2007677 (Refugee)

[2021] AATA 4467

2007677 (Refugee) [2021] AATA 4467 (12 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2007677

COUNTRY OF REFERENCE:                   Ethiopia

MEMBER:Jason Pennell

DATE:12 September 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i) that the second named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii) that the applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the second named applicant.

Statement made on 12 September 2021 at 8.55am

CATCHWORDS

REFUGEE – Protection Visa – Ethiopia – Federal Court remittal – race –ethnic Amhara – actual and imputed political opinion – supporter of Ginbot 7 or the EPPF – second applicant – race – ethnic Tigray – member of the family unit of the second applicant – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 5J, 36, 65, 91R, 499

Migration Regulations 1994, Schedule 2

CASES

Chan v MIEA (1989) 169CLR 379
MIEA v Guo (1997) 191 CLR 559
V v MIMA (1999) 92 FCR 355

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (‘the Act’).

2. [Mr A] (‘the applicant’), who claims to be a citizen of Ethiopia, applied for the protection visas on 14 October 2011 and the delegate refused to grant the visas on 30 December 2011 on the basis that the first named applicant is not a person to whom Australia owes protection obligations. The protection visa application included a dependent spouse, [Mrs B] (the ‘second applicant’). 

3. On 23 January 2012 the applicant initially applied to the Tribunal (differently constituted, Case No 1200894) (‘the First Tribunal’) for review of the delegate’s decision. On 8 April 2013 the First Tribunal affirmed the delegate’s decision not to grant the applicants protection visas.

4. The applicant then applied for judicial review to the Federal Circuit Court of Australia (FCCA) and on [date] March 2014. The matter was remitted by consent back to the Tribunal (differently constituted, Case No 1405173) for reconsideration (‘the Second Tribunal’).  

5. On 24 March 2016 the Second Tribunal affirmed the delegate’s decision not to grant the applicants protection visas. The applicant then applied for judicial review to the FCCA where the case was subsequently dismissed on [date] September 2018, as the FCCA determined there was no proper basis for remitting the case back to the Tribunal for reconsideration.

6. Accordingly, the applicant then applied for judicial review to the Federal Court of Australia (FCA) and on [date] April 2020 the case was remitted back to the Tribunal for reconsideration resulting in this Tribunal case number 2007677 (‘the current Tribunal’).

7. This matter is now before the current Tribunal for the third time because of that FCA Order dated [date] April 2020.

8. The applicants appeared before the Tribunal on 1 September 2021 to give evidence and present arguments. The hearing was conducted using the Microsoft Teams (MS) program. The Tribunal exercised its discretion to hold the hearing via Ms Teams, determining it was reasonable to do so, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical, and quick. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.     

9. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages. The applicants were represented in relation to this review by their migration agent.

10. The issue in this case is whether the first named applicant is a person to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

RELEVANT LAW

1. 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, the applicant 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

1. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the ‘Refugees Convention’, or ‘the Convention’).

2. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

3. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

4. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

5. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

6. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

7. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

8. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

9. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

10. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

1. 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 a protection visa if he or she is a non-citizen in Australia 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 applicant 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 complementary protection criterion’).

2. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

3. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Mandatory considerations

1. 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 (‘the Department’), and country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

Member of the same family unit

1. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a spouse or de-facto partner of the family head.[1]

   [1] Reg 1.12(1)(a) of the Migration Regulations 1994

2. In this case the applicant and the second applicant were married on [date] May 2010 in Addis Ababa, Ethiopia.[2] The applicant and second applicant have three children. Based on the applicant’s own evidence, the Tribunal accepts and finds that the applicant and the second applicant are each a member of the other’s family unit. 

   [2]    Applicant’s application for protection dated 14 October 2011, AAT File No 2007677 Doc ID [number]

BACKGROUND

Applicant’s Migration History

1. The applicant and the second applicant were each granted a Tourist (Class TR) (Subclass 676) visa on 30 June 2011 while they were offshore.[3]  The applicant and the second applicant first arrived in Australia [in] July 2011.

   [3]    Visa conditions: 8101 (no work) and 8201 (max 3 months study).

2. The applicant and the second applicant lodged a protection visa application on 14 October 2011. They have not departed the country since their arrival and have been on various Bridging Visa A’s with no attached visa conditions.

3. Prior to traveling to Australia, the applicant had lived in [Country 1] from September 2004 to March 2010. In addition, he travelled to [other countries] in 2005, Australia in 2007 and [Country 2] and [Country 3] in 2008. The applicant returned to Ethiopia in 2010 to marry the second applicant. Finally, they lived in the [Country 4] from September 2010 to February 2011.[4]

   [4]    Protection (Class XA) Visa Decision dated 30 December 2011, Dept File [number] Doc ID [number]

4. Prior to traveling to Australia, the second applicant lived in [Country 1] from September 2009 until April 2010 and the [Country 4] from September 2010 to February 2011.

Identity and Country Reference

1. The applicant claims that he was born on [date] in Addis Ababa, Ethiopia.  He claims to be a citizen of Ethiopia, does not hold any other citizenship and is not a national of any other country. The applicant provided the Department with a copy of the biodata page of his Ethiopian passport that confirmed his date of birth and age[5].

   [5]    Copy of first named applicant’s biodata page of Ethiopian passport, Department file [number], folio 86

2. The second applicant claims that she was born on [date]. She also claims to be a citizen of Ethiopia and not to hold any other citizenship and is not a national of any other country. She provided the Department with a copy of the biodata page of her Ethiopian passport that confirmed her date of birth and age.[6] 

   [6]    Copy of second named applicant’s biodata page of Ethiopian passport, Department file [number], folio 102

3. The documents provided by the applicant and the second applicant are consistent with their evidence to the Tribunal in relation to their identity and citizenship. However, the documentation provided by the applicant indicates that he held a Resident Permit, [for Country 1]. [Details of Resident Permit deleted].[7] From the documentation provided by the applicant it appears that he returned to Ethiopia at a time when he had a right to remain in [Country 1]. However, given the period since the applicants made their application for a protection visa, the Tribunal is not able to make any determination as to the applicant’s ability to enter and reside in [Country 1].  Therefore, based on the information provided by the applicant, the Tribunal finds the applicant and the second applicant are citizens of Ethiopia as claimed and as such their protection claims will be assessed against Ethiopia as the country of reference and ‘receiving country’ respectively.    

   [7]    [Source deleted]

4. The Tribunal is satisfied, based on the evidence before it, that the applicants do not have a right to enter and reside, whether temporarily or permanently, in any other country. As such, the Tribunal finds that the applicants are not excluded from Australia’s protection obligations under s.36(3).

Documentation considered

1. The Tribunal has considered the documentation provided by the applicant to the Department, being:

   (a)Applicant’s protection visa application (including second applicant’s application as a member of the family unit) dated 14 October 2011.

   (b)Applicant’s and second applicant’s applications for Tourist Visa dated 10 June 2011.

   (c)Applicant’s submissions to Onshore Humanitarian Processing Centre dated 10 November 2011.

   (d)Letter from [Mission 1] dated 25 May 2011.

   (e)Letter from [Mission 2] dated 13 June 2011.

   (f)Medibank report dated 21 November 2011.

   (g)United States Department of Homeland Security Report sent 16 December 2011.

   (h)Police Certificate for [Mr A] dated 29 November 2011.

   (i)Statutory Declaration of [Mr A] dated 24 November 2011.

   (j)Statutory Declaration of [Mr A] dated 2 May 2012.

   (k)Statutory Declaration of [Mr A] dated10 October 2012.

   (l)Statutory Declaration of [Mr A] dated 31 July 2014.

   (m)Statutory Declaration of [Mr A] dated 23 December 2015.

   (n)Statutory Declaration of [Mr A] dated 24 August 2021.

   (o)Statutory Declaration of [Mrs B] dated 2 May 2012.

   (p)Statutory Declaration of [Mrs B] dated 3 October 2012.

   (q)Statutory Declaration of [Mrs B] dated 29 July 2014.

   (r)Applicant’s submission dated 25 August 2021. 

   (s)Case notes from Department of Immigration and Citizenship.

   (t)Refugee Review Tribunal Decision Record Case No 1200894 dated 8 April 2013.

   (u)Administrative Appeals Tribunal Decision Record Case No 1405173 dated 24 March 2016.

   (v)Federal Court of Australia Decision File No [number] of 2018 dated [in] April 2020.

   (w)Federal Circuit Court of Australia Orders dated [in] March 2014.  

The applicant’s claims for protection

1. The applicant’s claims for protection are detailed the applicant’s protection application dated 14 October 2011, and summarised in the Department’s decision[8] as follows:

   (a)On [date] September 2011 the applicant was informed of a recent raid of his family home by security forces who confiscated his property. His father was assault.

   (b)He has been involved in ‘[Organisation 1]’ with Ethiopia’s most vocal Christian advocate, [Pastor C]. He was highlighted the injustice mistreatment and abuse of young people therefore has been in disagreement with the government.

   (c)In 2009 he became a member of the armed opposition group, the Ethiopian Peoples Patriotic Front (EPPF) which was established to bring democracy and freedom for Ethiopia. He has been a regular member and attended his last meeting in [Country 1] in April 2011.

   (d)[In] April 2011, when he returned to Ethiopia from [Country 1] he was arrested at the airport and subjected to more than three weeks unlawful detention and torture. He was falsely accused of being involved with Ginbot 7 and was released with strict warning and disassociate himself from any antigovernment activities.

   (e)Since his arrival in Australia he has been informed by relatives in Addis Ababa of the recent raid on the family home. One of his contacts has exposed his name and security agents came to his house without notice and left a summons for him to report to the police.

   (f)Many of his colleagues are suspected of being Ginbot 7 members have been arrested following a recent anti-government campaign. His work in the prison ministry with ‘[Mission 1]’ has been linked to his anti- government campaign. He and his wife are suspected of organising campaigns they have nothing to do with, and close associates of theirs have been arrested.

   (g)He claims that he is not safe for him to return to Ethiopia because he fears he will be mistreated at the hands of current Ethiopian Revolutionary Democratic Front (EPRDF) regime, its security agents and people at the various levels of administration council and various departments. He claims that he will be arrested and tortured or possibly killed.

   [8]    Protection (Class XA) Visa Decision Record dated 30 December 2011. Dept File [number], Folios 17-20 & 64-69.

1. The applicants made additional claims in their submissions to the Tribunal dated 25 August 2021. They claimed that they have a well-founded fear of persecution if they were returned to Ethiopia by reason that:

   (a)The applicant’s family may be detained or harassed by the authorities if they are returned.

   (b)The applicant will be persecuted because of him belonging to the Amhara ethnic group.

   (c)The second applicant will be persecuted as she belongs to the Tigrayan ethic group. The applicant fears that their children will be subjected to persecution because of their mixed ethnicity being mixed Amhara and Tigran.

The applicant’s evidence

1. In addition to their evidence and submissions made to the Tribunal the applicant and the second applicant relied on the evidence contained in their statutory declaration provided to the Department and previous Tribunals (differently constituted).

2. The applicant’s evidence was that he was born on [date] in Addis Ababa, Ethiopia. He is an ethnic Amhara and Christian. He can speak, read, and write in the Amharic, [Country 1 language] and English languages.

3. The applicant’s father, [Mr D], was a Pastor and Ethiopian Director of an organisation known as ‘[Organisation 2],’ an organisation focused on providing charitable and educational services to children. The applicant’s evidence was that his father founded the [a] Church in Addis Ababa in the 1970’s and was involved in an organisation known as [Organisation 3]. He was well known within the community due to his work with [a] Ministry which works with the poor and was responsible for establishing approximately [number] new churches in Ethiopia. The applicant’s evidence was that his father died in 2020.

4. The applicant’s evidence was that his father was a childhood friend of [Pastor C].[9] [Pastor C] is a religious leader credited for spreading evangelism in Ethiopia. He is the head of [Organisation 4], a non-governmental organisation that teaches evangelism to the prison population in Ethiopia. The applicant’s father involved [Pastor C] in some activities of [Organisation 3]. The applicant claims that because [Organisation 4] received funds from the government it did not disclose the fact that it was lobbying foreign government about issues relating to prisoners in Ethiopia.

   [9] Applicants Statutory Declaration dated 31 July 2014 at [5]

5. The applicant’s mother, [Mrs E], is a retired [Occupation 1]. She continues to live in Addis Ababa and continues to perform mission [work].

6. The applicant has [number of siblings]. His brothers remain living in Addis Ababa and his sister is married and lives with her husband [overseas]. 

7. The applicant was educated in Addis Ababa, having attended [number of schools]. In or about 2003, after the applicant left school, he worked in a [business] for approximately 12 months.  

8. In or about 2004 the applicant travelled to [Country 1] to attend bible school [run] by an organisation known as ‘[Mission 1]’. [Mission 1] is based in [Country 1] but is linked to [a] Mission in Ethiopia. [In] September 2004 the applicant was granted [a Resident Permit] to enable him to study and work in [Country 1].  In 2007, as part of his work with [Mission 1], he travelled to [Country 2] on a mission trip.

9. The applicant returned to Ethiopia in or about 2006 to discover that several of his close friends were in prison and two had been killed for political reasons. The applicant’s evidence was that they had been targeted by the authorities due to protesting against the ruling party, the Ethiopian People’s Revolutionary Democratic Front (EPRDF) in the 2005 elections. 

10. In 2007 and 2008 the applicant developed a plan with the assistance of [Pastor C] to take mission groups to Ethiopia to provide aid and services to prison inmates. The applicant’s evidence was that from December 2008 to April 2011 the applicant arranged and travelled with six groups of volunteers to Ethiopia to provide medical care to prisoners and to provide them with teaching materials and instruction to help improve their life skills and spiritual guidance.

11. In 2008 the applicant attended the office of [Pastor C] at the time he was meeting with the leader of Ginbot 7, [Ms F], and another person who the applicant thought to be a doctor. While the applicant was there the authorities came to the office and assaulted [Ms F] and dragged her from the office.  As a result of the incident in [Pastor C]’s office the applicant claims that he become more careful about his political involvement.  His evidence was that by working and providing aid to prisoners he was able to support victims of the EPDRF without being publicly opposed to them. However, the applicant claims that he did share information about injustices to senior people in [Organisation 5], [Country 1]. The applicant’s evidence was that he did this because he was aware that [Organisation 5] intervened in conflicts in other countries and he believed they would intervene in the prison system in Ethiopia.

12. The applicant became a member of the Ethiopian Peoples Patriotic Front (EPPF) in or about 2009 while he was in [Country 1]. The applicant joined the EPPF through his cousin, [Mr G], who was associated [Mr H] who [is involved in the EPPF]. The applicant met [Mr H] and shared ideas with him.

13. In or about February 2009 the applicant returned to Ethiopia where he met his wife, the second applicant. She accompanied him visiting prisons on mission business and later returned to [Country 1] with the applicant to study [a] Course. The second applicant came to Australia to study and attend [a] Course with the applicant.

14. In 2009 when the applicant was in Ethiopia, he was apprehended on his way to Bole Airport in Addis Ababa by customs officers. The applicant’s evidence was that he was detained with two [members] of his team ([names deleted]) and interrogated as to what they were doing in Ethiopia and why they were bringing in foreign workers and equipment. The applicant explained that they were there for humanitarian reasons. After approximately 20 minutes, the applicant and his associates were released.  After his release the applicant continued his aid work and his involvement in [Organisation 4].      

15. In July 2010, the applicant continued his work with [Pastor C] during which he informed the applicant that he was appealing to foreign governments about human rights abuses in Ethiopia.  He was not informed by [Pastor C] how he was appealing to foreign governments or which ones where involved.

16. The applicant’s evidence was that it was not his intention to leave Ethiopia, but he desired to undertake further study to help his aid work. As a result, in 2011 he applied to [Mission 1] to study [in] Australia.  The second applicant also applied to enrol in the course. Both applicants were accepted into the course in May 2011.

17. [In] April 2011 the applicant attended an EPPF meeting in [Country 1]. On [date] April 2011 the applicant travelled to Ethiopia. Upon his arrival he was detained by two police officers. The applicant was taken and dragged to an awaiting van and taken to the police station in [location]. The applicant was held for three days during which the applicant was assaulted, interrogated, and accused of being a member of Ginbot 7. The applicant was the taken to a [maximum-security prison], where he was held for approximately two weeks. He was initially locked in a small room, assaulted, and interrogated about his political involvement. Amongst other matters the applicant was interrogated about his alleged involvement in Ginbot 7 and was accused of raising funds for the organisation through his overseas contacts. The applicant was released from prison because the second applicant and his father paid a bride in the amount equivalent to AUD270.00.[10] The applicant’s evidence was that he had supported EPPF but not Ginbot 7.[11]   

    [10] Applicants Statutory Declaration dated 2 May 2012 at [52]

    [11] ibid., at [53]

18. The second applicant in her evidence confirmed the applicant’s evidence in relation to his work as a missionary and him being detained at Bole airport and being held at [prison]. The second applicant’s evidence to the Tribunal was that she was born on [date] and that she is ethnic Tigray.  She was raised in Addis Ababa. Her father was [an Occupation 2] but died when she was [age] years old. Her evidence was that she has [number of siblings]. Two of her sisters are not biological sisters but are considered as such. They live [overseas]. Otherwise, the rest of her family continue to live in Ethiopia. The second applicant completed secondary school at [a] college and studied [a] Degree at [a] College, Addis Ababa.   

19. The applicants arrived in [a city in] Australia and commenced studying with [Mission 1]. They subsequently moved to Melbourne as it has a larger Ethiopian community. They attend [a] Church in [location] and have three children who were all born in Australia. The applicant’s evidence was that his family were happy to welcome the second applicant into his family. However, he conceded that there is substantial discrimination between the ethnic groups in Ethiopia. He fears that if his wife is to return to Ethiopia with their children they will be targeted as a result of her being Tigrayan and their children being of mixed ethnicity.     

The accepted facts

1. Having considered the applicant’s evidence, the Tribunal accepts and finds that the applicant:

   (a)was born in Addis Ababa, Ethiopia on [date].

   (b)is an Orthodox Christian and ethnic Amhara.

   (c)speaks, reads and writes Amharic, [Country 1 language] and English.

   (d)father was [Mr D], a Pastor and Ethiopian Director of an organisation known as ‘[Organisation 2].’

   (e)attended [schools in] Addis Ababa.

   (f)attended [a] School at [Mission 1] in [Country 1].

2. In addition, the Tribunal accepts and finds that the second applicant:

   (a)was born on [date] and raised in Addis Ababa.

   (b)is ethnic Tigray. 

   (c)has [number of siblings]

   (d)completed secondary school at [a] college and studied [a] Degree at [a] College, Addis Ababa.

   (e)has three children with the applicant, all born in Australia.

The applicant’s relevant grounds

1. The applicant submits that his claims fall within the scope of s.5J(1)(a) of the Act based on him being an ethnic Amhara and because of his imputed and/or actual political opinion. The second applicant’s claims are based on her ethnicity as a Tigrayan. Otherwise, she relies on the applicant’s imputed and or actual political opinion as a member of the same family unit.

2. The Tribunal is required to apply an applicant’s claim in relation to their ethnicity or race in the ‘widest sense.’[12] It is to include all kinds of ethnic groups that are referred to as ‘races’ in common usage. The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status provides a guide as to race as a well-founded fear of persecution.[13] It states:[14]

   68. Race, in the present connexion, has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as “races” in common usage. Frequently it will also entail membership of a specific social group of common descent forming a minority within a larger population. Discrimination for reasons of race has found world-wide condemnation as one of the most striking violations of human rights. Racial discrimination, therefore, represents an important element in determining the existence of persecution.

   70. The mere fact of belonging to a certain racial group will normally not be enough to substantiate a claim for refugee status. There may, however, be situations where, due to particular circumstances affecting the group, such membership will itself be sufficient ground to fear persecution.

   [12] Calado v MIMA (1998) 81 FCR 450 at 455.

   [13]   Chan v MIEA (1989) 169 CLR 379 at 392, per Mason CJ.

   [14] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at paras 68-70.

3. In this case, the applicant and the second applicant claim that protection based on their ethnicity: that is, the applicant as an Amhara and the second applicant as Tigray, which the Tribunal has accepted. As such, the Tribunal accepts that the applicant’s claim falls within the scope of s.5J(1)(a) of the Act by reason of his race as an ethnic Amhara.

4. In addition, the applicant has claimed that he will be persecuted by reason of his actual and imputed political opinion: that is, as a supporter of Ginbot 7 or the EPPF; alternatively, because of his involvement as a missionary with [Organisation 1] and [Mission 1].

5. The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status[15] notes that ‘[H]holding political opinions different from those of the Government is not in itself a ground for claiming refugee status, and an applicant must show that he has a fear of persecution for holding such opinions.’ This presupposes that the applicant holds opinions not tolerated by the authorities, and that such opinions have come to the notice of the authorities or are attributed by them to the applicant.

   [15] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status paragraphs 80-86; Chan v MIEA (1989) 169 CLR 379 at 392.

6. The Full Federal Court in V v MIMA[16] observed in relation to a person’s political opinion that:

   (a)it is enough that a person holds (or is believed to hold) views opposed to the government and is persecuted for that reason;[17]

   (b)it is not necessary that a person be a member of a political party or other public organisation or that the person’s opposition to the instruments of government be a matter of public knowledge;[18]

   (c)‘political opinion’ is not limited to party politics in the sense that expression is understood in a parliamentary democracy;[19]

   (d)the holding of an opinion inconsistent with that held by the government of a country explicitly by reference to views contained in a political platform or implicitly by reference to acts reflective of an unstated political agenda, will be the holding of a political opinion;[20]

   (e)‘political opinion’ may be shown by repeated conduct which is never (or rarely) converted into articulate political protest of the kind familiar to Australian society.[21]

   [16] V v MIMA (1999) 92 FCR 355 at 363. It is noted that the Court’s observations were made in the context of dealing with the Convention.

   [17] ibid.

   [18] ibid.

   [19] V v MIMA (1999) 92 FCR 355 at 367.

   [20] ibid.

   [21] V v MIMA (1999) 92 FCR 355.

7. As such, an applicant’s fear of persecution because of his political opinion is a question of fact, having regard to all the circumstances.[22] However, to fall within s.5J(1)(a) of the Act an applicant’s political opinion must constitute at least the essential and significant reason for the persecution claimed.[23]

   [22] Maningat v MIMA (Federal Court of Australia, Tamberlin J, 30 April 1998) at 4.

   [23] Section 5J(4)(a) of the Act

8. In this case the applicant submits[24] that he has a well-founded fear of persecution by reason of actual political opinion as a supporter of EPPF and imputed political opinion as a supporter of Ginbot 7 by reason of his involvement with [Organisation 1] and [Mission 1]. Based on the evidence provided by the applicant and the second applicant, the Tribunal accepts that his claim falls within the scope of s.5J(1)(a) of the Act by reason of his actual and/or imputed political opinion.

   [24] Representative’s submissions dated 15 February 2021.

The applicant’s well-founded fear

1. Section 5J of the Act states that for the purposes of application under the Act 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 that there is a real chance that they will be persecuted for one or more these reasons in the event they are returned to their receiving country. In Chan v MIEA[25] the Court held that a ‘well-founded fear’, for the purposes of the Convention, involved both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[26]

   [25] (1989) 169 CLR 379 at 396.

   [26] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.

2. However, to hold a ‘well-founded fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J stated:[27]

   “Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.

   [27] Chan v MIEA (1989) 169 CLR 379 per Dawson J at 397.

1. In MIEA v Guo, the Court stated that:[28]

   Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.

   [28] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.

2. In this case, the applicant claims that, if he is returned to Ethiopia, there is a real chance he will suffer serious harm by the authorities by reason of his political opinion or his ethnicity. For the reasons detailed below, the Tribunal does not accept that the applicant has a well-founded fear of persecution on an objective basis if he is returned to Ethiopia.

3. However, the second applicant claims that because of her ethnicity there is a real chance she will suffer serious harm if she is returned to Ethiopia. For the reasons expressed below the Tribunal has accepted that there is a real chance she will be seriously harmed on an objective basis. 

The applicant’s claims as a refugee

Applicant an ethnic Amhara

1. The applicant claims that as an ethnic Amhara there is a real chance that he will be seriously harmed by reason of state-sanctioned violence that targets Amhara people in Ethiopia. He claims that as an ethnic Amhara he will face serious harm by both state and non-state actors.

2. The country information[29] states that the Amhara people are the second-largest ethnic group in Ethiopia (26.9 per cent of the population). While they reside predominantly in Amhara State, they are present throughout Ethiopia. In addition, Amharas are the largest ethnic group in Addis Ababa with approximately 1.3 million living in the capital.[30] Generally, Amharas are Orthodox Christian and their language, Amharic, is the official national language.

   [29] DFAT Report, p.24

   [30] ibid., per 2007 census

3. The Tigray People’s Liberation Front (TPLF) ruled Ethiopia for 27 years at the head of a four-party coalition designated the Ethiopian People’s Revolutionary Democratic Front (EPRDF).[31] Prior to the EPRDF coming to power in 1991, the Amhara governed Ethiopia. The Tigrayans held great influence over the EPRDF causing the Amhara (together with the Oromo) to feel marginalised and harbour considerable resentment toward the Tigrayans while the EPRDF were in power. In 2014, large-scale anti-government protests occurred in both the Oromia and Amhara states which prompted a declared state of emergency under which approximately 20,000 people were arrested and 1,000 people killed.[32] The protests ultimately led to the resignation of Prime Minister Desalegn in February 2018.

   [31] 'Tens of thousands gather in Ethiopia’s capital to condemn Tigray rebels', Anadolu News Agency, 22 July 2021, DFAT Report, p.9

1. The DFAT Report[33] assesses that the arrest of Amharas during the 2014 to 2018 anti-government protests was not ethnically motivated but reflected the then federal government’s sensitivity to political opposition. The second applicant’s evidence was that she was detained in 2010 because of her failure to perform and be engaged in propaganda work as part of the government’s election campaign: that is, because of her actual or imputed political opinion of being opposed to the government rather than her ethnicity as an Amhara. Her detention due to her imputed and/or actual political opinion rather than her ethnicity appears to be consistent with the available country information. The DFAT Report[34] concludes that Amhara people face a low risk of official discrimination based on their ethnicity. Although it does report[35] that Amhara people have been subjected to ethnic-based attacks in states where they do not constitute a majority (particularly in Benishangul-Gumuz) and face a moderate risk of violence in areas or states where they are a minority.

   [33] ibid.

   [34] ibid.

   [35] ibid.

2. In April 2018, Abiy Ahmed (‘Abiy’) was elected Prime Minister. He merged the EPRDF with three of the country’s four main ethno-regional political organisations – the Oromo Democratic Party, Amhara Democratic Party and Southern Ethiopian People’s Democratic Movement – and five regional allies to form the Prosperity Party. The TPLF, which had founded the EPRDF and held the reins in both the party and the Ethiopian state for over 25 years, rejected the merger and later withdrew entirely, but continued to rule in the Tigray region.[36]

   [36] 'Can Ethiopia’s election help overcome age-old structural divisions?', Tegbaru Yared, Institute for Security Studies, 30 July 2021, http//: issafrica.s3.amazonaws.com/site/uploads/psc-137.pdf.

3. It is reported that under Abiy’s leadership the human rights situation in Ethiopia improved.[37] Restrictions on Amhara opposition political organisations[38] were lifted, resulting in a rise in Amhara nationalism.[39] Amhara people are currently represented at the federal political level and in the senior ranks of the public service and the military.[40] Approximately one quarter of lower house members in Federal Parliament are elected from the Amhara State. The current federal president is an ethnic Amhara, and the Amhara were second only to the Oromo in their representation in the Council of Ministers.

   [37] ibid.

   [38] ibid.

   [39] ibid., at 23.

   [40] ibid.

4. In 2020 the Abiy government postponed national elections due to the coronavirus causing tensions between the TPLF and the Abiy government. In or about September 2020 tensions between the TPLF and the central government escalated when Tigray authorities defied the Abiy government and held their own regional election, an act that was declared illegal by the central government. In October 2020 the Abiy government cut ties with Tigray and suspended funding for the Tigray region, an action that was perceived by the northern region as a ‘declaration of war’.[41]

   [41] BBC News ‘Ethiopia’s Tigray war: The short, medium and long story’, dated 29 July 2021, ww.bbc.com/news/world-africa-54964378.

5. Armed clashes between the TPLF and federal forces commenced on 3 November 2020, when the TPLF attacked the Northern Command of the Ethiopian army stationed across Tigray, including in the regional capital Mekelle. The TPLF killed soldiers and looted military hardware. On 4 November 2020, the government responded by launching a massive law enforcement operation in Tigray aimed at quelling what it considered an insurgency.[42] Three weeks after launching military operations, following the retaking of Mekelle, the Abiy government declared victory.[43] While fighting between Tigray and federal forces persisted, TPLF leaders remained on the run.[44]

   [42] Anadolu News Agency 'Tens of thousands gather in Ethiopia’s capital to condemn Tigray rebels', dated 22 July 2021, Reuters, 'As Tigray war intensifies, Ethiopia parades new army recruits' dated 28 July 2021, ww.reuters.com/world/tigray-war-intensifies-ethiopia-parades-new-army-recruits-2021-07-27/.

   [44] Al Jazeera 'Ethiopia regions send troops to back fight with Tigray rebels' dated 15 July 2021, ww.aljazeera.com/news/2021/7/15/ethiopia-regions-send-troops-to-back-fight-with-tigray-rebels.

6. While designated a terrorist organisation by the Abiy government, the TPLF consider themselves the legitimate regional government of Tigray.[45] In late June 2021, Tigray forces (now rebranded the Tigray Defence Force (TDF)) regrouped and recaptured Mekelle.[46]

   [45] BBC News ‘Lalibela: Ethiopia's Tigray rebels take Unesco world heritage town’ dated 5 August 2021, ww.bbc.com/news/world-africa-58101912.

   [46] The Australian 'Ethiopia regions send troops to back fight with Tigray rebels', 16 July 2021, ww.theaustralian.com.au/news/latest-news/ethiopia-regions-send-troops-to-back-fight-with-tigray-rebels/news-story/8936fd7916b642a50c849e291d5547df.

7. Abiy withdrew most troops from the region and declared a unilateral ceasefire.[47] It was reported that Amhara’s feared that Abiy’s June ceasefire could see them targeted. Ethnic Amhara, who had supported Abiy and his reform agenda, felt betrayed by the government’s declaration of a unilateral ceasefire. They feared that, without federal forces, they may be targeted by the TPLF forces, given the reports of Amhara civilians in Tigray being subjected to violence and abuse at the hands of TPLF soldiers.[48]

   [47] ibid.

   [48] Al Jazeera 'With a new mandate, Abiy can usher a new era of hope in Ethiopia', Yohannes Gedamu, 28 July 2021, >

   However, the TDF rejected the ceasefire and demanded the full withdrawal of Eritrean troops and Amhara regional forces from Tigray, insisting on guarantees against federal forces returning to Tigray, and seeking an independent investigation into atrocities, access for aid and reinstatement of essential services including flights, electricity, telecommunications and healthcare.[49] In response, Abiy tightened a ‘blockade’ around Tigray, choking the region’s entry points from receiving aid and cutting off power and communications infrastructure.[50] 

   [49] Africa Confidential 'Fighting escalates as federal ties fray', 22 July 2021, The Economist 'In Ethiopia’s civil war, Tigrayan forces take the offensive', 31 July 2021, USAID, 'Ethiopia – Tigray Conflict Fact Sheet #10 Fiscal Year (FY) 2021 ', 30 July 2021,p.2,https//:reliefweb.int/sites/reliefweb.int/files/resources/2021_07_30%20USG%20Tigray%20Crisis%20Fact%20Sheet%20%2310.pdf; The New Humanitarian ‘Aid neutrality under fire in Ethiopia’s widening conflict’, 22 July 2021, Office for the Coordination of Humanitarian Affairs (OCHA) 'Ethiopia - Tigray Region Humanitarian Update, Situation Report', 26 July 2021, https//:reports.unocha.org/en/country/ethiopia/.

8. The TDF then launched an offensive to drive ethnic Amhara forces from disputed territory in western and southern Tigray.[51] Tigrayan forces also pushed into Afar, the region to the east of Tigray, where they said they planned to target Amhara troops fighting alongside the federal military.[52]

   [51] Agence France Presse (AFP) - France 'Ethiopia regions send troops to back fight with Tigray rebels', 16 July 2021, 20210716153308.

   [52] Reuters 'As Tigray war intensifies, Ethiopia parades new army recruits', 28 July 2021, 20210728104057.

9. In response to Tigrayan offensives, Abiy reversed his ceasefire decision and mobilised militia forces throughout the country’s ethnic regions. Amhara security forces have also shifted to fight the TDF with the government forces.[53] On 18 July 2021, Abiy declared a ‘total war’ on the TPLF – contingents of Special Forces (professional soldiers) and local militia have been sent from all of Ethiopia’s regions (save Tigray) to encircle the ‘rebel region’.[54]

   [53] 'Ethiopia regions send troops to back fight with Tigray rebels', Agence France Presse (AFP) - France, 16 July 2021, 20210716153308.

   [54] Africa Confidential, 'No good options on the table', 22 July 2021, 20210723134934.

10. The country information reports that the conflict in Tigray has inflicted an enormous humanitarian and human rights toll on the people of the region. It is reported[55] that thousands of people have died in the fighting with approximately 2 million people being displaced and more than 5 million relying on emergency food aid. Further, it has been reported that the military operations to quell the TPLF have been accompanied by ‘numerous civilian massacres, looting, and other human rights abuses amidst a worsening food situation’.[56] From an estimated Tigrayan population of 6 million people, approximately 5.2 million required humanitarian assistance with some 2 million others being displaced because of the current conflict.[57]

    [55] Reuters 'As Tigray war intensifies, Ethiopia parades new army recruits' dated 28 July 2021,

    [56] The New Humanitarian ‘Aid neutrality under fire in Ethiopia’s widening conflict’ dated 22 July 2021, ww.thenewhumanitarian.org/news/2021/7/22/Ethiopian-government-accuses-aid-Tigray-rebels-disinformation.

    [57] Relief web 'Ethiopia – Tigray Conflict Fact Sheet #10 Fiscal Year (FY) 2021’ dated 30 July 2021, reliefweb.int/report/ethiopia/ethiopia-tigray-conflict-fact-sheet-10-fiscal-year-fy-2021.

11. A July 2021 report[58] published by researchers at Belgium’s Ghent University states that ‘[w]hile no numbers exist for the total amount of civilian casualties’ 2,805 deaths are ‘well-documented’ and an additional 9,642 civilian deaths have been documented from (social) media reports, NGO reports and press releases. The researchers also highlight 245 massacres during the post-November 2020 conflict,[59] some of which human rights groups such as Amnesty International have labelled ‘crimes against humanity’.[60] Sources also describe ‘a systematic campaign of ethnic cleansing in Tigray’ in which ‘fighters supporting the Abiy government […]’ were ‘deliberately and efficiently rendering Western Tigray ethnically homogeneous through the organized use of force and intimidation. […] Whole villages were severely damaged or completely erased’.[61]

    [58] Sofie Annys et al, Ghent University ‘Tigray: Atlas of the humanitarian situation’, dated July 2021, pp. 23, 27, ibid.

    [60] The New York Times ‘Ethiopia’s War Leads to Ethnic Cleansing in Tigray Region, U.S. Report Says’ dated 26 Feb 2021 updated 1 April 2021 by Declan Walsh, Ibid; National Public Radio, ‘9 Things To Know About The Unfolding Crisis In Ethiopia's Tigray Region’ dated 5 March 2021, >

    On 7 August 2021, the United Nations reported that fighting in Tigray had pushed 400,000 people into famine-like conditions,[62] while a report by Amnesty International dated 10 August 2021 refers to widespread subjection of women and girls in Tigray to sexual violence by members of the Ethiopian National Défense Force (ENDF), the Eritrean Défense Force (EDF), the Amhara Regional Police Special Force (ASF), and Fano, an Amhara militia group.[63]

    [62] The Australian 'Ethiopia threatens to deploy “entire defensive capability” after rebel advances', dated 7 August 2021, Amnesty International ‘Ethiopia: Troops and militia rape, abduct women and girls in Tigray conflict – new report’,10 August 2021, ‘Ethiopia: “I don’t know if they realized I was a person”: Rape and sexual violence in Tigray, Ethiopia’, Amnesty International, 10 August 2021, 20210811161042.    

12. The country information reports that any issues faced by the Amhara people since the country’s elections in July 2021 primarily involve their relationship with the TPLF and Tigrayan advances on Amhara territory. On or about 28 June 2021 the TPLF re-took Mekelle and have subsequently expanded their military operations into parts of neighbouring Afar and Amhara regions. Intense fighting was reported in Ethiopia’s Amhara State where federal forces as well as Amhara regional troops were involved in fighting Tigray rebels.[64] As a result, it was reported that approximately 300,000 people have been displaced in Amhara and Afar.[65] Specifically, Reuters has reported that Tigrayan forces pushing south and west into the neighbouring Amhara region have displaced 200,000 people[66] and 54,000 people in Afar region to the east.[67]

    [64] BBC News 'Ethiopia's Tigray crisis: Fighting escalates despite ceasefire', 29 July 2021, 20210730141722.

    [65] BBC News ‘Lalibela: Ethiopia's Tigray rebels take Unesco world heritage town’, 5 August 2021, 20210810114644.

    [66] Martin Griffiths is Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, Office for the Coordination of Humanitarian Affairs.

    [67] Reuters, 'Fighting displaces 200,000 in Ethiopia's Amhara region -U.N. aid chief', 4 August 2021, 20210805111323.

13. In addition to the conflict with Tigrayan forces, Human Rights Watch[68] reports that longstanding grievances and polarisation over historical and complex issues concerning land, politics, and identity, have led to violence among ethnic communities in Ethiopia. As to the Amhara this includes a conflict with Oromo groups in Harar over the use of the old national flag and decorations during the Orthodox Christian celebration Epiphany, resulting in casualties and the destruction of property. In addition, violence in Hachalu triggered one of the deadliest periods of unrest with over 170 people killed, some by security forces, and others by civilian assailants who also looted and burned the businesses and homes of ethnic Amharas and other minority communities.[69] Finally, violence by armed groups and among ethnic Gumuz, Agew, Amhara and other communities in the Metekel zone of the Benishangul-Gumuz region, intensified causing residents to flee.[70]

    [68] Human Rights Watch, ‘Ethiopia Events 2020’, ibid.

    [70] ibid.

14. From the country information the Tribunal accepts that the situation in Ethiopia remains dangerous and volatile. However, from the available country information there appears no real chance that the applicant would be seriously harmed by the authorities as an ethnic Amhara upon his return to Ethiopia. The applicant’s evidence was that he was born and educated in Addis Ababa, Ethiopia and that his family continues to live in Addis Ababa. The Amhara’s make up approximately 47 per cent of the population of Addis Ababa. As such, if the applicant is returned to Ethiopia, the Tribunal finds that he would return to Addis Ababa and not to the Amhara region. In circumstances where the country information reports that the Amhara have joined forces with the Abiy government to resist the Tigrayan forces, the Tribunal finds that there is no real chance that the applicant will be seriously harmed by the authorities for reason of his ethnicity, if he is returned to Ethiopia.

15. In addition, the Tribunal accepts that there are inter-ethnic tensions in Ethiopia, however, this relates generally to the occupation of disputed land. As a result, the inter-ethnic tension as described in the country information appears to lead to random violence as tensions overflow. That is, such interactions do not involve conduct on a systematic and discriminatory basis, as required pursuant to s.5J(4) of the Act. As such, the Tribunal finds that there is no real chance the applicant will be seriously harmed if he is returned to Ethiopia because of being an ethnic Amhara based on communal or inter-ethnic tensions.

    Applicant’s actual opinion

16. The applicant claims that he will suffer serious harm if he is returned to Ethiopia because of his actual political opinion evidenced by his membership of the EPPF. However, the applicant’s evidence was that his involvement in the EPPF was only limited to financial and other support such as distributing leaflets and campaign material when possible.[71] The applicant’s evidence was that he became involved in or about 2009 through his association with his cousin [Mr G]. While the applicant does claim to have attended a EPPF meeting [in] 2011,[72] there is no evidence of him having continued his involvement with the organisation while he was in Ethiopia or in Australia. In such circumstances the Tribunal does not accept that the authorities would have been aware of his involvement with EPPR.  His evidence was that the government authorities could not have known of his involvement in the organisation until he had left the country.[73]

    [71] Applicants submissions dated 10 November 2011.

    [72] Applicants statutory declaration dated 2 May 2012, at [41]

    [73] Applicants submissions dated 10 November 2011

17. In any event, from the country information, the EPPR is currently aligned with the EPRDF.  The EPPF was established in 1998 as a rebel group opposed to the Tigrayan dominated EPRDF ruling party. In 2000 several other rebel groups[74] united under the EPPF. In 2006 it was designated a terrorist organisation but now works with the Fano movement, a pro-Amhara youth group in Ethiopia,[75] that currently supports the ruling party against the TDF. Therefore, in circumstances where the EPPR currently supports the current ruling party, in the event that the applicant remains a member of the EPPR, the Tribunal finds that there is no real chance the applicant will be seriously harmed on his return to Ethiopia by reason of his expressed political opinion.

Applicant’s imputed political opinion

[74]  These factions included the Ethiopian Unity Patriots Front, the Ethiopian United Democratic Patriotic Movement, the Ethiopian United Democratic Forces Front, and the Benishangul People's Liberation Movement

[75] Ethiopian Insight ‘Preaching unity but flying solo, Abiy's ambition may stall Ethiopia's transition’. Lefort, René 25 February 2020. type="1">

The applicant claims that he will be imputed with an anti-government political opinion by reason of his work as a missionary with [Mission 1] and his connection to [Organisation 1] and [Pastor C].  Based on the evidence provided by the applicant and the second applicant, the Tribunal accepts that he worked as a missionary with [Mission 1] providing pastoral and medical care to prisoners. The Tribunal accepts that the applicant knew [Pastor C] through his father and that he liaised with [Organisation 1] for the purposes of implementing his [program] within Ethiopian prisons.

The country information reports that prior to Abiy becoming Prime Minister in 2018 the Ethiopian government was extremely sensitive to any political opposition.[76] During the 2010 election campaign, opposition parties expressed their concern that the election would lead to violence and that their supporters would be arrested and imprisoned. It was reported that members of the ruling party, the  EPRDF, attacked opposition party leaders and vandalised their cars when they attempted to register candidates in Ethiopia.[77] According to Amnesty International, violations of freedom of expression, assembly and movement of opposition party members, misuse of state resources by the ruling party and a lack of independent media coverage were all features of the ruling party’s conduct of the election.[78]

[76] DFAT Report, p.23

[77] http//:wikileaks.org/plusd/cables/10ADDISABABA328_a.html.

[78] Amnesty International Report 2011.

1. Therefore, in an environment where the ruling party was suspicious of any opposition to its regime, the Tribunal accepts that in circumstances where the applicant was leading multiple overseas delegations into prisons to provide medical and pastoral care for political and other prisoners, it’s likely that the government would have been suspicious of the applicant’s motivations. As such, the Tribunal accepts the applicant’s and second applicant’s evidence and finds that the applicant was questioned at Bole Airport and detained in [prison] and interrogated about his involvement with Ginbot 7 as claimed.

2. However, since the time when the applicant was detained, Abiy was appointed as Prime Minister improving the human rights situation in Ethiopia significantly.[79] Abiy has lifted restrictions on freedom of expression, released political prisoners, removed terrorist designations of previously exiled opposition groups and initiated reform of legislation previously used to arrest and prosecute government critics.[80]  In addition, in June 2018, the federal parliament removed Ginbot 7 from its list of terrorist organisations. It has renounced its armed struggle[81] and its leaders have returned from exile to participate in the political process.[82] It is reported[83] that more than 10,000 political prisoners have been released since 2018. It is reported that political opposition parties now operate in Ethiopia with greater freedom. Anti-government protests are now more common in Ethiopia. For example, in January 2020 a large-scale anti-government protest occurred in Amhara State accusing the government of not doing enough to secure the release of 27 ethnic Amhara university students who had been abducted in Oromia State.[84] DFAT has assessed that tolerance for political dissent has increased considerably since April 2018. Opposition parties can now organise and operate more freely, and it is assessed that their members face a low risk of harassment, arrest, and detention by virtue of their political affiliations and views. It is assessed by DFAT that Ethiopians can openly criticise the ruling party.[85]

   [79] DFAT Report at p.9.

   [80] ibid.

   [81] ibid., p.28.

   [82] ibid., p.16.

   [83] ibid., p.28.

   [84] ibid., p.28.

   [85] ibid., p.29.

3. In any event, having been removed from the terrorist list and allowed to return to Ethiopia, Ginbot 7 was disbanded in or about May 2019 to form a new party known as EZEMA with six other organisations for the purposes of running at the 2021 general elections.[86] EZEMA is currently one of the major opposition parties in Ethiopia and has recently criticised the ruling party, without incident, for gaps in the election process during the June 2021 general election.[87] 

   [86] Africa News ‘Ethiopia's Ginbot 7 dissolves, transforms into new 'united' party’ dated 10 May 2019 by Abdur Rahman Alfa Shaban

   [87] Borkena ‘Ethiopian citizens for social justice party criticize the ruling party’ dated 27 May 2021 http//: borkena.com/2021/05/27/ethiopian-citizens-for-social-justice-party-criticize-the-ruling-party/.

100.As a result, based on the available country information, the Tribunal finds that there is no real chance the applicant will be seriously harmed if he is returned to Ethiopia by reason of his imputed political opinion as a result of his involvement with [Mission 1] and ‘[Organisation 1]’ as claimed.

Second applicant’s ethnicity

101.Based on the applicant’s evidence, the Tribunal accepts that she is ethnic Tigray. The applicant claims that because of her ethnicity there is a real chance that she and her children will be seriously harmed if she is returned to Ethiopia.

102.The Tribunal referred to the country information relied on above which reports that the conflict in Tigray has inflicted an enormous humanitarian and human rights toll on the people of the region. Thousands of people have died in the fighting with approximately 2 million people being displaced and more than 5 million relying on emergency food aid. [88] The military operations to quell the TPLF have been accompanied by ‘numerous civilian massacres, looting, and other human rights abuses amidst a worsening food situation’.[89]

[88] Reuters 'As Tigray war intensifies, Ethiopia parades new army recruits' dated 28 July 2021,

[89] The New Humanitarian ‘Aid neutrality under fire in Ethiopia’s widening conflict’ dated 22 July 2021, ww.thenewhumanitarian.org/news/2021/7/22/Ethiopian-government-accuses-aid-Tigray-rebels-disinformation.

103.A July 2021 report[90] published by researchers at Belgium’s Ghent University states that ‘[w]hile no numbers exist for the total amount of civilian casualties’ 2,805 deaths are ‘well-documented’ and an additional 9,642 civilian deaths have been documented from (social) media reports, NGO reports and press releases. The researchers also highlight 245 massacres during the post-November 2020 conflict,[91] some of which human rights groups such as Amnesty International have labelled ‘crimes against humanity’.[92] Sources also describe ‘a systematic campaign of ethnic cleansing in Tigray’ in which ‘fighters supporting the Abiy government […]’ were ‘deliberately and efficiently rendering Western Tigray ethnically homogeneous through the organized use of force and intimidation. […] Whole villages were severely damaged or completely erased’.[93]

[90] Sofie Annys et al, Ghent University ‘Tigray: Atlas of the humanitarian situation’, dated July 2021, pp.23,27, ibid.

[92] The New York Times ‘Ethiopia’s War Leads to Ethnic Cleansing in Tigray Region, U.S. Report Says’ dated 26 Feb 2021 updated 1 April 2021 by Declan Walsh, Ibid; National Public Radio, ‘9 Things To Know About The Unfolding Crisis In Ethiopia's Tigray Region’ dated 5 March 2021, 7 August 2021, the United Nations reported that fighting in Tigray had pushed 400,000 people into famine-like conditions,[94] while a report by Amnesty International dated 10 August 2021 refers to widespread subjection of women and girls in Tigray to sexual violence by members of the Ethiopian National Défense Force (ENDF), the Eritrean Défense Force (EDF), the Amhara Regional Police Special Force (ASF), and Fano, an Amhara militia group.[95]

[94] The Australian 'Ethiopia threatens to deploy “entire defensive capability” after rebel advances', dated 7 August 2021, Amnesty International ‘Ethiopia: Troops and militia rape, abduct women and girls in Tigray conflict – new report’,10 August 2021, ‘Ethiopia: “I don’t know if they realized I was a person”: Rape and sexual violence in Tigray, Ethiopia’, Amnesty International, 10 August 2021, 20210811161042.    

105.In addition to the conflict with Tigrayan forces, Human Rights Watch[96] reports that longstanding grievances and polarisation over historical and complex issues concerning land, politics, and identity, have led to violence among ethnic communities in Ethiopia. It reports that attacks against ethnic Tigrayan in Addis Ababa have increased after the fighting commenced in November 2020.[97] It reported that since July 2021 the authorities in Ethiopia have arbitrarily detained, forcibly disappeared, and committed other abuses against ethnic Tigrayans in Ethiopia’s capital, Addis Ababa.[98] Following the eight months of fighting in Ethiopia’s northern Tigray region, Tigrayan forces recaptured the regional capital, Mekelle, while government forces withdrew. Tigrayan forces then moved quickly into the neighbouring Afar and Amhara regions, causing large scale displacement. Since then, serious human rights violations by government security forces have occurred against ethnic Tigrayans in Addis Ababa.[99] It was reported in August 2021 that 300 Tigran’s were arrested in July suspected for supporting TPLF. Security forces have stopped and arrested Tigrayans on the streets and in cafés and other public places, and in their homes and workplaces, often during warrantless searches. A Tigrayan political activist and a Tigrayan aid worker, both based in Addis Ababa, were among those arrested in July, as were at least a dozen journalists and media workers who have reported on abuses against Tigrayans.[100]

[96] Human Rights Watch, ‘Ethiopia Events 2020’, Human Rights Watch ‘Ethiopia: Ethnic Tigrayans Forcibly Disappeared’ dated 18 August 2021 Reuters ‘Hundreds of Tigrayan Detained in Ethiopian Capital in recent weeks, witnesses say’ dated 15 July 2021 detained in ibid.

[99] ibid.

[100] ibid.

106.Finally, it is reported that as a part of the conflict ENDF troops aided by Eritrean soldiers have tortured, sexually assaulted, killed, and displaced Tigrayan civilians.[101] Troops and militias aligned with the Ethiopian government have subjected hundreds of women and girls to sexual violence in Ethiopia's war-torn Tigray region.[102]

[101] Reliefweb, ‘Women in Tigray Face Increased Risk of Sexual Exploitation and Abuse Amid Humanitarian Crisis’ dated 26 august 2021 Amnesty International Report 11 August 2021 based on the applicants evidence and the available country information, the Tribunal finds that there is a real chance that the second applicant will be seriously harmed by reason of her ethnicity if she returns to Ethiopia.

108.Therefore, having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal is satisfied that the second applicant is a person in respect of whom Australia has protection obligations under s.5J(1)(a) and s.5J(1)(b) of the Act and finds that the second applicant is a refugee pursuant to s.5H of the Act. As such, the Tribunal finds that the second applicant does satisfy the criterion set out in s.36(2)(a).

109.Accordingly, having found that applicant and second applicant are married and members of the same family unit, the Tribunal finds that the applicant is a non-citizen in Australia, who is a member of the family unit of the second applicant, who is also a non-citizen in Australia, in respect of whom the Tribunal is satisfied that Australia has protection obligations as a refugee.

CONCLUSION

110.For the reasons given above the Tribunal is satisfied that the second applicant is a person in respect of whom Australia has protection obligations. Therefore, the second applicant satisfies the criterion set out in s.36(2)(a) of the Act.

111.The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that the applicant is the husband of the second applicant and is a member of the same family unit as the second applicant for the purposes of s.36(2)(b)(i). As such, the fate of his application depends on the outcome of the second applicant’s application. It follows that the applicant will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) of the Act and the remaining criteria for the visa are met.

DECISION

112.The Tribunal remits the matter for reconsideration with the following directions:

(i)that the second named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the second named applicant.

Jason Pennell
Senior Member

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Citations

2007677 (Refugee) [2021] AATA 4467

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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W161/01A v MIMA [2002] FCA 285

AWL17 v Minister for Immigration and Border Protection [2018] FCA 570

W161/01A v MIMA [2002] FCA 285

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