2200477 (Refugee)

2200477 (Refugee) [2023] AATA 3543 (31 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Jaskiran Rekhraj
CASE NUMBER:  2200477
COUNTRY OF REFERENCE:                   Ethiopia
MEMBER:Ann Duffield
DATE:31 July 2023
PLACE OF DECISION:  Canberra
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 31 July 2023 at 12:22pm

CATCHWORDS
REFUGEE – protection visa – Ethiopia – ongoing humanitarian crisis – inter-ethnic and civil war – severe food insecurity – religion – Sunni Muslim – inter-sectarian violence – Somali ethnicity – inter-ethnic armed conflict – particular social group – women and girls – gender-based violence – able-bodied men – forced conscription – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 56, 65
Migration Regulations 1994 (Cth), r 1.12; Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 11 January 2022 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 24 August 2021. The delegate refused to grant the visas on the basis that they were not persons to whom Australia owed protection obligations
The applicants were 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
The issue in this case is whether the applicants are persons to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The primary applicant is a citizen of Ethiopia born in [year]. The secondary applicants are her husband, and [her] natural born children and a child adopted by them in [year]. Three of the children were born in Australia, however the third, born in Australia in [year], was not included in the application for review.
The Department of Home Affairs found no evidence that the primary applicant is not who she claims to be and that the secondary applicants are members of the family unit, as defined in Regulation 1.12 of the Migration regulations and are therefore also members of the same family unit as defined in s5(1) of the Act. The Tribunal has no evidence before it to challenge this finding. The applicants’ have had their claims assessed as having Ethiopia as their country of return.
The applicant, her husband and two of her children arrived in Australia [in] 2019 on a [specified] visa. The applicant was employed as [Occupation 1].
The applicant applied for the protection visa subject to this review in August 2021 and it was refused by the delegate in February 2022.
Claims for protection
The applicant claims that [she] was accused of supporting the TPLF and passing information to them. [Identifying details of claim redacted].
[Identifying details of claim redacted].
The applicant feared that if she returned to Ethiopia, she would be persecuted for her alleged allegiance to the TPLF. She claims that [in] 2021 her family were approached by the Ethiopian intelligence agencies and interrogated. The following days, they returned and raided her home and abducted one of her [siblings]. The rest of the family fled the country.
The applicant does not believe the government would be able to protect her or her family should she be required to return, and it would not be reasonable for them to relocate to another part of Ethiopia.
The delegate did not accept that the applicant’s views critical of the Ethiopian government [would] result in her being imputed with an anti-government political opinion. Nor did the delegate accept that the applicant had been accused of supporting the TPLF or passing information and intelligence to the TPLF. The delegate also stated that it did not accept that her family in Ethiopia had been harassed or her [sibling] abducted by the Ethiopian authorities.
In forming their view, the delegate relied on country information provided by DFAT in 2020.
Before the Tribunal
Prior to the scheduled hearing the Tribunal received several submissions from the applicant through their representatives, Legal Aid ACT, along with a significant amount of supporting country information.
The applicant, through her representatives, submit that the quality of the interpreting during the interview with the department was deficient and at times incorrect. They provided examples of these deficiencies and argue that the applicant was not given a reasonable opportunity to present her claims in accordance with s56 of the Migration Act. The applicant also submitted that the country information relied upon by the delegate was dated and no longer relevant to the current situation in Ethiopia.
The applicant submits that the Somali ethnicity of the family elevates their risk of ham. She submits that she and her [daughters] face a real risk of sexual violence in the context of the current conflict. The applicant submits that her [occupation] and her time abroad will lead to her being questioned by the authorities upon her return and therefore give rise to a real chance that the allegations against her will be exposed.
The applicant and her eldest daughter wear hijabs and it is submitted that they will be easily identified as Muslim and therefore be targeted during inter-sectarian violence which has been widespread throughout Ethiopia. The OHCHR has reported credible threats of sexual and gender-based violence by all parties to the conflict. In a joint statement with the governments of Canada, Denmark, the Netherlands, the UK and the US in December 2021, DFAT raised grave concerns at the human rights abuses and violations involving conflict related sexual violence.
The applicant submits that her husband also faces the real risk of serious harm as an able-bodied man in the conflict in Ethiopia. She submits that there has been forced conscription of people in Ethiopia and that the Prime Minister Abiy Ahmen has called for all able-bodied Ethiopians to fight against the TPLF.
The applicant submits that she and her family were at risk of persecution throughout Ethiopia and it would not be reasonable for them to relocate. She submits that the State would not be able to provide for her or her family with effective protection.
Country information – the following extracts are from the DFAT Country Information Report Ethiopia 12 August 2020
The Tribunal has taken into account the DFAT Country Information Report Ethiopia, 12 August 2020, as relevant, including the information under the heading of ‘Political System’ at 2.31 to 2.41 in which it states that: Ethiopia has witnessed significant changes in the political operating environment since April 2018. Restrictions on political opposition have eased significantly since April 2018, and political parties are able to operate more freely, particularly in Addis Ababa. To date, over 130 political parties have declared their intention to contest the forthcoming national election. Most are organised along ethnic lines. In June 2018, federal parliament removed Ginbot 7 (Amharic for ‘May 15’, the date of the disputed 2005 election), the Oromo Liberation Front (OLF) and the Ogaden National Liberation Front (ONLF) from its list of terrorist organisations. The parties, which maintained armed wings and were committed to the overthrow of the EPRDF through militant means from their bases in Eritrea, were designated as terrorist organisations in June 2011. Ginbot 7, the OLF and the ONLF have since returned from exile and now participate in the political process.
Other major opposition movements include the Ethiopian Federal Democratic Unity Forum (also known as Medrek) and Ethiopian Citizens for Social Justice (known as Ezema). Medrek is a coalition of four parties: the Ethiopian Socialist Democratic Party (ESDP), the Arena for Sovereignty and Democracy, the Sidama Liberation Movement (SLM) and the Oromo Federalist Congress (OFC). Ezema was formed in May 2019 through the merger of several opposition parties, including Ginbot 7, the Ethiopian Democratic Party (EDP), the Semayawi Party (known as the Blue Party) and Unity for Democracy and Justice (UDJ, also known as Andinet, the successor party of the CUD/Qinjit). Some political parties promote openly nationalist platforms. Ezema is one of the few political parties that is not ethnic-based.
Under the heading of ‘Security Situation’ 2.50 to 2.59 noting that at 2.50 to 2.52 it is reported that: The security situation has deteriorated in parts of the country since 2018. Inter-ethnic clashes – invariably over land and other resources – have increased significantly, particularly in the West Guji Zone of Oromia State and along the Oromia-Somali, Oromia-Benishangul-Gumuz, and Amhara-Tigray state borders. Inter-ethnic clashes have caused death, the destruction of property and large-scale internal displacement — Ethiopia recorded the most conflict-related internal displacement in the world in 2018.
Ethnic militias have proliferated in the states, and weapons are readily available. Addis Ababa has largely been immune from this instability to date. Inter-ethnic clashes along the border between Oromia and Somali states have displaced more than 1 million people since 2017. Clashes have subsided but continue to flare up sporadically. In August 2018, the federal government deployed forces to quell riots in Jijiga, the capital of Somali State, and surrounding areas. The riots were triggered by the arrest of the state president and involved the targeting of non-Somalis and Christians at least 30 people died and 140,000 were displaced. Youths loyal to the former state president, belonging to a group called the Heego, were behind the riots.
The security situation in Somali State has improved significantly since. In February 2019, federal parliament adopted a proclamation establishing a national reconciliation commission to promote dialogue and encourage resolution of inter-ethnic disputes. The return from exile of previously-banned groups and individuals has catalysed unrest in Oromia State. In September 2018, the return of the OLF provoked intra-Oromo clashes and the targeting of homes and businesses belonging to non-Oromos. At least 70 people were killed and 15,000 displaced. The OLF has yet to disarm completely, and some OLF factions engage in armed clashes with government forces, particularly in western areas of Oromia State. Armed OLF factions have reportedly engaged in criminal activities, including extorting businesses and conducting bank robberies in western Oromia. In October 2019, at least 86 people died during riots triggered by claims – made via Facebook – that the federal government was endangering the personal security of Jawar Mohammed, a prominent Oromo activist and founder of the Oromo Media Network (OMN). Jawar, an advocate for greater rights for the Oromo people who was previously allied to Prime Minister Abiy (but who is now a prominent critic), helped organise from his US base the 2014-18 protests that precipitated the resignation of the previous government. Jawar returned to Ethiopia in August 2018.
‘Political Opinion (Actual or Imputed)’ at 3.33 to 3.41 where at 3.34 and 3.41 it is reported that: In practice, political freedoms were significantly curtailed before April 2018. Members of opposition groups, human rights activists, and independent commentators such as journalists and bloggers who opposed the government’s policies were regularly harassed and detained. The ATP was used extensively to restrict political freedoms and arrest and prosecute government critics, particularly individuals with suspected affiliations to proscribed groups Ginbot 7, the OLF and the ONLF. Against this background, many opposition leaders and dissidents left Ethiopia. Individuals who were not members of the EPRDF reportedly faced discrimination in public sector employment, including impediments to career progression. Anti-government protests were often dispersed through force, and participants arrested.
DFAT assesses that tolerance for political dissent has increased considerably since April 2018. Opposition political parties are able to organise and operate significantly more freely, particularly in Addis Ababa, and their members face a low risk of harassment, arrest and detention by virtue of their political affiliations and views. DFAT assesses Ethiopians can openly criticise the ruling party.
‘State Protection’ at 5.1 to 5.3 noting at 5.3 it is stated that: DFAT assesses that, overall, federal and regional security forces are largely effective at maintaining law and order and in providing protection from threats by non-state actors, particularly in major urban centres. However, DFAT assesses that the emergence of armed, invariably ethnic-based non-state actors has increasingly challenged the state’s monopoly on the use of force and its concomitant ability to provide protection in remote areas and along borders separating Ethiopia’s regional states.
‘Treatment of Returnees’ at 5.33 to 5.38 where at 5.38 it is reported that: DFAT assesses that, under the current federal government, failed asylum seekers face a low risk of harm on their return to Ethiopia, including where they sought asylum on political grounds.
The Tribunal has also considered other relevant country information, including from Human Rights Watch in 2023.
The two-year armed conflict in northern Ethiopia, which began in November 2020, continued to inflict a terrible toll on civilians. A truce was reached by the main warring parties in November. State security forces and armed groups committed serious abuses, in other regions, notably Oromia. Authorities sporadically cut internet and telecommunication services in conflict-affected areas, with internet and other forms of communications cut in Tigray since June 2021.
Conflict and unrest in several regions, followed by drought also exacerbated one of the world’s largest humanitarian catastrophes. Over 20 million people required humanitarian assistance in 2022.
In western Oromia, fighting between government forces and armed groups resulted in serious abuses committed by all sides.
Journalists, civil society organizations, and outspoken public figures in the country faced an increasingly hostile and restrictive reporting environment.
Consensual same-sex relationships are outlawed and carry a penalty of up to 15 years in prison.
Despite mounting evidence of international law violations by warring parties in northern Ethiopia, as well as in Oromia, government efforts toward accountability for past and present abuses have been inadequate, lacked transparency, and independent oversight.
Fighting in the Amhara and Afar regions in September resulted in further displacement, humanitarian access constraints, as well as reports of extrajudicial killing of Amhara residents by Tigrayan fighters, looting, and property destruction in Kobo town during their control.
On November 2, the Ethiopian federal government and Tigrayan authorities reached a cessation of hostilities agreement in South Africa following 10-days of African-Union led negotiations.
Extrajudicial killings, mass arrests, arbitrary detentions, and violence against civilians occurred in other regions facing unrest, insecurity, and conflict.
On June 14, government forces clashed with Oromo Liberation Army (OLA) and Gambella Liberation Front armed groups in the Gambella regional capital. After controlling the town, government forces conducted house-to-house searches and summarily executed residents suspected of collaborating with the armed groups.
Parts of Oromia experienced protracted fighting due to government operations against the OLA. On June 18, heavily armed gunmen killed about 400 Amhara civilians, many women and children and destroyed homes and businesses in villages in West Wellega Zone, in Oromia, and in neighboring Benishangul-Gumuz region. Two weeks later, on July 4, assailants attacked Amhara civilians in Kellem Wellega Zone in Oromia, killing scores.
Fighting intensified between Ethiopian government forces and the OLA in early November, with civilian casualties reported due to fighting and airstrikes. In western Oromia there were reports of fighters from the Amhara region operating in Zone. The UN reported that the violence in the area led to a drastic increase in internal displacement and the destruction of infrastructure.
In late July, the armed group Al-Shabab carried out incursions on three towns hosting regional special forces in Ethiopia’s Somali region, the first such attack on Ethiopian territory in over a decade. World Report 2023: Ethiopia | Human Rights Watch (hrw.org)

In a report published in March 2022, the UNHCR reported on the humanitarian situation in Ethiopia and has taken the following position on the return of asylum seekers:
Since the start of the conflict in Ethiopia in November 2020, over 68,500 Ethiopian nationals have sought asylum in countries in the East, Horn of Africa and Great Lakes region, including at least 59,000 who have been received in eastern Sudan. As of September 2021, an estimated 85 per cent of the 4.2 million IDPs in Ethiopia had been displaced due to conflict. Many of the IDPs in the northern regions have been displaced multiple times during the conflict.
In December 2021, the Famine Early Warning Systems Network (FEWS NET) warned of record levels of humanitarian assistance needs in Ethiopia in 2022.53 That same month the World Food Programme (WFP) reported that it was facing a major funding shortfall over the next six months, threatening its ability to meet the critical food and nutrition needs of millions of food insecure Ethiopians and refugees. The combined effects of conflict, drought, flooding, desert locust invasions, market disruptions, currency depreciation, high food prices and the COVID-19 pandemic have left an estimated 13.6 million people across the country food insecure.
A total of 22.3 million people in Ethiopia will be targeted for humanitarian assistance in 2022. In northern Ethiopia, humanitarian access and the delivery of humanitarian assistance remain a challenge due to insecurity, including for humanitarian workers and the limited presence of humanitarian partners on the ground. The lack of fuel has also affected water trucking and movement of supplies.
Humanitarian needs have surged across northern Ethiopia as a result of looting and destruction of health centres and farming infrastructure, including irrigation systems that are vital to agricultural production. Large numbers of Internally Displaced Persons (IDPs) from the Oromia, Benishangul-Gumuz, SNNP and Gambella regions with significant humanitarian needs have been recorded in the Amhara region, with numbers notably rising since October 2021. The ongoing hostilities in the Benishangul-Gumuz region have led to an increase in humanitarian needs, but access to the conflict-affected population is hampered by the unstable security situation. Hundreds of thousands have been displaced inside Metekel zone.
Kamashi zone remains hard to reach for humanitarian agencies due to ongoing insecurity and the presence of unidentified armed groups. Following the outbreak of fighting in and around Tongo in December 2021 and January 2022, humanitarian staff have been evacuated and have not been able to access two camps – Tongo and Gure-Shambola – hosting over 20,000 refugees. As water sources continue to dry up, it is estimated that at least 6.8 million people are affected by drought in the Oromia, SNNP and Somali regions.
Death of livestock and loss of livelihoods have impacted food security and nutrition, with women and children disproportionately affected. Hundreds of thousands of conflict-affected people in East and West Wollega zones of the Oromia region require food assistance, and many households also require emergency shelter and non-food item support. Ethiopia has been affected by a desert locust infestation since mid-2019, leading to an increase in humanitarian needs. In December 2021, swarms were reported in the Oromia, SNNP and Somali regions. In 2021, floods displaced hundreds of thousands of people across the Afar, Amhara, Gambella, Harari, Oromia, SNNP and Somali regions.
Return of asylum seekers
As the situation in parts of Ethiopia remains fluid and uncertain, UNHCR calls on all countries to allow civilians fleeing Ethiopia access to their territories and to ensure respect for the principle of non-refoulement at all times. All claims of nationals and former habitual residents of Ethiopia seeking international protection should be processed in fair and efficient procedures in accordance with international and regional refugee law.
UNHCR considers that persons fleeing any of the conflict situations in Ethiopia are likely to be in need of international refugee protection in accordance with Article 1(2) of the 1969 OAU Convention. In addition, persons fleeing any of the conflicts in Ethiopia may also meet the 1951 Convention criteria for refugee status. Depending on the individual profile and circumstances of the case, exclusion considerations may need to be considered. Furthermore, to preserve the civilian character of asylum, States need to assess the situation of arrivals carefully so as to identify armed elements and separate them from the civilian refugee population.
As the situation in parts of Ethiopia may remain fluid and uncertain for some time to come, coupled with an unfolding humanitarian emergency in the country, UNHCR calls on States to suspend the forcible return of nationals and former habitual residents of Ethiopia originating from any areas that are affected by, or which remain fragile and insecure as a result of, military action and/or ensuing displacement, until the situation stabilizes. The bar on forcible return serves as a minimum standard and needs to remain in place, until such time, as the security, rule of law, and human rights situation has significantly improved to permit the safe and dignified return of those determined not to be in need of international protection. In the current circumstances, with ongoing conflict and violence in parts of the country, large-scale internal displacement, and severe humanitarian needs, UNHCR does not consider it appropriate for States to deny persons from Ethiopia international protection on the basis of an internal flight or relocation alternative 623079204.pdf (refworld.org).
The country information sourced by the Tribunal clearly shows that the outbreak of the conflict in Tigray in 2020 triggered a refugee and displacement crisis that is still ongoing. In 2021, Ethiopia reported 5.1 million internally displaced people in twelve months, the most people internally displaced in any country in any single year. Millions more have fled to Sudan as northern Ethiopia, especially Tigray, remains cut off from food, water, and medical aid.
Outside of Tigray, tensions continue to run high among other ethnic groups. In April 2021, the government declared a state of emergency in Amhara state after a series of violent attacks against ethnically Oromo residents. Oromia’s own regional army has allied itself with the Tigrayans in the civil war, whereas militants from Amhara and Afar (regions bordering Tigray) have been accused of assisting federal troops, even attacking civilians they suspected to be Tigrayan or affiliated with the TPLF. As of 28 June 2023, more than 100,000 people lost their lives in Ethiopia in 2022. Conflict in Ethiopia | Global Conflict Tracker (cfr.org)
More recently in March 2023 it was reported that food aid was suspended in the Tigray region after “widespread and systemic” diversion of large amounts of food meant for hungry people was discovered. The pause was extended to the entire Ethiopian territory in early June. CARITAS: USAID, WFP FOOD AID SUSPENSION IN ETHIOPIA IS ‘NEITHER HUMANE NOR MORAL’ - Caritas
In October 2022, the US Department of Homeland Security announced the designation of Ethiopia for Temporary Protected Status for 18 months.

According to the announcement, a country may be designated for TPS when conditions in the country fall into one or more of the three statutory bases for designation: ongoing armed conflict, environmental disaster, or extraordinary and temporary conditions. This designation is based on both ongoing armed conflict and extraordinary and temporary conditions in Ethiopia that prevent Ethiopian nationals, and those of no nationality who last habitually resided in Ethiopia, from returning to Ethiopia safely. Due to the armed conflict, civilians are at risk of conflict-related violence, including attacks, killings, rape, and other forms of gender-based violence; ethnicity-based detentions; and human rights violations and abuses. Extraordinary and temporary conditions that further prevent nationals from returning in safety include a humanitarian crisis involving severe food insecurity, flooding, drought, large-scale displacement, and the impact of disease outbreaks. DHS Designates Ethiopia for Temporary Protected Status for 18 Months | Homeland Security
Findings
The Tribunal is satisfied that the applicant and her family are citizens of Ethiopia and are Sunni Muslims.
The Tribunal accepts that the applicant was employed [as an Occupation 1] and may have expressed anti-government views during her employment. It would not be unreasonable to assume that upon her return to Ethiopia she would come to the attention of the authorities because of her previous employment and the time she has spent overseas.
The Tribunal notes that the DFAT Country Information Report was published in 2020 and that circumstances in Ethiopia at the present time have deteriorated significantly into a humanitarian crisis. Ethiopia is now experiencing severe food shortages, the deprivations of war, heightened inter-ethnic animosity, and inter-ethnic armed conflict. Whilst mindful of the Government direction to give primacy to the DFAT reports, the Tribunal has relied on more recent information in its assessment of the applicant’s claims and circumstances.
More recent information demonstrates that the situation in Ethiopia for citizens is dangerous. More than 100,000 Ethiopians were killed in inter-ethnic and civil war during 2022 alone. The UNHCR has implored the international community not to return Ethiopian nationals in their jurisdiction and has barred forcible returns until such time as the security, rule of law and human rights situation has significantly improved so as to allow the safe and dignified return of asylum seekers.
The United States Department of Home Affairs has declared that all Ethiopian nationals and habitual residents of Ethiopia be given temporary protection due to the armed conflict. The US has formed a view that civilians are at risk of conflict-related violence, including attacks, killings, rape, and other forms of gender-based violence; ethnicity-based detentions; and human rights violations and abuses. Australia’s test is whether the applicant would face significant harm either now or in the reasonably foreseeable future.
The applicant’s submissions, independent credible evidence and reports before the Tribunal, is sufficient to satisfy the Tribunal that the applicant, and members of her family, will face a real chance of persecution and/or serious harm by reason of her religion, gender and ethnicity should she be required to return to Ethiopia either now or in the reasonably foreseeable future. That harm would arise from systematic and discriminatory conduct by ethnocentric individuals and groups hostile to Muslims, women and girls and able-bodied men as well as some government agencies.
Furthermore, the ongoing humanitarian crisis involving severe food insecurity, flooding, drought, large-scale displacement and the impact of disease outbreaks, make returning to Ethiopia in safety and dignity an unrealistic outcome for the applicant and her family.
The Tribunal is not satisfied, given the political situation and the ongoing civil conflict in Ethiopia, that the applicant would be able to access effective state protection should she be required to return to Ethiopia either now or in the reasonably foreseeable future. In line with the advice of the UNHCR, the Tribunal is not satisfied that the applicant could relocate to another part of Ethiopia to avoid persecution for the reasons claimed.
Therefore, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for a reason specified in s 5J(1) of the Migration Act, and that the applicant meets the definition of refugee as set out in s5H of the Act.
For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a) of the Migration Act.
The Tribunal is satisfied that the secondary applicants are the applicant’s husband and four children and are therefore members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i).
As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
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 s36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Ann Duffield
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.
…

[2023] AATA 3543

31 July 2023

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