2108296 (Refugee)

2108296 (Refugee) [2022] AATA 3106 (28 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2108296
COUNTRY OF REFERENCE:                   Ethiopia
MEMBER:Peter Haag
DATE:28 July 2022
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 Act.

Statement made on 28 July 2022 at 11:53am
CATCHWORDS
REFUGEE – Protection Visa – Ethiopia – political opinion – involvement with opposition parties – unjust confiscation of family’s land – an anti-government activist –a similar risk profile to the TPLF, their allies and the Tigray State government –Welkayit Tegede origin – applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 36, 65, 499
Migration Regulations 1994, Schedule 2
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 Home Affairs on 24 June 2021 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 visa on 2 February 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
The applicant appeared before the Tribunal on 9 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages. [Mr A] did not require the assistance of an interpreter.
The applicant was represented in relation to the review.
Criteria for a protection visa
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, he or she 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.
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 because the person is a refugee.
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: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. 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-LA, which are extracted in the attachment to this decision.
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 the 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 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’). 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), which are extracted in the attachment to this decision.
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 report dated 12 August 2020 prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Section 5AAA of the Act
The Tribunal notes that pursuant to s 5AAA of the Act, it is for the applicant to specify all particulars of a 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 the applicant in specifying, any particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Applicant’s identity
In his application for a protection visa, the applicant claimed to be an Ethiopian citizen, born [date] in Kafta, Welkait Tsegede Semen Awraga, Ethiopia. The applicant claimed he could speak, read and write Tigrinya, Amharic and Arabic. He stated that he was of Amhara Welkait Tsegede ethnicity, and an Ethiopian Orthodox Christian.[1]
[1] Part C – application for a protection visa, Department file [DELETED], Doc ID 8607166.
At the time of application, the applicant stated he had a wife who was born in Sudan but living in Australia as an Australian citizen. He also stated that he was separated, with the duration of the relationship being [June] 2014 to [December] 2016. Other contacts in Australia included his mother-in-law and father-in-law.[2]
[2] Part C – application for a protection visa, Department file [DELETED], Doc ID 8607166.
The applicant attended school in Kefta, Ethiopia, up until 2006. He then studied [from] December 2006 to June 2007. From January 2009 to June 2014, he undertook Bible Study with [a] Church in Khartoum, Sudan. After arriving in Australia, he undertook courses [in] 2015 and 2017 respectively.[3]
[3] Part C – application for a protection visa, Department file [DELETED], Doc ID 8607166.
The applicant indicated in the protection visa application that he undertook compulsory military service from December 2006 to January 2009 in Ethiopia, listing his ‘Unit, battalion, brigade, rank’ as ‘[deleted]’. He then worked as a [occupation] in Khartoum, Sudan, from 2009 to 2014. After arriving in Australia, he worked as a [occupation] through an employment agency from June 2014 to June 2016. He had been employed at [a workplace] as a [occupation] since 2016.[4]
[4] Part C – application for a protection visa, Department file [DELETED], Doc ID 8607166.
The applicant provided the Department with a copy of a Refugee Card from the Republic of Sudan, issued in the applicant’s name on [date] January 2010, with a certified translation; a ‘Document for travel to Australia’, issued in the applicant’s name by the Australian Government, stamped with an arrival date of [date] June 2014;[5] and a baptismal certificate from the [Church].[6]
[5] Department file [DELETED], Doc ID 8607165.
[6] Department file [DELETED], Doc ID 8607205.
The documents provided by the applicant are consistent with his evidence to the Tribunal in relation to his identity. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant the Tribunal finds that he is a citizen of Ethiopia, and as such his protection claims will be assessed against Ethiopia as the country of reference and ‘receiving country’ respectively.
Migration history
The applicant arrived in Melbourne, Australia on [date] June 2014, using a ‘Travel Document’ issued for one-way travel to Australia, after departing from Khartoum, Sudan on [date] June 2014. The applicant was registered as a refugee in Sudan with the United Nations Refugee Agency (UNHCR) on [date] January 2009 and applied for refugee status in Sudan [in] January 2010. He was assessed for refugee status by the UNHCR [in] May 2010.[7]
[7] Part C – application for a protection visa, Department file [DELETED], Doc ID 8607166.
He claimed to have lived in [a] refugee camp from 1987 to 2001, and then in a tribal village in Kafta until 2009. He then lived in a refugee camp in Khartoum, Sudan from 2009 to 2014.[8]
[8] Part C – application for a protection visa, Department file [DELETED], Doc ID 8607166.
The applicant applied for a Class XA – Protection (Subclass 866) visa on 2 February 2018. The delegate refused the application on 24 June 2021.
Applicant’s evidence
In support of his application for a protection visa, the applicant attached the following claims to his application form:[9]
[9] Department file [DELETED], Doc ID 8607166.
My father [fled] to Sudan in 1987 because of political problems with the Derg regime. The Derg regime confiscated all his land and farm equipment. He denounced the Derg regime and as a result the Ethiopian government attacked him. He fled with my mother along with me and a close family friend, [Ms C]. [Ms C] came to Australia on a 200 class visa as she was referred to Australia by the UNHCR. Like me, her husband [was] a member of the Kefagn Patriotic Front and he refused to fight against Eritrea under the Mengistu regime. He was pro Welkayit, our region in Ethiopia and was not interested in fighting for socialism or the governments anti Eritrean stance. As such he was declared a traitor and escaped to Sudan along with my father. This all happened when I was [little], but as I grew older it certainly had a major impact on my life. I eventually married [Ms C]'s daughter [Ms D] in 2014. [Ms D] sponsored me under a spouse visa in 2014. Sadly, my father died in 1990 from [an illness].
In 1991, the EPRDF Ethiopian People's Revolutionary Democratic Front finally crushed the Derg regime and promised democracy for Ethiopia. My mother and I returned to Ethiopia in 2001. We had hoped things would have changed. [Ms C] and her husband remained in Sudan having no faith in the EPRDF and fears that because of her husband’s political views he would be persecuted. He would be proven correct as the EPRDF government under Meles Zenawi quickly abandoned much of its democratic rhetoric and directly persecute me and my family.
Welkayit Tegede had traditionally been part of the Amhara region. It had fertile lands with many farms that grew food and raised livestock. The Tigray region of Ethiopia had always had a keen interest in Welkayit Tegede and other neighbouring areas of Ethiopia. The Tigray People Liberation Front, the major component of the current government of Ethiopia and dominates the EPRDF was committed to confiscating our region. In fact, in 1976, the Tigray People's Liberation Front (Woyanne) that is currently ruling Ethiopia through its control of the EDRDF crafted its Greater Tigray Manifesto. The manifesto called for transforming the northern Ethiopian region of Tigray in to an independent country through expansionist policies. For Greater Tigray to become a reality, Meles Zenawi and his Woyanne comrades decided that they have to take control of the central government in Ethiopia and systematically dismantle the country. They also appropriated lands from neighboring regions of Gonder and Wollo. Welkayit Tegede which is located near Gondar and part of the Amhara region was forcibly declared part of the Tigray region. People of Amhara background were now made to move under threats of force, their property confiscated. It was a type of ethnic cleansing.
The Ethiopian government also devised a settlement programs for the people of Tigray to settle in regions of Humera, Welkayit Tegede and Telemt. TPLF settled several thousands of people of only Tigray origin, who were living in Sudan due to wars and drought, to different parts of Welkayit Tegede, Telemt and Humera. The EPRDF gave lands of the region to thousands of former TPLF fighters who were retired as a reward. It has been estimated that the TPLF settled about 700, 000 to a million people from Tigray to Gondar regions of Welkaite Tegede, Humera and Telemt. These settlement programs were financed by the money and resources from Ethiopian government not only offering free lands, but giving them resources as well in order they be well established. In turn, the natural population of the region was treated as second class citizens in all aspects of life. We were forced to learn Tigrigna and our native Amharic was discouraged. The government in order to create stability in Welkayit Tegede hunted down prominent personalities and elder people and eliminated one by one, by direct killing, or ambush in the night. People from Welkayit Tegede were often executed with government officials leaving no trace. The government abandoned all pretenses of human rights and tried terrorizing the people into submission.
The TPLF eventually began massacring the people of Welkayit Tegede in broad day light and gave orders not to take corpses from the places where they had massacred people. I know that the TPLF comrades ordered that any person who attempted to take and bury them would be executed as well. One time TPLF killed people and left them on the street and two priests were shocked to see that and said, "This is anti-God and against the teachings of Jesus, not to be able to burry someone who is dead by any cause "and buried them. Later the two priests were executed by TPLF. The TPLF is the backbone of the Ethiopian government. In fact the TPLF controls the EPRDF. The Ethiopian government military strategy to maintain their control of Welkayit Tegede is that they do not keep people of those areas as prisoners, because they knew that, as long as they live, first they give hope to the people to keep resisting the government usurpation of their lands and secondly, the natives of Welkayit Tegede will be a source of rebellion against the government. This is certainly the case in 2018.
My mother and I suffered at the hands of the Ethiopian government. I was denied an education and only achieved a [specified grade] standing. I had suffered abuse at school from teachers, all of whom supported the government. Name calling was common and my mother was denied basic materials because of my Amharic Welkayit Tegede heritage. Even at school, I was forced to learn Tigrigna, the language of the government oppressors. I became more and more angry at the government and started to fight back. At the age of [age], I was forced to leave school. Persecution had fragmented my education so that at [age] years of age I only had a [specified grade] education.
The EPRDF took over all my father's land. We had become landless in our own region. We had nothing. I should point out my mother died in 2008 as she had been denied any medical treatment.
I had a particular fear of my own local government administration or Kebele in Welkayit Tegede. I had many reasons to fear my Kebele. In Welkayit Tegede I had to join one of the country's Kebele: housing groupings organized by the government. The Kebele corresponded roughly to neighbourhoods in urban centres and to larger geographic areas in more sparsely populated rural areas. Kebele officials were expected to keep their communities under perpetual surveillance and to report any subversive activities to higher authorities. The Kebeles were also used to disseminate government propaganda, implement government policies and maintain general order and discipline. The current Ethiopian government maintains Kebeles as the smallest unit of local government throughout Ethiopia to consolidate and extend its power. Kebele officials wield a great deal of power over people. In addition, most Kebeles have their own tribunals as well as small prison houses. The Kebele tribunals have the power to issue binding decisions in local disputes and mete out fines and brief periods of imprisonment as punishment for various minor infractions. Local Keble's have the power to call meetings where attendance is compulsory. At these meetings Kebele officials would pass on government propaganda. I knew that members of the local Kebele were watching me and passing on information concerning my support of the Kefagn Patriotic Front activities to the police. The KPF would join with Kinijit which now has links with the Ginbot 7. Ginbot 7 is now classified as a terrorist organisation in Ethiopia even though it has not called or performed any violence. I am certain people in the Kebele would also exaggerate my activities to gain favour with the government police. In 2004, as Ethiopia was preparing for the 2005 election, I declared my concerns for the Amhara of Ethiopia who were being dispossessed and killed in Welkayit Tegede. I was only [age], but I was arrested by the police. I was sent to [prison]. I recall how the police told me that certain people in my Kebele had reported that I was agitating people to violently overthrow the government by force. With reports such as this, I could face the death penalty. The police were clearly organising a dossier to be used against me.
I was detained at [prison] for one month. My prison cell [was] cramped, with little space. It was crowded with poor sanitary conditions. I shared a bucket with many men. The cell smelt of urine and faeces. It was poorly lit and food was severely rationed. Often, I was very hungry. This was all on top of the physical and mental abuse I suffered at the hands of the prison officials. My feet were beaten with a stick and I was told to accept that Welkayit Tegede was now part of Tigray. My resentment towards the regime grew in intensity and I was determined to oppose the government.
Not only did the Kebele assist the police in persecuting me but they also used other forms of government administration to persecute me and try to force me to “tow the government line”. I was finding employment rather difficult. Many employers in my Kebele were fearful of hiring a government “trouble” maker. Employers were advised of people they should not hire by Kebele officials. To go against this advice would place your shop or store at risk. I know that I was labelled by the government. Many of the former Amhara businesses had been confiscated by the government and were now owned by government supporters usually from a non-Amhara background, some employers had even told me that I had been labelled suspect by government officials.
In 2006 I was conscripted into the Ethiopian Army. I was sent to [Town 1] Training [Camp]. Part of my training was under [Mr E]. [Mr E] is an Amhara man and has been and continues to be an outspoken critic of the regime and its usurpation of Welkayit Tegede and other Amhara lands. I was greatly influenced by [Mr E]. I often spoke with [Mr E] and I appreciated his compassion for the people of Welkayit Tegede and how we had suffered. [Mr E] was also from Welkayit Tegede and he condemned the persecution of Welkayit Tegede people. He spoke of how he loved Welkayit Tegede and that it should be free and allowed to flourish. Eventually, [Mr E] would be arrested. When he was in Gonder, in the Amhara zone he condemned the government. [Mr E] had retired from the army. He was condemning the increasing take off by Tigray of Amhara lands which now reached the Sudan border. He was soon to be arrested and placed in jail.
… [unreferenced citations regarding the arrest of [Mr E] …
Like me, [Mr E] had publically condemned the government. Unlike [Mr E] I was in Australia and did not have to fear Ethiopian government reprisal. Before going to [Town 1], I had joined the Kinijit or the CUD party. There had been a spirit of great hope for the 2005 election in Ethiopia. Many people hoped that there would be a change of government. In 2004 the AEUP merged with the Ethiopian Democratic League (EDL), the Ethiopian Democratic Unity Party-Medhin (EDUP-M), and the Rainbow Alliance/Movement for Democracy and Social Justice in order to form the Coalition for Unity and Democracy (CUD). The CUD is the main political opposition group to the government and resented by the Zenawi regime. My hope for a new Ethiopia was soon to be dashed.
I had supported CUD (Kinijit) coalition during the May, 2005 election. The CUD is made up of a coalition of various political parties which united for the 2005 election to overthrow Zenawi and his Ethiopian People's Revolutionary and Democratic Front (EPRDF). Throughout 2004, I was active and distributed literature and tried to recruit other members to the CUD cause. At Kebele meetings I also denounced the Ethiopian regime and declared Zenawi had been in power too long. I also noticed that the police began to follow me and watch my house. The police asked my neighbours whether they knew anything about my involvement with AEUP. Some police even suggested to my neighbours that I supported armed revolution against the government. I have never advocated violence. This was the police trying to silence me. I strongly stood against the government and its brutal abuses of my people and land. The EPRDF government was a dictatorial regime. The Welkayit Tegede, Tselemt and Armachiho people have specially been victims of carefully strategized plan to eradicate them from their native land. Woyane's strategy dates more than three decades ago but I along with other brave people of this region have defended our land and kept our proud Amhara identity.
The army transferred me from [Town 1] to Mekele which is in Northern Ethiopia in the heart of Tigray province. In Tigray persecution against me increased. Most of the soldiers with me were of Tigray origin. I was abuse because of my Welkayit Tegede origin and by continued denunciation that Welkayit Tegede was Tigray territory. In fact, I maintained that the government had abandoned the 1992 Constitution, that they had illegally occupied my homelands and that the current government of Ethiopia was illegitimate. I claimed that the 2005 Ethiopian was a farce and that the CUD who I supported and campaigned for was the true victors of the election. The Ethiopian government was cracking down on all opposition. I was caught up in these excesses by the Ethiopian government.
… [cites United States State Department country report on Ethiopia, 6 March, 2007]
Army officials treated me suspect. At times I would be treated harshly by officers. This included beatings, abuse , ridicule and denial of leave. It was a time of great persecution. However, I remained true to my convictions.
[In] November, I was arrested by the military police and sent to [a] prison for re-education. [The] term “re – education” in Ethiopia usually means subjecting a person to torture to tow the government line. The officers had declared me anti-government, anti-peace and anti-constitution. These are serious crimes in Ethiopia and can result in the death penalty. I was abused in [prison]. I was made to stand and jump on gravel, was regularly beaten and locked up in a dungeon. I longed for death.
… [cites Human Rights Watch 2013 report] …
I was released from [prison] on [date] December, 2008. The prison officials had made me sign a confession that I was promoting rebellion. I was finger printed and photographed. It was made clear to me if I was arrested again that I would be executed. Upon my release from prison, the prison officials ordered me back to my army unity. I had one week to be back in service. I travelled to Gondar where I met some friends and relatives. I was not going to return back to the army. I feared that I would be arrested again and killed or placed in prison. I was absolutely petrified. My relatives gave me some money and I decided to flee to Sudan. I escaped through Metema on the Ethiopia Sudanese border. I paid a truck driver who hid me with his cattle and was taken to Khartoum, Sudan. I entered Sudan early January, 2009. In Khartoum I registered with the UNHCR and Sudanese government. I was forced to flee Ethiopia due to ethnic and political persecution conducted by the Ethiopian police, security forces and government-sponsored vigilante groups. This persecution resulted in my imprisonment, torture and the denial of basic government services, education and employment.
I remained in Sudan from January 2009 until June 2014. In Sudan I suffered a great deal. In Khartoum I had registered with the UNHCR and the Sudanese government Ministry of Refugees. The situation between the Sudanese government and the UNHCR is very tense in Sudan with the Sudanese police even arresting UNHCR registered Ethiopian refugees. To compound this problem, Ethiopian government agents operate in Sudan. I always had to keep an eye out for these operatives. The positive relations between the Ethiopian government and Sudanese government had also increased the pressure and persecution against me and other Ethiopian refugees in Sudan. My situation in Sudan can best be described as desperate, a living hell. As a Christian the situation in Sudan was very dangerous. Christians were barely tolerated and often ridiculed by Muslim Sudanese who made up over 90% of the population. I had experienced this ridicule because of my faith and the fact that I was a refugee. Often I was very scared. I remember seeing some Muslims out in the streets, dancing and chanting “Come to Jihad” and the “Cross is the enemy of God", with the security forces chanting along with them!' These abuses against Christians were increasing. With the increasing problems in the Middle East, I was seeing that violence against Christian individuals, churches and communities was escalating dangerously and the courts supporting these attacks by increasingly referring and implementing Sharia law. It had now reached a point where I was openly abused, attacked and violently beaten because of my faith. The police did nothing to protect me and often supported these abuses. I was facing serious hardship and persecution. This persecution in Sudan was based solely on my religion and ethnicity. The Sudanese authorities had not done anything to protect me. In Sudan, I maintained my interest in Ethiopian politics and continued to denounce the government. I continued to support Kinijit and condemned the Ethiopian government’s ethnic policies of divide and rule and its continued support of Tigray expansion into other ethnic lands. I wanted a democratic, equality for all ethnic groups and a society that was free. I now began participate in many Ginbot 7 activities. Ginbot 7 was an offshoot of the CUD and its name derives from the May 2005 election which was a total farce with the government achieving over 90% of the vote.
I was totally committed to the Ginbot 7 agenda. I distributed Ginbot 7 leaflets, discussed it views with other Ethiopians and participated in many Gibot 7 activities. The Ethiopian government, through its Embassy in Khartoum was aware of this activity.
… [cites Ginbot 7 Mission Statement] …
In Sudan, I could return to Ethiopia. My outspoken criticism of the Ethiopian regime and political beliefs; my previous arrests; my desertion from the army, and my Welkayit Tegede origin will certainly bring me to the attention of the Ethiopian security forces if I returned home. As a friend told me, a prison cell awaits me in Ethiopia. The Ethiopian government is aware of my anti-government membership in Sudan. The Ethiopian government has spies and informants in Sudan gathering information on people in Sudan to aid in its attacks on opponents to the government. Clearly returning to Ethiopia was out of the question.
During this time my future wife's parents were living in in Sudan in [a] Refugee Camp. As my family knew one another in Ethiopia and we were close friends they had according to our culture arranged our marriage. My fiancé, [Ms D] applied for my prospective marriage visa which was granted on the 27 June, 2014. Shortly after my arrival, we were married by a civil celebrant. We had hoped for a big wedding but we could not afford it. At first our marriage was working. However, we began to argue. She did not want to have any children. She started seeing another man. I was very sad. She kicked me out of her parent’s home. We had been very happily married at first. My wife has now moved from her parent's house where we had been living and they allowed me to return to their home. I declined their offer and now live alone in a bungalow in [a suburb]. They are very disappointed in their daughter and her involvement with other men.
In Australia I have continued to oppose the government of Ethiopia. I am still associated with Ginbot 7 and have participated in rallies against the Ethiopian government. In fact, I have led some rallies against senior Ethiopian officials when they have visited Australia. The Ethiopian government is keenly aware of my anti - activities.
In Australia, I am also a member of [an] Association. I have been involved with this association as well as Ginbot 7 since my arrival in Australia. During the [Association] I have constantly denounced the Ethiopian government and its brutal repression of the Welkayit people and its occupation of our lands. In fact, in during [a] celebration I was the main presenter. During my speech I denounced the Ethiopian government. I also organised the Candle ceremony in recognition and memorial for two Welkayit Tegede University students killed by the EPRDF. These activities can be seen on [social media].
The current situation does not allow me to return to Ethiopia under any circumstances. There is no region where I can go to in Ethiopia and feel safe. The Zenawi regime’s policy of dividing Ethiopia into Ethnic zones has failed, and with this, there is an increased ethnic, political and religious tension. Naturally, as the EPRDF clings to power, and he seeks support from its own Tigray based ethnic group and groups benefiting from government policy to suppress people. Opposition members and supporters, journalists, students anyone under suspicion of opposing the government are persecuted. Naturally, the Tigray occupation of my lands and that of other ethnic groups has increased government repression. My open opposition to the government has and will continue to open me to government abuse. I have no choice but to remain outside of Ethiopia.
… [cites Guardian newspaper article ‘State of emergency likely to ramp up repression in fractured Ethiopia] …
The situation has not improved for me in Ethiopia. In fact, the situation has become more repressive. I have maintained my political activities both in Sudan and now in Australia that oppose the current regime. This includes the Kefange Patriotic Front, The CUD (Kinijit) Gibot 7 and the [Association]. Ginbot 7 has been declared a terrorist organisation in Ethiopia and my denunciation of the Ethiopian government places me at immediate arrest if I returned to Ethiopia. The Ethiopian government continues to persecute all who oppose the government. Academics, Teachers, Journalists, Union Leaders, Students and all whom the government believe are a threat are persecuted, jailed or are forced to flee. The EPRDF has total control. This situation makes it impossible for me. My high political activities against the government here and in Sudan and Ethiopia have given me a profile with the Ethiopian government.
… [cites US State Department, 2017] …
Clearly in this environment I cannot return to Ethiopia.
When I fled Ethiopia I had deserted the army. This is a criminal offence in Ethiopia. This alone would place me in prison. The Canadian Refugee Board reported, Military service in Ethiopia is reported to be compulsory and last for 30 months, with six months of reserve training for all males and females between the ages of 18 and 50 who do not perform the regular military service. [Europa Year Book, (London: Europa Publications, 1988), p. 989.] Those who evade or attempt to evade military service are reportedly imprisoned, and there is no alternative non-military service. [Ethiopia: Political Imprisonment and Torture (London: Amnesty International, 1986), pp. 4-5.]
My previous political activities and detentions in Ethiopia place me at great risk if I was to return. I am well known to the government and security forces in Ethiopia.
There are many reasons why I cannot return home. I fear persecution from three main areas in Ethiopia. First of all I would be persecuted by the Ethiopian security forces. My previous involvement with opposition parties and my current Ginbot 7 membership and [Association] Membership where I campaigned against the government both in Africa and now in Australia. This includes demonstrating against Ethiopian officials when they visit Australia and preparing [social media] videos attacking the government. I have also organised community activities denouncing the government. My previous imprisonment and political activities make me an open target in Ethiopia. The current regime has vowed to crush Ginbot 7 and its supporters. All opposition is crushed in Ethiopia.
I fear the government oppression because of my ethnicity. “The government's emergency decree, which, among other things, bans most political activity, including watching opposition satellite channels, has seen tens of thousands detained on suspicion of being party to the unrest. "Some 11,607 individuals have so far been detained in six prisons, of which 347 are female, in connection with the state of emergency declared in the country," official Taddesse Hordofa said in a televised statement on November 12 after the state of emergency was implemented. Even though the emergency decree has ended people still are attacked." I am known by the government. This places me at great risk. The government's spy and security network spreads throughout my region and the entire country. There is no area where I would be safe. The government and has killed and arrested thousands of people in Ethiopia. All evidence points out that I would be a target.
I would be persecuted by the local Kebele. This administrative system is designed to keep tabs on all citizens. It has a far reaching spy network and encourages public reporting on persons with money or who have opposed the government. They would certainly target me and ensure my disappearance. The fact that I fled Ethiopia would confirm in the government that I was a traitor and a threat. People in this category disappear in Ethiopia. This fact alone prevents my return to Ethiopia. I am certain that if I returned to Ethiopia today, that the government would arrest me.
I have lost everything in Ethiopia. I lost my home, my freedom and any opportunity for gainful employment. I had wanted to work in Ethiopia but the Kebele (local government) in Ethiopia had black listed me. I not only was denied employment for my political beliefs but denied government services. Ethiopia was my prison, a prison I had to escape. Prison only awaits me in Ethiopia along with torture and other abuses.
Where do I go? Ethiopia's current government will torture, jail or even kill me if I returned home. This is not an option. I just want to call Australia home.

The applicant also provided to the Department:
a)    A letter of support from [an] organisation, dated 14 November 2018, with a printout from the organisation’s website;[10]
[10] Department file [DELETED], Doc ID
b)    A further statement from the applicant, dated 5 September 2018, regarding the appointment of Abiy Ahmed as Prime Minister of Ethiopia, including country information from the US State Department, Australian and Canadian governments, Tigray Online, Tesfa News, an essay from Hilary Matfes, amongst other sources of information;[11]
[11] Department file [DELETED], Doc ID 8607173.
c)    Article from the Immigration and Refugee Board of Canada, ‘Ethiopia: Treatment of ethnic Amharas; the All Ethiopian Unity Party (AEUP), including treatment of its members and supporters by authorities (2014 November 2016)’;[12]
[12] Department file [DELETED], Doc ID 8607174.
d)    Statutory declaration from [the] founder of [an organisation] Melbourne branch, signed and dated 30 March 2018, with photographs of the applicant speaking and with members of [the organisation], a map of Greater Abay Tigray and articles regarding [the organisation];[13]
[13] Department file [DELETED], Doc ID 8607178.
e)    Unsigned and undated statement appearing on a standard form statutory declaration purporting to be a statement made by [a named person];[14]
f)     Statement from [a named Amhara organisation], dated 22 December 2016;[15]
g)    Article from ESAT News, Ethiopia: ‘TPLF annex areas in Amhara region to Tigray’, dated 8 September 2017;[16]
h)    Letter of support from [an official] of Semine Gonder Welkait Tsegede EDR, dated [January] 2018;[17]
i)   Letter of support from Gonder Province Welkait Tsegede Telemt Amhara Identity Civic Association in North America, dated [September] 2019;[18]
j)   Article from Semine Gonder Welkait Tsegede EDR dated [September] 2019, criticising the Abiy Ahmad [government];[19]
k)    Article from the Guardian, ‘Ethiopia’s security forces accused of torture, evictions and killings – report’, dated 29 May 2020;[20]
l)   Letters of support from [an official of] Semine Gonder Welkait Tsegede EDR, undated;[21]
m)   Donation receipt for $300 to [a] Committee Australia from the applicant, dated 10 December 2020;[22]
n)    Link to Semine Gonder Welkait Tsegede Edir 7th Anniversary 2017 [social media] video.[23]
[14] Department file [DELETED], Doc ID
[15] Department file [DELETED], Doc ID 8607185.
[16] Department file [DELETED], Doc ID 8607187.
[17] Department file [DELETED], Doc ID 8607188.
[18] Department file [DELETED], Doc ID 8607189.
[19] Department file [DELETED], Doc ID 8607191.
[20] Department file [DELETED], Doc ID 8607192.
[21] Department file [DELETED], Doc ID 8607193.
[22] Department file [DELETED], Doc ID 8607201.
[23] Department file [DELETED], Doc ID 8607206.
The applicant submitted to the Tribunal to following:
a)    A response to the delegate’s decision with supporting country information;[24]
b)    Statutory declaration in support of the applicant from [a named person], signed and dated 11 April 2022;[25]
c)    Statutory declaration in support of the applicant from [a named person], signed and dated 24 May 2022;[26]
d)    Oath from [a named person], dated 25 December 2021, with translation; [27]
e)    Printout of internet article, ‘Victims And Victimization In Ethiopian Politics: Targeting The Amhara On Three Fronts – OpEd’, 13 April 2022, by Girma Berhanu, Department of Education and Special Education (Professor), University of Gothenburg;[28]
f)     Document titled ‘Abuses in Conflict’ with document file path.[29]
[24] Tribunal file 2108296, Doc ID 9794240.
[25] Tribunal file 2108296, Doc ID 9803358.
[26] Tribunal file 2108296, Doc ID 9803359.
[27] Tribunal file 2108296, Doc ID 9803360.
[28] Tribunal file 2108296, Doc ID 9823117.
[29] Tribunal file 2108296, Doc ID 9823206.
Consideration of the claims and material evidence
The applicant provided a copy of the delegate’s decision to the Tribunal and the Tribunal has read that decision. The Tribunal has given regard to the country information referred to in that decision. Items of country information referred to in that decision are material to and supportive of the applicant’s protection claims. The Tribunal will refer to that information later in this decision.
The Minister’s delegate refused to grant the applicant a protection visa on 24 June 2021. The applicant provided a copy of the decision record to the Tribunal. The decision record articulates the delegate’s reasons for decision and the Tribunal has that decision.
It is the task of the Tribunal to review the delegate’s decision. It is important that the Tribunal has the benefit of evidence that was not available to the delegate at the time of decision. That evidence includes oral evidence from a witness who visited Ethiopia in January 2022 and a report from the UNHCR titled ‘Position On Returns to Ethiopia’ dated March 2022 (UNHCR position paper).
The applicant’s claims and supporting written evidence have been identified and summarised in this decision.
The applicant gave evidence at hearing. His evidence was substantially consistent with his initial visa application, various written statements and oral statements given to the delegate in his protection visa interview. At hearing the applicant elaborated on the forgoing materials in several material respects.
After making due allowance for the elapse of time between the occurrence of material events and the hearing, the Tribunal is satisfied the applicant’s formal education was fragmented and the education he did receive occurred at the elementary level.
The evidence demonstrates that the applicant has spent about half his lifetime living outside Ethiopia. At hearing the applicant stated he is [age] years of age. He is currently employed in Melbourne, Victoria, as a [occupation].
The Tribunal accepts the applicant was born in the city of Gondar situated in the Kafta area in region in Ethiopia known as Welkait-Tsegede which is located in the north western part of Ethiopia. It forms part of the border lands between Ahmara State and Tigray State and both states claim the region is part of their territory.
The State of Tigray and Amhara State are governed separately by their own separate state governments. Those states, along with other states make up a federation of states governed by the Federal government of Ethiopia. The Federal government is in Addis Ababa, the capital city of Ethiopia and the Addis Ababa region is administered by the Federal government.
In several places in the applicant’s written materials Tsegede is spelt ‘Tegede’. In this decision a reference to Tsegede is intended to be synonymous with Tegede.
The Tribunal accepts the applicant was [little] when his parents took him from Kafta or a refugee camp nearby Khartoum in Sudan. There the family lived in severely reduced circumstances. The applicant’s father died in poverty in Sudan in 2009 when the applicant was about [age] years of age.
According to the applicant’s evidence he lived in poverty in the refugee camp compared to his peers because his mother was not as well and strong as the other mothers and his father was deceased. The applicant studied when he could, and, in so far as his age would allow him, he worked to assist his mother in their small family unit.
According to the evidence, the applicant asked his mother and other Ethiopian people living in the camp to explain to him why he was brought to the camp instead of remaining in Ethiopia, and why he was so poor.
The applicant learned from his mother that the Federal government known as the ‘Derg’ confiscated their land, along with the land of many other landowners in the Kafta region. There people protested and resisted the Federal and Tigray State governments. Government forces killed large numbers of the objectors. The applicant’s mother informed the applicant that if she had not taken him out of Ethiopia the family would have been killed.
This information is consistent with the DFAT country information report about the tyrannical policies and conduct of the ‘Derg’ a communist military junta that controlled Ethiopia after it overthrew the long-serving Emperor Halie Selassie. The ‘Derg’ abolished Ethiopia’s monarchy, the House of Solomon, which dated to antiquity. The ‘Derg’ perused policies of nationalism and collectivisation, and Ethiopia descended into armed conflict between the junta and rebel forces and widespread civil unrest and protests.
In 1991 the ‘Derg’ was ousted by an alliance of rebel forces led by the Tigrayan people ; and by a political party called the Ethiopian People’s Revolutionary Democratic Front (EPRDF). In this context the applicant and his mother returned to Kafta in the hope of a better life and that their land would be restored to them. According to the applicant, and consistently with the relevant country information, that did not happen.
Instead, the government that was controlled by the Tigrayan people who controlled the EPRDF and worked to incorporate the fertile region of Welkait-Kafta, the applicant’s tribal homelands, into Tigray State. Tigrayans in large numbers, relocated to and occupied the annexed lands thereby adding to the alienation of the applicant’s family from their land and the experience of inequality inducted by the annexation policy of both the Tigrayan State government and Tigrayan controlled Federal government.
When the applicant returned from the refugee camp in Sudan to the Kafta region he attended school intermittently. School was taught in the Tigrayan language rather than Amharic, the applicant’s native language. At this time the applicant was about [age] years of age. He challenged his teachers for teaching in Tigrayan and he spoke out amongst his peers against what he regarded as the injustice and discrimination of the EPRDF in failing to restore ownership of the confiscated lands to the dispossessed owners of the land.
The applicant’s education was fractured by his family’s poverty. His mother was ill and needed medical treatment and the rent had to be paid. The applicant worked as a day labourer picking up work whenever and wherever he was able to find it.
The applicant was angered by the family’s reduced circumstances: being disposed of their land, the deprivations of poverty, life in the refugee camps in Sudan, the insecurity of his mother’s ill health, and the absence of educational opportunities. The applicant’s sense of injustice and victimisation moved him to actively oppose the EPRDF government. He participated in street protests and actively promoted the protests and opposition to the Federal and State governments.
According to the applicant’s evidence, in 2005 as a member and supporter of the Coalition for Democracy, he and several other anti-government protesters who were located at the head of a large street demonstration were arrested and imprisoned. The applicant asserts he was imprisoned for a month, mistreated, and threatened with serious harm if he continued to agitate against the government. This evidence is consistent with the DFAT country information about the state of political unrest and the arbitrary and abusive treatment of anti-government activists.
Upon being released from detention the applicant returned to his life as a day labourer. In those circumstances, when the applicant was about [age] years of age, he was forced by the neighbourhood administration known as the Kebele, to do military service. According to the applicant’s evidence, the Kebele was controlled by Tigrayans, and only Amhara people from his traditional tribal lands were pressed into military service. This is not an instance of the applicant being subjected to a law of general application.
According to the applicant’s evidence he received some basic training in soldiering, but the preponderance of the training was directed to re-educating the applicant and others into accepting the current system of government and the government itself and its policies for the greater good of Ethiopia. This evidence is supported by country information that demonstrates forced military service was used to re-educate citizens into acceptance of the political status quo and to see the merit of the Tigrayan led government, namely the EPRDF.
After competing basic training the applicant was assigned to working at an army base where he assisted new recruits who belonged to the Amhara tribe and who were illiterate, with their paperwork when they first arrived at the camp. The applicant also patrolled in the camp and such patrols were his primary duty.
The applicant continued to be outspoken against the ethnic based discrimination experienced by people in his region who had lost their land to Tigrayans and were discriminated against in being forced into the army due to their ethnicity. The applicant’s evidence is supported by witness statements to the Department and Tribunal.
The applicant was arrested while he was in the army and detained for further re-education. After a few months the applicant was released from detention, and he asserts that in detention he was subjected to physical abuse.
The applicant did not return to the barracks. Instead, he gathered a little money from friends and fled Ethiopia, afraid he would face more persecution on the grounds of his ethnicity and because of a sense of grievance he feels and demonstrates due to the unjust confiscation of his family’s land and the related poverty and deprivation of his life in the refugee camp and in his home country.
The Tribunal questioned whether the applicant continues to feel aggrieved and whether he could change his grievance-based agitation for the reinstatement of his family lands now that the Tigrayan led EPRDF is no longer in government.
To give this issue context: According to the DFAT country information report, after a period of widespread public protests and armed conflict between rebel groups and Federal government forces, the then Prime Minister resigned in 2018 and the Tigray led EPRDF government was ousted in 2019.
In 2018 the impugned EPRDF Prime Minister was replaced by the current Prime Minister, Abiy Ahmed, and the EPRDF was dissolved in 2019 and replaced by the Abiy led Ethiopian Prosperity Party (EPP), a national unity party with a reform agenda: DFAT country information report.
The DFAT country information report also informs the Tribunal that the Tigray People’s Liberation Front (TPLF), the predominant Tigray political organisation after the dissolution of the EPRDF, refused of join the EPP led multi-ethnic coalition government. Tigrayans felt their influence was being unduly reduced. The DFAT report makes clear that the EPRDF government, the TPLF and Tigrayans together exercised disproportionate and compelling influence over the administration of Ethiopia.
According to the DFAT report under the EPP government there have been territorial disputes between the Tigrayans and Amhara people in the region that is the subject of the applicant’s political concerns. This information is consistent with the applicant’s evidence. Furthermore, DFAT reports on a growing sense amongst Tigrayans at the time of the 2020 report, that their community is under threat. DFAT also reports that anti-Tigrayan sentiment has become more overt since 2018 and hate speech against ordinary Tigrayans has increased over time.
Relevantly, country information before the Tribunal that was referred to in the delegate’s decision, indicates the Abiy led EPP government regards the annexation of the land in the Welkait and Raya regions, which includes the Kafta region where the applicant’s family resided before they fled to the refugee camp in Sudan, to be a settled issue. It seems therefore that the land in the disputed region has been classed by the current EPP government as part of Tigray State to the advantage of Tigrayans over the dispossessed landowners, including the applicant and his mother.
It is now a matter of common knowledge and country information that civil war erupted in Ethiopia in the latter months of 2020. A Tigrayan rebel army and various armed militia groups led by a resurgent TPLF rebelled against the Federal government. The Tigrayans rapidly made substantial military and territorial gains. The rebels threatened to make war on Addis Ababa if their demands were not met, however, their minimum acceptable position is not clear on the country information currently available to the Tribunal.
The issues between the opposing forces in the civil war remain unresolved, according to the prevailing circumstances in Ethiopia as the Tribunal understands the situation to be, and in the absence of credible country information to the contrary.
The Federal government has disconnected all internet and telecommunications to Tigray and the State is under siege. There are reliable reports of chronic food, water and medical shortages in Tigray and surrounding regions. The UNHCR reported in March 2022[30] millions of Ethiopians have been displaced by the civil war, and the related interethnic conflicts directed at redressing past grievances, included forced land redistributions in the border region of Amhara State and Tigray State. This information is consistent with the applicant’s evidence.
[30] UNHCR position paper: ‘Position on Returns to Ethiopia,’ March 2022.
The UNHCR position paper reports of many instances of gross human rights abuses committed by the Federal armed forces and the Tigrayans against each other and the Tigrayan and Amhara civilian population bordering Tigray and Amhara and further afield.
[Mr A] was a witness in the review. The witness’s evidence was is in line with country information. The Tribunal found the witness to be credible. To summarise witness’s, the witness asserted that he is from the same region as the applicant. He visited Ethiopia in January this year in an endeavour to assist his relatives but the civil war prevented him from travelling to the region.
The witness gave evidence that the Federal government would have an adverse view of the applicant because of his political profile arising from his political activities in Ethiopia and Australia. Those activities publicly identify him as an objector to the unjust confiscation of his family’s land and the lands of his regional community; and the failure of the current Federal government to reverse the decision of the EPRDF to incorporate the region into Tigray State.
The annexation of the Welkait-Kefta-Raya region, according to the applicant’s evidence, led the TPLF controlled government of Tigray to relocate Tigrayans to the disputed region as part of the process of displacing people belonging to the applicant’s tribal group from their traditional lands. This process, undertaken with the acquiescence of the current Federal government, included imposing the Tigrayan language and culture on the education system and the original population in the region. This evidence is consistent with the DFAT country information report and the UNHCR position paper, although those reports are not as specific as the evidence given by the applicant and [Mr A].
The applicant’s protection claims include several assertions of fact that the Tribunal will now summarise. The applicant asserts he would suffer serious harm upon his return to Ethiopia because he deserted his post while he was a serving member of the Ethiopian Army. This circumstance raises for consideration the circumstances in which the applicant became a member of the Ethiopian army.
The Tribunal accepts the applicant was pressed into army service against his will by the Tigrayan controlled Kebele. The Tribunal is satisfied this decision was not made pursuant to a law of general application relating to conscription, rather the applicant was pressed into military service because he was an original inhabitant of the Welkait-Kefta-Raya region recently subjected to the control of the Tigrayan State government, because of his ethnicity, because his family’s land had been confiscated, and that he was an anti-government activist.

The applicant’s evidence and supporting written statements provided to the Department and the Tribunal, satisfies the Tribunal that the applicant continued to speak out against the forced incorporation of his tribal region and his family’s land into Tigray State, during the period he was in the army and until he deserted the army and left Ethiopia.
The Tribunal accepts that the applicant was subjected to concentrated re-education during his military training. That part of his training was directed to demonstrating to him and the other Amhara recruits, that they should accept the decision by the authorities to remove his tribal area from Amhara State and incorporate the area and the people into Tigray State and Tigray culture.
The applicant is not Tigrayan by ethnicity, but he is now officially classified by both the Tigray State government and Federal government a resident of Tigray.
It is evident that the region where the applicant and his family have traditionally resided is the subject of a two-fold conflict. First, the civil war between the Federal armed forces and the TPLF led Tigray armed forces; secondly, the armed Amhara militias and Tigray armed militias.
The civil war between the Federal armed forces and the TPLF armed forces involves wider grievances, while the conflict between the ethnic militias involves land disputes in the Welkait-Kefta-Raya region. These circumstances are evidenced by the DFAT report, the UNHCR position paper, and the evidence advanced by the applicant to the Department and the Tribunal in support of his protection claims.
According to the UNHCR position paper, in late 2021 to February 2022 more than 15,000 people were arrested due to the state of emergence imposed due to the civil war. They were mostly but not exclusively Tigrayans. The position paper also reported that there were mass arrests of Tigrayans in Addis Ababa, Gondar, Bahir Dar and elsewhere.
The evidence about the civil was establishes the applicant could not safely travel to and relocate to the only place in Ethiopia where he resided before arriving in Australia, namely the city of Gondar in the Welkait-Kefta region of Ethiopia.
The applicant has never visited or resided in Addis Ababa and members of his family do not reside there. There is no evidence the applicant has resided anywhere in Ethiopia outside the Welkait-Kefta region. That region and areas of the neighbouring states is now engulfed in civil war. The region is now subjected to the deprivations and the risks to life and limb caused by the civil war and interethnic armed conflict in that region.
Furthermore, the DFAT country information report demonstrates the Federal security apparatus is highly capable and it has a cybersecurity presence. Individuals assessed to be a threat to national security are unlikely to escape their attention within Ethiopia. Additionally, Tigrayans have recently been subjected to mass arrests in Addis Ababa, the city to which the applicant would be returned from Australia as an unsuccessful asylum seeker.
The Tribunal accepts the applicant has developed his political profile in Australia. He opposes both the Federal government and the Tigrayan State government for the reasons already discussed and his political stance would be known to both the Federal and Tigray state security agencies in Ethiopia.
The Tribunal is satisfied the applicant’s opposition to the current Federal government and the Tigray State government in Australia was contentiously undertaken for reasons of his genuinely held political opinions.
The applicant does not hold an Ethiopian passport or other travel papers, or identity papers issued by the Federal government that identify the applicant’s ethnicity.
According to the evidence it is likely the applicant would present to the Federal authorities upon arriving in Addis Ababa, as a failed asylum seeker, military deserter, and a former resident of Tigray State. He would also present as a person who opposes both the current Federal government because of its failure to reverse the forced incorporation of his tribal lands, including his family’s land into Tigray State. For these reasons the applicant is likely to present unfavourably to the Federal government and the Tigray State government.
The applicant is likely to present to the Federal authorities as a person who has spent large periods of his life in refugee camps in Sudan, including his formative years.
His profile is likely to identify him during a time of civil war, to be a person who has very little connection to Ethiopia such as land ownership, investments, financial resources, or a strong education developed in Ethiopia. His only voluntarily and contentious investment of himself in Ethiopian society is likely to present him to the authorities as a person who has engaged in unskilled day labouring work, obtained a fractured elementary level education in a refugee camp in Sudan and in Ethiopia, and political activist stridently opposed to the current Federal government and the Tigray State government and their allies.
On balance, the evidence is sufficient to satisfy the Tribunal that the applicant would present as a person with entrenched political opinions with only limited personal investment in Ethiopia, apart from his demonstration of his entrenched grievances with the Federal government and the Tigray State government. It is reasonably likely that the applicant would be classified as a person likely to actively oppose the Federal government in Addis Ababa, and to pose a risk to social stability and state security in Addis Ababa, and to present a similar risk profile to the TPLF, their allies and the Tigray State government.
The applicant fears the Federal government will imprison him as a risk to national security and social stability; or force him into the army and send him to his homelands to fight against the TPLF and their allies and enforce the Federal government’s blockade of his home region.
The applicant said in evidence he would refuse to join the army, to kill people in the name of the Federal government, a level of government he has opposed since childhood. The rationale of his evidence appears to be two-fold: his entrenched opposition to the Federal Government, and that his conscientious objection to the Federal government would preclude him from contributing in any way to the killing his own people in Tigray, or to maintaining the Federal government’s blockade of an area that includes his tribal homelands.
The evidence establishes the applicant is reasonably likely be regarded by the TPLF and the Tigrayan ethnic militias fighting to keep possession of the applicant’s tribal region, as a person likely to pose a threat to their security and their war objectives.
The Tribunal is satisfied the applicant’s experiences in the refugee camps of Sudan, the deprivations in the camps and his entrenched opposition to the EPRDF when it controlled the Federal government, the current EPP Federal government, and the TPLF in Tigray, that the applicant could not be reasonably expected to deny his political history upon being returned to Ethiopia, or to modify his political opinions and behaviour in Ethiopia. The Tribunal is satisfied the applicant’s opposition to the current Federal government, the government of Tigray, the TPLF and their supporters is fundamental to his conscience.
The evidence indicates effective protection measures against the risk of harm the applicant would face from Federal government authorities and supporters upon arriving in Addis Ababa, and supporters of the TPLF and its allies, preclude the applicant from effective protection from harm in Addis Ababa and in all areas in Ethiopia.
Having considered the applicant’s claims individually and cumulatively, the evidence considered in combination with the country information, is sufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant will be subjected to serious harm for reasons specified in s 5J(1)(a) of the Act namely, his ethnicity and political opinions, if he is returned to Ethiopia now or in the reasonably foreseeably future.
Consequently, the Tribunal is satisfied the applicant has a well-founded fear of persecution for reasons specified in s 5J(1) of the Act. Accordingly, the Tribunal is satisfied the applicant meets the definition of ‘refugee’ as set out is s 5H of the Act.
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).
Complementary protection
Having reached the forgoing findings, the Tribunal finds it is unnecessary to consider the complementary protection criteria and has not done so.
decision
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.
Peter Haag
Member

Attachment - Extract from the 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.
…

[2022] AATA 3106

28 July 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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Jurisdiction