2101519 (Refugee)

[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 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.

6. 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.

7. 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’>.

8. Human Rights Watch in its 2023 World Report stated:

   The two-year armed conflict in northern Ethiopia, which began in November 2020, continued to inflict a terrible toll on civilians. A truce was reached by the main warring parties in November. State security forces and armed groups committed serious abuses, in other regions, notably Oromia. Authorities sporadically cut internet and telecommunication services in conflict-affected areas, with internet and other forms of communications cut in Tigray since June 2021.Conflict and unrest in several regions, followed by drought also exacerbated one of the world’s largest humanitarian catastrophes. Over 20 million people required humanitarian assistance in 2022. Journalists, civil society organizations, and outspoken public figures in the country faced an increasingly hostile and restrictive reporting environment.[4]

   [4] Human Rights Watch, ‘World Report 2023 – Ethiopia’, < World Report 2023: Ethiopia | Human Rights Watch (hrw.org)>.

   SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW

9. The applicant has applied for a Permanent Protection (Class XA) (Subclass 866) visa.[5] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Act. If granted, a Permanent Protection (Class XA) (Subclass 866) visa permits a non-citizen to remain in Australia indefinitely.

   [5] See Migration Regulations 1994 (Cth), Sch 1, item 1401; Sch 2, cls 866.1 to 866.611.

10. Australia acceded to the 1951 Convention relating to the Status of Refugees[6] in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees[7] in 1973, thereby undertaking to apply their substantive provisions. For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[8]

    [6] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (‘Convention’).

    [7] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).

    [8] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’.

11. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Extracts of the relevant legislative provisions are set out in Attachment A to this decision.

12. An applicant must establish that they:

    ·     are a refugee (the refugee criterion);[9] or

    ·     qualify for complementary protection (the complementary protection criterion);[10] or

    ·     are a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (family member criterion).[11]

    [9] Section 36(2)(a) of the Act.

    [10] Section 36(2)(aa) of the Act.

    [11] Sections 36(2)(b) and (c) of the Act.

    Refugee criterion

13. Section 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

14. A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail him or herself of the protection of their country of nationality: s 5H(1)(a) of the Act.

15. Under s 5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.

16. A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J (2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J (3)).

17. The High Court has found that persecution may be directed against a person as an individual or as a member of a group: Chan v MIEA (1989) 169 CLR 379 at 429 (Mason CJ). 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: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (Brennan CJ).

18. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-5L of the Act, which are extracted in Attachment A to this decision.

    Complementary protection criterion

19. If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, 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) of the Act.

20. 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) of the Act, which are extracted in Attachment A to this decision.

    The applicant must satisfy the statutory elements

21. 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

22. 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.

23. 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.

24. 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.

25. 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

26. For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. Section 5J(1) refers to this country as a ‘receiving country’.

27. For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.

28. The applicant has a passport from Ethiopia issued in 2013. The Tribunal is satisfied on the basis of his passport and testimony that the applicant is a national of Ethiopia and that Ethiopia is the receiving country for the purposes of the legislation.

    Personal particulars and background

29. The Tribunal accepts the personal particulars provided by the applicant which have been provided consistently and have not been in dispute.

30. The applicant was born in Mekelle in the state of Tigray in [year]. He has Tigrayan ethnicity and speaks English, Amharic and Tigrinya. He is of Ethiopian Orthodox religion.

31. The applicant’s father was [an Occupation 1] who worked for the government. He passed away in 2003 after an illness.

32. His mother resides in Mekelle, although she came from an area about 40 km away. She is a housewife. He also has three sisters, [Ms A], [Ms B] and [Ms C], all residing in Mekelle. He has said that they are financially dependent on him. They live in the family home in Mekelle with the husband of one of the sisters. The house is owned by his mother. His father’s mother is still alive. She lives about 40 km away. His mother had one half-brother and one full brother who have both passed away.  His father had one brother, but he passed away when the applicant was young.

33. The applicant’s sisters are unemployed. His elder sister had a job for a short time. His sister’s husband worked before the war in a factory but there is ‘no work now as the factory was destroyed’.

34. The applicant finished high school in [year] and then attended university at [University 1] until 2008. He qualified with a Bachelor of [Discipline 1]. He looked for an [Occupation 2] job for around a year but was unsuccessful.

35. From 2010 to 2012 he worked at [workplace] at [location] in Addis Ababa. He worked as an [Occupation 3] for [Employer 1], after a year of training. He rented a house by himself.

36. From September 2012 to March 2013, he was at Bahir Dar in Amhara State, where he completed six months of training at [Employer 2]. He then worked for [Employer 2] until [date] March 2015 conducting workshops for new students. He was accommodated at the [workplace].

37. During the time the applicant lived in Addis Ababa and Bahir Dar he visited home every six months to a year.

38. From [date] March 2015 he worked as an [Occupation 4] on a ship. He moved to this job from his previous one because the salary was higher This ship arrived in Sydney, Australia in September 2015. He currently works as [an Occupation 5].

    Did the applicant support TPDM and did events in Ethiopia take place as claimed by the applicant?

    Claims about TPDM

39. In the application for the visa dated 26 October 2015, the applicant explained why he left the country:

    I have felt unsafe in my country for a number of years, since I started supporting the TPDM party in 2013 when I became a member. They are an exiled party that largely operates out of Eritrea for fear of persecution in Ethiopia by the government. I left my country in March 2015 for employment purposes. However, since I departed my country, the political situation for TPDM supporters, such as myself, has become much more dangerous. The former leader of the TPDM, when it was operating out of Eritrea, has defected back to Ethiopia. In doing so, it has been reported in the news, and I have also been told by friends, that the leader has leaked information and the personal details of those who support the TPDM in any manner. I am fearful that my details have been leaked to the government.

40. He claimed, in his application, that he was only able to support TPDM in secret and left before he experienced any harm.

41. In a Statutory Declaration dated 2 February 2017 (2017 Statutory Declaration), the applicant provided more detail. He said that he joined TPDM on [date] November 2013; he was introduced by a college friend called [Mr D]. They were doing community service together from university at the time, in 2006/07, preparing high school students for university. In 2012 he met up with [Mr D] again while he was a maritime student. They were friends for a year and then [Mr D] told him he was a member of TPDM. The applicant was unhappy with the Ethiopian government and felt that Tigray people were suffering. He believed that TPDM was working for human rights and peace, but knew that it was dangerous to be involved, so he just made monthly payments, about USD3 from November 2013 and USD10 from March 2015. He paid in cash. None of his friends or family knew.

42. He said in the 2017 Statutory Declaration that the TPDM are committed to establishing peace and stability in the region. The organisation operated out of Eritrea as it was unsafe in Ethiopia, and all members in Ethiopia kept their membership a secret. He said that the only person who knew of his membership was [Mr D].

43. He said in the 2017 Statutory Declaration that on 7 September 2016 the TPDM merged with three other parties that opposed the government. The leader of TPDM, Mola Asghedom, became deputy of the new party, was unhappy with the merger and left the party. He led a group of TPDM members to return to Ethiopia. The applicant said that he believed that reports about Mola Asghedom providing information to the Ethiopian government was propaganda. He said that the government controls the media.

44. The applicant’s ship, ‘[Vessel 1]’ departed from [Country 1] on [date] September 2015 for Australia and arrived on [date] September 2015. He said in the 2017 Statutory Declaration that on arrival he heard that Mola Asghedom had left Eritrea and at the border said he had been working for the Ethiopian government. The applicant said that he did not seek asylum in any other country prior to arrival in Australia, as he did not know of this before. He found out in a telephone call from a friend, [Mr E]. He said that he believed that the government knew that he was a TPDM member, and this would put him at risk. He then made the decision to leave the ship. He said that he had tried to contact [Mr D], but could not do so, and [Mr D] had not visited his sister [Ms A] to collect his money. The applicant said that he was concerned for [Mr D]’s safety. Another friend had said that he did not know where he was. This friend [had] spoken to [Mr D]’s mother who said that some men had visited looking for [Mr D].

    Findings of the Tribunal differently constituted

1. The Tribunal differently constituted found the applicant’s evidence to be ‘vague, evasive, inconsistent and unconvincing’. The Tribunal differently constituted found that he made new claims throughout the hearing and the Tribunal formed the view that he was manufacturing evidence as he was giving it. The Tribunal differently constituted had concerns about the following aspects of his evidence:

   ·He was unable to explain how he became a member of TPDM and provided no evidence of it.

   ·He was unable to explain how the Ethiopian government would be aware of his membership of TPDM. He added a new claim at the hearing that the authorities had been to his family home and intimidated his family.

   ·He gave new evidence in a Statement of Claims to the Tribunal differently constituted that he became involved because his uncle had been tortured and killed by TPLF in 1997. Earlier he had said that he became involved because he was unhappy with the treatment of Tigrayan people and because of unemployment. The Tribunal differently constituted noted that he had legal representation when he made his claims and made no mention of his uncle’s death.

   ·In the new Statement of Claims provided to the Tribunal differently constituted, the applicant said that he attended secret meetings with [Mr D] two to three times a week and this progressed to a role in nominating new members, distributing pamphlets, printing materials, getting information from other sources and actively recruiting young people. During the hearing he added that he had participated in a large meeting and passed on information to TPDM. All this evidence was different to his evidence in his visa application when he said that he was only able to support TPDM in secret by contributing monthly payments. The Tribunal differently constituted did not accept his explanations for provision of this late evidence, that his visa application had been prepared for him, that he had tried to provide a document to the delegate of the Department and that he had no interpreter before the Department.

   ·The Tribunal (differently constituted) was unable to accept new evidence provided that [in] February 2019, three undercover security officers attended his parents’ house with pistols, questioned his mother about his whereabouts, searched the house for weapons and took his laptop, two filing folders and printed materials. He claimed that his mother and sister [Ms A] were taken to the police station, and his mother was released on bail after three days. He claimed that his sister was interrogated, tortured and raped and detained for 25 days. His mother’s job was then terminated. The Tribunal differently constituted did not accept this evidence. Firstly, the Tribunal did not accept that if the authorities became aware of his name from Mola Asghedom in 2015, that they would wait until 2019 to investigate him. Secondly the Tribunal did not accept he was involved with TPDM other than for financial contribution. Thirdly, he had claimed that the authorities were aware of his desertion and therefore there was no reason to try and locate him in Ethiopia. Fourthly, the Tribunal did not accept he had a high profile. The Tribunal formerly constituted also had concerns as to the authenticity of two documents provided. The first document was purportedly from ‘Assistance Sergeant, Coordinator of Investigator Unit’ dated [in] March 2019. The Tribunal differently constituted did not accept this letter would end with the words ‘with greetings’ and did not indicate that his sister was charged with an offence or released on bail. The second document was purportedly a letter from the applicant’s sister’s employer dated 18 February 2019. This letter stated that the applicant’s sister was not at work from [February] 2019 to [March] 2019. However, the letter was dated 18 February 2019. The applicant was asked to comment on the authenticity of the documents and stated that he could not prove they are ‘real or not real’ from Australia.

2. For these reasons, the Tribunal differently constituted did not accept that the applicant was a supporter or member of TPDM or that he had any desire to become a member.

   Evidence to this Tribunal on the applicant’s political activities with TPDM

3. At the Tribunal hearing, the Tribunal asked the applicant if he still claimed that he was a member of TPDM as he stated to the Tribunal in submissions that his claims were based on his Tigrayan ethnicity and other claims were abandoned. He said that TPDM does not exist anymore, but he was a member of TPDM.

4. He told the Tribunal that TPDM advocated for his community. The main reason he got involved in 2013 was related to the Eritrean People’s Liberation Front (the EPLF) and ‘the Eritrean problem’. He said that the hatred was inserted by the EPLF and not by the people themselves. He said that ‘the party and government caused the problems’. He said it was similar with other tribes. He became involved because of the government and party at the time as people did not benefit from their policies. He said other people thought Tigray was prospering, but it was not correct. TPDM thought that the war might come, and the people had no choice. There was a lot of suffering of the people and for this reason he joined TPDM as Tigrayan people had no freedom of expression.

5. At the Tribunal hearing the applicant was asked about the new evidence he had provided to the Tribunal differently constituted that on [date] February 2019, three undercover security officers attended his parents’ house with pistols, questioned his mother about his whereabouts, searched the house for weapons and took his laptop, two filing folders and printed materials. The Tribunal also asked him about the new evidence he had provided to the Tribunal differently constituted that his mother and sister [Ms A] were taken to the police station, his mother released on bail after three days and her job terminated, and his sister interrogated, tortured, raped and detained for 25 days.

6. When queried about this new evidence to the Tribunal differently constituted, the applicant responded to this Tribunal that before the war the authorities did go to his family home and intimidated them as he had claimed. At the time, Eritrea sent TPDM to Tigray and the regime regarded TPDM suspiciously.  The Ethiopian government and Eritrea were getting ready to attack and the Tigrayan regime did not like TPDM being back in Tigray. He told the Tribunal that the situation is different now and his family ‘does not have a TPDM problem at the moment’.

7. As referred to earlier, the Tribunal formerly constituted had concerns as to the authenticity of two documents provided. The first document was purportedly from ‘Assistance Sergeant, Coordinator of Investigator Unit’ dated [in] March 2019. The Tribunal differently constituted did not accept this letter would end with the words ‘with greetings’ and did not indicate that his sister was charged with an offence or released on bail. The second document was purportedly a letter from the applicant’s sister’s employer dated 18 February 2019. This letter stated that the applicant’s sister was not at work from [February] 2019 to [March] 2019. However, the letter was dated 18 February 2019. The applicant was asked to comment on the authenticity of these documents by the Tribunal differently constituted and stated that he could not prove they are ‘real or not real’ from Australia. Asked by this Tribunal about the authenticity of the documents, he said that the documents provided by him may have ‘had an issue due to translation’ and the ‘conversion from the Ethiopian calendar’.

8. In the new Statement of Claims provided to the Tribunal differently constituted the applicant said that he attended secret meetings with [Mr D] two to three times a week and this progressed to a role in nominating new members, distributing pamphlets, printing materials, getting information from other sources and actively recruiting young people. During the hearing he added that he had participated in a large meeting and passed on information to TPDM.

9. He was asked by this Tribunal about these late claims which had not been made in his application. He said that at the first interview there was no interpreter at the Department, and the interview was only 30 minutes long. He was asked why in his initial Statutory Declaration provided as part of his application that he said that his only involvement with TPDM was payment of money, but later he claimed that he attended meetings and was involved in distribution and recruitment. He responded to the Tribunal that the Statutory Declaration was prepared by ‘volunteer lawyers’ and was not well explained.

10. This Tribunal put to the applicant at hearing that significant details of his case, such as the fact that his uncle had been tortured and killed by TPLF in 1997, his involvement in meetings, distribution and recruitment for TPDM, and the attacks and detention on his sister, were not included in his application. The Tribunal put to him that the fact that he added these details later suggests that he had embellished his claims to make them stronger. He responded that his first application was not detailed, and this was a ‘mistake’ on his side.

11. This Tribunal also asked the applicant why the Tribunal previously constituted concluded on the basis of his evidence that he did not know much about TPDM and did not have an identification card. He said that he does not know why the Tribunal previously constituted found that he did not know much about TPDM. He said that he did not have documents because he did not think to bring anything and was not able to contact anyone who was a member.  

    Findings of this Tribunal on the applicant’s involvement with TPDM

12. The Tribunal is satisfied that the applicant has a strong and passionate political opinion in support of democracy in Ethiopia and Tigrayan rights. He was able to articulate his views in some detail at the Tribunal hearing and spoke with conviction about the suffering of his family members and other members of the Tigrayan community in the last few years in Tigray. The Tribunal also accepts that the applicant has been involved with the Tigrayan community in Australia and has participated in protests against the Ethiopian authorities. This is discussed later in these findings.

13. The Tribunal accepts therefore, on the basis of his political convictions, that the applicant was a member of TPDM as claimed in his application and that he provided monetary support to them. The TPDM was an armed group committed to democracy and good governance in Ethiopia, and which prior to 2019 opposed the TPLF, which was a dominant political force in the coalition dominating Ethiopia prior to 2019.[16] The applicant’s explanations about TPDM do accord with descriptions of TPDM in independent sources.

    [16] Global Conflict Tracker, ‘Conflict in Ethiopia’, 19 December 2023, <Conflict in Ethiopia | Global Conflict Tracker (cfr.org)>.

14. The Tribunal is not satisfied that the applicant had significant involvement with TPDM such as recruitment, involvement in meetings and distribution given his different earlier evidence to the Department that his only involvement was financial. The Tribunal is of the view that he would have provided information about significant participation, had it been true, at an earlier stage, given the significance to his claims. The Tribunal does not accept that the omissions in evidence were the result of interpretation or a quick interview, given that the applicant provided a Statutory Declaration to this effect. Similarly, the Tribunal is not satisfied that [in] February 2019, three undercover security officers attended his parents’ house with pistols, questioned his mother about his whereabouts, searched the house for weapons and took his laptop, two filing folders and printed materials. The Tribunal is not satisfied that his mother and sister [Ms A] were taken to the police station or that his sister was interrogated, tortured and raped and detained for 25 days. The Tribunal is of the view that these details would have been included in his evidence to the Department had they taken place, given that they were material to his claims.

    The refugee criteria − does the applicant have a well-founded fear of persecution for one of the reasons set out in the legislation?

15. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country.[17]

    [17] Section 5H(1) of the Act.

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

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

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

    ·     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned above; and

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

    Is there a real chance of serious harm if the applicant were to return to Ethiopia?

18. The applicant told the Tribunal that he fears the ‘Ethiopian government first and also the Eritrean and Amhara troops’ for reasons of his Tigrayan ethnicity.

19. In his earlier claims to the Department and to the Tribunal previously constituted he also made claims of fear of harm based on his status as a maritime deserter as he claimed that his desertion from the ship would have been reported to the Ethiopian Maritime Institute who would have been under a duty to report it to the authorities. He also made claims of fear of harm on the basis of his political opinion as a member of the EPDM.

20. The Tribunal formerly constituted was not satisfied that there was a real chance of serious harm for reasons of his desertion from the ship or for reasons of his political opinion. The Tribunal was not satisfied that the applicant was a supporter or member of TPDM.

21. In a Statutory Declaration dated 2 October 2023 the applicant said that he had abandoned his claims except for the claim that he feared harm for reasons of his Tigrayan ethnicity. He was asked at the Tribunal hearing if he still fears harm as a ship deserter. He said that ‘so far’ he has ‘not found any solid arguments’ so does not have a fear of returning for this reason. He said that he has not heard that people who go back for this reason have any problem. At this Tribunal hearing the applicant was asked if he still fears harm for reasons of being involved with TPDM. He said that TPDM is no longer in existence therefore he has nothing to fear in relation to this.

22. The Tribunal has considered whether there is a real chance of serious harm based on the applicant’s Tigrayan ethnicity. The Tribunal has also considered whether there is a real chance of serious harm based on political opinion, considering the applicant’s prior involvement with TPDM and recent political activity in Australia (discussed later in this decision), notwithstanding that he said he had abandoned these claims. This is because, although he said he abandoned other claims, he did draw attention to his political activity and fears of returning for this reason.

23. For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Act, provides an objective element to that concept,[18] − not only must a person fear persecution, there must also be a prospect of that fear being realised.

    [18] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, <>

    The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J of the Act, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[19]

    DFAT Report

    [19] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p 171.

24. The Tribunal is required to take into consideration the DFAT Report on Ethiopia. This report was written in 2020 so is out of date in relation to events in Tigray. The report does provide some background information on Tigrayans:

    Ethnic Tigrayans constitute 6.1 per cent of the population. They reside predominantly in Tigray State, the northernmost part of Ethiopia (neighbouring Eritrea, where Tigrayans constitute a majority)..The largest concentration of Ethiopian Tigrayans outside of Tigray State at the time of the 2007 census was in Addis Ababa (nearly 170,000). Most Tigrayans are Orthodox Christians and speak Tigrinya.

    Summary of findings on real chance

25. The Tribunal is satisfied that there is a real chance of serious harm if the applicant were to return to Tigray in the reasonably foreseeable future, for reasons of his Tigrayan ethnicity and/or political opinion. The reasons for this are set out below.

    Ethnic cleansing and Tigrayan war

26. Firstly, there has been a significant change of circumstances in the country since the decision of the Tribunal previously constituted, with Tigrayans targeted for ethnic cleansing in the war between 2020 and 2022.

27. Although the applicant did not suffer harm as a Tigrayan while living in Ethiopia, this was because, as he told the Tribunal at hearing, there was no conflict in the area of Tigray when he grew up. He said that then there was no discrimination in Mekelle against Tigrayans as they were a majority. He also agreed that he did not suffer any problems in Addis Ababa or Bahir Dar as a Tigrayan person at that time.

28. In recent years, however, Tigrayans have been ethnically targeted.

29. The Tribunal accepts the applicant’s new evidence about his family and community, as the Tribunal found the applicant to be a credible witness in the evidence he presented at the Tribunal hearing, despite the fact that the Tribunal has not accepted aspects of his evidence about his involvement with TPDM or harm his family suffered as a result. The Tribunal notes that applicants for asylum sometimes do surrender to the temptation to embroider their stories which may lead to scepticism about their credibility generally, but it is not always the case that their entire evidence is not credible. In Guo Wei Rong and Pan Run JuanvMinister for Immigration and Ethnic Affairs and McIllhatton,[20] Foster J stated that ‘care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted’. Specific lies or exaggeration do not indicate that the applicant’s entire evidence is untrustworthy. Professor Hathaway refers to decisions of the Immigration Appeal Board in Canada, and states:

    Even where the statement is material, and is not believed, a person may, nonetheless, be a refugee.  “Lies do not prove the converse.” Where a claimant is lying, and the lie is material to his case, the [determination authority] must, nonetheless, look at all of the evidence and arrive at a conclusion on the entire case. Indeed, an earlier lie which is openly admitted may, in some circumstances, be a factor to consider in support of credibility.”[21]

    [20](1996) 40 ALD 445.

    [21] J Hathaway, The Law of Refugee Status, Butterworths, Canada, 1991, p.86.

1. A similar conclusion was reached by Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191]:

   the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. While parts of the evidence may be embellished, other aspects of the evidence may be credible.

2. The Tribunal has also taken into consideration, in assessing the applicant’s credibility, that the applicant has depression and anxiety as reported in a letter from [Dr G], [named] Medical Centre, dated 29 September 2023.  The Tribunal notes that research indicates that depression and anxiety may implicate the manner in which evidence is presented.[22]

   [22] Guideline on Vulnerable Persons, AAT, available on the AAT Website, >

   For these reasons the Tribunal accepts the evidence of the applicant in his Statutory Declaration dated 2 October 2023 about the difficulties faced by the applicant’s family in recent years in Tigray and the general situation in Tigray. His evidence also accords with independent sources about ethnic targeting in the region.

3. He confirmed that his home area is Tigray, where since 2020 there has been a war between Tigrayans and the Eritrean/Ethiopian authorities and Amhara forces, when about 600,000 people were killed. He said that there were blockades, killings, bombings, rapes, detention, torture, lootings, a lack of medicine and war crimes. He noted that there had been a peace agreement in November 2022.

4. He said that during the war he lost contact with his mother and sisters because communications were cut by the government. He said that on one occasion his mother was able to send him a voice message through Red Cross. He said that it was a stressful time not knowing where his family was. The government was bombing their town of Mekelle, and he checked the news every day.

5. He said that after the war he regained contact with his family, who remain in Tigray. His mother lives with his three sisters and [Ms A]’s husband. Her husband is unemployed as his factory was destroyed and looted. The applicant speaks to his family every week. His grandmother passed away during the war from diabetes as ‘there was no medicine’. Some of his distant relatives in [location] were killed during the war, fighting with TPLF. A friend he used to work with on the ship was killed by the Eritrean military and he lost a lot of friends.

6. He said that he is financially supporting his family, including his grandmother on his father’s side. He sends them between AUD1,000 to AUD1,500 every month. He said that the humanitarian situation in Tigray is dire and there is no work. He said that his Australian savings would last for a year and a half, and he could not find a job as [an Occupation 2]. He said that they could not subsist. He said that if he lived in Addis Ababa his savings might only last eight or nine months. His family is also concerned that they could not survive without the applicant’s support. His mother is diabetic and has difficulty walking, and the medicine is expensive.

7. The Tribunal accepts that there has been ethnic cleansing in Tigray in the last few years. The applicant’s evidence is correlated by independent information. In 2019 TPDM merged with the TPLF, which was governing Tigray and which had dominated the EPRDF coalition for three decades. Commentary suggests that TPDM had previously had issues with the TPLF over good governance and democracy.[23] The war in northern parts of Tigray broke out in November 2020 after the Ethiopian government accused Tigrayan fighters of attacking the federal army. It then spread to neighbouring Amhara and Afar.[24] Between 2020 and 2022, Ethiopia, now under the control of the Oromian Prime Minister Abiy, fought the war with militants from Tigray, then under the control of the TPLF, a war which was notorious for claims of significant human rights abuses and claims of ethnic cleansing against Tigrayans.[25] Abiy first ordered Ethiopian National Defense Force troops to attack Tigray in 2020 and they pushed further into Tigray in operations following. Although Abiy first framed the offensive in Tigray as a targeted operation against TPLF leadership, a communications blackout ‘shuttered coverage of ground conditions, but media and UN officials began sounding the alarm about improper treatment of civilians, especially ethnic Tigrayans, by December 2020’.[26] In 2021 the United States characterised the war as ethnic cleansing against Tigrayans with some NGOs raising questions of genocide. It is estimated there were about 600,000 deaths[27], about half of which were civilians, although Tigray was blockaded for long periods such that it was difficult to independently analyse what took place including how many people died.[28]

   [23] Borkena, 9 December 2019, < Tigray People's Democratic Movement announces merger with TPLF (borkena.com)>.

   [24] Financial Times, ‘War in Tigray may have killed 600 000, peace mediator says’, 15 January 2023.

   [25] Global Conflict Tracker, ‘Conflict in Ethiopia’, 19 December 2023, <Conflict in Ethiopia | Global Conflict Tracker (cfr.org)>.

   [26] Global Conflict Tracker, ‘Conflict in Ethiopia’, 19 December 2023, <Conflict in Ethiopia | Global Conflict Tracker (cfr.org)>.

   [27] Global Conflict Tracker, ‘Conflict in Ethiopia’, 19 December 2023, <Conflict in Ethiopia | Global Conflict Tracker (cfr.org)>.

   [28] Financial Times, ‘War in Tigray may have killed 600 000, peace mediator says’, 15 January 2023.

8. The United States Department of State Report for 2022 stated of the Ethiopian government generally:

   Significant human rights issues included credible reports of: unlawful or arbitrary killings, including extrajudicial killings by the government; enforced disappearance by the government; torture and other cruel, inhuman, or degrading treatment or punishment by the government; harsh and life-threatening prison conditions; arbitrary arrest and detention; political prisoners or detainees; serious abuses in a conflict, including unlawful or widespread civilian harm; unlawful recruitment or use of child soldiers by government forces and militia groups.[29]

   [29] United States Department of State, ‘Country Report on Human Rights Practices Ethiopia 2022’, 2023.

9. Regarding the conflict in Tigray, the report confirmed that there were unlawful killings, with thousands of Tigrayans remaining in detention based on ethnicity:

   There were numerous reports that the government and its representatives committed arbitrary and unlawful killings. Amnesty International, Human Rights Watch (HRW), the UN International Commission of Human Rights Experts on Ethiopia (ICHREE), and the Ethiopian Human Rights Commission (EHRC) reported numerous cases of unlawful or extrajudicial killings in the context of the conflict in Tigray and the northern part of the country.. According to several reports, thousands of ethnic Tigrayans remained detained throughout the year in unknown locations in Western Tigray and elsewhere.. HRW reported that security forces ethnically profiled and arbitrarily arrested Tigrayans throughout the year.  According to a Reuters report, approximately 9,000 Tigrayans were still in detention as of June 17.  In addition, on June 16, HRW reported that since January, Amhara security forces had held “hundreds, possibly thousands” of Tigrayans in life-threatening conditions.  Following the resumption of hostilities in August, police reportedly engaged in widespread, ethnically based detentions of Tigrayans.  The Addis Ababa police commissioner maintained that arrested Tigrayans were under investigation for alleged support for the Tigray People’s Liberation Front (TPLF).  In November 2021 the government reportedly commenced mass detentions of Tigrayans in Addis Ababa and throughout the country (see section 6) because of their ethnic origin.  In some cases, detainees reportedly were kept in camps for an undefined period.  In July the EHRC and other human rights groups raised concerns about the condition of more than 9,000 Tigrayan IDPs held for months in Semera and Agatina camps in Agatina following the November 2021 state of emergency.  On August 17, the government started returning detainees to their villages in Afar Region.  As of October, Afar regional authorities had released IDPs from the Semera camp and closed the camp and released nearly all IDPs from the Agatina camp.  Meanwhile, as of October, security officials reportedly were holding 2,800 Tigrayan IDPs in a police training center in Awash Sebat in Afar Region.[30]

   [30] United States Department of State, ‘Country Report on Human Rights Practices Ethiopia 2022’, 2023.

10. Tigrayan forces retook Mekelle in June 2021 and a month later TPLF boycotted the national election, won by Abiy. Fighting continued until the negotiated settlement in November 2022 in which Tigrayan troops were disarmed and control of Tigray was handed back to the Ethiopian government.[31]

    [31] Global Conflict Tracker, ‘Conflict in Ethiopia’, 19 December 2023, <Conflict in Ethiopia | Global Conflict Tracker (cfr.org)>.

11. The TPLF signed a peace agreement in Pretoria in November 2022 with the Ethiopian government. Fighting ceased, Mekelle was connected to the national power grid and food and medical aid gradually arrived.[32]

    Ongoing targeting of Tigrayans

    [32] Africa News, ‘Ethiopia, despite peace agreement, fear looting and shortages remain the norm in Tigray’, 23 December 2022.

12. Secondly, there is evidence of ongoing targeting of Tigrayans in the region despite the peace agreement in November 2022.

13. The applicant gave evidence that his family is concerned that the war will return, as the peace agreement has not been fully followed. He said that there are troops in Amhara and the Eritrean border, and Eritrean jet fighters fly over Mekelle. The applicant said that he fears returning to Mekelle as he fears that the peace agreement will not hold. He said that Tigrayans are struggling to survive and are not happy with the government. He said that there has been no justice for the crimes that the Ethiopian government committed. He said that people are dying from starvation and lack of health care, and this is causing ferment, which is likely to increase. He said that Tigrayans will not put up with it and there will be protests and fighting. He said that the government has suspended food aid and the government and miliary and Eritrean military have been stealing the food.

14. At the Tribunal hearing, he reiterated that in the last few years, during the war between the Tigrayans and Eritreans, and Amhara, more than 600,000 people have died and ‘everything has fallen apart’. He said that people are relying on aid and are starving in Tigray. His fear is that even though there is a peace agreement, there are still many risks. He said that as part of the peace agreement, part of Eritrea and Amhara would withdraw from Tigray, but people are starving. Because of this he is fearful of another war.

15. Independent country information indicates that notwithstanding the November 2022 peace agreement, Eritrean forces remain in Tigray and have continued to carry out killings, arbitrary detention and arrests of Tigrayans because of their ethnicity. The sources accord with evidence from the applicant about reports his family have provided about the situation in Tigray. The applicant has given evidence that his family, whom he speaks to frequently, live in constant fear of being targeted and of war breaking out again. He said that the current situation is scary for them − with Eritrean troops in Western Tigray and also the Eritrea and Amhara border.

16. According to an article in Africa News in December 2022, residents and aid groups in Mekelle said at the end of 2022 that looting and persecution of civilians continued despite the peace agreement, and they blamed the army of Eritrea, which borders Tigray on the north and fighters from the Amhara region on the southern border. Both of these groups supported the Ethiopian government during the war but did not attend the Pretoria talks or sign the agreement. One aid worker claimed that the Ethiopian government was not doing anything about it. The article reported that Eritreans and Amhara have a historical animosity towards Tigray.[33]

    [33] Africa News, ‘Ethiopia, despite peace agreement, fear looting and shortages remain the norm in Tigray’, 23 December 2022.

17. An article by the Association for Catholic Information in Africa in January 2023 stated that the humanitarian situation in Tigray had not improved since the peace agreement. The Catholic Bishop of Adigrat reported that forces who were instructed to leave the region had refused to bide by terms of the agreement. He said that the blockade of services had continued. He said that they continued to be ‘besieged by foreign forces’. The article also reported that a group of Tigray civil society organisations had claimed that Eritrean forces were still killing civilians.[34]

    [34] Association for Catholic Information in Africa, ‘Ethiopia’s Tigray region still ‘hell on earth’ despite peace agreement: Catholic Bishop’, 20 January 2023.

18. CNN reported in May 2023 that Eritrean troops were responsible for looting, destroying infrastructure, denying humanitarian access and rape.[35] Tigrai Television reported in May 2023 that in Mekelle there had also been arbitrary killings, according to some sources, simply based on ethnicity.[36] Al Jazeera also reported on protestors in Tigray demanding the withdrawal of Eritrean troops in May 2023. The article reported that residents said that Ethiopia’s allies, Eritrean troops and soldiers from Amhara were yet to leave.[37] An article in Ahram Online in May 2023 also referred to demonstrators in several cities including Mekelle demanding forces leave. The article suggested that Amhara forces were still in control in Western Tigray, a disputed region claimed by both Amhara and Tigray.[38]

    [35] CNN, ‘Eritrean forces stop UN mission in Tigray, Ethiopia, aid workers tell CNN’, 26 May 2023.

    [36] Tigrai Television, ‘20 Tigrayans killed by Amhara forces only in the past ten days, says Tigrai opposition Salsay Weyane’, 29 May 2023.

    [37] Al Jazeera, ‘Protestors in Ethiopia’s Tigray demand Eritrean troops withdraw’, 23 May 2023.

    [38] Ahram Online, ‘Ethiopia’s Tigray war displaced stage demonstrations’, 23 May 2023.

19. ABC News reported in June 2023 of those forcibly expelled from Tigray, many were too afraid to return due to intimidation from officials.[39]

    [39] ABC News, ‘Ethnic Cleansing continues in Tigray, despite truce agreement’, 6 June 2023.

20. Human Rights Watch reported in June 2023 that local authorities and Amhara forces in the Western Tigray Zone had continued an ethnic cleansing campaign against Tigrayans since the November 2022 agreement.[40] Human Rights Watch referred to serious human rights abuses and said that the area was not safe for voluntary, safe and dignified return of those displaced during the war. They said that Tigrayans were being expelled forcibly as part of the ethnic cleansing campaign. Two officials, Col Demekwe Zewdu and Belay Ayalew, continued to be involved in arbitrary detention, torture, and forced deportations of Tigrayans.

    [40] Human Rights Watch, ‘Ethiopia Ethnic Cleansing Persists under Tigray Truce’, 1 June 2023.

21. Human Rights Watch noted that they had interviewed 35 people by telephone and were told that local authorities and Amhara forces had held over 1,000 people in arbitrary detention on the basis of Tigrayan identity before forcibly expelling them. Many died due to starvation or lack of medication. According to Human Rights Watch the total amount of people expelled remained unknown.[41]

    [41] Human Rights Watch, ‘Ethiopia Ethnic Cleansing Persists under Tigray Truce’, 1 June 2023.

22. In October 2023 the UN Special Adviser on the Prevention of Genocide sounded an alarm about the heightened risk of genocide and related atrocity crimes in Tigray.[42] She referred to violations against Tigrayan civilians being frequently accompanied by insulting or derogatory language, often through pejorative terms including ‘junta’, ‘woyane’ and ‘agame’ during attacks. She said that perpetrators were targeting Tigrayans based on ethnicity, describing Tigrayans as ‘cancer’ and indicating a desire to kill men and children and destroy women’s reproductive capacities. She said that the risk of genocide was ‘present and growing’. She said that the peace agreement had largely failed as violent confrontations continued.[43]

    [42] UN News, ‘Global Perspective Human Rights’, 10 October 2023.

    [43] UN News, ‘Global Perspective Human Rights’, 10 October 2023.

23. Freedom House in its 2023 report states that ‘there remains a high risk of further mass atrocities being committed’ in Tigray.[44]

    [44] Freedom House, ‘Freedom in the World- Ethiopia’, 2023.

24. DFAT in its travel advice, notes that the situation in Tigray is ‘uncertain’, recommending ‘do not travel’[45] and Canada suggests it is ‘volatile’.[46]

    [45] DFAT,< Government of Canada, ‘Ethiopia travel advice’, 2023.

100.   There is also evidence that government officials stole food aid aimed at Tigrayans in 2023, contributing to withholding of food aid, and the famine that is expected in 2024 to impact Tigrayans significantly.[47]

[47] BBC News, January 2024, <Ethiopia starvation: Fear of famine in Tigray grows - BBC News>.

Human Rights Watch September 2023

101.   Human Rights Watch in its 2023 report have stated that since the November 2022 agreement, Eritrean forces in Tigray have carried out killings, rape, and other forms of sexual violence, and looting in areas under their control, while Amhara security forces have continued to carry out an ethnic cleansing campaign against Tigrayans in Western Tigray. The report says that the human rights and humanitarian situation in Ethiopia ‘remain dire’.[48]

[48] Human Rights Watch, 4 September 2023, <Q&A: Justice for Serious International Crimes Committed in Ethiopia | Human Rights Watch (hrw.org)>.

102.   The report goes on to state:

Since the signing of the November agreement, human rights abuses, including killings and sexual violence have continued in Tigray. Eritrean forces remain in parts of the region and have obstructed humanitarian assistance and are reported to have kidnapped people and pillaged property in areas they occupy. In Western Tigray Zone, authorities and Amhara regional forces and militias known as Fano continued an ethnic cleansing campaign and forcibly expelled Tigrayans.[49]

[49] Human Rights Watch, 4 September 2023, <Q&A: Justice for Serious International Crimes Committed in Ethiopia | Human Rights Watch (hrw.org)>.

International Commission of Experts report October 2023

103.   The International Commission of Experts in Human Rights in Ethiopia reported to the Human Rights Council in October 2023. The Commission noted that the Cessation of Hostilities Agreement signed in November 2022 had broadly held, but Eritrean forces remained in Tigray in September 2023 in breach of the agreement. The report states as follows:

In early November 2022, TPLF and the Federal Government signed a Cessation of Hostilities Agreement (CoHA) brokered under the auspices of the African Union (AU). The central terms of CoHA on hostilities have broadly held, despite ongoing obstacles to its full implementation. Handover of heavy weaponry, and disarmament of some Tigrayan forces have since been confirmed by the AU Monitoring, Verification and Compliance Team. However, Eritrean forces remained in Tigray as of September 2023, in breach of CoHA provisions on protection of Ethiopia’s sovereign borders and territorial integrity. Their presence was reported to have impeded AU monitoring and verification efforts in May 2023. Secondly, CoHA commits the parties to a process of national transitional justice earlier launched by the Federal Ministry of Justice. In September 2023, the Tigray Interim Regional Administration has expressed reservations about its implementation. Notably, the CoHA was the only cessation of hostilities agreement in 2022 which according to the Secretary General’s report on conflict-related sexual violence “explicitly included the cessation of sexual violence by the parties.” This provision has not been fulfilled.. Implementation of CoHA was also intended to restore services to Tigray, and progress here has been mixed and worrying. The situation was complicated following the decision of the UN World Food Programme (WFP) and US Government’s USAID to suspend aid deliveries to Tigray as early as March 2023, and in May to extend that suspension to the whole country because of allegations of high-level large-scale corruption and diversion. A further area in which CoHA has not yet been implemented is its provision for the return of internally displaced persons (IDPs) to their original areas, and the restoration of the constitutional status quo ante.[50]

[50]^[50] Human Rights Council, International Commission of Experts on human rights in Ethiopia, ‘comprehensive expert findings and legal determinations’, 13 October 2023.

Human Rights Watch World Report Ethiopia 2024[51]

[51] Human Rights Watch, <World Report 2024: Ethiopia | Human Rights Watch (hrw.org)>.

104.   Human Rights Watch reported in 2024 that months after the truce Eritrean forces in Tigray committed extrajudicial execution, rape and pillaging of property. In May the forces blocked a humanitarian mission from entering two villages where reportedly rape, looting and destruction of property continued.

105.   The report said that in Western Tigray, local authorities, Amhara regional forces and militias known as ‘Fano’ continued an ethnic cleansing campaign and forcibly expelled Tigrayans. There were also reports of detention and executions.

Congressional Research Service report ‘Ethiopia in Brief’, 11 January 2024[52]

[52] Congressional Research Service report ‘Ethiopia in Brief’, 11 January 2024.

106.   The report notes that despite the signing of the Cessation of Hostilities in late 2022, Eritrean forces remain in Tigray, along with fighters from the neighbouring state of Amhara, and they have been accused of atrocities. Reference was made to reports in the Washington Post in February 2023 and Atrocities Watch Africa in July 2023 of hundreds of Tigrayans being massacred.

Repression of political opinion

107.   Thirdly, in addition to ongoing ethnic targeting, the independent country information indicates that there is repression of political opposition in Tigray. The applicant may well attract attention as a person who has voiced support for the Tigrayan people in Australia and who is likely to do so in Ethiopia, given his passion for the rights of Tigrayans and his previous involvement in TPDM.

108.   The applicant told the Tribunal that he opposes the government for their suppression of the Tigrayan people and he will want to speak out, which will draw adverse attention to him. He has claimed that he has attended protests while living in Australia and has posted political content on [social media]. He said that as a Tigrayan he cannot express his opinion and people who oppose the authorities will be detained. He is also concerned that the government will check up on people returning from Australia, and he may be imprisoned because of his participation in the Tigrayan community in Australia.

109.   He claimed that during the war he attended more than 10 protests in Sydney, Canberra and Brisbane. He said that at the Canberra protests the protestors walked from Parliament to the USA and UK embassies to ask for support. He provided photographs to corroborate this claim. He told the Tribunal that he attended these protests because they were ‘not just about the war in Tigray’, but also about ‘genocide and ethnic cleansing’. He said that more than 10,000 women were raped and more than 600,000 innocent people killed. He said that 90 per cent of schools and hospitals were destroyed and factories looted. He said that currently there are 6 million Tigrayan people relying on aid. He told the Tribunal ‘this was not simply a war’. He explained that this was the reason he got involved.

110.   He said that the purpose of the protests was to raise awareness. The programs were organised by the Tigray Youth Network and [Organisation 1]. There were about 200 to 300 attendees. He said that the protests got some media coverage from SBS and Tigray Media House in the USA also broadcast live.

111.   He also said that he was one of the [founders] of [Organisation 1] six years ago. Fellow Tigrayans and himself thought that it was necessary to set it up as Tigrayans in Australia ‘needed a voice’. He said that for two years they collected money and they fundraised about $260,000 from members and fundraising initiatives. He said that during the war they met every two weeks as they were stressed, and needed to support each other, but currently they meet once a month.

112.   He said that he is now [an office bearer] of the [Organisation 1]. He provided details of the [social media] page for the community. He provided a letter from [another office bearer] of the [Organisation 1] to support his claims. This letter dated 20 September 2023 stated that the applicant had been a valuable member of the [Organisation 1] for six years. The [office bearer] commented that they knew the applicant as a kind, earnest, trustworthy person. He had helped organise events, facilitating peaceful demonstrations in ‘denouncing the genocidal war declared in Tigray region by Ethiopian government’. He had also helped with fundraising and was a ‘great influence in the community’.

113.   The applicant said that he has made [social media] posts about the protests and Tigrayan politics. He provided copies of screenshots of his [social media] posts.

114.   He said that he fears expressing his political beliefs in support of Tigrayans and in opposition to the Ethiopian government. He said that it would not be safe for him to continue to post political material on [social media] as the government wants to silence Tigrayans and most people in Tigray open accounts in different names. He said that it would be dangerous for him to protest or express his views in Ethiopia. He said that Tigrayan returnees have been detained. Recently, a Tigrayan-Australian priest was detained on return. He said that he fears being detained on return.

115.   Section 5J(6) of the Act provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the Tribunal that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.

116.   In this case the Tribunal accepts that the applicant became involved in the Tigrayan community and attended protests in Australia out of political conviction rather than for purposes of bolstering his refugee claim, given the passionate manner in which he spoke about Tigrayan issues, and the corroborative letter from the [Organisation 1]. For this reason, the Tribunal also accepts that the applicant may become involved in political activity if he returned to Tigray.

117.   The Tribunal accepts that the applicant may be targeted on the basis of his political opinion, and attention may be drawn to him because he is a returnee asylum seeker who has participated in political activity. The Danish Immigration Service reported in September 2022 that while there was limited information about returnees, it is likely that authorities would make security assessments. Ethnic Tigrayans from Saudi Arabia were arrested upon return in 2022 and placed in detention centres in Addis Ababa.[53] The United States Department of State referred to reports of Tigrayans being detained on return and abused, with reports of forced disappearance and forced labour.[54] The applicant has been involved in a local Tigray organisation, attended protests which have been broadcast locally and in the USA, and posted on [social media] about Tigrayan rights. It is possible that the applicant would be noticed by authorities for these reasons.

[53] Danish Immigration Service, ‘Ethiopia an update on the security and human rights situation since February 2022’ September 2022.

[54] United States Department of State, ‘2022 Trafficking in Persons Report Ethiopia’, 2022.

118.   Reports referred to earlier in regard to Tigray suggest that there have been arbitrary detentions and executions of Tigrayans. Freedom House 2023 reports that the government in Ethiopia silences critical voice and the voices of its political opponents to control the narratives around the civil war in Tigray and conflicts in other regions. The report states that individuals have refrained from commenting on sensitive topics due to the crackdown. There have been nationwide sweeps, raids and arrests as well as a rising tolerance for hate speech and incitement to violence against Tigrayans.[55]

[55] Freedom House, ‘Freedom in the World- Ethiopia’, 2023.

119.   The United States Department of State Report for 2022 commented on repression of freedom of speech in Ethiopia:

serious restrictions on freedom of expression, including violence or threats of violence against journalists, unjustified arrests of journalists, censorship, and the existence of criminal libel and slander laws; serious restrictions on internet freedom.

120.   Articles refer to the lack of verification in these areas because access to journalists is restricted.[56]

[56] Ahram Online, ‘Ethiopia’s Tigray war displaced stage demonstrations’, 23 May 2023.

121.   In sum, given the restrictive political environment and targeting of Tigrayans as reflected in these sources, the Tribunal is satisfied that there is a real chance of serious harm based not only on ethnicity but also political opinion,

Vulnerabilities

122.   As referred to earlier, a letter from [Dr G], [named] Medical Centre, dated 29 September 2023 certified that the applicant suffers from anxiety/depression and had been referred to a psychologist.

123.   A person suffering from anxiety/depression may be particularly vulnerable to targeting on the basis of his ethnicity. In AGA16 v MIBP [2018] FCA 628 the Court accepted the appellant’s proposition (undisputed by the Minister) that in assessing the seriousness of harm, it is necessary to have regard to personal attributes such as age and frailty, as well as personal vulnerabilities.

Findings on real chance of serious harm

124.   For the reasons set out above, the Tribunal is satisfied that there is a real chance of serious harm for this applicant if he were to return to his home region of Tigray in the reasonably foreseeable future, based on his Tigrayan ethnicity and/ or his political opinion.

125.   In making this finding, the Tribunal has taken into consideration the environment in Tigray in the past few years, where independent reports have suggested that there has been ethnic cleansing and human rights abuses of Tigrayans at a large scale. The Tribunal has also taken into consideration the fact that although there was a peace agreement in November 2022, numerous reports refer to ongoing atrocities being committed based on Tigrayan ethnicity.  Of particular importance is the Human Rights Report in 2023[57] and comments by the UN Special Adviser on the Prevention of Genocide that the risk of genocide is ‘present and growing’[58] but numerous other reports referred to earlier in this decision report on ongoing targeting of Tigrayans. The chance of harm to this applicant is heightened by his political views and his outward manifestation of those views in Australia and likely to be expressed in Tigray on return. His status as a returnee asylum seeker is likely to draw attention, particularly as he is from Tigray. Country reports[59] indicate that there is repression of political views antagonistic to the government.

[57] Human Rights Watch, 4 September 2023, <Q&A: Justice for Serious International Crimes Committed in Ethiopia | Human Rights Watch (hrw.org)> discussed earlier in this decision.

[58] UN News, ‘Global Perspective Human Rights’, 10 October 2023.

[59] For example Freedom House, ‘Freedom in the World- Ethiopia’, 2023 and other reports referred to earlier in this decision.

126.   In MIEA v Guo (1997) 191 CLR 559, the Court stated that 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. A fear of persecution is not well-founded if it is merely assumed or if is mere speculation’. The Tribunal is satisfied that there is a real chance of serious harm that has a real, substantial basis and is non-remote[60] given these reports.

[60] Chan v MIEA (1989) 169 CLR 379.

Systematic and discriminatory conduct

127.   The Tribunal is satisfied that the persecution involves systematic and discriminatory conduct.[61]

[61] Section 5J(4) of the Act.

128.   It is well established that ‘persecution’ within the meaning of the Convention involves a discriminatory element. Courts have consistently held that the systematic and discriminatory element of persecution involves an element of motivation on the part of the persecutor (Ram v MIEA & Anor (1995) 57 FCR 565 (at 569)). The independent country reports indicate that the forces operating in Tigray are motivated to harm Tigrayans in a non-random and selective way.

Does the real chance of persecution relate to all areas of the receiving country?

129.   Under s 5J(1)(c) of the Act, the real chance of persecution must relate to all areas of the relevant receiving country.

130.   The Tribunal has considered first whether there is a real chance of persecution in the area of the receiving country in which the applicant will return or be returned, which is Tigray where his family lives.[62] As set out above, the Tribunal is satisfied that there is a real chance of serious harm in Tigray. Section 5J(1)(c) of the Act requires consideration of whether the risk is localised to that particular area or exists elsewhere.

[62] See CSO15 v MIBP (2018) 260 FCR 134 at [42].

131.   The Tribunal has considered whether the applicant could relocate to other areas of Ethiopia and in particular, Addis Ababa, where he has lived previously and where many Tigray people reside.

132.   The applicant submitted that Tigrayans were persecuted in Addis Ababa throughout the war and if the situation in Tigray deteriorates, then the situation in Addis Ababa would also deteriorate. He said that it would be unreasonable for him to relocate as there is a lot of discrimination against Tigrayans, it is difficult to get a job in Addis Ababa as a Tigrayan and he does not have adequate support there. He only has one third or fourth cousin and they are not close. He said that there is a shortage of affordable accommodation in Addis Ababa. He would find it difficult to support himself and his family. He said that he has depression as diagnosed by his general practitioner and psychologist. He said that in his previous job he lost focus and patience, and this impacted his work and this may affect his ability to work in Addis Ababa. He said that the humanitarian situation is bad all over Ethiopia.

133.   Reports indicate that Tigrayans are known from their identity cards (kebele card), their language and accents, as well as their names.[63] Reports also suggest that Tigrayans are subject to ethnic profiling in other parts of Ethiopia, and they have been arrested, harassed and sacked from jobs because of their ethnicity.[64]

[63] Netherlands, Ministry of Foreign Affairs, ‘Thematic Country of Origin Information Report on Tigray’, August 2021.

[64] Netherlands, Ministry of Foreign Affairs, ‘Thematic Country of Origin Information Report on Tigray’, August 2021.

134.   In September 2022 the Danish Immigration Service reported on continued targeting of ethnic Tigrayans for arrest in Addis Ababa.[65] Arbitrary arrest is referred to in other sources including a January 2023 media article where it was reported that ‘Tigrayans in other parts of Ethiopia have been discriminated against and have been subjected to arbitrary and unlawful detention. By 2021 the detentions had reached what could be described as an industrial scale, and the discrimination continues to this day; Tigrayans have been living in dread every day of their lives’.[66]

[65] Danish Immigration Service, ‘Ethiopia an update on the security and human rights situation since February 2022’ September 2022.

[66] The Elephant, ‘As a Tigrayan I Choose peace over war, accountability over impunity’, 20 January 2023.

135.   The United States Department of State, in its Human Rights Report for 2022, stated that:

In June 2021 following federal forces’ withdrawal from Tigray, security forces allegedly engaged in arbitrary detention and arrest, closed businesses, and conducted other types of harassment targeting ethnic Tigrayans in some parts of the country, including Addis Ababa. In late 2021 the government began detaining under the November 2021 State of Emergency (SOE) ethnic Tigrayans in Addis Ababa and other parts of the country, before releasing many detainees in February and March (see sections 1.d. and 1.g.). By mid-year, all of those detained under the November 2021 SOE had reportedly been released. An unknown number of ethnic Tigrayans, potentially arrested prior to November 2021 or under pretexts other than the SOE, reportedly remained detained at year’s end. [67]

[67] United States Department of State, ‘Country Report on Human Rights Practices 2022’, 2023.

136.   According to the very recent report to the Human Rights Council, there have been arrests and intimidation of Tigrayans in Addis Ababa in 2023:

Tigrayan women and men in Addis Ababa were subject to ethnic targeting, house searches, arbitrary arrest and detention throughout the conflict, from November 2020 through 2023. However, there was a significant increase in such arrests from late June-early July 2021 after the Tigray forces took control of Mekelle, and in November 2021, after the Government announced a nationwide state of emergency. Journalists of Amhara and Oromo ethnicity were also detained during this time in connection with their reporting on the conflict. Those arrested came from all walks of life, and included university students, daily labourers, lawyers, politicians, journalists, activists, humanitarians, and other civil society actors. The Commission identified at least 16 different detention locations used to detain Tigrayans across Addis Ababa, including police stations, prisons, and unofficial detention sites on the outskirts of the city. Tigrayan women and men were searched, arrested, and detained, predominantly without warrants, by the Federal Police, Addis Ababa Police, and the Ethiopian National Intelligence and Security Service (NISS). Consistent with public reporting from the time, some former detainees further described the involvement of ordinary civilians, neighbours, or residents of Addis Ababa in arrests. In most cases, former detainees were not aware of the reason for their arrest and no warrant was shown; some said they were told they were accused of “terrorism” and providing support or being affiliated to TPLF.[68]

[68] Human Rights Council, International Commission of Experts on human rights in Ethiopia, ‘comprehensive expert findings and legal determinations’, 13 October 2023.

137.   Reports also note that there are overlapping humanitarian crises driven by conflict and drought, with 20 million people requiring food aid in 2023.[69]

[69] Congressional Research Service report ‘Ethiopia in Brief’, 11 January 2024.

138.   Considering these sources, the recent concerns in numerous commentaries about genocide against Tigrayans, and general uncertainty of the political situation in Ethiopia, the Tribunal is satisfied that the real chance of persecution relates to all areas of the country.

Is effective protection available to the applicant?

139.   A person is taken not to have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2) of the Act.

140.   Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.

141.   The Tribunal is not satisfied that effective protection is available as the harm feared is both from state forces and other militant groups without the ability to access protection.

Could the applicant modify his behaviour?

142.   The Tribunal notes that s 5J(3) of the Act states a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or conceal an innate or immutable characteristic. In this case, the Tribunal is satisfied that the modification would require the applicant to modify his ‘political beliefs or conceal his true political beliefs’ and/or conceal his ethnicity, which the Tribunal is satisfied he would be unable to do, and therefore s 5J(3) does not apply.

Safe third country protection

143. Having found that the applicant meets the criteria set out in s 36(2)(a) of the Act, the Tribunal has considered whether the applicant has not taken all possible steps to avail himself of a right to enter and reside in a country apart from Australia.

144.   Under s 36(3) of the Act, Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

145.   The Tribunal is not aware of any country apart from Australia where the applicant has a right to enter and reside. Accordingly, s 36(3) does not apply.

Findings on refugee criteria

146.   The Tribunal is satisfied that the applicant has a well-founded fear of persecution for reasons of his ethnicity and/or political opinion were he to return to Ethiopia in the reasonably foreseeable future.

CONCLUDING PARAGRAPHS

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

DECISION

148. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act1958 (Cth).

Jane Marquard
Member

ATTACHMENT A  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

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

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…

ATTACHMENT B – LIST OF DOCUMENTS

• Statutory Declaration of the applicant 2 February 2017.
• Horn Affairs news article dated 15 September 2015, titled ‘Ethiopia: Official
statement on TPDM fighters return from Eritrea’.
• BBC News article dated 3 December 2014, titled ‘Ethiopia profile – Media’.
• Freedom in the World – ‘Ethiopia – 2015’.
• Awate.com news article dated 16 September 2015, titled ‘The Ethiopian-Eritrean
Intelligence War’.
• Article dated 16 September 2015, titled ‘Ethiopia: Ato Molla Asgedom and the search
for freedom’.
• Article dated 22 September 2015, titled ‘Berhanu in Eritrea responds on TPDM
defection to Ethiopia’.
• Article dated 14 October 2015, titled ‘Tigrai online Misrepresentation of Neamin
Zeleke’s Interview With VOA’.
• Article by Matin Plaut dated 21 September 2015, titled ‘Return of Tigray rebels: the
Ethiopian government view’.
• Article by William Davison dated 21 July 2015, titled ‘Ethiopia Opposition Head to
Run Campaign from Eritrea’.
• Article by William Davison dated 1 May 2014, titled ‘Arrests headline Ethiopia press
freedom fears’.
• Statement of Claims with attached appendices submitted to the Tribunal on 8
October 2019.
• Translated letter from The National Regional Government of Tigray, Mekelle City
Administration dated [in] February 2019.
• Translated letter from the Police Commission of [specified] Police
Station dated [in] March 2019.
• Reference letter from [Mr H], Director of [Employer 3], dated 5 February
2017.
• BBC News Article dated 17 December 2015, titled ‘Ethiopia: Amnesty warns against
brutal crackdown on protestors’.
• Wikipedia article titled ‘2016 Ethiopian protests’.
• MADOTE article, undated, titled ‘EPLF’s Effort to Antagonize the People of Tigray
with other Peoples of Ethiopia and the Horn of Africa is a Leadership Myopia.’
• Article dated 8 July 2016, titled ‘Ethiopia: Social media icon and Opposition party
figure released from prison.’
• AllAfrica article, undated, titled ‘Ethiopia: Release of 10,000 Detainees Announced.’
• BBC News article dated 9 October 2016, titled ‘Ethiopia declares state of emergency
amid protests’.

• Letter from Jesuit Refugee Service dated 2 December 2015.

·     Statutory Declaration dated 18 November 2015.