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2102366 (Refugee)

2102366 (Refugee)

Case [2023] AATA 2790 29 May 2023

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2102366 (Refugee) [2023] AATA 2790 (29 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Rebecca Webb (MARN: 1277121)
CASE NUMBER:  2102366
COUNTRY OF REFERENCE:                   Ethiopia
MEMBER:Jason Pennell
DATE:29 May 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 29 May 2023 at 11.10am

CATCHWORDS
REFUGEE – Protection Visa – Ethiopia – race – Oromo ethnicity – religion – an Orthodox Christian – imputed and actual political opinion – a supporter of the OLF –membership of the particular social group – journalists in Ethiopia – single women/mothers in Ethiopia – gender-based violence – effective protection measures are not available to the applicant – applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION

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

Migration Regulations 1994, Schedule 2

CASES

MIMA v Khawar (2002) 210 CLR 1

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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
[The applicant] who claims to be a citizen of Ethiopia, applied for the protection visa on 12 August 2014. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.
The applicant initially applied to the Tribunal (differently constituted, (Case No 1619347) (‘the first Tribunal’) for review of the delegate’s decision on 17 November 2016. On 20 April 2020 first Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
The applicant then applied for judicial review to the Federal Circuit Court of Australia (FCCA). [In] February 2021 the proceeding was remitted by consent on the basis that the decision by the first Tribunal was affected by jurisdictional error. As a result, the applicant application for review was returned to the Tribunal for re hearing.
The applicant appeared before the Tribunal on 24 April 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages. The applicant was represented in relation to the review by her legal representative, Ms Rebecca Webb of Refugee Legal.

RELEVANT LAW

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). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, the applicant is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2102366 (Refugee)

Details

AGLC: 2102366 (Refugee) [2023] AATA 2790
Case: [2023] AATA 2790
Decision Date: 29 May 2023

CaseChat Overview and Summary

The applicant, an ethnic Oromo and Orthodox Christian from Ethiopia, sought review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse their application for a protection visa. The applicant claimed to hold imputed and actual political opinions as a supporter of the Oromo Liberation Front (OLF) and also asserted membership in particular social groups, namely journalists in Ethiopia and single women/mothers in Ethiopia. The applicant contended that they faced a well-founded fear of persecution due to these characteristics and that effective protection measures were not available in Ethiopia. The matter came before the Federal Circuit and Family Court of Australia.

The court was required to determine whether the applicant had established a well-founded fear of persecution for reasons of race, political opinion, or membership of a particular social group, and whether effective protection was available in Ethiopia. Specifically, the court had to consider the applicant's claims regarding their ethnicity, religious beliefs, imputed and actual political opinions related to the OLF, and their membership in the social groups of journalists and single women/mothers, assessing whether these grounds met the criteria for a protection visa under the Migration Act 1958 (Cth).

The court found that the applicant had a well-founded fear of persecution. In its reasoning, the court considered the evidence presented regarding the general situation in Ethiopia for ethnic Oromos and Orthodox Christians, as well as the specific risks faced by individuals with imputed or actual political opinions favouring the OLF. The court also examined the applicant's claims concerning gender-based violence and the lack of effective protection for single women and mothers in Ethiopia. Ultimately, the court concluded that the applicant's fear was well-founded and that adequate protection was not available.

The decision under review was remitted.

Orders