Evw20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 259
•22 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EVW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 259
File number(s): MLG 4056 of 2020 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 22 March 2024 Catchwords: MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – protection (Class XA) visa – consideration of whether Tribunal failed to consider applicant’s claim to fear harm due to heightened risk of civil unrest and conflict – finding that claim not expressly made and did not clearly arise on the material – consideration of whether Tribunal failed to identify place where applicant was to return – where it was unclear on material before Tribunal where applicant would return if returned to Ethiopia – materiality – jurisdictional error established – writ of certiorari issued – order for costs. Legislation: Migration Act 1958 (Cth), ss 5H, 5J, 36, 65 Cases cited: APE16 v Minister for Home Affairs (2020) 277 FCR 640
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
AWT15 v Minister for Immigration and Border Protection [2017] FCA 512
AYY17 v Minister for Immigration (2018) 261 FCR 503
BCX16v Minister for Immigration and Border Protection [2019] FCA 465
CSO15 v Minister for Immigration and Border Protection (2018) 260 FCR 134
DQU16 v Minister for Home Affairs (2021) 273 CLR 1
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1
Division: Division 2 General Federal Law Number of paragraphs: 104 Date of last submission/s: 11 October 2023 Date of hearing: 11 October 2023 Place: Melbourne Counsel for the Applicant: Ms E Brumby Solicitor for the Applicant: Victoria Legal Aid Counsel for the Respondents: Mr J Lessing Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 4056 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EVW20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
22 MARCH 2024
THE COURT ORDERS THAT:
1.A writ of certiorari be issued directed to the second respondent quashing the decision dated 28 October 2020.
2.A writ of mandamus be issued directed to the second respondent requiring it to reconsider and determine the applicant’s application according to law.
3.The first respondent pay the applicant’s costs in a sum to be fixed if not agreed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
This is an application for judicial review of a decision by the Administrative Appeals Tribunal (‘the Tribunal’) made on 28 October 2020. By that decision, the Tribunal affirmed a decision of a delegate of the then Minister for Home Affairs (‘the Minister’) to refuse the applicant a protection (Class XA) visa (‘protection visa’) under section 65 of the Migration Act 1958 (Cth) (‘the Act’).
BACKGROUND
The applicant is a citizen of Ethiopia.[1] She is of Muslim faith and Amhara ethnicity.[2]
[1] Court book at page 25.
[2] Court book at page 27.
On 20 September 2016, the applicant arrived in Australia under a Subclass 600 Sponsored Family Visitor visa.[3]
[3] Court book at page 104.
Application for protection visa on 10 November 2016
On 10 November 2016, the applicant applied for a protection visa whilst in Australia.[4]
[4] Court book at page 10 and following.
In her application, the applicant claimed to fear harm on the basis of her involvement in pro-democratic and human rights protests and activities (alongside her former husband) in Ethiopia, her Amhara ethnicity and her religion as a Muslim.[5]
[5] Court book at pages 43 to 45.
On 18 May 2018, the applicant was notified by letter that a delegate of the Minister had refused her protection visa application.[6] The delegate’s decision record is at pages 104 to 129 of the court book.
[6] Court book at pages 100 to 103.
Application for review in the Tribunal on 24 May 2018
On 24 May 2018, the applicant filed an application for review of the delegate’s decision in the Tribunal.[7]
[7] Court book at pages 134 to 135.
By letter dated 16 September 2020, the applicant was invited to attend a hearing scheduled for 13 October 2020.[8] The applicant attended the hearing, accompanied by her daughter and their family friend, Mr Wanaw, and was assisted by an Amharic interpreter.[9]
[8] Court book at page 150 and following.
[9] Court book at pages 170 to 172.
On 29 October 2020, the Tribunal affirmed the decision of the delegate to refuse to grant the applicant a protection visa.[10]
[10] Court book at page 176.
TRIBUNAL DECISION
The Tribunal’s decision record of 28 October 2020 is at pages 177 to 200 of the court book.
At paragraphs [6] to [10] of its decision record, the Tribunal sets out the statutory criteria for a protection visa.
At paragraphs [12] to [13], the Tribunal accepted the applicant as a citizen of Ethiopia, with that being her receiving country for the purposes of the protection visa application. At paragraph [14], the Tribunal considered the applicant’s migration history.
At paragraphs [15] to [16], the Tribunal outlined the applicant’s claims as set out in her protection visa application in some detail, which I do not propose to set out in full.
At paragraphs [17] to [34], the Tribunal outlined the evidence and further claims presented at the Tribunal hearing by the applicant. Relevantly, the applicant stated that:
(a)she is a Muslim of Amharic ethnicity originating in Gonder, Ethiopia;[11]
[11] Tribunal decision record dated 28 October 2020 at paragraphs [17] to [18].
(b)she has several children, including one daughter who is an Australian citizen and several other children in Ethiopia;[12]
[12] Tribunal decision record dated 28 October 2020 at paragraph [19].
(c)she had limited education, finishing school in year 4;[13]
[13] Tribunal decision record dated 28 October 2020 at paragraph [20].
(d)she was married at 15 years of age to her first husband, who was a member of the Ethiopian People Revolutionary Democratic Front (‘EPRDF’) and was a vocal critic of the Ethiopian government at the time;[14]
(e)her first husband was imprisoned for over four months and tortured and killed as a result of his involvement with the EPRDF in 1979;[15]
(f)in or about 2011, one of her sons was taken from a mosque during Ramadan to prison, although it was not clear from the applicant’s evidence why this occurred or the circumstances surrounding this;[16]
(g)four years before coming to Australia, the police came to question her and accused her of being a committee member of the Muslim Community Committee (‘the committee’), an organisation where members would pool their money which would be applied for the benefit of members by paying for or subsidising special events such as weddings or funerals;[17]
(h)she had been in prison, although she did not provide any evidence in relation to the circumstances of her detention;[18]
(i)she travelled to Australia due to her daughter having a baby and has lived with her daughter since arriving in Australia;[19]
(j)her sister informed her approximately one month after arriving in Australia that the Ethiopian authorities had come looking for her, had searched her house in Ethiopia and found some paperwork and money which indicated her involvement with the committee;[20]
(k)the authorities accused her of using the money they had found in her house for ‘other purposes’,
(l)her sister told the authorities that the applicant was in Australia, which resulted in the authorities taking another of the applicant’s sons to prison; and
(m)the Ethiopian president had made statements about the Amhara people which she claimed expressed his desire for them to be ‘obliterated piece by piece’, although it was not clear which specific comments of the Ethiopian president she was referring to.[21]
[14] Tribunal decision record dated 28 October 2020 at paragraph [21].
[15] Tribunal decision record dated 28 October 2020 at paragraphs [21] to [22].
[16] Tribunal decision record dated 28 October 2020 at paragraph [27].
[17] Tribunal decision record dated 28 October 2020 at paragraph [28].
[18] Tribunal decision record dated 28 October 2020 at paragraph [29].
[19] Tribunal decision record dated 28 October 2020 at paragraph [30].
[20] Tribunal decision record dated 28 October 2020 at paragraph [31].
[21] Tribunal decision record dated 28 October 2020 at paragraph [32].
At paragraphs [35] to [39], the Tribunal outlined the evidence given by the applicant’s Australian daughter. Relevantly, the Tribunal noted that the applicant’s daughter said the applicant’s life had been ‘very difficult and hard’, and also that her father had been killed in 1979, that her brother had been taken by the authorities in 2012 and that it was ‘generally hard and scary for Amara people in Ethiopia’.
The applicant’s family friend also gave evidence at the hearing, which is outlined at paragraphs [40] to [44] of the Tribunal’s decision record. His evidence to the Tribunal also referred to the applicant’s difficult life, the death of the applicant’s husband, that the applicant had been a prominent member of the committee and was suspected by the authorities as being against the Ethiopian government.
He further stated that the applicant’s son was placed in prison for four months following the Ethiopian authority’s search of the applicant’s house, that there was a Muslim revolt, following which the applicant’s son became the ‘head of the committee 17’ and was heavily involved in ‘Deno Ali’, and that the current Ethiopian president had made statements desiring for the Amhara people to be ‘obliterated piece by piece’.[22]
[22] Tribunal decision record dated 28 October 2020 at paragraphs [41] to [44].
At paragraph [45], the Tribunal indicated that it had regard to country information prepared by DFAT, including a DFAT report on Ethiopia dated 12 August 2020.
At paragraphs [46] to [49], the Tribunal set out how issues of the applicant’s credibility ought be determined. At paragraph [50], the Tribunal then set out various findings of fact that it was prepared to make, having regard to the applicant’s evidence.
In particular, at paragraphs [51] to [55], the Tribunal assessed, and accepted, that if the applicant was found to have a well-founded fear of persecution on the basis of being of Amhara ethnicity, or on the basis of her religion, her claims would fall within the scope of section 5J(1)(a) of the Act.
At paragraphs [56] to [59], the Tribunal then outlined the necessary elements to establish that a person has a well-founded fear of persecution, and importantly, that this requires more than mere subjective belief. Ultimately, at paragraph [60], the Tribunal concluded that it did not accept that the applicant had a well-founded fear of persecution if she were to return to Ethiopia, on either an objective or a subjective basis.
At paragraph [61], the Tribunal set out its assessment of the applicant’s claims and while it was prepared to accept some elements of the applicant’s claims, it concluded that the applicant ‘did not present to the Tribunal as a credible witness as she appeared to have embellished or fabricated her evidence in support [of] her claim’. In particular, the Tribunal noted the lack of detail in the applicant’s claims and evidence.
The Tribunal also noted the inconsistency of the evidence submitted by the applicant to it and the claims outlined in her application for protection, for example, her statement in her protection visa application that she ‘protested the annexation of Amhara land by Tigray’ and was accused of ‘having promoted extremist activity and inciting unrest in the area’, yet claiming in her evidence to the Tribunal that the authorities had searched her home and found paperwork and money relating to her involvement in the committee.[23]
[23] Tribunal decision record dated 28 October 2020 at paragraph [61].
At paragraphs [62] to [66], the Tribunal considered evidence from the applicant, as well as country information, and accepted that her first husband was involved with the EPRDF and was arrested, tortured, and died in prison as claimed. However, at paragraph [66], the Tribunal went on to note that given the period of time that had passed since her husband’s death and the fact that the EPRDF and its successor bodies had ruled Ethiopia since 1991, it did consider there to be a real chance she would be seriously harmed if she returned to Ethiopia as a result of her first husband’s involvement with the EPRDF in the 1970s.
At paragraphs [67] to [75], the Tribunal considered the applicant’s claims to fear harm based on her Amhara ethnicity, specifically in light of the applicant’s claim that she is at heightened risk of coming to the attention of the Ethiopian authorities since the election of Prime Minister Abiy Ahmed Ali. The Tribunal also considered country information detailing the political history of the Amhara people and inter-ethnic conflict.[24]
[24] See Tribunal decision record dated 28 October 2020 at paragraph [67].
At paragraph [73], the Tribunal noted the applicant’s claims that Prime Minister Abiy Ahmed Ali had made recent statements that he wished to harm the Amhara people. The Tribunal observed that no evidence was produced to support this claim, nor was the Tribunal able to find any reference to such statements in the country information or otherwise. Accordingly, the Tribunal placed no weight on this claim.
At paragraph [74], the Tribunal considered reports that ‘Amhara have been the subject of ethnic-based attacks in states where they do not constitute a majority … [and] Amharas face a moderate risk of violence in areas or states where they are a minority’. However, it concluded that on the applicant’s own evidence, the applicant’s sister and her family were safe in Gonder, and therefore, she was not likely to be harmed upon return to Gonder.[25]
[25] Tribunal decision record dated 28 October 2020 at paragraphs [74] to [75].
At paragraphs [76] to [80], the Tribunal considered the applicant’s claims to be a prominent member of the Amhara community as part of a Muslim community committee. Whilst it accepted that she was part of the community committee, it did not accept that this involvement would mean ‘she would have been considered a prominent member of the community to the extent that she would have come to the adverse attention of the authorities as a threat to the government’ and face a real chance of being seriously harmed.[26] Nor did it accept that there was anything in the applicant’s background or evidence which would suggest that she had come to the attention of the authorities as a threat to the government.[27]
[26] Tribunal decision record dated 28 October 2020 at paragraph [77].
[27] Tribunal decision record dated 28 October 2020 at paragraph [78].
Ultimately, the Tribunal did not accept that ‘the applicant was a prominent member of the Amhara community and seen as a threat by the authorities as claimed’.[28] It therefore did not accept that she was of interest to the authorities or that there was a real chance that she would be seriously harmed if she returned to Ethiopia for this reason.
[28] Tribunal decision record dated 28 October 2020 at paragraph [80].
At paragraph [81], the Tribunal considered the applicant’s claim to fear harm due to her participation in protests relating to the annexation of Amhara land by the Tigray and their influence over the government. The Tribunal again expressed concern about the lack of detail provided by the applicant about her involvement in these protests. The Tribunal therefore concluded that absent adequate detail or supporting evidence, it did not accept that she had been involved in these protests as claimed.[29]
[29] Tribunal decision record dated 28 October 2020 at paragraph [83].
At paragraphs [82] and [83], the Tribunal went on to consider country information which suggested that even if the applicant had been involved in these protests, they occurred prior to Prime Minister Abiy Ahmed Ali coming to power, and as such, issues such as the annexation of Amhara land were no longer a risk. The Tribunal therefore concluded that there was no real chance of harm to the applicant as a result of these protests, even if contrary to its primary finding, she had participated in them.
At paragraphs [84] to [91], the Tribunal further considered the applicant’s claims that she would face harm in Ethiopia as a Muslim, especially given her membership of the committee. The Tribunal again noted the absence of any evidence of her involvement in the committee or that she had been harassed or threatened as a result of her work with the committee. The Tribunal therefore concluded on the basis of the applicant’s own evidence that whilst she was involved in a committee which was established to raise funds for members of the community and distribute them to people in need, it did not accept that this committee was established to fight for the ‘rights and freedoms of Muslims’.[30] It therefore did not accept that the applicant had been targeted as a result of this involvement; nor did it accept that she was a prominent member of this committee such that she was considered a threat to the government.
[30] Tribunal decision record dated 28 October 2020 at paragraph [84].
The Tribunal also found the applicant’s claims and evidence about the raids on her property in Ethiopia to be unconvincing.[31] In particular, the Tribunal noted that although the applicant was in contact with her sister in Gonder, her sister was not called to give evidence in support of her claims. The Tribunal therefore did not accept that the applicant’s home had been raided, and consequently, did not accept that there was a real chance that she would be harmed as a result if she were to return to Ethiopia.
[31] See Tribunal decision record dated 28 October 2020 at paragraph [86].
At paragraphs [87] to [91], the Tribunal considered country information that freedom of religion is enshrined in the constitution, Muslims are one of the two largest religious groups in Ethiopia and people are generally able to practice their religious beliefs openly. It noted that DFAT assesses there to be a low risk of official and societal discrimination or violence based on religion. The Tribunal therefore concluded that the applicant did not face a real chance of suffering serious harm on the basis of her religion.[32]
[32] Tribunal decision record dated 28 October 2020 at paragraph [91].
At paragraphs [92] to [94], the Tribunal detailed the applicant’s claims relating to the detention and abuse of her son, who was a journalist, and her claim that she too was detained in prison for a week after visiting him in prison. The Tribunal did not accept that the applicant, her son or other members of the applicant’s family were engaged in any anti-government campaigning as claimed.[33] Nor did the Tribunal accept that the applicant or her son were imprisoned as claimed,[34] or that her son was taken away by the authorities in her absence.[35] At paragraph [98], the Tribunal additionally noted that in circumstances where there has been a change in Prime Minister, ‘the basis of the applicant’s involvement as an anti-government campaigner is no longer relevant’.
[33] Tribunal decision record dated 28 October 2020 at paragraph [95].
[34] Tribunal decision record dated 28 October 2020 at paragraph [96].
[35] Tribunal decision record dated 28 October 2020 at paragraph [97].
The Tribunal therefore concluded that there was not a real chance the applicant would suffer harm because of her son having been arrested or imprisoned as claimed.[36]
[36] Tribunal decision record dated 28 October 2020 at paragraph [99].
At paragraphs [100] to [102], the Tribunal considered the applicant’s daughter’s evidence that the applicant suffered from a mental condition as result of the trauma she had suffered in Ethiopia. The Tribunal noted that no evidence was provided by the applicant’s daughter about what the applicant’s mental health condition was, and that no medical evidence was produced to the Tribunal regarding the applicant’s mental health.
Having regard to the totality of the evidence adduced by the applicant, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under section 5J(1) of the Act, or that the applicant was a refugee pursuant to section 5H of the Act. Consequently, the Tribunal found that the applicant did not satisfy the criterion set out in section 36(2)(a).[37]
[37] See Tribunal decision record dated 28 October 2020 at paragraphs [101] to [102].
The Tribunal then went on to consider whether the applicant’s claims satisfied the complementary protection criterion under section 36(2)(aa) of the Act and concluded that they did not.[38]
[38] Tribunal decision record dated 28 October 2020 at paragraphs [103] to [109].
The Tribunal therefore affirmed the decision of the delegate not to grant the applicant a protection visa.[39]
[39] Tribunal decision record dated 28 October 2020 at paragraph [113].
PROCEEDINGS IN THIS COURT
On 20 November 2020, the applicant filed her application for judicial review in this court, along with an affidavit in support. At the time of initiating proceedings, the applicant was self-represented.
On 15 September 2023, the applicant, now legally represented, filed a further amended application, in which she relies upon three grounds of review.
The matter came on before me for hearing on 11 October 2023. Both parties were represented by counsel and had filed written submissions upon which they relied.
GROUNDS OF REVIEW
Ground 1
By ground 1, the applicant asserts that:
1.The Tribunal failed to consider a claim emerging clearly from its own findings and the materials before it, namely, that the Applicant faced a real risk of significant harm if returned to Ethiopia, within the meaning of s 36(2)(aa) of the Migration Act 1958 (Cth), due to a heightened risk of violence and a deteriorating security situation in the region to which the Tribunal found the applicant would return.
Particulars
i.The Tribunal found the region of Ethiopia to which the applicant would be returning was Gonder, Ethiopia (in Amhara State) (at [74]).
ii.The materials before the Tribunal, including the DFAT Country Information Report for Ethiopia dated 12 August 2020, squarely indicated a deteriorating security situation and an increase in violent conflict in parts of Ethiopia, and specifically, Amhara State.
iii.The Tribunal assessed whether the applicant faced a risk of harm in Gonder by reason of, relevantly, her ethnicity (under s 36(2)(a) of the Migration Act).
iv.The Tribunal did not consider whether the applicant’s residency in Gonder was, of itself, a circumstance that exposed her to a real risk of significant harm if returned to Ethiopia, by virtue of the escalating violence in that region.
v.The Tribunal’s failure to consider whether the applicant was owed complementary protection due to the risk of significant harm if she was returned to Ethiopia by reason of the deteriorating security situation in the region to which she would return had the consequence [that] the Tribunal’s decision was affected by jurisdictional error.
By this ground, the applicant submits the Tribunal failed to consider a claim which clearly emerges from the material before it, namely, that whilst the Tribunal clearly considered whether the applicant faced a risk of harm due to her ethnicity in Ethiopia, and more specifically, in Gonder, the Tribunal erred in considering whether the applicant met the complementary protection criteria under section 36(2)(aa) of the Act.
It is submitted for the applicant that in considering whether, as a necessary and foreseeable consequence of the applicant being removed from Australia and returned to Ethiopia, there was a real risk that the applicant would face significant harm, the Tribunal did not consider whether such harm might arise from the increased civil unrest in the Gonder region per se, rather than any particular attribute pertaining to the applicant. It is submitted that this claim clearly emerges from the material before the Tribunal when regard is had to the DFAT report to which the Tribunal referred.
There are therefore two issues which arise in considering this ground:
(a)the first is whether a claim to fear harm due to the heightened risk of civil unrest and conflict in Gonder clearly arose on the material before the Tribunal; and
(b)if so, the second issue is whether the Tribunal considered any such claim.
Did the claim arise on the material before the Tribunal?
The principles that apply when determining whether it can be said that a claim clearly emerges from the material before the Tribunal are not in contention between the parties.
These principles were recently summarised by the Full Court of the Federal Court in AYY17 v Minister for Immigration (2018) 261 FCR 503 at paragraph [18] and following as follows:
18. … In that regard, we note that:
•The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) … per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.
•The Tribunal is only required to consider such claims where they are either:
(a) the subject of substantial clearly articulated argument, relying on established facts; or
(b)clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) per Black CJ, French and Selway JJ … and AWT15 v Minister for Immigration and Border Protection … per Barker J …
…
•As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):
(a) such a finding is not to be made lightly (NABE at [68]);
(b) the fact that a claim might be said to arise from materials is not enough (NABE at [68]);
(c) to clearly emerge from the materials, the claim must be based on ‘established facts’ (SZUTM v Minister for Immigration and Border Protection … per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:
37.While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.
38.Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on ‘established facts’. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must ‘emerge clearly from the materials before the Tribunal and should arise from established facts’. I agree with the primary judge's approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.”
(d)while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and
(e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant's claims are presented over time.
While the parties agree in relation to the principles, there is a dispute between them as to how they are to be applied to the facts in this matter.
As noted by both parties, there is no precise standard by which a court can determine whether a claim can be said to have arisen on the material before the Tribunal.[40] Each case must be determined on their own facts. For example, an unarticulated claim may be said to have clearly emerged from the decision maker’s own reasons and the material upon which those findings were made.[41]
[40] Applicant’s Outline of Submissions filed on 24 July 2023 at paragraph [16]; Minister’s Outline of Submissions filed on 3 August 2023 at paragraph [41.3.4].
[41] AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at [26].
The Minister submits that whether a claim clearly emerges from the material before the Tribunal cannot be assessed in a vacuum.[42] It must be viewed and determined in the context of the manner in which the applicant’s claims have been presented over time.
[42] Minister’s Outline of Submissions filed on 3 August 2023 at paragraph [41.3].
Relevantly, it is submitted for the Minister that the applicant’s main narrative was that her first husband had been politically active and was ultimately killed by the authorities as a result.[43] She further claimed that she subsequently became a prominent member of the Amharan community and was involved in community organisations, participated in protests and thereby came to the attention of the authorities.
[43] Court transcript at page 13.
As noted above, the applicant claimed that after she left Ethiopia to come and visit her daughter in Australia, she was told by members of her community that her home had been raided by the authorities and that they had found documents and money which they believed evidenced her involvement in anti-government activities. The applicant’s claims also included allegations that her son and other members of her family had been taken after the raid on her home and that she did not know where they were.
In support of ground 1, it is submitted for the applicant that a claim that she faced risk of harm on return due to the increased risk of civil unrest in the area to which she was likely to return clearly arose in circumstances where:[44]
[44] Applicant’s Outline of Submissions filed on 24 July 2023 at paragraph [18].
·the Tribunal concluded that the applicant would return to Gonder in the Amhara region at paragraph [74] of its decision record; and
·the Tribunal had before it a DFAT Country Information Report for Ethiopia dated 12 August 2020 (‘the DFAT Report’) to which it had regard, and which contained the following:
2.50The 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 … and Amhara-Tigray state borders. Inter-ethnic clashes have caused death, the destruction of property and large-scale internal displacement – Ethiopia recorded the most conflict-related internal displacement in the world in 2018 … Ethnic militias have proliferated in the states, and weapons are readily available. Addis Ababa has largely been immune from this instability to date.
…
2.54In June 2019, the chief of staff of the National Defence Force (head of the military) … and the president of Amhara State, … were assassinated in concurrent events in Addis Ababa and Bahir Dar (Amhara State). Both were allied to Prime Minister Abiy, who characterised the assassinations as a failed coup attempt. The alleged ringleader … the chief of security in Amhara State, was killed by government forces. … Federal government forces were deployed to Amhara State and Addis Ababa, and a weeklong internet blackout was imposed nationally, in the wake of the alleged coup. Abiy was earlier the subject of a grenade attack at a pro-government rally in Addis Ababa. The authorities described the June 2018 incident as a failed assassination attempt, and five people were charged with terrorism offences. The attack killed two people and injured more than 100.
…
3.81Regional border disputes and inter-ethnic clashes have driven large-scale internal displacement in much of the country. Around 3.5 million Ethiopians have been internally displaced since the beginning of 2018. Of these, at least 3 million have been conflict-induced. By way of contrast, Ethiopia had only 200,000 conflict-induced IDPs in September 2017. Conflict-induced displacement – usually over access to land and other resources – has occurred countrywide, including in Amhara … The most significant displacement has occurred as a result of clashes between the Guji Oromo and Gedeo ethnic groups int the West Guji Zone of Oromia State, where the two communities share some of the most densely-populated farmland in Ethiopia … and along the Oromia-Somali state border. … According to the International Organisation for Migration (IOM), there were 1,256 sites for IDPs as of June 2019. Conditions in IDP sites are generally poor, with some sites having one latrine per 300 people. The IOM and UNHCR provide humanitarian assistance to registered IDPs. Unregistered IDPs and/or those living in informal sites are ineligible for assistance.[45]
[45] Affidavit of Tessa Maybery affirmed and filed on 24 July 2023 at Annexure A.
The Tribunal also found that ‘[u]nrest in the Amhara region has led to further conflict’.[46]
[46] Tribunal decision record dated 28 October 2020 at paragraph [70].
The applicant submits that the reasoning of Justice Charlesworth in BCX16v Minister for Immigration and Border Protection [2019] FCA 465 (‘BCX16’) at paragraph [23] equally applies in this case.[47] In BCX16, the applicant claimed to fear persecution for a range of convention reasons for the purposes of section 36(2)(a) of the Act and also expressly claimed to fear harm if he were to be returned to Kabul under section 36(2)(aa) of the Act by reason of the deteriorating security situation in Kabul.
[47] Applicant’s Outline of Submissions filed on 24 July 2023 at paragraph [21].
Unlike BCX16, no such express claim was made in this case. The error in that case arose from the way in which the Tribunal misapplied section 36(2B)(c) and therefore failed to consider the criterion in section 36(2)(aa).
The Minister submits that the reasoning in BCX16 does not assist the applicant, and points to the statement by Chief Justice Gleeson in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at paragraph [1], where his Honour said that the Tribunal’s decision ‘must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant's lawyers, at some later stage in the process’.[48]
[48] Minister’s Outline of Submissions filed on 3 August 2023 at paragraph [42].
It is well-settled that the tests under section 36(2)(a) and 36(2)(aa) of the Act are different and that they are not interchangeable. As noted by the High Court of Australia in DQU16 v Minister for Home Affairs (2021) 273 CLR 1 at paragraph [18]:
18.… the statutory questions are different: they are not interchangeable. And they are different because the purpose of the inquiry under each provision is different37. Determining whether a person has a well-founded fear of persecution for a Convention reason under s 36(2)(a) is a fundamentally different inquiry to the question in s 36(2)(aa). Section 36(2)(a) seeks to define when a protection visa will be granted to a person seeking refuge. Under s 36(2)(aa), the question is whether a person can be returned to a particular State: and the provision is formulated by reference to the consequences of a non-citizen's removal to a particular State.
In considering whether the criteria in section 36(2)(aa) are satisfied, however, the question is not limited to whether the applicant faces fear of persecution on their return due to a convention reason. Rather, the inquiry is whether the decision-maker (in this case the Tribunal on review) ‘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’.[49]
[49] Migration Act 1958 (Cth), s 36(2)(aa).
It is submitted for the applicant that the Tribunal erred by limiting its inquiry to whether the applicant would be at risk on her return due to a nominated convention reason, namely her race, her religion or her political activity.[50] The applicant say that the Tribunal therefore failed to consider whether she would be at risk of significant harm on her return due to the increased civil unrest and conflict in the Amhara region, which includes Gonder.[51]
[50] Applicant’s Outline of Submissions filed on 24 July 2023 at paragraph [14].
[51] Applicant’s Outline of Submissions filed on 24 July 2023 at paragraph [15].
I accept that there was evidence before the Tribunal that there was a deterioration of the security situation in the Amhara region, and that the Tribunal found that as a matter of fact, the applicant would be returning to Gonder in the Amhara region. The applicant did not expressly state that she feared harm if she were to return to Gonder due to the worsening security situation there. However, the issue raised by ground 1 is whether such a claim clearly arose on the material before the Tribunal.
For the following reasons, I find that it did not.
The applicant did not say that she feared harm due to the deteriorating security situation in Gonder. To the extent that the applicant claimed to fear harm if returned to Gonder, it was because of her ethnicity, her religion and her involvement in ani-government activities. The Tribunal considered these claims, including in the context of considering whether her circumstances engaged Australia’s complementary protection obligations.
Whilst the applicant points to various findings made by the Tribunal about the security situation in the Amhara region as a basis for her argument that a claim to fear harm due to the worsening security situation clearly arose on the materials before it, I note that the Tribunal’s findings and references to the DFAT report relate to the worsening security situation due to inter-ethnic clashes. Moreover, as submitted for the Minister, the Tribunal’s findings at paragraphs [70] to [71] do not establish any significant risk of violence in Gonder.[52] Rather, they are more general comments about the broader Amhara region.
[52] See Minister’s Outline of Submissions filed on 3 August 2023 at paragraph [46].
There is a risk in isolating particular findings or observations made by the Tribunal that one could inadvertently misconstrue its findings and the material before it. Given both parties’ reliance on the Tribunal’s findings in this regard, it is appropriate to set out paragraphs [69] to [71] of its reasons in full:
69.The Amhara and Oromo felt marginalised by the Tigray under the EPRDF. In 2014 protests initially broke out over discrimination against the Oromo population but spread to other groups including the Amhara. Protests initially occurred in the regional state, Oromia in April 2014 due to the government’s Addis Ababa Integrated Regional Development Plan (known as the Master Plan) which sought widening the capital city’s jurisdiction over parts of Oromia. The protesters opposed what they perceived to be Tigray domination of federal politics, economic and security institutions. In 2016 a parallel protest wave began in Amhara. These protests initially concerned issues over land, namely the incorporation into the Tigray regional state of historically Amhara populated land, but also resentment of Tigray domination and neglect. As a result, the two largest ethnic groups in Ethiopia converged in rejection of the Tigray led federal government and its repressive methods. The protests in the Amhara State helped catalyse the resignation of Prime Minister Desalegn in February 2018. DFAT assesses the arrest of Amhara’s [sic] during the 2014-2018 anti-government protests was not ethnically motivated but reflected the then-federal government’s sensitivity to political opposition.
70.On 2 April 2018, the EPRDF elected Abiy Ahmed Ali as Prime Minister (Abiy). His election raised the expectation of change as he promised an agenda of reform, preached unity and made peace with Eritrea. It’s reported that regional leaders have demanded more power and despite increasing foreign debt and rising youth unemployment Abiy has faced great resistance to change. In addition, since becoming Prime Minister, it’s reported that insecurity has intensified with an increase in communal violence. Unrest in the Amhara region has led to further conflict as hard-line ethno-nationalists spot an opening in the more relaxed political atmosphere under Abiy. As a result, its [sic] reported that enthusiasm has waned for Abiy as grassroots support for Amhara nationalism has increased.
71.Nevertheless, its [sic] reported that an armed group in northern Ethiopia and the Amhara state government have reached an agreement to end fighting in Semien Gonder zone of northern Ethiopia. The agreement was reached in Bahir Dar City, the region’s capital in the presence of Mesafint Tesfu, leader of the armed group known as ‘Fano’ and high-level officials of the regional government. The Chief Administrator of the Semien Gondar Zone Worku Lemlemu is reported as having stated that ‘the parties agreed to stop fighting and members of the armed group will be recruited as soldiers and members of riot police or will be given loans, plots of land for investments and farming.’ DFAT reports that Oromo and Amhara nationalism has increased with Ethiopia’s democratic opening and lifting of restrictions on freedom of expression. The Amhara are represented politically at the federal level, including in the current federal government and the senior ranks of the public service and the military. Roughly a quarter of lower house members in Federal Parliament are elected from Amhara State. The current federal president is an ethnic Amhara, and the Amhara were second only to the Oromo in their representation in the Council of Ministers. As result, DFAT assesses Amharas face a low risk of official discrimination based on their ethnicity.
Moreover, at paragraph [74], the Tribunal said:
74.It’s reported that Amhara have been the subject of ethnic-based attacks in states where they do not constitute a majority, particularly in Benishangul-Gumuz. As such, DFAT assesses that, like most other groups, Amharas face a moderate risk of violence in areas or states where they are a minority. As such the Tribunal finds that there is no real chance the applicant will be seriously harmed if she was returned to Ethiopia. In any event, the applicant’s evidence is that if she did return to Ethiopia she would return to Gonder in Amhara. On the applicant’s own evidence, her sister and her family were safe in Gonder and as a result she was unlikely to be harmed if she returned to Gonder.
As noted above, it is submitted for the applicant that when one considers the Tribunal’s reasons at paragraphs [74] to [75], it is apparent that the Tribunal assessed whether the applicant was at risk of harm in Amhara by reference to her ethnicity only, and did not consider whether she was at risk of harm due to the deterioration of the security position.[53]
[53] Applicant’s Outline of Submissions filed on 24 July 2023 at paragraphs [14] and [15].
The Minister further states that in any event, the DFAT report does not establish any significant risk of violence in Gonder, rather, it relates to the broader Amhara region.[54] The DFAT report also notes that there has been a ceasefire agreement. Moreover, the Minister points to the applicant’s own evidence that if she were to return to Gonder, that she would be safe there. It is submitted for the Minister that this evidence is at odds with the claim that the applicant now says clearly arises on the material before the Tribunal.
[54] Minister’s Outline of Submissions filed on 3 August 2023 at paragraph [46].
In addition, the Minister points to various aspects of the DFAT report which, firstly, do not expressly refer to Gonder, and secondly, to the extent that the DFAT report refers to ethnically based tensions, the Tribunal expressly dealt with risks to the applicant arising from her ethnicity.[55]
[55] Minister’s Outline of Submissions filed on 3 August 2023 at paragraph [49].
On balance, I agree with the submissions made on behalf of the Minister.
The authorities establish that a claim not expressly made will not be inferred lightly.[56] Moreover, it must be said to clearly arise on the material.[57]
[56] See, for example, NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 at [68].
[57] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 at [55] and [68]; AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 at [67].
I accept that there is some reference in the material to the security situation in Ethiopia over a period of time. However, in circumstances where it was found that the applicant, if she were to return to Ethiopia, would return to Gonder, and absent any specific and express reference to a deteriorating security situation in Gonder per se, the applicant has not established that a claim to have feared harm on return to Gonder due to such a situation clearly arises on the material before the Tribunal.
At its highest, the DFAT report indicates that there was a deterioration in the security situation in border regions and in the context of Amhara, the reference in the DFAT report is to the Amhara-Tigray state border. There is no specific reference to Gonder itself.
Moreover, the Tribunal also referred to other country information which indicated that there had been progressions towards a peace arrangement in the Semien Gonder border zone.[58] Therefore, the country information does not clearly identify a risk of harm arising from a deterioration in security in Gonder which could be said to form the basis of a claim that the applicant might be at a risk of harm if she were to return to Gonder.
[58] See Tribunal decision record dated 28 October 2020 at paragraph [71].
In addition, the Minister points to the evidence given by the applicant in the course of the Tribunal hearing, a transcript of which was annexed to the affidavit of Ms Tessa Maybery affirmed on 15 September 2023.[59] It is submitted that the applicant gave evidence that if she were to return to Gonder that she would be safe there.[60]
[59] See Affidavit of Ms Tessa Maybery affirmed and filed on 15 September 2023 at Annexure B.
[60] Court transcript at page 16 and following.
When the transcript of the interview with the applicant and her daughter is viewed in its entirety, there is some lack of clarity about exactly what the applicant’s daughter was saying regarding her mother’s safety.
In any event, for the reasons given earlier, in my view, a claim to have feared harm if returned to Gonder, separate from her fear due to her ethnicity, religion or political activity, does not clearly arise from the material before the Tribunal. The evidence given by the daughter does not remedy this issue.
For these reasons, ground 1 is not made out.
Ground 2
By Ground 2, the applicant asserts:
2. Further or alternatively, the Tribunal erred in finding the region of Ethiopia to which applicant would return was Gonder, Ethiopia, and as a result, failed to exercise its jurisdiction by considering, pursuant to s 36(2B)(a) of the Migration Act, whether it would be reasonable for the applicant to relocate to Gonder from Addis Ababa; alternatively, failed to exercise its jurisdiction by considering the applicant’s claims for complementary protection by reference to Addis Ababa.
Particulars
i.In assessing the applicant’s claims for complementary protection under s 36(2)(aa) of the Migration Act, the Tribunal was required to identify the place to which the applicant would return.
ii. The evidence before the Tribunal, including in response to a question from the Tribunal member about the possibility of the applicant’s “reallocation (sic) … to Gonder” (from Addis Ababa), was that the applicant would return to Addis Ababa, Ethiopia, being the place at which she resided at the time of her departure from Ethiopia.
iii.In dismissing the applicant’s claim for protection on the basis that she is a refugee under s 36(2)(a) of the Act, the Tribunal found that the applicant “was unlikely to be harmed if she returned to Gonder”: at [74]-[75].
iv.In assessing the applicant’s claim for complementary protection under s 36(2)(aa) of the Migration Act, the Tribunal:
a.did not consider whether the applicant would face a risk of significant harm if she returned to Addis Ababa; and
b.did not consider, pursuant to and within the meaning of s 36(2B)(a) of the Migration Act, whether it would be reasonable for the applicant to relocate from Addis Ababa to Gonder.
v.Failure to address either question (a) or (b) constituted an error of law with the consequence that the Tribunal’s decision was affected by jurisdictional error.
By ground 2, the applicant asserts that the Tribunal erred in proceeding on the basis that the place to which the applicant would return within Ethiopia was Gonder, rather than Addis Ababa. The claim arises in circumstances where the evidence before the Tribunal, which it had accepted, was that the applicant had moved to Addis Ababa two months prior to leaving for Australia.
It is submitted for the applicant that in those circumstances, the Tribunal should have considered whether it would have been safe for her to return to Addis Ababa, and if not, whether it would be reasonable for her to relocate to Gonder. According to the applicant, in failing to undertake this analysis, it follows that the Tribunal failed to discharge its statutory task and the decision was therefore affected by jurisdictional error.
This ground is put on two bases, either that:
(a)the Tribunal erred in failing to properly consider section 36(2B)(a) of the Act; or alternatively
(b)failed to exercise its jurisdiction to consider whether the applicant satisfied the complementary protection criteria.
Section 36(2)(aa) of the Act relevantly provides:
(2) A criterion for a protection visa is that the applicant for a visa is:
(a) …
(aa)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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …
Section 36(2B) further provides:
(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; …
The applicant asserts that in determining whether the applicant met the complementary protection criteria, the Tribunal was required to identify the place to which the applicant was to return.[61]
[61] Applicant’s Further Submissions filed on 15 September 2023 at paragraph [4] and following.
In APE16 v Minister for Home Affairs (2020) 277 FCR 640 (‘APE16’), the applicant argued, as in this case, the Tribunal erred in failing to undertake an assessment to determine the place where the appellant was likely to return and therefore erred.
In APE16, the applicant had lived in two areas in Papua New Guinea prior to leaving. The Full Court of the Federal Court of Australia, after discussing the concept of a ‘home area’ in connection with the principle of internal relocations in refugee protection cases, went on to observe:
48.In this case, we are not concerned directly with the Convention principle of internal relocation, but with the terms of s 36(2)(aa), (2A), and (2B) of the Act. Nonetheless, the text of those provisions is to be construed in context, and consistently with legislative purpose … The purpose of s 36(2)(aa) is to give effect to Australia's international non-refoulement obligations. Apart from the references to the relevant Conventions in the Explanatory Memorandum to the 2011 Bill, there is textual support for this purpose in s 36(2)(aa) itself, because it refers to “protection obligations”. Section 36(2B)(a) of the Act may therefore be taken to be informed by, and to give effect to, a principle akin to the principle of internal relocation, which was well-established at the time of the 2011 amending Act.
49.The complementary protection criterion in s 36(2)(aa) of the Act will be engaged where the Minister has substantial grounds for believing that there is a real risk of significant harm as a “necessary and foreseeable consequence” of the non-citizen being removed from Australia. One of the factual issues to which s 36(2)(aa) directs attention is the place to which the non-citizen will likely return upon being removed from Australia. The identification of one or more “home areas” may assist the decision-maker in undertaking that factual enquiry… But as the Full Court in CSO15 went on to explain at [42] —
“The correct question is: to where will an applicant return, or be returned? Identifying a place which may have, in the past, been a person's ‘home area’ or ‘home region’, may assist in answering that question. But it is not, in and of itself, the answer to the question which must be asked for the statutory task to be lawfully performed. That is because under both Art 1A and the complementary protection regime, what is to be examined is the place to which a person will be returned, and what risks a person faces on return to that place. At least one location within a country of nationality must be identified for this task to be undertaken. Ascertaining a person's former ‘home area’ or ‘home region’ may be an important step along the way in a decision-maker's fact finding, but it is not the end of the task. … ”
50. …
51.The above passages in CSO15 do not mandate an enquiry as to “home areas” but to places where the individual is likely to return. The point eloquently made by the Full Court in CSO15 at [42] is that an enquiry seeking to identify a “home area” should not take the place of, or distort, the enquiry required by the statute, which is to identify the place to which the non-citizen is likely to return …
…
52.In the present case, the Tribunal did not direct attention to the place where the appellant was likely to return, but used as a starting point its assessment that the appellant had two “home areas”, namely her village in the Mt Hagen area, and Port Moresby. As the evidence of the appellant … demonstrates, the appellant told the Tribunal that she would return to her village, and would not return to Port Moresby. The Tribunal did not address that evidence, and made no finding as to where in PNG the appellant was likely to return. The Tribunal's finding at [70] that, given her medical conditions, the appellant would “have a strong incentive to remain in Port Moresby to access medical treatment” did not address the correct issue.
…
54.The failure by the Tribunal to address the correct statutory issues was a failure to discharge its statutory function. Assuming materiality is relevant in this context, there must have been a realistic possibility that, had the Tribunal addressed the correct questions, there would have been a different outcome. Accordingly, the Tribunal's error is jurisdictional …
It is submitted for the Minister that ground 2 is premised on the notion that when considering section 36(2)(aa), the Tribunal is always required to make a finding about the place or places to which a person may return.[62] In support of this proposition, the applicant relies upon CSO15 v Minister for Immigration and Border Protection (2018) 260 FCR 134 (‘CSO15’). It is submitted for the applicant that CSO15 makes it clear that ultimately, the inquiry required by the Act is to identify the place to which a non-citizen is to return.[63]
[62] Respondent’s Further Written Submissions filed on 2 October 2023 at paragraph [4].
[63] APE16 v Minister for Home Affairs (2020) 277 FCR 640 at [51]; Applicant’s Further Written Submissions filed on 15 September 2023 at paragraph [7].
At paragraph [74] of the Tribunal’s reasons, the Tribunal states:
74. … As such the Tribunal finds that there is no real chance the applicant will be seriously harmed if she was returned to Ethiopia. In any event, the applicant’s evidence was that if she did return to Ethiopia she would return to Gonder in Amhara. On the applicant’s own evidence, her sister and her family were safe in Gonder and as a result she was unlikely to be harmed if she returned to Gonder.
The applicant submits that the Tribunal misconstrued the evidence given by the applicant herself and that of family members that if she were to return to Ethiopia she would return to live in Addis Ababa and not Gonder.[64] It is further submitted that the evidence given by the applicant’s sister at page 59 of the transcript of the Tribunal hearing was that the applicant had returned to Gonder and it was unsafe there.[65]
[64] Respondent’s Further Written Submissions filed on 2 October 2023 at paragraph [2].
[65] Court transcript at pages 4 to 5.
Counsel for the applicant further referred to evidence given by the applicant’s support person and friend, Mr Wanaw, at page 68 of the transcript of the Tribunal hearing. In particular, the applicant’s counsel referred to the evidence given by Mr Wanaw that ‘Ah, for example, if she was to move from Addis Ababa where she is, wants to live - to another Kebele, locality, she will be required to bring … a letter from her previous Kebele …’.
It is therefore submitted that the evidence before the Tribunal was that the applicant resided in Addis Ababa, and accordingly, that was the place that she would be returning to if she were to return to Ethiopia.[66] Moreover, it was submitted for the applicant that all the material before the Tribunal also made it clear that the applicant had relocated to Addis Ababa prior to departing Ethiopia and that this was the place that she lived. It was submitted that the applicant had relocated from Gonder to Addis Ababa two months prior to departing Ethiopia.
[66] Court transcript at page 6 and following.
In these circumstances, it is submitted for the applicant that the Tribunal’s own questioning of the applicant in the course of the hearing made it clear that the Tribunal understood that a move to Gonder would amount to a relocation and therefore required consideration of the reasonableness or otherwise of such a relocation. It is submitted that the Tribunal’s reasoning in this regard discloses a jurisdictional error as the Tribunal failed to make its assessments and findings by reference to the material before it.[67]
[67] See Applicant’s Further Written Submissions filed on 15 September 2023 at paragraph [8].
For the following reasons, I accept the applicant’s submissions. The Tribunal in this case erred by failing to identify where the applicant would return in the light of the evidence before it.
At the very least, on the material before the Tribunal, there was some confusion as to whether the applicant would return to Addis Ababa, where she had been living immediately before she came to Australia and where her house was (which she says was raided by the authorities whilst in Australia), or whether she would be returning to Gonder where she had lived for the four years prior. This issue was simply not addressed or determined.
If it was the case that the Tribunal determined that she would be returning to Gonder, as that was where she had lived from 2012 until some months prior to her departure from Ethiopia, one would expect the Tribunal to have explained the basis for this determination. This is particularly so in circumstances where the Tribunal’s own summary of the factual background noted that she had moved to Addis Ababa two months prior to departing Ethiopia.[68]
[68] See Tribunal decision record dated 28 October 2020 at paragraph [16(p)].
In circumstances where section 36(2)(aa) of the Act requires the Tribunal to assess whether the applicant faced a risk of significant harm if she were to return, it was incumbent upon the Tribunal to determine where she would be returning to. Its failure to do so constitutes a jurisdictional error.
I also find that to the extent that materiality is an issue, there is a realistic possibility that had the Tribunal addressed the correct question, it may have resulted in a different outcome.
For these reasons, ground 2 is made out.
Ground 3
By ground 3, the applicant claims:
3.Further or alternatively to Ground 2, the Tribunal’s finding that the region of Ethiopia to which the applicant would return was Gonder was legally unreasonable and/or otherwise lacked a rational and intelligible basis.
Particulars
i.The Tribunal found that the region of Ethiopia to which the applicant would return was Gonder: at [74]-[75].
ii.The evidence before the Tribunal, including:
a. evidence given in the hearing before the Tribunal;
b.the Tribunal member’s own questions in the hearing before the Tribunal, which contemplated the prospect of ‘reallocation (sic) … to Gonder”;
c.the findings of the delegate, which recorded that the applicant lived in Addis Ababa prior to departing Ethiopia,
directly contradicted the Tribunal’s finding.
iii.As a consequence of the Tribunal’s irrational or illogical finding, the Tribunal failed to assess the applicant’s claim by reference to the risk of significant harm if she returned to Addis Ababa, with the consequence the Tribunal’s decision was affected by jurisdictional error.
For the reasons set out above, and having reached the conclusions that I have in regard to ground 2, it is not necessary for me to consider ground 3, which is pleaded in the alternative to ground 2.
CONCLUSION
As ground 2 is made out, I make the orders set out at the commencement of these reasons.
I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 22 March 2024
10
1