant, an ethnic Oromo from Ethiopia, sought a protection visa, alleging a well-founded fear of persecution based on his ethnicity and imputed political opinion. The dispute concerned whether the applicant had demonstrated a real chance of suffering significant harm due to systematic and discriminatory conduct by the Ethiopian authorities, and whether effective protection was available to him in Ethiopia. The decision under review was made by the Refugee Tribunal.

The primary legal issues before the court were whether the applicant had established a well-founded fear of persecution for a Convention reason, specifically ethnicity and imputed political opinion, and whether the Tribunal had erred in its assessment of the applicant's claims regarding adverse attention from authorities, his involvement in Oromo cultural activities, and the harm he and his family had sustained in police custody. The court also considered whether the Tribunal had adequately assessed the availability of effective protection in Ethiopia.

The court found that the applicant had provided credible evidence of his experiences, including his arrest in connection with anti-government protests, his involvement in an Oromo cultural group, and the serious injuries sustained by him and a family member while in police custody. It was held that the Tribunal had failed to give sufficient weight to this evidence and had not adequately considered the risk of harm arising from systematic and discriminatory conduct directed at ethnic Oromos. The court concluded that the applicant had demonstrated a well-founded fear of persecution and that no effective protection measures were available to him in Ethiopia.

Consequently, the court remitted the application for reconsideration by the Refugee Tribunal with a direction that the applicant satisfies s 36(2)(a) of the *Migration Act 1958* (Cth).

Orders