2112704 (Refugee)

2112704 (Refugee) [2024] AATA 4149 (20 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Leah Perkins
CASE NUMBER: 2112704

COUNTRY OF REFERENCE: Ethiopia
MEMBER:Catherine Wall
DATE:20 August 2024
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 20 August 2024 at 1:16pm
CATCHWORDS
REFUGEE – protection visa – Ethiopia – race – Amhara – political opinion – family association with opposition groups – Semayawi Party member – particular social group – single woman – demonstrations – fear of killing – detention – sexual violence – mental health issues – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Guo v MIEA (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 August 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age] year old citizen of Ethiopia. She arrived in Australia [in] October 2013 on a partner visa and applied for a protection visa on 8 May 2019.
The delegate refused to grant the visa on the basis that the applicant was not owed protection by Australia.
The applicant appeared before the Tribunal on 7 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages. The applicant was represented in relation to the review and the representative attended the hearing.
CLAIMS AND EVIDENCE
A summary of the applicant’s claims as detailed in his protection visa application are as follows:
She was born in Addis Ababa, her ethnicity is Amhara and her religion is Ethiopian Orthodox. She has [specified family members].
She married [Husband A] and he sponsored her partner visa to Australia in 2013. Their relationship was problematic and they separated.
While in Australia she received news from her mother that authorities had stormed her family home and arrested two of her brothers. Prior to this event her siblings had been the subject of repeated harassment and mistreatment as government agents accused the family of affiliation with Amhara opposition groups. [One] brother was imprisoned for [period].
As prominent members of the Amhara ethnic group, she and her relatives had protested in Ethiopia against the government’s dictatorial control of Amhara’s, demanding an end to Tigray annexation of Amhara land and an end to minority Tigre rule in Ethiopia.
In 2005 she was detained for 4 weeks by the military for participating in a peaceful demonstration. She was denied food and water for days and kept in a filthy cell.
In February 2013 two security agents stormed the family home and took her to the detention facility where she was interrogated, dragged on the corridor and sexually abused by one of the officers. After [a period of] detention she was released with a warning to never speak of her experience. After this she was so angry that she joined the Semayawi Party (Blue Party) in April 2013. She participated in a number of demonstrations in Addis Ababa including the march to [Location 1] in June 2013, during which she was detained for [period]. In order to secure her release she signed a consent of never participating in another protest.
She attempted to relocate by moving to [Region 1] but security was tight in that area so she returned to Addis Ababa. She was then granted the partner visa so she moved to Australia.
She fears returning to Ethiopia because she has witnessed others being eliminated simple for being ethnic Amharas, Her [relative] was murdered, her brother imprisoned and her siblings displaced. Her family lives in constant terror as there is no observance of human rights in Ethiopia.
The applicant has provided a range of documentary material in support of her claims, most relevantly:
a.A detailed legal submission addressing the applicant’s claims.
b.A translated copy of a bail receipt which states that [Brother A] paid [an amount] Ethiopian bir[1] surety money [in] October 2020.
c.A translated copy of a prisoner release certificate dated [in] January 2018 which states that [Brother B] was sentenced to [period] for terrorism, with a duration of correction of [period].
d.Medical report from [Doctor A] dated 25 July 2024 which details the applicant’s medical conditions and treatment plan.
e.Letter from [a named] Psychiatrist, dated 31 July 2024 which states that the applicant has a major depressive disorder, generalised anxiety disorder and CRPS (complex regional pain syndrome).
f.Support letter from [a named official from] [Community Organisation 1], and photograph of the applicant at [a Community Organisation 1] fundraiser. The support letter describes the continuing persecution of Amhara people in Ethiopia.
g.Multiple references to country information and news reports.
h.Reference to an AAT decision 2023 on a case with similar claims.
[1] Equivalent of approximately $[amount] AUD at current conversion rates
In the legal submission the applicant’s representative clarified details regarding previous evidence, in particular:
oThe applicant was captured and detained by police for participating in a protest after the 2005 election. She was charged with rioting and released after [period] when her family paid [an amount[ Ethiopian bir[2] bond. She was never convicted of the charge.
oIn February 2013 the authorities raided the applicant’s family home looking for her [Brother B]. They took the applicant instead and during a [period] of interrogation she was repeatedly raped by police officers. She was released after her mother was made to hand over the title of their family home as a ‘guarantee’.
oThe applicant’s claim in the visa application that she was detained in June 2013 is incorrect. In June 2013 the applicant attended a Semawayi Party meeting in [Location 1]. Police disbanded the meeting and the applicant was able to escape.
oThe applicant was able to leave the country in October 2013 as she had not been convicted of any offence.
oThe applicant’s marriage ended and her permanent partner visa applicant was refused on 2 December 2016.
oSince the applicant has been in Australia, her brothers [Brother B] and [Brother C] were arrested in July 2014. [Brother C] was released however [Brother B] was sentenced for [period] to conspiring to overthrow the government. After his release in January 2018 he was re-arrested for attending an unauthorised gathering. He was released the following month.
oIn April 2019 the applicant’s brothers [Brother A] and [Brother C] were arrested. [Brother C] was released and [Brother A] was charged and held in prison for several months. In 2021 [Brother A] was arrested again and detained for several months. His mother paid [an amount] bir bond to secure his release.
oThe applicant’s [relative] living in [Town 1] was shot dead in 2024 and the following day a government drone attacked [an event], killing one of her [uncles].
Evidence at hearing
[2]Equivalent of approximately $[amount] AUD at current conversion rates.
The applicant told the Tribunal that she currently lives alone in [City 1]. She is unable to work due to a workplace injury which occurred in 2020 and she relies upon workers’ compensation payments as she has no other source of income. She has no family in Australia and confirmed that her marriage ended and she applied for the protection visa after her permanent partner visa was refused. She said that her mental health is not good. She is on medication and sees a counsellor regularly. Her hand injury is not healing and this is very distressing for her.
The applicant said that she cannot return to Ethiopia because she will be persecuted because of her Amhara ethnicity. She referred to her family’s history of protest against the government and subsequent harassment by authorities as detailed in her statement, legal submission and supporting documents.
When asked about her political activism in Australia, the applicant said that she is a member of [Community Organisation 1 variant]. She attends meetings (both online and face to face) and collects donations. After the Merawi massacre in January 2024, in which her [relatives] were killed, she participated in demonstrations against the Ethiopian government. She attended an Amhara event in [City 2] in 2022 but was vague about the details. She has also attended [Event 1] in [Suburb 1]. She regularly attends [Church 1].
In regard to the applicant’s family, she said that both her parents are now deceased. [Number] of her siblings live in Addis Ababa: [names]. [One sibling] lives in [Country 1], [another] lives in [Country 2] and [another] lives in [Country 3]. She does not know the whereabout of [another named sibling].
I asked the applicant about her brother [Brother B] who was imprisoned in 2018. She said that he was released from prison after [period] then arrested again in March the same year. He was, however, not sentenced. He was an active member of the EZEMA Party but ceased his support when the Party made an agreement with the government. He is not involved in politics now as he is fearful for his life.
The applicant said that her mother told her that [Brother A] was arrested in 2019 with his brother [Brother C] as police alleged they found a knife in their taxi. [Brother C] was released but [Brother A] was imprisoned for one year. She understands that he was arrested again after his release but she does not know the details. I asked if her siblings remain politically active. She said that she is not sure, as she used to get family information from her mother however her mother died last month.
I discussed the delegate’s decision with the applicant, as the delegate accepted that the applicant’s family has been politically active but was not satisfied that the applicant was politically active or faced harm. The applicant said that all her family was politically active, and that she was involved with the Semayawi Party. She argued that she is at risk of harm in Ethiopia because of her past activism in Ethiopia and her recent activism in Australia. She said that she became involved with [a named group] in Australia after her brother was imprisoned however she did not detail her activities with the party.
I invited the applicant to comment on country information about the current situation for Amharas in Ethiopia. I advised that the DFAT report indicates that Amharas in Amhara area continue to experience conflict and persecution, however the situation is better in Addis Ababa where her siblings live. The applicant said that the conflicts spill over into Addis Ababa and her siblings have many challenges as work is difficult to find, that the authorities check individuals’ ID to see if they are Amhara and they damage Amhara houses. She claimed that the authorities regularly search her family’s home and her family members are always watched. She referred to the death of her [relative] and her uncle in the Merawi massacre as an example of her family’s vulnerability.
The applicant’s representative submits that the applicant will be politically active if she is returned to Ethiopia and that she cannot be expected to modify her beliefs. She will therefore be subject to serious harm as an Amhara and as a single woman.
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 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.
ASSESSMENT OF CLAIMS AND EVIDENCE
Under s 5AAA of the Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim for protection, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act; Abebe v Commonwealth of Australia.[3]
Identity
[3] (1999) 197 CLR 510.
The applicant’s nationality is not an issue. She travelled to Australia on a valid Ethiopian passport and has consistently stated in documentation that she is a national of Ethiopia. The delegate did not indicate any concerns about the applicant’s identity or nationality. Therefore, I am satisfied the applicant is a national of Ethiopia and I have assessed her claims against Ethiopia as her receiving country.
Credibility
The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[4] It is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[5]
[4] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court).
[5] (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547
The applicant’s representative advised that the applicant’s mental health condition may impact on her ability to participate meaningfully in the hearing. I have had regard to the psychological report from the applicant’s psychiatrist and I have been mindful of the AAT guidelines on vulnerable persons [6], particularly regarding the impact of trauma on memory and the reasons why trauma and depression may lead to apparent inconsistencies and/or the inability to present a chronologically intact account.
[6] Administrative Appeals Tribunal / Migration & Refugee Division/ Guidelines on Vulnerable Persons/ Knowledge Management/ November 2018
My assessment at hearing was that the applicant engaged with my questions and her answers were generally considered. She became distressed when discussing the recent death of her mother and she did not want to discuss the details of her physical and sexual assault in Ethiopia. Overall I found her evidence to be credible and consistent, although her responses were vague in regard to some issues, such as her siblings’ current circumstances in Addis Ababa and her involvement with the Semayawi Party. I am satisfied, however, that her representative’s thorough submission provided details on issues which the applicant was unable or unwilling to discuss.
Country information
The DFAT Country Information Report on Ethiopia states that:
The security situation has deteriorated in parts of the country since 2018. Inter-ethnic clashes – invariably over land and other resources – have increased significantly, particularly in the West Guji Zone of Oromia State and along the Oromia-Somali, Oromia-Benishangul-Gumuz, and Amhara-Tigray state borders. Inter-ethnic clashes have caused death, the destruction of property and large-scale internal displacement — Ethiopia recorded the most conflict-related internal displacement in the world in 2018 (see Internally Displaced People). Ethnic militias have proliferated in the states, and weapons are readily available. Addis Ababa has largely been immune from this instability to date. [7]
DFAT assesses that, outside of national and state border areas, the government controls the security situation, and Ethiopia tends to be safer than most of its neighbours. DFAT assesses Addis Ababa to be particularly stable, and it continues to attract migrants from other parts of the country in search of economic opportunities. Nevertheless, the rule of law has deteriorated in some regional states and several non-state armed groups have emerged to advance the interests of their ethnic group. The situation along regional state borders can be particularly unstable. DFAT assesses that, with Ethiopia’s democratic opening presenting opportunities for the expression of previously-suppressed historical grievances and ethnic-based clashes increasing across the country, people who constitute ethnic minorities in regional states face a growing risk of physical violence. This risk is more pronounced during times of civil unrest.[8]
[7] DFAT Country Information Report Ethiopia, 12 August 2020 at 2.50
[8] DFAT Country Information Report Ethiopia, 12 August 2020 at 2.59

In regard to the Amhara population, DFAT reports that the Amhara population is 26.9 per cent of the population and the single largest ethnic group in Addis Ababa at the time of the 2007 census. They are represented politically at the federal level and political parties representing Amharas are politically active.[9] DFAT assesses the arrest of Amharas during the 2014-18 anti-government protests was not ethnically motivated but reflected the then-federal government’s sensitivity to political opposition. DFAT assesses Amharas face a low risk of official discrimination based on their ethnicity, including with respect to employment in the public sector. The Amhara have been the subject of ethnic-based attacks in states where they do not constitute a majority, particularly in Benishangul-Gumuz. DFAT assesses that, like most other groups, Amharas face a moderate risk of violence in areas or states where they are a minority.[10]
[9] DFAT Country Information Report Ethiopia, 12 August 2020 at 3.9-3.10
[10] DFAT Country Information Report Ethiopia, 12 August 2020 at 3.10
The revision of the Anti Terrorism Proclamation (ATP) in 2020 has improved freedom of expression but It is a significant improvement on the previous ATP but DFAT notes that has still drawn criticism from civil society groups, including Amnesty International, who fear it could still be used against those critical of government.[11]
[11] DFAT Country Information Report Ethiopia, 12 August 2020 3.36
DFAT assesses tolerance for political dissent has increased considerably since April 2018. Opposition political parties are able to organise and operate significantly more freely, particularly in Addis Ababa, and their members face a low risk of harassment, arrest and detention by virtue of their political affiliations and views. DFAT assesses Ethiopians can openly criticise the ruling party and that the situation for human rights defenders today is ‘fundamentally different to what it had been before Abiy’s reform agenda.[12]
[12] DFAT Country Information Report Ethiopia, 12 August 2020 3.41
The Tribunal is mindful that the DFAT report is now 4 years old and that there have been many significant developments in Ethiopia since that time. More recent country information reports increasing conflict between Amhara activists and the Ethiopian government. In a Wilson Center article of 29 September 2023[13] it is argued that Ethiopia is again sliding into a protracted civil war as a result of military confrontation between the Federal Army and the Fano (Amhara combatants) armed groups:
In early August 2023, the Fano forces controlled several towns and major airports in the region, including the regional capital Bahir Dar. As a result, the political and security structures of the regional government collapsed, forcing the ruling Amhara Prosperity Party and regional government into exile to Addis Ababa. The federal government responded by declaring a state of emergency and launching the third wave of military operation.
In present-day Ethiopia, the Amharas believe that the existing constitution and ethnic-based territorial arrangement disregards their interest and safety. Amhara nationalists underscore that the narrations embedded in the country’s current constitution expose the Amharas to “ethnic cleansing” and “genocide.”
[13] A Reflection on the Conflict in the Amhara Region of Ethiopia | Wilson Center
In an article in Foreign Affairs on 8 April 2024, by Adem Kassie Abebe, Vice President of the African Network of Constitutional Lawyers, it is claimed that “the government’s attempt to generate a sense of exuberance in the capital city, Addis Ababa, masked the expanding spiral of instability and humanitarian tragedy in the country”.[14] He reports that the Fano fighters, Amhara combatants, represent an armed manifestation of the longstanding grievances of the Amhara people. He describes the January 2024 Merawi massacre as the most gruesome so far, but not the first, as similar civilian killings were reported in the Amhara cities of Lalibela and Malete in September 2023. Abebe predicts that continued conflicts in Amhara will worsen the threats of famine and generate an exodus of people within and outside of Ethiopia.
[14] Ethiopia’s Amhara Conflict Could spark Civil Ware. Adam Kassie, Abebe. 6 March 2024. Ethiopia Amhara Conflict Threatens Another Civil War (foreignpolicy.com)
The European Centre for Law and Justice 2024 report examines the human rights challenges and abuses faced by the Amhara community in Ethiopia. It describes extrajudicial and summary killings, mass arrests and thousands of Amhara individuals detained under the pretext of maintaining security.[15]
[15] The Silent Suffering of the Amhara People in Ethiopia. The European Centre for Law and Justice. 2024 The Silent Suffering of the Amhara People in Ethiopia (eclj.org)
According to a report by Human Rights Watch published on 3 July 2024:
The United Nations, human rights groups and the media have reported on security forces abuses in Amhara, including the summary killings of civilians, unlawful drone strikes, and mass arrests without due process. Human Rights Watch received reports that armed groups have looted homes, imposed “taxes” on civilians, and abducted people they suspect of supporting the government. Ethiopian authorities have accused Fano of assassinating senior regional security officials. Since the start of the conflict, international and domestic human rights groups, as well as the media, have reported on abuses by Ethiopian forces, including the summary execution of civilians. The Ethiopian Human Rights Commission (EHRC) found civilians were killed in crossfire during heavy fighting between Fano and Ethiopian government forces in towns and cities in the region in August.
The Office of the United Nations High Commissioner for Human Rights (OHCHR)
estimated that the fighting had killed 183 people in July and August 2023 alone. OHCHR also received reports of more than 1,000 people arrested under the state of emergency, with many of those detained reported to be ethnic Amhara suspected of supporting Fano.[16]
Reporting of the arrest of [Brother B]
[16] 19 Human Rights Watch, “If the Soldier Dies, It’s on You”, Attacks on Medical Care in Ethiopia’s Amhara Conflict, 3 July 2024, accessed on 28 July 2024, at >
Numerous sources support the applicant’s claim that her brother [Brother B] was imprisoned in 2014 including:
[Details deleted].[17]
[Details deleted].[18]
Gender violence
[17] [Source deleted.]
[18] [Source deleted.]
The treatment of women in Ethiopia remains challenging. Women have fewer employment opportunities than men, lower educational levels and limited access to reproductive health services. Traditional gender roles are prescribed and women often lack financial independence.[19] Gender based violence is a criminal offence in Ethiopia but is rarely enforced. According to reports, men widely consider hitting or beating their wife to be justified in certain circumstances, including where a wife has burned her husband’s food, argued with him, left the house without telling him, neglected the children or refused to have sexual intercourse with him. A local source told DFAT there was an acceptance among many women to tolerate domestic violence and submit to the sexual desires of their husbands.[20] DFAT assesses women in Ethiopia face a high risk of domestic violence and sexual harassment. Sexual assault, including spousal rape, is common. DFAT assesses support services for women escaping from domestic violence have improved but are insufficient overall.[21]
[19] DFAT Country Information Report Ethiopia, 12 August 2020 at 3.59-3.60
[20] DFAT Country Information Report Ethiopia, 12 August 2020 at 3.64
[21] DFAT Country Information Report Ethiopia, 12 August 2020 at 3.67
Does the applicant meet the refugee criteria?
I note that the delegate did not accept that the applicant was arrested and detained in 2005 and 2013 or that she was a member of the Semayawi Party. I acknowledge that there is no independent evidence of these claims. I am however willing to give the applicant the benefit of the doubt for the following reasons. Firstly, it is not disputed that her siblings were political activists therefore it is reasonable to accept that she shared their political views. Secondly, given country information about the arbitrary arrests and detention that occurred during that period, it is unlikely that there would be documentary evidence of the applicant’s arrest.
Secondly, the applicant’s written and oral evidence demonstrates a sound knowledge of relevant political events in Ethiopia and the names and activities of various political parties and activist groups. Her knowledge and commitment to advancing human rights for Amharas is consistent with her claims of activism in Ethiopia.
Thirdly, many years have passed since these incidents and I accept that recall can diminish over time, particularly when the applicant has severe mental health conditions. Although the applicant has been unable to substantiate all her claims, I am satisfied with the overall credibility of her evidence. Her brothers’ arrests are verified in police documents and media reports and country information is consistent with the applicant’s account of the conflicts in Ethiopia involving Amhara activism.
The applicant claims that she fears that if she is forced to return to Ethiopia, she would face serious harm amounting to persecution in the form of systemic violence, sexual abuse or exploitation and/or discriminatory conduct from the Ethiopian authorities, police and/or security forces,and/or members of other ethnic groups and/or men in the community for the following reasons individually and/or cumulatively:
o   Actual or imputed political opinion as anti-government
o   Amhara ethnicity
o   Ethiopian Orthodox religion
o   Membership of a particular social group: a single woman; and single woman with a disability; a single woman incapacitated for work
o   Single woman with mental illness
I have had regard to UNHCR guidance in 2022 on the return of asylum seekers to Ethiopia which states:
“In the current circumstances, with ongoing conflict and violence in parts of the country, large-scale internal displacement, and severe humanitarian needs, UNHCR does not consider it appropriate for States to deny persons from Ethiopia international protection on the basis of an internal flight or relocation alternative.”[22]
[22] United Nations High Commissioner for Refugees, ‘UNHCR Position on Returns to Ethiopia’, March 2022,
accessed 30 July 2024, at >
The applicant submits that the Tribunal should assess the risk of harm posed to her as a single woman with a physical disability and mental illness which prevent her from working. On the basis of the available evidence I make the following findings:
I accept that the applicant is of Amhara ethnicity and that she is a practising member of the Ethiopian Orthodox Church.
I accept that she and her family members hold strong political views and believe that the Ethiopian government discriminates against and persecutes the Amhara population.
I accept that the applicant’s brother [Brother B] was found guilty and imprisoned 2014 for terrorism related offences in Ethiopia.
I accept that her brother [Brother A] was arrested and imprisoned in 2019 for anti-government activism.
I accept that the applicant engaged in anti-government protests in Ethiopia and was detained and physically and sexually assaulted by police in 2013.
I accept that the applicant has been and continues to be politically active in Australia and is known to have strong anti-Ethiopian government views.
I accept that the applicant fears harm on return to Ethiopia because of her identity as an Amhara, as a single woman and as a person with a profile as a political activist.
Having made these finding, I am satisfied that the applicant will have a profile upon return to Ethiopia that is likely to expose her to questioning and surveillance on the basis of her family’s activist profile and her previous arrest and detention.
I have considered the applicant’s personal vulnerabilities when assessing the real chance of harm upon return to Ethiopia. On the basis of reports from her general practitioner and psychiatrist, her oral evidence and her demeanour at hearing, I accept that she is psychologically vulnerable. She has a major depressive illness and generalised anxiety disorder. I accept that her condition is the result of the trauma she experienced in Ethiopia, her separation from her family and the uncertainty experienced as an asylum-seeker in Australia.
Having considered the available evidence I find that there is a real chance that the applicant’s psychological vulnerability, her family history of political activism and imprisonment, her past history of activism, her association with the Amhara diaspora in Australia, and her profile as a single woman, would subject her to questioning, surveillance and possible detention upon return to Ethiopia, which would constitute serious harm.
Having considered the issues individually and cumulatively, I find that, if the applicant returns to Ethiopia now or in the foreseeable future, there is a real chance she will face serious harm from the authorities as required by s 5J(4)(b) of the Act, in that it involves a threat to her life or liberty or significant physical harassment or ill-treatment. I find that the applicant’s Amhara ethnicity, her gender and her imputed and/or actual (anti‑government/pro‑LTTE/pro-Tamil separatist) political opinion is the essential and significant reason for the persecution she fears, as required by s 5J(4)(a).
I am also satisfied that the harm applicant fears involves systematic and discriminatory conduct, as required by s 5J(4)(c), in that it is deliberate or intentional and involves her selective harassment for reason of her ethnicity, gender and (actual or imputed) political opinion.
In this case, as the applicant fears serious harm at the hands of state actors (among others), I am not satisfied that the effective protection measures per s 5LA are available to the applicant in Ethiopia provided by the state, party or organisation. It follows that I do not accept that the applicant would be able to access effective protection if returned to Ethiopia for the purposes of s 5LA(2).
As the state authorities whom the applicant fears exist nationally, I am not satisfied that there is any part of Ethiopia where she would be safe from the persecution that she fears based on her ethnicity, gender and actual or imputed political opinion. I am satisfied the applicant would face a real chance of persecution in all areas of Ethiopia as required by s 5J(1)(c).
Section 5J(3) states a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience or conceal an innate or immutable characteristic. In this case, I am satisfied that the modification would require the applicant to alter her political beliefs or conceal her ethnicity and gender which is impermissible as per s 5J(3)(c)(ii) and (iii) of the Act.
Accordingly, and for the reasons above, I find that the applicant faces a well‑founded fear of persecution from the authorities due to her ethnicity, her gender and her imputed or actual political opinion if she returns to Ethiopia, now or in the reasonably foreseeable future. I find that the applicant has a well-founded fear of persecution for the purposes of s 5J.
There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in a third country for the purposes of s 36(3) of the Act.
CONCLUSIONS
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Catherine Wall
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.
…
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.
…

[2024] AATA 4149

20 August 2024

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