2214950 (REFUGEE)
[2024] ARTA 158
•11 November 2024
2214950 (REFUGEE) [2024] ARTA 158 (11 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs
Tribunal Number: 2214950
Tribunal:General Member C Wall
Date:11 November 2024
Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.
Statement made on 11 November 2024 at 11:08am
CATCHWORDS
REFUGEE – protection visa – Ethiopia – race – Tigrayan ethnicity – Eritrean family – political opinion – Semayawi Party member – family involvement in the Eritrean Liberation Front – political activity in Australia – demonstrations – killing of the applicant’s father – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
Guo v MIEA (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
1. On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
2. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 September 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
3. The applicant, who claims to be a national of Ethiopia, applied for the visa on 4 February 2016. The delegate refused to grant the visa on the basis that basis that he is not owed protection by Australia.
4. The applicant appeared before the Tribunal on 17 October 2024 to give evidence and present arguments. The Tribunal also received oral evidence from his mother, [Mother A], and from his friends, [Witness A], [Witness B], [Witness C] and [Witness D]
5. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages. The applicant was represented in relation to the review and the representative attended the hearing.
BACKGROUND
6. The applicant was born in Addis Ababa in [specified year] and has [a brother] named [Brother A] and [a sister] named [Sister A]. His father ‘disappeared’ in 1998 and was reported to have died in Eritrea in 2006. His father’s family background is Eritrean.
7. In 1998 his mother, [Mother A], travelled to Australia and sought protection. Her mother was Tigrayan and her father identified as Eritrean. [Mother A] was refused protection and was later granted permanent residence as a result of Ministerial Intervention. She obtained Australian citizenship in 2010.
8. The applicant and his brother and sister were taken to [Country 1] in 1999 by friends of their parents. The applicant was granted a permanent visa in [Country 1] and lived and worked there between 1999 and 2015. His brother remains living in [Country 1], and his sister is now living in [Country 2]. He does not have contact with his brother and sometimes has contact with his sister.
9. The applicant said that he visited Ethiopia in 2013, for a few weeks, and again in 2015 for 15 days. He renewed his Ethiopian passport while in Ethiopia in 2015.The applicant was granted a Family Sponsored Visitor Visa on 19 August 2015 and arrived in Australia [in] November 2015. He subsequently applied for protection.
10. He currently lives with his mother in Melbourne and works as [an occupation 1]. He has [an age]-year-old son, [Son A]. His relationship with [Son A’s] mother ended some time ago and he has not seen his son ‘for a while’ although he pays regular child support.
DOCUMENTS PROVIDED TO TRIBUNAL
11. Prior to the hearing the applicant provided the Tribunal with letters of support with character statements from [name deleted], [Witness C], [named person], [named person], [Witness B], [Witness A], [Witness D] and [named persons].
12. Support letters from [Community Organisation 1] and [Community Organisation 2] were submitted, in addition to the following:
a.A legal submission from the applicant’s representative.
b.A statutory declaration signed by the applicant on 9 October 2024.
c.A medical report from [a named doctor] which states that [Mother A] experiences anxiety and depression.
d.A statutory declaration signed by the applicant’s mother, [Mother A], on 9 October 2024.
e.A certificate of completion of training at [a training group] in the applicant’s name.
f.Copy of a poster calling people to stand up against Tigray genocide at Parliament House Canberra on 21 June 2021 and a copy of a notice of a candlelight vigil on 10 July 2021 ‘in solidarity with the victims of genocidal ware in Tigray.
13. I have had regard to relevant information on the Department file, including the applicant’s visa applicant and supporting documents, previous statements from the applicant and his mother, a letter from the Red Cross reporting on efforts to trace the applicant’s father and legal submissions dated 1 February 2016 and 27 March 2018. I also listened to the audio of the applicant’s interview with the Department on 19 August 2022.
CLAIMS
14. In the visa application the applicant expressed fear of harm upon return to Ethiopia for the following reasons:
oHis father was Eritrean and arrested and assaulted by the Ethiopian government. He ‘disappeared’ in 1998 and was killed by the Eritrean authorities in 2005.
oIn 2013 the applicant returned to Ethiopia from [Country 1] and joined the Semayaw Party (Blue Party). He was targeted by Ethiopian forces because of his Eritrean heritage and his father’s political background and his association with the Blue Party. Many of his extended family and friends were harassed, arrested and tortured after his last visit to Ethiopia.
oHe cannot live in [Country 1] due to his political background in Ethiopia. He received threats from Ethiopian government supporters in [Country 1].
oHe cannot return to Ethiopia as he will be arrested and deported to Eritrea.
oHis [Relative A] is a former [leader] and is in prison because of his family’s political background.
15. At the Tribunal hearing the applicant clarified his protection claims as follows:
oHe fears harm from the Ethiopian authorities due to his Eritrean ethnicity and his father’s political involvement in the Eritrean Liberation Front (ELF).
oHe fears harm as a result of his membership of the Blue Party.
oHe raises a new claim based on his Tigrayan ethnicity and his involvement in Australia in anti-war demonstrations against the Tigray war.
Evidence at hearing
16. I asked the applicant about his visa application. He said that his lawyer completed the form and he was satisfied that his claims were accurate. I advised the applicant that I had read his most recent statutory declaration and other submissions and there were some aspects of his evidence and claims that were unclear and I would discuss these with him.
17. The delegate found that, although the applicant had permanent residence while living in [Country 1], he was required to validate his visa every 5 years. Given that the applicant had not validated his [Country 1] visa while living in Australia, the delegate found that he no longer held a permanent visa for [Country 1]. The applicant confirmed that he does not have a visa to enter or reside in [Country 1].
18. I asked the applicant why he never applied for [Country 1] citizenship given that he resided in the country for 16 years, as this would have provided him with certainty in a safe country. He said that he always longed to reunite with his family, even if that place was Ethiopia. Given his mother was settled in Australia and [detail deleted], he always wanted to be with her.
19. In regard to the applicant’s ethnic identity and associated fear of persecution, I told the applicant that I appreciate that, in a county such as Ethiopia, a person can have multiple cultural or ethnic identities. Given that the applicant’s current claims relate mainly to his Tigrayan identity, I asked him to explain why he did not identify as Tigrayan when he was interviewed by the Department. He said that it is customary in Ethiopia to follow one’s father’s ethnic/cultural identity and his father was Eritrean. As his father had been deported from Ethiopia for openly expressing his political views as an Eritrean, the applicant believed that this was the primary basis for his fear of harm in Ethiopia. He said that it was only after he arrived in Australia that he became more aware of his mother’s Tigrayan identity and was connected with the Tigrayan community in Australia. He said that the 2020 Tigrayan war in Ethiopia highlighted the persecution of Tigrayan people and he was moved to become involved in activities to raise awareness about these human rights abuses. The applicant’s mother also stated in her oral evidence that it is customary for Ethiopian people to identify with their father’s nationality or ethnicity.
20. The delegate did not accept the applicant’s claim that his father was an active member of the Eritrean Peoples’ Movement (EPM), given that his father disappeared in 1998 and the EPM was not formed until 2005. The applicant said that the reference to the EPM was a typographical error, as his father was active in the Eritrean Liberation Front (ELF).
21. The applicant was asked why he returned to Ethiopia in 2013. He said that he did not have any relatives living there but had remained in contact with friends. He had strong childhood memories of Addis Ababa and had heard that things had improved so he wanted to see if this was true. He hoped that he might be able to live in Ethiopia again. He stayed in a hotel and with friends in Addis Ababa for about 3 weeks. He experienced problems however as he was identified by people as Eritrean and ‘his father’s son’. He was followed and harassed during his visit. The applicant’s response was vague when asked if he experienced any problems entering or leaving Ethiopia on that visit. He did not say that he was questioned or detained, only that the officials ‘looked at him with hostility’.
22. Given his negative experiences in 2013, I questioned why the applicant visited Ethiopia again in 2015. He said that he had met ‘like-minded’ friends in Addis Ababa during his 2013 visit and he wanted to spend time with them. He had also learnt about the Semayawi Party (Blue Party) which wanted to bring changes to Ethiopia. While he was in Addis Ababa in 2015 he joined the Semayawi Party and attended 2-3 underground meetings as he wanted to be part of the change. He claimed that one of these meetings was raided by authorities but he was not arrested or detained. He was, however, stopped many times while in Addis Ababa and he became fearful so he returned to [Country 1] after 15 days. It was during this visit that the applicant renewed his Ethiopian passport.
23. The applicant was asked to detail his political views and activities since living in Australia. He said that he is not a member of any particular political or ethnic organisation. His interest is in promoting peace and human rights, therefore he participates in various events when he sees that something is wrong. I referred to the letter of support from [Community Organisation 1] which states that the applicant comes from a highly respected and well-known Tigrayan family in Tigray and that the applicant plays a crucial role in advocating for the rights and safety of the Tigrayan people. The applicant said that he knows that community through his mother and that they give him advice.
24. In a letter of support from [Leader A] of the [Community Organisation 2], it is stated that the Jeberti are not recognised as an official ethnic group in Eritrea and are otherwise known as the Tigrinya. [Leader A] states that the applicant is one of their active members and works tirelessly as a youth leader and model to other Jeberti youth. When asked about his involvement, the applicant said that he attends some events which are mainly social interactions.
25. Strong character references were provided by the witnesses [Witness A], [Witness D] and [Witness B]. They each had met the applicant through his mother, [Mother A], who had acted as a carer to their family member/friend. They spoke passionately about both [Mother A] and the applicant, in particular their generosity to others and their active contribution to Australian society. They asked the Tribunal to consider the detrimental effect on [Mother A], an Australian citizen, should the applicant be unable to remain in Australia. They said that, as her [only family support] in Australia, the applicant plays an important role in [Mother A’s] emotional and physical well-being.
26. [Witness C] is [an occupation 1] who described the applicant as a friend who shares his commitment to peace and ethnic harmony. He said that the applicant has volunteered on some of his projects which aim to create awareness of the Tigrayan war and promote peace. In his written statement [Witness C] referred to the applicant as being ‘stateless’. When asked about his, the applicant initially agreed that he is stateless because he cannot return to Ethiopia. When I discussed this further with him, the applicant agreed that he has Ethiopian citizenship therefore he is not stateless.
27. [Mother A’s] evidence was that she came to Australia in 1998 on a visitor visa sponsored by her [relative] who was living in Australia. She left her three children in Addis Ababa and did not know their whereabouts until the Red Cross traced them in [Country 1] in 2004. She has [siblings] living in [Country 2] and no family remaining in Ethiopia. When asked about her ethnic identity, [Mother A] said that she doesn’t choose any one ethnic group over another. She is Eritrean and Tigrayan and she mixes with both communities. She is estranged from her [only other] relative in Australia.
28. I asked [Mother A] about the applicant’s reference to his [Relative A], a former [leader] in Eritrea. She said that [Relative A] had travelled to [Country 2] and the Eritrean authorities had accused her of sharing secrets with [that country]. She was subsequently arrested and is unable to leave the country. [Mother A] no longer has contact with her and is unaware of her current circumstances.
29. I advised the applicant that country information describes the persecution of Tigrayans in Tigray state and northern Ethiopia, however it appears that Tigrayans and Eritreans in Addis Ababa are not subject to the same levels of discrimination and harm. While acknowledging that the DFAT Country Report on Ethiopia was published 4 years ago, it found that ethnic Tigrayan faced a moderate risk of violence in rural areas of Ethiopia. DFAT also found most Eritreans live in Tigray state and there is no recent credible evidence to suggest that Eritreans face significantly greater risk of official or societal discrimination than other groups in Ethiopia.[1]
[1] DFAT Country Information Report Ethiopia at 3.24.
30. I invited the applicant to provide further submissions on the current situation for citizens with Eritrean and/or Tigrayan ethnicity living in Addis Ababa. I also invited him to provide evidence about his son, in particular proof of his Australian citizenship.
31. Post hearing the Tribunal received documents which confirm that the applicant pays child support for his son. A photograph of the applicant with his son was provided, as well as the child’s birth certificate. The representative stated that they were unable to provide evidence of the child’s Australian citizenship. A legal submission provided country information in support of the applicant’s claim that he faces harm in Addis Ababa.
CRITERIA FOR PROTECTION VISA
32. 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.
33. 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.
34. 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).
35. 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.
36. 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
37. 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.
REASONS AND FINDINGS
38. For the reasons discussed earlier, I am satisfied that the applicant is a citizen of Ethiopia. He travelled to Australia on a valid Ethiopian passport and confirmed at hearing that he is a national of Ethiopia. I have therefore assessed his claims against Ethiopia as his receiving country. I am also satisfied that he no longer has the right to enter and reside in [Country 1].
39. I acknowledge the importance of adopting a reasonable approach when making findings of credibility.[2] It is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[3]
[2] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court).
[3] See Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547
40. The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
41. While I found the applicant’s evidence to be generally consistent and reliable, his answers were brief and he had to be encouraged to provide further details on specific issues. I am willing to accept that he is mistrustful of authority and cautious about disclosing information that may undermine his claims. I also acknowledge that he was very anxious about the hearing and the outcome of his protection application. I found that his oral evidence about his political activities in Australia was understated when compared with the witness statements.
42. On the basis of the available evidence I accept the following:
oThat the applicant lived in Addis Ababa until he was [age] years old when he was taken to [Country 1] by family friends.
oThat his father was politically active in the ELF, deported to Ethiopia in 1998 and died in Ethiopia in 2005. The applicant would therefore be identified as Eritrean in Ethiopia.
oThat his mother moved to Australia in 1999.
oHis mother has Tigrayan identity, through her mother, therefore the applicant is likely to be identified as Tigrayan.
oThat the applicant lived in [Country 1] for 16 years before travelling to Australia in 2015.
oThat the applicant visited Ethiopia in 2013 and 2015, staying 2-3 weeks each visit.
Does the applicant satisfy the refugee criterion for protection?
Claims of harm due to political activities in Ethiopia and Australia
43. On the basis of a copy of a membership card dated 2015, I accept that the applicant joined the Semayawi Party during his visit to Ethiopia in 2015. I am also willing to accept that the applicant attended 2-3 underground Party meetings during that visit. I find that his claim that one meeting was raided is consistent with reports that the Ethiopian authorities have attempted to shut down anti-government activities. The applicant was not arrested or detained for his attendance at the meeting. During that visit he was able to renew his passport and leave the country without difficulty. I do not accept his claim that he was frequently followed and harassed during his 15-day visit or that he had a profile with the authorities that made him a target. I have had regard to the representative’s submission of 19 October 2024 in which it is argued that the applicant is a long-time member and supporter of the Semanyawi Party (currently incorporated into a coalition known as Ezema) and he fears persecution as a political opposition supporter. I find this claim to be inconsistent with the applicant’s oral evidence that he had no further involvement with the Party after he left Ethiopia in 2015. I do not accept that the applicant is a long-term supporter of the Semanyawi Party.
44. In regard to the applicant’s political activism in Australia, I find that his involvement is low-profile and intermittent. He does not identify strongly with any specific organisation and said that he participates’ when he sees something wrong’. The applicant’s response was vague when asked to detail his activism in Australia. He said that he followed his friends and helped them in relation to the 2021 protests about the Tigrayan war. [A named person’s] support letter refers to the applicant contributing significantly to fundraising and creating awareness about the suffering of the Tigrayan people. [Leader A] states that the applicant contributes though voluntary work as a Jeberti youth leader. [Witness C’s] support letter refers to the applicant advocating for peace, disturbing pamphlets, creating awareness about the Tigrayan war and volunteering to support his [productions].
45. The representative submits that the applicant, as a supporter of Tigrayan rights, fears being attributed with pro-Tigray People’s Liberation Front (TPLF) views. As he holds his pro-Tigrayan and anti-government views strongly he would not hesitate to be active in the pro-Tigray movement if returned to Ethiopia. The submission also refers to the applicant’s ‘discreet political opinions’ which are ethnic in nature and should be assessed cumulatively as well as individually.
46. On the basis of the applicant’s evidence I accept that the applicant holds political views and expresses them in a ‘discreet’ manner. His participation in political activities in Australia is low-key and intermittent. He has not claimed that he expresses his views on social media nor is there any independent evidence of his participation in public protests.
47. On the evidence before me I am not satisfied that the applicant’s past or current political views give him a profile that would attract the attention of the Ethiopian authorities. I am not satisfied that there is a real chance of serious harm on the basis of the applicant’s actual or imputed political views alone.
Claims of harm due to ethnicity/nationality
48. Having sought to clarify the applicant’s ethnic identity, I accept his explanation that he considers himself to be an Ethiopian citizen with Eritrean and Tigrayan cultural background. I also find reasonable his explanation that he initially identified as Eritrean, and not Tigrayan, because it is customary for a child to identify with their father’s ethnic/cultural background. I am satisfied that in Ethiopia the applicant could be considered to be either Eritrean or Tigrayan or both.
49. The applicant’s evidence at hearing indicates that he does not identify strongly with any one cultural community in Australia. Rather, he engages with individuals and communities whose values and objectives are aligned with his. I conclude from his evidence that he values peace and human rights above any specific ethnic or cultural privileges.
50. The issue I must consider is whether, if he returns to his home area of Addis Ababa in Ethiopia, the applicant will face persecution on the basis of his Eritrean/Tigrayan identity.
51. I have considered the applicant’s claim that, when he visited Ethiopia in 2013, he was readily identified by people as Eritrean and he was associated with his father who had been deported. Given that he had been [under age] when he left Ethiopia and he was [age] years old when he returned, I have some doubts that he would have been so quickly identified – he had no family living in Addis Ababa so he stayed at a hotel and with friends and only for 3 weeks. I am willing to accept, however, that identity and family ties is extremely important in Ethiopia and that people could have insisted that he disclose his identity. I also found that the applicant’s account of the harassment was very vague. He said that he ‘had problems’ as he was identified and harassed because of his father. He did not have problems entering or leaving the country but said that the officials ‘looked at him with hostility’. If the applicant had been harassed to this extent I reasonably expect that he would provide more detail about the incidents and the identity of those responsible. Further, despite claiming that he was identified, followed and harassed in Ethiopia in 2013, he returned again in 2015 at a time when he had residency in [Country 1] and had been granted a visitor visa to Australia. I find it surprising that the applicant would choose to face harassment and possible harm to visit Ethiopia when he had other options in safe countries. I accept that the applicant may have experienced some discriminatory remarks while visiting Addis Ababa but I do not accept that he was harassed and followed to the extent that he has claimed.
52. I have considered the applicant’s evidence to the Department that he was unhappy in [Country 1] because he experienced discrimination as an Ethiopian/Eritrean. This issue is not material to his protection claim as I must consider if he faces harm in Ethiopia, not [Country 1]. However I do consider this evidence about his experiences in [Country 1] to be a relevant consideration when assessing his reason for visiting Ethiopia in 2013 and 2015. I acknowledge that the applicant may have experienced societal discrimination in [Country 1] as an African migrant, as anti-migrant tensions in the country have been widely reported. However, I find that the applicant lived in [Country 1] for [number] years, was engaged in employment and had access to services as a lawful resident. He has not claimed that he was harmed at any time in [Country 1]. Further, his brother remains living in [Country 1] after 25 years and has a family there. I accept that the applicant was unhappy in [Country 1] but I am not persuaded that he felt unsafe in [Country 1].
53. As the applicant lived in Addis Ababa for the first [number] years of his life and stayed in Addis Ababa during his visits in 2013 and 2015, I consider his home region in Ethiopia to be Addis Ababa. The DFAT Country Report Ethiopia reported in 2020 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).[4]
[4] DFAT Country Information Report Ethiopia12 August 2020 at 2.37-2.38.
54. According to DFAT, Ethiopia is a multi-ethnic society and ethnic groups enjoy extensive rights.[5] Yet it also reports 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.[6]
[5] Ibid at 3.2
[6] Ibid at 2.50
55. Ethnic Tigrayans constitute 6.1 per cent of the population. They reside predominantly in Tigray State, the northernmost part of Ethiopia (neighbouring Eritrea, where Tigrayans constitute a majority). DFAT reports that Tigray State is considered one of the safest states in the country. The largest concentration of Ethiopian Tigrayans outside of Tigray State at the time of the 2007 census was in Addis Ababa (nearly 170,000).[7] There is a growing sense among Tigrayans that their community is under threat. Anti-Tigrayan sentiment has become more overt since 2018 and hate speech against ordinary Tigrayans has increased in this time. DFAT assesses that, excluding in Addis Ababa, ethnic Tigrayans face a moderate risk of violence in rural parts of the states where they constitute a minority.[8]
[7] Ibid at 3.11
[8] Ibid at 3.13-3.15
56. The DFAT report was published in 2020 and there have been significant developments in Ethiopia since that time which have changed the situation for specific ethnic groups. An article by the Centre for Preventative Action[9] records that, between 2020 and 2022, Ethiopia fought a war with militants from its northernmost region of Tigray, then under the control of the Tigrayan People’s Liberation Front. The conflict was one of the deadliest in recent world history and drew international attentional attention for a preponderance of alleged war crimes, human rights abuses, and ethnic cleansing in Tigray. The war formally ended in November 2022; Tigray was left in ruins, and its capital was turned over to the federal government.
[9] Conflict in Ethiopia | Global Conflict Tracker Centre for Preventative Action. 19 December 2023.
57. The 2023 report of the International Commission of Human Rights Experts on Ethiopia stated that “the conflict in Tigray has not ended, with Eritrean troops and Amhara militias engaging in ongoing violations. Past and current abuses in these four regions demand further investigation. The Government of Ethiopia has failed to effectively investigate violations and has initiated a flawed transitional justice consultation process.”[10]
[10] Report of the International Commission of Human Rights Experts on Ethiopia. A/HRC/54/55
58. The applicant is from Addis Ababa and there is no suggestion that he would return to Tigray State or any other area outside Addis Ababa. Reports relevant to my consideration of the situation for Tigrayans in Addis Ababa are:
I.The 2024 General Country of Origin report by the Netherlands Ministry of Foreign Affairs, talks about the living situation for Tigrayans, specifically in Addis Ababa:
According to various sources, the living situation of Tigrayans in Addis Ababa had improved significantly during the reporting period. The negative attention of the authorities had radically and abruptly shifted from the Tigrayans to the Amhara and Eritreans. This turnaround in the treatment of Tigrayans was explained by the fact that Prime Minister Abiy had changed his target. He had achieved his goal of weakening the Tigrayan elite and was now targeting the Amhara. To that end, he needed things to be calm on the Tigrayan front. According to various sources, work was slowly under way to restore the jobs and homes that Tigrayans had lost during the conflict. Some Tigrayans who had sought refuge abroad returned to Ethiopia. According to a confidential source, the very marked improvement in living conditions for Tigrayans in Addis Ababa could be explained in part by the fact that, during the Tigray conflict, the Amharic population in particular had treated the Tigrayans negatively. The very fact that the Amharic population group in Addis Ababa was under fire during the reporting period tempered their negative treatment of the Tigrayans.[11]
II.Although the situation has improved, multiple organisations, both government and non-government human rights organisations, report Tigrayans, throughout the whole of Ethiopia, still experience rights abuses.[12] Reporting from April 2024, indicates the government’s response to recent tensions sparked mass arrests of Tigrayans in Addis Ababa, following an address by the Prime Minister, Abiy Ahmed, on 16 March 2024, when he warned Tigrayans away from starting another war.[13]
III.There are reports that authorities conduct ‘round ups’, raids, door knocks and mass arrests based on ethnic profiling and are not specifically for individuals involved in politics. While it is reported that Tigrayans experienced a decrease in ethnic profiling and arbitrary detention by authorities, after the signing of the Permanent Cessation of Hostilities Agreement (CoHA) in 2022[14] with the recent increased political tensions, Tigrayans in Addis Ababa once again experienced mass arrests in early 2024.[15]
IV.UMD Media reported the following in April 2024. “Over the past week, there have been reports of targeted arrests of Tigrayan youth in Addis Ababa. According to sources within the city, young individuals from various professions have been apprehended without any apparent wrongdoing. A source, requesting anonymity, disclosed that three of their relatives, who work in the modest occupation of selling cleaning supplies, were detained in Kaliti, Addis Ababa, without being informed of the reason behind their arrest.”[16]
V.On 17 June 2022, Reuters reported that Tigrayans were arbitrarily arrested in Addis Ababa and then transferred to overcrowded prisons where detainees were subjected to subhuman conditions.[17]
[11] General Country of Origin Information Report: Ethiopia. Netherlands Ministry of Foreign Affairs.31 January 2024 at 3.2.1.2
[12] 'BTI 2024 Country Report - Ethiopia', Bertelsmann Stiftung, 19 March 2024, p. 27, 2024032011531; 'Country Policy and Information Note Ethiopia: Actors of Protection', UK Home Office, 1 March 2024, paras 8.4.7 and 10.2.3, 20240828110118; '2023 Country Reports on Human Rights Practices - Ethiopia', US Department of State, 22 April 2024, p.1-3, 20240423121736; 'Freedom in the World 2024 - Ethiopia', Freedom House, 29 February 2024, section B1, 20240306171031; 'Human Rights Watch World Report 2024', Human Rights Watch (HRW), 11 January 2024, p. 215-216, 20240112083455
[13] 'Arrest of Tigrayans in Addis Ababa Amidst Rising Fear of New War Following PM Abiy Ahmed’s Warning: “Do Not Say I Didn’t Warn You Afterward”', UMD Media, 30 April 2024, 20241029151114
[14] COI Ethiopia Security Situation October 2024', Danish Immigration Service, October 2024, p.2, 20241030132946
[15] Arrest of Tigrayans in Addis Ababa Amidst Rising Fear of New War Following PM Abiy Ahmed’s Warning: “Do Not Say I Didn’t Warn You Afterward”', UMD Media, 30 April 2024, 20241029151114
[16] Arrest of Tigrayans in Addis Ababa Amidst Rising Fear of New War Following PM Abiy Ahmed’s Warning: “Do Not Say I Didn’t Warn You Afterward” – UMD Media
[17] In relation to the applicant’s Eritrean background, it is reported that the situation for Eritreans in Ethiopia has declined since the signing of the CoHA in 2022. The 2024 General Country of Origin report by the Netherlands Ministry of Foreign Affairs, talks about the arrest and/or deportation of Eritreans during 2023. Although the report focuses on Eritrean refugees, it highlights why Eritreans are targeted by authorities and how targeting is consistent with ethnic profiling, over targeted arrests.[18]
[18] General Country of Origin Information Report on Ethiopia', Netherlands Ministry of Foreign Affairs, 31 January 2024, para 1.3.12, 20240917100053
60. It is widely reported that Ethiopians of Eritrean background continue to experience harassment. While much of the reporting focuses on Eritrean refugees who are vulnerable to deportation, it is documented that Ethiopians are targeted on the basis of their Eritrean ethnicity alone even if they have legal status.[19]
[19] Eritrean refugees say they are being arbitrarily detained in Ethiopian camps | Conflict and arms | The Guardian
61. I give significant weight to an article by the Human Rights Watch on 4 March 2024 which states that ‘no one in Ethiopia is safe from arbitrary arrest and detention’.[20]
Cumulative assessment
[20] Ethiopia’s Deepening Crackdown on Dissent', Human Rights Watch (HRW), 04 March 2024, 20241029152939
62. On the available evidence I find that the applicant upon return to Ethiopia would have a profile as being of Eritrean and/or Tigrayan ethnicity and being the son of a former Eritrean political activist who was deported.
63. Having considered relevant country information, I accept that people with Tigrayan/Eritrean identity in Addis Ababa can be subject to harassment, assault, detention and imprisonment, regardless of whether or not they are politically active. I accept that the Ethiopian authorities attribute political intent to individuals with Tigrayan/Eritrean identity therefore the applicant would not need to express his political views to attract the attention of the authorities. Even though the applicant has lived outside Ethiopia for [number] years, I consider that his ethnic identity and family connections could subject him to harm. I find that the chance of serious harm is more than remote, given the arbitrary nature of persecution by the state.
64. Given the applicant’s circumstances, I find that he faces a real chance of serious harm. The harm involves a threat to his liberty, significant physical harassment, significant physical ill-treatment and the denial of access to basic services.
65. As the agents of harm are state authorities and parts of society more generally, I find that the harm relates to all areas of the country. As the agents of persecution involve state authorities, I find that effective protection measures are not available to the applicant.
66. The essential and significant reason, or reasons, for the applicant’s feared harm are his Tigrayan and Eritrean ethnicity. These characteristics are innate, immutable and fundamental to the applicant’s identity or conscience.
67. I find that the applicant will be persecuted by state authorities and this discrimination will be ongoing and targeted and involves systematic and discriminatory conduct: s 5J(4)(c)
68. Requiring the applicant to modify their behaviour to avoid a real chance of persecution would require the concealment of innate or immutable characteristics fundamental to his identity.
69. I am satisfied that the applicant’s conduct in Australia, that is his involvement in Tigrayan political activities, has not been undertaken for the purpose of strengthening his claim to be a refugee: s 5J(6).
70. Having reviewed and considered all information before me, I find that there is no evidence which indicates that the applicant has a right to enter and reside in a country other than his home country of Ethiopia. Therefore, I find that s.36(3) of the Act does not apply to the applicant in this case.
71. I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
72. The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Date of hearing: 17 October 2024
Representative for the applicant: Mr Luke Brennan
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.
…
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