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.

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] AATA 4880
Decision Date: 21 November 2022

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a person of Amhara ethnicity from Ethiopia. The applicant claimed to hold anti-government political opinions due to the government's treatment of the Wolkayte Amhara, and alleged that his wife and family had been targeted due to their ethnicity. He also recounted past experiences of detention, interrogation, and torture in 2010 and 2014. The review was before a Senior Member of the Tribunal.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958, specifically whether he had a well-founded fear of persecution for reasons of race or political opinion, and alternatively, whether he met the complementary protection criterion under section 36(2)(aa) due to a real risk of significant harm upon removal to Ethiopia. The Tribunal was required to consider the current political and security situation in Ethiopia, including interethnic violence and the impact of the war in Ukraine on grain shortages.

The Tribunal considered extensive country information regarding the volatile political and security situation in Ethiopia, noting widespread human rights abuses by both government forces and armed groups, often along ethnic lines. It found that the applicant's Amhara ethnicity and his past political activities, including his public criticism of the Ethiopian government, placed him at a heightened risk of detention, interrogation, and harm upon return. The Tribunal was satisfied that protection was not available within Ethiopia and that relocation was not a reasonable option given the pervasive nature of the conflict and violence. The Tribunal concluded that there was a real chance the applicant would be subjected to serious harm for reasons of his political opinion and ethnicity, thus satisfying the definition of a refugee under section 5H of the Act.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies the criterion under section 36(2)(a) of the Migration Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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 72The 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).DECISIONThe Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.Mark BishopSenior MemberAttachment - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

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]