2119079 (Refugee) - [2022] AATA 4889

2119079 (Refugee) [2022] AATA 4889 (30 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Luke Daniel Brennan
CASE NUMBER:  2119079
COUNTRY OF REFERENCE:                   Ethiopia
MEMBER:Mark Bishop
DATE:30 November 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 30 November 2022 at 2:43pm
CATCHWORDS
REFUGEE – protection visa – Ethiopia – member of particular social group – child of father with leprosy – social discrimination and violence and attacks and threats from husband’s family – fear of forced separation and loss of capacity to subsist – ethnicity – Amhara – delay in applying for protection – members of family unit – new claim for daughter on grounds of female genital mutilation – focus on major claim and socio-cultural unease at raising and discussing this issue – country information – lack of state protection and inability to relocate – significant deterioration of security situation – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 5H, 5L, 36(2)(a), (b)(i), 423A(2)
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth (1999) 197 CLR 510
Applicant S v MIMA [2001] FCA 1411
EQU19 v MICMSMA [2022] FedCFamC2G 609
MIEA v Guo (1997) 191 CLR 559
MIMA v Khawar (2002) 210 CLR 1
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 December 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Ethiopia applied for the visas on 13 April 2018. The delegate refused to grant the visas.
The applicants appeared before the Tribunal on 30 November 2022 to give evidence and present arguments. The second applicant is the husband of the first applicant. The second applicant’s claim for a Protection Vis is based upon being a member of the family unit of the first applicant.[1] The third applicant is a child of the marriage[2] of the first two applicants. Her date of birth is [Date][3] and hence at time of decision is [Age] years of age. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages.
[1] See Doc ID number 10468663 paragraph 24
[2] See marriage certificate between the first applicant and second applicant dated [October] 2014 [Reference 1]
[3] See birth certificate in…

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.

Continue reading 2119079 (Refugee)

Details

AGLC: 2119079 (Refugee) [2022] AATA 4889
Case: [2022] AATA 4889
Decision Date: 30 November 2022

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a woman from Ethiopia, who claimed she would suffer social discrimination, violence, and threats from her husband's family due to her father's history of leprosy. She also feared forced separation from her husband and the inability to subsist, as well as potential female genital mutilation for her daughter. The applicant, of Amhara ethnicity, argued that Ethiopian authorities would be unable to provide protection due to the widespread cultural belief that leprosy is a curse and the difficulty in policing such discrimination in various public and private spheres.

The court was required to determine whether the applicant met the criteria for a protection visa, specifically considering her claims of persecution based on her family history of leprosy and her ethnicity. This involved assessing the real chance of significant harm she and her daughter would face if returned to Ethiopia, the adequacy of state protection, and the feasibility of relocation within the country. The court also had to consider the impact of the deteriorating security situation in Ethiopia on the applicant's claims and whether the country information available adequately reflected these developments.

The court reasoned that the applicant had established a history of isolation, harassment, and violence from her in-laws due to her father's leprosy, which was culturally perceived as a curse. It found that this behaviour was tolerated and encouraged within Ethiopian society and by authorities, making effective protection unlikely. The court also noted the significant deterioration of the security situation in Ethiopia, including widespread ethnic violence and foreign intervention, which superseded earlier country information. Consequently, the court concluded that the applicant faced a real risk of significant harm, including potential separation from her husband and harm to her daughter, and that relocation within Ethiopia was not a viable option.

The Tribunal remitted the decision for reconsideration, finding that the applicant's claims warranted further assessment in light of the updated country information and the evolving security landscape in Ethiopia.

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 In her Application for a Protection Visa[4] dated 11 April 2018 the applicant declared she would suffer from the following:·Social discrimination that could lead to psychological torture. In addition I will be a subject of victim of arbitrary violence that could lead my daughter to death.·I have been psychologically tortured and experienced all forms of social violence and discrimination because of family history tied to leprosy which is till believed culturally as a form of curse from God.·No one will help me in this regard as it is widely believed to be a curse from GOD among majority of the people including legal authorities in the country. In addition because of the nature of the violence it is difficult to get help for the discrimination I am facing.·She has tried to live in different locations out of Addis Ababa and tried changing addresses to different sub cities in Addis Ababa.·She is in constant fear for herself, hr spouse and her child because of prior life threatening encounters with her husband’s family.·The authorities cannot help because the nature of the discrimination she suffers can be in the workplace, school, public places where it is not easy for the authorities to provide protection.·She has tried to relocate to different parts of the country including Addis Ababa[4] [Reference 2] On 23 April 2021 the Department invited the applicant to attend an interview.[5] On 26 April 2021 and 27 April 2021 the applicant attended the Asylum Seeker Resource Centre (ASRC) seeking legal advice. On 1 May 2021 legal counsel for the Human Rights Law Program, ASRC wrote to the Department expressing concerns as to possible applicant interview attendance without first having provide a written statement. The ASRC sought 30 days to provide a written statement.[6] In response the Department rescheduled the interview and advised the ASRC accordingly.[7] The interview was rescheduled to 1 June 2021.[8] The interview notes can be found on the Departmental file.[9] The applicant provided further post interview submissions to the Department.[10][5] [Reference 3][6] [Reference 4][7] [Reference 5][8] [Reference 6][9] [Reference 7][10] [Reference 8] The post interview submissions referred to above in paragraph 12 addressed the following:Real Chance· [The first applicant] and [the third applicant] will be seriously harmed by [the second applicant]’s parents and siblings because of [the first applicant’s] family history of leprosy.· [The second applicant]’s family will try to break up their marriage, because of [the first applicant’s] family history of leprosy in Ethiopia.· If so, [the first applicant] will face serious harm as a single mother of a daughter with a family history of leprosy.· [The first applicant] and [the third applicant], their daughter, will face serious harm as women with a family history of leprosy.· [The first applicant] and [the third applicant] will face serious harm as women of Ahmaric ethnicity.· [The first applicant] and [the third applicant] will face serious harm as women of Ahmaric ethnicity living without a protective husband and father.· [The third applicant] will face serious harm in her capacity as vulnerable female child, all the more so if [the first applicant] becomes a single mother of a daughter with a family history of leprosy.Witness Credibility·The applicant evidence at interview with the Department was consistent with credible country and other independent information. The delegate did not express any concerns as to applicant credibility or evidence.Well Rounded Fears of second and third applicants·The second applicant has concluded that what [the first applicant] told him is true. He has not considered the risk to be merely far-fetched or remote. It is clear from his supporting statement that he has a very real fear of what will happen if he and his family are forced to return to Ethiopia.Matters arising during the Interview·[The first applicant] and [the second applicant] have both explained why they have not reported the conduct of [the second applicant]’s family to the authorities in Ethiopia. We submit that [the first applicant’s] response to what she has described happened to her, and then to her and her baby, over a period of time is not only plausible but a typical reaction to family violence. In support of this submission the applicant made reference to various Country Information (CI) and other NGO reports that made direct reference to intergenerational situations of family, sexual and domestic violence.[11][11] [Reference 8] paragraph 4.2 to 4.5Time taken to make application for protection·The applicant provided a plausible explanation for the time it took her to make an application for protection both in her supporting statement and at her interview. Her reasons are included in the reasons listed as valid reasons in the Department’s Protection Visa Processing Guidelines, Section 3.53.5 Delay in claiming refugee status or presenting other information. We also note that there is a complexity to the family’s claims that would have been difficult for them to address adequately without legal or migration agent assistance.Country Information·The applicant submitted that DFAT’s assessment of risks for Amharas and others, and the state of security generally in Ethiopia, in the August 2020 DFAT report needs to be considered as subject to and superseded by the more recent country information attached as part of the Appendix to these submissions, including the 19 April 2021 Al Jazeera article reporting on recent significant ethnic violence across Ethiopia. ·The applicant provided a copy of an Amnesty International CI report that specifically addressed Ethiopian of Amhara ethnicity with a family history of leprosy. This report contained multiple links to some historical and some current reports that addressed the following:oRisk to a person and their family who have a history of leprosy in Ethiopia.oRisks of harm of Ethiopians of Amhara ethnicity.oRelocation options for a person of Amhara ethnicity.oEthiopia’s police force.·This report addressed disability and stigma, discrimination in the community and workplace, marginalisation within the wider community and awareness of le[prosy causation factors.·The applicant provided a copy of an Al Jazeera report dated 18 May 2021 that summarised the imposition of a state of emergency in AmharaAdditional Matters·The applicant addressed matters relating to real chance, relocation issues, relocation and complementary protection, protection from authority and more generally protection measures under complementary protection.[12][12] [Reference] paragraphs 6 to 8.3

Decision

Reasons for decision

The Tribunal finds as follows:·The applicant is a person of Amhara ethnicity.·Until her arrival in Australia she led a life of isolation, harassment, physical attack, separation, alienation, prejudice, violence, the fear of future violence and discrimination on account of the fact her father suffered from leprosy.·Her in-laws on many occasions have mentally, emotionally and physically attacked and harmed her and her daughter without remorse or regret because her father suffered from leprosy.·He in-laws have continued to harass her in Australia.·This continuing abhorrent and aberrant behaviour is both tolerated, encouraged and engaged in by family, local communities, educational institutions, workplaces, the wider Ethiopian community in all parts of Ethiopia. This behaviour is tolerated and countenanced by government agencies and institutions. Local authorities have little interest in involving themselves in this abhorrent and aberrant behaviour.·If the applicant should return to Ethiopia this form of pre-existing behaviour would most likely re-appear to the long term harm of the applicant and her family. There is a serious chance the applicant’s husband would succumb to his family pressure and leave his wife and daughter. In those circumstances the applicant would be destitute and alone without spouse, home, employment or a future.·There is a serious likelihood the applicant’s daughter would suffer torture in the form of FGM. ·The applicant would be unable to re-locate in safety in any part of Ethiopia because this fear of leprosy crosses cities, regions and states.Conclusions 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 background and horrific life experience have been superseded in light of these developments. Indeed as late as 18 October 2022 the Wall St Journal 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 violence 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 59 and 60 in Case number 2118846.

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 In her Application for a Protection Visa[4] dated 11 April 2018 the applicant declared she would suffer from the following:·Social discrimination that could lead to psychological torture. In addition I will be a subject of victim of arbitrary violence that could lead my daughter to death.·I have been psychologically tortured and experienced all forms of social violence and discrimination because of family history tied to leprosy which is till believed culturally as a form of curse from God.·No one will help me in this regard as it is widely believed to be a curse from GOD among majority of the people including legal authorities in the country. In addition because of the nature of the violence it is difficult to get help for the discrimination I am facing.·She has tried to live in different locations out of Addis Ababa and tried changing addresses to different sub cities in Addis Ababa.·She is in constant fear for herself, hr spouse and her child because of prior life threatening encounters with her husband’s family.·The authorities cannot help because the nature of the discrimination she suffers can be in the workplace, school, public places where it is not easy for the authorities to provide protection.·She has tried to relocate to different parts of the country including Addis Ababa[4] [Reference 2] On 23 April 2021 the Department invited the applicant to attend an interview.[5] On 26 April 2021 and 27 April 2021 the applicant attended the Asylum Seeker Resource Centre (ASRC) seeking legal advice. On 1 May 2021 legal counsel for the Human Rights Law Program, ASRC wrote to the Department expressing concerns as to possible applicant interview attendance without first having provide a written statement. The ASRC sought 30 days to provide a written statement.[6] In response the Department rescheduled the interview and advised the ASRC accordingly.[7] The interview was rescheduled to 1 June 2021.[8] The interview notes can be found on the Departmental file.[9] The applicant provided further post interview submissions to the Department.[10][5] [Reference 3][6] [Reference 4][7] [Reference 5][8] [Reference 6][9] [Reference 7][10] [Reference 8]