Habtagiorgis, Daniel Meelesse v Minister for Immigration & Multicultural Affairs [1997] FCA 413

CATCHWORDS IMMIGRATION - review - refugee status - entitlement to a protection visa - review of decision of the Refugee Review Tribunal - whether well-founded fear of persecution - real chance of persecution test - whether no evidence to justify the making of the decision - no substance in application. Migration Act 1958 (Cth) Migration Regulations Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Magyari v The Minister for Immigration and Multicultural Affairs (unreported: 22 May 1997) No SG 57 of 1996

DANIEL MEELESSE HABTAGIORGIS v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS O'Loughlin J Adelaide 22 May 1997

IN THE FEDERAL COURT OF AUSTRALIA) ) SOUTH AUSTRALIA DISTRICT REGISTRY) No SG 57 of 1996 ) GENERAL DIVISION ) B E T W E E N: DANIEL MEELESSE HABTAGIORGIS Applicant - AND - THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent Coram: O'Loughlin J Place: Adelaide Date: 22 May 1997 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The application be dismissed.

2. The applicant pay the costs of the respondent of and incidental to the costs of this application and order, which costs are to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) ) SOUTH AUSTRALIA DISTRICT REGISTRY) No SG 57 of 1996 ) GENERAL DIVISION ) B E T W E E N: DANIEL MEELESSE HABTAGIORGIS Applicant - AND - THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent Coram: O'Loughlin J Place: Adelaide Date: 22 May 1997 REASONS FOR JUDGMENT The applicant, Daniel Meelesse Habtagiorgis, arrived in Australia on 10 March 1995. On 19 May 1995, the applicant sought protection as a refugee by applying for a protection visa pursuant to s 36 of the Migration Act 1958 (Cth) ("the Act"). His application being unsuccessful, the applicant thereafter sought review from the Refugee Review Tribunal ("the Tribunal") but was again unsuccessful. He now asks this Court to review the decision of the Tribunal. The applicant, a bachelor, is aged 26 and is an Ethiopian national. His mother and two of his brothers continue to live in Ethiopia but he also has a brother and a sister living in Australia. He has previously visited Australia, arriving on 11 November 1994 and departing four weeks later on 8 December. In support of his claim for refugee status, the applicant stated that he was a member of the All Amhara People's Organisation ("the AAPO"). He further stated that in September 1994 he had been arrested and detained for a period of eleven days for participating in a peaceful protest calling for the release of the leader of AAPO. He also claimed that during that period of detention he was tortured. He maintains that AAPO is the main opposition group to the current Ethiopian People's Revolutionary Democratic Front ("the EPRDF") regime in Ethiopia and that he faces arrest and imprisonment on his return to his home country. The applicant further claims that he involved himself in the organisation of a demonstration against the proposed merger of Ethiopian Airlines with Eritrean Airlines and that this participation would be further grounds for his arrest, interrogation and torture. The recent political and social history of Ethiopia is indeed distressing. The overthrow of the Amhara dominated Mengistu Government by the EPRDF in May 1991 marked the end of thirty years of civil war in Ethiopia. That was a period of famine, brutal repression and massive human rights abuses. The transitional government of Ethiopia, established under President Meles Zenawi by the EPRDF, together with other groups active in the anti Mengistu struggle, detained tens of thousands of former soldiers of the Mengistu regime and thousands of civilians (US Department of State Report on Human Rights Practices for 1993, p86). Additional arrests of former officials and members of the Mengistu Government continued to take place in 1994 and early 1995 (Ethiopia; Accountability Past and Present; Human Rights in Transition, London April 1995, p47). Detentions for long periods without charge or trial was a standard practice during interrogation, as was torture. Thousands had disappeared from detention and extra judicial executions were frequently reported. These and other matters were the subject of detailed reference in the Tribunal's reasons causing the Tribunal to say:- "... there is no question but that human rights violations occur." Later in its reasons after referring in detail to numerous reports, the Tribunal went on to say:- "These reports suggest that, while there has been a significant improvement in the human rights situation since the brutal Mengistu regime, the improvement is only relative and that wide spread and serious human rights abuses still occur." The prescribed criteria for the grant of a protection visa are set out in sub-s 36(2) of the Act and Clause 866 of Schedule 2 to the Migration Regulations: see s31(3) and Reg 2.03. Sub-section 36(2) of the Act states that a criterion for the grant of a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms "Refugees Convention" and "Refugees Protocol" are respectively defined in s 5 of the Act as meaning "the Convention relating to the Status of Refugees done at Geneva on 28 July 1951" and "the Protocol relating to the Status of Refugees done at New York on 31 January 1967". A refugee is defined in Art 1A(2) of the Convention as amended by the Protocol as a person who:- "Owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country..." In the present case the applicant first claimed a fear of persecution by reason of his race. He is an Amhara who previously lived in Addis Ababa. He claims that as an Amhara he is at risk of persecution by the dominant ethnic group, the Tigray. In considering this submission, the Tribunal referred to and quoted from numerous publications including cables from the Department of Foreign Affairs and Trade. Those quoted materials contained information that justified the Tribunal's conclusion that:- "The evidence indicates that the Amhara are now being discriminated against in government employment and in other ways because of the government's pursuit of ethnic policies; however, changes such as in the teaching of Amharic, for example, which was raised at the hearing, do not constitute persecution. Nor does the independent evidence, in my view, establish that, as a class of people, Amhara are in general subjected to sustained and systematic harassment. As stated, it appears more the case that, in general, they have suffered a loss of privilege since the change of government and degree of discrimination which they deeply resent but which may or may not, depending on the circumstances of the particular case, amount to persecution. ... It is also clear that the applicant and perhaps most Amharas are opposed to the government's policy of progressive devolution of powers to the ethnic groups. It would be surprising if such a radical policy was not seen as a diminution of nationhood and did not attract strong criticism from several quarters. As Human Rights Watch World Report 1996 states: "While some observers viewed these constitutional developments as offering a new model of ethnic accommodation, others accused the government of exposing the country to risks of fragmentation and political turmoil if the liberal constitutional provisions encouraged minorities to seek secession". However, even if such policies disadvantaged Amharas I do not consider them as persecutory. Having regard to all the evidence, I conclude that there is not a real chance of the applicant's being persecuted by reason of being an Amhara." This conclusion was a conclusion that was available to the Tribunal on the material that was before it. It is not for this Court to make its own assessment of the merits of the applicant's case. Rather, the role of this Court is to examine whether one or other of the limited grounds of review as contained in s 476 of the Act exist. The summary by the Tribunal of the material that was before it and its conclusion based on that summary does not, in my opinion, contain any reviewable error. The applicant has not therefore, made out his complaint that the Tribunal's decision was "an improper exercise of the power conferred by the Act"; see par 476(1)(d). The applicant next submitted that he had a fear of being persecuted for reasons of political opinion. He relied on his membership of the AAPO and his participation in the presentation of a petition against the merger of the two airlines. In assessing the applicant's claims, the Tribunal relied on material which was placed before it from a variety of sources including the Australian Migration Office in Nairobi. That office stated that whilst the AAPO was occasionally banned from organising public meetings, "its publications, often critical of the new government, are openly on sale in Addis Ababa ..." The Tribunal also referred to a cable from the Department of Foreign Affairs and Trade dated 30 August 1995 which reported:- "The Ethiopian Human Rights Council (which must be stressed is perceived to be an Amhara organisation firmly opposed to the government on political grounds. The President of the EHRC does not hide his sympathies for AAPO) maintains that active members of AAPO living in Region Three (the Amhara region) do face harassment and mistreatment from the government. The ERHC does concede, however, [that non-active members living in Addis Ababa do not face any problems]. AAPO is a registered political party with an office in Addis Ababa ..." The Tribunal noted that the applicant, on his own account, was an ordinary AAPO member and not a political activist in a significant sense. This caused the Tribunal to come to the conclusion that it had difficulty "in believing that the Ethiopian authorities would have thought it worth following him; if they did, I can only assume that they were aware of his activities and, given that they were peaceful and legal, they took no action."