1511167 (Refugee)

[2017] AATA 1524

1511167 (Refugee) [2017] AATA 1524 (23 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1511167

COUNTRY OF REFERENCE:                  Ukraine

MEMBER:Saxon Rice

DATE:23 August 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 23 August 2017 at 1:16pm

CATCHWORDS
Refugee – Protection visa – Ukraine – Ethnic group – Russian – Homosexuality – Lesbian - Russian/Ukrainian hostilities – Fear of hate crimes – Harm to family - Credibility - Multiple inconsistencies - Evolving evidence

LEGISLATION
Migration Act 1958, ss. 5(1), 36(2)(a), (aa), (b), or (c), 36(2A), 36(2B), 91R, 91R(1), 91R(1)(a), 91R(1)(b), 91R(1)(c), 91R(2), 91S, 65, 499
Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo

(1997) 191 CLR 559

Nagalingam v MILGEA

(1992) 38 FCR 191

Prasad v MIEA

(1985) 6 FCR 155

BZADA v MIC

and RRT [2013] FCA 1062

SZRSN v MIAC

[2013] FCA 751

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 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] July 2015.

3. The applicant appeared before the Tribunal on 27 July 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.

4. The applicant was represented in relation to the review by her [Child 1] who is not a registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CLAIMS AND EVIDENCE

   Evidence

6. The evidence before the Tribunal includes the following relevant material:

   • The completed protection visa form, lodged [in] June 2014.
   • A range of 2014 international media articles regarding the conflict in Ukraine.
   • NAATI translation of the applicant’s marriage certificate dated [in] May 1979.
   • NAATI translation of the applicant’s birth certificate dated [date].
   • A photocopy of the applicant’s Ukraine passport.
   • NAATI translation of the birth certificate for the applicant’s [Child 1], [name], dated [date].
   • NAATI translation of email from [name] to the applicant dated [in] January 2015.
   • NAATI translation of email from the applicant’s [Child 2], [name] from the email account of [name] to the applicant dated [in] January 2015.
   • NAATI translation of email from [name] to the applicant dated [in] December 2014.
   • Audio recording of the applicant’s departmental interview dated [in] January 2015.
   • The delegate’s protection visa assessment record (‘delegate’s decision record’) [in] July 2015.
   • The applicant’s online application for review [in] August 2015, which included a copy of the delegate’s decision record.
   • Unsigned, undated submission received by the Tribunal on 18 August 2015.
   • References to online articles regarding hate crime in Ukraine provided with the applicant’s response to the Tribunal’s hearing invitation dated 12 July 2017.
   • The applicant gave oral evidence at a Tribunal hearing on 27 July 2017.

7. The applicant did not provide any additional documentary evidence at the Tribunal hearing.

8. The Tribunal notes that the applicant’s departmental file includes a certificate and notification regarding the disclosure of certain information under s. 438 of the Migration Act 1958. The reason given for why disclosure of the information subject to the certificate would be contrary to the public interest is that the folios contain information relating to ‘and internal working document and business affairs’. The folios concerned contain purely administrative material including the Department’s application validity checklists and application and identification test details.

9. The Tribunal gave consideration to the validity of the certificate and on the basis that a public interest reason has not been identified for the relevant folios, finds the certificate invalid. In any event, the relevant folios have not been considered relevant to this review because they are purely administrative. The Tribunal advised the applicant of the existence of the certificate and provided her with a copy at the Tribunal hearing. The Tribunal also advised the applicant of its finding to be invalid.

   Background

10. When lodging her application with the department, the applicant stated that she was born in Kharkov in the Ukrainian Republic. She stated that she speaks, reads and writes Russian, Ukrainian and English. She indicated that her religion was Orthodox and she identifies as ethnic Ukrainian.

11. The applicant outlined that she obtained a ‘[tertiary qualification]’ in [year] as well as a [name] course in [year] and a ‘[name] course’ in [year]. She stated that she worked as a [occupation] at a number of schools and colleges from [years] and as a [occupation] from [year].

12. The applicant holds a Ukrainian passport issued in 2005 (expired). According to details provided in her protection visa application, the applicant arrived in Australia on a [temporary] visa [in] April 2014 and she stated that she has previously travelled to Australia in 2008, 2010 and 2013-14, as well as to [country] in 2013 and [country] in 2012.

    Claims

13. The applicant’s claims, as set out in her protection visa application, evidence at interview as set out in the delegate’s decision record provided to the Tribunal by the applicant, her statement to the Tribunal and her evidence at hearing can be summarised as follows:

    Protection visa application

    • A few months prior to the applicant’s departure to Australia, the conflict in Ukraine became apparent and soon after her departure, the issues escalated.
    • The applicant claims that she has experienced anxiety by witnessing violent outbursts between citizens which was initially controlled by the police but then it became evident that the police were losing control and a large pro-Russian group became established. As part of the Ukrainian group, the applicant realised that potential harm is unavoidable.
    • The applicant fears being forced to join Russia as her town is located on the border with Russia and belongs to Eastern Ukraine region and all power and government is controlled by pro-Russian extremists.
    • The applicant is Russian by birth (born in Ukrainian Republic) and fears relocating to Western Ukraine which is pro-nationalist or if any Ukrainian nationalists find out she is of Russian descent but she also fears returning to her residence in Kharkiv (which has always been a Russian-speaking town) due to her political views about Ukraine being a sovereign entity and independent country.
    • The applicant claims that people are scared to leave their homes as it is unsafe and there have been cases of random abduction and torture.
    • The applicant fears pro-Russian extremists if Eastern Ukraine becomes part of Russia as well as Ukrainian nationalists if Eastern Ukraine remains governed under Ukrainian nationalists.
    • The applicant claims that she may be forced to change her citizenship or nationality because all of Eastern Ukraine is governed and controlled by pro-Russian extremists.
    • The applicant claims that since the beginning of the Ukraine-Russian conflict, Russian-speaking Ukrainians have suffered humiliating and degrading treatment.
    • The applicant claims that there is a lack of any authority in Eastern Ukraine, corruption is high, institutions are not functioning and work salaries and pensions are frozen.

    Evidence at interview as set out in the delegate’s decision record

    • The applicant is opposed to Russia’s involvement in the conflict and considers Russia responsible for the conflict and she is generally opposed to the Russian government.
    • After the conflict started, the ethnic Russian population were called and labelled separatists and because Kharkiv is close to the Russian border, there were pro-Russian and pro-Ukrainian groups fighting with each other.
    • The applicant mainly fears general violence and insecurity in Kharkiv and she claims that her pension has lost its worth because of the devaluation of the Ukrainian currency.
    • The applicant was a [occupation] in Kharkiv for [number] years and in 2013 she retired from [occupation].
    • The applicant owns an apartment that her [Child 2] and [family member] live in. The applicant’s [Child 2] and [family member] were employed and lived in Kharkiv, as does her [sibling] and [sibling’s] family. The applicant’s [Child 2] was safe and did not experience any problems because [Child 2] was not considered an ethnic Russian due to [Child 2’s] father being Ukrainian.
    • The applicant claims that people are recognised as ethnically Russian when they apply for a job and provide their birth certificate as this reveals where they were born.
    • The applicant claims that she could not live in any part of Ukraine because of her Russian ethnicity.

    Statement to the Tribunal received in August 2015

    • The applicant fears being a victim of ‘hate crime’ and hate-based violence due to her Russian ethnicity.
    • The applicant fears being a ‘returnee’ or ‘failed asylum seeker’ as she will be perceived as having been successful elsewhere and having a lack of concern for the ideology of the conflict. The applicant fears she will be discriminated against and punished for her disloyalty.
    • The applicant fears returning to Ukraine as a single woman and without family where there is a very high likelihood of exposure to rape and torture.
    • The applicant claims that authorities in Ukraine know about her attempt at protection in Australia and this has resulted in her [Child 2] being harassed and [family member] being arrested and subject to questioning about her status, ideology of supporting capitalism and whether she is returning.
    • The applicant claims that enquiries have been made of her property and it has been suggested that because she is “safe” soldiers need a place to live and can take over her apartment despite her [Child 2] and [family member] living there.
    • The applicant claims that her [family member] was abducted and taken to a military facility and when they discovered [family member] was of Russian ethnicity, [family member] was beaten and threatened that [family member] would be sent to the war zone and [family member] would be part of the next military call-up in September.
    • The applicant claims that her chances of employment would be limited due to being in a minority if she returns to Ukraine and she will be forced into residential segregation. The applicant is also concerned about general economic conditions and disadvantage.
    • The applicant claims that she is in direct danger and potential harm from pro-Ukrainians that invaded her city and have taken over all infrastructure and harm will be imminent if she refuses to endorse pro-Russian views.
    • The applicant claims that separation from her [Child 1] and her family in Australia will be detrimental to her well-being and she has also met a person and developed a ‘genuine and heart-warming’ relationship.

    Evidence at Tribunal hearing

    • In Australia, the applicant is working as a [occupation] part-time and also volunteering at a Russian school based out of [a] Library on the [location] [doing certain activity].
    • The applicant’s [Child 2] is married with a child and they live in the applicant’s apartment in Kharkiv. The applicant’s [Child 2] is looking after [the] child and [spouse] is unemployed so they are communicating with the [countries] and intending to leave Ukraine. The applicant speaks to her [Child 2] weekly via Skype and the apartment is registered to the applicant and her [children].
    • The applicant’s [Child 2] and [Child 2’s] family have developed problems in Ukraine due to the applicant being in Australia including comments that the applicant is a traitor and her [family member] was made redundant [number] months ago (having worked for the employer for five years) due to [family member’s] Russian ethnicity.
    • In May 2016, the applicant’s [family member] was grabbed off the street and taken to a military conscription centre despite having a health exemption from military service. When they found out [family member] was Russian, [family member] was told that [family member] could go and shoot [family member’s] own. [Family member] was told to be ready for the autumn conscription.
    • The applicant’s [family member] did not have to do service from autumn 2016 because [family member] is a [occupation] and when [family member] was sent [a] ‘call-up notice’, [family member’s] employer said that [family member] could not be released because [family member] was working on an important project.
    • The applicant claims that the process for conscription is that employers receive a list of people who are required to serve and management selects those that will serve and those that will stay so her [family member] did not receive a letter of conscription personally.
    • Other than material and financial problems, the only other problem her [Child 2] has experienced was in May or June 2016 when police representatives came to the applicant’s apartment and wanted to know where she was because they claimed they could use the apartment to accommodate refugees in the city despite the applicant’s [Child 2] and her family living in the apartment.
    • The applicant did not have any problems entering or leaving Ukraine in 2008, 2010 or 2012-13 when she visited Australia previously.
    • The applicant told the Tribunal that from November 2013 when the demonstrations began, people strictly divided into Russians and Ukrainians and friends sharply changed and they would cross the road when they saw her coming. She also said that friends and acquaintances know whether a person has Russian ethnicity or not and employers know because people have to show their birth certificates. The general feeling of the city of Kharkiv was that they were against people of Russian ethnicity.
    • The applicant claims that during the winter of 2014, the balcony of her [number] floor apartment was shot at with self-made pistols and metal staples at night which left holes all over her balcony. The type of guns used did not make a big sound but she cut her leg on one of the staples. The applicant believes it was personally targeted at her because it happened two nights in a row and when she went to report the matter to the police, she was told that there was shooting everywhere and it was some children having fun. The applicant did not want to mend the holes.
    • The applicant also claims that ‘they’ tried to poison her dog by throwing poisoned meat around the entrance to her apartment because she has a black [breed] and it looks like President Putin’s dog.
    • The applicant stated that she is not a political sort of person.
    • At the time she wrote her protection visa application the applicant was concerned that her home city of Kharkiv or Eastern Ukraine may become part of Russia and that is why she made those claims in her application.
    • The applicant is not frightened of Russian power. She said she does not acknowledge or support the Russians. Her main fear is of Ukrainian nationalists and being a victim of hate crime due to her Russian ethnicity and that it is generally dangerous to live in Ukraine. The applicant stated that she also fears being a woman and a returnee from abroad as the general population detest people who go abroad because they see it as a betrayal of the motherland.
    • The applicant claims she is a lesbian and society does not accept homosexuality. The applicant fears being a scapegoat if she returns to Ukraine. The applicant first realised she was a lesbian around 1994 when her relationship with her husband was ‘not quite right’ and he constantly complained about not being sexually involved.
    • The applicant had a secret relationship in 1995 with a woman that lasted one month before she went to the [country] but she had no other relationships while she lived in Ukraine because she thought at one time that it was not normal.
    • The applicant has not had any physical relationships with a woman since she has been in Australia but over the last year, she has developed a relationship with a woman she met at work. The applicant later said that she would not call it a relationship but rather empathy with each other although they have never specifically discussed being gay.
    • The applicant claims that she has not expressed her homosexuality in Australia because she does not know how to go about it and she is used to keeping it hidden. It was only after she ‘pronounced it’ to her [Child 1] in Australia three months ago that she is having to get used to living with it and it is not that easy to demonstrate some sort of a relationship. The applicant did not think about exploring her sexuality on any of her previous three visits to Australia because she was only here for a short stay to see her [Child 1] and grandchild and she was bought up with a conviction that it was not the norm and did not talk about it. She also did not think she should explore her own interests in Australia and she was not sure how her [Child 1] would react.
    • The applicant has not had any other relationships with men or women since she has been in Australia.
    • The applicant did not mention any claim regarding her sexuality in her protection visa application because she did not think about it and she did not think she should use something like this or use her personal situation to gain something from it and she was frightened.
    • The applicant did not mention any claim regarding her sexuality in her interview with the department because the attitude to homosexuals in the former USSR and in Ukraine today is very prejudicial and very hateful and it affects every aspect of life including accommodation, employment and people in the street so to disclose this to total strangers is very difficult. The applicant has been under threat all her life and has not been able to relax and talk about it and maybe she should have disclosed it to draw sympathy but she did not think about it. If she wanted to take advantage of the claim she would have done it before but it did not cross her mind to use this as the basis of her claim.
    • The applicant’s representative, her [Child 1], claimed that [Child 1] had just returned from an international sporting meet in Budapest and two men approached the Ukraine team and told them to stop speaking Russian and not to take any photos with the Russian team. The applicant’s representative also claimed that Ukraine had announced sanctions on regarding the streaming of Russian television and that this information will not be found anywhere so while it seems like the situation has returned to peace, it is a different story on the inside.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Country of reference

14. The applicant claims and the Tribunal is satisfied on the basis of the personal details provided, that she is a Ukrainian national. Ukraine is therefore the receiving country for the purpose of assessing the applicant’s claim for protection.

    Credibility

15. The issues in this review are whether the applicant has a well-founded fear of being persecuted as defined in Article 1 of the Convention and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Ukraine, there is a real risk she will suffer significant harm.

16. The Tribunal also notes that the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:

    As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.

1. Having considered the relevant evidence, the Tribunal has considerable concerns about the credibility of a number of the applicant’s claims. The Tribunal does not accept that the applicant is credible in relation to a number of matters central to her claims of past harm, her family’s situation and future fears and concerns. The Tribunal has made this finding for the reasons set out below.

   Inconsistencies

2. The Tribunal was concerned about the applicant’s inconsistencies between her protection visa application, her evidence to the Department at interview, her statement to the Tribunal and her evidence during the Tribunal hearing about her past experience and that of her family as well as her fear of returning to Ukraine.

3. The Tribunal also notes that the areas of inconsistency in the applicant’s evidence largely relate to adverse findings made by the delegate regarding the applicant and her family’s situation and past experience of harm.

4. On a number of occasions, the applicant also gave evidence that was not credible and not consistent with country information which further undermined her credibility.

   Russian ethnicity, imputed political opinion and hate crimes

   Past harm to the applicant

5. At the Tribunal hearing, the applicant claimed that during the winter of 2014, the balcony of her [number] floor apartment was shot at with self-made pistols and metal staples at night which left holes all over her balcony. The applicant said that she believes she was personally targeted because it happened two nights in a row. The applicant also claimed that ‘they’ had attempted to poison her dog. However, the applicant did not mention the attacks on her apartment balcony or the attempted poisoning of her dog in her protection visa application, or in her interview with the department.

6. In accordance with s.424AA procedure, the Tribunal put its concerns to the applicant regarding this inconsistency in her evidence and that while she had told the department in her interview that people would refer to her dog as ‘Putin’s dog’, she had not told the department that anything had happened to her personally. The Tribunal noted that this inconsistency could cause the Tribunal to doubt the credibility of the applicant’s claims and conclude that they were made for the purposes of strengthening her protection visa application. The applicant did not seek additional time to respond to the information and stated that in 2013 when the revolt began, there were a lot of provocative situations and she cannot list them all. She said that she remembers a lot of horror stories that she may still be missing some of them because the situation was virtually critical at that time. The applicant said it was dangerous to go out on the street and she did report it to the police but she was concerned that it would have caused more trouble for herself.

7. The Tribunal again noted its concern that the applicant had not mentioned the attack on her balcony previously and that as she had said that she did not want to mend the holes in the balcony and they still existed, it would expect to see evidence such as photos of the balcony. The applicant said that it must have slipped her mind.

   Harm to the applicant’s family

8. The Tribunal notes that the applicant claimed that since receiving her protection visa decision from the department, her family have been affected by the conflict in Ukraine. The applicant also stated that the reasons her [Child 2 and family member] have been affected in Ukraine are due to their Russian ethnicity and the applicant having left Ukraine and claiming asylum in Australia.

9. For example, the applicant claimed that her [family member] had been abducted and threatened with military conscription in her submission to the Tribunal in August 2015. However, in evidence during the Tribunal hearing, the applicant claimed that her [family member] was abducted and threatened with military conscription in May 2016.

10. In her submission to the Tribunal in August 2015, the applicant claimed that her [Child 2] had been harassed and that enquiries had been made of her apartment and whether it could be used by soldiers given the applicant was “safe”. However, the applicant then claimed during the Tribunal hearing that local police had made enquiries of the applicant and her apartment and whether her apartment could be used by internal refugees and that this occurred in May or June 2015.

11. The applicant then connected her [family member]’s abduction to around the same time as when she claims police came to her apartment enquiring about her whereabouts and availability of her apartment to house refugees that she stated occurred in May or June 2016. However, as outlined above, the applicant also claimed that enquiries were made of her whereabouts, ideology and the availability of her apartment to house soldiers (rather than refugees) in her submission the Tribunal in August 2015.

12. During the Tribunal hearing, the applicant also connected these claimed events to her [family member] getting a ‘call-up’ for military service which was prevented by [family member’s] employer, shortly before [the] employer made [family member]redundant around eight months ago. The Tribunal also notes that the applicant’s evidence varied in relation to whether her [family member] was threatened with or was conscripted to do military service (and when this occurred) or whether [family member] had a health exemption from service. When the Tribunal highlighted these inconsistencies, the applicant claimed that her [family member] was actually a reservist (which would mean that a ‘call-up’ is not extraordinary or relevant to [family member’s] ethnicity). In her submission to the Tribunal in August 2015, the applicant outlined her concern for her [family member]’s impending conscription that “they do not provide you with any military training or security”, however, this claim in particular is inconsistent with her [family member] being a reservist which implies [family member] has done military training and/or service, previously.

13. The Tribunal considers that the applicant’s inconsistencies with her statement and then her changing evidence once the Tribunal pointed out the inconsistencies, undermined her credibility, claims and evidence.

    Independent country information

14. In a report dated January 2017, the UK Home Office states that there is no evidence of mistreatment of ethnic Russians, Belarussians or Moldovans by the state.[1] The UK Home Office acknowledges a report by Equal Rights Trust of August 2015 which stated:

    Ethnic Russians are by far the largest ethnic minority in Ukraine, constituting almost one fifth of the population. In light of the conflict between pro-Russian separatists and the Ukrainian state in the Donbass region of eastern Ukraine, the Equal Rights Trust sought evidence of discrimination against this group, in order to establish whether discrimination was a factor in creating or perpetuating the conflict. Interviews conducted for the report, together with research undertaken by other independent actors, found that relations between ethnic Russians and the majority were historically good, and remained good at the personal level even as the war raged in the east. While there were grievances among ethnic Russians in the east and south prior to the conflict of 2013–2014, these did not appear to have been based on ethnicity per se. Rather than ethnicity, the dividing factor seems to have been political opinion: divergent geopolitical orientations to Russia and to the West and the related language preference among otherwise bilingual populations have been both the cause and the consequence of the armed conflict.

    [1] UK Home Office, Country Policy and Information Note, Ukraine: Minority groups, January 2017, p. 7.

15. Further information in the report of the Equal Rights Trust was considered by the Department of Immigration and Border Protection in its Standard Q&A Report dated 24 December 2015. The Equal Rights Trust stated that ‘[p]rior to the 2014 conflict, relations between ethnic Russians and the majority population in Ukraine were generally harmonious, with little evidence of discrimination or disadvantage.’[2] The report indicated that the conflict did not appear to have had an adverse impact on these relations, stating that:

    While the conflict between Ukraine and pro-Russian separatists in the east of the country has resulted in a more negative image of the Russian state among the Ukrainian public, this does not appear to have translated into a negative attitude or behaviour towards ethnic Russians in Ukraine.

    [2] Department of Immigration and Border Protection, Standard Q&A Report, Ukraine: CI151204133128962 – Security Situation – Pro-Russians – Pro-Ukrainians – Ethnic Russians, 24 December 2015, p. 16.

16. The report of the Equal Rights Trust also stated that there was ‘no evidence of discrimination against ethnic Russians on the basis of ethnicity’ and ‘no experience of any hostility at the personal level’, although it was noted that ‘the conflict had increased the tension between the two previously hardly distinguishable groups’ (i.e. ethnic Russians and Ukrainians):[3]

    The testimonies collected by the Equal Rights Trust in April 2015 suggest that while there was no evidence of discrimination against ethnic Russians on the basis of ethnicity, and while there has been no experience of any hostility at the personal level, the conflict has forced Russians in Ukraine to clarify and determine their belonging in an Ukrainian state, not as a “national minority” but as a constituent of the Ukrainian political nation which has always been characterised by the presence of Russian language and culture.

    [3] Department of Immigration and Border Protection, Standard Q&A Report, Ukraine: CI151204133128962 – Security Situation – Pro-Russians – Pro-Ukrainians – Ethnic Russians, 24 December 2015, p. 16.

17. On the issue of distinguishing characteristics of ethnic Russians and Ukrainians, the Equal Rights Trust noted that:[4]

    Such identity elements as speaking Russian as a first language, being Orthodox Christians or loving Russian culture do not appear to be sufficient as there are many ethnic Ukrainians and members of other ethnic groups in Ukraine who also share these characteristics. Moreover, these cultural identifications do not impede a person to feel a part of the multi-ethnic Ukrainian political nation.

    [4] Department of Immigration and Border Protection, Standard Q&A Report, Ukraine: CI151204133128962 – Security Situation – Pro-Russians – Pro-Ukrainians – Ethnic Russians, 24 December 2015, p. 17.

18. In its International Protection Considerations Related to the Developments in Ukraine — Update III of September 2015, the United Nations High Commissioner for Refugees (UNHCR) highlights that "Claims for international protection of persons having been involved in recent developments, including, for example, political activists, journalists and human rights defenders may need to be given particular attention.”[5]

    [5] United Nations High Commissioner for Refugees, International Protection Considerations Related to the Developments in Ukraine — Update III, September 2015, p. 15.

19. In an earlier report of July 2014, UNHCR stated that "Claims for international protection of persons having been directly or indirectly involved in or affected by the recent unrest and the current situation may need to be given particular attention."[6]

    [6] United Nations High Commissioner for Refugees, International Protection Considerations Related to the Developments in Ukraine — Update I, July 2014.

20. However, the UNHCR has not stipulated people of Russian ethnicity as being a group at risk in the Ukraine on the basis of their race/ethnicity, nor is it suggested that they are automatically imputed with a political opinion on the basis of ethnicity.

21. Similarly, there is no stipulation about people of Russian ethnicity as being a group at risk in a report by Office of the United Nations High Commissioner for Human Rights (UNHCHR) published in 1 June 2015.[7] The same report in 2014 had noted increasing hate speech and anti-Russia propaganda had contributed to 'anti-Russia' rhetoric, and a rise in intolerance in Ukraine. This indicates that the rhetoric has not been translated to systematic ongoing harassment, or systematic targeted harm or acts of violence against ordinary, non-politically active ethnic Russian citizens of Ukraine.

    [7] Office of the United Nations High Commissioner for Human Rights, Report on the Human Rights Situation in Ukraine – 16 February to 15 May 2015, 1 June 2015.

22. In 2015, Freedom House noted that although the national government has generally protected the legal rights of minority groups, the country's Romany population continues to suffer from discrimination. The report does not identify the ethnic Russians as a minority group requiring protection.[8]

    [8] Freedom House, Freedom in the World 2015 - Ukraine.

23. The Tribunal outlined the above information to the applicant and invited her to comment. The applicant asked why it is that there is no Russian speaking television and access to Russian programs and stated that computer programs that have been developed by Russians have been totally removed. The applicant claimed that her husband died because of his work at Chernobyl and she was receiving a widow’s pension of USD$[amount] per year and this was taken away from her on the basis of her ethnicity. The applicant then claimed that her pension was now USD$[amount] per month and she would not be able to find a job.

24. The Tribunal noted that it might have some concerns about her claims regarding Russian television and computer programs and whether this would be considered serious or significant harm. The Tribunal also noted that country information suggests that having pensions frozen or reduced relates to general economic conditions and/or a government freeze on pensions and that there is no information to suggest that such a freeze was targeted at ethnic Russians only. The Tribunal also noted that it might have some difficulty in accepting the applicant is unable to return to Kharkiv given she has an apartment and family there and while the Tribunal is aware of the unemployment rate in Ukraine, the applicant has also had consistent employment prior to coming to Australia, relevant skills as a [occupation] and she has been successful in being resourceful and adaptable in securing employment in Australia so it could see no reason, subject to general economic conditions why she would be unable to secure employment again in Ukraine if she chose to do so.

25. The applicant said that she was ‘pensioned-off’ after twenty-five years’ service as a [occupation] at a time when she was looking after her mother. The applicant said that she then found employment as a [occupation] and working at night as a [occupation] person but if people can secure a job, the applicant said she does not belong to that category. The applicant claimed that there is no radio or television announced in Russian and no Russian language at all. The applicant said that Ukraine does not admit to things that they don’t want other people to know and she will be subject to degradation because she speaks Russian.

26. The Tribunal also noted that it might have difficulty in accepting that the applicant will be targeted for hate crimes on account of her ethnicity. The applicant said that when there is conflict and it is resolved, the remnants of the conflict are a hatred that is not easily resolved and this goes on forever.

    Not credible evidence

27. During the Tribunal hearing, the applicant claimed that her [family member] had been being made redundant approximately eight months ago. The applicant claimed that [family member] was made redundant due to [family member’s] Russian ethnicity. However, in addition to the country information outlined above that indicates that there is no evidence of discrimination against ethnic Russians on the basis of ethnicity, this claim appears to contradict the applicant’s later claim that her [family member] was ‘called-up’ for military service but [the] employer effectively saved [family member] from military service by stating that [family member] was working on an important project and could not be released. The Tribunal also notes that the applicant claimed that her [family member] was employed by this employer for approximately five years prior to being made redundant. The Tribunal finds the applicant’s evidence lacking in credibility that her [family member] was employed for approximately five years by [the] employer, throughout the height of the conflict in Ukraine; that employers are aware of a person’s ethnicity because birth certificates must be provided; that [the] employer considered [family member] too important to be released for military service around September 2016; but then made [family member] redundant by December 2016 due to [family member’s] ethnicity.

28. The applicant also claimed that employers are issued with lists of people required for military service and employers decide who will participate or not. While the Tribunal notes that there are a range of exemptions from military service (including employment commitments in areas such as teaching and research staff at universities and high school teachers), it is not aware of any country information to indicate that employers in Ukraine determine who will undertake military service or not depending on their general employment commitments or the process of conscription occurring through employers and allowing management to decide.

29. In addition, as outlined above, after first claiming that enquires of her apartment were made for soldiers, the applicant then claimed during the Tribunal hearing that local police made enquiries of her apartment and whether it could be used by internal refugees. Firstly, the Tribunal finds that this claim is lacking in credibility given that country information outlined above indicates that more than forty per cent of the population in Kharkiv is of Russian ethnicity and it would be difficult to identify those of Russian ethnicity given there is nothing that appears to define them in comparison the ethnic Ukrainian population. Therefore, the Tribunal can see no reason why the applicant would be apparently targeted in this way. In addition, the population of Kharkiv is approximately 1.4 million people and country information also indicates that there is little support or assistance to internal refugees. On this basis, the Tribunal finds the claim that local police are aware of every movement and the ethnicity of all 1.4 million people in Kharkiv and that they are enquiring about housing for internal refugees to be completely lacking in credibility.

    Current situation in Ukraine and Kharkiv

30. Freedom House stated in 2016 that Ukraine has survived the severe political crisis that Russia instigated after popular protests. Freedom House outlined that:[9]

    In a deal brokered by Germany and France in February 2015, Ukraine and Russia signed the second “Minsk Agreement,” which called for a cease-fire in eastern Ukraine, set out terms for the withdrawal of military equipment, and provided a sequence of steps for a final political solution between the two sides. The agreement brought some relaxation in the conflict, but a comprehensive cease-fire was achieved only in September, after representatives of Germany, France, Ukraine, and Russia met again in Paris.

    …

    Despite the largely frozen conflict in the east, political life stabilized in 2015, and there was some progress on the huge range of reforms Ukraine requires to become a fully democratic state based on the rule of law.

    …

    Outlook for 2016: Ukraine will continue to face challenges to its statehood and territorial integrity due to Russian aggression and the fragility of its national democratic institutions. At the same time, the most severe crisis has likely passed, and the country will have more space for implementing reforms and encouraging economic recovery. The largest challenges remain the high level of corruption and the weakness of institutions tasked with ensuring the rule of law. The majority coalition in the parliament suffers from internal rifts, and the dissolution of the Verkhovna Rada for early parliamentary elections in 2016 cannot be ruled out.

    [9] Freedom House, Nations in Transit: Ukraine 2016, p. 2.

1. A variety of sources outline that the security situation remains volatile in and near to the conflict zone in the Donetsk and Luhansk oblasts but the situation in the rest of Ukraine is relatively calm. Economic conditions are challenging and unemployment is at 9.0% in 2017.

2. Kharkiv oblast, which is located in the immediate vicinity of the Donbas region, and which shares a 315-km stretch of Ukraine's border with Russia, was one of the regions where attempts were made to kindle separatist sentiments during the spring of 2014. Some central government buildings were briefly occupied by pro-Russian demonstrators who declared a 'Kharkov People's Republic', but efficient countermeasures by the Ukrainian institutions of force quickly calmed the situation in the region.[10] The war's impact on the situation in the region is clearly apparent. Kharkiv oblast has become the destination for many of the refugees escaping from the Donetsk and Luhansk oblasts. According to official data, they currently number around 170,000 people, but even the local authorities emphasise that the true figure actually exceeds 300,000. Kharkiv oblast is the fourth largest region of Ukraine; it has a population of 2.73 million people, more than half of whom (1.4 million) live in Kharkiv city.[11] According to the first independent all-Ukrainian population census conducted in December 2001, the breakdown of ethnicity in Kharkiv was Ukrainians 52.8%, Russians 43.2% and Jews 0.7%.[12] While Ukrainian is the official language of Ukraine, it is widely recognised as a bilingual country with significant numbers of people in Kharkiv speaking Russian.[13]

   [10] The Centre for Eastern Studies (OSW), The Kharkiv Oblast – A Fragile Stability, OSW Commentary No. 172, 3 June 2015.

   [11] The Centre for Eastern Studies (OSW), The Kharkiv Oblast – A Fragile Stability, OSW Commentary No. 172, 3 June 2015.

   [12] Wikipedia, Kharkiv,

   [13] Wikipedia, Kharkiv Oblast, See also:

3. In June 2015, The Centre for Eastern Studies outlined that anti-war sentiment in the region was rising steadily, and the oblast's residents were aware that a possible outbreak of separatist sentiment could lead to a repeat of the events in the Donetsk and Luhansk oblasts. Around a third of the population displayed clearly pro-Ukrainian sentiments and their presence was by far the most visible in the region. According to government estimates, since the beginning of the year sabotage groups have carried out 12 terrorist acts in Kharkiv oblast; since the spring of 2014, there have been a total of 48 such incidents.[14] The worst such act took place on 22 February this year, when during a march in Kyiv, an explosive device hidden in snow by the roadside went off.[15]

   [14] The Centre for Eastern Studies (OSW), The Kharkiv Oblast – A Fragile Stability, OSW Commentary No. 172, 3 June 2015.

   [15] Office of the United Nations High Commissioner for Human Rights, Report on the Human Rights Situation in Ukraine – 16 February to 15 May 2015, 1 June 2015.

4. In late 2014 and early 2015, acts of terrorism in the form of low-level bombings began to occur primarily in the cities of Kharkiv and Odesa. Most of the explosions detonated between 2200 and 0600, resulting in focused damage and no injuries or loss of life. However, a few of the bombings targeted clubs, restaurants, and bars frequented by Ukrainian soldiers.[16]

   [16] US Department of State Overseas Security Advisory Council (OSAC), Ukraine 2015 Crime and Safety Report, 18 May 2015.

5. Despite reports of violence, the Organization for Security and Co-operation in Europe (OSCE), monitors' reports between January 2015 and 7 July 2015, were constant that the situation in Kharkiv was ‘calm’ and this situation is still reflected in the current DFAT travel advice for Ukraine which states that ‘While the situation in most cities is generally calm – excluding Donetsk and Luhansk – the security situation can deteriorate without warning.[17]

   [17] Department of Foreign Affairs and Trade, Smart Traveller, Ukraine Latest Advice, 27 June 2017.

6. The Tribunal put a summary of the above information to the applicant, particularly in relation to her claim that Kharkiv may become part of Russia and invited her to comment. The applicant said that it would appear that the current situation for Kharkiv that this was not the case and the current demarcation was different. The applicant also said that if you are Russian or speaking Russian or not dressed in the same way, it can cause people to hate you. The applicant said that the media has totally isolated Ukraine and there is no information about what happens in other countries.

7. The applicant also claimed that any conflict that exists in the conflict zone can be stopped but to stop the hatred that has arisen as a result of the conflict is impossible. The applicant stated that Russia is always considered an aggressor and when she took her school children to Western Ukraine, they were warned not to speak Russian to avoid conflict so it is difficult to determine borders and how they behave. The applicant said she has no protection and cannot go back.

8. The Tribunal also notes that when it discussed each of the applicant’s claims with her, she also said that she made the claim about Kharkiv becoming part of Russia because at the time, people talked that they might want to join Russia and Russian power might have had their sights on the eastern part of Ukraine.

   Women

9. In a report dated November 2015, the UK Home Office states that “Gender based violence remains a major concern in the Ukraine. Domestic violence is a serious problem and increasingly common, with some 85,200 complaints being registered in the first nine months of 2014. There are also numerous incidents of rape and sexual assault. Most cases go unreported due to domestic violence and rape being widely considered as private matters and limitations in the law.”[18]

   [18] UK Home Office, Country Information and Guidance, Ukraine: Women fearing gender based violence, January 2017, p. 5.

10. However, the UK Home Office also stated that “Being female does not on its own establish a need for international protection. Whilst there are numerous incidents of gender-based violence in Ukraine, the actual number of incidents when compared with the overall size of the population suggests that there is not a general risk of women being subjected to persecution or serious harm on account of their gender alone.” The report identified several groups of women that are at heightened risk of gender-based violence such as women in the conflict zone, internally-displaced women, unaccompanied minors and women from ethnic minorities such as Roma. The report did not identify an increased risk of harm for women of Russian ethnicity.[19]

    [19] UK Home Office, Country Information and Guidance, Ukraine: Women fearing gender based violence, January 2017, p. 5.

11. The Tribunal also noted that it was not aware of any country information that indicated that people returning from abroad or failed asylum seekers are at risk of serious or significant harm in returning to Ukraine.

12. The Tribunal put the above information regarding women to the applicant and asked if she would like to comment. The applicant asked how to defend herself or protect herself against hatred. The applicant stated that she cannot suspect what a person can get up to and the government has no means of protecting her from hatred. The Tribunal noted that it might have difficulty in accepting her claim regarding protection given she had claimed that there was very effective local police in Kharkiv that knew everything that was going on with everybody and because the UK Home Office also states that in general, people are likely to be able to access effective state protection against non-state actors or rogue state actors in the government-controlled areas of Ukraine.[20]

    Homosexuality

    [20] UK Home Office, Country Information and Guidance, Ukraine: Background information, including actors of protection and internal relocation, August 2016, p. 7.

13. Finally, after the applicant had confirmed her claims as summarised by the Tribunal represented the totality of the claims that she was making and that she was comfortable that her application contained all the information she wanted to provide, the applicant then made a new claim that she feared returning to Ukraine due to her sexuality as a lesbian. The applicant claimed that she was aware of her sexuality from 1994 and she had a brief relationship with a woman in 1995. When the Tribunal asked her about her expression of sexuality in Australia, the applicant initially claimed that she had been in a relationship for the past year. The applicant then stated that the relationship was non-sexual.

14. When the Tribunal asked the applicant why, if she has been aware of her sexuality for more than two decades, she did not raise this claim in her protection visa application or her interview with the department, the applicant said that the reason for her omission was because she found it difficult to discuss with strangers. She then said that it was only once she disclosed to her [Child 1] about her sexuality about three months earlier that she realised she would have to live with being a lesbian for the rest of her life. However, the Tribunal noted that her claim about her openness only once she disclosed her sexuality to her [Child 1] did not accord with her claim that she had been in relationship for the past year. The applicant then stated that it was more of an empathy for each other (rather than a relationship) although they had never discussed being gay.

15. The applicant then claimed that she did not mention any claim regarding her sexuality in her protection visa application because she did not think about it and she did not think she should use something like this or use her personal situation to gain something from it and she was frightened. However, the Tribunal is particularly concerned about the credibility of these statements given the applicant is well-educated, she advised the Tribunal that despite her application being in English she was comfortable with what it contained and therefore, it would suggest to the Tribunal that the applicant understood that her protection visa application was all about her personal circumstances given her main claim relates to her personal circumstance of Russian ethnicity.

16. The Tribunal has considerable concerns about the extent to which the applicant’s evidence changed throughout the Tribunal’s questioning and the Tribunal notes that the applicant also claimed that she had not had any other relationships in Australia with men or women other than the relationship she described yet her statement to the Tribunal in August 2015 states that she had begun a relationship then.

    Other matters

17. The Tribunal notes that the applicant provided the department with emails from her [relative] in Belarus, a friend in Ukraine and her [Child 2] in Ukraine that outlined the situation in Ukraine. However, as discussed with the applicant, the Tribunal notes that these emails are from 2014 and 2015 and the Tribunal prefers to rely on current, independent country information and as such, the Tribunal has placed no weight on these emails in relation to the situation in Ukraine.

18. Similarly, the Tribunal notes the reference material provided by the applicant’s representative in her response to the Tribunal hearing invitation which includes a range of international news and other websites discussing hate crimes in Ukraine. The Tribunal acknowledges that there have been a range of incidents in Ukraine since the conflict began. However, while some Ukrainians who are ethnic Russians have been victims of crime and violence, none of the information provided by the applicant and her representative appears to contradict the overall findings of the UK Home Office, Equal Rights Trust, Freedom House or UNHCR that there is no evidence of systematic mistreatment of ethnic Russians. The Tribunal also notes that when it noted these points with the applicant, she said that she did not know how accurate the information was that she had provided and she stated that if there are any Ukraine media reports then they will all be biased.

19. The Tribunal also notes that the applicant arrived in Australia in April 2014, some months after the conflict began in Ukraine and the applicant claimed during the Tribunal hearing that her fear arose in November 2013 when the conflict began. However, the applicant did not make a claim for protection until [date] June 2014, some two months after her arrival.

    FINDINGS AND REASONS

    Past harm

20. The Tribunal does not accept as credible the applicant’s claims to have had her balcony attacked in a personal attack, that there was an attempted poisoning of her dog, that the police have made enquiries of the applicant since she has been in Australia or that her [Child 2 and family member] have suffered any harm as a result of the conflict in Ukraine or the applicant’s travel to, or visa applications, in Australia.

21. The Tribunal does not accept as plausible the applicant’s explanation for why she did not raise the claims she made about the personal harm she suffered prior to the Tribunal hearing that ‘it slipped her mind’. The Tribunal considers that if the applicant’s balcony was attacked in what she considered a personal attack, and it still contained those holes today, that the applicant would have outlined this incident in her protection visa application or at the very least, her interview with the department when discussing the past harm she has suffered. In addition, the Tribunal is of the view that if the attack on the balcony occurred as the applicant described, the Tribunal would expect to be able to see photographic evidence of the applicant’s balcony, particularly given her [Child 1] still lives in the apartment.

22. Similarly, given the applicant mentioned her dog in her departmental interview, it would expect that she would have continued to outline her claim of its attempted poisoning to the department if that had occurred. The Tribunal finds that the applicant fabricated these claims for the purposes of strengthening her protection visa application.

23. The Tribunal also notes that the applicant claimed that when she reported the attack on her balcony to the police, they refused to make a report. Given the Tribunal does not accept the applicant’s claim that there was any attack on her balcony, it follows that the Tribunal does not accept that the police refused to make a report of these incidents.

24. In relation to the applicant’s claims of harm suffered by her [Child 2 and family member], the Tribunal does not accept that the applicant’s [family member] was abducted and threatened with military service, that [family member] was made redundant due to [family member’s] Russian ethnicity or that her [Child 2] was visited by local police enquiring about [Child 2’s] mother and the apartment. While the Tribunal is mindful that applicants may not be able to remember exact dates, the Tribunal discussed broad timeframes with the applicant and not specific dates. The applicant also stated that she is in contact with her [Child 2 and family member]] weekly and she connected her [family member]’s abduction and threat regarding military service to the same time as when she claims police came to her apartment enquiring about her and the status of her apartment and she stated that this was in May or June 2016. These claims were also connected to her claim that her [family member] received a ‘call-up’ for military service last autumn but that this was refused by [family member’s] employer shortly before [the] employer made [family member] redundant approximately eight months ago.

25. The Tribunal does not accept the applicant’s explanation for these inconsistencies that because she is in a new country, “the time sequence is different” and because [Australian State] feels like an endless summer, she has lost track of time. As noted above, the applicant stated that she is in weekly contact with her [Child 2 and family member] and regardless of how pronounced or otherwise the [Australian State] seasons are, the Tribunal expects that the applicant would be able to recall whether these incidents occurred one or two years ago given these matters are claimed to have occurred in the very recent past.

26. In relation to the applicant’s claim that the police have visited her [Child 2] at the apartment making enquiries of the applicant, her whereabouts and the availability of the apartment, the Tribunal is concerned about the inconsistencies in the applicant’s evidence regarding the timing of when this occurred but also that the applicant originally claimed that the police wanted to give the apartment to soldiers and then she claimed that they wanted to give the apartment to internal refugees. Contributing to the Tribunal’s finding that this claim is not credible is the implausibility that local police have the capacity, in an environment where resources are stretched, to be aware of what every citizen is doing in a city with a population of 1.4 million people. In addition, country information indicates that there is very little support for internally displaced people or internal refugees in Ukraine. Even if enquiries are made of empty or abandoned housing in order to house internally displaced people, this does not apply in the applicant’s case given her [Child 2] and her family are living in the apartment.

27. As the applicant has not claimed to have had any political involvement or any significant profile in Ukraine, the Tribunal does not accept that she has been the subject of enquiry by Ukraine police during her stay in Australia or that there have been enquiries of her apartment for other uses due to her ethnicity, ideology or her travel abroad.

28. Country information indicates that many Ukrainians are internationally mobile, particularly with travel to Europe. The Tribunal is not aware of any country information to suggest that Ukrainians are targeted due to their travel abroad, return to Ukraine from a western country or as failed asylum seekers. On this basis, the Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm if she returns to Ukraine in the reasonably foreseeable future due to having been in a western country or a failed asylum seeker. It follows that the Tribunal does not accept that the applicant’s family in Ukraine has been subject to threats (including references to the applicant as a ‘traitor’) or harm due to the applicant’s travel to Australia or her application for protection (if indeed anyone is actually aware of her application).

    Russian ethnicity, hate crimes and current situation

29. The Tribunal accepts that the applicant is of Russian ethnicity. However, the Tribunal does not accept that the applicant is imputed with any political opinion on account of her Russian ethnicity, or that she faces a real chance of serious harm or a real risk of significant harm on account of her ethnicity in the reasonably foreseeable future.

30. Country information outlined above indicates that there is no evidence of mistreatment of ethnic Russians by the state. The Equal Rights Trust also stated that there was ‘no evidence of discrimination against ethnic Russians on the basis of ethnicity’ and ‘no experience of any hostility at the personal level’, although it was noted that ‘the conflict had increased the tension between the two previously hardly distinguishable groups’ (i.e. ethnic Russians and Ukrainians) and ethnic Russians are not a group recognised by UNHCR as a group at risk in Ukraine. Therefore, the Tribunal does not accept any of the applicant’s claims relating to her Russian ethnicity, including that she will be forced into residential segregation or unable to obtain employment if she returns to Ukraine.

1. Given country information does not support the applicant’s claim that the division between those of Russian ethnicity and those without Russian ethnicity in Ukraine was or is, particularly distinguishable, the Tribunal has difficulty in accepting the applicant’s claim that her friends would cross the road when they saw her coming. In any case, the Tribunal finds that people crossing the road does not amount to serious or significant harm.

2. As noted above, the applicant has not claimed to have had any political involvement or any significant profile in Ukraine and the Tribunal does not accept that the applicant or her family have been subject to any harm in the past on account of their ethnicity or for any other reason. When the Tribunal put this country information to the applicant, she claimed that there is no Russian television or access to Russian computer programs and that her husband’s pension was taken away from her due to her ethnicity.

3. The Tribunal acknowledges that country information indicates that Ukraine appears to have effectively implemented a de facto self-censorship for a period that includes Russian computer programs, cable television, Russian-based internet providers and social media etc. However, the Tribunal understands these actions to be part of the ongoing propaganda warfare between Ukraine and Russia that is not inconsistent with the overall conflict environment and it does not accept that these measures amount to serious or significant harm or that they are targeted at Ukrainians of Russian ethnicity.

4. The Tribunal does not accept that the applicant has had any pension entitlements removed from her due to her ethnicity. The Tribunal also notes that country information indicates that Ukraine pensions have been frozen in the conflict zone. However, there is no information to indicate that pensions have been frozen or removed from Ukrainians due to their Russian ethnicity.

5. The Tribunal notes that the applicant’s overall claim is that, in the absence of any specific threat against her, given the overall conflict she will be targeted for hate crimes due to her Russian ethnicity. However, country information does not support this claim on the basis that while the UNHCHR noted in 2014 that increasing hate speech and anti-Russia propaganda had contributed to anti-Russia rhetoric, and a rise in intolerance in Ukraine, people of Russian ethnicity were not identified as a group at risk by the next report of UNHCHR in 2015 indicating that the rhetoric has not been translated to systemic ongoing harassment or systematic targeted harm or acts of violence against ordinary, non-politically active ethnic Russian Ukraine citizens. On this basis, the Tribunal does not accept that the applicant faces a real chance or a real risk of being targeted for hate crimes on account of her ethnicity.

6. For the sake of completeness, the Tribunal does not accept that the applicant is imputed with a pro-Russian political opinion on account of her Russian ethnicity. While the applicant did not articulate this claim, the Tribunal has considered this possibility and has found that there is no country information to support such a claim. Similarly, the Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm because she is Russian speaking. Ukraine is widely recognised as a bilingual country and significant numbers of people in eastern Ukraine in particular speak Russian.

7. The Tribunal understands that the security situation remains volatile in and near to the conflict zone in the Donetsk and Luhansk oblasts and that there have been a number of attacks on Kharkiv in the past. However, country information indicates that the current situation in the rest of Ukraine other than the conflict zone (which does not include the city of Kharkiv or Kharkiv oblast) is relatively calm. On this basis, the Tribunal does not accept that the applicant cannot return to Kharkiv where she still owns an apartment and her [Child 2] and her family still reside.

8. The Tribunal notes that the applicant claims to fear generalised violence and the overall economic situation in Kharkiv and Ukraine, including her ability to find employment (seemingly other than due to her Russian ethnicity as addressed above) and the de-valuing of her Ukraine pension. However, the tribunal does not accept that there is any Convention nexus between the situation as it relates to generalised violence and economic conditions and therefore, finds that the applicant does not face a real chance of serious harm for a Convention reason. In addition, when the Tribunal considered these claims in relation to the complimentary protection criteria, the Tribunal finds that such factors are faced by the population generally and not by the applicant personally.

9. The Tribunal notes that when it discussed these issues with the applicant, she differentiated herself from the general population on the basis that her [Child 2] will leave Ukraine and she will have no one to protect her. However, the Tribunal notes that the applicant’s [Child 2] has not yet left Ukraine and the applicant told the Tribunal that while her [Child 2] is looking to leave Ukraine, [Child 2] does not have any current plans to do so. Therefore, the Tribunal is not satisfied that there are grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ukraine, there is a real risk she will suffer significant harm.

10. While the economic environment may be challenging in Ukraine, the applicant told the Tribunal that she is entitled to a Ukraine pension for her service as a [occupation] and the Tribunal notes that she was consistently employed for many years until she left Ukraine and she continues to hold relevant skills as a [occupation]. In addition, the applicant has demonstrated her resourcefulness and adaptability in securing employment in Australia.

11. For the sake of completeness, the Tribunal accepts that the applicant holds the view that Ukraine is a sovereign entity and independent country and that she is generally opposed to the Russian government. The Tribunal also notes that the applicant had originally claimed that she feared pro-Russian separatists; being made to endorse pro-Russian views and that Kharkiv may become part of Russia. After discussing country information on the current situation with the applicant and these fears as she claimed, the applicant stated that she is not frightened of Russian power. She also said she does not acknowledge or support the Russians and her main fear is of Ukrainian nationalists and being a victim of hate crime due to her Russian ethnicity.

12. In any case, the Tribunal notes country information that outlines that Kharkiv was quickly protected by Ukrainian government forces when the conflict broke out and it remains part of the government-controlled area and not an area controlled by pro-Russian separatists. On the basis of country information and the applicant’s revised claim in relation to pro-Russian separatists, pro-Russian views and Kharkiv becoming part of Russia, the Tribunal finds that the applicant no longer has a subjective fear of these claims and the Tribunal does not accept that the applicant faces a real chance of serious harm from pro-Russian separatists, being made to endorse pro-Russian views or that her home city may become part of Russia. In addition, the Tribunal does not accept that the applicant faces a real risk of significant harm as the Tribunal has found that there is no real chance of serious harm.

13. Finally, given the Tribunal’s findings in relation to any threat of harm from pro-Russian separatists, being made to endorse Russian views or the applicant’s home city becoming part of Russia, there is no evidence to suggest that the applicant faces a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future in Ukraine for her views that Ukraine is a sovereign entity and independent country and that she is generally opposed to the Russian government.

    Women

14. The UK Home Office states that while gender-based violence remains a concern in Ukraine, “Being female does not, on its own, establish a need for international protection.” The UK Home Office identified that groups of women at heightened risk of gender-based violence included women in the conflict zone, internally-displaced women, unaccompanied minors and women from ethnic minorities such as Roma. The report did not indicate that those with Russian ethnicity are at heightened risk of gender-based violence.

15. The applicant made a general reference to her fear of returning to Ukraine due to her gender in her submission to the Tribunal in August 2015. However, when the Tribunal discussed this claim with her during the Tribunal hearing and asked the applicant on what basis she fears returning to Ukraine on account of her gender, the applicant told the Tribunal that she was a lesbian. This claim was then specifically discussed with the applicant and the Tribunal has set out its findings below.

16. When the Tribunal discussed country information regarding women with the applicant, the applicant was vague and related this claim to general violence and hate crimes by claiming that she could not defend herself or protect herself against hatred. The applicant did not claim that she has ever been the subject of gender-based violence or that there is any other reason why she might face a heightened risk of gender-based violence. As outlined above, the applicant has an apartment to return to and family still living in Ukraine so she could not be considered an internally-displaced person and nor does she appear to fall into any other category that may face a heightened risk of gender-based violence in Ukraine.

17. Therefore, the Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm on the basis of her gender if she returns to Ukraine in the reasonably foreseeable future.

    Homosexuality

18. The Tribunal does not accept as credible that the applicant identifies as a lesbian and as a result, she fears returning to Ukraine. The Tribunal finds that the applicant made this claim for the purposes of strengthening her application for protection.

19. The applicant did not raise this claim in her protection visa application despite telling the Tribunal that she was comfortable with her protection visa application even though it was in English. The applicant did not raise this claim during her interview with the department and when the Tribunal summarised her claims as articulated in her protection visa application and submissions (which did not include this claim), the application agreed that the Tribunal’s summary of her claims was an accurate reflection.

20. When the Tribunal asked the applicant why she had not raised this claim previously, her explanations included that she did not think about it and that she did not think she should take advantage of her personal situation in that way. The Tribunal does not find either of these explanations credible.

21. The applicant told the Tribunal that she had been aware of her sexuality for more than two decades, that society does not accept homosexuality and that the attitude toward homosexuals in Ukraine is very prejudicial and hateful and it affects all aspects of life. Therefore, it makes no sense to the Tribunal why the applicant would not have raised this claim sooner if her claim was genuine and she had a genuine subjective fear of returning to Ukraine on this basis.

22. Similarly, the applicant is well-educated, stated in her protection visa application that she can speak, read and write, English and she told the Tribunal that she was comfortable with the detail of her protection visa application despite the fact that it was in English, prior to her raising this new claim. On this basis, the Tribunal does not accept that the applicant genuinely thought that she should not raise this claim at any earlier stage of the process on the basis that she did not think she should take advantage of her personal situation in that way. The Tribunal finds this explanation lacking in credibility given the applicant’s initial claims for protection relate to her personal situation as having Russian ethnicity.

23. Contributing to the Tribunal’s finding that the applicant’s claim to be a lesbian lacks credibility was the evolving nature of the applicant’s evidence regarding the relationship that she claimed to be in with a woman in Australia. The applicant’s evidence ranged from being in a relationship for approximately one year to being in a non-sexual relationship to having a mutual empathy with a woman although they had never discussed being gay. The applicant also told the Tribunal that she was only able to accept her sexuality after telling her [Child 1] about it around three months earlier. However, this evidence does not accord with her apparent acceptance of her sexuality in order to form a ‘relationship’ with a woman some twelve months earlier.

100.   In addition, the applicant told the Tribunal that her ‘relationship’ with a woman was the only relationship she had been in with anyone in Australia yet her submission to the Tribunal in August 2015 referred to her having ‘developed a genuine and heart-warming relationship’. Given this submission was made almost two years prior, the relationship referred to in the submission could not be the same relationship referred to during the Tribunal hearing. Given the inconsistencies in the applicant’s evidence regarding her ‘relationships’, the Tribunal is not satisfied that the applicant is, or has ever been, in a relationship with a man or a woman since she has been in Australia.

101.   The Tribunal notes that one of the applicant’s explanations for why she did not raise this issue previously was due to her finding it difficult to discuss with strangers. However, when considered against the backdrop of the applicant’s multiple inconsistencies and evolving evidence in relation to this claim and others, the Tribunal does not accept this explanation as a genuine explanation for her failure to have previously raised this claim.

102.   In relation to the applicant’s claim that if she is returned to Ukraine, this will be detrimental to her well-being due to the separation from her family in Australia, the Tribunal finds that any separation of family members is a consequence of the applicant’s return to Ukraine and would not constitute persecution for a Convention reason. The Tribunal also finds that the separation of family members would not amount to significant harm as defined in s.36(2A). In SZRSN v MIAC the Federal Court confirmed that harm arising from the act of removal itself will not meet the definitions of significant harm.[21] Australia’s complementary protection obligations are not triggered by the mere fact that different family members are nationals of different countries and that one may not have the right to enter and reside in the other’s country of nationality.

[21] [2013] FCA 751 (Mansfield J, 6 August 2013).

Cumulative assessment

103.   Considering the applicant’s individual circumstances and country information on a cumulative basis, the Tribunal finds her fear of persecution is not well-founded as required by Article 1 of the Convention.

104.   Considering the applicant’s individual circumstances and country information on a cumulative basis, the Tribunal finds that there are not 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 she will suffer significant harm.

CONCLUSION

105. 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).

106. 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

107. 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

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

Saxon Rice
Member

ATTACHMENT 1 - RELEVANT LAW

109. 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.

Refugee criterion

110. 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).

111.   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.

112.   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.

113.   There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

114.   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.

115.   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.

116.   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.

117.   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.

118.   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.

119.   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

120. 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’).

121. ‘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.

122.   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

123.   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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.