2005215 (Refugee)

Case [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…

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Details
AGLC
2005215 (Refugee) [2020] AATA 6034
Case
[2020] AATA 6034
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a visa, heard by the Administrative Appeals Tribunal (the Tribunal). The applicant, an Oromo Christian from Ethiopia, claimed to have suffered persecution and harassment, including the killing of his mother and a direct threat to his life. The delegate of the Department of Home Affairs had previously been unsatisfied that there was a real chance of serious or significant harm based on country information and the applicant's profile. The Tribunal was required to conduct a reconstituted review of the decision, considering all evidence presented to the differently constituted Tribunal and any new evidence.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa. Specifically, the Tribunal had to determine if there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal from Australia to Ethiopia, the applicant would face a real risk of suffering significant harm, pursuant to section 36(2)(aa) of the relevant Act. This involved considering the meaning of "significant harm" as defined in sections 36(2A) and (2B) of the Act, and assessing the applicant's claims in light of mandatory considerations, including the Refugee Law Guidelines, Complementary Protection Guidelines, and country information.

The Tribunal considered evidence provided to the Department, as well as evidence before the Tribunal, including oral testimony from a previous hearing and independent country information regarding Ethiopia. The applicant's account detailed his orphaned status, his mother's alleged killing due to providing information to his brother who had fled to Australia, his attendance at boarding schools where children of former government officials were questioned by new government soldiers, and an incident where he was threatened with a gun and questioned about his brother. The Tribunal was obliged to determine the review based on the facts as they presented themselves at the time of its determination, having regard to the record of the proceeding as previously constituted.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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. The applicant stated that he was born in [Town], Ethiopia. He said that he is an Oromo and a Christian. He said that he has poor mental health which causes problems with his memory. 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. 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. 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. 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. 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. 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.

Decision

Reasons for decision

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 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 EVIDENCEThe evidence taken into consideration by this Tribunal 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 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. The applicant stated that he was born in [Town], Ethiopia. He said that he is an Oromo and a Christian. He said that he has poor mental health which causes problems with his memory. 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. 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. 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. 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. 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.

Ratio Decidendi

Legal Principle Established

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 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? 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]. 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. 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 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 EVIDENCEThe evidence taken into consideration by this Tribunal