2004071 (Refugee)
[2022] AATA 2529
•20 June 2022
2004071 (Refugee) [2022] AATA 2529 (20 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Amelia Faraone
CASE NUMBER: 2004071
COUNTRY OF REFERENCE: Ethiopia
MEMBER:Peter Haag
DATE:20 June 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Statement made on 20 June 2022 at 11:43am
CATCHWORDS
REFUGEE – Protection Visa – Ethiopia – Oromo ethnicity – gender-based violence – membership of the particular social groups – single woman in Ethiopia without effective male protection – Victim of family violence perpetrated by a senior government official – mental health – significant economic hardship that threatens applicant’s capacity to subsist –effective protection measures are not available to the applicant – membership of the same family unit as the first named applicant – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
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
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 February 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Ethiopia, applied for the visas on 18 April 2019. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and are not members of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
The first named applicant (the applicant) appeared before the Tribunal on 31 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic (Ethiopian) and English languages.
The applicants were represented in relation to the review. The applicants’ representative is a member of the legal profession in Victoria.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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 Minister 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: s 5H(1)(a) of the Act. In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1) of the Act, 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. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–5LA of the Act, which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) for Ethiopia dated 12 August 2020, expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 5AAA of the Migration Act 1958
The Tribunal notes that pursuant to s 5AAA of the Act, it is for the applicant to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim.
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Applicant’s identity
The applicant claims to be an Ethiopian citizen, born [date] in [Town 1], Oromia Region, Ethiopia. The applicant identified her ethnicity as Oromo, and religion as Islam. The applicant stated that she can read, write and speak Amharic and Oromo, and speak English.[1]
[1] Application for a protection visa, Department file [number deleted], Doc ID 7012335.
The applicant stated in her protection visa application form that she was separated. In subsequent submissions (see below), she stated that she and her children had left her husband on [date] January 2019 due to domestic violence.
She has two children, both of whom are included in the application for a protection visa. At the time of application, her father, [and a few siblings] were living in Ethiopia. Her mother, [and other siblings] were deceased.[2]
[2] Application for a protection visa, Department file [number deleted], Doc ID 7012335.
The applicant stated that from 1996 to 2007 she lived in Addis Ababa, from 2007 to 2013 she lived in [City 1], [Country 1], and from 2013 to September 2016 she lived in Oromia Region, Ethiopia.[3]
[3] Application for a protection visa, Department file [number deleted], Doc ID 7012335.
The applicant stated that she had never been employed. She completed primary school in [year] and high school in [year] in [Town 1], Oromia.[4]
[4] Application for a protection visa, Department file [deleted], Doc ID 7012335.
The applicant provided the Department with a copy of her Ethiopian passport[5] and [staff] ID card.[6]
Second named applicant
[5] Department file [number deleted], Doc ID 7012322.
[6] Department file [number deleted], Doc ID 7012341.
The second named applicant claims to be an Ethiopian citizen, born [date] in Ethiopia.[7] He identified his ethnicity as Oromo and religion as Islam. He claims to read, write and speak English, and to speak Amharic and Oromo. He is the son of the applicant and brother of the third named applicant.[8]
[7] This had incorrectly been recorded as [date] March 2004 in the visa application and [visa], and rectified via ‘Notification of incorrect answer’ on 18 April 2019 (Department file [number deleted], Doc ID 7012343).
[8] Application for a protection visa, Department file [number deleted], Doc ID 7012335.
The second named applicant attended primary school in [Country 1] from 2008 until 2013, then in Addis Ababa from 2013 to 2016. He has attended [school] in Australia since September 2016.[9]
[9] Application for a protection visa, Department file [number deleted], Doc ID 7012335.
The applicant provided the Department with a copy of his Ethiopian passport.[10]
Third named applicant
[10] Department file [number deleted], Doc ID 7012339.
The third named applicant claims to be an Ethiopian citizen, born [date] in [City 1], [Country 1]. He identified his ethnicity as Oromo and religion as Islam. He claims to read, write and speak English, and to speak Amharic and Oromo. He is the son of the applicant and brother of the second named applicant.[11]
[11] Application for a protection visa, Department file [number deleted], Doc ID 7012335.
The third named applicant attended primary school in Australia and commenced school in Australia in [year].[12]
[12] Application for a protection visa, Department file [number deleted], Doc ID 7012335.
The applicant provided the Department with a copy of his Ethiopian passport.[13]
[13] Department file [number deleted], Doc ID 7012338.
The documents provided by the applicants are consistent with their evidence to the Tribunal in relation to their identities. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant the Tribunal finds that she is a citizen of Ethiopia, and as such her protection claims will be assessed against Ethiopia as the country of reference and ‘receiving country’ respectively.
Migration history
The applicants arrived in Sydney, Australia, on [date] September 2016 on [temporary] visas granted on 11 August 2016.[14] The applicants stated that they departed Ethiopia legally on Ethiopian passports. They were accompanying the applicant’s husband and father of the second and third named applicants on a [trip].[15]
[14] Department file [number deleted], Doc ID 7012344.
[15] Application for a protection visa, Department file [number deleted], Doc ID 7012335.
The applicant and second named applicant had travelled to [City 1], [Country 1], in 2007, on a [trip] with the applicant’s husband. The third named applicant was born in [Country 1].[16]
[16] Application for a protection visa, Department file [number deleted], Doc ID 7012335.
The applicants applied for XA-866 Permanent Protection visas on 18 April 2019. The applicants were unlawful at the time of the application for a protection visa. The applicant stated on her application form that she was unaware that her [temporary] visa had expired.[17]
[17] Application for a protection visa, Department file [number deleted], Doc ID 7012335.
The delegate refused the application for protection visas on 24 February 2020.
Applicant’s evidence
The applicant provided to the Department a psychiatric report from [Dr A], Consultant Psychiatrist, dated 16 April 2019. The report described the applicant’s history and experiences of abuse from her husband and opines that the applicant ‘fulfills DSM V diagnostic criteria for Major depression’, and also displayed symptoms of post-traumatic stress disorder.[18]
[18] Department file [number deleted], Doc ID 7012358.
On 25 July 2019, the Department sent the applicant a s 56 request to submit claims that the applicant is a person to whom Australia owes protection obligations.[19]
[19] Department file [number deleted], Doc ID 7012359.
In support of her application for a protection visa, the applicant submitted a statutory declaration, signed and dated on 22 August 2019, making the following claims:[20]
[20] Department file [number deleted], Doc ID 7012368.
3. If I am forced to return to Ethiopia, I am scared I will be seriously harmed or killed by my husband or someone working for him because he is a [Occupation 1] for the Ethiopian government and I have spoken out about his extra-marital affair. I also fear harm from the Ethiopian government because I have lodged a protection visa application in Australia with claims against my husband. I also fear that if I return to Ethiopia my husband's family will take my children from me.
Background
4. I was born on [date] and I am [age] years old.
5. I am a citizen of Ethiopia. I was born in [Town 1] in the Oromia region.
6. I am of Oromo ethnicity and I am Muslim.
7. I am one of [number] children. Two of my siblings [died] from illness in Ethiopia. My mother also passed away last year from natural causes. My other siblings reside in Ethiopia. One of my siblings lives in Addis Ababa. The other [ones] live in [Town 1].
8. I have never worked. I have a basic level of education. I completed high school but I did not pass the final exams.
9. In 1996 my husband and I married in Ethiopia. My husband's name is [Mr B]. He works as a [Occupation 1] for the Ethiopian Government.
10. I have two sons, [Master C] and [Master D] . [Master C] was born in Addis Ababa on [date] and [Master D] was born in [Country 1] on [date]. They reside with me in Australia.
11. I last spoke to my husband on [date] January 2019 when I fled [City 2] to [City 3] with my sons.
12. It was on this day that I separated from my husband. I have not spoken to him since because I fear it will endanger my life even though I have deprived my sons of a father through my actions.
13. My husband and I had an arranged marriage. My husband saw me and he chose me. He asked his friends in the community about me and then he asked his parents to arrange it with my parents. I did not know much about him but I agreed to the proposal. I was [age] years old at the time. I think my husband was around [age] years old at the time but I am not sure. He was already working for the Ethiopian government at the time of our marriage.
14. I don't know much about my husband's work. I know he was working for the government [in] Addis Ababa and he worked [here] in Australia. When he was working [in] Ethiopia he often travelled to other countries for work. I knew that when we came to Australia he had a higher [position]. But I am not quite sure about what he [does].
15. Before the troubles in our marriage began, our relationship was good. We had a normal married life.
16. When we lived in Addis Ababa we rented a two-bedroom [house]. We were probably middle-class in Ethiopia. We lived in a good condition but we were not wealthy.
17. My husband went to work at 8am every day and came back home at 5pm. I did everything during the day, cooking, cleaning the house, washing the clothes and I also socialised with my neighbours and people in the community. There were many social events in the community, for both happy and unhappy occasions that I attended regularly.
18. In around 2007, our family travelled to [Country 1] for my husband's work. We stayed there for around six and a half years. We lived in [Country 1] as this was most convenient for my husband's work commitments. I looked after the home and our children.
19. When we arrived in [Country 1] my son [Master C] was just over [age] years old. He started Kindergarten [in] [Country 1].
20. In [year] my second child [Master D] was born. [Master D] did not attend school in [Country 1]. He stayed at home with me.
21. English was [Master C]'s first language and [Country 1 language] was his second language although he has forgotten a lot of his [Country 1 language] now.
22. I was happy in [Country 1] even though I did not know much [Country 1 language]. We were just living a normal life like everyone else. I could speak a little English and a little [Country 1 language]. My son was getting a good education. My husband was in a good manner and my life was good.
23. In around 2013, we returned to Addis Ababa. We rented a different house. This house had three bedrooms and also a living room and a kitchen. We could afford a bigger house because my husband was working in [a different section] at this time. After we rented for about a year, my husband bought a new house for us to live in.
24. In around 2015, my husband and I started having problems in our marriage.
25. I started to suspect that my husband was having an affair. This was because he started exhibiting different behaviours around me at home. He would often go out and spend the whole night away from home. He would not tell me where he was going. He used to do field work which required him to travel.
26. On the nights that he did not come home, I asked him where he had been when he arrived home in the morning. He always told me that he had been out somewhere for work. Sometimes he stayed away for two or even three nights. If I asked him where he had been he would say, "that is none of your business, who wants to be with you?"
27. He lost all affection for me and showed no interest in me at all. He started to act very disrespectfully towards me. I knew something was going on because he was never previously abusive towards me. He repeatedly called me bad names and it seemed as if he hated me. We started having arguments frequently.
28. When my husband and I were experiencing these problems I told a few people in the community about it. Some people mentioned that they had seen my husband with another woman called [Ms E]. I cannot remember who first told me this but one of my friends mentioned it and my house helper also confirmed it. [Ms E] was young, about [age] years old. She lived in our community and I had seen her around.
29. In or around May 2015 I confronted my husband about the woman he was seeing. I told him that I had found out what he was doing. I knew that he was having an affair. He tried to deny it but then he became very angry. He called me an illiterate. He said I was a lesser person than the woman he was having an affair with. He said I was not fit for the water [Ms E] cleans her shoes with and then he slapped me on my face. He kicked my leg and my back. My face was full of pain.
30. After my husband hit me I immediately ran out of the house. I got a taxi and went to see the Elders. This occurred during the day so our children were at school. I did not go to see my parents because they lived far away from Addis Ababa.
31. The Elders play a very important role in our society, particularly in the Oromo community. When someone has a domestic or family problem, the Elders will intervene in the situation and try to resolve the issue for the people involved.
32. I told the Elders that my husband was involved with another woman and that we were fighting a lot. That night, two Elders came to our home and discussed the situation with my husband and I. They asked us what our fighting was about. I said "my husband has been calling me names and he is having an affair." The Elders told my husband that he must stop what he is doing. My husband appeared to listen to the Elders. He said he would not call me names anymore and he will correct himself, meaning he will stop his affair. I was happy to hear him say this. My children were in their bedrooms during this conversation.
33. After this meeting I thought that everything had been resolved because I trusted in the Elders. I believed that my husband had stopped what he had been doing. There was no more fighting between my husband and I until we came to Australia.
My time in Australia
34. In September 2016 our family travelled to Australia for my husband's work. My husband was working in [City 2]. His contract in Australia was for four years.
35. We left Ethiopia via Addis Ababa Airport and arrived at Sydney Airport on [date] September 2016. We then went to [City 2] to live.
36. A few months after we came to Australia, my husband started to become abusive and aggressive towards me again. He started to put me down all the time, just like before. He would say to me, "you old lady, how can someone live with you?" He used to tell me that I was illiterate and that I was a piece of meat.
37. Many times he was on the telephone in our bedroom. Our bedroom was next to the kitchen. If I accidentally opened the door from the kitchen into the bedroom he would get very upset.
38. I started to wonder if my husband was having another affair. He didn't show me any affection or care and he denigrated me all the time. The abuse he inflicted on me hurt me deeply. Even his comments about my outfits were very damaging. He always told me I was ugly and old. He acted like he was with someone he did not want to be with. Whenever he said something hurtful I would start crying. Sometimes I would tell him not to speak to me like that. But more often I said nothing because I was always scared that he would hit me if I spoke back.
39. I felt let down morally by my husband. He made these comments repeatedly every day. Crying brought me relief because of the way he treated me. My only solution was to cry because of the trauma I experienced on a daily basis.
40. On a few occasions I tried to have a sensible discussion with my husband about our situation but he always brushed me away or told me he was busy.
41. I tried my best to hide our fights from the boys. I did not want them to be infected with what happened in the house. I wanted them to grow up in a peaceful family. I did not want them to see our arguments or be exposed to fighting.
42. Since he started an affair, my husband started acting differently towards my kids. When [Master C] started [school] in [City 2] my husband forbade him from going on excursions and told [Master C] to tell the school he was not interested. I think that my husband did not want to pay for them. I think [Master C] was scared of his father. [Master C] was dominated by his father and felt that he had to respect what he says.
43. In late 2018 my husband travelled to [City 3] for work. I accompanied him with the children. While we were in [City 3] I met with some people in the local Ethiopian community. I took down the phone numbers of a couple of people, including a woman called [Ms F] who became my friend. Sometimes we would call each other to have a chat and say hello.
44. In around December 2018 I asked my husband if he was still in touch with [Ms E] from Ethiopia. I said to him, "you promised the Elders that you would stop your involvement with her." He said, "yes, you are a lesser person than her and in fact in the future I will marry her." He also said that it was my job to stay in the marriage as a symbol and take care of the children. Our religion allows him to take more than one wife if he wants to.
45. He said, "if you are going to behave yourself, behave yourself. But if you are going to tell anyone, either the Elders or anyone, I will kill you and hurt your family and have you deported to Ethiopia. I brought you here to this country and I have complete power to send you back and I can do that at any time." He told me to shut up because he has the power. He said, "this is the final warning, whether we stay here or go back to Ethiopia." When he said this I started crying. I was in complete shock. I did not say anything back.
46. I knew that it was a real threat because he said it like it was a warning. I was scared because I know my husband has the capacity to carry out this threat. He has a powerful position in Ethiopia and he can pay the police and manipulate things. He has the money, power and a lot of contacts with high ranking government officials and other military or security people. There is no law in Ethiopia. If you have money and power then the law does not work. My husband has both money and power and links with government bodies and officials. Because of this he has complete power over me and my family.
47. I decided that I needed to escape from my husband and take my children with me. I was extremely worried about their safety.
48. There was a person we used to employ on occasion to clean the carpet in our home in [City 2]. About three days after my husband threatened me, I was alone in the house with the cleaner. I told him that I wanted to go to [City 3] to visit some friends. I asked him if he could drive me there if I paid him. He said yes, he would be happy to do that. I called my friend [Ms F] and told her that I was coming to [City 3] for a visit. I asked for her address.
49. On [date] January 2019 I left [City 2] for [City 3]. We decided on the[date] January because I thought this was a convenient day. My husband goes for a walk early in the morning. I used this opportunity to leave while he was out. I think my husband left the house at around 6am and we left around 7am. I packed up all of our things, my clothes, the kid's clothes, our passports. We did not take everything in the house, just one piece of luggage for me and two small bags for the kids.
50. On the way to [City 3] I told my children where we were going and that they were going to stay with me because I was having a problem with their dad. The youngest one asked me why. I told him that I didn't want to live with their dad anymore. The eldest one already knew what was going on. He had seen me crying a few times and he felt very sympathetic towards me.
51. When we arrived in [City 3] it was around 5pm. The carpet cleaner dropped me at [Ms F]'s house. When I got to [Ms F]'s house I told her everything that had happened with my husband. She let me stay with her for two weeks. At that time I was very scared that my husband would come find me and I did not leave the house.
52. I have not heard from my husband since [date] January 2019. He is not able to contact me because he doesn't know where I am. I lost my mobile phone in [City 3] in the first week after I got here. Before I lost my phone I had turned it off because I was scared of my husband contacting me. He has not contacted my sons either. [Master C] only got a mobile phone about six months ago. It does not have a SIM card in it. [Master D] does not have a phone.
53. Since I have been in [City 3] different members of the Ethiopian community have offered to house myself and the children. We do not have a permanent place to stay and it is very stressful.
54. My lawyer recently told me that my husband left Australia on [date] January 2019 and is now in [Country 2]. I did not know that he had a new [job] in [Country 2]. Even though he is in [Country 2] I can't go back to Ethiopia because his family might harm me as I left the marriage and I took the kids. They will be really angry about that and they will want to take revenge for that. If they are able to find the children they will take them.
55. My husband can do anything he wants because of his position in Ethiopia. He might fear that I want to claim some benefits or share the wealth that he made while we were together. My fears of returning to Ethiopia
56. If I am forced to return to Ethiopia I fear for my life. My husband has already told me that he will kill me because I told the Elders that he was having an affair. Because my husband has money and he occupies an important position in the government, he is capable of hurting me. Either he would kill me himself or he could get someone else to do it.
57. In Ethiopia if you occupy an important position and you have money, you have the upper hand. If you do not have money and you don't occupy any position you don't get justice.
58. People in Ethiopia know that I am [Mr B]'s wife.
59. My family do not know what has been happening to me. I have not told my father what has happened because he is very sick.
60. I did not lodge a protection visa until now because I only separated from my husband in January of this year. I have always been completely dependent on my husband.
61. I need protection for myself and my children in Australia. I choose to be alive for my children. If I go back to Ethiopia I will be killed. Even if my husband is not in the country, he has power. His family could harm me. Or my husband could arrange for someone to hurt me.
62. The fact that I've left him is a big concern for him. He wanted to enslave me. Even if he wants to marry another woman he wants me to be his wife looking after his children. Because I got away from him and I've taken the kids, I have escaped his control. He knew I didn't have any power or financial independence. He thought I would always be under his control. In our culture we have respect for the male breadwinner so it will be a loss of face for him if people know I have left the marriage.
63. If I went to the High Court to divorce him the process would not be fair or in my favour due to my husband's connections. It is about who you know. He can direct anyone to act for his interests. This jeopardises a fair decision. He and his family could take my children. They will say that I don't have any income and take them from me and give them to him or his parents.
Effective protection
64. I cannot seek help from the authorities in Ethiopia. They will not be able to protect me. My husband can pay the police so that they do not bring charges against him. He could also bribe judges so that nothing happens to him. There are no human rights in Ethiopia.
65. Even if l return to Ethiopia and don't tell anyone about my husband's affair I know I will still be in danger. I know my husband is angry because I left. He would not leave me alone because the fact that I left will have made him upset.
66. I was under his control and now I have escaped. I am scared of him. I don't even trust my own shadow.
67. I have a father and three brothers in Ethiopia. But they cannot protect me. I believe there is danger for them too. My husband could hurt them if they tried to protect me. My father is bedridden and has a catheter. I could not live with him and he could not support me and my boys.
68. I have an increased profile in Ethiopia because of my husband's position and so do my boys.
Relocation
69. I cannot relocate to another area in Ethiopia. I would not be safe. My husband would find me because Ethiopia is a small country and he works for the government.
70. I have [relatives] in [a named town]. I also have one relative in [a named town], the grandchildren of my uncle. We are not very close. However I would not be safe in either of those places. My relatives are very young and they would not be able to support me if something happened. Wherever I am in Ethiopia he will find me. My husband's family live in [a location].
71. I don't know how I will support myself as a single mother in Ethiopia. I have never worked in my life because I was always supported by my husband. I do not know what I would do for work. My husband has totally destroyed my self-confidence.
72. I do not have any assets. The accounts were all in my husband's name, I never even saw them. I now have a bank account in Australia but there is no money in it. None of my relatives can support me and my two boys. My father is a pensioner and he lives with support. He would not be able to help me. There is no social security system in Ethiopia.
73. I would not have lodged a protection claim in Australia if I could live elsewhere in Ethiopia. I want to be far away from my husband and live with my kids peacefully. He will find me wherever I go.
On 21 November 2019, the Department sent the applicant another s 56 request for information. The Department requested:[21]
[21] Department file [Number deleted], Doc ID 7012409.
Details of the first bank account you opened in Australia, including when it was opened, why it was opened and the amounts contained in it
Details of the elders in Ethiopia who helped you and how you initiated contact with them, including: names and positions, where and when you contacted them
Answers to the following questions:
Since you have been in Australia have you sent any money overseas?
If you have sent money overseas:
- How much have you sent?
- Who have you sent money to?
- Why did you send this money?
- When did you send this money?
On 19 December 2019, the applicant’s then representative made submissions to the Department in response to concerns raised by the case officer during a Departmental interview with the applicant on 18 November 2019. The submissions addressed concerns that the applicant did not face a real chance of harm because her husband was [in] [Country 2], that her children had not had contact with their father since [date] January 2019, and that the applicant had waited until [date] January 2019 to leave her husband. The submissions also referenced country information regarding gender-based violence and high rates of domestic violence in Ethiopia.[22]
[22] Department file [Number deleted], Doc ID 7012413.
The representative also submitted bank statements in the name of the applicant in response to the s 56 request for information dated 21 November 2019, and what appears to be a file note from DFAT, released under the FOI Act, indicating that on 25 February 2019 the applicant’s husband had ‘advised that he had been trying to contact his wife but her phone was disconnected’, and ‘it was not his intention for his wife and family to stay behind in Australia’.[23]
[23] Department file [Number deleted], Doc ID 7012413 and 7012425.
In response to the s 56 request for information dated 21 November 2019, the applicant also submitted a statutory declaration signed and dated 20 December 2019, providing explanations for opening her own bank account, deposits and withdrawals made, overseas money transfers and her contact with the Elders while in Ethiopia.[24]
[24] Department file [Number deleted], Doc ID 7012415.
On 30 May 2022, the Tribunal received the following submissions:
a)Submissions from the applicant’s representative dated 29 May 2022 stating, inter alia, that:
i.there is a real and substantial risk that the applicant would suffer persecution if returned to Ethiopia;
ii.she fears ‘harm in the form of physical violence, threats of violence, severe discrimination, an inability to subsist and death’ from ‘her ex-husband, people associated with her ex-husband, Ethiopian security forces, armed groups, and community members’ due to:
a. Her membership of the particular social groups:
o Single woman in Ethiopia without effective male protection;
o Victim of family violence perpetrated by a senior government official;
o Single female household head;
o Someone suffering from significant mental illness; and/or
o Returnees.
and/or
b. Her race on account of her Oromo ethnicity.
iii.there is a real and substantial risk that the second and third named applicants would suffer persecution if returned to Ethiopia of the same kind and from the same actors as the applicant due to:
c. Their membership of the particular social groups:
oEthiopian people who have spent many years outside Ethiopia;
oEthiopian people who have not lived in Ethiopia since they were infants;
oMilitary-aged males of Oromo ethnicity;
oEthiopian people who have spent much of their lives in a Western country;
oThose who are perceived as wealthy, and/or;
oReturnees.
and/or:
d. Their race on account of:
o Their Oromo ethnicity;
o Their lack of meaningful connection or support from a family group.
iv.The applicant’s current state of mental health is relevant to the assessment of whether she meets the relevant criteria for protection;
v.Country information regarding the current political and security situation in Ethiopia, women in Ethiopia, mental health support, returnees and persons perceived as wealthy and/or foreign/migrant/outsider, Oromo people without any familial or community connections and the inability to subsist supports the applicants’ claims;
vi.The applicants would not be able to relocate within Ethiopia due to the current conflict, the applicant’s mental health and being perceived as outsiders.
b)Statement from the applicant, dated 25 May 2022, responding to the delegate’s decision, referring to her mental health and stating her fears of harm at the hands of her ex-husband.
c)Statement from the second named applicant, dated 25 May 2022, describing his relationship to Ethiopia, his relationship with his father and his fears of harm if forced to return to Ethiopia.
d)Counselling report for the applicant from [an] Accredited Mental Health Social Worker and Counsellor, [dated] 20 May 2022.
Post-hearing medical report and submissions
After the hearing, the Tribunal received the following documents:
a)Medical report of [Dr G] dated 3 June 2022.
b)Representative’s submissions dated 7 June 2022.
The claims and evidence
Having considered as a whole, the DFAT report for Ethiopia, the UNHCR position report on returnees to Ethiopia dated March 2022, the country information and submissions provided by the applicant to the Department and Tribunal, and the applicant’s oral and written claims individually and cumulatively, the evidence is insufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be subjected to serious harm for any of the following reasons:
· Religion
· Nationality
· Political opinion.
The dispositive issues
The information provided by the applicant to the Department and the Tribunal, the oral evidence and medical evidence raises this issue for determination:
·Is the evidence sufficient to establish to the satisfaction of the Tribunal that the applicant faces a real chance of serious harm due to her membership of a particular social group which included her Oromo ethnicity, if she is returned to Ethiopia now or in the reasonably foreseeable future.
·Whether the second and third named applicants are members of the same family unit as the applicant, being a person to whom Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicants.
The Tribunal has considered the applicant’s evidence and second named applicant’s statements relevant to the applicant’s relationship with her estranged husband.
The second named applicant, [Master C] , was born on [date]. He is [age] years of age and undertaking [study] at [school]. According to the materials before the Tribunal he is much more comfortable speaking English than Amharic, the official language of Ethiopia.
[Master C] – written statement
The applicants rely in part on a written statement that purports to be a statement made by [Master C] (statement) that was provided to the Tribunal by their representative. An illegible signature appears at the foot of the document. The statement is not in the form of an affidavit or statutory declaration. The statement is dated 25 May 2022. The applicants’ representative provided the statement to the Tribunal on 30 May 2022, some days after the date on the statement.
[Master C] did not participate in the review hearing (hearing). The statement was put before the Tribunal as evidence to be accepted by the Tribunal at face value.
The last paragraph of the statement is immediately above the illegible signature and it states:
It has not been possible for me to sign this statement or prepare it as a Statutory Declaration. I have prepared this statement by telephone with my representatives [in] [City 3].
This paragraph asserts the statement was prepared by means of telephone communications with people said to be the applicant’s representatives. The statement asserts it was not signed by the applicant. The person who signed the statement is not identified. The statement does not describe the circumstances that prevented [Master C] from signing it or making it in the form of a statutory declaration. The statement does not say [Master C] read it and adopted the contents as a true and accurate record of the matters stated in it.
[Master D] did not not provide a written statement to the Tribunal, and he did not participate in the hearing.
In responding to the Tribunal’s invitation to the applicants to attend the hearing scheduled on 31 May 2022, the applicants were expressly asked in the document to inform the Tribunal ‘Who will take part in the hearing?’ The response stated [the applicant] will participate in the hearing. The response also stated that the applicants [Master C] and [Master D] will not participate in the hearing.
The hearing response document was ‘Signed on behalf of, and with the consent of, all applicants’ by [the applicant] on 24 May 2022.
The applicants’ representative provided the hearing response document to the Tribunal on 24 May 2022.
[Master C] and his brother [Master D], the third named applicant, exercised their legal right not to participate in a hearing. The Tribunal does not have the power to compel or otherwise require either applicant to participate in the review, or to act inconsistently with their decision to not participate in the review, unless either applicant unequivocally informed the Tribunal that they had revoked their decision to not participate in the hearing, and that their present intention is to participate in the hearing.
Considering the applicants’ reliance on [Master C]’s statement as evidence they face a real chance of serious harm, including murder, at the instigation of [Master C]’s father, [Master C]’s statement is a potentially relevant and material document in this review.
During the hearing the applicants’ representative informed the Tribunal that [Master C] and [Master D] were at school. The Tribunal accepts that this was the case, and that circumstance is consistent with their decision to not participate in the hearing.
The applicants’ representative, a registered legal practitioner with carriage of each of the review applications, without prompting from the Tribunal, inquired of the Tribunal towards the end of the hearing, if the Tribunal wanted to hear from [Master C] or [Master D]. For the reasons stated above, it is not for the Tribunal to act contrary to the applicants’ decision to not participate in the hearing in circumstances where the Tribunal was not specifically informed that [Master C] or [Master D] had changed their decision and now wanted to participate in the hearing.
Considering the matters of concern identified at [45] that arise on the face of the statement; and given that [Master C] exercised his right to not participate in the hearing and that he has not adopted the statement as a truthful and accurate statement of the facts; the evidence is insufficient to establish to the satisfaction of the Tribunal that the statement is evidence of the truth of its contents. For these reasons, the Tribunal gives no weight to the statement in this review.
[The applicant]
The applicant is [age] years of age. She did not successfully complete secondary school education, and her academic results were not good enough to enable her to undertake higher education.
The applicant left school at the age of [age] and married [Mr B] in an arranged marriage when she was [age]. The applicant believes her husband, [Mr B] was approximately [age] years of age when they married, but she is not sure of his age.
The applicant has never been a member of the paid workforce. Her life has always been centred on household duties, socialising with friends and raising their children. The applicant has never had her own independent source of income. [Mr B] gave the applicant an allowance for shopping and he controlled the household income, budget and expenditure independently of the applicant.
At the time of the marriage, [Mr B] was working in [Workplace 1] in Addis Ababa. He progressed in his career. According to the evidence, the first few years of their marriage were happy. The applicant knows little about [Mr B]’s day to day working life. The applicant is aware he worked in [Workplace 1] in Addis Ababa. In 2007 he was [working] in [City 1], [Country 1]. The applicant and their son [Master C] travelled with him to [Country 1]. After six and a half years in [Country 1] the family returned to Ethiopia around 2013. In September 2016 [Mr B] was [in] Australia to [work] in [City 2]. The applicant and their two sons accompanied him to Australia where the family lived together in [City 2] until January 2019.
According to the applicant’s evidence [Mr B] departed Australia to take up a new [job] in [Country 2], shortly after the applicant separated from him in January 2019.
The applicant separated from [Mr B] without telling him of her intention to do so. She took their two children with her to [City 3] where she established herself with the assistance of a Christian faith based charitable organisation. The applicant claims she did not tell her children of her plan to end the marriage and separate from [Mr B] until they were travelling to [City 3] by car driven by an acquaintance she had prevailed upon to assist her to leave [City 2] and [Mr B]. There is no evidence of any further contact with this acquaintance, a person the Tribunal understands resides in [City 2], after he drove the applicant and the children in [City 3].
Marital breakdown
Around May 2015 in Ethiopia the applicant was aware of a major change in [Mr B]’s feelings for her. According to the evidence the applicant felt her husband hated her: he was emotionally distant, personally insulting and verbally abusive. The applicant suspected [Mr B] was emotionally involved with another woman.
The applicant learnt from others that [Mr B] was seeing a younger woman known to the applicant as [Ms E], who lived in their community. The applicant confronted [Mr B]. He characterised the applicant as illiterate and a lesser person than [Ms E]. According to the applicant [Mr B] slapped her face, and kicked her leg and back during the confrontation.
The applicant immediately left the house by taxi. There is no evidence [Mr B] attempted to prevent her from doing so. The applicant travelled to meet with elders in the Oromo community. That night two community elders visited the house and after being counselled about his behaviour towards the applicant he agreed to end his relationship with [Ms E], and to treat the applicant respectfully.
According to the applicant she believed everything had been resolved. There is no evidence of any further violence or abuse of the applicant in Ethiopia.
A few months after taking residence in [City 2] the applicant became aware [Mr B] was emotionally distant; he resumed telling her she is illiterate, old, ugly and a piece of meat, and he questioned how anyone could live with her. There were also instances of aggression and anger towards her. [Mr B] rebuffed the applicant’s attempts to discuss the state of their relationship.
The applicant found [Mr B] on many occasions involved in furtive telephone conversations behind the closed bedroom door in their [City 2] home. She believed he was speaking to [Ms E] and that their relationship had been rekindled.
In late 2018 the applicant asked [Mr B] if he was still communicating with [Ms E]. He said ‘yes, you are a lesser person than her and in fact in the future I will marry her.’[25] The applicant asserts [Mr B] then threatened her: if she involved the community elders any more he will kill her, hurt her family and have her deported to Ethiopia. All that would happen if the applicant did not behave herself, stay in the marriage and look after the children. The applicant also asserts that in the same conversation [Mr B] said that he had given his final warning, and that he would decide whether they would stay in Australia or return to Ethiopia. There is no evidence that [Mr B] physically assaulted the applicant in Australia.
[25] Department file, statutory declaration declared by the applicant in Footscray, Melbourne on 22 August 2019.
According to the applicant’s evidence [Mr B] was physically violent towards her on one occasion in Ethiopia in 2015 and that behaviour was not repeated after the Oromo community elders intervened and counselled him against his behaviour towards the applicant.
According to the applicant’s evidence she regards the marriage as ended and that she is no longer married to her husband. At hearing the applicant also gave evidence that [Mr B] regards the relationship as over.
The Tribunal accepts that the applicant and [Mr B] both regard the relationship as over. The Tribunal accepts it is plausible [Mr B] became emotionally detached from the applicant and that he was insulting to her, and that he used insults such as illiterate, old and other derogatory terms against the applicant in the context of an argument about his extramarital relationship with a younger woman in Ethiopia. The Tribunal also accepts it is plausible that [Mr B] assaulted the applicant in 2015 on the night she confronted him about the relationship, and the Oromo community elders intervened in answer to her call for assistance.
The Tribunal accepts as plausible that [Mr B] insulted the applicant and was verbally abusive in Australia in the terms about which she gave evidence and that he said in effect he did not know how anybody could live with her. The Tribunal also accepts as plausible, that he told the applicant he intended to marry [Ms E].
According to the evidence [Mr B] was respectful of the Oromo elders when they intervened. He behaved respectfully towards the elders during the intervention. There is no evidence of [Mr B] suffering any professional or social humiliation or detriment or that he took revenge on the applicant, for involving the elders in accordance with Oromo tradition.
On balance, the evidence is insufficient to establish to the satisfaction of the Tribunal that [Mr B] threatened to kill the applicant and harm her family, if she again asked the elders to assist her in the context of their relationship. Further, it is relevant to observe the evidence indicates that by the time the alleged threat to kill the applicant and harm her family in Ethiopia was said to have been made, that both the applicant and [Mr B] regarded their relationship as over. In context, there was no evident likelihood that the applicant would ask Oromo community elders to intervene in their relationship.
The evidence establishes that circumstances changed significantly subsequent to the abuse that occurred in 2015 in Ethiopia.
According to the applicant’s evidence [Mr B] accepts his marriage with the applicant is over. The applicant feels the same way about the relationship. According to the applicant’s evidence [Mr B] has clearly stated his relationship with [Ms E] is ongoing and that he will marry her. The applicant separated from [Mr B] on [date] January 2019.
[Mr B] was not informed of the applicant’s plan to separate and to move to [City 3] with their children. Since arriving in [City 3], the applicant changed her phone number and there has been no contact with [Mr B]. There is no evidence of [Mr B] making any effort to locate or communicate with the applicant since they separated.
According to the evidence the applicant and her two children have been living openly in [City 3].
The applicant gave evidence that she attends the Mosque from time to time and socialises with a number of women in the Ethiopian community in [City 3]. According to the applicant [Mr B] has not attempted to contact her through the religious elders or members of the Ethiopian community in [City 3]. Considering the applicant’s evidence that [Mr B] is an influential person in Ethiopian government and military circles and that he was [Occupation 1] in Australia, the common course of experience suggests it is reasonably likely that [Mr B] would have been able to use the authority of his position to make contact with the applicant and their two sons, through religious or other community groups in the Ethiopian community in [City 3], if he wanted to contact the applicant.
Furthermore, if [Mr B] had wanted any further contact with the applicant, it is reasonable to expect he would have reported the disappearance to the authorities in Australia. The disappearance of [his] wife, the holder of [a staff] identity card,[26] and children, would ordinarily be treated as a serious event that would raise concerns at the highest levels of government in Australia and Ethiopia if it was reported: that is a matter of common sense and experience.
[26] Department file, [number deleted].
Considering the applicant and her sons are living openly in [City 3] and there is no evidence of [Mr B] seeking to contact the applicant using his own [reach] or through the agency of the authorities in Australia, the Tribunal is of the view that there is considerable force in the applicant’s evidence that [Mr B] regards his relationship with the applicant to be at an end. Furthermore, the absence of evidence of inquiry into the applicant’s disappearance indicates the existence of a real likelihood that [Mr B] does not want any further contact with the applicant, or to play any further part in her life now or in the reasonably foreseeable future, whether she is residing in Australia or Ethiopia.
The applicant has made extremely serious allegations against [Mr B]. To summarise, she alleges that if she returns to Ethiopia, he will send men to sexually assault her and to drive her to commit suicide. He will also kill her and harm her family in Ethiopia. His reason for doing this according to the applicant, is that she humiliated him and publicly disgraced him when she separated from him with their children. This is speculative evidence.
There is no evidence that [Mr B] has made any contact with or threatened any members of the applicant’s family in Ethiopia, since the separation and the occurrence of what the applicant has characterised as his humiliation. That fact weighs against accepting the applicant’s evidence that [Mr B] is predisposed to redressing any perceived humiliation arising from the separation by harming the applicant’s family in Ethiopia.
Relevantly, [Mr B] has a well-established history as [Occupation 1] serving his country for extended periods of time in [Country 1], Australia and [Country 2]. This evidence indicates [Mr B] is a [Occupation 1] and an influential and respected person in Ethiopia at the highest levels of government, who values his career and his public standing in Ethiopia and internationally.
Furthermore, the Tribunal gives weight to the applicant’s evidence about [Mr B]’s response to the elders when they intervened in their relationship in Ethiopia in 2015, at the request of the applicant. The evidence about this incident suggests [Mr B] respected their role and Oromo tradition and expressed acceptance of their advice. That is evidence [Mr B] does not regard the intervention of elders at the behest of the applicant, and in accordance with Oromo community traditions, as humiliating. This evidence, and the evidence discussed at [83], weigh against accepting that [Mr B]’s character is such that it is reasonably likely he is predisposed to sending persons to sexually assault the applicant, to murder her and to harm members of her family in Ethiopia.
The applicant’s evidence, to the extent it has been accepted by the Tribunal, about [Mr B]’s abusive behaviour in Ethiopia in 2015, and in Australia during the period between 2018 and January 2019 (approximate), considered in the context of the evidence as a whole, is insufficient to establish to the satisfaction of the Tribunal that it is reasonably likely he will send persons to sexually assault the applicant, murder her and harm her family if she is returned to Ethiopia.
DFAT country information reports that divorce is not uncommon in urban areas of Ethiopia. According to the evidence the applicant and [Mr B] can be properly described as urbanites. DFAT reports that divorce rates are increasing. Being a divorced woman or seeking a divorce from one’s husband is widely accepted in major urban areas and does not lead to societal discrimination. Addis Ababa, where the applicant and [Mr B] are known to have resided, is obviously a major urban area. This country information, and the applicant’s evidence that the applicant regards herself as not being married to [Mr B], is not a circumstance likely to be viewed in Ethiopia as exceptional and lead to societal discrimination.
This country information weighs against accepting the applicant’s evidence that [Mr B] has been humiliated in the community in which he lives and works in Ethiopia, or that he is likely to feel humiliated by the applicant’s decision to separate from him.
The evidence considered as whole, is insufficient to establish to the satisfaction of the Tribunal that [Mr B] felt humiliated by the applicant separating from him with their children, and for reasons of humiliation or afront to his dignity, or for any other reason, there is a real chance he would send persons to sexually assault and murder the applicant in Ethiopia.
The materially relevant evidence, the DFAT country information and country information provided by the applicant considered together, is insufficient to establish to the satisfaction of the Tribunal the existence of a real chance [Mr B] would seek revenge on the applicant and engage people to sexually assault and murder her or otherwise harm her in Ethiopia.
The evidence relied on does not sustain the protection claims (considered individually and cumulatively) of the second named and third named applicants: that they fear there is a real chance they would be harmed by their father, [Mr B]. Additionally, regarding their claims for protection: they are predicated on the existence of a fear in the minds of both applicants that they would be subjected to a real chance of suffering serious harm upon being returned to Ethiopia.
In the absence of first-hand evidence from either the second or third named applicant as to their present state of mind, and whether they fear being harmed by [Mr B] – or whether for any s 5J reason, they fear they would be subjected to a real chance of serious harm in Ethiopia, now or in the reasonably foreseeable future – the evidence about the relevant state of mind of both applicants is hearsay, unpersuasive, and the Tribunal gives that evidence, considered in conjunction with the country information, neutral weight.
Membership of a particular social group
The evidence is sufficient to satisfy the Tribunal that the applicant, as a returnee to Ethiopia would be a member of a particular social group. She would be a poorly educated, impecunious older single Oromo woman affected by chronic physical ill health, poor mental health, without independent means of financial support and sufficient effective family or societal support.
The evidence establishes to the satisfaction of the Tribunal that the applicant’s membership of a particular social group in Ethiopia would expose her to a real chance of serious harm, being significant economic hardship, that threatens her capacity to subsist.
The evidence establishes the applicant is a low academic achiever. She has no employment-related training or work experience. The applicant has never been a member of the paid workforce. She left school aged [age] with a poor academic record. The applicant then lived in her parents’ house until she was [age] years of age when she entered an arranged marriage. Thereafter her life entailed homemaking, looking after children and socialising with female friends in her neighbourhood and community groups. The applicant has no experience of engaging with men or women in work-related settings, taking responsibility for establishing herself in employment in Ethiopia, independent living in Ethiopia or providing for her own upkeep.
If the applicant were returned to Ethiopia now or in the reasonably foreseeable future, she would return to a country experiencing the disruptions and deprivations of a widespread civil war and parallel interethnic violence stemming from ethnic competition and grievances. According to the DFAT report and country information provided by the applicant, the Oromo people have been involved in the current interethnic conflict.
The country information reports provided by the applicant, and the country information available to the Tribunal including the UNHCR report on ‘Returns to Ethiopia’ dated March 2022 (UNHCR report) reports intercommunal violence between Oromo and Amhara communities increased in 2021. This interethnic violence increases the risk of harm and discrimination that the applicant is reasonably likely to face due to her age, and the financially dependent household-centric life she has lived all her life in Ethiopia and outside the country.
According to the DFAT country information report the Oromo and Amhara ethnic groups are the largest ethnic groups in Ethiopia, and are the largest ethnic groups in Addis Ababa, the city in which the applicant has lived most of her life and the place she is likely to seek to live if she is removed to Ethiopia.
The UNHCR report states there are food and water shortages, water sources are drying up, desert locus infestation is seriously affecting agricultural crops; that along with the civil war and interethnic violence has led to the displacement of many millions of people. According to DFAT internal relocation is driven by water and food shortages, and self-evidently civil war has caused further internal relocation and economic and security disruption that weighs heavily on the economy and social good order. Relevantly, DFAT also reports Addis Ababa attracts significant numbers of people migrating from the regions.
The applicant had given evidence, which is accepted by the Tribunal, that the applicant’s father is about [age] years of age, he is frail and he has difficulty leaving his bed. He is cared for by the applicant’s sister who is single and living with her father and her two children. She has no other place in which to live. They are supported by the applicant’s father.
100. The applicant’s father’s home comprises two one room buildings. One room is used for cooking and all family members sleep in the other room. The Tribunal accepts the applicant’s evidence that her father would be unable to provide her with a place to live and sufficient funds to sustain her, along with her sister and her children. That household lives on the father’s retired [pension].
101. The Tribunal accepts the applicant’s evidence that in the circumstances of war, drought, plague, mass internal migration and food shortages, that her family members are just managing to sustain themselves and their families, and that they would be unable to provide her with a safe place to live and sustenance for more than a short time, if at all.
102. The Tribunal is satisfied [Mr B] has disassociated himself from the applicant and it is reasonably unlikely he would provide her with any material support or the means to access to medical treatment and essential medicine if she is removed to Ethiopia.
103. The medical report provided by [Dr A], consultant Psychiatrist, dated 16 April 2019 reports that the applicant ‘fulfills DSM V diagnostic criteria for Major depression’, and also displayed symptoms of post-traumatic stress disorder. The psychiatric report considered together with the report from [an] accredited mental health social worker and counsellor, dated 20 May 2022, and the medical report from [Dr G], the applicant’s treating doctor, dated 3 June 2022, state that the applicant has a diagnosed mental illness, namely depression which is being treated with medication and counselling. The Tribunal gives significant weight to these reports.
104. The Tribunal elicited from the applicant during the hearing evidence about her current state of health. That evidence disclosed the applicant is being treated for diabetes. The Tribunal suggested to the applicant’s representative that an expert medical report be obtained to provide concrete evidence that the applicant is diabetic.
105. After the hearing the Tribunal received a medical report from [Dr G]. The Tribunal accepts this is an expert medical report and that the information and opinions stated in the report fall within the scope of her field of expertise. The Tribunal gives the report significant weight.
106. The evidence satisfies the Tribunal that the applicant is afflicted with diabetes; that she is taking prescribed medication twice daily to control the disease; and, that the diabetes is a progressive illness. The Tribunal understands from the report that the diabetes, being a progressive disease, will affect the applicant for the foreseeable future. The Tribunal also understands that the progressive nature of the disease means the applicant requires ongoing medical treatment, medication, and professional monitoring.
107. The DFAT country information report (2020) advises there is one physician and three hospital beds per 10,000 people in Ethiopia. The availability of health facilities and health professionals has improved but remains significantly insufficient. Public health facilities in major cities are basic. Private clinics and hospitals exist but are financially prohibitive for the average person. The evidence demonstrates the applicant who is without savings in Australia and would be without capital of her own to draw upon in Ethiopia, is likely to be unable to access the medical treatment and medication she would need to be sufficiently healthy to work and subsist economically in Ethiopia. The DFAT report predates the civil war in Ethiopia which can only be regarded as exacerbating the shortage of treating doctors, medical facilities, medicine, and employment opportunities for the applicant in Ethiopia.
108. In post-hearing submissions the applicant’s representative drew upon country information specific to the treatment of diabetes patients in Ethiopia. Her research has been of considerable assistance to the Tribunal. That information is relevant and material to the issue of the applicant’s ability to subsist in Ethiopia.
109. According to a 2021 peer-reviewed study of diabetes sufferers in Ethiopia, cited in submissions, the ‘economic burden of diabetic care is very disastrous among the less privileged populations: the less educated, the poorest and the unemployed.’[27]
[27] The applicant’s submissions citing at P2: Tsega G, Getaneh G, Raddesse G (2021) Are Ethiopian diabetic patients protected from Financial Hardship? PloS ONE 16(1) e0245839.
110. The evidence is sufficient to establish to the satisfaction of the Tribunal that the applicant falls within the class of diabetes sufferers defined by the authors of the study as diabetics likely to be subjected to a disastrous economic burden. Further, there is no evident prospect of the applicant having sufficient access to medical treatment facilities, treatment, and medication to properly manage her chronic disease in Ethiopia.
111. The medical evidence relating to the applicant’s mental health is sufficient to establish to the satisfaction of the Tribunal that the applicant is suffering from diagnosed clinical depression. The Tribunal is also satisfied the applicant is being treated for her depression with prescribed medication and counselling.
112. DFAT reports that treatment is available in Ethiopia but access to treatment is prohibitively expensive and the health infrastructure in areas where most people live is limited. Additionally, the DFAT report informs that traditional attitudes result in most Ethiopians eschewing professional treatment for mental health conditions and discussing their condition openly. These conditions in Ethiopia can only have been exacerbated by the civil war and interethnic competition and conflict.
113. The evidence establishes the applicant, as an impecunious older single woman without financial means and work-related training or experience, suffering from diabetes and clinical depression is unlikely to have access to necessary medical treatment and medicine in Ethiopia. In combination the applicant’s ill health; her lack of financial resources; her complete lack of work experience; that Ethiopia is experiencing the deprivations of civil war, water and food shortages; and the applicant’s limited education establish to the satisfaction of the Tribunal that the applicant is likely to suffer significant economic hardship in Ethiopia.
114. The evidence considered as a whole, is sufficient to establish to the satisfaction of the Tribunal the existence of a real chance that the applicant would be subjected to serious harm, being significant economic hardship that threatens her capacity to subsist if she is returned to Ethiopia now or in the reasonably foreseeable future.
115. The Tribunal has considered the applicant’s claims individually and cumulatively in the context of the totality of the evidence that is both relevant and material to the claims, and reached each finding on that basis, whilst also applying the provisions of s 5AAA of the Act.
Finding
116. The evidence considered as a whole is sufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be subjected to significant harm – if she is returned to Ethiopia now or in the reasonably foreseeable future – for the reason she would be a member of a particular social group, namely a returning single impecunious older Oromo woman, who is unskilled, has never worked in paid employment, who is chronically unwell and requires ongoing medical monitoring and medication, without any realistic prospect of receiving a basic, sufficiently enduring level of family or societal support.
117. The Tribunal is satisfied that effective protective protection measures are not available to the applicant in Ethiopia: a war-torn country with inadequate medical services, lack of medicine generally, and especially so for the impecunious, without a social welfare system to aid older, chronically ill women who are unlikely to be able to obtain and sustain subsistence-level employment, and do not have access to basic and enduring family support. The Tribunal is also satisfied that these circumstances, and the real chance of serious harm that would exist for the applicant in Ethiopia, relate to all areas of the country.
Assessment of membership of the same family unit
118. The Tribunal is satisfied the second and third named applicants are the children of the applicant: they reside full-time with the applicant; they are secondary school students; and they depend on the applicant for food, material support and nurture. The evidence establishes to the satisfaction of the Tribunal that [Master C] and [Master D] are members of the same family unit as the [applicant].
Findings
119. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a) of the Act.
120. Furthermore, the Tribunal is satisfied that [Master C] and [Master D] are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i) of the Act. As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
121. The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Peter Haag
MemberATTACHMENT – 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.
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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.
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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.
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36 Protection visas – criteria provided for by this Act
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(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.
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Key Legal Topics
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Immigration
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Statutory Interpretation
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Judicial Review
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Procedural Fairness
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