2005215 (Refugee)

[2020] AATA 6034

2005215 (Refugee) [2020] AATA 6034 (21 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2005215

COUNTRY OF REFERENCE:                   Ethiopia

MEMBER:Jane Marquard

DATE:21 December 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 21 December 2020 at 9:50am

CATCHWORDS
REFUGEE – protection visa – Ethiopia – Federal Court remittal – member of a particular social group – person with serious mental illness – ethnicity – imputed political opinion – step-brother of official of previous government involved in human rights abuses – drug user – previous visa cancelled on character grounds – untreated mental health conditions exacerbated by drug use – criminal convictions and imprisonment – suicide attempts – mental health treatment – immigration detention – country information – new government, political conditions and ethnic conflicts – drug and mental health treatment services – discrimination and stigma – no family, support network or ability to subsist – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (4), (5), 5L, 36(2)(a), 65, 425, 501
Migration Regulations 1994 (Cth), Schedule 2
Administrative Appeals Tribunal Act 1975 (Cth), s 19D(4)

CASES
AGA16 v MIBP [2018] FCA 628
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Denissenko v MIEA (Federal Court of Australia, Foster J, 29 May 1996)
Fox v Percy (2003) 214 CLR 118
Kuthyar v MIMA [2000] FCA 110
MIEA v Guo (1997) 191 CLR 559
MIMA v Haji Ibrahim (2000) 204 CLR 1
MZXRE v MIAC (2009) 176 FCR 552
Ram v MIEA (1995) 57 FCR 565
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZEPZ v MIMA (2006) 159 FCR 291
WAKZ v MIMIA [2005] FCA 1065

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a [Age 1]-year-old man from Ethiopia.

2. He arrived in Australia at the age of [Age 2] [in] December 1997 as the holder of a [Family visa].

3. On 18 September 2018 his visa was cancelled under s.501 of the Migration Act 1958 (the Act) on character grounds.

4. The applicant applied for a protection visa under s.65 of the Act on 7 February 2019. A delegate of the Minister for Home Affairs (the Department) refused to grant the visa on 8 July 2019.

5. The applicant applied for a review of that decision by the Administrative Appeals Tribunal (the Tribunal). The Tribunal differently constituted affirmed the delegate’s decision on 16 September 2019 (first Tribunal decision).

6. On 19 September 2019 the applicant applied to the Federal Court of Australia for a review of the first Tribunal’s decision. On 3 March 2020 the Federal Court remitted the matter to the Tribunal by consent. The Minister for Home Affairs accepted that the Tribunal differently constituted failed to weigh and consider country information in the applicant’s submissions dated 28 May 2019 which the applicant claimed refuted information from the Department of Foreign Affairs and Trade (DFAT) that people of Oromo ethnicity in Ethiopia face a low risk of violence.

7. The matter is now before this Tribunal pursuant to an order of the Court. The Tribunal must determine whether the applicant meets the refugee or complementary protection criteria set out in the Act. A summary of the law is set out below.

   CRITERIA FOR A PROTECTION VISA

8. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.

   Refugee criterion

9. 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.

10. A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a).

11. Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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, which are extracted in the attachment to this decision.

    Complementary protection criterion

12. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

13. 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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    What information can be considered on remittal?

14. Where a direction is given to reconstitute the Tribunal as in this matter, the Administrative Appeals Tribunal Act 1975 (Cth) requires the reconstituted Tribunal to continue the proceeding.[1] In completing a reconstituted review, the Tribunal may have regard to any record of the proceeding as previously constituted.[2] This includes any record of evidence taken in the proceeding. The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time.

    [1] s.19D(4) of the Administrative Appeals Tribunal Act 1975 (Cth), inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015).

    [2] s.19D(4) of the Administrative Appeals Tribunal Act 1975 (Cth), inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015). See also SZEPZ v MIMIA (2006) 159 FCR 291 at [39] and MIAC v SZGUR (2011) 241 CLR 594 at [50].

15. In SZEPZ v MIMA (2006) 159 FCR 291, a Full Court of the Federal Court found that, where a Refugee Review Tribunal decision had been set aside by a court and the matter remitted for reconsideration owing to a jurisdictional error, it did not follow that all the steps and procedures taken in arriving at that invalid decision were themselves invalid. The Tribunal still has before it the material that was obtained when the decision that had been set aside was made and is obliged to continue and complete the particular review and not to commence a new review.[3]

    [3] MZXRE v MIAC (2009) 176 FCR 552 at [5] North and Rares JJ.

16. In conducting this review the Tribunal has considered the material provided to the Tribunal differently constituted, and the oral evidence given at the previous hearing held by the Tribunal, differently constituted.

    DECISION OF THE DEPARTMENT OF HOME AFFAIRS

17. The delegate of the Department was not satisfied based on country sources that there was a real chance of serious harm or a real risk of significant harm based on the applicant’s profile.

    CLAIMS AND EVIDENCE

    The evidence taken into consideration by this Tribunal

18. In coming to a decision, the Tribunal has taken into consideration information provided to the Department as well as evidence before this Tribunal. The Tribunal has also considered independent sources about Ethiopia.

    Summary of evidence before the Department

19. The applicant made claims and provided information in his application forms and supporting documents. The applicant also provided evidence at an interview with the Department on 14 March 2019, at which his representative was present. The representative also provided written submissions. A summary of the evidence follows.

20. The applicant stated that he was born in [Town], Ethiopia. He said that he is an Oromo and a Christian.

21. He said that he has poor mental health which causes problems with his memory.

22. The applicant stated that his father, who was a farmer, passed away when he was about nine years old, and his mother passed away when he was about eleven years old. His father had two wives. The applicant and his younger brother, [Mr A], were the children of his father’s second wife. The applicant’s older brother, [Mr B], and his two older sisters, [Ms C] and [Ms D], were the children of his father’s first wife.

23. The applicant said that he and [Mr A] lived with his mother just outside of [Town], in a farming area. [Mr B] and his sisters lived and worked in the capital. [Mr B] fled to Australia in about 1994 after the war started.

24. He said that a war started when he was about [Age 3] years old and he and [Mr A] were taken to a [Church] camp/boarding school for safety, which ‘could have been organised by [Mr B]’. The applicant’s mother did not visit him in boarding school. When on breaks they stayed with a lady and her children. One day the lady told him that his mother had been killed. The applicant believes that his mother may have been killed because she was providing information to his brother [Mr B] about the new government.

25. After completing elementary school he was transferred to another [Church] boarding school located further away in another state of Ethiopia, where he remained for three to four years. He said that quite a few of the students were children of leaders and officials in the former communist government. Soldiers from the new government would come to the school to question or arrest children however the school would keep them safe.

26. The applicant claimed that on one occasion during school holidays, he was playing with friends, when people from the opposition went to his house and put a gun to his head. He said it was a ‘young man and another man’. Then a ‘lady came out and they put the gun down’. He said that they questioned him about his brother’s whereabouts and why he had left. He said that he experienced frequent harassment – daily until he left. He said that he did not realise [Mr B] was his brother, but the lady he was staying with told him this one day.

27. He said that all his siblings had left Ethiopia except himself and his younger brother, [Mr A]. They stayed with neighbours so that they could attend school. He completed primary and high school until Grade 10 in Ethiopia.

28. His brothers are now Australian citizens and he has two sisters, [Ms D] and [Ms C] who left Ethiopia when he was about 10 years old. He said that he only met them once or twice. They live elsewhere in Africa but he is not in contact with them.

29. He claimed that his older brother, [Mr B], was involved in politics in Ethiopia. [Mr B] is much older than him, aged in his [Decade]. Before he came to Australia, the applicant had only met [Mr B] on several occasions. He has four children. He had a powerful job as a leader in the Derg. He was in the communist government in power prior to the war. He wore khaki clothes with stars on them and hats with a star in the middle. He thinks that [Mr B] was involved in taking businesses, houses and land from people. His sisters worked with [Mr B].

30. The applicant said that the guerrillas were ‘after’ his brother and all their family members. He said that he was too young to know what was going on. He learnt from his family that the guerrillas wanted to question his brother over the death of members and soldiers who died when his brother’s party was in power. He said that they suspected [Mr B] may have had something to do with those deaths and wanted revenge.

31. The applicant said that he and his younger brother, [Mr A], arrived in Australia three years later, sponsored by [Mr B]. When they arrived, they lived with [Mr B] and his wife. He was scared of [Mr B] as he was powerful in Ethiopia. [Mr B] does not talk about his past and therefore the applicant has not learnt what his role was in Ethiopia.

32. In Australia he dropped out of high school, then attended a language centre and TAFE to do Year 12. Since then he has worked in [workplaces] in the [Specified] industry.

33. He said that in about 2013 [Mr B] found out that he had been in prison. [Mr B] told him that he should not go around to his house again. They have not spoken since. He has also not spoken to [Mr A] since then.

34. He said that he does not have any family in Ethiopia and if he returned he would not be able to subsist as he could not obtain employment.

35. The applicant claimed to fear that the guerrillas would want to come after him. He said that at one time, they posted on [Social media], ‘ear for ear, blood for blood’. He said that they would torture him to get information about his brother. He said that he would commit suicide rather than endure torture at their hands. He said that the guerrillas had threatened to capture family members of members of his brother’s political party, take them to a corn field, force them to eat raw corn until their stomachs were full and then pierce open their stomachs as torture.

36. He said that he left Ethiopia 25 years ago, but people would still want revenge as they lost their land and homes and people got murdered. He is worried about the government and other people who may want to take revenge.

37. He said that he suffers from mental health issues and had been on medication for a long time. The issues started around 2008. He was lonely and grew up without a family which ‘affected him a lot’. He said that he started getting treatment when he was in prison in 2008. He lived in [City] from 2014 to 2017 and was registered with the mental health service and saw a doctor or nurse every month. He also saw doctors in 2018 in prison. He said that he has been diagnosed with schizophrenia and depression and takes medication every day, which has helped. He fears that if he returns to Ethiopia, he will not be able to receive adequate support for his mental health conditions.

38. He said that he started using [drugs] in 2008. He is on a methadone program and if he returned to Ethiopia there would be no support and no access to treatment, and he would regress and use drugs again. He said that when he was released from [a] Correctional Centre in 2018 he was intending to engage in a methadone program but was taken into immigration detention. A [Health services provider 1] ‘OSTP Referral to Community’ memorandum dated 24 December 2018 was provided to the Department. In this memorandum, the applicant was being referred to a methadone dispensing subsidy pilot.

39. He claimed that he would be targeted and imprisoned under Ethiopia’s severe drug laws and while in prison would suffer serious harm. The representative submitted that penalties imposed on the applicant for drug use in Ethiopia would be severe, pursuant to Articles 108, 110 and 525 of the Ethiopian Penal Code 2004 and would be imposed disproportionately on him because of his imputed political opinion and Oromo ethnicity. Country sources indicate that there are ‘harsh and life-threatening’ prison conditions.

40. It was submitted that there are high levels of social stigma against people with mental illnesses and he is at risk of physical harassment and or ill-treatment from members of the public.

    The first Tribunal decision

41. The applicant appeared before the first Tribunal differently constituted on 23 August 2019. The Tribunal differently constituted affirmed the decision under review on 16 September 2019.

42. Additional evidence was provided by [Mr B]’s ex-wife, [Ms E]. It was submitted that she had faced persecution due to her association with her ex-husband and the applicant would be at a similar risk. She said that he would be more likely to come to the attention of the authorities because of his drug-taking and his mental health, as well as the fact that he would need to obtain a passport and would be identified as a returnee and failed asylum seeker.

43. [Ms E] provided a Statutory Declaration dated 19 August 2019 in which she confirmed that she is the ex-wife of [Mr B]. They married as teenagers in Ethiopia in an arranged marriage and divorced in 2001. She said that she has known the applicant since he was 16 years old. He was living with [Mr B]’s family when she met him. Later he was adopted out as the family had too many children. At some point his biological parents died. She said that the applicant’s adoptive parents cared about him and sent him to a boarding school. Their surname was [Surname] and they lived in [Town].

44. She said that the applicant’s adoptive parents were both killed because they were Oromo. His adoptive father was shot dead [detail deleted] and the adoptive mother died [detail deleted]. [Mr B] brought the applicant and his brother to Australia as they had no other family in Ethiopia.

45. She said that [Mr B] was [an Office holder] of the government district of [Name 1]. She said that [an Office holder] is ‘similar to [an Australian public office]’. Despite being Oromo, [Mr B] was involved in the killing of many Oromo people when he was in power. She said that he does not like Oromo people. When the government was overthrown the new government started attacking those people who had served with the previous government. About three years after [Mr B] left, in 1994, he sponsored her and their three children and one of their adopted children to migrate to Australia. Before she left she was regularly interrogated by the new government about [Mr B]’s whereabouts.

46. She said that she and [Mr B] divorced in 2001.

47. [Ms E] said that she had returned to Ethiopia two or three times and was always worried that she would be harmed by people who knew [Mr B]. In 2009, while visiting family in [Town], she was arrested and interrogated by people who asked her about being ‘anti-government’ and who asked her where [Mr B] was. She claims that her uncle went to the police station with her, and afterwards two of his sons were shot. Her uncle is a pro Oromo Liberation Front supporter. She and her uncle were detained for the day and questioned about this.

48. She submitted that the applicant has no family and their home area, [Name 2] is currently experiencing ethnic conflict. She said that the applicant would not last two weeks without getting noticed by the ‘Command Post’, the government, military or others.

49. In evidence to the first Tribunal differently constituted, the applicant repeated his earlier claims. He also told the Tribunal that his school was about 300 kms from [Town] and from Grade 6 he was in a state called [Name 3]. He said that they came to Australia as they had no relatives in Ethiopia. He did not know [Mr B] until he came to Australia. He stayed with him for three to four months and moved out when he was [Age 2] to [Age 4] years old. He has not been in contact with [Mr B] since then. He has tried to find him on [Social media].

1. He confirmed to the first Tribunal that he was only questioned once about his brother, while he was living in Ethiopia. It was during the school holidays and he was approached by two men in army uniform. He does not know how they found him and he did not tell them anything.

2. He said that he fears harm on the basis of his association with his brother, and his Oromo ethnicity. He said that since the election of Prime Minister Abiy Ahmed, there is a heightened risk.

3. He told the Tribunal differently constituted that he had not worked since 2008 and has been on drugs on and off since 2010. When in jail for 10 months he received treatment.

4. The Tribunal differently constituted was not satisfied that there was a real chance of serious harm for reasons of political opinion, given the applicant has no political profile and has had limited contact with [Mr B]. On the basis of country sources, the Tribunal was not satisfied that there was a real chance of serious harm or a real risk of significant harm on the basis of his ethnicity, drug use or mental health.

   Medical evidence

5. A psychiatric report from [Dr F], a forensic psychiatrist dated 14 August 2019 was provided.

6. [Dr F] reviewed the applicant’s medical records, a Statutory Declaration of the applicant and the Tribunal Guideline on ‘persons giving expert and opinion evidence’. She also assessed the applicant on 2 August 2019 in immigration detention. She provided details of her extensive experience in providing expert reports in relation to offenders. She acknowledged and agreed to be bound by the Tribunal Guidelines.

7. On examination [Dr F] found that the applicant did not appear guarded or evasive, and his speech was of normal flow, rate and volume and he provided a coherent account of himself. She said that he communicated his flat mood well and responded appropriately to topics discussed. She said that he ‘attributed his distress to the sense of interminable waiting and his terror of returning to a psychotic state if he were sent to Ethiopia’. She said that there was not evidence of bizarre or grandiose delusions. Although not suicidal, he reported plans to suicide if he were sent back to Ethiopia, because he believes that the voices would overwhelm him. He said that the voices he has heard since 2010 are still there but he knows they are not real.

8. [Dr F] reported that the applicant said that he was born in the bush and lived with his mother and younger brother, [Mr A]. His mother worked on a coffee farm. He did two years of schooling and then went to boarding school and did not see his mother after that, he said that ‘there was never anyone to love’. During school terms they lived at boarding school which was religious and strict, and where they were sent to work on a farm if they were naughty. During school breaks they lived with a woman and her children. He learnt English at school and is also fluent in Amharic and Oromo. He told the psychiatrist that he experienced racism as an Oromo and that the Amhara language was imposed on everyone. He told [Dr F] that his brother [Mr B] worked for the Communist government and believes that he was involved in land theft. Three months after moving to Australia, after conflict with [Mr B], he moved into shared accommodation. He attended language school, then commenced studying [Subject] but switched to do an apprenticeship in the [Specified] industry. He then worked as [an Occupation]’s assistant for years until the breakup of his relationship in 2006. He then worked in some [workplace] jobs. Since 2013 he has been homeless and living on the streets. He became depressed when his partner left him and commenced on antidepressants and started using drugs. He began to hear voices in 2010.

9. The applicant told [Dr F] that the voices were constant and he believed that they were real. He had been on anti-psychotic medications for ten years.

10. [Dr F] concludes that the applicant was suffering from paranoid schizophrenia largely in remission on anti-psychotic treatment, but with residual chronic auditory hallucinations. The doctor reported that relapse often occurs in the context of non-compliance and/or substance abuse. She said that his treatment had been complicated by homelessness, poor insight and a tendency to minimise symptoms when unwell. The applicant presented with low mood and depressive ruminations with possible suicidal thoughts in relation to a fear of a relapse into psychosis.

11. She said that the risk to his mental health if returned to Ethiopia related to the significant stress that he would experience as he has not lived there for decades and has no connection, housing or support. He said that he has memories of people with mental illness being derided and scorned. [Dr F] said that in these conditions there is a risk of deterioration into a state of psychosis and an attendant risk of suicide.

12. The applicant provided a Discharge Summary from [Health services provider 1], [Correctional Centre], dated 24 December 2018. The medical history was stated to be ‘schizophrenia, hep C-treated, Substance use/abuse, OSTP’. The mental health summary was stated to be ‘schizophrenia, persistent, chronic grandiose delusions’. His treatment included methadone and olanzapine.

13. A letter from [Ms G], Registered Psychiatric Nurse of [Health services provider 2] stated that the applicant was diagnosed in 2008 and suffers from drug-induced psychotic episodes. He was diagnosed in March 2009 as suffering from depression. He suffers from post-traumatic stress syndrome as a result of traumatic experiences in Ethiopia. He experienced ongoing auditory hallucinations and paranoid thoughts throughout his period of hallucination.

14. The Clinical Records from [Health services provider 3] from 24 February 2019 to 7 October 2020 showed that he was prescribed regular ibuprofen and paracetamol. He was also prescribed:

    • Colecalciferol from 12 August 2020 to 30 November 2020;

    ·Methadone from 19 April 2020 to 19 October 2020;

    • Nyxoid nasal spray from 19 February 2020 to 31 December 2020;
    • Olanzapine from 25 September 2020 to 31 December 2020.

15. The representative submitted that the records demonstrate that the applicant continues to take olanzapine for the treatment of schizophrenia, and methadone for his drug addiction. She said that it could therefore be reasonably assumed that his treatment needs to be as previously opined by [Dr F] in the Report of [Dr F] 14 August 2019, including:

    • Long-term anti-psychotic treatment, either through oral medication or preferably injectable depot medication;
    • Management on an involuntary treatment order including regular engagement and monitoring with an area mental health service;
    • A period in a Community Care Unit of Prevention and Recovery Care service, for patients with major mental illness and complex needs, with the possibility of a period of time in Secure Extended Care were he to relapse;
    • Linking him to secure accommodation in recognition that his lack of accommodation has historically impacted his engagement with mental health services;
    • Engagement with specialist drug and alcohol services, noting the link between his drug use and schizophrenia.

    Criminal record

16. A Police Certificate dated 9 September 2020 indicates that the applicant had been convicted of many criminal offences between 2002 and 2018. These charges included [details deleted].

17. Media reports refer to an incident in June 2018 in which [details deleted]. The applicant pleaded guilty to a number of charges relating to this incident. The Police Certificate dated 9 September 2020 showed that the applicant was convicted [in] November 2019 in relation to this matter, of [details deleted] and other offences, and was sentenced to [imprisonment].

    Summary of evidence before this Tribunal

18. The applicant’s representative made written submissions to the Tribunal prior to and after the Tribunal hearing. The applicant appeared before the Tribunal to give evidence by MS Teams video on 19 November 2020. The applicant was represented by [Mr G] from [Legal services provider] who also appeared at the hearing.

19. A summary of the evidence provided by the applicant in the written submissions and at the hearing follows.

    Health

20. The Tribunal noted that it had before it a copy of the psychiatric reports of [Dr F]. The applicant confirmed that he was taking olanzapine nightly for schizophrenia and methadone ‘to stop him craving for drugs’. He said that he felt capable and well to give evidence at the hearing.

    Childhood in Ethiopia and travelling to Australia

21. The applicant confirmed that he was born in [Town], in Oromia. His family spoke Oromo and also Amharic. He lived in [Town] but went to school in [State], about 1,000 kms away.

22. His brothers [Mr B] and [Mr A] are Australian citizens. He is not in touch with them. [Mr B] told him ‘not to come around’ after he started using drugs and stopped going to church. The same thing happened with [Mr A] who ‘follows his other brother’.

23. He has heard that his sisters [Ms C] and [Ms D] live in other African countries. It has been over 25 years since he has been in contact with them. He had conversations with them five or six times only. He does not know where they are as it has been a long time since he was in Ethiopia. His representative said that his instructions were that the applicant is [linked on Social media] with [Ms C] and [Ms D] but has had no meaningful connections with them via [Social media] or in Ethiopia. He had five or six conversations with the daughter of the women he lived with in Ethiopia but has not been in contact since.

24. He said that he has no contact with anyone in Ethiopia. He does not know if he has cousins, grandparents, uncles or aunts as no-one has told him this. When he was living in Ethiopia with another family, no-one from his extended family visited him. Many people ran away from the country at the time as there was war. He did not get to know any relatives, even his older brother, [Mr B], whom he did not know until he came to Australia. The delegate suggested that he was in touch with his sisters but this was incorrect. He had spoken briefly to the child of the woman who had looked after him, but he is no longer in touch with her.

25. After he arrived in Australia, he lived with [Mr B] for a short while, then moved to a community centre. A social worker helped him relocate. He worked mostly in a [Specified] apprenticeship until 2008, and then his mental health deteriorated. After that he could not work as he was hearing voices and seeing things. When he was young he did not have any mental health problems. It was only later that they developed. Later on he used drugs and this exacerbated his mental illness and he became involved in criminal conduct. The first time he had medical care was in prison. The doctor and nurse noticed that he was really sick and put him on medication. The first couple of years after this, he was on and off the medication. He did not know the medication was helping. He convinced himself that he was not sick. The voices he heard he thought were reality and did not realise that he was sick.

26. The applicant said that since he has been on the medication he still has psychotic episodes but not as often. But now he recognises that his episodes are a sickness. The medication works most of the time, but he still has episodes. Now and then they change his medication which may impact on effectiveness. He said that when he was in the community he was registered with ‘mental health’ in [Suburb]. He was seeing a doctor in [a] Hospital and would go and see this doctor all the time if he was in the community and not in detention.

27. He said that the last time he had a major episode was six or seven months prior to the Tribunal hearing, when they changed his medication. He still hears voices, notwithstanding the medication.

28. He said that from 2014 he was living in [City] and he could not find accommodation, so he returned to Melbourne. He was homeless after that as he was unemployed. He was being significantly affected by the mental illnesses prior to committing offences.

    His brother’s political involvement, ethnicity and imputed political opinion

29. The Tribunal put to the applicant that his brother left Ethiopia in 2014 and he left when he was a child. It did appear unlikely that he would still be identified and harmed after all this time. He said that he still fears that people that knew [Mr B] or were close to him or had brothers or sisters or other family members who were impacted by his decisions, would find him. People are still upset as they lost family members, businesses and houses and would want to take it out on him in revenge for [Mr B]’s actions. He said that even if the government did not harm him, the people would want revenge. He said that [Mr B] was particularly well-known as a public figure although he does not know if he was ever mentioned in media as there was not much electricity or infrastructure then.

30. The Tribunal questioned the applicant about how [Mr B]’s former wife could travel back and forth ‘two or three times’ without repercussion, which suggested that family members would not be harmed by [Mr B]’s enemies. He said that the situation is different for him, as a brother is regarded as closer, and he may be tortured.

31. It was put to the applicant that sources indicate that the situation for Oromos has changed significantly in recent years. A new DFAT Report in August 2020 states that overall Oromos face a low risk of official discrimination based on ethnicity although there is a moderate risk of violence in states where they are a minority. The Tribunal also put to the applicant that he has no political profile and many arrests and violence have been connected to political activity and groups. He responded that Ethiopians think that Oromos from Western countries are activists or work for the Oromo Liberation Front. He said that the government ‘goes really hard on Oromo people there’.

32. The Tribunal put to him also that although much of the recent conflict has ethnic undertones, there are political reasons as well. He said that he will be watched to see if he is involved with the Oromo Liberation Front.

    Claims of lack of access to medical treatment in Ethiopia

33. The representative claimed that the applicant is at real risk of being discriminatorily denied access to mental health and drug rehabilitation services, and that he would be unable to subsist. It was claimed that this would be a result of the lack of available services and medicines, itself a reflection of the stigmatisation of mental illness and/or drug use in Ethiopia. It would also be a result of the stigmatisation of mental illness and drug use in Ethiopia which would impede his ability to access healthcare and put him at risk of serious discrimination by health officials and other members of Ethiopian society were he to attempt to seek treatment.

34. It was claimed that because of his mental illness he is at risk of being discriminatorily denied access to other services which he requires to subsist including housing and employment. The risks to him would be compounded by his Oromo ethnicity and his imputed political opinion, on account of his ethnicity and/or his connection to his half-brother [Mr B].

35. It was also claimed that he would be at risk of serious or significant harm through practices such as the use of restraints, and torture, beating and death because of the stigma of mental ill-health or his drug use.

36. It was argued that the COVID-19 pandemic has created further barriers to mental health treatment in Ethiopia, resulting in scarcer treatment options and medications.

37. The Tribunal referred the applicant to the first decision of this Tribunal, differently constituted, in which sources about mental health in Ethiopia were considered. The Tribunal differently constituted found that notwithstanding that there is a low base, there have been improvements in the medical system in Ethiopia including a national mental health strategy. For example the National Mental Health Strategy refers to particular care for substance abusers and those with severe mental illness. The applicant said that people with mental health issues are made fun of, and the medication is expensive. He said that people with mental health issues suffer a lot in Ethiopia and that medication and treatment are not readily available. He said that he does not think he will be able to get by there. He said that he has no family in Ethiopia, does not know anyone and has no support networks or connections, and no money, does not even know how to get a taxi, and will become homeless the ‘first day’. He said that he will have no one to help him. His mental health will worsen and he will become suicidal. He asked for another chance and he would do his best to stay away from violence and prison.

    Claims as a drug user

38. The applicant claims that if he returns to Ethiopia he will not be able to access methadone and will regress and use drugs again. The representative provided sources to indicate that there is no methadone program in Ethiopia.[4]

    [4] World Health Organization, Pharmacotherapy with methadone data by country, updated 28 August 2017

39. In regard to drug and mental health treatment, the Tribunal suggested that the lack of mental health professionals and treatment facilities in Ethiopia does not demonstrate systematic and persecutory discriminatory conduct on the part of the state but rather is an issue of lack of resources and underfunding, a similar problem found in many developing countries. The applicant said that he does not know if it is the government or administration but thinks there are very poor mental health services. He said that people make fun of people with mental illnesses and ‘chase them around’. He said he does not know what he would do if he got very sick there. In Australia he has to lock himself in a room and stay there for days.

40. The representative referred to the post-hearing submissions and in particular a World Health Organization (WHO) report from 2019 which states that mental health is one of the most disadvantaged programs in Ethiopia, while in contrast vaccinations have had success as the government has made this a priority. Ethiopia is one of the wealthiest countries in northern Africa. Decisions have been made to withhold services for mental health specifically which indicated discrimination.

41. The representative submitted that even if the Tribunal disagreed on this point, country sources indicate that there is clear discrimination from society at large, particularly toward sufferers of schizophrenia. He submitted that there is a real chance of harm from the public, and in attempting to access health services, there is every chance that he would encounter stigma from medical professionals as well.

    FINDINGS AND REASONS

    President’s Direction

42. The Tribunal has had regard to two directions issued by the President of the Tribunal - the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’ dated 27 April 2020 and the President’s Direction ‘Conducting Migration and Refugee Reviews’ dated 1 August 2018. In particular, the Tribunal has had regard to the direction that:

    ·‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible’.

43. The Tribunal exercised its discretion to hold the hearing via video link to the detention centre due to restrictions imposed in relation to the COVID-19 pandemic. The Tribunal was satisfied that it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant as he was being held in detention and there was no way of holding an in-person hearing.

44. On the first occasion the hearing was scheduled, on 21 October 2020, the MS Teams technology was not working at the detention centre. As this meant that the applicant’s representative would only be able to appear by telephone, rather than by video, the representative requested an adjournment. This adjournment was granted.

1. A new hearing was scheduled for 9 November 2020. The applicant then requested a further adjournment due to the unavailability of the representative. This request was granted and a further hearing was scheduled for 19 November 2020.

2. The Tribunal was satisfied that the hearing on 19 November 2020 provided a real opportunity to be heard. In making arrangements to hear the matter via MS Teams, the Tribunal had regard to the legislative objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments in the format which was utilised. The applicant confirmed that he could hear and see the Tribunal Member. The Tribunal was able to interact with the applicant and his representative and all parties were able to maintain line of sight and appropriate communication throughout the proceedings.

   Competency and vulnerability

3. Section 425 of the Act requires the Tribunal to provide the applicant with a real and meaningful invitation to appear before the Tribunal to give evidence and present arguments.

4. The Tribunal has considered the Tribunal’s Guidelines on Vulnerable Persons[5] in relation to competency, given the medical reports provided. Although not bound by rules of evidence, the Tribunal may consider the rules of evidence set out in the Evidence Act 1995 (Cth) when considering competency. A minimum requirement for fitness to participate would appear to be that the applicant understands the nature of the proceedings, understands questions put to them, can respond relevantly drawing on their knowledge and experience, and can comprehend and respond to adverse information.[6]

5. The Tribunal is satisfied that the applicant was competent to give evidence. He stated at the Tribunal hearing that he felt well and capable to give evidence and he was lucid and clear during the hearing and appeared to understand the nature of the Tribunal process and questions put to him. He was also able to draw logically on his experiences in a sequential way and could respond to adverse information. Furthermore, no submission was made by his representative or medical practitioners that he was not competent.

6. The Tribunal took steps to ensure that the applicant was supported during the review process including giving priority to the matter, encouraging the representative to make submissions, creating an informal setting, allowing adjournments and extra time to provide additional evidence.

   [5] AAT, Guidelines on Vulnerable Persons, available on the AAT Website, UNHCR, Guidance note on the psychologically vulnerable applicant in the protection visa assessment process, Regional Representation in Canberra, November 2017

100.   The Tribunal accepts that the applicant’s mental health may have impacted on the presentation of his evidence, due to cognitive impairment, and has made allowances for this in the assessment of the evidence, in particular in regard to memory deficit. The Tribunal notes the advice of the UNHCR that the most common pattern in the recollection of trauma over time is that the central elements of the experience are relatively stable but contextual details vary, including precise times and dates, sequence of events, visual and spatial details and the number of people present and who did what.[7]

[7] UNHCR, Guidance note on the psychologically vulnerable applicant in the protection visa assessment process, Regional Representation in Canberra, November 2017

Nationality

101.   The Tribunal is satisfied on the basis of his Ethiopian passport and birth certificate, that the applicant is a citizen of Ethiopia, and that Ethiopia is the receiving country for the purposes of the legislation.

Findings of fact

The reasonable approach to fact-finding

102. When assessing claims the Tribunal must make findings of fact in relation to the claims. This may involve an assessment of an applicant’s credibility. The Tribunal recognises that assessment of credibility can be based on imperfect perceptions of truth,[8] and as such is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions about credibility.[9] In the full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably.

[8] Fox v Percy (2003) 214 CLR 118

[9] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

103.   This approach is supported in numerous judgments and commentaries. As Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

104.   Courts have often reiterated that the Tribunal must consider the evidence in its entirety and not in isolated parts, see for example, Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997).

105.   The Tribunal is also conscious that there may be factors that consciously or otherwise influence decisions,[10] such that decisions must be carefully made. The Tribunal has taken into consideration research which indicates Tribunal members may rely on assumptions which can be inconsistent with psychological literature,[11] and has taken care not to do so.

[10] Bennett, H and Broe, G, The neurobiology of achieving a comfortable satisfaction, (2014) 26 Judicial Officer, Bulletin 8, 65-9

[11] Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal, International Journal of Refugee Law, 2018, Vol xx, No xx, 1-33

106.   The Tribunal is guided by these decisions and commentaries, and is mindful of the difficulties faced by refugee applicants, including in this case, the stress of detention as articulated by medical reports, issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. A person may forget dates, locations, distances, events and personal experiences. The Tribunal has taken these matters into account, as suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[12] both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.

Findings of fact in this matter

[12] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website,  The Tribunal is satisfied that the applicant is of Oromo ethnicity, as he was born in [Town], which is in Oromia, speaks the language, and although young when he left Ethiopia, has a general awareness of his Oromian background and history.

108.   The Tribunal is satisfied on the basis of the oral testimony of the applicant, that he has no close family in Ethiopia and that he is not in touch with extended family. He grew up during the civil war such that the experiences he describes of displacement, and death of his parents, are feasible, and he has not been in the country for almost 25 years. His evidence was also supported by [Mr B]’s former wife, [Ms E].

109.   The Tribunal is satisfied that the applicant’s much older brother, [Mr B], was in a senior position in the Derg, and that his sisters [Ms C] and [Ms D] also worked for the Derg government. The applicant has been consistent about this evidence in his accounts to the Department, the Tribunal formerly constituted, medical practitioners and this Tribunal. His evidence was corroborated by the evidence of [Mr B]’s former wife, [Ms E]. The Tribunal is satisfied based on [Ms E]’s evidence that [Mr B] was the [Office holder] of a government district.

110.   The Tribunal is satisfied that [Mr B] was involved in human rights abuses against Oromos and fled the country in 1991. The account provided by the applicant is supported by country sources about the Derg, a Committee of 120 military officers led by army lieutenant colonel Mengistu Hailemariam, which ousted Emperor Haile Selassie in 1974, and ruled until 1991. The Derg was a military dictatorship which killed over 150,000 people including students, academics and political opponents. Many others were tortured, disappeared and were arbitrarily arrested.[13] According to sources, many Derg fled the country after the overthrow of the Derg in 1991.[14]

[13] Human Rights Watch, To heal, Ethiopia needs to confront its violent past, 28 May 2020, CBC Documentary Channel; Moloo, Zahra, Thousands died during Ethiopia’s Red Terror but the culprits still evade justice,  The Tribunal accepts the applicant’s evidence that as a child he was playing with friends when two men put a gun to his head and questioned him about [Mr B]’s whereabouts. He has been consistent in this evidence, and it is feasible that men would have been looking for [Mr B] given his role and participation in human rights abuses.

112.   In considering the applicant’s evidence about his mental health, the Tribunal has taken into account the Tribunal’s Guideline for Persons Giving Expert and Opinion Evidence in relation to giving weight to the medical/psychological evidence provided.[15] The Tribunal notes that as required by the Guideline, the report of [Dr F] dated 14 October 2019 details the expert’s extensive area of knowledge and her qualifications and experience, details of matters relied on and tests conducted. The Tribunal has given significant weight to this report, as [Dr F] has a Master’s degree in Medicine (Psychiatry), has worked as a consultant in prisons and hospitals for 12 years, has provided expert reports for four years, and has acknowledged her duty of impartiality. The Tribunal accepts her opinion that the applicant suffers from paranoid schizophrenia and depression. The Tribunal accepts the applicant’s evidence that around 2006 to 2008 he began to feel very lonely as he had ‘grown up without a family’ and that he began to hear voices. He told his psychiatrist that ‘there was never anyone to love’. The Tribunal accepts that particularly between 2010 and 2015 the voices overwhelmed him, but they have continued irregularly, despite medication. The Tribunal accepts that he has had anti-psychotic treatment since 2008 and is currently taking olanzapine and methadone.

[15] AAT, Guideline on Persons Giving Expert and Opinion Evidence, 30 June 2015, available on the AAT Website, the applicant have a well-founded fear of persecution?

113.   Under s.5H(1) of the Act, 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 themself of the protection of that country.

114.   The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.

115.   The concept of ‘well-founded fear of persecution’ is further defined in s.5J of the Act. It provides that a person has a well-founded fear of persecution if:

·the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

·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 above; and

·the real chance of persecution relates to all areas of a receiving country.

116.   Section 5J(1)(a) requires that the person ‘fears being persecuted’ for one of the stated reasons. This appears to incorporate the need for subjective fear, consistent with the Australian courts’ interpretation of ‘well-founded’ fear in Article 1A(2) of the Refugees Convention.

117.   For a person’s fear of persecution to be well-founded, there must be ‘a real chance that, if the person returned to the receiving country, the person would be persecuted…’. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s.5J(1)(b), provides an objective element to that concept; not only must a person fear persecution, there must be a prospect of that fear being realised.

118.   The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s.5J, that Parliament intended that this same threshold be used to assess claims under s.5J.

Does the applicant fear being persecuted for one of the stated reasons?

119.   After hearing his oral testimony, the Tribunal is satisfied that the applicant has a subjective fear of being harmed for reasons of his imputed political opinion and/or mental illness. The applicant has not lived in Ethiopia since he was [Age 2] years old. Given country sources which indicate a lower standard of medical care than in Australia and intense political conflict, it is reasonable that he would have such fear, particularly as he had a traumatic childhood.

Is there a real chance that the applicant would be persecuted for reasons of his Oromo ethnicity and/or imputed political opinion?

120.   The Tribunal is not satisfied that the applicant would be persecuted for reasons of his Oromo ethnicity and/or imputed political opinion for reasons set out below.

121.   The applicant claims to fear harm based on his imputed political opinion because of his connection to his brother [Mr B], and his Oromo ethnicity. He claims that those who suffered at the hands of [Mr B] through killings and land appropriation, would seek revenge. He said that at one time, they posted on [Social media], ‘ear for ear, blood for blood’. He said that they would torture him to get information about his brother. He said that he would commit suicide rather than endure torture at their hands.

122.   The Tribunal has accepted for reasons set out earlier that [Mr B] was a senior figure in the Derg. As pointed out by the Tribunal previously constituted, very little information was provided by the applicant about [Mr B]’s role or conduct, as the applicant does not have knowledge of these matters. Some elaboration was provided by [Ms E] who said that [Mr B] was [an Office holder] of the government district of [Name 1], which is a position similar to [an equivalent Public office] in Australia. No corroborative evidence was provided, however on the basis of her evidence, as she was his wife, the Tribunal accepts this evidence.

123.   It is clear from country sources that the Derg era was a time of great brutality and the Ethiopian people have even recently sought accountability from those who were responsible for the atrocities, even though they were overthrown almost 30 years ago. DFAT[16] provided the following overview of the recent history of Ethiopia:

Ethiopia, formerly Abyssinia, is a multi-ethnic federal republic in East Africa. Ethiopia is Africa’s oldest independent country — with the exception of a five-year Italian occupation (1936-41), it was never colonised. In 1974, a Communist military junta known as the Derg (‘Committee’) overthrew the long-serving Emperor, Haile Selassie, and abolished Ethiopia’s monarchy, the House of Solomon, which dated to antiquity. The Derg pursued policies of nationalisation and collectivisation, and Ethiopia descended into civil war between junta and rebel forces. Between 1976 and 1978, the Derg killed thousands of its opponents (the campaign of ‘Red Terror’). Rebel forces from the Ethiopian People’s Revolutionary Democratic Front (EPRDF), a multi-ethnic alliance led by the Tigrayan people, ousted the Derg in 1991, ending Ethiopia’s civil war. The Derg’s leader, Mengistu Haile Mariam, was granted asylum in Zimbabwe. The EPRDF and its successor, the Ethiopian Prosperity Party (EPP), have ruled Ethiopia since.

[16] Department of Foreign Affairs and Trade, Country Information Report Ethiopia, 12 August 2020

124.   Liberation groups overthrew the Derg in 1991. The Ethiopian People’s Liberation Democratic Front (EPLDF) seized power and established a Special Prosecutor’s Office to investigate and prosecute former Derg officials. A large-scale human rights trial, the ‘African Nuremberg’ was held, and there was significant evidence of the Derg’s crimes as the Derg government had kept extensive records. In 1997 more than 5,000 individuals were charged with Red Terror offences while 3,000 were charged in absentia.[17] Derg officials who fled into exile managed to evade justice although some were subject to criminal proceedings and extraditions, with one recent case in the Netherlands in 2017 of a Derg senior representative being convicted.[18] Four Derg officials sought refuge in the Italian embassy in Addis Ababa and are still living there, 28 years later.[19]

[17] CBC Documentary Channel; Moloo, Zahra, Thousands died during Ethiopia’s Red Terror but the culprits still evade justice, CBC Documentary Channel; Moloo, Zahra, Thousands died during Ethiopia’s Red Terror but the culprits still evade justice, CBC Documentary Channel; Moloo, Zahra, Thousands died during Ethiopia’s Red Terror but the culprits still evade justice,  In an article in May 2020, Human Rights Watch argue that Ethiopia needs to address legacies of violence committed during the Derg era from 1974 to 1991, as well as the military government which followed. They argue that although ‘it is tempting to turn the page, asking people to simply forgive and move on isn’t so easy. Ethiopians have frequently called for both meaningful justice and a chance to tell their stories.’[20] According to Human Rights Watch when Abiy Ahmed came to power, there was hope that past crimes ‘would finally be addressed’. He apologised for massive rights abuses and established a Reconciliation Commission tasked to maintain peace, justice, national unity and consensus. While some high-ranking officials of the former government were arrested, later charges were dropped. It was argued that the Reconciliation Commission should be an independent and inclusive truth-telling process to help heal the divided nation.[21]

[20] Human Rights Watch, To heal, Ethiopia needs to confront its violent past, 28 May 2020, Human Rights Watch, To heal, Ethiopia needs to confront its violent past, 28 May 2020,  Every year on 28 May the Ethiopians celebrate the overturn of the Derg regime and there is a ‘Red Terror’ Museum in Addis Ababa recording the brutalities inflicted in this era.[22]

[22] CBC Documentary Channel; Moloo, Zahra, Thousands died during Ethiopia’s Red Terror but the culprits still evade justice,  While this information suggests that the Derg era is still prominent in the memory of the nation, other articles discuss a more conciliatory approach with the recent peaceful return of former Derg officials. In 2018 former senior Derg official Kassa Kebede returned after 27 years, pledging to contribute to change in the country. He responded to an invitation by the government to all Ethiopians abroad to return.[23]

[23] ENA, Senior Exiled Derg Official Pledges to Contribute to Ongoing Reform, 30 June 2018,  The applicant was not involved with the Derg in any way and nor has he been involved in any political activity. He also had very little connection with [Mr B] in Ethiopia and was aged ten or eleven at most when [Mr B] was involved in political activity. Given that Derg officials are now returning to Ethiopia, and he himself had no connection to Derg, the Tribunal is satisfied that a pro-Derg political opinion would not be imputed to him, and survivors of [Mr B]’s crimes would not seek him out. Such a conclusion is supported by the fact that [Ms E] remained in Ethiopia from 1991 to 1994 and was not harmed, despite the fact that she had been [Mr B]’s wife. She was also able to return to Ethiopia from Australia two to three times. She was the wife of [Mr B] at the time of the atrocities so a much closer connection than that of the applicant, who was much younger than [Mr B] and spent little time with him.

129.   The Tribunal notes that [Ms E] said that in 2009 she was arrested and questioned as to [Mr B]’s whereabouts while visiting family in [Town]. She said that she had lost her passport and went to report it to the police, who then interrogated her and asked her where [Mr B] was. She was able to show her divorce papers and was then able to leave. The Tribunal notes that she was held for the day with her uncle who was a pro OLF supporter, which might have encouraged the authorities to question her. In any event she was then released and continued travelling in Ethiopia. The Tribunal notes that she was not harmed by the authorities, or by family members or others connected to victims of the Derg atrocities. This happened in 2009 and as so much time has passed, and otherwise she has lived and travelled there safely, the Tribunal is not satisfied that this experience suggests that the applicant would be harmed by the authorities or community members if he returned.

130.   Given the information set out above and in particular that Derg officials have been able to return without repercussion and the fact that [Ms E] was not seriously harmed, the Tribunal is not satisfied that there is a real chance of persecution for reasons of imputed political opinion due to the applicant’s connections with [Mr B].

131.   The applicant has also claimed that he faces a real chance of serious harm for reasons of his Oromo ethnicity or imputed political opinion due to his Oromo ethnicity.

132.   The Oromos are the largest ethnic group in Ethiopia, at approximately 35% of the population.[24] They live mostly in Oromia state which surrounds the federally administered Addis Ababa. Historically, Oromos faced discrimination in use of language, literature and media, and in jobs, including government jobs, although the Constitution provides for equality among ethnicities.[25] There is no doubt that the ‘level of political and economic influence has traditionally been incommensurate to their size’.[26] Tigrayans predominated during EPLDF’s rule, although there were Oromos in parliament, which fostered resentment amongst Oromos.[27] The displacement of Oromos from traditional land on which Addis Ababa is built is another grievance for Oromos.

[24] Department of Foreign Affairs and Trade, Country Information Report Ethiopia, 12 August 2020

[25] UK Home Office, Country Policy and Information Note, Ethiopia: Oromos, November 2019

[26] Department of Foreign Affairs and Trade, Country Information Report Ethiopia, 12 August 2020

[27] Department of Foreign Affairs and Trade, Country Information Report Ethiopia, 12 August 2020

133.   Large-scale anti-government protests beginning in 2014, centred in Oromia and, later in Amhara states, prompted the declaration of a State of Emergency, under which over 20,000 people were arrested and 1,000 killed.[28]

[28] Department of Foreign Affairs and Trade, Country Information Report Ethiopia, 12 August 2020

134.   Protesters demanded greater political rights, leading to the resignation, in February 2018, of Prime Minister Desalegn. His successor and current prime minister, Abiy Ahmed (appointed in April 2018), embarked on an ambitious reform agenda, and the human rights situation has improved significantly under his watch. Among other reforms, Abiy has lifted restrictions on freedom of expression, released political prisoners, removed terrorist designations of previously exiled opposition groups, expanded the space for civil society, and initiated reform of legislation used previously to arrest and prosecute government critics. In parallel, Abiy has pursued high-profile diplomatic initiatives across East Africa. He was awarded the Nobel Peace Prize in 2019 for his peacebuilding efforts with Eritrea, culminating in the signing of an agreement to formally end their war. Abiy is Ethiopia’s first prime minister from the Oromo ethnic group.[29]

[29] Department of Foreign Affairs and Trade, Country Information Report Ethiopia, 12 August 2020

135.   DFAT reports that after an initial period where violence subsided significantly, ethno-nationalism, inter-ethnic clashes and associated displacement again increased, though not nearly to the levels witnessed preceding Abiy’s election. Abiy had committed to holding free and fair elections in 2020, although these have been postponed due to the COVID-19 outbreak in the country.[30]

[30] Department of Foreign Affairs and Trade, Country Information Report Ethiopia, 12 August 2020

136.   DFAT states that Oromo influence has expanded significantly since the April 2018 election of Abiy as Prime Minister. The Oromo have been the largest ethnic group in Cabinet, and in senior ranks of the military and public service. Thousands of political prisoners have been pardoned. The Prime Minister has also been responsible for firing the head of the prison service after allegations of torture.[31]

[31] The Guardian, These Changes are unprecedented: how Abiye is upending Ethiopian politics, 8 July 2018

137. According to DFAT, all ethnicities have a right under the Constitution to speak their own language and promote their own culture and official discrimination on the basis of ethnicity is rare. Oromia is one of the more developed parts of the country. Oromo political prisoners including those arrested for involvement in the 2014 to 2018 protests, have been released. The OLF, an opposition party dedicated to Oromo self-determination, was delisted as a terrorist organisation in June 2018, signed a peace agreement in August 2018 and agreed to disarm.[32] However historical grievances remain, and there have been ethnic clashes involving Oromos and a rise of Oromo nationalism. In June 2020 Hachalu Hundessa, a prominent Oromo singer and activist, was killed. He had been increasingly outspoken on the economic and political marginalisation of the Oromo people. This killing sparked major protests, inter-ethnic violence between Amharas and Oromos and arrests.[33] The arrests included that of popular Oromo activist and media owner, Jawar Mohammed, regarded widely as stifling of opposition.[34] There were also assassinations in June 2020 of several high-level government officials which the government linked to an alleged coup attempt in the Amhara region.[35]

[32] Department of Foreign Affairs and Trade, Country Information Report Ethiopia, 12 August 2020

[33] The Guardian, Gardner, T, How a musician’s death unleashed violence and death in Ethiopia, 3 August 2020

[34] Time, How the murder of an Ethiopian singer triggered an uprising against a disintegrating democracy’, 24 July 2020

[35] Human Rights Watch, World Report 2020 – Ethiopia, events of 2019, 14 January 2020,  However DFAT assesses that overall, Oromos face a low risk of official discrimination based on ethnicity, including with respect to employment and in states where they are a minority there is a moderate risk of violence.[36]

[36] Department of Foreign Affairs and Trade, Country Information Report Ethiopia, 12 October 2020

139.   This country information was discussed with the applicant at the Tribunal hearing.

140.   The applicant’s representative submitted that country information demonstrates that the security situation in Ethiopia has continued to further deteriorate throughout 2020 and inter-ethnic conflict has intensified. In the last week of October 2020, at least 54 people mostly of Amhara ethnicity were massacred in the Wollega area by members of the Oromo Liberation Army. It was argued that this demonstrates that people are targeted on the basis of ethnicity, and there is no guarantee of state protection. Additionally it was argued that Oromo people are at risk from state authorities, and have been targeted and imputed with anti-government political opinion in 2020, merely on account of ethnicity. It was submitted that violence has been ethnically motivated and sources indicate that there is no state protection available.[37]

[37] The Guardian, At least 54 killed in Ethiopia massacre, say Amnesty, 3 November 2020

141.   It was argued in relation to Ministerial Direction No. 56 and the use of the DFAT Report, that the DFAT Report on Ethiopia[38] in regard to Oromo people and the risk to them being ‘low to moderate’ is inconsistent with a range of other country sources. It was argued that the assessment in the DFAT Report that Oromo face low to moderate risks is not accurate and that the applicant is more vulnerable to being targeted as an Oromo as he has no links to Ethiopia and may not be aware of how to protect himself. It was also submitted that a ‘low’ risk can be a real risk.

[38] Department of Foreign Affairs and Trade, Country Information Report 2020, 12 August 2020

142.   It was submitted that the applicant is more vulnerable to being targeted as an Oromo given that he has no contacts or links and may be unaware of the local situation and precautions that Oromo people would normally take.

143.   There is no doubt that the political situation in Ethiopia is currently extremely unstable. Since Abiy’s election, ethnic strife across the nation has surged, killing hundreds, displacing millions and fuelling hostility among leaders.[39] There are concerns that Abiy’s government has not acted to calm these tensions and remedy underlying issues.[40]

[39] Malley, R, 10 Conflicts to Watch in 2020’, 26 December 2019 in Foreign Policy

[40] Human Rights Watch, Horne, F, Ethiopia’s Transition to Democracy has hit a rough patch, it needs support from abroad’, 18 April 2019

144.   Human Rights Watch has said that over the last two years Ethiopia has experienced growing unrest, with a rise in violence, and that the government’s response has shown signs of ‘backsliding’, with many credible reports of killings, torture and arbitrary arrests by security forces. There are also documented shutdowns of telephone and internet services[41] in Oromia and the arrest of journalists, opposition leaders and their supporters. According to Human Rights Watch, ‘a return to abusive practices is a painful reminder of the longstanding failure to effectively reform the security sector and address its culture of impunity’.[42]

[41]Human Rights Watch, To heal, Ethiopia needs to confront its violent past, 28 May 2020, Human Rights Watch, To heal, Ethiopia needs to confront its violent past, 28 May 2020,  The UK Home Office in February 2020 discussed the reforms introduced by Prime Minister Abiy as follows:

During his first few months as prime minister, he introduced a number of fundamental reforms which included: the de-proscription and return of exiled terrorist organisations – notably the Patriotic Ginbot 7 (PG7), the Oromo Liberation Front (OLF) and Ogaden National Liberation Front (ONLF) – and the pardoning and release of thousands of political prisoners. Reforms to the security sector were announced, including a commitment to end torture and the arbitrary use of the Anti-Terrorism Proclamation (ATP).

The widening of the political space included revision of the media and civil society organisation laws, and the enacting of the electoral reform law to enable free and open national elections in 2020. Corruption and allegations of human rights abuse have been investigated, and some high-level officials have been replaced and prosecuted for past abuses. The process of holding those accountable and bringing them to justice is ongoing.

Since the initial wave of reforms and actions of Dr Abiy, the country has entered a transition period and slow-down in the reform process. This has been met with impatience and criticism by some groups. In June 2019 there was an alleged attempted coup to which the government, taken by surprise, reacted swiftly and forcefully. The ATP was used to arrest and detain hundreds of individuals, including journalists and those associated with, and members of, a range of opposition groups. While some remain in detention, many have subsequently been released.[43]

[43] UK Home Office, Report of a Home Office Fact-Finding Mission - Ethiopia: The political situation, Conducted 16 September 2019 to 20 September 2019, Published 10 February 2020,

146.   Another view of the situation in early 2020 was provided in the Human Rights Watch World Report, published in January 2020:

Human rights reforms implemented by Prime Minister Abiy Ahmed during his first year in office were threatened in 2019 by communal, including ethnic, conflict and breakdowns in law and order.

The June 22 assassinations of several high-level government officials, which the government linked to an alleged coup attempt in the Amhara region—as well as political unrest and communal violence in the capital, Addis Ababa, and Oromia following an incident with a popular Oromo activist and media owner, Jawar Mohammed—highlighted increasing tensions ahead of Ethiopia’s scheduled 2020 national elections.

In June, the parliament voted to postpone an already overdue but highly contentious national census, despite the importance of the exercise ahead of the 2020 elections.

Institutional reforms, notably around judicial independence and concrete measures to ensure truth, reconciliation, and accountability—all of which are key to dealing with heightened political and ethnic tensions—were limited.[44]

[44] Human Rights Watch, World Report 2020 – Ethiopia, events of 2019, 14 January 2020,

147.   The Human Rights Watch World Report said that there had been fewer reports in 2019 of arbitrary arrest, however there had been ongoing reports of abusive arrests of alleged OLF members and sympathisers in areas of Oromia where there had been fighting between suspected members of the OLF and the military.[45] It was reported that:

Longstanding grievances over access to land and complex questions of identity and demarcation of internal borders on occasion have led to abuses, including open conflict between ethnic groups, killings and large-scale internal displacement.[46]

[45] Human Rights Watch, World Report 2020 – Ethiopia, events of 2019, 14 January 2020, Human Rights Watch, World Report 2020 – Ethiopia, events of 2019, 14 January 2020,  A number of sources have reported on the ‘evaporation’ of hope for Oromo nationalists that Prime Minister Abiy Ahmed would address their demands after thousands of activists lost their lives in protests that paved the way for his premiership in early 2018.[47] The author of an article in Africa Confidential states that ‘that hope of seeing Abiy meet their concerns – such as a greater Oromo say in governing the federal capital, Addis Ababa, and for the Oromo language to have equal status to Amharic within the federation – has all but evaporated’. The article refers to the murder of musician-turned activist, Hachalu Hundessa, in May 2020, followed by protests. The government deployed security forces across Oromia to quell the protests, resulting in the death of 200 people. The report states that before these protests, federal and regional forces had been cracking down on Oromo civilians suspected of being opposition supporters, in the south and west of the region, areas believed to be strongholds of the Oromo Liberation Front and the Oromo Liberation Army. The article suggests that Abiy is seen to be drifting towards a unitary system away from the doctrine of ethnic federalism which has been dominant since 1991.[48] Further, that ‘his government is employing the same method his predecessors used to silence Ethiopia’s most populous ethnicity that has long complained of being treated as second-class citizens by Ethiopia’s state: internet blackouts, use of lethal force, arrest of Oromo leaders and dubious legal measures.[49] An article in Ethiopia Insight refers to three decades of the ‘criminalisation of political dissent’ in Oromia, and the narrative of ‘emptying the jails’ once Abiy came into power.[50] The article said that in fact the struggle in Oromia has not ended, with mass detentions and government abuses, as well as cutting the internet and phone lines. A federal Command Post in western Oromia, where the Oromo Liberation Army, formerly the armed wing of OLF has been active, has introduced curfews, prohibited gatherings and authorised detentions without due process. Activists and relatives said the military killed 59 civilians. There were also reports of a mechanic who had not been involved in politics being killed by mistake. Human Rights Watch is quoted in the report as saying there had been abusive arrests of alleged OLA members and their relatives. The OLF had complained of arrests of 600 members in Gimbi. The article said that growing insurgency in Oromia added to the Prime Minister’s challenges with activists believing that he has disparaged ethnic nationalism that paved his way to the top.[51]

[47] Africa Confidential, Oromia cracks open again, 23 July 2020, Africa Confidential, Oromia cracks open again, 23 July 2020, Africa Confidential, Oromia cracks open again, 23 July 2020, Ethiopian Insight, Amid blackout, western Oromia plunges deeper into chaos and confusion,14 February 2020

[119] Abaneh, S and others, Service User involvement in mental health system strengthening in a rural African setting: qualitative study, BMC Psychiatry, (2017) 17:187

193.   Additionally, the COVID-19 pandemic has created barriers to mental health treatment. Mental health epidemiologist Dr Maji Hailemariam is quoted in an article in the Addis Standard[120] as saying that health institutions normally designated for mental health services are no longer providing these services. The article refers to the pioneer mental health facility, Amanuel Hospital being at 50% capacity and some of the patients who had been transferred to the centre, resisting care and going home because of stigma associated with the facility. Overall it was concluded that there is less care available.[121]

[120] Addis Standard, Hailemariam, M, Analysis, “Can anyone hear us?” Access to mental health care in Ethiopia during the COVID-19 pandemic, 2 June 2020

[121] Addis Standard, Hailemariam, M, Analysis, “Can anyone hear us?” Access to mental health care in Ethiopia during the COVID-19 pandemic, 2 June 2020

194.   DFAT has also commented on the National Mental Health Strategy as follows:

Despite these efforts, mental illness carries significant social stigma. Those suffering from mental illness face discrimination in employment, education and housing. Traditional attitudes about mental illness discourage victims from seeking professional treatment and discussing their illness openly. Mental health services are available, particularly in Addis Ababa and other major urban areas, but local sources told DFAT the average person is often unaware of their existence. Mental health services are scarce in rural areas, where most of the population lives but where health infrastructure is limited. Private mental health clinics operate in Addis Ababa (including the Sitota Center for Mental Health Care), although these are financially prohibitive for the average person. There is one dedicated psychiatric hospital in Addis Ababa (St. Amanuel Mental Specialized Hospital).[122]

[122] Department of Foreign Affairs and Trade, Country Information Report Ethiopia, 12 October 2020

195.   If the applicant were to return to Ethiopia, he would return with fear, given his past, have no family or network and no familiarity with the health system or social services. He would have no source of income or available housing. While he may be assisted initially by the International Organisation of Migration, it is unlikely he would be able to find a job, as he has no contacts, very little experience and a serious mental illness. DFAT has reported in August 2020 that those suffering from mental illness face discrimination in employment, education and housing. These factors compound the difficulties he would face if he suffered psychotic episodes, due to limited ability to access treatment or care.

196.   The Tribunal is satisfied, considering his vulnerabilities, and the extensive research on mental illness in Ethiopia, that there is a real chance, which may be less than 50 per cent, but is more than a speculative,[123] remote or non-substantial chance,[124] that he would be seriously harmed if he returns to Ethiopia in the reasonably foreseeable future for reasons of his serious mental illness.

[123] Chan v MIEA (1989) 169 CLR 379

[124] MIEA v Guo (1997) 191 CLR 559

197.   Section 5J(4) provides that if a person fears persecution for one or more of the reasons mentioned in the legislation, then:

(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.

198.   As discussed earlier, based on independent sources, the Tribunal is satisfied that the reason, membership of a particular social group of persons with serious mental illness, would be the essential and significant reason for the persecution, given the independent research on restraint, stigma and discrimination.

199.   The Tribunal is also satisfied that the harm he would suffer would amount to serious harm. Indicative examples are set out in s.5J(5) of the Act, and include significant physical ill-treatment and denial of capacity to earn a livelihood where it would threaten the capacity to subsist. The Tribunal is satisfied that the harm he will suffer may include physical restraint amounting to serious physical and psychological harm and other ill-treatment, and the inability to subsist because of discrimination in employment and services for reasons of his mental illness.

200.   The Tribunal is also satisfied that the persecution would involve systematic and discriminatory conduct. The mere impact of circumstances which an applicant may face in the future, even if arising from past persecution, would not constitute persecution for the purposes of ss.5J(4) unless those future circumstances include some systematic and discriminatory conduct by another person or persons.[125] The Tribunal is satisfied that there is a real chance of serious harm in the form of restraint, ill-treatment or discrimination in jobs and services by the government or members of the community. In MIMA v Haji Ibrahim, McHugh J explained that his use of the expression ‘systematic conduct’ in Chan v MIEA (1989) 169 CLR 379 was not intended to mean that there can be no persecution unless there is a systematic course of conduct; rather it was used as a synonym for non-random.[126] Discriminatory refers to the motivation of the persecutor, as enunciated in the well-known passage in Ram v MIEA, cited with approval by the High Court and Federal Court on a number of occasions, where Burchett J said:

Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.[127]

[125] See for example WAKZ v MIMIA [2005] FCA 1065 at [49]

[126] MIMA v Haji Ibrahim (2000) 204 CLR 1 at [95].

[127] Ram v MIEA (1995) 57 FCR 565 at 568.

201.   The Tribunal is satisfied that the harm the applicant would suffer would involve systematic and discriminatory conduct as it would be non-random, directed at the applicant because of his mental illness.

Effective protection, relocation and right to enter and reside in a third country

202.   The Tribunal is not satisfied that there are effective protection measures in place. The studies referred to earlier in this decision indicate that the use of restraint for seriously mentally ill patients is commonplace, and that there is discrimination in employment and services and lack of funding for mental health. While the government has taken steps to introduce a mental health strategy, the information is limited as to how it has been implemented, there is no mental health legislation and sources suggest that COVID-19 has impacted negatively on the provision of services. Furthermore, there are funding issues in the health system and police force.[128] In this context, the Tribunal is not satisfied that protection against persecution would be provided by the state or other parties.

[128] Department of Foreign Affairs and Trade, Country Information Report Ethiopia, 12 October 2020

203.   The Tribunal is satisfied based on country sources referred to earlier in this decision that the persecution relates to all areas of Ethiopia as stigma and discrimination and the use of restraints impact on persons with serious mental health issues in all areas of Ethiopia.

204.   There is no evidence to suggest that the applicant has a right to enter and reside in a third country.

Findings on well-founded fear of persecution

205.   The Tribunal is satisfied that the applicant has a well-founded fear of persecution for reasons of membership of a particular social group of persons with serious mental illness.

CONCLUDING PARAGRAPHS

206. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

DECISION

207. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Jane Marquard
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.

…

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.

…

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.

…

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 of 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 of persecution would not exist if it were assumed that the fear of 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.

…