1411423 (Refugee)

[2015] AATA 3760

1411423 (Refugee) [2015] AATA 3760 (19 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1411423

COUNTRY OF REFERENCE:                  Ukraine

MEMBER:Christine Cody

DATE:19 November 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 19 November 2015 at 1:50pm

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 dependant.

STATEMENT OF DECISION AND REASONS - APPLICATION FOR REVIEW

1. The applicant is a national of the Republic of Ukraine (“Ukraine”) who seeks to be granted a Protection (Class XA) visa under s.65 of the Migration Act 1958 (the Act) on the grounds that he is a refugee or entitled to protection under Australia’s complementary protection provisions. He applied to the Department of Immigration for the visa [in] January 2014 and the delegate refused to grant the visa [in] May 2014. This is an application for review of that decision, and the relevant law is set out in Annexure A. The applicant was represented by his registered [migration agent] in relation to his initial application to the Department, and in relation to the review.

2. For the reasons set out below, the Tribunal does not accept that the applicant has a well-founded fear of persecution for a Convention reason, nor that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ukraine, there is a real risk that he will suffer significant harm. The Tribunal has accordingly affirmed the decision of the delegate to refuse to grant the applicant a Protection visa.

   CLAIMS AND EVIDENCE

3. The applicant provided to the Department protection visa application forms and pages of his passport. The following background and claims are sourced from the documents provided by the applicant:

   ·     The applicant was born in [his home town], [within a named] District, Russia, in [year]. He is a Ukrainian citizen. His ethnic group is Ukrainian, and his religion is Ukrainian Orthodox Church.

   ·     He speaks, reads and writes in Ukrainian and Russian.

   ·     He has [number] years of education in the Ukraine, including school, and then Military School from [span of years]. From [year] until [year] he undertook military service. From [year] until 2009 he was [occupation] in Ternopil.

   ·     From [late] 2009 he was unemployed.

   ·     In the last 10 years, he had resided at the same address in Ternopil.

   ·     He left Ukraine [in] November 2010 due to a fear of persecution. His wife, children and [siblings] continue to reside in Ukraine.

   ·     The applicant had lost his job as [occupation] in [late] 2009 due to his political views. He has always been against the political platform of the Regions Party and against the (former) President Yanukovych’s political views. He faces harm at the hands of the SBU (the Security Service of Ukraine), who use harsh methods to persecute and imprisoned opponents of the (then) current political regime.

   ·     He arrived in Australia [in] November 2010. The applicant said that he came on a [temporary] visa; the Tribunal notes that there was an error in the delegate’s decision record which indicated that the applicant had arrived holding a [different] visa). The applicant said at hearing that his [temporary] visa was valid until [December] 2010 and thereafter he became unlawfully present in Australia.

   ·     He is in contact with his wife and children by Skype.

   Interview[1]

   [1] The evidence referred to was provided by the applicant at that interview, as set out in the delegate’s decision record provided to the Tribunal by the applicant.

4. The applicant attended an interview with the delegate [in] May 2014[2]. He claimed that he joined the [government agency] in Ukraine in [year] in Ternopil. He was initially a [position], he then transferred to [another agency] and from about 2004 onwards he was [in a certain role] in [specific government agency][3].

   [2] A copy of the recording of the interview is located on the Departmental file.

   [3] This was referred to as [deleted] at the hearing.

5. He claimed that from 2008 his [colleagues] were expected to [authorise actions generating revenue]. This money was then passed on to the Party of Regions for Yanukovych’s presidential campaign. The applicant had collected the money as instructed for one year and in [late] 2009 he resigned because he was embarrassed by what was going on. He supported Yushenko.

6. The delegate asked the applicant what he feared if he returns to Ukraine, and he said that Yanukovych has organised the civil war, his [relative] is financing the separatists, [his government agency is] corrupt, there is still some separatist influence reaching Western Ukraine, if Yanukovych returns to power, Western Ukraine would be pressed. When asked what he personally feared, he said he could be arrested and the lives of himself, his family and relatives could all be under threat. Only 20% of what is written on the internet is true, the Ukrainian police are disabled, and Yanukovych’s political groups are active.

7. Additional relevant evidence given at interview is referred to below. 

   The delegate’s decision record (provided to the Tribunal by the applicant)

8. The delegate provided reasons for the refusal of the application in the decision record. The delegate noted that the applicant’s written claims lack significant detail and stated that he feared harm from the SBU because he opposed the Regions Party and the then President Yanukovych: the delegate noted changed country conditions including that the former President was driven from power in February 2014. While the delegate noted that the applicant’s claim of [his government agency] corruption is not inconsistent with country information, the delegate was not satisfied that the applicant’s account of his reasons for travelling to Australia and seeking protection was plausible, nor that his behaviour was consistent with his claimed fear of harm.

   The Tribunal

9. The applicant provided to Tribunal a copy of the delegate’s decision record with his application for review; he did not provide any further submissions or evidence.

10. The applicant appeared before the Tribunal on 12 November 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Ukrainian and English languages. His agent did not attend.

11. The Tribunal noted that the applicant, via his agent, had been requested to provide any up-to-date information and submissions seven days prior to the hearing and that this was not done. The Tribunal asked whether there were any new claims or any information that had not previously been given in the process, and he said so far nothing has changed, there is nothing new.

12. The applicant gave evidence about his claims. The Tribunal put concerns to the applicant, as well as information pursuant to s.424AA of the Act. Relevant evidence is set out below.

    FINDINGS AND REASONS

    Country of reference

13. The applicant produced to the Tribunal his passport issued in 2009. The Tribunal accepts that the applicant is a national of Ukraine, and that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purposes of his complementary protection claims, is Ukraine.

    Credibility

14. The Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. Similarly that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

15. Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.

16. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70).

17. The Tribunal had a number of concerns about the applicant’s changing evidence as to past events, and what he feared upon return to Ukraine. The Tribunal did not find the applicant to be a credible, truthful, or reliable witness in relation to matters central to, and related to, many of his claims. The Tribunal’s concerns are set out below.

    Inconsistencies relating to the applicant’s reason for claiming protection and his fear of harm

18. The Tribunal was concerned about the applicant’s claims changing throughout the process.

19. In his application form, he claimed to fear harm from the SBU because he was an opponent of Yanukovych’s political regime.

20. The Tribunal noted that this was inconsistent with what he told the delegate (as set out in the delegate’s decision record), namely that he lodged his protection visa application because Yanukovych’s supporters forced [employees of his agency] to take bribes and hire criminals inside the [agency]. 

21. This was again different to what he told the Tribunal. The Tribunal was initially concerned that he had significant difficulties in identifying for the Tribunal what he feared would occur to him if he returns to Ukraine (saying instead that he would like to tell the story from the very beginning). After a number of attempts to obtain an indication of what the applicant feared, the Tribunal indicated that if he was not able to say what he feared without telling his whole story from the beginning, the Tribunal may have difficulty believing that he has any fear, he finally told the Tribunal that the only thing he feared was that corrupt MPs would organise to have him harmed because he had stopped them from obtaining corrupt [money]. He said there was no other reason for him to fear harm.

22. The Tribunal noted that at each stage of the process he had provided completely different reasons as to why he feared returning to Ukraine, and discussed its multiple concerns in this regard with the applicant:

    ·     While the Tribunal acknowledges that there has been a change in government since the applicant left the Ukraine and since he lodged his protection visa application, the Tribunal notes that the applicant did not claim to the Tribunal that he had undertaken any activity, or be perceived as, a political opponent of the former President Yanukovych, which was the core of his protection visa application form. When the Tribunal’s concern was put to him, he responded that the SBU didn’t persecute him and he doesn’t know where that came from. The Tribunal considers this undermines his claims and his credibility.

    ·     Similarly, he claimed in that application form that the harm he had suffered in Ukraine was that he lost his job as [occupation] in [late] 2009 because of his political views (against the former President’s political platform), however he told the Tribunal that he did not lose his job, he decided to resign from his job because he did not like the corruption that he was forced to be engaged in. When this inconsistency was put to the applicant, he did not explain why, instead he said that he was forced to collect bribes all the time and with the constant threats he couldn’t stand it anymore and that is why he left. The Tribunal considers his inability to explain the inconsistency as to whether he resigned from his job or whether he lost his job, undermines his credibility.

    ·     His evidence to the Tribunal however led to a further inconsistency. When the Tribunal asked how long he was forced to collect bribes, he said he was forced to do this when he was working at the [government agency], he collected bribes for about 5 to 6 years. The Tribunal noted that this was inconsistent with what he told the delegate at interview[4], namely that he was forced to collect bribes for one year from 2008 until 2009. In response to this inconsistency, the applicant said that as far as he remembers, he was forced to collect bribes the whole time he was with the [government agency] and he doesn’t know why it is noted otherwise. The Tribunal has considered this explanation however it does not find it plausible that the applicant cannot remember whether he was forced to collect bribes for 5 to 6 years, or one year. The Tribunal considers this undermines his credibility.

    ·     Concerning his reason for lodging a protection visa application as told to the delegate, the applicant said to the Tribunal that there was the hiring of criminals in the [agency], but he didn’t know anything about it. The Tribunal considers that this changing of his evidence also undermines his credibility.

    ·     The Tribunal notes that despite it being put to him, the applicant has not explained the reason why there is a significant difference between his claims at the delegate’s interview (he was forced to take bribes for a year and he allowed [certain services] to [be authorised]) and at the Tribunal hearing (he stopped [authorising these services] for five years). The Tribunal considers this also undermines his credibility.

    Not credible and inconsistent evidence concerning his claimed reason for harm

    [4] As set out in the delegate's decision record, page 4.

23. The Tribunal had numerous concerns about the applicant’s claim of threats and feared harm as discussed at the hearing, and set out below:

    ·     As noted above, the applicant had claimed at hearing that while he held his role as [occupation] in the [government agency], he had thwarted the efforts of corrupt MPs to make a significant amount of money (the equivalent of [amount] to [amount] Australian dollars), by stopping [certain services]. He also told the Tribunal that these corrupt MPs would be able to harm him upon return, because they have connections to criminals and the underground. The Tribunal put to the applicant that it appeared difficult to accept that these corrupt MPs, who were losing money because of the applicant’s actions, and who have connections to criminals, just made empty threats against him for five years, even though they were losing millions of [dollars].

    ·     The Tribunal further put that it seemed difficult to accept that even after he left his job in [late] 2009, these MPs, who he claims want him to repay the millions of dollars, only beat him once, in February 2010, and then continued to make (empty) threats of harm, and wanting the money repaid, for the next nine months before he left Ukraine

    ·     According to his application form, he lived at the same address in Ternopil from [2004] until November 2010 (when he came to Australia). He told the Tribunal that this was an apartment owned by his [relative], and that although he had lived there since about 2000, he officially updated his registration to that address in about 2008. The Tribunal put to the applicant that he had lived at the same address for many years (which he confirmed to the Tribunal), despite his evidence to the Tribunal that he had received consistent threats to harm and/or kill both himself and his family, which the Tribunal noted seem to indicate that he did not have a fear of harm, and that people were not intending to harm or kill him.

24. In response, the applicant said that maybe it was because he was [an agency employee] that they didn’t take action against him. The Tribunal considers this are unlikely, given the applicant’s claims that he managed to stop these corrupt MPs from making millions of dollars over a five-year period. The Tribunal put to the applicant that even if that was the case, the threats continued after he left his job in [late] 2009, yet he continued to live in the same house, and he was not harmed (except, as he claimed, he was beaten him once in February 2010). The Tribunal considered this to be unlikely.

25. The applicant then changed his evidence about where he lived, which caused the Tribunal further concern, stating that he didn’t spend all the time living in his home. He claimed that he would spend a month in his mother’s village, and another month in his mother-in-law’s village. The Tribunal put to the applicant that his earlier evidence was that he had only lived in the same home he had lived in for many years, and he had not earlier claimed that he was living in hiding or moving about. The applicant said that he was not living in hiding, but maybe he thought the Tribunal was asking him about his permanent place of residence. The Tribunal does not accept this explanation, noting that it had specifically asked him about whether he had lived at any other place, and he had said no. The Tribunal also notes that the applicant said he was not living in hiding, which again indicates that he didn’t have a fear of harm, and the Tribunal considers there is no reason why these corrupt MPs or their agents couldn’t find him and hurt him, given the continuous threats, and the claim that they consider he owes them a significant amount of money. The applicant was unable to offer an explanation as to why he continued to reside in his home, and why, despite constant threats, and the corrupt MPs believing that he had their money, no harm came to him (except for one claimed beating). The Tribunal considers this undermines his credibility and his claims.

    Inconsistencies about harm and threats experienced

26. The Tribunal was concerned that the applicant claimed, for the first time at hearing, that he had been beaten. When asked if he had experienced any harm in Ukraine, he said that he was beaten up so he had to stay at home for three days. He didn’t know who beat him, but when they beat him they said that he owes them, there are debts. He said there was no further beating, but there were further threats. This started with a telephone call about two weeks after he was beaten, and the calls continued two to three times per week until he left. He was told that unless he returns the money, he won’t live.

27. The Tribunal asked if the applicant told the delegate that he was beaten, and he said no, because he didn’t ask. This however was inconsistent with the delegate’s decision record which noted that at interview, the delegate had asked the applicant if there was anything other than threats, and he replied no, there were only phone calls. The Tribunal put to the applicant that if he had been beaten, it does not understand why he would not have told the delegate about this. In response, the applicant said maybe he forgot or maybe he just didn’t think it was important. The Tribunal does not find this response persuasive, and considers that the applicant’s inconsistent evidence about whether or not he was beaten undermines his credibility, and his claim that he was harmed in Ukraine, as does his failure to offer a reasonable explanation for omitting to mention this at interview.

28. Further, when the Tribunal asked if there was any other incident that had caused him concern, or would cause him concern about going back, he made a new claim that there had been ongoing threats, on average three to five times per month, for the five year period that he was with the [agency] ([span of years]). He received the threats on each occasion that he stopped the [services being authorised]. He was threatened that he had to give the MPs the money from the [activity] otherwise he would suffer and he may not live. 

1. The applicant said he did not mention these ongoing threats to the delegate. The Tribunal put to the applicant its concern that he told the delegate, as set out in the delegate’s decision record, that he began receiving threats in February 2010[5]. The Tribunal noted this was very different to his claim to the Tribunal that he received threats for five years from [span of years]. In response, the applicant said that maybe he thought that the delegate was interested in the threats after he resigned from the [agency]. The Tribunal does not find this persuasive, and considers that if the applicant had been subjected to ongoing threats for a five year period, he would have told the delegate about this. The Tribunal considers that this undermines his evidence and his credibility.

   The claimed travel to [Country 1]

   [5] Page 4.

2. The Tribunal was also concerned about the applicant’s travel to [Country 1]. In his application form he claimed he had visited [Country 1] from [in] 2010; he produced his passport which contained a visa to [Country 1] and some stamps, and he told the delegate (as set out in the decision record and discussed further below) that he had been to [Country 1]. The Tribunal put to the applicant that there were threats to harm him (and his family) in February 2010, he was not going to pay the money to the MPs; in these circumstances it seemed difficult to understand why he would have travelled to [Country 1] for a holiday at that time (as claimed in his application form). The applicant then said that he did not go to [Country 1]. The Tribunal said that according to his application form he travelled. He said he obtained a visa, but they wouldn’t provide him with refugee status so he didn’t go. The Tribunal asked why he would have said he visited [Country 1], on specific dates, in his application form, if he didn’t go, and he said that it was all part of the agent applying for the Australian visa, but he didn’t actually go anywhere.

3. The Tribunal said that this caused great concern, as he had actually had a conversation with the delegate about his visit to [Country 1], as set out in the delegate’s decision record:

   I asked the applicant why he had travelled to [Country 1] in March 2010 and returned after a few days. He stated that he was hoping to get protection in [Country 1] but he found that that was not possible. He went because it was easy to get a visa…I asked if he had any difficulties departing to or returning from [Country 1]. He replied that he did not….I asked the applicant if he had travelled to [Country 1] without his family. He replied that he had.

4. The Tribunal asked the applicant why he would have that conversation with the delegate if he had never travelled to [Country 1]. In response, the applicant said when the agent obtained the visa to [Country 1] he asked if he wanted to travel and he said no, he didn’t want to leave his family behind. The agent told the applicant to say he had gone to [Country 1] if anyone asked. The Tribunal said it was difficult to accept that he was now telling the truth in this regard, given he had maintained that he had travelled to [Country 1] in his application form and in his interview with the delegate. The applicant responded that he is now saying the truth, and he doesn’t remember what he told the delegate.

5. The Tribunal’s concerns about his claims were heightened when it noted that he had said that the agent had offered him the chance to travel to [Country 1], out of the country, yet despite his claim of being subjected to threats, he did not do so. In response the applicant said that he didn’t exactly recall why he didn’t travel to [Country 1] at the time; but at that time he just couldn’t go, there were some circumstances but he can’t recall them, maybe for family reasons he was not able to go, was it that his mum was sick? He can’t recall for sure but something prevented him from going. The Tribunal does not find this response persuasive and considers that if the applicant was threatened to be killed, and he was given an opportunity to leave the country, he would be able to recall the specific reason why he did not leave. While the Tribunal notes that earlier, the applicant had said that he wasn’t going to travel there because of his family, he did not repeat this when the Tribunal was putting to him that he could have gone there to escape harm. The Tribunal considers that his evidence undermines his claims and his credibility.

   Inconsistent and not credible evidence about whether his wife and family face harm

6. The Tribunal put a further concern to the applicant, namely in relation to his wife and children. He told the Tribunal that his wife remains at the family home, and she and the [children] have continued to live there ever since he left for Australia. His children are [at] local schools. His wife is [an occupation] at a [business]. [One child] live separately because [he/she] married.

7. When asked by the Tribunal, he said that his wife and children had not been threatened. The Tribunal put to the applicant its concerns in this regard, noting that he told the delegate, as set out in the delegate’s decision record[6], that in February 2010, he began receiving threatening phone calls telling him to hand over the money or they would kill him and his family. The Tribunal said it was concerned with this inconsistency, and in response, the applicant said that there were verbal threats about his wife, but she wasn’t threatened in person. The Tribunal said that it did not understand why he thought they would not carry out the threats. It also noted that he and his family remained living in the home after the threats were made (February 2010), and it did not understand why he would put his family at risk. In response he said that he cannot give a guarantee that they won’t carry out the threats, but so far it has not happened. The Tribunal has considered this explanation but does not consider it to be persuasive.

   [6] Page 4.

8. The Tribunal also put to the applicant that it did not understand how he could have left his family, who had been threatened to be killed, at the same address where they could be easily targeted, while he had been remaining unlawfully present in Australia for four years, not taking any steps to obtain protection (or thus help his family). The Tribunal considered that it seemed highly unlikely that he would leave his family in such circumstances if his claims were true. The Tribunal noted that this had been put to the applicant at interview, as set out the delegate’s decision record[7], and in response, the applicant had said firstly that the threats were coming straight to him; when the delegate pointed out that he had earlier in the interview said that he and his whole family were being threatened; he replied that more of the threats were targeted to him.

   [7] As set out in the delegate's decision record provided to the Tribunal by the applicant, page 11

9. Having considered this evidence, the Tribunal then put to the applicant its concern that he would leave his family for such a long period of time in such risky circumstances. In response, the applicant offered a different explanation, claiming that when his wife was approached after he left, she explained to the people who threatened her that the applicant had abandoned her and she had no idea where he was. The Tribunal noted this was inconsistent with his explanation given to the delegate; the applicant did not offer an explanation for the inconsistency. The Tribunal considers this undermines his credibility and his claims.

   The applicant’s employment

10. The applicant claimed that the events that led to his fear of persecution occurred when he was a [government agency employee] in Ternopil. The Tribunal was concerned however about the applicant’s claim that he was [occupation]. In this regard, as noted in the delegate’s decision record, and/or put to the applicant pursuant to s.424AA of the Act, in the applicant’s offshore [temporary] visa application, he claimed to be in a de facto relationship (with [Ms A], the person with whom he travelled to Australia, not his wife), and that he worked and was part owner of a [business] with [Ms A]).

11. This was inconsistent with his protection visa application form, when he claimed he was a [government agency employee] until [late] 2009, and thereafter was unemployed. He also told the Tribunal that he resigned from his [position] in [late] 2009, and he did no work after that. When the Tribunal sought clarification that he did nothing after that, he agreed.

12. This assertion, made twice, that he did no work after his [government agency] work, was also inconsistent with his evidence to the delegate, as set out the delegate’s decision record provided to the Tribunal:

    At interview I put to the applicant that his application for a [temporary] visa to Australia stated that he was employed as [in a business], which was inconsistent with his protection visa application which stated that he was unemployed after he left the [government agency]. The applicant stated that he had been [working in the business] for a couple of months after he left the [agency].

13. When the Tribunal put its concerns to the applicant in this regard, he said it is correct that he was unemployed after leaving the [government agency]. He said maybe when he was applying for [temporary] visa, maybe that agent wrote in the application form that he was [working in a business] and maybe he was following his agent’s advice and saying (to the delegate) that he was [that occupation] when asked about his occupation; he does not really recall the details.

14. The Tribunal also put to the applicant pursuant to s.424AA of the Act the Department’s view about his non-truthful character[8] as a result of making visa applications to the Department: in his [temporary] visa application he was a private business owner, [an occupation], with a reasonable travel history and living in a de facto relationship with [Ms A] who also owns the [business]). The applicant said he didn’t have any business, he was not working as [that occupation] and he was not in a de facto relationship with her, he has never heard about that woman, he has a wife and children, he found an agent in Kiev who said he can organise a visa, the applicant didn’t know what was written in the form; before he left he was instructed by the agent to say he had been to [Country 1] and he was [that occupation].

    [8] As recorded in the Departmental file.

15. The Tribunal has considered the applicant’s explanations but does not find them persuasive, noting that he continued to change his claims in this regard throughout the chronological process: he made the [business occupation] claim firstly in the [temporary] visa application; not in the next application (protection visa); he made the claim again in the interview with the delegate; and then he denied it in his evidence to the Tribunal.

    The applicant’s delay in claiming asylum in Australia

16. According to the applicant, he left Ukraine [in] November 2010, and arrived in Australia [two days later]. His visa expired [in] December 2010, and he remained unlawfully present in Australia thereafter. He did not claim asylum until [January] 2014. The Tribunal was concerned about his significant delay, of three years, in claiming asylum. Noting the applicant’s claim in his protection visa application form that he left Ukraine due to a fear of persecution, the Tribunal put to the applicant that his delay did not indicate that he was a person in need of protection. The Tribunal asked applicant why he had not claimed asylum earlier, and he said he was told by friends that he had little chance of getting a visa so he wanted to stay illegally for an indefinite period of time, however he was caught because he lived with a friend who died. The police arrived and discovered he was illegal.

17. He claimed that he was aware of protection visas, yet he didn’t believe he would be successful, but he did not even approach a migration agent or lawyer in order to ascertain his options. When the Tribunal put to him that this seemed difficult to accept, he said that he had a friend who worked in the Immigration Department who told him that he wouldn’t get a protection visa. The Tribunal considers that if his claims of political persecution were true, there is no reason why a person in the immigration Department would tell him that he would not obtain a visa. The Tribunal is not satisfied with the applicant’s explanation for his delay, and considers that he could have obtained his own advice about something as important as whether he was entitled to obtain protection in Australia and then bring out his wife and children, whom he claims were still being contacted by the people who wanted to hurt him.

    The applicant’s claims in the compliance interview

18. The Tribunal was concerned with what the applicant had said in the Compliance Interview when he was located by the authorities. As set out the delegate’s decision record provided to the Tribunal by the applicant[9], when he was interviewed by the Departmental compliance officer [in] January 2014, he said there was no reason why he could not return to Ukraine, but that his family expected him to return; he had only intended to remain in Australia for 6 to 12 months. The Tribunal put this to the applicant, noting that it was difficult to understand how, just one week later, he had lodged a protection visa application. In response, he said he was concerned that they would force him to go back and so he thought that if he told them he would leave, he would have a chance to apply for protection. The Tribunal has considered this explanation, however does not find it persuasive. The Tribunal notes the applicant had been in Australia for over four years by the time he was detected by the Department, he told the Tribunal he was previously aware of protection visas, and thus the Tribunal considers that he could have immediately told the Compliance Officer that he intended to apply for a protection visa. The Tribunal considers that his evidence to the compliance officer indicates that, one week prior to lodging his protection visa application, he had no fear of harm, and there was no reason to him not to return to Ukraine. The Tribunal considers this undermines his credibility and his claims of past harm.

    [9] Page 12.

19. On the basis of the above, the Tribunal is not satisfied that the applicant is a witness of truth. It is not satisfied on the evidence before it that there is any reason, such as possible nervousness, which could explain the difficulties with his evidence.

20. Considered cumulatively, the concerns the Tribunal holds about the applicant's credibility as discussed above lead the Tribunal to conclude that the applicant is not a witness of truth and the applicant has fabricated accounts of events, as well as claimed fears, upon which he has based his protection claims.

    Findings on the applicant’s claims

21. The Tribunal is prepared to accept that the applicant was living in Ternopil. It is prepared to accept that despite the claims about a de facto relationship with [Ms A], the applicant will return to his wife and children, and continue living in Ternopil. While the Tribunal accepts that the applicant worked in Ukraine, as did his wife, the Tribunal does not accept that he was a [government agency employee] of any [position] as claimed. The Tribunal considers that whatever his past work, he will return to Ukraine and continue to work.

22. On the basis of the adverse credibility finding, the Tribunal is not prepared to accept that the applicant suffered any problems in Ukraine. The Tribunal does not accept that he or anyone who worked him was involved in taking bribes or [authorising services] or corruption or the hiring of criminals or stopping [certain services] or corrupt money being collected or that he resigned because he was embarrassed or that he lost his job for political or corruption reasons, that he was an opponent of Yanukovych and his regime, that he supported Yushenko, that he or his family received constant, or any threats, or that he suffered any harm such as a beating, that corrupt MPs believed that he had their money, or that anyone considers that he owes them a debt. The Tribunal does not accept that the applicant suffered any past harm in Ukraine, and thus it does not accept that he felt that he needed to escape the country to travel to [Country 1] or Australia.

23. The Tribunal finds that the applicant travelled to Australia for reasons other than a fear of persecution. The Tribunal does not accept the claimed reasons for the applicant’s three-year delay in lodging his protection visa application. The Tribunal considers that the applicant did not lodge a protection visa application because he did not fear harm in Ukraine.

24. The Tribunal noted that the applicant had made claims (in his application form and/or at interview as set out the delegate’s decision record), based on the political situation in Ukraine and the security situation. As noted above, he told the Tribunal that his only fear was the corrupt MPs who believe that he owed them money he had not paid. The Tribunal has not accepted this claim. He did not suggest to the Tribunal that he had any fear of the security situation, corruption or the political situation (outside of his claims, which the Tribunal has not accepted). When the Tribunal raised with the applicant the situation in the country, he responded that he does not have a fear based on political opinion, previously there were people who posed a threat to him, the government has changed, there is a new president, he can’t see what is happening in Ukraine, and it is hard to tell the situation when in Australia. On the evidence before it, the Tribunal is not satisfied that the applicant faces any real chance of serious harm (or any real risk of significant harm) based on the political or security situation in Ukraine.

25. The Tribunal has considered the applicant’s claims individually, and, on a cumulative basis, having regard to the findings that the applicant is not a credible witness concerning past or future harm feared other than those claims accepted above, as well as the relevant country information, the Tribunal rejects all the various claims made and finds that he does not have a well-founded fear of Convention-related persecution for any of the reasons put forward by him, or on his behalf.

    Complementary protection

26. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa) (see Annexure A, which provides a summary of the relevant terms).

27. The Tribunal has accepted that the applicant is a [age] year old male, who lives in Ternopil with his wife and children. The Tribunal has found that he will return to his wife and children in Ternopil, and that he will continue to work there.

28. The Tribunal does not accept that he (or his family) has experienced any of the past harm claimed, including threats or a beating, nor that he considered that he had to leave Ukraine out of fear.  

29. The Tribunal is not satisfied that the applicant has suffered harm in the past, nor is it satisfied on the evidence before it that he faces a real risk of significant harm in Ukraine if returned there, for any reason including the security or political situation.

30. On the evidence presently before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case Ukraine, there is a real risk that he will suffer significant harm for the purposes of s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

31. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

1. The Tribunal affirms the decision not to grant the applicant a Protection (C lass XA) visa.

   Christine Cody
   Member

   
   

ANNEXURE A - RELEVANT LAW

1. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.

   Refugee criterion

2. 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 under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

3. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

4. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

5. There are four key elements to the Convention definition. First, an applicant must be outside his or her country. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

6. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

7. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

8. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

9. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

   Complementary protection criterion

10. 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 a protection 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 the applicant 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’).

11. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

12. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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 and the Tribunal has done so.