2103046 (Refugee)
[2021] AATA 4151
•17 September 2021
2103046 (Refugee) [2021] AATA 4151 (17 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2103046
COUNTRY OF REFERENCE: Ethiopia
MEMBER:Jason Pennell
DATE:17 September 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the second, third and fourth named applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Statement made on 17 September 2021 at 7.56am
CATCHWORDS
REFUGEE – protection visa – Ethiopia – Federal Circuit Court remittal – race – Tigrayan – imputed political opinion – suspected Ginbot 7 political party member – opposition to the Tigray People’s Liberation Front (TPLF) – support for community associations – attacks by TPLF – arrests – torture – fear of killing – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2; r 1.12
CASES
Calado v MIMA (1998) 81 FCR 450
Chan v MIEA (1989) 169 CLR 379
Maningat v MIMA (Federal Court of Australia, Tamberlin J, 30 April 1998)
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
V v MIMA (1999) 92 FCR 355
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
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 applicants protection visas under s 65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Ethiopia, applied for the visas on 21 August 2014 and the delegate refused to grant the visas on 20 June 2016 on the basis that the applicants are not persons to whom Australia owes protection obligations.
On 7 June 2019 the Tribunal (differently constituted) affirmed the delegate’s decision not to grant the applicants protection visas on the basis that they are not persons to whom Australia owes protection obligations. By an order made [in] February 2021 the Federal Circuit Court of Australia (FCCA) remitted the application for reconsideration by the Tribunal in accordance with law.
[The applicant] appeared before the Tribunal on 9 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s employer, [Employer A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya and English languages. The applicants were represented in relation to the review by their registered migration agent.
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 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)) and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well‑founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have a genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Member of the same family unit
Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non‑citizen in Australia who is a member of the same family unit as a non‑citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Migration Regulations 1994 (the Regulations)[1] and includes a spouse or de facto partner of the family head and a dependent child of the family head or spouse or de facto of the family head.
[1] R1.12(1)(a) and R1.12(1)(b) of the Migration Regulations 1994.
In this case, the protection visa application included the applicant’s dependent spouse ([named]) (the ‘fourth named applicant’) and dependent children ([name]) (the ‘second named applicant’) and ([name]) (the ‘third named applicant’). The applicant submitted his own claims for protection, while his wife [named] and their children [named] relied on the applicant’s claims as members of the same family unit and did not submit any claims for protection on their own.
Based on the evidence presented by the applicants to the Tribunal in relation to their identity, the Tribunal accepts and finds that the applicants are members of the same family unit pursuant to ss 5(1) of the Act and reg 1.12 of the Regulations.
BACKGROUND
The applicant’s country of reference and identity
The applicant claims that he was born on [date] in [Town 1], Ethiopia. He also claims he is married to the fourth applicant. The applicant provided a copy of his passport,[2] birth certificate and marriage certificate[3] to the Department which all confirmed the applicant’s date and place of birth. Based on the documents provided by the applicant, the Tribunal accepts the applicant’s date and place of birth and that the applicant and fourth applicant are married.
[2] Dept File [Number] @ Folio 65-83
[3] Dept File [Number] @ Folio 14-15
The fourth applicant claims that she was born on [date] in Ethiopia. The fourth applicant provided a copy of her passport[4] and birth certificate[5] to the Department which confirmed her date and place of birth. Based on the documents provided by the fourth applicant, the Tribunal accepts her date and place of birth.
[4] Dept File [Number] @ Folio 49-64
[5] Dept File [Number] @ Folio 14
The second applicant claims to have been born on [date] in Ethiopia and is the son of the applicant and the fourth applicant. The applicants provided a copy of his passport[6] and birth certificate[7] to the Department which confirmed his date and place of birth. Based on the documents provided by the applicants, the Tribunal accepts the second applicant’s date and place of birth and that he is the son of the applicant and the fourth applicant.
[6] Dept File [Number] @ Folio 18-31
[7] Op Cit @ Folio 12
The third applicant claims to have been born on [date] in Ethiopia and is the daughter of the applicant and the fourth applicant. The applicants provided a copy of her passport[8] and birth certificate[9] to the Department which confirmed her date and place of birth. Based on the documents provided by the applicants, the Tribunal accepts the third applicant’s date and place of birth and that she is the daughter of the applicant and the fourth applicant.
[8] Op Cit @ Folio 32-48
[9] Op Cit @ Folio 11
Therefore, in the absence of any evidence to the contrary, the Tribunal accepts that the applicants are citizens of Ethiopia and as such their protection claims will be assessed against Ethiopia as the country of reference and ‘receiving country’ respectively. The Tribunal is satisfied on the basis of the evidence before it that the applicants do not have a right to enter and reside in any other country and, therefore, the Tribunal finds that they are not excluded from Australia’s protection obligations under s 36(3).
Migration history
The applicant arrived in Australia as the holder of a [Student] visa on 25 January 2012 and has remained in Australia since his arrival.
The second, third and fourth applicants arrived in Australia [in] February 2013 on a [Student (Dependent)] visa and have remained in the country since their arrival.
The applicants made their application for a protection visa on 21 August 2014.
The applicant’s claims for protection
The applicant’s claims for protection from the statement included in the protection visa application[10] are summarised as follows:
[10] Op Cit @ Folio 115-116; AAT Decision Case No [deleted] dated 7 June 2019
(a)In July 2010 he faced persecution at the hands of the TPLF political leaders in [City 1] because of his perceived membership of the Ginbot 7 political party which is branded a terrorist group by the Ethiopian government.
(b)In 2005 he started working as an [occupation 1] with the [Agency 1] within [Department 1]. This involved [supporting associations]. The agency established [Association 1] which provided [assistance to certain communities]. This brought them into conflict with the TPLF, which is a member of the ruling Ethiopian People’s Revolutionary Democratic Front (EPRDF), because it would impact their business interests in the Endowment Fund for rehabilitation of Tigray (EFFORT) – which has more than 66 [companies].
(c)EFFORT’s current CEO is the widow of former Prime Minister Meles Zenawi. Other top leaders of the country and the TPLF members lead companies and use them as their private companies diverting the profits away from the original intended objectives – Tigray rehabilitation endeavours.
(d)In February 2010 the applicant and his colleague, [Mr A], who is the [occupation 1] of [associations], sought to mobilise the boards of directors of [these associations] to not to adopt government sanctioned marketing of their products under EFFORT but to carry out their own semi‑processing and marketing [products] where they can get better prices. During a community meeting where they were promoting this idea, opposition political leaders were also in attendance. Following the meeting a conflict started between them and some Tigray politicians who saw them as a threat and as supporting the opposition parties.
(e)One day the applicant and [Mr A] were verbally cautioned not to involve themselves with opposition personalities and told they must immediately stop mobilising [associations] against EFFORT and were instructed to promote EFFORT.
(f)As professionals, the applicant and [Mr A] saw it as their duty to help small [businesses] and to continue to promote the [associations]. Their [agency] boss, [Mr B], was supportive of their ideas, which were protecting [associations] from dominance of the greedy EFFORT companies.
(g)On night, armed men went to the applicant’s colleague’s house looking for his colleague, but he was not there. When told about this, his colleague fled to [Country 1] where he sought refuge.
(h)After his colleague fled, the focus was on the applicant. On [a day in] July 2011 police came to his house and searched it. He was questioned and abused, accused of collaborating with opposition parties, and threatened that he would be killed.
(i)On [a day in] November 2011 the applicant exposed the intervention of politicians in professional jobs at an assessment meeting for experts and leaders of the region. This was considered as him seeking to otherthrow the government by mobilising people against the government under the pretext of professionalism.
(j)Two days later the applicant was arrested. He was repeatedly beaten and questioned regarding his political motives and the whereabouts of [Mr A]. He was released on his uncle’s pleading and following payment of the bribes.
(k)Upon his release the applicant stopped mobilising people against EFFORT and kept a low profile. He obtained a [visa] to Australia with the support of his immediate Manager, [Mr B].
(l)When in Australia, seven months before seeking protection, he heard from his parents through a policeman who is a distant relative that [Mr A] was arrested after sneaking back into Ethiopia. When interrogated, [Mr A] said that it was the applicant who was mobilising the people against the government and that he is a member of Ginbot 7, an opposition party that is exiled in the USA. His parents were to warn that the government has opened a case against them, and he will be arrested the moment he arrives back in Ethiopia.
(m)[Mr B], who recommended him for a [visa] in Australia, was fired. He does not know where Mr [Mr B] is or what had happened to him. The TPLF politicians are out to get anyone who goes against them or their parties. He fears if he returns, he will be arrested, tortured, and may be killed by the security forces on suspicion that he is a member of the opposition party.
The applicant’s representative made submissions[11] in support of the applicant’s review application before the previous Tribunal (differently constituted) as follows:
(a)The applicant fears harm upon return to Ethiopia due to his imputed political opinion.
(b)In early 2010, the applicant and his colleague were questioned by [Mr C], a member of the [government] and the Manager of [EFFORT companies] in [City 1]. [Mr C] advised them they were of interest to [a government agency] because opposition figures were attending quarterly [association] member meetings and supporting mobilisation activities. They were threatened that if they did not stop mobilising [association members] against EFFORT companies, they would lose their jobs and be arrested and imprisoned.
(c)With the support of their supervisor they continued their stand in support of [association members], which was viewed to be against EFFORT companies. He believes this affected EFFORT companies financially, enraging the EFFORT leaders.
(d)When he was detained [in] 2011, he was questioned about his support for opposition groups including Ginbot 7. On the third day, he was told that if he did not tell the truth he would be killed. He was released late on the third day after the intervention of his uncle, who paid bribes. He was warned that if he continued to mobiles [association members], he would be killed.
(e)The applicant fears harm due to his Tigray race. In Tigray state, he would be required to support the Tigray elite, the TPLF and would face harm if he did not. If he relocated outside Tigray, he would be at risk of harm due to his race given the high level of ethnic and racial tensions throughout Ethiopia, which have greatly escalated since the emergence of a new leader. He can be easily identified as Tigrayan by his accent, language and identity documents. The new prime minister has given greater powers to members of the Oromo race, leading to a high level of tensions within the ethnic groups. He belies these tensions will continue to escalate. Tigrayans are viewed with a high level of suspicion and many Tigrayans have been forced to return to Tigray due to threats to their safety.
[11] Applicant’s submission date 15 May 2019 AAT file No [deleted] Folio 43-51; AAT Decision Case No [deleted] @ p.5
By the applicant’s submission[12] to the Tribunal dated 2 September 2021:
(a)the applicant repeated and affirmed his claim that he fears harm upon his return to Ethiopia due to his imputed political opinion of being opposed to the TPLF because of his role as an [occupation 1] of [Association 1] for [Agency 1]. He fears that on his return to Ethiopia, he will be harmed by members of the TPLF.
(b)the applicant claimed that because of the mistreatment by the government and associated authorities against his ethnic community, he is not supporting of the government. It is claimed that given his political views, his race and current situation in Ethiopia, he would be harmed if he was returned.
(c)The applicant also claims that he and his family fear harm if they are returned to Ethiopia due to their Tigrayan race.
[12] AAT File No 2103046 Doc ID: [number]
Documents
The applicant submitted the following documents[13] to the Department:
(a)Human Rights Watch World report 2015: Ethiopia.
(b)Amnesty International Report 2014/15, Ethiopia.
(c)Article entitled ‘Ethiopia is looted by EFFORT and the TPLF Business Empire’ by Abebe Gellaw dated 26 July 2012.
(d)Article entitled ‘Ethiopia releases Five, Charged Under the File of De‑Birhan’s Co‑Blogger Zelalem’ by Ethiogrio.com dated 21 August 2015.
(e)Article in Tigrai Online entitled ‘Is the investment Climate in Tigrai encouraging for business investors?’ dated 31 July [2015].
(f)Letter for [an official] of [a community organisation in] Australia dated 3 September 2015.
[13] Dept File [Number] @ Folio 158-211
The applicant’s evidence
The applicant’s evidence was that he was born on [date] in [Town 1], Tigray, Ethiopia. He and his family are ethic Tigrayan and Christian orthodox. The applicant is married to the fourth applicant and they have two children, the second and third applicants.
Consistent with his claim, the applicant’s evidence was that he fears harm upon return to Ethiopia due to his imputed political opinion. His evidence was that in Ethiopia he worked as [an occupation 2] with [Employer B]. He then obtained employment with the Ethiopian government as [a related occupation 3]. In 2005, the applicant commenced working as an [occupation 1] for [Agency 1], a part of [Department 1]. The applicant’s role was to promote programs of [Agency 1]. He was also required to prepare manuals and training for [Agency 1] employees and the Board of Directors. [Agency 1] established [associations] known as [Association 1]. [Association 1] provided [assistance] to [certain communities]. [Association 1] was mainly financed by its members and backed by non-governmental organisations.
The TPLF, a party which formed part of the coalition under the ruling EPRDF, opposed the initiatives of [Association 1] because they negatively affected them financially. The EFFORT is a Tigrayan Holding company set up to invest money raised by the TPLF. It was the applicant’s evidence that the EFFORT is owned and run by the TPLF and used by them to run the economy for their own benefit under the guise that they are helping the community rather than providing the profits to TPLF leaders.[14] Given the applicant’s role with [Association 1] and various types of [associations], he faced issues from the EFFORT leaders and the TPLF.[15]
[14] Applicant’s submission dated 2 September 2021 @ p.2; AAT File No 2103046 Doc ID: [number]
[15] ibid
The applicant’s evidence was that he and his colleague, [Mr A], encouraged and promoted philosophies and practices that were viewed by the TPLF to be contrary to the best interests of the TPLF economically. The applicant and [Mr A] were attempting to assist [certain communities], however, their actions enraged the TPLF and resulted in them being accused by the TPLF that they were members of the opposition. The applicant claims that they were threatened and told to stop persuading [their communities] not to support EFFORT companies. However, the applicant claimed that he has a moral and professional obligation to assist [these communities] rather than adhere to the request of the TPLF.[16]
[16] ibid
The applicant claims that in early 2010, he and [Mr A] were requested to attend the office of [Mr C], Manager of [EFFORT companies] in [City 1]. They were accused of supporting the opposition and threatened that if they did not stop mobilising the [communities] against EFFORT companies, they would lose their jobs and be imprisoned. However, the applicant continued to be supported by the leader of his [agency], [Mr B], and felt he was obliged professionally to help the [communities]; as a result he continued to support the [communities] opposed to the EFFORT companies.
The applicant’s evidence was that in or around July 2011, a group of armed men went to [Mr A’s] house. He was not at home, but after being informed of the raid by his wife he fled to [Country 1].
The applicant’s evidence was that on or around [a day in] July 2011, the Ethiopian Police went his house and searched it. He claims that he was accused of supporting the opposition. He claims that he was abused and threatened with death if he did not stop his work.
The applicant claimed that in or around November 2011, he attended a meeting held for leaders in the region to assess [a business issue]. The meeting was organised by [a named agency] and was attended by a broad range of regional government department heads and some members of the opposition. At the meeting, the applicant raised the fact that he had concerns about professionals being harassed by political leaders. The applicant claims that he raised the issue in the hope it would bring some change to business leaders and the communities that they led. His evidence was that he specifically addressed the issue of TPLF politicians attempting to influence him to advise [the communities] to sell their products to and only loan money from TPLF entities.[17] The applicant’s evidence was that his views upset the TPLF who thought he was trying to revolt against them.
[17] ibid
A few days after the meeting, the police came to the applicant’s house and took him away. The applicant was interrogated and tortured while questioned about his work and political motivations, including why he raised the concerns that he had raised at the [agency] meeting. The following day, the applicant was interrogated again. The applicant was threatened that if he did not tell the truth, he would be killed. The conditions while he was detained were very poor. He faced constant mental and physical abuse. On the third day, late in the afternoon, due to the intervention of his uncle through the payment of bribes, the applicant was released. The applicant instructs that the police officers warned him that if he continued to mobilise the [communities], he would be killed.
The applicant claims that after this incident, he was scared for his safety which greatly affected his mental and physical health. The applicant’s Manager, [Mr B], helped him obtain a [visa] to Australia.
The applicant’s evidence was that after he had arrived in Australia, he was informed by his parents that they had been told by the applicant’s [relative] that [Mr A] had returned to Ethiopia but was arrested, interrogated and tortured. The applicant’s evidence was that he was told that [Mr A] had told the authorities it was him who had been mobilising the community against the government and that the applicant had links to Ginbot 7. They said to the applicant that the government have an open case against him and that he would face arrest upon return to Ethiopia.
As a result, the applicant claims that he is fearful he will be harmed upon return to Ethiopia by members of the TPLF. The TPLF are the governing authority in the northern Ethiopian region of Tigray, the applicant’s home area. The applicant instructs that as a Tigrayan, he would be treated with suspicion and subject to serious harm by the Ethiopian authorities in other areas of Ethiopia. If he returned to Tigray, he is fearful that he will face serious harm from the TPLF who are able to harm anyone who they deem to not support their ideology and regime. The applicant claims that the TPLF are notoriously known for subjecting dissidents to serious harm, and as such, he would be at a real risk of such harm.
Evidence of [Employer A]
[Employer A] provided a statutory declaration dated 2 September 2021[18] and appeared with the applicant before the Tribunal. His evidence was that he was born in Ethiopia but is now an Australian citizen. He fled Ethiopia in 2003. His evidence was that he met the applicant in or around 1995 in [a named town in] Tigray, Ethiopia. He was working for [a specified official] and at the time the applicant was working with [a named department] as a [specified role]. He claims that the applicant was passionate about assisting the [the specific communities] in Ethiopia. [Employer A] now employs the applicant in his [business].
[18] [Employer A] statutory declaration dated 2 September 2021.
COUNTRY INFORMATION
The Tribunal, in accordance with the Ministerial Direction No.84 made under s 499 of the Act, also had regard to the country information assessments prepared by DFAT. In particular, the Tribunal has referred to the DFAT Report on Ethiopia dated 12 August 2020 (‘the DFAT Report’).
ASSESSMENT OF CLAIMS AND FINDINGS
Credibility
When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is considered in these findings.
The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision‑maker is not required to make the applicant’s case for him or her. 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 enough 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,[19] nor is the Tribunal required to accept uncritically all the allegations made by an applicant.[20]A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[21] Care must be taken that the approach does not result in an exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
[19] s.5AAA Migration Act 1958.
[20] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.
[21] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J @ p482
If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[22] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.
[22] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196.
The applicant’s relevant grounds
The applicant submits that his claims fall within the scope of s 5J(1)(a) of the Act as an ethnic Tigrayan and by reason of his imputed or actual political opinion.
In relation to the applicant’s claim as an ethnic Tigran, the Tribunal is to apply a claim in relation to an applicant’s ethnicity or race in the ‘widest sense.’[23] Based on the applicant’s evidence and the documents provided by the applicant to the Department in relation to his identity, the Tribunal accepts he is an ethnic Tigran. As such, the Tribunal accepts that the applicant’s claim falls within the scope of s 5J(1)(a) of the Act by reason of his race as an ethnic Amhara.
[23] Calado v MIMA (1998) 81 FCR 450 at 455.
The applicant has also claimed that he has been persecuted by reason of his actual and/or his imputed political opinion. He claims that as part of his work with [Agency 1], he promoted [Association 1] and various types of [associations], contrary to the interests of EFFORT leaders and the TPLF. As such, he has an imputed political opinion of being opposed to the TPLF, and as a result he fears that on his return to Ethiopia he will be harmed by members of the TPLF.
In addition, he claims that as a result of the mistreatment by the government and associated authorities against his ethnic community he is opposed to the government and as a result will be harmed upon his return to Ethiopia.
The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status[24] provides that it is necessary for an applicant to show that they have a fear of persecution for holding a particular political opinion as ‘[H]olding political opinions different from those of the Government is not in itself a ground for claiming refugee status.’
[24] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status paragraphs 80‑86; Chan v MIEA (1989) 169 CLR 379 at 392
The Full Federal Court in V v MIMA[25] observed in relation to a person’s political opinion that:
(a)it is enough that a person holds (or is believed to hold) views opposed to the government and is persecuted for that reason;[26]
(b)it is not necessary that a person be a member of a political party or other public organisation or that the person’s opposition to the instruments of government be a matter of public knowledge;[27]
(c)‘political opinion’ is not limited to party politics in the sense that expression is understood in a parliamentary democracy;[28]
(d)the holding of an opinion inconsistent with that held by the government of a country explicitly by reference to views contained in a political platform, or implicitly by reference to acts reflective of an unstated political agenda, will be the holding of a political opinion;[29]
(e)‘political opinion’ may be shown by repeated conduct which is never (or rarely) converted into articulate political protest of the kind familiar to Australian society.[30]
[25] V v MIMA (1999) 92 FCR 355 @ 363. It’s noted that the Court’s observations were made in the context of dealing with the Convention.
[26] Op Cit @ 363
[27] ibid
[28] V v MIMA (1999) 92 FCR 355 @367
[29] ibid
[30] V v MIMA (1999) 92 FCR 355.
Therefore, an applicant’s fear of persecution because of their political opinion is a question of fact.[31] Nevertheless, it must constitute at least the essential and significant reason for the persecution claimed to fall within s 5J(1)(a) of the Act.[32]
[31] Maningat v MIMA (Federal Court of Australia, Tamberlin J, 30 April 1998) @ 4.
[32] s.5J(4)(a) of the Act
In this case, the applicant submits[33] that he has a well-founded fear of persecution by reason of his imputed political opinion because of his work with [Agency 1] and his support of [Association 1] and various types of [associations]. Based on the applicant’s evidence, the Tribunal accepts that his claim falls within the scope of s 5J(1)(a) of the Act by reason of his imputed political opinion.
[33] Representative’s submissions dated 15 February 2021
The applicant’s well-founded fear
Section 5J of the Act states that for the purposes of application under the Act, a person has a well‑founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and that there is a real chance that they will be persecuted for one or more these reasons in the event they are returned to their receiving country. In Chan v MIEA[34] the Court held that a ‘well-founded fear,’ for the purposes of the Convention, involved both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. That is, there must be a state of mind (fear of being persecuted) and a basis (well‑founded) for that fear.[35]
[34] (1989) 169 CLR 379 at 396.
[35] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.
However, to hold a ‘well-founded fear of persecution’ on an objective basis, the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J[36] stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.
[36] Chan v MIEA (1989) 169 CLR 379 per Dawson J at 397
In MIEA v Guo, the Court stated that: [37]
Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well‑founded if it is merely assumed or if it is mere speculation.
[37] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.
In this case, the applicant claims that, if he is returned to Ethiopia, there is a real chance he will suffer serious harm by the authorities by reason of his ethnicity and imputed political opinion. For the reasons detailed below, the Tribunal does not accept that the applicant has a well‑founded fear of persecution on an objective basis by reason of his political opinion but accepts he has a well‑founded fear of persecution on an objective basis due to his ethnicity if returned to Ethiopia.
The applicant’s claims as a refugee
Applicant’s political opinion
The applicant claims that he has a well-founded fear of persecution by reason of his imputed political opinion because of his work with [Agency 1] and his support of [Association 1] and various types of [associations]. He claims that as part of his work with [Agency 1], he promoted [Association 1] and various types of [associations], contrary to the interests of EFFORT leaders and the TPLF. As such, the applicant states that he has been imputed with a political opinion of being opposed to the TPLF, and as a result he fears that on his return to Ethiopia he will be harmed by members of the TPLF. In addition, the applicant claims that he was accused as being a Ginbot 7 supporter which was branded a terrorist organisation by the Ethiopian government.
Based on the applicant’s evidence and the evidence of [Employer A], the Tribunal accepts and finds that the applicant was employed by [Agency 1] and that he was engaged in the promotion and establishment of [Association 1] as claimed.
The applicant claims that he and his colleague, [Mr A], came to the adverse attention of the TPLF because they were involved in the mobilising and promoting [Association 1’s] [associations] to [communities]. The country information[38] reports that [Association 1s] in Ethiopia have played an active role in [specified] areas with the number increasing from [number] in 2006 to [number] in May 2014, a rate of approximately 28% per year. [Association 1s] are considered to have immense potential in [supporting communities] and undertake [other] income generating activities in areas where both state and the private sector has failed.[39]
[38] [Source deleted.]
[39] ibid
The applicant claims that the TPLF considered their efforts as being contrary to the interests of EFFORT. The EFFORT is a Tigrayan based holding company established in 1995 for the purpose of investing money raised by the TPLF during and after the guerrilla war.[40] The EFFORT controls some of the biggest businesses in Ethiopia and has interests in food production, construction, pharmaceutical manufacturing and mining.[41] The TPLF has considerably diversified EFFORT’s economic activities and expanded its outreach even to foreign countries. EFFORT is divided into several sectors directed by members of the TPLF Central Committee. Its reported that the TPLF benefits EFFORT by ordering free transfer of funds from government accounts, often under a bogus claim of services that TPLF institutions offered to the public, allowing a free flow of goods in the name of EFFORT, without customs and taxes.[42]
[40] ‘BTI 2014 Ethiopia’, Bertelsmann Stiftung Transformation Index, 1 January 2014 CISA447F082975
[41] Bloomberg, ‘Ethiopia Tightens Economic Clampdown on Rebel Tigray Region’ dated 18 November 2020 by Samuel Gebre and Simon Marks
[42] Institute of Developing Economies - Japan External trade organisation, ‘Messebo Cement Factory’ >
The applicant’s evidence in relation to how his responsibilities of establishing and promoting [Association 1] was seen by the TPLF as being contrary to the interests of the EFFORT was vague and lacking in any detail. His evidence to the Tribunal was that the TPLF wanted the EFFORT to take control of the [communities] of the [association] so that it could [benefit] the EFFORT companies. He claims that he was threatened and told to stop persuading [communities] not to support EFFORT companies. The applicant did not provide any detail of who approached him, or what entity controlled by the EFFORT was to take control of [these communities]. Nevertheless, based on the available country information, the Tribunal accepts that the TPLF is responsible for the activities of the EFFORT and that corrupt practices do occur within the organisation.
The applicant claims that in early 2010, he and [Mr A] attended a meeting at the office of [Mr C], Manager of [EFFORT companies] in [City 1]. They were accused of supporting the opposition and threatened with dismissal and jail if they continued to mobilise [communities] against the EFFORT. The applicant’s evidence was that with the help of his leader, [Mr B], he continued to promote the famer[communities] out of duty to them.
Finally, the applicant claims that in July 2011, a group of armed men went to [Mr A’s] house, a result of which he fled to [Country 1]. In addition, he claims that on or around [a day in] July 2011, the Ethiopian Police went his house and searched it. He was accused of supporting the opposition and claims he was threatened with death if he did not stop his work. Nevertheless, despite his claim that he was threatened with death at his home, in November 2011 he attended the [agency] meeting at which he raised the concerns about political leaders harassing professionals after which he claims he was taken away and interrogated and warned that if he continued to mobilise the [communities] he would be killed. The Tribunal notes that the applicant has not worked for [Agency 1] since his departure for Australia in January 2012, approximately nine (9) years ago.
The Tigray People’s Liberation Front (TPLF) ruled Ethiopia for 27 years at the head of a four‑party coalition designated the Ethiopian People’s Revolutionary Democratic Front (EPRDF).[43] The Tigrayans held great influence over the EPRDF causing other ethnic groups, including the Amhara and the Oromo, to feel marginalised and harbour considerable resentment toward the Tigrayans while the EPRDF were in power. In 2014, large‑scale anti‑government protests occurred in both the Oromia and Amhara states which prompted a declared state of emergency under which approximately 20,000 people were arrested and 1,000 people killed.[44] The protests ultimately led to the resignation of Prime Minister Desalegn in February 2018.
[43] 'Tens of thousands gather in Ethiopia’s capital to condemn Tigray rebels', Anadolu News Agency, 22 July 2021, DFAT Report, p.9
In April 2018, Abiy Ahmed (‘Abiy’) was elected Prime Minister. He merged the EPRDF with three of the country’s four main ethno-regional political organisations – the Oromo Democratic Party, Amhara Democratic Party and Southern Ethiopian People’s Democratic Movement – and five regional allies to form the Prosperity Party. The TPLF, which had founded the EPRDF and held the reins in both the party and the Ethiopian state for over 25 years, rejected the merger and later withdrew entirely, but continued to rule in the Tigray region.[45]
[45] 'Can Ethiopia’s election help overcome age-old structural divisions?', Tegbaru Yared, Institute for Security Studies, 30 July 2021, http//: issafrica.s3.amazonaws.com/site/uploads/psc-137.pdf.
The country information reports that prior to Abiy becoming Prime Minister in 2018, the Ethiopian government (controlled by the TPLF) was extremely sensitive to any political opposition.[46] For example, during the 2010 election campaign, members of the ruling party, the EPRDF, attacked opposition party leaders and vandalised their cars when they attempted to register candidates in Ethiopia.[47] According to Amnesty International, violations of freedom of expression, assembly and movement of opposition party members, misuse of state resources by the ruling party and a lack of independent media coverage were all features of the ruling party’s conduct at that time.[48]
[46] DFAT Report, p.23
[47] http//:wikileaks.org/plusd/cables/10ADDISABABA328_a.html.
[48] Amnesty International Report 2011.
As a result, notwithstanding the fact that the applicant’s evidence to the Tribunal was vague and lacking in specific detail as to the threats of harm he claims to have received in or around 2010 to 2012, based on the available country information that states the TPLF used EFFORT to generate income by corrupt means and that the ruling party (controlled by the TPLF) violated freedom of expression, assembly and movement of opposition party members and misuse of state resources, it accepts the applicant’s evidence that his role of establishing and promoting [Association 1s] was seen by seen by the TPLF as contrary to the interests of EFFORT. As a result, the Tribunal accepts that he was approached and threatened as claimed.
In 2020, the Abiy government postponed national elections due to the coronavirus, causing tensions between the TPLF and the Abiy government. In or around September 2020, tensions between the TPLF and the central government escalated when Tigray authorities defied the Abiy government and held their own regional election, an act that was declared illegal by the central government. In October 2020, the Abiy government cut ties with Tigray and suspended funding for the Tigray region, an action that was perceived by the northern region as a ‘declaration of war’.[49]
[49] BBC News ‘Ethiopia’s Tigray war: The short, medium and long story’, dated 29 July 2021, ww.bbc.com/news/world-africa-54964378.
In or around November 2020, the Ethiopian government[50] placed considerable economic pressure on the TPLF in an attempt to bring it to submission after the outbreak of fighting between the TPLF and the ruling government by freezing the bank accounts of 34 subsidiaries of the EFFORT.[51] The ruling party claims that its companies are “participating in financing ethnic‑based violence, acts of terrorism, and connection with the TPLF, which seeks to overthrow the constitutional order.’[52]
[50] Bloomberg, ‘Ethiopia Tightens Economic Clampdown on Rebel Tigray Region’ dated 18 November 2020 by Samuel Gebre and Simon Marks
[51] ibid
[52] ibid
In or around January 2021, Sebhat Nega, a founding member of the TPLF, was arrested along with six other leaders of the TPLF. He had served as chairman of the TPLF and oversaw the TPLF business empire having amassed hundreds of millions of dollars through corrupt means, through the activities of EFFORT.[53] Meles Zenawi’s wife, Azeb Mesfin, replaced him as CEO. It is reported that EFFORT is currently worth approximately US$5 billion.[54] [Deleted].[55]
[53] Borkena ‘Sebhat Nega, TPLF founder and ideologue, captured alive,’ dated 8 January 2021, ibid
[55] ibid
The applicant claims that he is fearful he will be harmed upon return to Ethiopia by members of the TPLF. The TPLF are the governing authority in the northern Ethiopian region of Tigray, the applicant’s home area. However, despite accepting the applicant was threatened as claimed, the Tribunal notes he was only threatened because of his professional position in establishing and promoting [Association 1s]. By reason of his position, the applicant had the ability to divert the activities of the [communities] and the [Association 1s] through EFFORT for the benefit of the TPLF. That is, but for his job, the applicant would not have faced any harm from the TPLF as claimed. Therefore, in circumstances where the applicant has not been employed by [Agency 1] for more than nine years and where the TPLF leaders (in particular [Mr C]) have been charged with criminal offences relating to the corruption with the EFFORT, the Tribunal does not accept he would be harmed by members of the TPLF if he was returned to Ethiopia. In addition, the Tribunal finds that because he is no longer employed by [Agency 1] and not engaged in the activities of promoting [Association 1s] in Tigray, he would not be harmed if he returns to Tigray in Ethiopia by members of the TPLF as claimed.
As a result, the Tribunal finds that there is no real chance he would be seriously harmed if he is returned to Tigray or any other region of Ethiopia by members of the TPLF arising from his work promoting [Association 1s] as claimed.
The applicant’s evidence was that after he had arrived in Australia, [Mr A] was arrested, interrogated and tortured in Ethiopia. He claims that [Mr A] had told the authorities that it was the applicant who had mobilised the community against the government and that the applicant had links to Ginbot 7. He claims that the government have ‘an open case’ against him and that he would face arrest upon return to Ethiopia. The Tribunal notes that the applicant has no direct knowledge of [Mr A’s] arrest and interrogation, as he was informed by his parents. Further, he did not provide any independent evidence of [Mr A] having been arrested and interrogated or of him accusing the applicant of being a member of Ginbot 7. In addition, there is no evidence of an ‘open case’ against the applicant as claimed. As such, the Tribunal has significant reservations concerning the applicant’s evidence that he was accused of being a member of Ginbot 7 or that there was an ‘open case’ against him as claimed.
In any event, Prime Minister Abiy has lifted restrictions on freedom of expression, released political prisoners, removed terrorist designations of previously exiled opposition groups and initiated reform of legislation previously used to arrest and prosecute government critics.[56] In June 2018, the federal parliament removed Ginbot 7 from its list of terrorist organisations. It has renounced its armed struggle[57] and its leaders have returned from exile to participate in the political process.[58] It is reported that political opposition parties now operate in Ethiopia with greater freedom.
[56] ibid.
[57] ibid., p.28.
[58] ibid., p.16.
Therefore, in circumstances where the applicant was not arrested by the authorities prior to his departure for Australia, he departed the country lawfully and without incident, and he has ceased working for [Agency 1], along with the change of regime in Ethiopia, the Tribunal does not accept the applicant remains of interest to the authorities in Ethiopia. As a result, the Tribunal finds that there is no real chance the applicant will be seriously harmed by the authorities if he is returned to Ethiopia by reason of having been accused of supporting Ginbot 7 or as a result of an ‘open case’ being against him as claimed.
Applicant’s opposition to the TPLF
The applicant claims that if he is returned to Tigray, he is fearful that he will face serious harm from the TPLF who are able to harm anyone who they deem to not support their ideology and regime. The applicant claims that the TPLF are notoriously known for subjecting dissidents to serious harm, and as such, he would be at a real risk of such harm. However, the applicant did not provide any evidence of his political opinion as being opposed to the TPLF. The applicant provided evidence of him being opposed to the TPLF’s action insofar as his responsibilities relating to his employment and to [communities] in the region. Therefore, for the reasons expressed, the Tribunal does not accept the applicant’s evidence that he would be harmed by the TPLF as a result of his political opinion of being opposed to the TPLF. As such, the Tribunal finds that there is no real chance he would be seriously harmed if he is returned to Ethiopia because of his opposition to the TPLF.
Applicant as an ethnic Tigrayan
The applicant instructs that as a Tigrayan, he would be treated with suspicion and subject to serious harm by the Ethiopian authorities in Ethiopia.
The country information reports that armed clashes between the TPLF and federal forces commenced on 3 November 2020, when the TPLF attacked the Northern Command of the Ethiopian army stationed across Tigray, including in the regional capital Mekelle. The TPLF killed soldiers and looted military hardware. On 4 November 2020, the government responded by launching a massive law enforcement operation in Tigray aimed at quelling what it considered an insurgency.[59] Three weeks after launching military operations, following the retaking of Mekelle, the Abiy government declared victory.[60] While fighting between Tigray and federal forces persisted, TPLF leaders remained on the run.[61]
[59] Anadolu News Agency 'Tens of thousands gather in Ethiopia’s capital to condemn Tigray rebels', dated 22 July 2021, Reuters, 'As Tigray war intensifies, Ethiopia parades new army recruits' dated 28 July 2021, ww.reuters.com/world/tigray-war-intensifies-ethiopia-parades-new-army-recruits-2021-07-27/.
[61] Al Jazeera 'Ethiopia regions send troops to back fight with Tigray rebels' dated 15 July 2021, ww.aljazeera.com/news/2021/7/15/ethiopia-regions-send-troops-to-back-fight-with-tigray-rebels.
The TPLF have been designated as a terrorist organisation by the Abiy government. Nevertheless, the TPLF consider themselves the legitimate regional government of Tigray.[62] In late June 2021, Tigray forces (now rebranded the Tigrayan Defense Forces (TDF)) regrouped and recaptured Mekelle.[63]
[62] BBC News ‘Lalibela: Ethiopia's Tigray rebels take Unesco world heritage town’ dated 5 August 2021, ww.bbc.com/news/world-africa-58101912.
[63] The Australian 'Ethiopia regions send troops to back fight with Tigray rebels', 16 July 2021, ww.theaustralian.com.au/news/latest-news/ethiopia-regions-send-troops-to-back-fight-with-tigray-rebels/news-story/8936fd7916b642a50c849e291d5547df.
Abiy withdrew most troops from the region and declared a unilateral ceasefire.[64] However, the TDF rejected the ceasefire and demanded the full withdrawal of Eritrean troops and Amhara regional forces from Tigray, insisting on guarantees against federal forces returning to Tigray, and seeking an independent investigation into atrocities, access for aid and reinstatement of essential services including flights, electricity, telecommunications and healthcare.[65] In response, Abiy tightened a ‘blockade’ around Tigray, choking the region’s entry points from receiving aid and cutting off power and communications infrastructure.[66]
[64] ibid.
[65] Africa Confidential 'Fighting escalates as federal ties fray', 22 July 2021, The Economist 'In Ethiopia’s civil war, Tigrayan forces take the offensive', 31 July 2021, USAID, 'Ethiopia – Tigray Conflict Fact Sheet #10 Fiscal Year (FY) 2021 ', 30 July 2021,p.2,https//:reliefweb.int/sites/reliefweb.int/files/resources/2021_07_30%20USG%20Tigray%20Crisis%20Fact%20Sheet%20%2310.pdf; The New Humanitarian ‘Aid neutrality under fire in Ethiopia’s widening conflict’, 22 July 2021, Office for the Coordination of Humanitarian Affairs (OCHA) 'Ethiopia – Tigray Region Humanitarian Update, Situation Report', 26 July 2021, https//:reports.unocha.org/en/country/ethiopia/.
The TDF then launched an offensive to drive ethnic Amhara forces from disputed territory in western and southern Tigray.[67] Tigrayan forces also pushed into Afar, the region to the east of Tigray, where they said they planned to target Amhara troops fighting alongside the federal military.[68] In response to Tigrayan offensives, Abiy reversed his ceasefire decision and mobilised militia forces throughout the country’s ethnic regions. Amhara security forces have also shifted to fight the TDF with the government forces.[69] On 18 July 2021, Abiy declared a ‘total war’ on the TPLF – contingents of Special Forces (professional soldiers) and local militia have been sent from all of Ethiopia’s regions (save Tigray) to encircle the ‘rebel region’.[70]
[67] Agence France Presse (AFP) - France 'Ethiopia regions send troops to back fight with Tigray rebels', 16 July 2021, 20210716153308.
[68] Reuters 'As Tigray war intensifies, Ethiopia parades new army recruits', 28 July 2021, 20210728104057.
[69] 'Ethiopia regions send troops to back fight with Tigray rebels', Agence France Presse (AFP) – France, 16 July 2021, 20210716153308.
[70] Africa Confidential, 'No good options on the table', 22 July 2021, 20210723134934.
The country information reports that the conflict in Tigray has inflicted an enormous humanitarian and human rights toll on the people of the region. It is reported[71] that thousands of people have died in the fighting with approximately 2 million people being displaced and more than 5 million relying on emergency food aid. Further, it has been reported that the military operations to quell the TPLF have been accompanied by ‘numerous civilian massacres, looting, and other human rights abuses amidst a worsening food situation’.[72] From an estimated Tigrayan population of 6 million people, approximately 5.2 million required humanitarian assistance with some 2 million others being displaced because of the current conflict.[73]
[71] Reuters 'As Tigray war intensifies, Ethiopia parades new army recruits' dated 28 July 2021, The New Humanitarian ‘Aid neutrality under fire in Ethiopia’s widening conflict’ dated 22 July 2021, Relief web 'Ethiopia – Tigray Conflict Fact Sheet #10 Fiscal Year (FY) 2021’ dated 30 July 2021, reliefweb.int/report/ethiopia/ethiopia-tigray-conflict-fact-sheet-10-fiscal-year-fy-2021.
A July 2021 report[74] published by researchers at Belgium’s Ghent University states that ‘[w]hile no numbers exist for the total amount of civilian casualties’ 2,805 deaths are ‘well‑documented’ and an additional 9,642 civilian deaths have been documented from (social) media reports, NGO reports and press releases. The researchers also highlight 245 massacres during the post‑November 2020 conflict,[75] some of which human rights groups such as Amnesty International have labelled ‘crimes against humanity’.[76] Sources also describe ‘a systematic campaign of ethnic cleansing in Tigray’ in which ‘fighters supporting the Abiy government […]’ were ‘deliberately and efficiently rendering Western Tigray ethnically homogeneous through the organized use of force and intimidation. […] Whole villages were severely damaged or completely erased’.[77]
[74] Sofie Annys et al, Ghent University ‘Tigray: Atlas of the humanitarian situation’, dated July 2021, pp.23, 27, ibid.
[76] The New York Times ‘Ethiopia’s War Leads to Ethnic Cleansing in Tigray Region, U.S. Report Says’ dated 26 February 2021 updated 1 April 2021 by Declan Walsh, Ibid; National Public Radio, ‘9 Things To Know About The Unfolding Crisis In Ethiopia's Tigray Region’ dated 5 March 2021, >
On 7 August 2021, the United Nations reported that fighting in Tigray had pushed 400,000 people into famine-like conditions,[78] while a report by Amnesty International dated 10 August 2021 refers to widespread subjection of women and girls in Tigray to sexual violence by members of the Ethiopian National Défense Force (ENDF), the Eritrean Défense Force (EDF), the Amhara Regional Police Special Force (ASF), and Fano, an Amhara militia group.[79]
[78] The Australian 'Ethiopia threatens to deploy “entire defensive capability” after rebel advances', dated 7 August 2021, Amnesty International ‘Ethiopia: Troops and militia rape, abduct women and girls in Tigray conflict – new report’,10 August 2021, ‘Ethiopia: “I don’t know if they realized I was a person”: Rape and sexual violence in Tigray, Ethiopia’, Amnesty International, 10 August 2021, 20210811161042.
In addition to the conflict with Tigrayan forces, Human Rights Watch[80] reports that longstanding grievances and polarisation over historical and complex issues concerning land, politics and identity have led to violence among ethnic communities in Ethiopia. It reports that attacks against ethnic Tigrayans in Addis Ababa have increased after the fighting commenced in November 2020.[81] It reported that since July 2021, the authorities in Ethiopia have arbitrarily detained, forcibly disappeared and committed other abuses against ethnic Tigrayans in Ethiopia’s capital, Addis Ababa.[82] Following the eight months of fighting in Ethiopia’s northern Tigray region, Tigrayan forces recaptured the regional capital, Mekelle, while government forces withdrew. Tigrayan forces then moved quickly into the neighbouring Afar and Amhara regions, causing large scale displacement. Since then, serious human rights violations by government security forces have occurred against ethnic Tigrayans in Addis Ababa.[83] It was reported in August 2021 that 300 Tigrans were arrested in July suspected for supporting TPLF. Security forces have stopped and arrested Tigrayans on the streets and in cafés and other public places, and in their homes and workplaces, often during warrantless searches. A Tigrayan political activist and a Tigrayan aid worker, both based in Addis Ababa, were among those arrested in July, as were at least a dozen journalists and media workers who have reported on abuses against Tigrayans.[84]
[80] Human Rights Watch, ‘Ethiopia Events 2020’, Human Rights Watch ‘Ethiopia: Ethnic Tigrayans Forcibly Disappeared’ dated 18 August 2021 Reuters ‘Hundreds of Tigrayan Detained in Ethiopian Capital in recent weeks, witnesses say’ dated 15 July 2021 detained in ibid.
[83] ibid.
[84] ibid.
Finally, it is reported that as a part of the conflict, ENDF troops aided by Eritrean soldiers have tortured, sexually assaulted, killed and displaced Tigrayan civilians.[85] Troops and militias aligned with the Ethiopian government have subjected hundreds of women and girls to sexual violence in Ethiopia’s war-torn Tigray region.[86]
[85] Reliefweb, ‘Women in Tigray Face Increased Risk of Sexual Exploitation and Abuse Amid Humanitarian Crisis’ dated 26 august 2021 Amnesty International Report 11 August 2021 >
Therefore, based on the applicant’s evidence and the available country information, the Tribunal finds that there is a real chance that the applicant and his family as ethnic Tigrayans will be seriously harmed by reason of their ethnicity if they are returned to Ethiopia.
Therefore, having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 5J(1)(a) and s 5J(1)(b) of the Act and finds that he is a refugee pursuant to s 5H of the Act. As such, the Tribunal finds that the applicant does satisfy the criterion set out in s 36(2)(a).
Accordingly, having found that the second, third and fourth applicants are members of the same family unit, the Tribunal finds that the applicant is a non-citizen in Australia, who is a member of the family unit of the second, third and fourth applicants who are also non‑citizens in Australia, in respect of whom the Tribunal is satisfied that Australia has protection obligations as a refugee.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicant satisfies the criterion set out in s 36(2)(a) of the Act.
The Tribunal is satisfied that the applicant is a member of the same family unit as the second, third and fourth applicants for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the applicant’s application. It follows that the second, third and fourth applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) of the Act and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the second, third and fourth named applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Jason Pennell
Senior Member
In 2014 EFFORT controlled companies valued more than $125 million (see ‘BTI 2014 Ethiopia’, Bertelsmann Stiftung Transformation Index, 1 January 2014 CISA447F082975)
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