FEDERAL COURT OF AUSTRALIA Ellala v Minister for Immigration & Multicultural Affairs [2000] FCA 104 MIGRATION – Refugee Review Tribunal – circumstances in which it was open to the Tribunal to conclude that an Ethiopian who claimed to be at risk of persecution as a former official of the Dergue did not have a well-founded fear. Yesus v Minister for Immigration and Ethnic Affairs (1996) 45 ALD 277 referred to ATENU JANKA ELLALA and MISRAK TAMERAT DEBERENEH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 259 of 1999 BURCHETT J 15 FEBRUARY 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 259 of 1999 BETWEEN: ATENU JANKA ELLALA and MISRAK TAMERAT DEBERENEH Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: BURCHETT J DATE OF ORDER: 15 FEBRUARY 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: (1) The application be dismissed; (2) There be no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 259 of 1999 BETWEEN: ATENU JANKA ELLALA and MISRAK TAMERAT DEBERENEH Applicants AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: BURCHETT J DATE: 15 FEBRUARY 2000 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicants, who are husband and wife, seek the very limited form of review which is available in respect of a decision of the Refugee Review Tribunal. They come from Ethiopia, and their mutual case for relief depends upon that of Mr Ellala, who grew up in the South Shao region, where his family belonged to the Amharas, the ruling class in that region, although forming a quite small minority of its population, until the overthrow of the feudal government of the aged Emperor Haile Selassie in 1974. Mr Ellala's father was a local chief, to whose position he would have succeeded, but for the revolution which gave power to the professedly Marxist Mengistu regime. 2 The success or failure, in the Tribunal, of Mr Ellala's claims to be regarded as a refugee within the meaning of the well known Convention relating to the Status of Refugees depended, in the first place, on findings about his part in events which followed three or four years after the revolution of 1974, and, in the second place, on findings as to whether any investigation of his part in those events, or as to whether the trial of any charges which might be laid against him, was likely to involve persecution of him for reasons of his perceived political opinions or ethnic ties. An understanding of the issues raised by these questions requires a brief outline of some recent Ethiopian history. 3 Following the fall of Emperor Haile Selassie, Ethiopia was ruled by the Dergue, a committee of military officers (the name means "committee" in the Amharic language). After the killing of successive leaders of the Dergue, Colonel Mengistu, in 1977, became its head, and took supreme power. He declared a campaign of terror, known as the Red Terror, in order to eliminate opposition. Tens of thousands of opponents were slain over a period extending into mid-1978, very many being tortured and imprisoned in inhuman conditions. One target was a Marxist organisation, the Ethiopian People's Revolutionary Party (EPRP). It had been part of the original movement of revolt against the government of Haile Selassie, but later had been involved in assassinations of Dergue officials. 4 Although the Red Terror has been described as of unparalleled barbarity, arbitrary detention, torture and execution continued to characterize the Mengistu regime until its overthrow in 1991. Since then, the new government has set up, with international assistance, a Special Prosecutor's Office to bring to trial between 1000 and 3000 of Mengistu's officials. The process has proved slow, and there is a very large backlog of prosecutions. In the meantime, according to evidence put before the Refugee Review Tribunal, human rights abuses have been committed, under the new government, in the detention without trial and without charge, of many of those associated with the Dergue. 5 It is against this background that the Tribunal had to assess Mr Ellala's evidence. He was born on 21 November 1962, and so was very young when, according to his account, he joined the EPRP, in about March 1977. He did not claim, however, to have lasted long in this organisation, his membership of which led to a brief period of detention by the government. In about June 1977, he was recruited into the Revolutionary Flame, a pro-Mengistu party, which also recruited other former members of the EPRP. That followed his being brought into contact with government supporters through their staying at a hotel owned by his family. 6 In January 1978, Mr Ellala said he joined the Provisional Office for Mass Organizational Affairs (POMOA), an organisation supporting the government against the EPRP. He was then only a little over 15 years of age, but he said he became acting head of the POMOA branch office in an area with a population of about 100,000. The position involved administration, leadership, supervisory work and, on one occasion, the chairing of a committee of the Red Terror. This prominence was brief. He was arrested in April 1978, for failing to carry out his duties properly, for being too moderate (he said he was never involved in human rights abuses or killings), and because of his relationship with a girl who held high rank in the EPRP. He was confined, according to his account, in Zuway Prison Centre for 3 years and 4 months from 4 April 1978 to 21 July 1981 on a charge of being "anti-revolutionary". 7 Challenged by the Tribunal Member, Ms R Smidt, on the basis that his story was difficult to accept because of his youth, Mr Ellala said, as she notes, it "was not uncommon for people aged 15 or 16 to be in charge". That might have been thought to have gained some support from material that was before the Tribunal stating that numbers of teenagers were among those executed as opponents of the regime. In Mr Ellala's case, he was a member of an aristocratic ruling family which, though the revolution undoubtedly affected its position and provided opportunities for those eager to attack its members, still retained some wealth and standing – he said he met government supporters in a family hotel, and it was "a relative" with "a job in the district administration" by whom he was "recruited to the position". 8 After he came out of prison, Mr Ellala was able to complete his schooling, and go on to University, again suggesting his family still enjoyed some privileges. In 1987, he joined the Ministry for External Economic Cooperation as an Assistant Expert. He claimed to have "done very well" in his university studies to get this position. 9 Upon the fall of the Mengistu government in May 1991, Mr Ellala said he was placed in a position of risk because of his involvement in POMOA in 1977 and 1978, an organisation which fought those now in power. He fears detention or other serious harm, including murder. As a consequence of his family's special position in his home region, he fears the effects of jealousy, as well as a thirst for vengeance. 10 Mr Ellala claims he was able to continue working in the Ministry until his departure to come to Australia in September 1994. He kept away from his home region, where his family put it about that he had left Ethiopa. Also, he moved his residence from time to time. Although he claimed his name was on a list of persons banned from leaving the country, he was able to take advantage of the inadequacies of official records. He went to Italy for a training program in relation to projects funded by the United Nations in 1992, and in 1993 he completed a diploma at the Diplomatic Training Institute in Addis Ababa. He was approved for a United Nations Development Program scholarship in December 1993 and, after some difficulties, was able to come to Australia on a student visa. 11 Mr Ellala acknowledged that most POMOA members in his area had not faced problems after the change of government in 1991. Some had gone on to hold important positions in the current government. But he claimed his own situation, as a member of the former aristocracy, was different, and that he had been informed against and his prosecution demanded. His evidence to the Tribunal was that he did not fear prosecution in Addis Ababa, since he had not been guilty of crimes during the Red Terror or at all, but he did fear being sent for trial in his home region where ethnic prejudice against the Amharas and false allegations of complicity in the Red Terror would deny him a fair trial. 12 The Tribunal rejected Mr Ellala's claims on two broad grounds. The primary ground denied the foundation of his fears in actions alleged to have been taken by him as acting head of the POMOA in his region. The Tribunal did not believe that he ever was acting head of a branch of the POMOA, essentially because of his extreme youth. In disbelieving him, the Tribunal made no reference to his credibility as a person, although there was much evidence that in Australia he had impressed those who had come to know him as a man of real integrity. Nor did the Tribunal's consideration of the issues show any recognition of the possibility that a time of revolution might have led to a situation not to be expected in normal times. There is no discussion of whether Mr Ellala, who is plainly a man of some ability, might have shown precocity at 15 years of age, or of whether Ethiopian culture might throw light on his claims. After all, Chinese historians have long attributed much more to the teenaged Li Shih-Min, who has been said to have played the leading role in the founding of the T'ang Dynasty: C P Fitzgerald, Son of Heaven (1933); cf The Cambridge History of China, vol 3 (1979), chapters 3 and 4. However, although the Tribunal does not enter upon anything like a full examination of Mr Ellala's credit, it does refer to his delay in making his application for a protection visa (his student visa allowed him two years in Australia, and he did not apply for a protection visa until after more than a year), and it was for the Tribunal to find the facts. 13 In any case, the Tribunal's decision is also based on its second ground. This is that it does not consider Mr Ellala to be at risk of any treatment which would fall within the Convention definition of persecution, even if he is liable to be prosecuted upon his return to Ethiopia by the Special Prosecutor's Office. Again, the Tribunal shows little inclination to discuss, or even acknowledge, evidence to the contrary of its opinion. There is some validity in the point made by the solicitor for the applicants that there was much more material before the Tribunal than its reasons suggest, some of which appears to lend support to Mr Ellala's fears. However, this also is a question of fact, and the evidence on which the Tribunal chose to rely does provide support for its conclusions. There was evidence from American experts that "membership in a former Mengistu-era organization is not sufficient grounds for harassment" in Ethiopia, and that "the Mengistu government created sufficient pressure to make Ethiopians join State organizations", so that to target those who joined would be "equivalent to targeting all Ethiopians", which the new government is not doing. In October 1997, the Tribunal found, the Canadian embassy in Addis Ababa advised the Australian Department of Foreign Affairs and Trade that it was satisfied "that the trials against those accused of human rights abuses during the Dergue would be properly conducted", notwithstanding previous fears that this might not be so: see Yesus v Minister for Immigration and Ethnic Affairs (1996) 45 ALD 277. A London based human rights organization has referred to proceedings brought against officials of the former government, stating that those proceedings were "being conducted according to due process of law, with considerable scrutiny", and that "former government officials in detention at present, or at risk of being detained for alleged crimes undertaken under the previous government, are not at serious risk of arbitrary detention or other abuses." On the basis of this material, and bearing in mind that Mr Ellala has not lived in the home region where he claims to be at risk for many years, it seems to me that it was open to the Tribunal to find any fear of persecution through wrongful prosecution by the Special Prosecutor's Office not to be well-founded. Although it is true there was evidence that numbers of persons had been detained improperly under the new government, the same evidence showed that a remedy was eventually provided, so that over a thousand detained persons were released. The Tribunal was entitled to conclude that Mr Ellala would also be able to secure his release if charged without real foundation. 14 The evidence before the Tribunal did not require it, as a matter of law, to find that Mr Ellala would be exposed to a real chance of ill-treatment amounting to persecution for a Convention reason, even if he should be prosecuted upon his return to Ethiopia. Accordingly, the application should be dismissed. Nevertheless, having regard to the nature of the issues in this case, the failure of the Tribunal to clarify aspects of its reasons to which I have referred, and in all the circumstances of the case, I exercise my discretion against making any order as to costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett. Associate: Dated: 15 February 2000 Solicitor for the Applicants: Mr D L Oliveri of Oliveri Attorneys Counsel for the Respondent: Miss R M Henderson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 29 June 1999 Date of Judgment: 15 February 2000