2306755 (Refugee)

2306755 (Refugee) [2024] AATA 3401 (10 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Nicholas Merlin
CASE NUMBER:  2306755
COUNTRY OF REFERENCE:                   Ethiopia
MEMBER:Denis Dragovic
DATE:10 May 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 10 May 2024 at 10:38am
CATCHWORDS
REFUGEE – protection visa – Ethiopia – Federal Circuit Court remittal – ethnicity – first applicant Oromo and husband Somali – husband’s social media post with Somali region politician – threatening comments and phone calls – now estranged and husband working in another country – participation in protests while at university – no evidence provided that brothers imprisoned and family targeted – employment, passport, travel and no political membership – community activities and participation in protests in Australia – returned failed asylum seeker and divorcee mother – delay in applying for protection – country information – change of government and increased tolerance for political dissent – mixed-ethnicity marriages relatively common – members of family unit – child born in Australia an Ethiopian citizen – language, education and social/cultural integration – likely hardship and loss of opportunity not serious or significant harm – cumulative risk – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 424A, 438
Migration Regulations 1994 (Cth), 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 March 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants are citizens of Ethiopia. Although the fifth named applicant was born in Australia, Ethiopian law[1] states that any person born ‘in Ethiopia or abroad, whose father or mother is Ethiopian, is an Ethiopian subject.’
[1] >
The applicants arrived in Australia in 2014 on [specified] passports and applied for the protection visas on 2 July 2018.
The delegate refused to grant the visas on the basis that all of the factual foundations upon which the applicant was claiming protection were not accepted by the delegate and as such the delegate found that the family did not have a well-founded fear of persecution.
The differently constituted Tribunal affirmed the delegate’s decision, and that decision was set aside by the Federal Circuit Court for the reason:
The Minister concedes that the Tribunal’s decision is affected by material jurisdictional error. The Tribunal failed to disclose to the applicant the existence of a notification issued on 8 March 2019 pursuant to s 438(1)(b) of the Act (the notification) which covered material that was directly relevant to the issues in her application. By failing to disclose the existence of the notification to the applicant, the Tribunal deprived the applicant of the possibility of a successful outcome: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [2] per Bell, Gageler and Keane JJ.
The matter is now before the Tribunal pursuant to an order of the Court.
Only the first named applicant appeared before the Tribunal on 17 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Oromo and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence and findings of fact
The first named applicant (“the applicant”) is a [Age]-year-old female from Ethiopia. She was born in [Town], Oromo, and is ethnically an Oromo. The applicant has four children who are also applicants, a daughter aged [Age], a son aged [Age], another son aged [Age] and a [Age]-year-old daughter. She is estranged from her husband who is the father of the four children.
The applicant and her three children came to Australia together with her husband, an Ethiopian of the Somali region of Ethiopia, on a [specified] passport as family members. He continues to be [an occupation] with evidence that he is currently [working in Country].
Prior to coming to Australia, the applicant lived in the Ethiopian capital, Addis Ababa, for five years.
The applicant claims that the reason she didn’t apply for protection until after living in Australia for four years, having arrived in 2014, was because at that time she was having problems with her husband arising from the Somali Oromo conflict which created fissures in their marriage. She said that around the time of the troubles he left from Australia to Ethiopia and in one instance took a photo with Abdi Iley, the then President of the Somali region of Ethiopia and posted it on [Social media] along with some comments. She claimed that this led to the dissolution of their marriage, threats being made to her, and the source of future risks of harm to her children.
Due to the importance of this event, I will engage with it in detail. The context is that a series of Somali-Oromo clashes occurred between late 2016 and 2018.[2] It is reported that 1 million people were displaced as of mid-April 2018.[3]
[2] >
A truncated copy of the offending [Social media] post was provided to the Tribunal. The visible passages include,
great pleasure and honor to meet with…President, H.E. Abdi Mohamed…and discuss…issues on the sidelines of business…great respect and appreciation for your…leadership and commitment…peace and stabilities and rapid development…in the region that we have witnessed…I would like to extended my deep…for your unreserved support you…on our Australian and New Zealand delegation to have productive and…our hero!
The applicant wrote in her 2018 statutory declaration that the post was made in November 2017.
Based on the truncated message it appears the husband was accompanying a [delegation] from Australia which included a meeting with the head of the Somali region. The [Social media] post presents a positive picture of the meeting and its participants.
The applicant said that the trigger for the threats was that her husband referred to Abdi Mohamed positively and in particular wrote: ‘long live our hero’. She said that this prompted threatening responses to the post and that as a result her husband eventually took it down. Translations of the threatening posts were provided to the Department and include:
If you are not immediately stop from such activities and if and if the [town] youth take action on you, that would be up to you
No matter what, accept it or not, heavy action need to be taken on his children whenever they are
First action – leave a clear message for him. On the second step based on his respond we proceed to the tough action (this could be locally spoken word – may be expression for tough action. After that the person would know the consequences.
Among the translated material provided to the Tribunal one commentor provides an alternate view, ‘more than anyone else [the husband] have a concern about the conflict between Oromo and Somali. Still he is one of the person who can be expected to solve these issues. It is important to balance the all situation for the judgement.’ But in response another writes, ‘I assume is he your friend? First, please read carefully what I posed here. Is the family of [the husband] rather honoured to you than the Oromo families who have been displaced and killed by him and Abdi Illey? He is not Hero of Oromo people, He is stupid man.’
The applicant explained that her husband’s family used to live in [Location], Oromia, but they were evicted after he made this post. She said that none were killed. A link to an article[4] was provided which is claimed to show the impact on her husband’s family. But I noted at the hearing that the article is a generic summary of the massacre of Oromo farmers whereas the applicant’s family are Somali and are claimed to have been evicted but not killed. The article does not relate the reporting to the husband in anyway. She said that she provided the correct article. An opportunity was provided for the applicant to work with her lawyer to identify the correct article if there was a mistake. No correction was made.
[4] >
The applicant claimed that after the article was posted she was targeted by Oromos in Australia. She said that she received threatening calls from different Australian phone numbers. At one point she stopped answering unknown numbers.
Since her husband departed Australia, she claims that she has not had any contact with him, nor his family and does not know where they are.
A separate [Social media] post of the applicant’s husband was provided as being the offending post but subsequently submissions were made that it was the wrong post.[5] This post is a benign post that uses unifying and conciliatory language. I accept that it was the wrong post.
[5] [Social media reference]
The applicant said that the photo with the President of Somali region was a one-off behaviour of her husband and that he removed it from his social media. But others forwarded it, and this is what created problems.
The applicant said that she no longer sees threats being made to her and her family on [Social media].
Political activities of her and her family
The applicant claims that she had participated in protests while living in Ethiopia. She confirmed that she had never been imprisoned. She said that when she was at university whenever the Oromo faced problems, she would join the protests.
She claimed that she evaded arrest in 2007 during protests at her university but that the ‘security forces were searching for me.’ I asked if she thought that that incident continued to create a risk for her. She said that if it had, she would have been imprisoned before. I put to her that because she got a [passport] and travelled with the government’s knowledge and consent that was evidence that the government had no interest in her. She confirmed that they were not looking for her.
The applicant raised another claim in her written submission regarding the government taking her passport away from her. I noted that it doesn’t seem a surprise considering that she was travelling on a [specified] passport and that it should only be used for [specified] travel. She confirmed that when she travelled back to Ethiopia in 2016, they took the passport and when she left Ethiopia, they returned it.
She confirmed that she was not a member of any political party or grouping.
She noted how her mother had been arrested for political reasons a long time ago but that the applicant had not suffered any repercussions arising from that.
The applicant claimed in her original statement that her [brothers] were in prison and ‘to date, I do not know their whereabouts’.[6] At the hearing she said that she doesn’t know where they are now and believes that they don’t have a permanent place of abode. She said that it has been a long time since she spoke with them.
[6] Statement 2 July 2018 at [9]
She said at the hearing that they were imprisoned in November 2016 following irreechaa, an important date in the Oromo calendar (October 2, 2016). She said that many people died that day. She said that there were demonstrations, a state of emergency was called, and protestors were imprisoned. A link to a news article was provided in her 2018 statement. The link was no longer active but other sources of information were found of the same incident.[7]
[7] and
In her application dated July 2018 she claimed that she did not know the whereabouts of her brothers and believed them to still be in prison.
At the hearing she said that she spoke to one of her siblings in 2019.
Arising from material contained in the delegate’s decision and AUSTRAC records included in the Departmental file but behind a s438 non-disclosure certificate there was evidence that funds were being transferred to her brothers from Australia in 2016 and 2017. I provided a copy of the certificate to the representative. There was no claim of the certificate being invalid. I find the certificate to be valid but nonetheless the information behind the certificate to be relevant and as such provided the gist of the overall information and extracted the information which was specifically relevant and presented it through a s 424A letter. The letter contained the following information:
The Australian government AUSTRAC system shows that funds were transferred by your sister to your brothers as follows:
[Mr A]:
11 April 2016
25 November 2016
5 August 2017
14 August 2017
[Mr B]:
6 January 2017
9 September 2017
4 April 2018
The location of the recipients is listed as Addis Ababa.
The other financial information behind the non-disclosure certificate was not relevant as it included transfers from an earlier period of time, when the applicant was the recipient, or when the recipients are others who on the face of the evidence available are not family members.
I noted in the letter that the information is relevant to the review because ‘it indicates that either your brothers were imprisoned for a very limited period of days or weeks, or alternatively that they were not imprisoned at all.’
The applicant responded in writing via her representative that her evidence remained that she had no knowledge of the transfers and as such no knowledge of her brother’s period of imprisonment.
The decision record was provided to the Tribunal. It also referenced her brother [Mr A] having a social media account which continued to be updated after November 2016. When this was put to her at the hearing she said that she doesn’t know about the social media update but that she learned from friends that he had been imprisoned.
The applicant claimed that her father, who has since passed, was an influential village elder. She said that he was one among other elders who were involved in mediating disputes. She described him as being an elder of a neighbourhood.
Since his passing in 2021 the applicant claims that she hasn’t had contact with her family as they had asked for her help but as she didn’t provide help and as such she believes that they won’t want to help her were she to return to Ethiopia.
The applicant confirmed that she does not fear harm arising from her father’s roles.
Ethnicity
The applicant claimed that her children will not be welcome because they will be perceived as Somali children but born to an Oromo mother though she clarified that there wouldn’t be problems having them access services such as education.
I asked if her marriage with her husband was arranged between the families. She said that they knew each other and had studied at the same place. At the time, she said that there was ‘not much disagreement or argument’ over her mixed marriage. She said that the fighting between the two ethnic groups changed the situation.
I put to her that the fighting was time bound and the location she had previously lived in, being Addis Ababa, where she would most likely return to, has many people of mixed ethnicity. She said that the past fighting lingers.
Children
The applicant believes that if she returns to Ethiopia, she doesn’t have someone to support her and as such her husband has the power to take the children away. I asked if he has tried to date. She said that when he lived in Australia, he would tell the children that he wants to take them to Somali region to learn the culture and language, but nothing has been said or done since he left Australia. She said that he talks to their eldest daughter but otherwise she confirmed that she has not had any other contact by him or his family.
I asked if Ethiopia has legal processes to determine the custody of children. She said that she doesn’t know. I put to her that I read that there are and that the courts determine custody.[8] I asked why she wouldn’t be able to work within the law of Ethiopia if an issue arose. She said that someone who has money and power can do whatever they want. She said that she knew someone to whom that happened.
[8] type="1">
She said that she has no chance to retain custody, but while here, a country with a robust legal system in place, she can. I suggested that because Australia has a legal system, and he has had every chance to begin custody proceedings here but hasn’t, wasn’t it indicative that he is not interested in pursuing custody. She said that it could be because he is not residing in Australia. I put to her that residing in Australia is not necessarily a legal impediment.[9] She said that he always tells them that he will take them to the countryside to learn the Somali language. I asked her to clarify whether this was when he was living with them and not after their separation to which she confirmed that it was.
[9] >
The applicant said that her children can understand the Oromo language but not speak it. She said that she speaks a mix of English and Oromo to them, and they understand. I asked if her husband spoke to the oldest children in Oromo. She said that he wasn’t around much and when he was, he spoke English. I asked whether she was saying that someone who was committed to Ethiopia as is evidenced by his choice to continue to [work] as [an occupation] wasn’t teaching his own children their language. She said that he wanted to teach them Somali, but she said it was only after they would return.
Findings of fact
I accept that the applicant was married to [an occupation] who has since moved on to [work in Country]. I also accept that a part of the reason for their separation was the Somali-Oromo conflict.
I accept that the applicant’s brothers were arrested and detained for a very limited time in 2016. I accept that the applicant is not in touch with them but that according to her evidence she knows that they live in Addis Ababa possibly without fixed address.
The applicant noted in her submissions that she has a brother who lives in Addis Ababa but has a slight disability.
Based on the facts provided by the applicant it is evident that she has family in Addis Ababa.
I accept that the applicant has had a political past that included protests against the former regime and that her mother and father have similarly had a political past that included protests against the former regime.
I do not accept that the husband will seek to pursue custody of the children. He has not communicated with the children other than the eldest, he has not communicated with the applicant at all and as such it is apparent that he has not sought to have any visit him or him visit them. He has not sought to pursue custody in Australia. It would be speculative based on the evidence before me that he would seek custody of the children were they to return to Ethiopia.
I noted that she had worked in Addis Ababa, lived there, and spent five years there and that it is the place she would most likely return to. She said that she used to live in a rental house in Addis Ababa but now she doesn’t have anywhere to return to. I find that were the applicant to return to Ethiopia she would return to Addis Ababa where she had most recently lived for a period of five years prior to leaving for Australia.
I find that the younger children can understand basic Oromo but would struggle to speak it whereas the older is conversational in Oromo for the reasons of being [Age] years old when she left Ethiopia. I find that all of the children are fluent in English.
Considerations
In considering the circumstances in Ethiopia into the reasonably foreseeable future I note that some country information was provided that was from prior to 2018 when the previous regime was in power. Such information is only relevant when considering the circumstances of the applicant at the time. Since 2018 the country has a new leadership and has seen significant change, as detailed below in the 2020 DFAT report.
Furthermore, I give generic information about the entire country less weight than specific information about Addis Ababa as the circumstances in the capital are considerably different to those in other regions of the country and as such where available the circumstances of Addis Ababa will be given greater weight.
The 2016-2018 Somali Oromo conflict and the offensive post
I noted to the applicant that the then President of the Somali region, Abdi Mohammad, was removed from his post in 2018 and served five years[10] in jail and the Liyupolice that she detailed as fearing were disbanded.[11] I suggested that the cause of the troubles between Oromo and Somali has dissipated following his removal. I asked whether her fear arising from the clashes between the Oromo and Somali people that ended in 2018 was a thing of the past. She said that she doesn’t think that the problem is reduced because all of the people were killed and displaced. She said that she doesn’t know about the Liyu police being disbanded.
[10] >
I put to the applicant that based on the news and country information available to me, Addis Ababa appears to be safe in the sense that there is no conflict and no civil unrest although protests occur and sometimes involve clashes with police. She said that before she used to work and live there, but now she doesn’t have anything there. She said that her mother is an old lady, and her brothers can’t assist.
The applicant wrote in her 2018 statutory declaration that she tried to convince her husband not to put their lives at risk by returning to Ethiopia but as he wouldn’t agree, she left him.[12] I asked at the hearing that as her husband had chosen to return to Ethiopia whether that was indicative of him believing that the possible impact of his post was limited. She said that he is a government official whereas she is not an official and she will be out on the streets.
[12] Statutory declaration 2018 at [30]
I suggested that anyone who remembered the offending post and the hurt it caused would want to harm her husband and not her as she is Oromo. She said that Oromo won’t harm her, but they will harm her children who are perceived to be Somali, and the Somali won’t harm the children, but they would harm her.
In considering whether there are any lingering risks to the applicant and her children arising from the offending post made by her husband in the context of an ethnic conflict that ended in 2018 I note that Addis Ababa does not have civil unrest and as such there would be limited opportunity or reason for someone to harm them. I note that it would be around seven years since the post was made and even considering some ongoing commentary that would have continued for months after, the post would have long since drifted into the distant memories of those who reacted adversely to it. For these reasons I find that the applicants do not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal from the [Social media] post.
To avoid doubt this includes consideration of both the individual/s who made threatening phone calls to her from Australia while she was living in Australia and those who made threats online who were living in Ethiopia.
Related to her husband’s ethnicity the applicant stated in her 2018 statutory declaration that she feared the Liyu Police. As noted above, country information indicates that they have been disbanded and in addition, their area of operation was Somali region and not Addis Ababa. As such I find that the applicants won’t face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal from the Liyu Police.
Political activities of the applicant, her family, and her husband
I put to her that she has claimed that her family were political activists but a lot that has happened in her life indicates that she was not seen as adverse to the former and current government as she was hired into a [job], never imprisoned and was not a hindrance to her husband [working in] Australia. She said that most of her family members are political activists. She said that she hid her voice for a period while she lived in the capital of Somali province, Jigjaga.
I noted that the most recent DFAT report 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. I noted that this assessment was somewhat dated from 2020 but it remains relevant as the government hasn’t changed and there isn’t information before this Tribunal that would suggest their approach to political freedoms has changed. The applicant responded that nominally there are peaceful conditions in the country, but political people are still being killed. She identified the death of an Oromo Liberation Front leader as an example.
She said that her whole family have been targeted in the past ‘even more now, than under the previous regime’ but she did not provide any evidence to support this claim nor was there any evidence in her previous statements that suggest that any family member has been targeted by this government. I put to her that she hasn’t lived in Ethiopia since the change of regime in 2018 and asked how she knew what the situation was like. She said she knows from social media and reports by Amnesty. I put to her that from what I have read including in Amnesty reports that the situation has improved and asked that she work with her lawyer to make a submission that provides evidence of a deteriorating situation. None was received.
I acknowledged the letter she had provided from [an Organisation] which states:
Oromo community has known [the applicant] volunteered for our community events, cultural festivals, annual graduation ceremonies, and rallies organized to voice against the atrocities by the Ethiopian government. Her involvement in the community has been appreciated by all the people that she has been dealing with.
I asked if she had contributed or participated in any political activities in Australia. She said that she participated in events such as soccer and graduation but also in demonstrations when prominent people in Ethiopia were killed or imprisoned. She said that she had also participated in cultural events in Federation Square and rallies organized to voice against the atrocities by the Ethiopian government.
I noted that there is no information available to the Tribunal that the Abiy government monitors protestors in foreign countries although I acknowledged it was a practice of the past regime. She said that it is not written about, but people are saying that the government is looking at those who participate in protests in Australia. She said that it is not being revealed to the public. I do not accept the applicant’s suppositions about this matter noting that there are a considerable number of human rights organisations who report on Ethiopia and as such some information about such activities would have come to light if it were the case.
I noted that her previous anti-government profile as a protestor on academic campuses was prior to the government changing. There is no evidence before this Tribunal that suggests this current government has an adverse interest in academics, let alone former academics or those who had protested against the previous regime. She acknowledged that there is regime change but claimed that there are no substantial changes for the Oromo.
In considering the applicant’s situation arising from her and her family’s political activities I note that according to her evidence they occurred prior to 2018 when the Abiy government came to power. I note that she married [an Occupation] who at the time was working for the former regime and yet they were posted abroad, which is indicative of the applicant and her husband not being so political that they were perceived as anti-regime by a regime that was hyper sensitive to opposition.[13] I note that the husband then continued to [work for] the new government which again indicates that there is no indication that the applicant and her family’s past political activity is such that it tarnished the husband through association.
[13] CIS25622: Ethiopia: Ethnic Federalism and its Discontents, International Crisis Group, 1 September 2009
As discussed at the hearing the change of government in 2018 led to a substantial change and as noted by DFAT in its report this included tolerance of political opposition. Since the change of government, the applicant has protested in Australia but there is no evidence to suggest that is being monitored and would be known and even if it were to be known there is no evidence that suggests that the government would take action against someone protesting overseas. For these reasons, I find that the applicants do not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal arising from the first named applicant and her family’s past political activities.
I have also considered the future situation including that the applicant and other family members continue to participate in pro-Oromo protests that would be perceived as anti-government. I note that DFAT indicates that members of opposition political parties face a low risk. Without any evidence to suggest that someone of the applicant’s political profile would face anything other than a low risk, I find that the applicants do not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal arising from the first named applicant’s and her family’s future political activities.
I have also considered whether the applicant may face harm arising from her husband’s ongoing association with the government particularly but not limited to the OLF/OLA targeting her and the children because of her husband’s actions. The applicant said that his offending post was a one-off and that he has managed to [work for] both the former regime and the new regime in what are important [positions], which is indicative of someone who is politically astute and highly unlikely to make a similar mistake again.
The applicant and the children are once removed from a politically astute [occupation], and they will not be living together or associated in any way such that any potential persecutors would be able to identify and then commit to harming him by way of harming her and the children. This leads me to find that the applicant’s husband through the course of his career into the reasonably foreseeable future will not be a cause of harm to the applicant and their children. As such I find that the applicants do not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal arising from the husband/father.
Being Oromo and the children perceived as Somali
I acknowledged the evidence that was provided on her behalf from The Ethiopian News which described a radicalised ethnic Oromo nationalist’s call for all Oromo women not to marry “habesha” (a reference to ethnic Amhara and Tigre). In the article, the activist is cited as calling for an end to inter-ethnic marriage for the sake of the “Oromo struggle.” The article also refers to a ‘pattern of thinking very common among radical ethnic-Oromo nationalists’ that is against inter-ethnic marriages. But I noted at the hearing that this was just one individual’s views. She said that her individual circumstances are unique and that there are a lot of problems not seen publicly.
While I accept that the Oromo nationalist had said what she said, it is of note that others reported in the same article criticised her and suggested that her views amounted to hate speech and that there is a new law that prohibits hate speech.[14] When this was put to the applicant she said that there is lawlessness in the country and that bad comments and insults are prohibited but no one pays attention to the prohibitions.
[14] A woman calls for an end to inter-ethnic marriage for the sake of “Oromo struggle”, March 9, 2020, >
But in considering the weight I should place on the views of a nationalist Oromo activist I note it is like a foreigner quoting a neo-Nazi in Australia and the thinking among far-right nationalists, while relevant, it would hardly be representative and hence weighs less when considering its impact. Furthermore, there is no evidence to suggest that nationalist Oromos are seeking to harm anyone who has married another ethnicity.
I acknowledge the evidence provided by way of letter from the [Organisation] President, specifically, ‘will be putting their lives at risk returning to their home country as this is what happens to many Oromo people.’ While I accept that the author brings some perspective to this assessment, I note that they were not available to the Tribunal to engage on this issue and that as a community group there is an inherent bias that leads me to diminish the weight I place on this evidence.
The applicant believes that the conflict between Somali and Oromo is ongoing and that his poses a risk to her children. I asked if every child of Somali decent is at risk from Oromos. She said that she doesn’t know about that. We discussed country information that indicated mixed marriages are ‘relatively common.’[15] She acknowledged that they are common but added that her case is different because there is a problem between these two ethnic groups.
[15] >
In considering the risk that the applicant and her children face from the community I have taken a broad approach to the concept of harm including not just violence but limiting access to education or verbal abuse. When considering that the applicants would be returning the capital, Addis Ababa, the passage of time since the conflict which had occurred in a different location in Ethiopia, and the lack of evidence that anyone is seeking to harm Oromo or Somali due to their ethnicity, I find that the applicants do not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal arising from their ethnicity from the community.
The plight of the children
The applicant said that her children can understand the Oromo language but not speak it. She said that they will face harm foregoing what they have in Australia and establishing lives in Ethiopia. I put to her that there are children of businessmen, diplomats and foreign workers who have children who presumably would face the same challenges, and asked why her children would not be able to overcome such challenges upon return as others have in the past and would into the future. She said that the children have been in Australia for ten years and they haven’t heard an Ethiopian language. She said that her eldest daughter is in Year [Number], and she is grown up making it difficult to learn. While I appreciate that there can be difficulties for children moving to unfamiliar or partially familiar countries that spans across social integration through language and education, no independent evidence was provided regarding this claim. As it is not an uncommon occurrence there is no basis to speculate that the applicant’s concerns are well-founded. For this reason, I find that the applicants do not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal as a result of the challenges they will face integrating into the Ethiopian community.

The applicant’s fears of losing custody are that her ex-partner would take their daughters to his home area and into a community that practices female genital mutilation. Considering that I have found that the husband will not pursue custody, as such there is no risk that the children will be taken to Somali region to live with his family. As such I do not consider further the feared consequences.
We discussed the specific circumstances of each child and whether there were unique issues that needed to be considered for each. For her oldest daughter she said that she doesn’t know the language and the culture and would have to start from the beginning and would lose everything that she has built. I put to her that her language skills would be highly valued to international organisations as there are a lot of them in Addis Ababa.[16] The applicant acknowledged that it would be for some people, but she would have to adjust herself to the new situation. She noted that her daughter is interested in [Activity 1] and [information about activity]. She said that her two boys are interested in [Sport] and are very talented with the younger son being recruited by [Team]. She said that they would lose these opportunities. She said that her youngest daughter who is six years old loves [Activity 2] and would lose that opportunity.
[16] >
While each of the children will have some material loss of opportunity, none of these are such that amount to serious or significant harm. As such I find that the children do not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal arising from the loss of similar opportunities to those they access in Australia.
The applicant’s status as an Oromo female, single and divorced
The applicant claimed that she faces harm arising from her status as a single divorced mother. I noted that country information shows that about 25% of ever-married women were divorced from their first marital relationship and out of women who experience divorce, 34.2% of them were divorced at the time of the survey.[17]
[17] Factors associated with divorce from first union among women in Ethiopia: Further analysis of the 2016 Ethiopia demographic and health survey data, Plos One, December 2020 >
I put to her that being divorced, or a single mother[18], is not unusual in Ethiopia. She said that this information relates to the country overall but in her area where she was born or grown up that is not the practice. I noted that if that is the case then in Addis Ababa, where she would be returning to, it would be even higher statistically and so even more the social norm. She said that she doesn’t have that information, and from what she knows it is perceived to be a bad thing.
[18] >
Based on the prevalence of single divorced women in Ethiopia and the lack of evidence to suggest that they face harm because they are single divorced women, and considering the specific circumstances of the applicant in that there are no extenuating circumstances that I have accepted which would put her at risk as a single divorced woman, I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal arising from her status as a single divorcee Oromo mother. As such any further consideration of her lack of protection by a male is irrelevant.
We discussed her ability to find work as she claimed that she would be unable to. Her past work history was listed in her application as follows:
[Years, Job titles, Workplaces in Addis Ababa and regional city]
I noted that [workplace] work is prestigious, and she was able to obtain it. She said that she hasn’t worked for the last ten years, hasn’t studied, or read anything and that people are not able to find work.

100. I noted that labour workforce data shows that the female participation rate in the workforce is about the same as in Australia and as such she wouldn’t face challenges finding work because of her gender.[19] She said that such information was only on paper.
[19] The applicant has four siblings, a sister who is taking care of their mother, a sister in Australia and two brothers. I presented evidence about Ethiopian culture and the importance of family ties, namely that many Ethiopians feel a strong obligation to support kin that may seem ‘distantly’ related by Western standards. The applicant said that this was true, but someone like her who has been in a foreign country and never supported them would not be supported in return.
102. I find that the applicants will be able to draw on some, albeit minimal and temporary support, from her and their extended family members for reasons of cultural obligation. I note that the applicant has lived in Addis Ababa before and as such is familiar with the city. She will this time have four children, one who is old enough to play some contributing role to the family. Given the employment statistics discussed with the applicant at the hearing I find that the applicant will be able to find work, I find that she will be able to receive an income that will support her children no differently than the large portion of the population of divorced and single women do. I accept that this will create some degree of hardship, but I find the hardship does not amount to serious or significant harm.
103. As I have found that the mother does face hardship, I now turn my mind to how that would impact the children. I note that some, particularly the younger children, would be more vulnerable to their mother having a diminished capacity arising from the hardship but even so, along with the support that the eldest child can offer in whatever form it takes, when considered across the family I find that none of the children will face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal.
Having sought asylum and having lived in a Western country
104. I put to the applicant that there is no evidence to suggest that people who return from overseas having applied for asylum are somehow harmed or targeted which was another foundation of her claim to fear returning. She said that they know that she is asking for asylum, they know when she left and that her passport indicates this. She said that they take it as treason. I asked for evidence of this claim. She said that she has seen this before, but I noted that it was the case before under a previous regime, but I haven’t seen it reported as being practiced under Abiy. She said that his government is just 5-6 years old and what they are doing will be revealed in the future and not now. Based on the evidence before me I find that the applicants do not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal for reasons of having sought asylum in Australia.
105. We discussed her fears of returning from a Western country and there being a perception that she is wealthy and arising from this that she would be targeted. While I accept that the family will be identifiable for having lived in the West, I suggested that this would ultimately depend upon where she lived and how she lived. I suggested that if she returned to live as a single mother in a poorer suburb with her children, there would be no confusion on the level of her wealth. She said that at the local level they would know each person’s circumstances but not when you come new to a place where you have no connection, and nobody knows you. I put to her that she did that before when she moved to Addis Ababa and yet was able to establish herself. She said that it was different then, she had only one child, but now she has grown up children who only speak English.
106. The applicant claimed that the children would be easily identifiable as they have lived abroad for so long. I asked for information that suggests foreign born or those raised outside of Ethiopia are targeted. She said there is a practice that young children who return to Addis are kidnapped for ransom. I said that I undertook searches to find evidence of such occurrences, but none were found such that it would indicate that she or her children would face a real chance or real risk of it occurring to them in in Addis Ababa. She said that it is widespread because of the economic situation. I note no country information supporting such claims was provided to the Tribunal. I find that the applicants do not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal arising from kidnapping or targeted harm for those who have lived extensively in the West.
Other considerations
107. The applicants are Muslim. No claims were made regarding their faith, but for the purposes of completeness I note that no evidence arises from the material before me that someone of the applicants’ profile would face any degree of harm or increased risk for reasons of being Muslim.
Cumulative
108. In considering the applicants’ overall levels of risk I note that some of her circumstances overlap and amplify the exposure to possible harm whereas other risks are in isolation. For example, that the applicants’ family and the first named applicant’s own political history and that she is Oromo increases the first named applicant’s risk profile to potential government persecutors. This could make it easier for her husband to seek to wield influence over her. Conversely, the risks she faces from the community would not be influenced by her political background but the children, if identified as Somali, would face increased risks during times of escalated tensions between the Oromo and Somali people. That they sought asylum would not factor into any cumulative consideration, but that they came from a Western country and had a foreign accent or stilted language skills would further expose the children but only if there were tensions such that they would be at risk in the capital. As noted above, that the applicant would be living as a single divorcee in a poorer section of the capital would counter-intuitively insulate her and her children from some of the preconceived notions arising from coming from the West.
109. When considering all of the combinations of the considerations above and how they interact between each other I find that even when considered cumulatively the applicants do not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal.

For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION

111. The Tribunal affirms the decision not to grant the applicants protection visas.
Denis Dragovic
Deputy President

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.
…

[2024] AATA 3401

10 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction