2118846 (Refugee) - [2022] AATA 4880

2118846 (Refugee) [2022] AATA 4880 (21 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Amelia Faraone
CASE NUMBER:  2118846
COUNTRY OF REFERENCE:                   Ethiopia
DATE:21 November 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 21 November 2022 at 10:13am
CATCHWORDS
REFUGEE – protection visa – Ethiopia – request for adjournment refused – Amhara ethnicity – political opinion – opposition to the government’s treatment of the Wolkayte Amhara – previous experience of detention, interrogation and torture – ongoing persecution of wife and family – political and security situation in Ethiopia post 2020 – interethnic violence – shortage of grain – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 360
Migration Regulations 1994 (Cth), Schedule 2
CASES
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
MIAC v Li (2013) 249 CLR 332
MZAIV v Minister for Immigration & Anor [2015] FCCA 2782
SZSWB v Minister for Immigration and Border Protection [2014] FCCA 765
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 December 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Ethiopia applied for the visa on 10 April 2020. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 17 November 2022 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 requested on multiple occasions to provide a copy of the decision record to the Tribunal. The applicant did not comply with this request. On 28 September 2022 the Tribunal released in full all relevant documents under FOI. This did not include a copy of the decision record.
Request for Adjournment
On 17 October 2022 the Tribunal wrote to the applicant and invited him to attend a review hearing on 17 November 2022. On 3 November 2022 the applicant wrote to the Tribunal in the following terms:
·I have recently been appointed by [the applicant] as his legal representative (please see MR5 form attached). I would like to kindly request a postponement of the hearing. Noting that I was only appointed as [the applicant]’s representative today, the postponement would be to allow sufficient time to prepare submissions, and to seek supporting statements from individuals and organisations with knowledge of [the applicant]’s situation.
·[The applicant] will be prejudiced should I not be able to seek comprehensive instructions as to his existing claims, as well as investigate any further claims that he might have to protection. It would be in the interest of procedural fairness, as well as in the Tribunals interest, that [the applicant] is represented during his hearing.
·I would like to kindly request a one month postponement.
The High Court of Australia (HCA) in MIAC v Li (2013) 249 CLR 332 gave consideration to the factors relevant in a request for adjournment. The High Court held that the Tribunal must not arbitrarily exercise its discretion whether or not to grant an adjournment but rather must do so by reference to the facts and circumstances of the individual case and in a manner, which is reasonable and has regard to the statutory purposes of s.360. In considering reasonableness, the Court considered the Tribunal’s statutory purpose to conduct a conduct its review in a manner which ‘is fair, just, economical, informal and quick’.
The Tribunal turned to consider the request for an adjournment outlined in paragraph 5 above.
The applicant lodged his Application for a Protection Visa on 10 April 2020. The Departmental file discloses the applicant provided supporting documentation as part of that application, provided numerous Form 1023’s to the Department in June 2021 and attended an interview on 8 June 2021. On 1 December 2021 the Department provided to the applicant a “Notification of refusal for a Protection (subclass 866) visa. The applicant lodged his Application for Review on 10 December 2021. The Tribunal is of the view the applicant has been aware for some considerable time of the need to prepare for his review hearing. The Tribunal is of the view the applicant had sufficient time from 10 December 2021 to give consideration to the appointment of his MA. The Tribunal is of the view the recently appointed MA has sufficient time to prepare for the review hearing. The Tribunal is of the view the MA for the applicant has sufficient time to prepare submissions and to seek supporting statements from individuals and organisations with knowledge of [the applicant]’s situation. Accordingly the Tribunal refused the request for as adjournment.
The applicant was represented in relation to the review.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information 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
On 17 October 2022 the Tribunal wrote to the applicant and invited him to attend a review hearing on 17 November 2022. The letter of invitation stated, “Please provide all documents you intend to rely on to support your case by 10 November 2022.” The applicant did not comply with this request and did not provide any documentation or information to the Tribunal.
As is standard practice the Tribunal included a hearing response form that included a fact sheet and at part 3 requested the applicant “send us a copy of the documents at least seven days before the hearing).” The applicant did not comply with this request and did not provide copies of the documents referred to in paragraph 18 below.
On 16 November 2022 (sent at 8.23pm 15 November 2022 and received on 16 November 2022) the day prior to the scheduled review hearing the applicant provided a copy of the response form as follows under the letter head of the Refugee & Immigration Legal Centre with the signature of an Amelia Faraone, solicitor.
·The applicant would participate in the hearing and an Amharic interpreter was requested.
·The applicant would rely on the following documents at the hearing:
oStatutory Declaration of [the applicant];
oStatement of [Mr A], Statement of [Mr B], Statement of [Mr C], Statement of [Mr D] (see under at paragraph19), Statement of [Mr E],Statement of [Mr F],
oCopy of text messages from [Mr G],
oMedical Records from [a community health centre]
The Tribunal notes a letter of support from a [Mr D], President [of an Amhara community organisation] dated 11 June 2021 that addressed the federal structure of Ethiopia, ethnic minority displacement in Ethiopia, the [satirical] criticism of the applicant and the applicant’s participation in fundraising events to help the Amharas community in Melbourne.[1]
[1] Departmental file [numbers]
In his Application for a Protection Visa[2] dated 10 April 2020 the applicant outlined his protection claims as follows:
[2] Departmental file [numbers]
·The applicant is of the Amhara ethnicity and was born in [City 1] in Amhara. The Tribunal accepts the applicant is of Amhara ethnicity and was born in [City 1] in Amhara.
·The applicant has been a [Occupation 1] for 23 years. The Tribunal accepts the applicant is a [Occupation 1] of long standing.
·The applicant holds an anti-government political opinion as he opposes the government’s treatment of the Wolkayte Amhara who had their land stolen.
·The applicant’s wife who is a [Occupation 1] and children have been cruelly targeted because of their Amhara ethnicity.
·The applicant was physically abused while participating in a protest because of his [profession] and being of great influence to others.
·The applicant’s family in [City 2], Jijiga have been attacked because of their Amhara Wolkayte ethnicity.
·The applicant’s family had to flee from [City 2] to Addis Ababa. The applicant’s family is currently residing in Addis Ababa.
·The applicant was arrested in 2010 during an anti-government protest when he joined a group of students chanting anti-government slogans. The applicant was detained for 3 months and was physically and emotionally abused during that time.
·The applicant was again imprisoned in 2014 for about weeks following a nationwide protest against the government. The applicant was tortured.
·The applicant was tortured as the authorities attempted to find out who was behind the protests.
·The applicant claims that although there is a new Prime Minister, the political dominance of the EPRDF remains.
·The applicant claims that the regime is pretending to become more democratic to the international community however the security are still arresting, torturing, killing activists and dissidents.
·Some of the applicant’s family in the [City 2] region in Jijiga have been subject to death and displacement
·The applicant fears being detained killed or tortured by the security forces of the government
·The applicant also fears the dominance by Oromo extreme nationalist parties
The applicant provided numerous Form 1023’s “Notification of incorrect answers” to the Department[3] relating to addition of a family member, calendar conversion, change of address, clerical error in change of address detail, omission of application to enter [Country 1], errors relating to address and location of family members in Ethiopia.
[3] Departmental file [numbers]
The applicant provided a series of letters to the Department summarised by the Tribunal as follows:
·Letter dated 29 May 2021 from the Ethiopian community association in Victoria under the name of [Ms H] advising she has known the applicant since 2019, he participates in various Ethiopian community associations and is a man of integrity and good character.[4]
·Letter dated 29 May 2021 from [the] President of [Organisation 1] that advised the applicant participated in zoom events about awareness raising in the community and was a person of excellent character.[5]
·Letter of support from [named] Social Services dated [in] May 2021 advising of the applicant’s participation in events and is of excellent character.[6]
·Letter of support from the Ethiopian Orthodox [deleted] advising the applicant is an active member of the church, participates in various programs and is popular and respected in the community.[7]
·A photo of a group of persons in a demonstration or protest.[8]
·Letter of support from [a sports club] dated 4 June 2021 advising of the club’s appreciation of the applicant’s participation and integration in local communities including [deleted].[9]
·Series of YouTube links [to] various applicant [activities], event participation, well attended meetings/rallies and protests relating to contemporary political, ethnic and economic matters generally but not exclusively with low viewer numbers, minimal comment figures and mostly posted subsequent to the applicant’s arrival in Australia.[10]
·A further set of Video links of applicants status in Ethiopia.[11]
[4] Departmental file [numbers]
[5] Departmental file [numbers]
[6] Departmental file [numbers]
[7] Departmental file [numbers]
[8] Departmental file [numbers]
[9] Departmental file [numbers]
[10] Departmental file [numbers]
[11] Departmental file [numbers]
The Tribunal notes the applicant departed and returned to Ethiopia on numerous occasions as follows:
·[Country 1] in December 2007
·[Country 2] in July 2016 for [work].
·[Country 1] in October 2016 for [work].
·[Country 2] in May 2018 for [work].
- [Country 1] in September 2018 for [work].
- [Country 2] in March 2019 for [work].
The applicant provided a statutory declaration summarised by the Tribunal as follows:
·The applicant stated Amharas have been persecuted in Ethiopia for most of his life, initially under the Tigrayan Liberation Front government and then under the Oromo-controlled government. It got worse under the Oromo controlled government.
·For nearly all of his adult life he worked as an [Occupation 1].
·He is married with [number] children and [number] adopted children.
·He has regularly [worked] overseas to mainly Ethiopian diaspora in countries such as [Country 1] and [Country 2].
·In 2010 whilst living in Addis Ababa he was arrested for joining anti-government protests, detained for 3 months and subjected to torture. He provided particulars of the torture.
·In 2014 he returned to his home of [City 1] to stay with family whilst [doing things to support] the Amhara people. He was detained, arrested, jailed and tortured. After release from prison he was warned by many people to leave Ethiopia.
·He takes his religion seriously. With the aid of his religion he reflected on his emotional and physical state. He stopped being active in the various anti-government movements for the next 4 years.
·Post 2018 things got worse for the Amhara people. People were evicted from their properties, people disappeared, people were killed, he was pressured to [speak out] again, he engaged in anti-government rhetoric in his [activities], he appeared on tv and following that interview he was again physically beaten up by Oromo people.
·He came to Australia to undertake a series of [activities] in a number of states for the Ethiopian diaspora. He made occasional contact with his wife in the early part of his stay in Australia.
·Post his visit to [City 1] he and his wife relocated to [City 2]. There is a large Oromo population. He is a public figure fand well known. The level of ethnic violence increased in [City 2] in the period 2014 to 2018.
·In November 2019, after his arrival in Australia his wife was physically beaten and attacked and she was evicted from our home. She had to flee for safety and to find somewhere where she could stay. She decided to go back to Addis Ababa. Addis Ababa had the advantage of being a large place where she might gain the benefits of anonymity. She relocated the [number] adopted children to her mother.
·His wife and family in Ethiopia continue to be the subject of persecution in Addis Ababa. Their banks savings were confiscated, his wife was assaulted again, She is well known as a [Occupation 1] as well and has [travelled] on 100’s of occasions in [Country 3] and Europe. He provided particulars of the style of attack and harassment suffered by his wife (paragraph 18). The ability to behave without identification is (by the security forces) of course, done purposefully to intimidate and terrify. His wife advises him not to come back because he will be killed.
·His wife provided a partial statement that outlined detail of her torture, property theft, her need for safety reasons to shift regularly in Addis Ababa and detention and torture by security forces seeking detail of Fano membership.
·His family in Ethiopia are in grave danger. He cannot return to his home country. His wife still changes residence regularly. He is receiving psychological treatment in Australia.
·He provided detailed criticisms of various statements, references and findings in the decision record.[12] His solicitor on numerous occasions (including during the hearing when the Tribunal pointed out the obvious inconsistency of refusing to provide a copy of the decision record and then providing a statement critical of the same decision record) refused to provide the Tribunal with a copy of the decision record. The Tribunal gives no weight to any element of the submissions that rely on extracts from the decision record as the decision record is not before the Tribunal and the Tribunal is unable to confirm the accuracy of cited or referred extracts.
[12] See for example Doc ID number Doc ID number 10447424 page 10 and Doc ID number 10447435 paragraph 5 and following.
The applicant provided a written submission that addressed the following:
·His claims for protection are twofold:
ohis actual and imputed political opinion of being anti current Ethiopian government;
ohis Amhara ethnicity.
·He fears the following sources of persecution:
odirect targeted serious harm[13]
[13] For ss 5J(4) and (5)
odirect and indirect threats to his life or liberty communicated to [the applicant] amounting to serious harm (that is, separate and distinct from any harm that may follow those threats);[14]
[14] See: Minister for Immigration, Multicultural and Indigenous Affairs v VBAO of 2002 (2004) 139 FCR 405
odirect targeted serious harm for reasons not covered by s 5J(1)(a), or direct and indirect threats to his life or liberty communicated to [the applicant] amounting to serious harm; but where the Ethiopian authorities may discriminatorily withhold protection;[15]
[15]That is, persecution of the kind referred to by the High Court in Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at [31] per Gleeson CJ, and at [120] per Kirby J.
opersecution of the kind referred to by the High Court in Appellant S395/2002[16] (Appellant S395) – whereby the Applicant would be compelled to act discretely and modify his appearance and profile to hide being an Amhara man, as well as his political opinions, to avoid serious harm, and where those modifications:
[16] Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
üwould not be reasonable in all of his personal circumstances for s 5J(3); and/or
üwould be a modification of a kind not permitted by ss 5J(3)(a), (b) and (c).
·Without negating the strength of his claims for s 36(2)(a), in addition and in the alternative we submit for s 36(2)(aa) that [the applicant] is at a more than remote risk of suffering the following instances of significant harm[17] as a necessary and foreseeable consequence of being returned to Ethiopia:
§arbitrary deprivation of life; and/or
§torture; and/or
§cruel or inhuman treatment or punishment and degrading treatment; and/or
§significant harm of the kind identified by the Federal Circuit Court of Australia in SZSWB[18] and MZAIV[19].
[17] as exhaustively defined in s 36(2A)
[18] SZSWB v Minister for Immigration and Border Protection [2014] FCCA 765, where Judge Driver held that the principle in Appellant S395 could be extended to complementary protection (s.36(2)(aa)) such that “it would be an error for the Tribunal to expect a protection visa applicant to forego a right conferred by the ICCPR in order to find safety in his or his country of origin, especially if it was the exercise of that right which gave rise to the harm feared by the applicant”. This principle was not overturned or otherwise displaced on appeal in Minister for Immigration and Border Protection v SZSWB [2014] FCAFC 106.
[19] MZAIV v Minister for Immigration & Anor [2015] FCCA 2782, where Judge Harland agreed with Judge Driver in SZSWB that there is no logical reason as to why the principle in Appellant S395/2002 should not apply to those international agreements supporting complementary protection, in addition to the Refugee Convention, at [24]. This principle was not overturned or otherwise considered on appeal in Minister for Immigration and Border Protection v MZAIV [2016] FCA 251.

The applicant provided 100’s of pages of his medical records from [a community health centre]. No explanation was provided as to the relevance of these records. A Tribunal review shows the records confirmed relevant detail set out in the applicant’s statutory declaration as to his physical condition, disabilities and general dislocation due to fears for his family in Ethiopia and torture or worse if returned to Ethiopia. The medical records also set out further detail as to the applicant’s family (parents and siblings) long standing political involvement and relocation of 6 of his [number] siblings to [Country 3] and [Country 1].
The applicant gave evidence to the Tribunal as follows:
·The current and ongoing harassment suffered by his immediate family in Addis Ababa in Ethiopia. This is due to his and his wife’s nearly continuous involvement in political causes that support people of Amhara ethnicity and seek justice and redress for the expression and communication of his actual and imputed political opinion of being anti current Ethiopian government.
·The harassment, detention, persecution and torture over decades and in particular instances in 2010 and 2014 suffered b the applicant.
·The fact he is well known to the Ethiopian government and security agencies because of his [activities] in Ethiopia and other parts of the middle east, his long standing family political engagement in opposition to the state in Ethiopia and his wife’s notoriety in [Country 3] and Europe because of her political profile expressed through her [activities].
·The need for his wife and children in Addis Ababa to relocate on a regular basis because of fear of the persecution by Ethiopian security agencies. The events of 2010 and his prolonged detention and torture by security agencies in Ethiopia because of his actual and perceived antigovernment expression in [work activities].
·He is currently employed and earns about $6,000 pr month from [work]. He remits approximately $1,000 pr month to his family in Ethiopia. This is a lot of money by Ethiopian standards.
·He was freely able to leave and return to Ethiopia from various trips abroad due to protections received from various Amhara operatives embedded in the bureaucracy and some security agencies. He wishes his wife and children could join him in Australia.
Country Information
The Tribunal accepts the applicant holds a political opinion in opposition to the Ethiopian government. The Tribunal accepts the applicant and his wife are both high profile [Occupation 1]s in many parts of the world. The Tribunal accepts the applicant has given expression to his political views relating to his Amhara ethnicity in many forums in Ethiopia, the [Country 2] and [Country 1] over many years. The Tribunal accepts the applicant would be an influential person in Amhara circles in Ethiopia and that many people would look to follow him. His fears of harm on return to Ethiopia are informed by the relocation of many of his siblings to distant countries, his previous experience of detention, interrogation and torture by the Ethiopian authorities in 2010 and 2014, the mistreatment of his wife in Ethiopia in 2018 and the ongoing persecution of his family in Ethiopia.
The Tribunal notes the DFAT report on Ethiopia that was last updated in August 2020 predates a number of developments which have led to the significant deterioration of the security situation in the country, including the outbreak of conflict later that year and continuing to the present time in many parts of the country. Therefore, the report does not include information about the latest political and humanitarian crisis affecting all parts of Ethiopia, including Addis Ababa. The Tribunal is of the view DFAT’s assessments in relation to the risk faced in Ethiopia of someone with the applicant’s profile have been superseded in light of these developments. Indeed as late as 18 October 2022 the Wall St Journal[20] reported that fighting had erupted again in Ethiopia and that tens of thousands of Eritrean troops had crossed into the restive province of Tigray cutting off humanitarian aid as mediation stalled. Hence what were isolated incidents of military engagement have spread initially to many instances of military engagement in different parts of the country, then to civil war and finally foreign state intervention and invasion for different political reasons. This article states cross border fighting has renewed, scheduled cease fire talks in South Africa failed to start, seesaw battles continue, more than half a million troops from 3 countries are fighting, an estimated 500,000 persons have died since 2020, the state of Eritrea is seeking permanent battlefield gains and the prospects for success and ceasefire are problematic at best. For additional detail see concerning the more recent developments in Ukraine and wheat supplies and the effect on Ethiopia see paragraphs 54 and 55 below.
[20] Wall Street Journal 13 October 2022
The Tribunal notes in January 2022 the United Kingdom’s Independent Chief Inspector of Borders and Immigration (ICIBI) published a report in review of the July 2020 Home Office Country Policy and Information Note on Ethiopia: Opposition to the Government. The contents of the report are relevant in this review application in that they comment upon changes to Ethiopia’s political environment following the last DFAT report, which was released contemporaneously with, and drew similar conclusions to, that of the Home Office. [21]
[21] Independent Chief Inspector of Borders and Immigration, Inspection Report on Country of Origin Information, Ethiopia, Iran and Zimbabwe, (January 2022) [1.3], 9-10 as cited in Doc ID number 10422170 page 7
The Tribunal notes that report “…directly addressed DFAT’s August 2020 claim that “tolerance for political dissent has increased considerably since April 2018…” commenting that this assessment is now “particularly problematic in light of the government’s tight control over information and the activities of opposition parties, including the OLF.” [22]
[22] Doc ID number 10447424 page 7
In particular the report noted the following:
·What we have seen since Prime Minister Abiy Ahmed took power is that there was initially a significant opening of space for the expression of political plurality, but that over time this space has been constrained, with large numbers of arrests in Tigray, Amhara, and Oromia regions in particular (even before the start of the hostilities in the North), constraints on freedom of expression, and curtailment of the activities of newly-registered political opposition parties.[23]
·While it is true that many political prisoners were released in the early days of PM Abiy’s tenure, it is also true that arbitrary and political arrests have increased more recently.[24]
·It is therefore misleading to refer only to the release of political prisoners and not to the increasingly frequent arrest of political actors since 2018.[25]
·This generalisation [that there is evidence that torture is no longer routine or widespread] while reported in some places, has so many exceptions, and more recently has been so soundly reversed, given the treatment of Tigrayans in the north and in Addis Ababa as well as others engaged in protests and armed protests against the state, that it is at best not helpful, and at worst possibly dangerously misleading.[26]
[23] Doc ID number 10447424 page 7
[24] Doc ID number 10447424 page 7
[25] Doc ID number 10447424 page 7
[26] Doc ID number 10447424 page 7
The Danish Immigration Service similarly addressed developments in Ethiopia post 2018. It made the following finding: “Since Ethiopia’s leadership transition in 2018, the country has continued to experience political and ethnic violence... The initial, positive changes following the leadership transition in 2018 have not continued, and the authorities have reverted to repressive methods to maintain law and order and curb political opposition.”[27]
[27] Doc ID number 10447424 page 8
In June 2021 the BBC reported as follows:
·During My Abiy’s initial year as Prime Minister, he was praised for freeing political prisoners. Fisseha Tekle, a researcher at Amnesty International, said the exact number of those released was not available, but it could be in the region of 45, 000. However, many other people have been detained during Mr Abiy’s term of office. Human rights organisations have documented evidence of thousands of arrests. “Evidence collected by Amnesty International in Tolay [military camp], shows that at least 10, 000 people were detained there in rounds of mass detention that started in January 2019, and continued to September 2019,” said Amnesty. “Similarly, former detainees at Sanqale [police training centre] estimated the detainees there to be at least 2,000.” In 2020, the state-run Ethiopian Human Rights Commission reported 9, 000 people had been detained following outbreaks of violence after the killing of Oromo singer Hachalu Hundessa. “The release of thousands of political detainees in the last months of the [previous] administration and initial months of Mr Abiy’s time in office were ground-breaking, but the lull was brief,” says Laetitia Bader, from NGO Human Rights Watch. “From mid-2019, following an alleged attempted coup in the Amhara region, the government started to arrest political opponents. This trend increased significantly from 2020, with the widespread arrests of supporters, family members and political opposition figures, journalists and artists.”[28]
[28] BBC News, ‘Ethiopian elections 2021: Fact-checking Abiy’s record’ (8 June 2021) >
The Tribunal notes the applicant refers to and quotes from numerous other government and NGO reports that address in detail developments in Ethiopia post 2020. These developments are directly relevant to the current review application. In summary these reports make the following findings:
·Freedom House Report that finds “Ethiopia remains beset by political factionalism and intercommunal violence, abuses by security forces and violations of due process are common, and many restrictive laws remain in force.”[29]
·As well-known Ethiopian politicians have observed “The police and security forces who are currently out on the streets patrolling are the same police, security forces, and prosecutors that were in power during the previous regime. There is a long history of people being persecuted/prosecuted under the ATP law. In the past, people who opposed or spoke out against the government would be charged under the ATP law, this can be seen here today because the police act in the way the police previously would have done. Previously we had dictatorship system and it is too soon after the change of structure to not go back to that.”[30]
[29] Freedom House, Freedom in the World 2022 – Ethiopia (24 February 2022) UK Home Office Fact-Finding Mission: The Political Situation, UK Home Office, 10 February 2020, at 9.3.4 at >
In November 2021 the security situation deteriorated again with Tigrayan forces and the Oromo Liberation Army advancing towards Addis Ababa. The federal government then declared a state of emergency and called on citizens to prepare to defend the capital, with Prime Minister Abiy Ahmed “issu[ing] a terrifying call for citizens to take up arms to defend his government — demanding that loyalists double efforts to defend the seat of power using "any type of weapon" available to them. "Dying for Ethiopia is a duty for all of us," declared the prime minister.[31]
[31]Debra Patta, ‘Ethiopian leader calls on citizens to defend his government as Tigray rebels make gains’, Reuters (2 November 2021)
It is clear from the country information that the situation in Ethiopia remains volatile and constantly changing, with human rights abuses perpetrated by both government authorities and armed groups, largely with impunity. Although the conflict between the government and the TPLF/OLA did not reach Addis Ababa at the end of last year, and the TPLF and Ethiopian government have signed a recent peace agreement, it cannot be said that lasting peace has been achieved in the country. Furthermore, country information confirms that conflict and violence, particularly ‘along ethnic or communal lines’, is already occurring across the country.[32]
[32] Human Rights Watch, World Report 2022: Ethiopia (2022) >
The Tribunal is of the view In light of the poor political and security conditions of Ethiopia, including in Addis Ababa, and the applicant’s political profile (inclusive of his family, siblings and wife), including his detention and torture by the security forces in 2010 and 2014 for his expression and support in numerous public [activities] and the ongoing and current persecution of his wife in Addis Ababa there is a real chance that he would again be detained, interrogated and harmed in detention on return to Ethiopia. There is a real chance that he would face serious harm from Ethiopian authorities and their agents when he enters Ethiopia at Addis Ababa’s Bole International Airport, or after he leaves the airport and enters the community.
The Tribunal accepts the applicant’s Amhara ethnicity places him at heightened risk of harm, and that the authorities would impute him with anti-government political opinion due to his Amhara ethnicity.
The Tribunal accepts Country Information confirms that interethnic violence has increased significantly under Abiy’s prime ministership, including against and between Ethiopians of Oromo and Amhara ethnicity. In the conflict between the Ethiopian government and allies, and the Tigray People’s Liberation Front (TPLF), armed groups formed along ethnic lines have perpetrated widespread abuses against civilians and members of other armed groups, including unlawful or arbitrary killings, forced disappearances and rape.[33] Country information also makes clear that there is a real risk of interethnic violence in all parts of Ethiopia, including in Addis Ababa and Oromia, and against Amhara people.
[33] US Department of State, ‘Country Reports on Human Rights Practices 2020: Ethiopia’ (30 March 2021) >
The Tribunal is of the view conflict and human rights abuses are occurring across Ethiopia, perpetrated by both government security forces and armed groups formed along ethnic lines.[34]
[34] Human Rights Watch, World Report 2022: Ethiopia (2022) >
The Tribunal accepts, the security situation in Ethiopia following the signing of the peace treaty between the government of Ethiopia and the TPLF on 2 November 2022 remains volatile. A lasting peace is far from assured. It is clear from the above information that the federal government does not have control over the entire nation and that they are not able to bring about peace between the ethnic groups.
The Tribunal accepts that in light of the current country information with respect to the political and security situation across all of Ethiopia, particularly the recent surges in interethnic conflict and violence, Ethiopia cannot reasonably be considered durably safe.
The Tribunal notes that ongoing ethnic violence within Ethiopia is not incidental, occasional, sporadic or limited. It appears to be widespread and occurring multiple areas in Ethiopia. According to Human Rights Watch, ‘violence along ethnic and communal lines has broken out in all 10 regions of Ethiopia, resulting in killings, displacement, and destruction of property’, including in Oromia.[35] More current reports confirm such violence as described continues to be routine:
·The UN's High Commissioner for Human Rights has accused the Ethiopian police of abusing the "excessively wide" terms of the state of emergency to round up Tigrayan civilians in Addis Ababa simply "on the suspicion" that they support the Tigrayan rebels.
·Ethiopia's own Human Rights Commission has expressed similar "grave concern" about the detention of "thousands of people" in the capital and the difficulty of gathering information about the treatment of those in detention.[36]
·In January 2022, Human Rights Watch called on Saudi Arabia to stop deporting Tigrayan migrants to Ethiopia, amidst reports that ‘thousands of ethnic Tigrayans recently deported from Saudi Arabia’ had been ‘arbitrarily detained, mistreated, and forcibly disappeared’ in the previous year. Human Rights Watch wrote that: “Deportations increased significantly between late June and mid-July, with over 30, 000 reportedly deported. The surge in repatriations coincided with an increase in profiling, arbitrary detentions, and forcible disappearances of Tigrayans by Ethiopian authorities in Addis Ababa following the withdrawal of Ethiopian federal forces from the Tigray region and an expansion of the Tigray conflict.”[37]
[35] Human Rights Watch, ‘The Latest on the Crisis in Ethiopia’s Tigray Region’ (30 July 2021) BBC News, ‘Ethiopia’s Tigray conflict: Mass arrests and ethnic profiling haunt Addis Ababa’ (21 November 2021) Human Rights Watch, ‘Ethiopia: Returned Tigrayans Detained, Abused’ (5 January 2022) >
In these circumstances it is difficult to envision the advent of lasting peace and interethnic harmony in the reasonably foreseeable future.
The country information before the Tribunal establishes to the satisfaction of the Tribunal that the Oromo Liberation Front (OLF), and armed and effective militia, is now allied with the TPLF against the Federal government, its armed forces, and allies. The country information before the Tribunal is evidence of the OLF and other armed groups including the Federal army, doing battle in various parts of Amhara in September 2022,10 in addition to the widespread armed conflict which recently resumed, despite the endeavours of third-party states to encourage the warring parties to finally end the war.[38]
[38] Ethiopian Peace Observatory weekly report, 17-23 September 2022 cited in Case number 2115021 at paragraph 67. See also Doc ID number 10308766 in Case number 2115021.
The International Crisis Group (ICG) reports that the president of Eritrea, President Isaias Afwerki considers the TPLF a historical and existential foe. He thus opposes any reproachment between the Federal government in Addis Ababa and the TPLF. Additionally, the ICG report and the most recent DFAT Country Information Report read together demonstrate, that the Amhara people regard Welkait as a part of their homeland, wrongfully taken from them by the TPLF when the TPLF controlled the Federal government, prior to being ousted in 2018 and replaced by the present Federal government led by Prime Minister Abiy Ahmed.[39]
[39] Ethiopian Peace Observatory weekly report, 17-23 September 2022 cited in Case number 2115021 at paragraph 70. See also Doc ID number 10308766 in Case number 2115021.
In recapturing and reasserting control of Welkait and displacing 700,000 Tigrayans in pursuit of this objective, it is not difficult to apprehend the competing purposes of the Federal government and the Amhara armed forces operating together but to different ends, strengthen the identification of the Amhara people with the commission of any atrocities committed by the Amhara and the Federal government’s armed forces. However, the ICG reports the Federal government and the Amhara state government have tried to reign in the activities of one Amhara armed militia known as the ‘Fano’.

ICG reports as follows:
·in order to assert control, the federal and Amhara governments have arrested thousands of members of Amhara’s nationalist militia, known as Fano, causing opposition to Abiy to grow in Ethiopia’s second-largest region [Amhara]11. Abiy can ill afford to lose more Amhara support given the host of other problems his government is facing, including the growing rebellion in Ethiopia’s most populous region, Oromia, which is nominally Abiy’s base. Furthermore, the prospect of Tigray gaining the capacity to resupply itself from Sudan via Western Tigray is unacceptable both to Abiy and Isaias [the President of Eretria].[40]
[40] Ethiopian Peace Observatory weekly report, 17-23 September 2022 cited in Case number 2115021 at paragraph 72
The DFAT Country Information Report for Ethiopia made the following finding at paragraph 5.8 “There are reports of abuses committed by federal and regional police forces, including beatings, arbitrary arrest and detention, rape, torture and extrajudicial killings including in (but not limited to) the context of the 2015-16 protests held across Oromia and Amhara regions. Investigation of such incidents is not transparent, and the results are usually not published, limiting accountability. Under the ATP and the State of Emergency, police have the power to arrest people without a court order under certain circumstances. These powers have been used extensively, particularly since during State of Emergency.”
The Tribunal is of the view the security situation in Ethiopia following the signing of the peace treaty between the government of Ethiopia and the TPLF on 2 November 2022 remains volatile. A lasting peace is far from assured.[41]
[41] See Doc ID number 10447424 pages 14 and 15 and references cited therein.
The Tribunal accepts the applicant has a high profile, as attested to by five prominent Ethiopian-Australians and various Ethiopian associations, as well as the fact that he often, and famously, criticises the Ethiopian government for their treatment of Amharas, means that he will face a real chance of serious harm should he be returned to Ethiopia. The applicant has not ceased his political activity in Australia.
As well as continuing to advocate for Amhara rights through his [work], he has also attended a protest against the Ethiopian government in Canberra in 2021, and engages with the Amhara community in Melbourne. In light of the poor political and security conditions of Ethiopia, including in Addis Ababa, and [the applicant]’s high profile, including his detention and torture by the security forces in 2010 and 2014 for his vocal opposition to the Ethiopian government, the Tribunal is of the there is a real chance that he would again be detained, interrogated and harmed in detention on return to Ethiopia. There is a real chance that he would face serious harm from Ethiopian authorities and their agents when he enters Ethiopia at Addis Ababa’s Bole International Airport, or after he leaves the airport and enters the community.
Of concern for the applicant are reports that Ethiopians of Amhara ethnicity are perceived by many other ethnic groups as supporters of the Ethiopian government, making them targets for ethnic violence:
When asked, a confidential source said that the Amhara, outside their own region, are the most frequent victims of discrimination and ethnic violence. This is due to the fact that Amhara have spread throughout Ethiopia over the years and are a (relatively large) minority in many regions. Furthermore, they are often associated with the oppression of other ethnic groups during those periods when the Amhara held sway in Ethiopia. Even now, Amhara are often seen in other regions as supporters of the current government, ‘rightly or wrongly’, the source says.[42]
[42] Netherlands Ministry of Foreign Affairs, Country of Origin Information Report Ethiopia (4 February 2021) >
The Tribunal finds there is a real risk that the applicant will be persecuted and/or seriously harmed due to his individual profile as outlined above, should he be forced to return to Ethiopia in the reasonably foreseeable future.
The applicant fears harm from the Ethiopian state and therefore the Tribunal accepts protection is simply not available in his circumstances. The authorities in Ethiopia are unwilling and incapable of providing the applicant with protection.
The applicant fears harm throughout Ethiopia. There is nowhere he could relocate to in order to live safely. On the basis of the applicant’s evidence and country information that there is a real chance of persecution now and in the reasonably foreseeable future, and in the alternative a real risk of significant harm, in all parts of Ethiopia the Tribunal that relocation cannot be considered further.
The effect of the war in the Ukraine is having on Ethiopia and Africa more generally, has been the subject of widespread international and news commentary. It is now a matter of common knowledge. It is now also a matter of common knowledge that the ability of Ukraine to export wheat and other grains is severely limited and at time of decision the subject of lack of resolution between Ukraine and Russia.
The war in the Ukraine has added to the major problems associated with the supply of grain to Ethiopia, West Africa and North Africa. This shortage of grain is exacerbated by the civil war in Ethiopia, massive internal immigration within Ethiopia, customary drought, destruction of infrastructure and ongoing food shortages.
The Tribunal is satisfied the applicant, if removed to Ethiopia, would reside in Addis Ababa, with his family inclusive of many children, being the city in which he and his family have lived for many years and regularly return to as a form of safe haven albeit marred by the current and likely ongoing need for his wife to regularly relocate for reason of fear to her safety. In the prevailing conditions, dominated by civil war, drought, severe economic hardship, food and water scarcity, the applicant would be compelled to re-enter mainstream life in Addis Ababa. He would need to do so to earn an income and as his income would derive from his skill as a well-known [Occupation 1] he would necessarily be the subject of attention by the Ethiopian authorities. In this context there is a real chance, the applicant as a ‘new face’ returnee, will be obliged to deal with ethnic groups, including ethnocentric individuals, hostile to the Amhara people, as he competes for a place in society, and access to scarce commodities, such as food to subsist with his wife and children.
Having considered the applicant’s claims individually and cumulatively, the evidence, considered as a whole and in combination with the cited country information and numerous current and topical government and NGO reports, is sufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be subjected to serious harm for reasons of his of political opinion and ethnicity, these being reasons that meet the provisions of s 5J(1)(a) of the Act, if he is removed to Ethiopia now or in the reasonably foreseeable future. Accordingly, the applicant satisfies the criterion in s 36(2)(a) of the Act.
Consequently, the Tribunal is satisfied the applicant has a well-founded fear of persecution for a reason specified in s 5J(1) of the Act[43] and that the applicant meets the definition of refugee as set out is s 5H of the Act.
[43] See paragraph 25 above for full particulars.
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.
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.
…
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.
…