2101519 (Refugee)

Case [2024] AATA 988

2101519 (Refugee) [2024] AATA 988 (29 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Justin Moyes, D’Ambra Murphy Lawyers

CASE NUMBER:  2101519

COUNTRY OF REFERENCE:                   Ethiopia

MEMBER:Jane Marquard

DATE:29 January 2024

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 1958 (Cth).

Statement made on 29 January 2024 at 5:54pm

CATCHWORDS
REFUGEE – protection visa – Ethiopia – Federal Circuit Court remittal – race – Tigrayan ethnicity – ethnic cleansing – peace agreement – ongoing targeting – political opinion – supporter of Tigray People’s Democratic Party (TPDM) – returnee asylum seeker who has participated in political activities in Australia – systematic and discriminatory conduct – internal relocation – state protection – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5LA, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
AGA16 v MIBP [2018] FCA 628
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Chan v MIEA (1989) 169 CLR 379
Guo Wei Rong and Pan Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
Ram v MIEA & Anor (1995) 57 FCR 565
SZEPZ v MIMA (2006) 159 FCR 291

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. The applicant has sought review of a decision made by a delegate of the Minister for Immigration and Border Protection on 14 February 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

    BACKGROUND TO THE REVIEW

  2. The applicant is a citizen of Ethiopia. He was born in Mekelle, Tigray.

  3. He first arrived in Australia [in] September 2015 on a Temporary Maritime Crew (Subclass 988) visa. He was reported by the ship master as a deserter on [date] September 2015 and his visa ceased to be effective on that day.

  4. He applied for the visa the subject of this review on 26 October 2015. He claimed to fear harm for reasons of his political opinion as a supporter of Tigray People’s Democratic Party (TPDM), as a ship deserter, a returnee asylum seeker and due to his Tigrayan ethnicity. The delegate of the Department of Home Affairs (the Department) refused to grant the visa on the basis that the delegate was not satisfied that there was a real chance of serious harm, or a real risk of significant harm based on the applicant’s profile.

  5. On 7 May 2020, this Tribunal, differently constituted, affirmed the delegate’s decision. The decision of the Tribunal differently constituted was remitted…

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Details
AGLC
2101519 (Refugee) [2024] AATA 988
Case
[2024] AATA 988
Decision Date

CaseChat Overview and Summary

The applicant, an Ethiopian citizen of Tigrayan ethnicity, sought review of a delegate's decision to refuse a protection visa. The delegate had not been satisfied that the applicant faced a real chance of serious harm. The Administrative Appeals Tribunal (AAT), differently constituted, had affirmed this decision, but that decision was subsequently remitted by the Federal Circuit Court due to a jurisdictional error. The error was the failure to consider the applicant's claim of fearing harm based on his Tigrayan ethnicity. The applicant later abandoned all claims except for this one.

The primary legal issue before the Tribunal was whether the applicant had established a well-founded fear of persecution for reasons of his ethnicity, specifically Tigrayan, such that Australia would have protection obligations towards him. This required the Tribunal to assess the current country situation in Ethiopia, particularly concerning Tigrayans, and determine if there was a real chance of the applicant suffering significant harm if returned. The Tribunal also had to consider the principles of state protection and internal relocation in the context of the applicant's ethnicity.

The Tribunal reasoned that despite a peace agreement being signed between the Ethiopian government and the Tigrayan People's Liberation Front in November 2022, the situation remained fragile. The Tribunal considered evidence indicating that systematic and discriminatory conduct against Tigrayans persisted, even after the peace agreement. It found that the applicant's ethnicity placed him within a group that had been and continued to be subject to targeted harm. The Tribunal concluded that the applicant had a well-founded fear of persecution based on his Tigrayan ethnicity, and that neither state protection nor internal relocation would be effective in preventing such harm.

The Tribunal set aside the delegate's decision and remitted the matter to the delegate with a direction that a protection visa be granted.

Orders

Orders of the court

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Background

Background to the litigation

The applicant has sought review of a decision made by a delegate of the Minister for Immigration and Border Protection on 14 February 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).BACKGROUND TO THE REVIEW The applicant is a citizen of Ethiopia. He was born in Mekelle, Tigray. He first arrived in Australia [in] September 2015 on a Temporary Maritime Crew (Subclass 988) visa. He was reported by the ship master as a deserter on [date] September 2015 and his visa ceased to be effective on that day. He applied for the visa the subject of this review on 26 October 2015. He claimed to fear harm for reasons of his political opinion as a supporter of Tigray People’s Democratic Party (TPDM), as a ship deserter, a returnee asylum seeker and due to his Tigrayan ethnicity. The delegate of the Department of Home Affairs (the Department) refused to grant the visa on the basis that the delegate was not satisfied that there was a real chance of serious harm, or a real risk of significant harm based on the applicant’s profile. On 7 May 2020, this Tribunal, differently constituted, affirmed the delegate’s decision. The decision of the Tribunal differently constituted was remitted by consent on orders of the Federal Circuit Court [in] February 2021. It was accepted that the Tribunal, differently constituted, committed a jurisdictional error by failing to consider a claim that was expressly made or otherwise arose squarely on the materials, being a claim to fear harm because of the applicant’s Tigrayan ethnicity. The matter is now before the Tribunal pursuant to an order of that Court. The applicant notified the Tribunal in a Statutory Declaration dated 2 October 2023 that he had abandoned his previous claims except for the claim in relation to his Tigrayan ethnicity. In submissions, there was reference made to political claims. By way of background to this matter, Ethiopia is home to over 80 ethnic groups and is made up of 11 federal states, organised along ethnic lines.[1] Historically there has been significant ethnic conflict. For almost three decades, the country was ruled by the Ethiopian People’s Revolutionary Democratic Front (EPRDF), but in 2018 Prime Minister Abiy took over, and it was widely anticipated he would resolve the country’s longstanding political and ethnic divisions.[2] However, civil war broke out in November 2020 in Tigray impacting neighbouring regions and resulting in serious human rights abuses and significant loss of life. In November 2022 a peace agreement was signed between the Tigrayan People’s Liberation Front (TPLF) and the government. At the time it was regarded as a fragile peace agreement, with some optimism expressed by commentators.[3] [1] UK Home Office, ‘Country Policy and Information Note: Oromos, the Oromo Liberation Front and the Oromo Liberation Army, Ethiopia, March 2022’, 22 March 2022.[2] UK Home Office, ‘Country Policy and Information Note: Oromos, the Oromo Liberation Front and the Oromo Liberation Army, Ethiopia, March 2022’, 22 March 2022.[3] Africa Confidential, ‘Ethiopia. Addis Ababa and Tigray sign an uneasy truce’, 03 November 2022; Crisis Group, 22 November 2022, < Bloomberg, 2 November 2022, <‘Ethiopia, Rebels Agree to New Cease-Fire After Two Years of War’>.

Evidence

Evidence Before The Court

It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510. CLAIMS AND EVIDENCE The Tribunal has taken into consideration evidence before the Department as referred to in this decision, as well as evidence before the Tribunal and independent country sources. This includes documents provided by the applicant set out in Attachment B. Where a direction is given to reconstitute the Tribunal, the Administrative Appeals Tribunal Act 1975 (Cth) requires the reconstituted Tribunal to continue the proceeding.[12] In completing a reconstituted review, the Tribunal may have regard to any record of the proceeding as previously constituted.[13] 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. In SZEPZ v MIMA (2006) 159 FCR 291, a Full Court of the Federal Court found that, where an RRT 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 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.[14] The Tribunal has considered the material reviewed by the Tribunal differently constituted.[12] Section 19D(4) of the Administrative Appeals Tribunal Act 1975 (Cth), inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015). [13] Section 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]. [14] MZXRE v MIAC (2009) 176 FCR 552 at [5] North and Rares JJ. The applicant appeared before the Tribunal on 23 October 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya and English languages by telephone. The applicant indicated that he understood the interpreter. The applicant was represented in relation to the review. His representative, Justin Moyes from D’Ambra Murphy Lawyers was present at the hearing. The evidence and material before the Tribunal is referred to where relevant in the findings. The findings incorporate reference to information that the Tribunal has found to be material to the determination of the issues in the case.[15]FINDINGS AND REASONS[15] The Tribunal notes that it is not required to make explicit reference to every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.Nationality

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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