2109844 (Refugee)

[2022] AATA 4198

2109844 (Refugee) [2022] AATA 4198 (8 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Kathleen Coffey

CASE NUMBER:  2109844

COUNTRY OF REFERENCE:                   Ethiopia

MEMBER:Mark Bishop

DATE:8 September 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 Migration Act.

Statement made on 08 September 2022 at 3:49pm

CATCHWORDS
REFUGEE – protection visa – Ethiopia – ethnicity – Oromo – imputed political opinion – family’s involvement in political processes of Oromo and Ethiopia – persecution of family members and applicant – applicant’s involvement with Oromo diaspora in Australia – social group – medical worker – state protection unavailable – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), 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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 July 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2.    The applicant who claims to be a citizen of Ethiopia applied for the visa on 1 July 2019. The delegate refused to grant the visa.

3.    The applicant appeared before the Tribunal on 5 September 2022 to give evidence and present arguments.: The Tribunal hearing was conducted with the assistance of an interpreter in the Oromo and English languages.

4.    The applicant provided a copy of the decision record to the Tribunal on 8 September 2022

5.    The applicant was represented in relation to the review.

Criteria for a protection visa

6. 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.

7. 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.

1. 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).

9.    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.

1. 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

1. 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.

CONSIDERATION OF Claims and evidence

Application for Protection Visa and Background

1. In his Application for a Protection  Visa dated 1 July 2019 the applicant declared as follows:

2. He holds an Ethiopian passport and is a citizen of Ethiopia. He was born on [date]. He is currently [age] years of age. He was born in the town of Dire Dawa in the state of Dire Dawa in Ethiopia. He is divorced. His ex-spouse and two children (both under the age of 10) were born and lived in the town of Dire Dawa in the state of Dire Dawa in Ethiopia.

3. A sister currently lives in Australia.

4. He lived [in] Dire Dawa from [birth] until August 2018.

5. He lived [in] the town of Harar in the state of Harar from August 2018 until May 2019.

6. He is of Oromo ethnicity and his religion is Islam.

7. He obtained his travel documents from the local Immigration Office.

8. He legally departed Addis Ababa [in] May 2019 and arrived in [Australia] [in] May 2019.

9. In the past he has travelled to [other countries] for work and holiday.

10. [In] May 2017 he was refused entry, excluded, asked to leave, deported or removed from Australia as the Department was not satisfied that the applicant meets the relevant criteria in clause 600.211 in schedule 2 of the Migration Regulations.

10.He completed a Bachelor [degree] at [named University ] in March 2013 after 3 years of study .He is [an Occupation 1] and was employed at [a Hospital ] from 1 January 2015. He was also self-employed in [a] business from 2010 until 2018.

Application for Protection Visa and Protection Claims

1. In his Application for a Protection Visa dated 1 July 2019 the applicant declared as follows:

2. Both his parents are from Ethiopian Oromo ethnicity. Both parents were born and raised in the town of Dire Dawa in the eastern part of Ethiopia. His father was a merchant.

3. The applicant’s father’s political affiliation was to the Oromo Liberation Front (OLF). He was an active participant in this group. It was part of the transitional government of Ethiopia from 1991 until 1992. He attended Oromo meetups in Addis Ababa.

4. There were widespread demonstrations in town across Oromia during this period against the ruling government. This made OLF members and supporters the subject of harassment, prosecution and assassination.

5. The Tigray People’s Liberation Front (TPLF) overseeing the government intelligence at this time  used to arbitrarily arrest OLF members. His father was arrested on 3 occasions as follows:

   a)He was accused of allegedly advocating, encouraging and inspiring other Oromos in their area to support OLF to overthrow the government. He was detained in [Prison 1] for 1 year from early 1993 to 1994 and eventually released following community pressures.

   b)In June 2005 Ethiopian Military forces arrested his parents. They were detained at [Prison 2]and charged with inspiring people to elect Oromo National Congress Party (ONCP) against the government. He father was suspected of distributing pamphlets to local Oromo people advocating for OLF to spoil national election. His mother was incarcerated for five months for the same reason of distributing pamphlets to the Oromo women. During their incarceration they endured constant physical and psychological torture, in attempts to extract information and the OLF leaders and strategic plans. They were ultimately released through bribery.

   c)Post their release they were quite known to the Ethiopian military forces who used to randomly come to the home of the Applicant unannounced to torture his father at night. The government authorities remained in pursuit of the Applicant's parents for prosecution until 2013, continuously harassing them at their home.

   d)The Father's third arrest occurred in May 2014, where he was detained for at [Prison 2], for the last time before meeting his demise during his incarceration. His father's arrest was coincidently around the same time as the nationwide Oromo student's demonstration against the brutalities endured and pain suffered in the hands of the ruling government. His father was [a member] of this young group of the Oromo community which was known as "Qeeroo". His father was striving for justice, fairness and morality, against a government trying to work to stop Oromo student killing. His father died in [August] 2014 at Prison.

6. The applicant’s family owned [an] export business along with their residence was set on fire in August 2018 because of violent ethnic conflicts. The applicant claims this was carried out by a group called “the danger team” who were comprised of Tigre ethnics and created by the government.

7. The danger team was also responsible for attempting to assassinate the applicant by attacking his home, shooting and causing the death of his brother in Law ([February] 2019) and also raped the applicant’s wife. The applicant left his home and moved to Harar because of this incident.

8. The applicant claims he moved from Dire Dawa to Harar to Addis Ababa to escape harm.

9. The Ethiopian Military were searching for the applicant in Harar so he had to relocate to Addis Ababa.

10. The applicant fears returning to Ethiopia because the Local police commissioner in Dire Dawa has issued a letter ordering the arrest of the applicant when he returns to Ethiopia.

Written submissions to Tribunal plus supporting documentation

1. On the business day prior to the hearing the applicant provided additional material to the Tribunal as follows:

• Applicant statement.

• Witness statement from sister.

• Application dated [2017] for verification to be used concerning application for a new passport.

• Submission from [Organisation 1] in [State 1] Inc.

• Resident card dated [2014] in the name of the applicant.

• Letter of support from [Organisation 2].

• Applicant submission provided by his lawyers.

• [Social media] posts largely by the applicant from June 2020 until July 2020 addressing Oromo issues.

Applicant Submission

1. The applicants’ submissions outlined the following:

2. The Applicant is [an age] year old male born in Dire Dawa, in the Oromo Region of Ethiopia. His race is Oromo and his religion in Islam. He is married and his wife is pregnant. He was previously married and has two children with his former wife. He has no contact with his former wife or his children.

3. The Applicant has [sisters] and one brother. One of his sisters resides in Australia and is an Australian Citizen. His remaining siblings reside in Djibouti. His mother resides in Ethiopia. His father is deceased.

4. The Applicant fears that he would be subjected to serious harm upon return to Ethiopia. He is fearful that he would either be killed or subjected to torture and serious harm. The Applicant fears harm based on the following reasons:

   a) Oromo Race

   b) Imputed Political Opinion

5. Relevant law.

   Fear of harm due to race and imputed political opinion

6. The Applicant fears harm upon return to Ethiopia due to his Oromo race and his imputed political opinion. Due to these reasons, he has faced serious and significant harm while residing in Ethiopia and fears being subject to serious harm if he was to return. The Applicant fears harm due to his Oromo race and imputed political opinion, given his family’s their advocacy for the Oromo community, their involvement with the Oromo Liberation Front (“OLF”), as well as their past issues with the authorities in Ethiopia.

7. Outline of father involvement with the Oromo community, support for the Oromo Liberation Front (OLF), financial support for the OLF and meeting attendance with the OLF.

8. In 1990, ethnic tensions rose in Ethiopia, because of widespread protests in Oromia regions against the ruling government. The ruling government were working with The Tigray People’s Liberation Front (“TPLF”), they would use their position and power to harm and arbitrarily detain opposition supporters. Members and affiliates of the OLF were targeted by the TPLF and Ethiopian government.

9. Broad detail as to parent arbitrary detention for 5 months because authorities believed parents involved with OLF. After this detention the parents were traumatised.

10. The Ethiopian Authorities would regularly attend their family home, they would come during the night and take his father to the police station where they would interrogate and torture him. The authorities were suspicious of his father and would question him about the OLF and believed he was in contact with and sending money abroad to OLF members and leaders who had fled to Eritrea. The Applicant’s father continued to deny assisting the OLF and refused to give the authorities any information regarding his involvement.

10.The Applicants father became a [member] of a group known as Qeeroo, the group was created for the youth to support and fight for the Oromo people. His father provided leadership and funding to the group. The Government began seizing land from the Oromo community without providing any compensation to the owners, as a result ethnic conflict erupted. The Qeeroo were known for their opposition of the Government and worked to assist those who had been displaced.

11.In May 2014, the applicant’s father was arrested by the Ethiopian Authorities. At this time there were nationwide demonstrations protesting the Ethiopian Government and their actions towards the Oromo people. Sadly, his father passed away in prison [in] August 2014. The Applicant insists his father died because of the torture and abuse he faced while detained.

12.The Applicants father established and ran an export business, he would export [products] to neighbouring countries and was a very successful businessman. After his father’s death, the applicant took over the family business while containing to work as [an Occupation 1]. As a result of his involvement with his father’s business, his close relationship with his father prior to his death as well as his father’s previous support of the OLF, the authorities believed he was also assisting the OLF. The Applicant was targeted by the authorities and in October 2015 he was arrested and detained, despite no evidence to support the allegations of his support of the OLF. He was accused of being an accomplice to his father’s political activities. While detained he was interrogated and tortured, he is extremely traumatised as a result. The Applicant’s uncle was able to intervene and he was released after two months.

13.Given the Applicants father was a successful businessman, the applicant was viewed in the same light following his father’s death. In 2018, the Oromo Farmer Society requested he provide financial support as his father previously had. The Applicant provided financial support to assist them to obtain food and shelter.

14.Around this time, the government began taking steps to weaken the power of the Oromo people, and measures were taken towards businessmen and influential members of the Oromo Community. In August of 2018, the Danger Team came to the applicant’s home while he was not there, they questioned his ex-wife about his whereabouts and raped her. The threatened to kill the applicant burnt down his home, land and business. The Applicant sought the assistance of the local police and administration; however, he was told that there was nothing they could do. The Applicants ex-wife was extremely traumatised, and she decided to take their children and move in with her family, she refused to keep in contact with the applicant in fear her connection to him would result in further risk of serious harm. The Applicant has not heard from his ex-wife or two children since she moved away following this incident in 2018.

15.The Applicant moved in with his uncle, while his brother in law worked on rebuilding a house of their land after it was destroyed. In 2019, his brother in law was shot and killed while staying on the applicant’s property he had been working to rebuild. Following this, the applicant decided he would not remain in the area and moved to Harar. While in Harar, his uncle informed him the authorities had been asking questions about him and were aware he had fled to Harar. The Applicant then decided to move to Addis Ababa to avoid the authorities.

16.After the applicant came to Australia, his cousin was shot and killed, and the police commissioner release a statement demanding the applicant’s arrest. Approximately five months ago, the applicant’s paternal uncle [Uncle A] was arrested and remains in detention. [Uncle A] was accused of providing financial support to the OLF. Given the arrest of the applicant’s uncle, the applicants siblings were scared and fled to Djibouti. It is apparent that the applicant’s family have faced ongoing issues given the family business is viewed as supporting the OLF.

17.The Applicant fears that if he were to return to Ethiopia, he would be at risk of serious harm for reasons of his race and imputed political opinion. With respect, we submit that it is evident that the Ethiopian Authorities are aware of his father’s involvement with the OLF and support of the Oromo community, and believe the applicant was also affiliated with the OLF. In his statement of claim, the applicant outlines details of his father’s involvement with the OLF and Oromo community, and reveals the authorities were further suspicious given he was a successful and wealthy businessman. We submit that it is highly likely the authorities would suspect the applicant of the same behaviours and affiliation, considering his close relationship to his father and subsequent control of the family business. Further, the applicant’s arrest, the authorities’ regular attendance at his home and the attack on his ex-wife and destruction of his home reveal the ongoing interest in the applicant.

18.The Ethiopian Authorities are notoriously known for subjecting individuals suspected or known to oppose the ruling government to serious harm and degrading treatment. It cannot be discounted that the applicant’s family history in Ethiopia would result in him being at risk of serious harm upon return. While in Australia, the applicant has advocated for the Oromo Community and highlighted the continuing abuses committed by the Ethiopian Authorities. He has attended a rally, attended community events where other activists have been present and posted on social media. The Applicant has explained that he has undertaken these activities as he genuinely wants to ensure that his community, particularly Oromo activists do not continue to face harm in Ethiopia.

19.We submit that the applicant’s involvement in the Oromo Diaspora would further place the applicant at a real risk of serious harm upon return to Ethiopia. With respect, we submit that the totality of evidence strongly suggests that the applicant would be at a real risk of serious harm upon return to Ethiopia due to his race and imputed political opinion. Given it is the Authorities he fears, we submit that it is likely he would be detained upon re-entry and therefore he could not relocate to avoid harm. Moreover, he would not be afforded state protection.

20.Comment on the delegate’s decision and citation of sources as to applicant credibility with the following conclusion:

a)    We submit that there are numerous facts that should be considered in the assessment of the applicant’s credibility.

b)    Firstly, we submit the applicant originates from a country with an entrenched fear and mistrust of the authorities.

c)    The Applicant was previously subjected to serious harm by the Ethiopian Authorities; as such, it is plausible that he finds it difficult to speak openly about his past experiences in Australia.

d)     Moreover, we note the applicant and his family have had a difficult life in Ethiopia. He was subject to serious harm that has clearly impacted him. It is likely he is greatly traumatised by these experiences.

e)    The Applicant has been required to rely on an interpreter to forward his claims, this can impede the accuracy of his claims. The Applicant has explained in his statement that at the time he was preparing his application, he had limited time given his visa was due to expire and therefore he felt rushed and unable to fully outline his claims for protection. With respect, it is evident from the applicant that this was the case.

f)      Nonetheless, we submit that overall, the applicant’s testimony at his protection visa interview was consistent with his written claims and is corroborated by country information. Given these matters, we submit that the applicant should be found to be a credible witness.

21.Submission concerning prior visa application to the USA, national identity card, lack of evidence of father membership of OLF, comment re set of delegate implausibility findings as to:

a)Father OLF membership.

b)Father release from jail after community pressure.

c)Father involvement with OLF in the period 1994 to 2005 and lack of authority interest in the lead up to the 2005 elections.

d)Father support  for OLF  when they were promoting the Oromo National Congress Party (ONCP).

e)[Father’s] role in Qeeroo and Country Information (CI) reference to Qeeroo.

22.The delegate had a propensity to dismiss the applicant’s claims without providing proper reasoning.

23.Individuals fleeing their country due to a fear of harm are [often] not able to provide documentary evidence of their claims for protection. The Applicant has explained that in addition to his father being a member of the OLF, he was a passionate advocate and contributor to the Oromo Community and a successful businessman. It is plausible that the Ethiopian Authorities who are known for treating opposition supports with suspicion suspected that the applicant’s father was using his business to send fund to the OLF in neighbouring country. Given the applicant took over his father’s business, it is further conceivable that he was imputed with pro-OLF sentiments and treated with a high level of suspicion. The Applicant has outlined in his statement that his family have faced ongoing issues since he fled the country, this provides further evidence that the applicant’s family remain of interest to the Authorities.

24.The applicant has a profile that would place him at risk of serious harm upon return to Ethiopia. We submit that his risk profile emanates from his father’s association with the OLF and ongoing advocacy for the Oromo Community including his affiliation with Qeeroo. It is highly plausible that the Authorities imputed the applicant with pro-OLF and antigovernment sentiments given he took over his father’s export business, the same business that was perceived to be funding the OLF. The Applicant has explained that after his father’s death the business made donations to the Oromo farmer’s this may have resulted in the Authorities also believing the applicant was funding the Oromo movement. The Applicant and his family have faced serious and ongoing harm, including his family losing their entire property, the applicant’s brother in law and cousin being killed, the applicant, his uncle and his parents being detained and his wife being abhorrently raped which has resulted in the applicant being estranged from his wife and children. The ongoing and sustained campaign against the applicant’s family strongly suggests that they are considered dissidents and of adverse interest to the Ethiopian Authorities. If the applicant was forced to return to Ethiopia, we submit that it is likely he would come to the attention of the Authorities and be at a real risk of serious harm, especially given his involvement in the Oromo community in Australia which has included activism and financial support.

25.While we understand the regime changed in 2018, it is our submission that it is apparent the applicant’s claims are based not only on his race but also due to his imputed political opinion. Given the applicant and his family are considered as dissidents by the Authorities, he would continue to be at a real risk of serious harm upon return to Ethiopia. Country information indicates that Oromo activists and businessmen face ongoing harm in Ethiopia. With respect, we submit that given the applicant’s profile, he would be at a real risk of harm upon return to Ethiopia.

26.It is apparent from the applicant’s claims that he fears harm due to his race and imputed political opinion. These are not periphery reasons for his fear of harm rather are the essential reasons, he fears persecution upon return to Ethiopia. As outlined by the applicant is his updated statement of claim, he is concerned that he would be arrested, detained, tortured, and seriously harmed by the Ethiopian Authorities upon return. It is our submission that these reasons amount to serious harm as they pose a risk to his life and liberty and are likely to result in the applicant being subject to significant physical harassment and ill-treatment.

Country Information and other sources

27.Citations from USA Department of State reports re human rights abuses, prisons  and prison conditions in Ethiopia and the conclusion they are dire.

28.Academic article that addresses the state of affairs for Oromos in Ethiopia, the origins of the conflict for Oromo people with relevant citations and the nature of conflict between the Oromo Community and the Ethiopian government and authorities, revealing the continued persecution and displacement of thousands or Oromos.

29.Excerpts from a recent Human Rights Watch report highlights the ethnic tensions in Ethiopia and the continued cycle of violence. The article comments on the regular attacks against ethnic minorities and the government’s arbitrary arrest and detention of Oromos.

30.The recent UK Country Policy and Information Note on the Oromo community outlines the real risk of persecution for Oromos known to the authorities with a significant history of OLF support or membership. The applicant’s connection with his father and family business coupled with his involvement with the Oromo Diaspora, there is a real risk he will continue to be considered as an OLF supporter if returned to Ethiopia and therefore would be at a real risk of serious harm.

31.A 2020 report from Amnesty International highlights the ongoing persecution and interest in OLF supporters by the Ethiopian Authorities, revealing mass arrests and continued arbitrary detention of Oromos accused and suspected of being OLF members and supporters.

32.The most recent DFAT report (Country Information Report Ethiopia, 12 August 2020, Page 18-19, Paragraph 2.50-2.53) reveals the concerning security situation in Ethiopia, and the prevalence of continued ethnic conflicts resulting in death, destruction of property and large scale internal displacement.

33.The Human Rights Watch’s annual report addresses the ongoing human rights abuses in Ethiopia, and the governments continued practices of arbitrary arrests, detention and summary executions of Oromos believed to support the Oromo Liberation Army.

Conclusion

34.The Ethiopian Authorities do not abide by the rule of law and rely on arbitrary detention and torture. Given the above country information, we submit that it is highly apparent that the Ethiopian Authorities continue to harass, persecute and harm the Oromo community. Given the deeply engrained ethnic tensions and conflict and the fact the rights of the Oromo community have been being suppressed and treated with a high level of suspicion, the applicant would be at a real risk of serious harm if returned to Ethiopia. The applicant’s profile is enhanced by his Oromo race, father’s activism and political involvement, his connection with the family business and involvement with the Oromo diaspora.

35.The applicant would be at serious risk of harm if he returned to Ethiopia. It is evident from the applicants claims that the authorities believe he was involved with the OLF in some capacity, specifically it was presumed he continued to provide financial support to the OLF following his father’s death. Country information provided suggests that many OLF members and supporters are continuously targeted by the Ethiopian Authorities. Further, the applicant and his family have experienced continued abuse and mistreatment at the hands of the Ethiopian government. Given the applicant’s personal circumstances, it is highly apparent that he would be at a real risk of serious harm upon return to Ethiopia.

36.In conclusion the country information coupled with the applicants’ claims for protection indicate that there continues to be a real risk that the applicant would suffer significant and serious harm if returned to Ethiopia. Accordingly, we submit the applicant should be afforded protection in Australia.

Applicant Statement

1. The applicant provided a written statement summarised by the Tribunal as follows:

   1. My family and I have faced ongoing trauma in Ethiopia. Due to the issues, we faced, my wife and children ran away and my father, brother in law and cousin were killed. All these incidents have greatly impacted me, and I find it difficult to speak about them.
   2. I am married. My wife [is] an Australian Citizen. My wife is currently pregnant with our child. She has previously had a miscarriage. I have a son and a daughter from my previous marriage. Sadly, my wife and children left in 2018 and I have not seen them since. My father is deceased. My mother lives in Ethiopia. I have [sisters] and one brother. My sister [lives] in Australia. She is an Australian Citizen. My remaining siblings fled Dire Dawa, Eritrea around five months ago and they are residing in Djibouti.

2. I am of Oromo race. My parents are also Oromo. I was born and raised in Eastern Ethiopia, in Dire Dawa. My father established and ran an export business. He set up the business around the time of my birth and continued the business throughout his lifetime. He would export [products] to neighbouring countries mainly Djibouti. He was a successful businessman.

   4. My father was an advocate for the Oromo community from 1985 onwards. He was involved in infrastructure being built for the Oromo people especially in rural areas including setting up small loans to encourage infrastructure projects. He believed that this would greatly assist the plight of the Oromo people. Due to this work, he was well respected by the Oromo Community in our local area.

3. My father also supported the Oromo Liberation Front ("OLF''). He provided financial support to the OLF and attended meetings in Addis Ababa. My father along with the OLF advocated for Oromo rights and worked to improve the situation for our community. My father was also passionate about fighting for the implementation of the Oromo language and culture in the curriculum.

4. In the early 1990s there were widespread protests in the Oromia and Amhara regions against the ruling government. The Tigray People's Liberation Front (TPLF) 'were responsible for Government Intelligence at the time and misused their power to arbitrarily arrest opposition supporters including the OLF. My father was arrested in 1993. He was accused of inspiring the community to support the OLF to overthrow the Government. My father was detained for approximately one year. While detained he was badly tortured. He sustained injuries from the mistreatment. He was released due to assistance from local elders who put pressure on the government.

5. In June 2005, both my parents were arrested by the Ethiopian Military Forces. They were detained at [Prison 2]. Prior to her detention, my mother had distributing pamphlets to Oromo women about the election. She was encouraging the women to support the Oromo National Congress Party ("ONCP"). My father was also distributing pamphlets in support of the ONCP. However, the Authorities believed my father distributing pro OLF information to the local Oromo people, given his past connection to the OLF and given many prominent businesspeople were funnelling funds to the OLF at the time. While detained, my parents were interrogated and tortured by the Authorities who believed they held information about the OLF. My parents were very traumatised by their experiences. They were released after five months, due to payments that were made to secure their release. My parents had to sign an undertaking they would not support an opposition party again.

6. After being released however, my father continued to face issues from the Ethiopian Authorities. The Authorities regularly came to our family home. The Authorities would come every 3-5 months. They would come at night, take my father to the police station .and interrogate and torture him. The Authorities believed my father was still in contact with OLF members and leaders who had fled to Asmara, Eritrea. Given my father's past connection with the OLF and his business which exported goods and was profitable, the Authorities were concerned my father may be sending money abroad to the OLF members and leaders to assist them. They also thought he may have information about the OLF they could share with him. My father continued to deny assisting the OLF.

7. In or around March 2014, my father became [involved in] a group known as Qeeroo. He provided leadership and funding to Qeeroo.-The membership of the group was student based and the group sought justice, fairness, and morality for the Oromo People. They were attempting to stop the government from killing Oromo Students. Qeeroo also strongly opposed the Government's strategic master plan to expand the geographical footprint which included the compulsory acquisition of land predominantly from the Oromo region surrounding Addis Ababa. The government seized land with no compensation or recourse for the owners. Given the Government sought to seize the land from the Oromo community, an ethnic conflict erupted. Qeeroo attempted to assist the displaced farmers and tried to stand up against the Government to stop the acquisition of the land.

10.In May 2014, my father was arrested again by the Ethiopian Authorities. At the time of his arrest there were nationwide student demonstrations highlighting the atrocities committed by the Ethiopian Authorities against the Oromo people. My father was detained at [Prison 2]. My father died in prison [in] August 2014. We believe he was tortured and died due to the mistreatment he faced while he was detained.

11.After my father's death, I ran the family business in addition to my work as [an Occupation 1] at the hospital. This required me to take over my father's license export license. Given my involvement in my father's business and my close relationship with rny father prior to his death, the Authorities believed I was also assisting the OLF. In October 2015, I was arrested and detained at [Prison 2]. Despite the Authorities having no evidence against me, the Authorities arrested me and accused me of being an accomplice to my father's political activities including accusing me that I was a member of Qeeroo. I was interrogated and tortured while detained. I am still very traumatised by my experiences. I was released after two months, given my uncle, [Uncle A] intervened. I am still very traumatised by my experiences.

12.In May 2018, the displaced Oromo Farmer Society requested that I provide financial support to them. They believed that given my father supported them that I would support them as well. I did provide financial support to assist them obtain food and shelter. Around this time, the Society tried again to seek compensation for their land from the Government, given the change in Regime, however they were unsuccessful in obtaining this.

13.In 2018, in an attempt to weaken the powerbase of the Oromo people, measures were taken against influential members of the Oromo Community including businessmen. In August 2018, the Danger Team who compromised of individuals of Tigrayan race who were supported by the Authorities came to my family's home. I was not home at the time. The men asked my wife where I was, they indicated that they wanted to kill me. When my wife said I was not home, they raped her. They then burnt down my family's home, land and business, which were all located at the same place

14.While I reported the incident to the local police and Local Administration, there was nothing they could do to assist us. My wife was extremely traumatised and upset. I took her to obtain medical treatment and to the police, but she was understandably distraught.

15.While I reported the incident to the local police and Local Administration, there was nothing they could do to assist us. My wife was extremely traumatised and upset. I took her to obtain medical treatment and to the police, but she was understandably distraught.

16.My wife was deeply traumatised by what had occurred, and she went to live with her family and took our children. She did not keep in contact with me as she was worried her connection to me would place her and the children at further risk of harm. It is my understanding she fled to [another country] in or around 2020, but this is only what I have been told. After our house was destroyed, I moved to my uncle's house.

17.In March 2019, my brother in law (the brother of my former wife) was shot dead. He had rebuilt a house on our existing land and was staying there at the time he was killed. After this incident, I knew I was not safe and moved to Harar. My uncle warned me that he had been asked questions that suggested the Authorities knew I was in Harare and therefore fled to Addis Ababa. While in Addis Ababa I took precautions to avoid detection until I could flee the country.

18.On July 2019, my cousin [was] shot and killed while attending the market in the middle of the afternoon. This attack scared me a lot. I realised that the campaign against our family was still ongoing and that I would not be safe in Ethiopia. Further, in 2019, the police commissioner released a written statement demanding I be arrested, given it was believed I was following my father's footsteps and mobilising the Youth.

19.In Australia, I have been involved with [an] organisation that provides humanitarian assistance to the Oromo People. The situation for the Oromo Community in Ethiopia has been very bad since April 2019. While the Government has stated that they are trying to eradicate the OLF, they have also killed and seriously harmed many innocent members of our ethnic community. [Organisation 2] attempts to assist the plight of the Oromo people. I make financial contributions to[Organisation 2]. It is important to me that I can help in any way possible to assist members of my community who are facing very difficult times.

20.I am also a member of [Organisation 1] of [State 1]. The purpose of the Association is to assist Oromo people living in Australia. While this Association and [Organisation 2] are humanitarian groups, I am concerned that the Ethiopian Authorities would view the groups as political and further consider that I am opposed to them. [Name deleted], the leader of [Organisation 2] is a well-known critic of the Ethiopian Government. Given my association with him, I believe I will further be considered a dissident if forced to return to Ethiopia.

21.While in Australia, I have shared videos on my [social media] about Oromo activists. I did this to raise awareness of the ongoing issues for the Oromo People in Ethiopia. In April 2021, I attended a rally at Parliament House in Canberra in support of Hacaa Alu Hundesa, an Oromo artist and activist who had been killed and Johar Mohammed, an Oromo Activist and Bekale Gerba, an Oromo politician who had been arrested. I attended this rally as I genuinely believe that these activists were unjustly treated and wanted the international community to be aware of their plight and assist the Oromo people.

22.I fear harm given my father's political profile. Given his ongoing support of the OLF and Oromo Community and his position as a wealthy businessman, he was considered a threat to the Government and killed. As his son, given I took over the family business, I am now considered as an opponent to the government and am at risk of being killed by the Authorities who continue to misuse their power. My family have experienced serious and ongoing issues from the Authorities which makes it clear that the Authorities have a continued interest in our family and want to harm us. Given my involvement with the Oromo community in Australia, I will be further be imputed with antigovernment sentiments and be at risk of harm upon return to Ethiopia. Further, I also fear harm due to my Oromo race.

23. I cannot obtain assistance from the Authorities as it is the Authorities who, I fear. Despite the horrendous mistreatment faced by my wife and family, the Authorities were unable to assist us. If I was to return to Ethiopia, the Authorities would not be willing or able to protect me.

Applicant Evidence

1. In evidence to the Tribunal the applicant advised as follows:

Applicant Background

• A former wife and his two children now live in [another country]. He does not know if they are living in a refugee camp. He does not have any contact with his former family. He is married to an Australian citizen. Their first baby is due [on date]. He has no other children in Australia.

• His father passed in 2014. His mother lives in her brother’s house in Dire Dawa.

• A sister has lived in Australia since 2014 and not returned to Ethiopia since her arrival in Australia. His other [siblings] now live in Djibouti. They are not seeking refugee status.

• He still owns a large house in Dire Dawa. His former business [was] revived for awhile by his uncle but stopped operating in 2022.

• He holds a Bachelor [degree] and worked for 5 years post university graduation in a large [Oromo] diaspora funded private hospital in his home city. He does not work as [an Occupation 1] in Australia as he is yet to pass his IELTS test. He proposes to gain registration as [an Occupation 1]  in Australia post passing of his IELTS test. He has senior experience as [an Occupation 1]. He believes he is a trained, skilled and experienced [an Occupation 1].

• He advised the Tribunal authorities in Ethiopia interviewed his uncle in recent months because his uncle proposed to withdraw cash from a business account held in the name of the applicant’s previous business. The authorities interviewed his uncle because they believed his uncle was using the cash to fund fighters in the OLA. The authorities accused his uncle of wanting to use the funds for non-authorised anti-regime purposes. In evidence the applicant advised his mother and uncle had separately advised him of this process.

• He advised there was significant continuing turmoil in the Oromo area caused by the establishment of army command forces since 2018, the continuing arrest of thousands of people, the displacement of up to 80,000 persons, fighting continued in his home area, the OLA was active in his home area and it had been blacklisted by the central government. He speaks with his mother every fortnight and his uncle every month. It is this set of circumstances that cause him to have a fear of real harm if he should be forced to return to his home country.

• He advised the current situation in Oromo was worse than before 2018 as the central government was attempting to implement uniform policies as to religion, language and culture across the country. Speakers of minority languages or members of minority ethnic groups were resisting these central government initiatives. He advised that since 2020 there had been heightened army intervention against Oromo youth movements with leadership being arrested, detained and he asserted killed.

• He believes there are outstanding arrest warrants for him as the authorities have visited his uncle’s house (following the death or murder of his daughter) seeking detail as to his current whereabouts. He advised a police commissioner had published a document seeking his arrest but as this occurred several years ago did not know if this particular individual still held any position of authority.

• He advised danger teams had been established by the TPLF and operated in Oromo in the period 2017 until 2019. They basically comprised unemployed youths, thugs and gangsters who engaged in standover activity, harassment and murder of political opponents. He believes they were disbanded in 2019 and their role function and modus operandi have been taken over by units of the security forces. He was unsure of the detail of this possible connection. He had not seen any list and did not know the details of persons on this alleged list. He knew of the operation of these danger teams as he reported the burn-out of his house to the police, the police informed him the burn-out was the actions of these danger teams and consequently there was nothing for the police to do. He advised the newly elected government put a stop to the danger team movement and they no longer operated as they had in the past. He advised government security forces now worked in the Oromo area and carried out many of the tasks formerly carried out by the danger teams.

• He did not know if a senior TPLF representative in Dire Dawa who bore him animus in previous years still held such position. He was aware the TPLF had withdrawn to their home province and were no longer active on the ground in Oromo.

• He advised a police commissioner had published a document seeking his arrest but as this occurred several years ago did not know if this particular individual still held any position of authority or the status of this particular document.

• He advised prior conflicts between Somali and Oromo people and his fear of harm were no longer an issue. His real fear of harm is that the Ethiopian government is aware of his pro-active role within the Ethiopian diaspora in [City 1] and believes he is engaged in ongoing anti-regime activity of such scale and significance as a continuation of prior family activities that the government will seek his immediate detention if he returns to Ethiopia.

1. The Tribunal made extensive references to DFAT Country Information Report (CIR) for Ethiopia dated 12 August 2020. The Tribunal read out paragraphs numbered 2.41, 2.59, 3.8, 3.12, 3.41, 4.2, 4.3, 4.14, 4.15 and 5.3. Before asking the applicant to comment on each individual paragraph the Tribunal summarised the meaning of each paragraph. In response the applicant advised the Tribunal as follows:

• Paragraph 2.41 as to the political system in Ethiopia the applicant advised it was a DFAT assessment, he disputed it and there no such chance for political plurality or the expression of alternate viewpoints in Oromo.

• Paragraph 2.59 as to the security situation in Ethiopia He agreed the problems in the border areas continued and in the centre of the country displaced landowners was a continuing source of grievance as there had not been adequate compensation, there were ongoing and renewed demands for compensation post 2018  and conflict in Oromo continued.

• Paragraph 3.8 as to Oromos he did not accept the accuracy of the DFAT assessment, the current government rejected opposition parties, OLF leaders remained in detention, west Oromo was under army control and there were numerous displaced persons in southern Oromo.

• Paragraph 3.12 as to Tigrayans he said post 2020 the new central government got stronger, the TPLF withdrew from Oromo and returned to their home province of Tigray and the de-Tigrayan process of key government institutions was basically accomplished and post 2019 the Tigrayans and TPLF had littler effective power.

• Paragraph 3.41 as to political opinion (actual or imputed) He did not accept there was a tolerance for political dissent. He believed opposition parties were targeted, OLF leadership was detained, there were not any elections in the Oromo region and a large number of prison centres were set up for Oromo detainees.

• Paragraphs 4.2 and 4.3 as to extrajudicial killings any releases of political opponents were done for show so that the new leader could be rewarded with the Nobel prize. He believes the new central government wishes to extend the crack-down on the TPLF to other political groups so that it can create the grounds for a war on the Tigran people in their home province. He rejected these 2 paragraphs.

• Paragraph 4.15 as to arbitrary arrest and detention He did not accept there had been any reduction in the incidence of this occurrence. He said brutal arrests continued. He said killings continued.

• Paragraph 5.3 as to state protection he rejected this DFAT assessment.

1. At the conclusion of the hearing the Tribunal invited the applicants’ representative to provide a further written submission by midday 8 September 2022. The applicant provided a further  detailed written submission with appropriate supporting documentation that addressed his university level qualifications and post university employment as [an Occupation 1]  in Ethiopia.

2. The applicant also provided a copy of a letter from the Oda Roba Association (ORA) dated [July] 2022 as follows:

• “On behalf of the Oda Roba Association, I would like to thank you for your generous contribution. Your continued financial and moral supports are essential to ORA's mission and goals.

• We at ORA are inspired by the dedication and generosity of donors from members of our association like yourself who answer the call to give repeatedly with relentless passion. Your continuous monthly donation of [amount] Dollars since [month]/2021 up to [month]/2022 has been used to support the family of attorney general Abduljebar Hussen, who was shot and killed by the Ethiopian government, the family who were forcefully evicted from their home by the security forces and people who were affected by famine and children whose family were accused of opposing government and detained or killed and other needy people.

• We look forward to a continuing partnership with you. As a community, we are certain that will make a big difference together. We do hope that ORA will continue until and after freedom and justice prevail in Ethiopia.”

1. The Tribunal summarises the written submission identified in paragraph 19 above as follows:

2. This submission focuses on the risk to the applicant in Ethiopia, as a member of a particular social group, namely skilled medical workers returning to Ethiopia.

3. It is our view that skilled medical workers returning to Ethiopia, can be found to constitute a particular social group as all members of the group share the characteristic of their profession and status of being abroad. These characteristics differentiate them from the society at large and ensure they would be easily identified in Ethiopia, if forced to return and resume work.

4. The applicant has extensive university level education in [Occupation 1] and 5 years post university work in the [profession].

   4. If the applicant was forced to return to Ethiopia, given his qualification and experience, it is likely he would resume working as [an Occupation 1], even if he did not the fact, he is an experienced [an Occupation 1] is likely to be known by the wider community. Accordingly, it is plausible he may be forced to assist either the OLA or government forces who are both in dire need of more resources given the ongoing need of the conflict. The Applicant clearly possesses skills that would assist both given the current situation.

5. Update on current intensification of civil war in Ethiopia inclusive of the Oromo region as follows:

   a)Residents in Ethiopia’s largest federal state, Oromia, say dozens of civilians were killed in an attack by an armed group on Monday, the latest mass violence along ethnic lines that challenges one of Africa's most populous countries[1]

   [1] ‘Witnesses say dozens killed in new ethnic attack in Ethiopia”, Cara Anna, ABC News, 3 September 2022, Ethiopian Peace Observatory further reports that armed clashes are occurring between armed groups who are seeking to establish and keep control over land claimed by Oromia people and the Oromo State. They further report that divisions between Oromo and Amhara wings of the federal ruling party and active ethno-nationalist forces on both sides are a dangerous trend in the country at the present time.[2]

   [2] Ethiopia Peace Observatory, Weekly 30 July – 5 August 2022, Situation Summary, 10 August 2022

   c)DFAT reports that while military service is not routinely compulsory, although the ENDF retains the right to conduct call-ups.[3] A refusal to perform military service can attract a penalty up to 10 years imprisonment under the Criminal Code4. Ethiopian Prime Minister Abiy has been urging citizens to take up arms and fight.[4] “The Addis Standard reported "They [local authorities] are conscripting youth…An eyewitness explained, "No one joined the army willingly. If we speak up, they will call us terrorists and 'Shanee' (A term used by regional and federal governments correspondence to refer to the Oromo Liberation Army) and throw us in jail,”[5] . The Washington Post reports that males and Oromos are being transported to temporary training camps and being sent to the battle front in the border area of Amhara and Tigray State and are being forced into camps and regional, ethnic based armed militias.

   [3] Department of Foreign Affairs and Trade, Country Information Report, Ethiopia, 12 August 2020 [5.5]

   [4] “Ethiopian PM urges civilians to join armed forces as war rages’, 10 August 2021, ‘Conscription, forced contributions to army and aid obstruction”, 29 September 2021, conscription-forced-contributions-to-army-aid-obstruction-aggravate-starvation-in-borana-oromia-zonal-admin-balmes-enemy- propaganda

6. The above extracts highlight the desperate need for more assistance by the Government and OLA. Individuals with tertiary qualifications and specific skills were at a particular risk of being impressed to assist the Authorities. Given the applicant’s personal circumstances, we submit hat he would also be at risk of being forced to assist the Authorities and if he refused to do so, he may face serious and significant harm.  

7. it is highly plausible that either the Government forces or ethnic forces including the OLA, would want to draw on the applicant’s expertise to assist provide medical assistance to fallen soldiers on the war fronts. We submit that as an Oromo, the applicant may be required to assist either the government forces or OLA, particularly given the ongoing and escalating conflict in his home area.

8. The Applicant explained at his hearing that if he was forced to assist the government forces and while doing so witnessed atrocities, he would be fearful that if he disclosed what he witnessed he would face reprisal from the Government and associated authorities. Examples were provided of similar fact occurrences[6]. An example of similar fact occurrences involving medical professionals was also provided by way of reference to Human Rights Watch as follows:

   [6] Conscription, forced contributions to army & aid obstruction aggravate starvation in Borana, Oromia, Addis Standard, 29 September 2021, obstruction-aggravate-starvation-in-borana-oromia-zonal-admin-balmes-enemy-propaganda/

   d)Reports of extrajudicial killings, mass arrests and detentions, and violence against ethnic Oromo civilians, including medical professionals, accused of supporting or being sympathetic to the armed rebel group the Oromo Liberation Army (OLA), were widespread. On June 3, after coming under attack by unidentified groups, regional security forces stormed into Nekemte Specialized Hospital, threatened staff into treating two wounded regional police officers and temporarily interrupted health services.[7]

   [7] Ethiopia: Events of 2020, Human Rights Watch, 14 December 2020, report/2021/country-chapters/Ethiopia

   9. If the applicant refused to assist the Government forces or the OLA, each side may impute him as a support of the other. Specifically, we note the applicant has previously been considered a supporter of the OLF. Given his previous experiences, family’s support of the OLF and involvement with the Oromo diaspora, if he also refused to assist the Government, he would be further at risk of serious and significant harm. Similarly, if he refused to assist the OLA, they may deem him as an affiliate of the government and subject him to serious and significant harm.
   10. We note that excerpts of the DFAT report were put to the applicant to comment on during the hearing. With respect, we submit that given the DFAT Report was prepared over two years ago, the information contained therein must be read in conjunction with updated country information, particularly given the evolving ethnic and political conflict in Ethiopia that is engulfing the majority of the country. It was noted that DFAT indicated that there has been a shift to political plurality since April 2018 and that there was more tolerance for political dissidents. With respect, we submit that while there may have been an initial change after the change of regime in 2018, the totality of country information does not support this contention.
   11. Human Rights Watch noted that in Oromia, government counterinsurgency campaigns against armed rebel groups resulted in serious abuses committed by all sides against communities10. The report further notes that In Oromia, the country’s biggest regional constituency, the ruling Prosperity Party ran unopposed, after the main opposition parties, the Oromo Federalist Congress (OFC) and the Oromo Liberation Front (OLF), boycotted the election, citing intimidation of supporters and the detention of party leaders. Accordingly, it is apparent that there is significant political and ethnic unrest in Ethiopia.
   12. Further, it was noted that DFAT suggests that State protection is available in Ethiopia. With respect, we submit that this is incorrect. The current government is involved in fighting on all fronts. Country information outlined above and in our submission to the Tribunal indicates government forces are engaged in conflict against the OLA, Tigrayan and other groups in Ethiopia. Given the applicant’s profile, it is our respectful submission that the applicant would not be afforded state protection, rather he would be at a real risk of serious harm from the Authorities if he was forced to return to Ethiopia.

13.Further, it was noted that the risk of arrest and detention for OLF members is considered low. With respect, we submit that this information is no longer applicable. A recent UK Country Policy and Information Note on the Oromo community notes In general, a person with a significant history of membership or support for the OLF, or perceived by the authorities to have a significant history of membership or support, is likely to be at risk of persecution or serious harm.[8]

[8] United Kingdom, Country Policy and Information Note, Ethiopia: Oromos, the Oromo Liberation Front and the Oromo Liberation Army, March 2022, Page 11, Paragraph 2.4.13-2.4.15.

14. Given the applicant’s father’s support of the OLF and the Oromo Community, the fact the applicant has been detained previously and his family have faced ongoing issues given the Authorities believe the business was supporting the OLF, we submit that it must be found that there is a real risk the applicant would be subjected to serious harm upon return to Ethiopia due to his imputed political opinion, particularly given his involvement in the Oromo diaspora in Australia.

15.It was raised that DFAT assesses that the Authorities are showing greater restraint and not arbitrarily depriving lives. With respect, we submit that this is untrue. The conflict in Tigray and now in Oromo and other regions of Ethiopia is one of the most dire situations in the world. The Government and their Authorities are continuing to commit human rights violations and abuses. The United States Department of State Report 2022 notes:

e)Significant human rights issues included credible reports of: unlawful or arbitrary killings, including extrajudicial killings by the government; forced disappearance by the government; torture and cases of cruel, inhuman, or degrading treatment or punishment by the government; harsh and life-threatening prison conditions; arbitrary arrest and detention; political prisoners or detainees; serious abuses in a conflict, including reportedly unlawful or widespread civilian harm, enforced disappearances or abductions, torture and physical abuses or punishments; reports of unlawful recruitment or use of child soldiers by militia groups; serious restrictions on free expression and media, including violence or threats of violence against journalists, unjustified arrests of journalists, censorship, and the existence of criminal libel and slander laws; serious restrictions on internet freedoms; substantial interference with the freedom of peaceful assembly; serious government corruption; lack of investigation of and accountability for gender-based violence; trafficking in persons; crimes involving violence or threats of violence targeting members of racial or ethnic minority groups; and existence or use of laws criminalizing same-sex sexual conduct. The government at times did not take steps to prosecute officials who committed human rights abuses or were involved in corruption, resulting in impunity for abusers due to a lack of institutional capacity. The government took some steps toward holding government security forces accountable for abuses.[9]

[9] USDOS - US Department of State: 2021 Country Reports on Human Rights Practices: Ethiopia, 12 April 2022, Page 2.

16. In addition to the matters outlined above, we wish to reiterate that the applicant would be at a real risk of serious harm upon return to Ethiopia due to his race and political opinion. The Authorities have demonstrated an ongoing interest in the applicant and his family. They clearly believe that they are supporters of the OLF and given the applicant’s father advocacy for and involvement with the Oromo community it is plausible the Authorities believe this. The Applicant has been an open critic of the current regime while in Australia and has continued to openly demonstrate his support for the Oromo people. Given these matters, it is highly likely he would come to the attention of the Authorities upon return to Ethiopia and be at a real risk of serious harm. Moreover, given his age and skills and ongoing conflict in Oromo, it is likely he may be forced to provide his expertise to either the Government or rebel forces. A refusal on his part to assist is likely to result in him being punished. In Chan Yee Kin v The Minister for Immigration and Ethnic Affairs13, Toohey J found a real chance is not a far-fetched possibility. The above country information coupled with the applicants’ claims for protection indicate that there continues to be a real risk that the applicant would suffer significant and serious harm if returned to Ethiopia. Accordingly, we submit the applicant should be afforded protection in Australia.

1. The Tribunal has considered all of the above.

Findings

1. The Tribunal is of the view as follows:

• The applicant comes from a well-known politically active family heavily involved in the Oromo community in Oromo.

• The involvement of the applicant’s family in the political processes of Oromo and Ethiopia over decades is well known to government authorities in Ethiopia irrespective of their political affiliation, party engagement or party status as to government or otherwise.

• The applicant’s parents and other close family members have been detained, interrogated, physically abused and mentally distressed by various agencies of the Ethiopian government over time.

• Close family members of the applicant have been significantly harmed by various agencies of the Ethiopian government over time. The Tribunal does not have enough information before it to draw a conclusion that agencies of the Ethiopian government were directly or indirectly responsible for the deaths of close family members.

• Arising out of events in Oromo the applicant sought police assistance and this assistance was refused because of the applicants race and imputed political opinion.

  • The applicant was detained and harmed by Ethiopian government authorities and this detention forced him to flee his home country.
  • Members of his family fled Ethiopia, live away from Ethiopia and have not returned to Ethiopia since leaving that country because of a well-rounded fear of persecution relating to the prior and current political engagement of the applicant and his family in past decades.
  • The applicant is heavily involved in the Oromo diaspora in [City 1] by way of occupation of leadership positions, financial contributions, community engagement and social medial activities. This heavy involvement would be well known to Ethiopian officials in Australia and relevant agencies of the Ethiopian government in the home country.

• The applicant if he should return to Ethiopia is a person of interest to the Ethiopian government because of his own and more extended family involvement in pro Oromo activities over more than a quarter of a century.

• There is no part of Ethiopia where government agencies would not be able to detain him if so desired. He would be at risk in any part of Ethiopia.

Membership of a particular social group

1. Ethiopia is in a state of civil war; the conflict has been widely reported in the media and it is now a matter of common knowledge. According to country information available to the Tribunal, including the information provided by the applicant’s representative to the Tribunal, a cease fire in Tigray was in place, that ceasefire has now broken down and various elements of the wider Ethiopian community  are now engaged in military conflict in various parts of the country including Oromo. There is no evidence or reliable country information available to the Tribunal that indicates that the differences between Tigray and their allies, and the Federal Government and its armed forces have been resolved, or that it can be tentatively concluded, that a negotiated political resolution is imminent. Indeed the various reports provided by the applicant’s representative suggest that military conflict is growing and is wide-spread.

2. Unsurprisingly, and in accordance with human experience, all sides of the war between Tigray and its allies including armed Oromo people claiming to be the OLA, the Federal Government and regional government forces, the Eritrean military forces that are allied to the Federal Government, and various ethnic militias, are disputing each other’s narrative of the facts, matters and circumstances in Ethiopia in which they have a vested interest.

3. The various reports cited by the applicant’s representative and referred to above at various stages of this decision show that that armed clashes are occurring between armed groups who are seeking to establish and keep control over land claimed by Oromia people and the Oromo State. Divisions between Oromo and Amhara wings of the federal ruling party and active ethno-nationalist forces on both sides are a dangerous trend in the country at the present time and seemingly getting worse on a weekly basis. The Amhara and Oromo regions have drastically expanded their special forces.  Informal militias from both Oromia and the Amhara regions are operating in states controlled by each other. Clashes have been sporadic but becoming increasingly regular.

4. Prime Minister Abiy Ahmed called on all capable Ethiopians to join the federal army, special forces and regional militias and to join the armed conflict against rebel Tigrayans. This information is confirmed by country information provided by DFAT to the Tribunal.

5. The information available to the Tribunal does not demonstrate that Prime Minister Abiy has call upon Ethiopians to comply with conscription laws of general application in Ethiopia. He has told the residents of Addis Ababa and Ethiopia generally to take up arms and join the ranks of the federal army and informal armed militia groups. On a reasonable view of what the Prime Minister said he was endorsing the expansion of informal ethnic armed groups. This circumstance lends support for the country information referred to above about able bodied men, including Oromo men being involuntarily forced into military service in armed conflict zones. This development is particularly relevant to the applicant’s circumstances as he is a member of a particular social group, namely skilled medical workers returning to Ethiopia.

6. It was submitted on behalf of the applicant and that the evidence at hearing establishes the applicant is a fit and healthy Oromo male person who would face a real chance of being forced into either the national army, the Oromo State special forces or an armed militia group upon his return to Ethiopia.

7. It is reasonable to infer that in the circumstances of conflict and forced conscription, as distinct from conscription according to the laws of the country, his skills would be sought-after by the federal and state armed forces and armed militias in Ethiopia.

8. On balance, the evidence is sufficient to satisfy the Tribunal that as the applicant is a member of a particular social group in Ethiopia comprising able bodied Oromo male persons who hold university level [qualifications], he is a member of a particular social group, namely skilled medical workers returning to Ethiopia and for that reason face a real chance of being involuntarily forced into military service in armed conflict zones.

Conclusion

1. The evidence considered in combination with the country information available to the Tribunal is sufficient to establish to the satisfaction of the Tribunal that the applicant has a well-rounded fear of persecution as set out in s 5J(1) that persecution is of the type set out in s 5J(4) harm, being the serious harm specified in s 5J(5)(a), (b) and (c) of the Act, due to him belonging to the particular social group characterised at paragraph 31 of this decision, if he is returned to Ethiopia now or in the reasonably foreseeable future.

2. Apart from the finding articulated at paragraph 32 of this decision, the evidence is insufficient to establish to the satisfaction of the Tribunal that the applicant would be subjected to a real chance of persecution on any of the other grounds in s 5J of the Act.

3. The evidence and country information considered together establishes to the satisfaction of the Tribunal that the governing authorities in Ethiopia could not be relied on to protect the applicant from being involuntarily pressed into military service because the Prime Minister and by necessary implication, the government of Ethiopia, exhorts all Ethiopians to take arms and fight in either the federal army forces or armed militias.

4. It would be unreasonable to expect to applicant to modify his behaviour and consent to participating in armed conflict in Ethiopia.

5. 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) of the Act.

6. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.

DECISION

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

Mark Bishop
Senior Member

Attachment  -  Extract from Migration Act 1958

5 (1) Interpretation

…

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

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

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

but does not include an act or omission:

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

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

…

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

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

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

…

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

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

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

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

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

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

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

…

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

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

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

…

5H    Meaning of refugee

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

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

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

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

…

5J     Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   (b)     significant physical harassment of the person;

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

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

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

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

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

5K    Membership of a particular social group consisting of family

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

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

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

(i)the first person has ever experienced; or

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

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

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

5L    Membership of a particular social group other than family

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

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

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

(c)     any of the following apply:

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

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

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

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

5LA Effective protection measures

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

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

   (i)the relevant State; or

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

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

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

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

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

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…