1508583 (Refugee)

[2017] AATA 952

1508583 (Refugee) [2017] AATA 952 (11 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1508583

COUNTRY OF REFERENCE:                  Ukraine

MEMBER:Lilly Mojsin

DATE:11 May 2017

PLACE OF DECISION:  Sydney

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

Statement made on 11 May 2017 at 2:25pm

CATCHWORDS

Refugee – Protection visa – Ukraine – Particular social group – Men of compulsory military draft age – Political opinion – Military conscription – Genuine conscientious objection

LEGISLATION
Migration Act 1958, ss 36, 65, 499

Migration Regulations 1994 Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa [PV] under s.65 of the Migration Act 1958 (the Act).

2.     The applicant, who claims to be a citizen of Ukraine, applied for the visa [in] June 2014 and the delegate refused to grant the visa [in] May 2015.

3.     The applicant appeared before the Tribunal on 16 February 2017 to give evidence and present arguments.

4.     The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.

RELEVANT LAW

5.     See Annexure A

CONSIDERATION OF CLAIMS AND EVIDENCE

6.     In his PV application the applicant stated that he was born in [Country 1] and holds a passport of the Ukraine. He is [number] years of age.  The applicant arrived in Australia [in] November 2013 as the holder of a [temporary] visa which ceased [in] November 2014.  On 16 May 2014 the applicant's [temporary]  visa  sponsor withdrew their support.

7.     In his PV Application the applicant claims that:

• He departed Ukraine prior to the current conflict.
• Since arriving in Australia he has been conscripted into the National Gvardy (army). He was advised by his parents who told him that he had received mobilisation orders. He states that he will not acquiesce to this order.
• He is opposed to fighting against fellow Ukrainians.
• He was excluded from National Service because of a [medical condition] however now he has been conscripted.
• His [sibling] refused to report to the authorities after receiving his mobilisation orders and was beaten and threatened. His [sibling] fled to [Country 2]
• He does not believe the current authorities in Ukraine will protect him as they are they are the agents of conscription and will persecute him if he does not present himself.

8.     The applicant attended an interview with the Department [in] May 2014. He additionally stated:

• he is the sole trader in [a consultancy business] since January 2015
• he had studied various [subjects]. He had the opportunity to travel to see other countries and to make some money. In [Country 2] he was [conducting sampling] and in [Country 3] he worked in a [glasshouse].
• his sponsorship was withdrawn when he returned to Sydney but he was not aware of breaking his contract with the sponsor group
• 12 months ago the government in Ukraine changed. He was afraid to return to Ukraine so he decided to apply for a [temporary] visa. He planned to learn English and then enrol in his chosen [field] and he was going to ask his parents for a loan.
• he feared being drafted into the army and being sent to "the front".
• he had nothing against the draft or military service but felt that the current conflict in the Ukraine was created by politicians who were motivated by money.  The  disagreement between these people  could have been stopped before through consensus.
• he was excluded from the draft in about 2012 after a medical examination in October or November 2010.
• the situation of the government was changing all the time. He had nothing against serving but didn't want to be in an unjust war for politicians’ political game.
• Russia wanted to take part of the Ukraine territory but the USA is against that so this has led to a confrontation.
• when asked when he received his conscription notice he stated that he had not received a draft notice personally. He didn't know whether a notice had been sent.
• his [sibling] and his [sibling’s] friends would have gotten involved in the confrontations at Independence Square in Kiev and were beaten.
• asked when his [sibling] had been called up for conscription, he claimed it was May 2014. He said his [sibling] had departed Ukraine before the notice came. He was asked how he is able to stay in [Country 2] and he said his [sibling] was a student there.
• he did not know if there was a penalty for not reporting after receiving a draft notice.
• when asked about the timing of his decision to leave Ukraine, he said that he wanted to improve his material and financial situation first. He said that he thought he would be much better off  living in [Country 2], [Country 3] or Australia than living in Ukraine.  when he was a student at school or university he was treated as a "loser", because in the town where he lived, it was divided into suburbs whose residents fought with the residents of the other suburbs. He said that he had to pay to be excluded from the fighting.
• when asked if he had applied for a protection visa because he could not apply for anything else, he agreed. It was the only way he could remain in Australia and he feared the situation in Ukraine.
• he could try to get refugee status in [other countries] but he thought he could stay in Australia to develop himself here.

9.     At the Tribunal hearing the applicant stated to the Tribunal that he had studied [specified subjects] at university and worked with his family in the Ukraine. He came to Australia because students of his university have the opportunity to obtain international practice. When he was studying, he visited the [Country 3] and [Country 2]. 

10.      Nothing happened to him when he lived in the Ukraine.  His [sibling] is in [Country 2].

11.      When asked what he fears about returning to the Ukraine, he said that he is afraid that if he goes back he will be conscripted into the army and he is afraid of killing peaceful civilians. He is not afraid of going into the army and fighting but this war is against Russia and a lot of peaceful civilians are being killed. He does not want to kill civilians. There is no other reason.

12.      The applicant confirmed that he has not been conscripted yet. He had previously received a white ticket that meant that he was found unfit for military service as he had a minor problem with his [body part]. But things are changing, as he is physically fit and as his previous medical problem was minor, he thinks his current status would change. He said that he would go into the army but he does not want to kill.

13.      The applicant stated that all the information shows the system is not working, but if he does go back and they call him to the army, if he refuses to go because of his opinion or conviction that he should not participate in the war he is afraid that the legal mechanisms are not working.  Whenever he calls people in the Ukraine, they say they do not care about your convictions and they draft them in and grab them. As for prisons if you refuse to go into the army and they put you in prison and there is a chance that will happen, prisons are in bad conditions.

14.      In summary he does not want to kill people.

15.      When discussed with the applicant that conscription is Ukraine is a law of general application, that punishment is non discriminatory and that draft evasion and desertion are criminal offences and punishable by law, in practice, the courts issue fines or suspended sentences in most cases and such penalties are neither disproportionate nor excessive the applicant agreed. 

16.      I discussed with the applicant a recent UK Home Office Report November 2016[1] regarding conscription in Ukraine. I gave the applicant a copy. At the conclusion of the hearing I asked the applicant if he wished to make any submissions to me regarding this document.  The applicant did not wish to make any submissions.

[1]

REASONS AND FINDINGS

17. On the basis of his Ukrainian passport, I accept that the applicant is a national of Ukraine and not a national or citizen of any other country. I accept that he does not have a right to enter and reside in any country other than Ukraine. Therefore I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Ukraine is the applicants’ “receiving country” for the purposes of s.36(2)(aa).

18.      In considering this application for review, I have considered the relevant Australian case law where the enforcement of compulsory military service and punishment for desertion or avoidance of such service has been judicially considered. In Australian law, enforcement of laws providing for compulsory military service, and for punishment for desertion or avoidance of such service, will not ordinarily provide a basis for a claim of persecution within the meaning of the Refugees Convention because it lacks the necessary selective quality. Without evidence of selectivity in its enforcement, conscription will generally amount to no more than a non-discriminatory law of general application.

19.      I accept that the applicant left the Ukraine, after studying at university and came to Australia in order to enhance his existing qualifications. I accept that the applicant did not serve national service, obtaining an exemption on medical grounds. I am satisfied that the applicant did not suffer any Convention related harm in Ukraine prior to his arrival in Australia.

20.      As the applicant confirmed at the Tribunal hearing that nothing happened to him in the Ukraine I reject his claim that when he was a student at school or university he was treated as a "loser", because in the town where he lived, it was divided into suburbs whose residents fought with the residents of the other suburbs and he had to pay to be excluded from the fighting.  Furthermore, as the applicant said that he was not conscripted when he was in the Ukraine and had not received any notice since being in Australia, I reject his claim made to the Department that since arriving in Australia he has been conscripted into the National Gvardy (army).

21.      I am required to consider the situation if, in the reasonably forseeable future, he were to return to the Ukraine, that there is a real chance the applicant would suffer serious harm for reasons of his race, religion, nationality, membership of a particular social group or political opinion or there is a real risk the applicant would suffer significant harm.  The applicant stated that he does not want to return to Ukraine as, whilst he has not as yet been served with any conscription notice, he would be conscripted. Whilst he does not object to going into the army, he objects to killing people.

22.      According to UK Home Office Country Policy and Information Note, November 2016 [2]‘Ukraine's acting President Olexander Turchynov reinstated military conscription to deal with deteriorating security in the east of the country…Kiev scrapped compulsory military service for young men in late 2013 under a law introduced by then President Viktor Yanukovych. Regular military conscription of 18–25 year-old men was reinstated.  As the conflict in the East intensified the Government in Kyiv instituted military mobilization in order to bring additional qualified personnel into the army. The President issued three decrees on “partial mobilization” in 2014 dated 17 March, 6 May and 22 July respectively.

·     Persons targeted for mobilization included persons with past experience as paratroopers, grenade launchers, in artillery, logistical support, and other personnel (including physicians, electricians, mechanics and drivers).

·     Regular military conscription of 18–25 year-old men was being carried out between May-July and October-November 2014. Under Ukrainian law, conscripts serve for twelve months.

[2]

23.      Over the two years from 2014, the new government declared six waves of mobilization.. a special kind of military draft separate from regular conscription that is used to respond to an emergency. The draft was needed to boost military units sent to fight the rebellious eastern regions of Donetsk and Lugansk. Ukraine nearly doubled the strength of its army from the initial 130,000 to 232,000 in 2014 and wants to have 250,000 standing troops. 210,000 people were drafted overall, some of them already demobilized. ‘The initial surge of volunteers dwindled while the number of people who would rather risk prosecution for dodging the draft than put their necks on the line increased. ‘During the latest sixth wave in July-August 2015, the Ukrainian military managed to get just over 60 percent of the intended draftees, the Defense Ministry reported. There were 8.5 percent of volunteers among them. ‘The military complained that its officers often had problems with getting the summons to potential draftees, who moved to another address or simply refused to open their doors. Of those who did get their summons, over half chose to ignore it and run. The ministry said 26,800 men are now subject to prosecution for avoiding military service.

24.      In September 2016 a seventh wave of mobilisation began. Reporting in October 2016, Ukraine Interfax News Agency stated that 7,908 people will be sent to the Armed Forces of Ukraine, 5,000 people to the National Guard and 1,000 people to the State special transport service out of the total number of conscripts. ‘...As the General Staff of the Armed Forces of Ukraine reported later on the official Facebook page, the conscript will finish on November 30, 2016. ‘At the same time, army discharge of those who have served fixed term of time military service has started. A total number of those who must be released in October-December 2016 is 8,315 people.’

25.      On 1 May 2014 the acting President of Ukraine signed a decree reinstating military conscription for males between the ages of 18 and 25 (who did not qualify for exemption). However, in January 2015, the upper limit of compulsory military draft age for male citizens was raised from 25 to 27 years. In April 2015, Ukraine Today noted that ‘Previously, the ministry recruited men from 18 to 25 years, but now their age is to be from 20 to 27 years.’ The applicant is [number] years of age.

26.      President Poroshenko’s official website reported on reservists in August 2016: ‘President Petro Poroshenko signed the Law to raise the age limit for military service in reserve for those who have the experience of military service and may be used to resupply the Armed Forces of Ukraine and other military formations. ‘In accordance with Law № 1604-VII “On amending Article 28 of the Law of Ukraine “On military duty and military service”, the age limit of staying in reserve is increased for the second class from 50 to 60 – for privates and sergeants, from 55 to 60 – for junior and senior officers, to 65 – for high rank officers.

27.      There are numerous exemptions, which include conscientious objection on religious grounds for members of religious organizations registered in Ukraine.  According to the UNHCR, Ukrainian Law No. 3543-XII of 21 October 1993 On Mobilization Preparedness and Mobilization[3] the following categories of people can be exempted from military draft during mobilization: employees of State authorities; local self-governance bodies; enterprises, institutions and organizations blocked for the mobilization period; persons recognized as unfit to serve due to health condition subject to certification every six months; caregivers to three and more children below 18 years old; single parents of children below the age of 18 years; caregivers of children with severe disabilities; legal guardians and foster parents of orphans or children deprived of parental care; caregivers to spouses or parents in severe medical condition; and parliamentarians.

[3]

28.      According to UK Home Office Country Policy and Information Note, November 2016[4] there is no evidence to suggest that the Ukrainian government views a person’s refusal to participate in military service as an act of political opposition. If persons are punished on return, it is likely to be simply for the criminal offence of evading or deserting national service.

[4]

29.      Following reforms of the penitentiary system in Ukraine in 2014, conditions in some prisons and correctional facilities have already been improved and Ukraine plans to implement further reforms to bring conditions more in line with European standards.  Fewer cases of torture and mistreatment have been recorded by human rights organisations since 2012. In addition, the Supreme Rada of Ukraine transferred the functions of the key monitor of the ‘National Prevention Mechanism’ to the office of the Ukrainian Ombudsman.

30.      In 2014, Ukraine launched further reforms of the penitentiary service in Ukraine. The EU and the Council of Europe provided more than €10,000 to Ukraine to assist with these reforms, in particular to bring procedures and practices in prisons in line with European standards and to support the improvement of prison inspection and handling of prison complaints.

31.      With support from the Ukrainian government, and with recommendations from the Council of Europe, the Ministry of Justice of Ukraine along with the State Penitentiary Service have improved the conditions in some prisons and have succeeded in reducing the number of prisoners who serve their sentence within state institutions. Many individuals are now placed under house arrest rather than in pre-trial detention centres. A new mechanism for probation was also introduced in 2015. In addition to this, the Ministry of Justice of Ukraine plans to reduce the number of prisons and detention centres in Ukraine by half and to update and improve aging remand buildings

32.      As the applicant has turned [number] years of age he is not eligible for conscription.  As the applicant has not served in the military he is not a reservist. But as the fighting in Ukraine has not, as yet, ceased, I do not find remote the chance that the applicant would be conscripted in light of the evidence before me that since 2014 the Ukraine authorities have extended the age of conscription. As the applicant does not meet the categories for exemption from military service, I am satisfied that there is a real chance the applicant will be served with mobilisation orders on his return to the Ukraine.

33.      I acknowledge that there is no civilian alternative to military service and penalties for draft evasion in Ukraine. There is currently no domestic legislation in Ukraine providing a legal basis for conscripts to claim exemption from military service on the basis of conscientious objection but Ukrainian Law No. 3543-XII grants limited exemptions. The applicant does not claim to be eligible for any categories of exemption.

34.      Draft evasion and desertion are criminal offences and punishable by law. Evasion of military service is punishable in law by up to three years’ imprisonment. However, in practice, the courts issue fines or suspended sentences in most cases. I accept the independent evidence[5]  that such penalties are neither disproportionate nor excessive. I note that the evidence before me indicates that currently there are hundreds of cases opened in Ukraine for draft evasion. In practice (according to the Registry of Court Decisions), 77 guilty verdicts were issued by courts as of February 2016. The majority of these were immediately released on probation.

[5] UK Home Office Country Policy and Information Note Ukraine Conscription, November 2016

35.      I further note that persons targeted for mobilization included persons with past experience as paratroopers, grenade launchers, in artillery, logistical support, and other personnel (including physicians, electricians, mechanics and drivers). The military complained that its officers often had problems with getting the summons to potential draftees, who moved to another address or simply refused to open their doors. Of those who did get their summons, over half chose to ignore it and run. The ministry said 26,800 men are now subject to prosecution for avoiding military service. According to the legislative and regulatory compliance practices medical opinion on fitness for military service may be appealed through the court. 

36.      Conscription law in Ukraine applies to men aged 18 to 25 years of age but this has been varied since reintroduction and extended to 27 years of age. Whilst the law of conscription is discriminatory in that it only applies to men of a particular age, I am satisfied that it is appropriate and adapted to achieving a legitimate object of protecting the security and safety of Ukraine and its population. After completion of military service Ukrainians remain as reservists in the army, subject to mobilisation. In 2014 as the conflict in East Ukraine intensified the Government in Kyiv instituted military mobilization in order to bring additional qualified personnel into the army. Within 2 years there were 6 waves of mobilisation targeting different groups and whilst I am satisfied those waves of mobilisation were discriminatory in that different waves targeted different groups in society eg. Paratroopers or physicians, I am satisfied that mobilisation of reservists and those who have not served previously in the military is appropriate and adapted to achieving a legitimate object of protecting the security and safety of Ukraine and its population. In light of the independent evidence, I find that the laws governing conscription and mobilisation in Ukraine are laws of general application that are appropriate and adapted to a legitimate national objective of protecting the security and safety of Ukraine and its population. I have found no independent evidence to suggest that the conditions of military service would be so harsh as to amount to persecution. I find therefore that the applicant does not have a well-founded fear of persecution by being required to serve in the military.

37.      I have also considered the situation of draft evaders in Ukraine. I have found no independent evidence to suggest punishment for draft evasion or desertion is disproportionately harsh or severe. I am of the view that were it the situation, it would be known to independent sources such as US State Department, UK Home Office and Canadian IRB who report extensively on the Ukraine.  The applicant does not claim that he is or will be considered to be a draft evader by the Ukraine authorities. He stated that he would go into the army. I also find remote the possibility that he will be imprisoned and/or fined for this reason on his return to the Ukraine. I find that he will not suffer serious or substantial harm in the Ukraine as a draft evader.

38.      I have considered the credibility of the applicant’s claims that he has a conscientious objection to military service. The applicant has not claimed, and there is no evidence to suggest, that he has ever publicly voiced his opinions about completing military service or publicly identified himself as a conscientious objector.

39.      According to guidance by the UNHCR[6], conscientious objection to military service refers to an objection to such service based on principles and reasons of conscience, including profound convictions, arising from religious, moral, ethical, humanitarian or similar motives. Such an objection is not confined to absolute conscientious objectors, that is, those who object to all use of armed force or participation in all wars, but can encompass those who believe that the use of force is justified in some circumstances but not in others.  Overall, I found the applicant's evidence about why he objected to military service to be limited to generalities (he does not want to kill his fellow citizens). Therefore, I am not satisfied that the applicant is a conscientious objector to military service. As the applicant has stated that he does not object to going into the army, I am not satisfied he has a conscientious objection either to all forms of military service, or to mandatory military service in Ukraine.

[6]

40.      As the applicant stated that he would go into the army I reject his claim that he feared being drafted into the army and being sent to "the front".  

41.      I find that if, on return to Ukraine, he is required to complete military service he will do so. I find that, in the event of his return to Ukraine, the applicant would not express an opinion or act in such a way as to cause him to be imputed with an opinion that is opposed to compulsory military service or to military service more generally. I do not accept that he would seek to evade military service if he returned to Ukraine or that he would resist or speak out against conscription for any reason.

42.      I do not accept that the applicant has a well-founded fear of persecution because he is a conscientious objector. As I do not accept the applicant is a conscientious objector, I do not accept that there is real risk he will suffer serious or significant harm on this basis.

43.      I have considered the possibility that the applicant will be required to complete his military service.  I find that, if the applicant is required to complete his military service, he will do so in compliance with Ukrainian law. Therefore I am not satisfied that he faces a real chance that he will be prosecuted, penalised, fined, imprisoned or otherwise abused, mistreated or harmed on the basis of being a conscientious objector or for being a draft evader or deserter.

44.      As I do not accept that the applicant is a conscientious objector or a draft evader and I do not  accept that he will be perceived as such during his military service I do not accept that the applicant will be mistreated or arbitrarily deprived of his life during his military service, or that he will be arbitrarily deprived of his life, or that the death penalty will be carried out on him, or that he will be subjected to torture, or that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment  because he is, or is perceived to be, a conscientious objector or a draft evader.

45.      Therefore I find remote the risk that the applicant will suffer significant harm if he were to be mobilised and required to complete his military service. 

46.      I have considered the applicant's claims singularly and cumulatively. Whilst I accept the applicant’s chances of being mobilised are not remote, I do not accept that he is a genuine conscientious objector or that he was, is or will be considered to be a draft evader by the Ukrainian authorities and I reject his claims that he will be harmed for these reasons. I have found that, as a result of a law of general application, the applicant has military service obligation in Ukraine. I find that he will not seek to evade conscription or resist or object to the requirement to complete his military service or mobilisation.

47. Having regard to the available country information I am not satisfied that there is a real chance that the applicant will face serious harm at the hands of authorities, or any other persons or group for reasons of his religion, actual or imputed political opinion, his membership of a particular social group of conscientious objectors or for any other reason if he returns to Ukraine. I am satisfied there is not a real chance that he will be subject to serious harm for one or more of the reasons set out in the Refugees Convention or for any other reason if he returns to Ukraine now or in the reasonably foreseeable future. The applicant does not satisfy the criteria in s.36(2)(a).

48.      As I have found the applicant does not have a genuine conscientious objection to military service and as I am satisfied he will not be perceived as a conscientious objector and as I am satisfied he will not be perceived to be a draft evader or that he will evade or illegally avoid military service if he returns to Ukraine I do not accept that he will be prosecuted and potentially imprisoned and mistreated for these reasons.

49.      I have considered whether there is a real risk that he will face significant harm if he is required to complete his military service obligation. Reuters[7] reports

"There's been negative publicity from the conflict zone ... There were problems with nutrition, medicines and the winter uniform. Patriotism is falling…. Poroshenko's government has also taken steps to improve conditions for those sent to the front. Last year it spent 5 percent of Ukraine's gross domestic product on the military, enabling the army to revamp its creaking Soviet-era hardware…Scandals over corruption and incompetence in the military are now less frequently splashed across the media, but have not disappeared. "

[7] Reuters. ‘Ukraine struggles to recruit soldiers for war in east,’ 4 February 2016.

50.      The US Department of State country report on human rights practice Ukraine covering events in 2016, stated that:

‘There were reports of hazing in the military. On August 4 [2016], the country’s human rights ombudsman sent a letter to the Prosecutor General’s Office and the Ministry of Defense expressing concern about military hazing following the suicide of Vlad Khaisuk, a young soldier serving in a unit stationed in Stanytsia Luhanska. After Khaisuk’s suicide, his parents found videos on Khaisuk’s smartphone of him being hazed and humiliated by other soldiers. The Luhansk Department of the Military Prosecutor’s Office investigated and found no signs of military hazing. At year’s end, however, police in Stanytsia Luhanska were investigating the accident as a homicide.

51.      I accept that there were problems with nutrition, medicines and winter uniform for those serving in the military and that an incident of hazing occurred which is being investigated.  The constitution provides for a human rights ombudsman, officially designated as parliamentary commissioner on human rights. A variety of domestic and international human rights groups generally operated without government restriction, investigating and publishing their findings on human rights cases. Government officials were cooperative and responsive to their views. The Human Rights Ombudsman’s Office frequently collaborated with NGOs through civic advisory councils on various projects for monitoring human rights practices in prisons and other government institutions[8]. On the evidence before me and having regard to the available country information, I find remote the risk that the applicant as a military conscript will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment by the Ukrainian authorities. I therefore find that there are no substantial grounds for believing that there is a real risk that the applicant will be subject to significant harm completing military service on his return to the Ukraine. Having considered the applicant's claims singularly and cumulatively, I find that the applicant does not face a real risk of 'significant harm' in Ukraine.

[8]

52. Therefore I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ukraine, that there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment. The applicant does not satisfy the criteria in s.36(2)(aa).

53. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

Conclusion

54. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

55. 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

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

Lilly Mojsin
Member

ANNEXURE A

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 of the same class.

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. 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’).

5. 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.