1514459 (Refugee)

1514459 (Refugee) [2018] AATA 723 (2 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1514459
COUNTRY OF REFERENCE:                  Ukraine
MEMBER:C. Packer
DATE:2 March 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 02 March 2018 at 7:04pm
CATCHWORDS
Refugee – Protection visa – Ukraine – Political – Avoided military appointment – May be drafted into military reserve service – Civil unrest and violence – Absent from country at time of military notice – No further notices or action from military – Effective state protection for generalised violence
LEGISLATION
Migration Act 1958, ss 5(1), 36(2)(a), (aa), (b), or (c), 36(2A) and (2B), 65, 91R, 91R(1), 91R(1)(b), 91R(1)(c), 91R(2), 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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

This is an application for review of a decision made by a delegate of the Minister for Immigration (the delegate) to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a woman [age], born in Ukraine and a citizen of Ukraine.
The applicant arrived in Australia [in] February 2014, as a holder of a [temporary] visa, and had travelled on a Ukraine passport issued [in] 2011 and valid to [date] 2021.
[In] March 2014 the applicant applied for a Protection (Class XA) visa.
[In] July 2015 the applicant attended an interview with a delegate.
[In] September 2015 the delegate refused the application.
On 26 October 2015 the applicant applied for review of the delegate’s decision.
On 2 March 2018 the applicant attended a Tribunal hearing.
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether the applicant is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.
The applicant’s narrative is centred on her fear of harm from the Ukraine authorities because she failed to attend an appointment [in] April 2016 set out in a military call-up letter. However, in light of country information and given her personal circumstances where she has been out of the country since 2014 I do not accept she faces a real chance of serious harm or a real risk of significant harm either for reason of failing to attend the appointment or if she is conscripted in the future. Her narrative is also that she fears non-state agents in Ukraine because of a situation of generalised violence. However, country information shows there is not a situation of generalised violence in government-controlled areas of Ukraine including her home area of Sumy in the north-east Sums’ka oblast province. After considering the material before the Tribunal including her evidence at the hearing, I do not accept that in Ukraine she faces a real chance of serious harm or a real risk of significant harm, and my assessment follows.
CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS
Background
The applicant’s protection visa application provided some basic background information, and the applicant supplemented this with further details at the hearing. In the written application, the applicant stated that she was born and raised in Sumy, Ukraine. She was divorced. She had parents and a brother in Ukraine, and a daughter in Australia. She stated she had worked as a [occupation] from 1992 to the time of her departure from Ukraine. At the hearing the applicant said her father died [in] February 2018. Her mother and married brother continue to reside in Sumy. In Australia she assists her daughter and grandchildren, and has been in a de facto relationship with [an] Australian citizen, although he did not attend the hearing.
Summary of claims
The applicant claims to fear persecution in Ukraine from the Ukraine authorities and non-state agents. Her key claims as summarised are:
- She fears harm from the authorities as she has been called-up to the reserve by the military and failed to attend an appointment on the scheduled date. She may be drafted into the military.
- She fears harm due to the civil unrest and corrupt and violent government in Ukraine.
- She fears harm if the Russians invade Ukraine and there is a civil war.
- [In] December 2013 she was caught up in a violent protest at a train station in Kiev and bruised.
- She will be unable to financially support herself as she has lost her job in Sumy.
Evidence
The evidence before the Tribunal includes the following material:
·the applicant’s Protection visa application form lodged [in] March 2014, which includes handwritten reasons for seeking protection in Australia
·passport pages
·the Protection visa decision record (‘delegate’s decision’) dated [in] September 2015, which is the subject of this review
·the application for review, which has attached to it a copy of the delegate’s decision
·submission dated 1 March 2018 and country information
·military service booklet and military record page
The applicant appeared before the Tribunal to give evidence and present arguments, on 2 March 2018. The representative was present. The hearing was conducted with the assistance of an accredited interpreter in the Russian and English languages. The applicant stated she understood the interpreter, and during the hearing she did not tell me she had any difficulties with the interpretation. At the start of the hearing I asked whether she was well and able to talk about her story, and she stated she was. During the hearing she appeared to fully understand questions and she gave coherent answers and explanations. I assess that she was competent to give evidence and had a full opportunity to put forward her story and arguments.
A [witness], the applicant’s adult daughter who is an Australian resident, also gave evidence about their personal circumstances in Australia.
The Department had not issued a certificate under s438 of the Act.
Assessment of claims: credibility
The applicant claims to be a national of Ukraine. I sighted her Ukraine passport at the hearing and partial photocopies were made. All the available evidence, including the applicant’s oral evidence and familiarity with Ukraine, supports her claim to be a Ukraine national. Ukraine is therefore the country of reference for the purpose of assessing the applicant’s protection claims, and the receiving country when assessing her claims against the complementary protection grounds. Having considered the material before the Tribunal including the applicant’s evidence given at the hearing, I accept she has the identity claimed.
Her passport and return to Ukraine
The applicant’s passport is valid to [date] 2021 and she will be able to travel to Ukraine and enter without difficulties. She last departed Ukraine legally and has not committed any crimes in Australia. As discussed at the hearing, the way she departed Ukraine and what she has done in Australia will not cause her any difficulties with the Ukraine authorities or the general populace. There is no material before the Tribunal that shows she will face harm in Ukraine because she is a returnee who has spent time in the West or is returning as a failed asylum seeker.
Military service
The applicant claims she was issued a call-up paper that asked her to report in person to a military address and the notice contained a warning regarding refusal or evasion. She stated the letter was not left with the parents but a photo of it had been sent to her. Country information[1] shows that conscription was reintroduced in May 2014 and military service is compulsory for those aged between 20 and 27 years; and the age for reservists up to 65 years depending on rank. Other documents produced show she had a ‘military record’ and so would be considered to be in the reserve and the age limit for a private in the reserve is now 60. While the documentary evidence was not compelling I have given the benefit of the doubt to her without further investigation and accept she was asked to report either for the purposes of registering with the reserve or for military service. She claims that as she failed to attend at the scheduled time [in] April 2016 she will be liable to be considered a draft evader and punished.
[1] UK Home Office Country Policy and Information Note, Ukraine: Military service, April 2017, [>
But as discussed at the hearing, compulsory national service is a prerogative of sovereign states including Ukraine, and it is therefore reasonable that draft evasion is a criminal offence and punishable by law. A requirement to register or undergo compulsory military service in Ukraine, or punishment for failing to complete this duty, does not in itself constitute serious harm, persecution or significant harm. I am not satisfied that the military service envisaged in Ukraine would involve acts (with which the applicant may be associated) that are contrary to the basic rules of human conduct; or the conditions of military service for a woman in the reserve would be so harsh as to amount to serious harm or persecution or significant harm.
As well, as discussed at the hearing, country information[2] shows that while evasion of military service is punishable in law by up to three years’ imprisonment, in practice the Courts issue fines or suspended sentences in most cases. In a UK Upper Tribunal decision dated 6 March 2017 the Tribunal noted “[t]he evidence in the public domain is that very few draft evaders have, to date, been subject to any criminal proceedings let alone convicted of any criminal offence or sent to prison”. As I pointed out, the applicant had now been out of the country for a number of years, including at the time the notice was brought to the parents’ attention, and so she had not avoided the registration/draft and this would be quite apparent from her passport. It seems likely that at the time the parents advised the authorities the applicant was not in Ukraine and she would certainly be able to prove that on her return. Also, her evidence was that no further notice had been sent to the family home and to their knowledge the authorities had not taken further action after she failed to make the appointment almost two years ago. As I pointed out, this strongly suggests the authorities had not taken the matter further. In light of the country information and her personal circumstances, I am not satisfied she would face punishment for evasion of military service or for failing to register or attend the scheduled meeting. And if she did face punishment, in practice the Courts issue fines or suspended sentences and I find that such likely punishment for draft evasion is not disproportionately harsh or severe.
[2] Ibid, at 2.3.11 to 2.3.13
In sum, I find that on returning to Ukraine now and in the reasonably foreseeable future, there is not a real chance the applicant will suffer serious harm, or a real risk she will suffer significant harm, for the reason of being drafted to the reserve or to military service, or for the reason of being a draft evader.
The political and social situation in Ukraine
The applicant and representative submit that a number of reports about Ukraine show the applicant faces violence there. Country information provided in the application concerned conditions in Ukraine in early 2014. As well, the applicant submitted she would be a target for extortion as she had been overseas and would be presumed to return with money. However, as discussed at the hearing, country information shows that other than Crimea, Donetsk and Luhansk, Ukraine is not in a situation of generalised violence and in general police remain effective.
As discussed at the hearing, while events in Ukraine in 2014 led to the Australian government providing special visa arrangements for Ukrainian nationals at the time, the situation there subsequently settled down apart from the areas of Crimea, Donetsk and Luhansk, and those special visa arrangements ended. The current DFAT advice[3] for travelling to Ukraine says Australians should exercise a high degree of caution. However, as the submission indicated, the advice concerns the unpredictable security situation across the country and how tensions could escalate without warning, especially in the form of political protests in Kiev. The applicant is a Ukrainian and so would have better awareness of local conditions, and while she says that during a visit to Kiev she once got caught up in a protest, it is reasonable that in the reasonably foreseeable future in Ukraine she would be able to recognise escalating tensions and avoid such protests. The DFAT advice shows that Australians should be cautious in Ukraine but not that there is a situation of generalised violence in the government-controlled areas.
[3] Australian DFAT advice, Ukraine, [>
As discussed at the hearing, the Security Service of Ukraine (SSU) is Ukraine’s law-enforcement authority and main government security agency in the areas of counterintelligence activity and combatting terrorism. Their website[4] shows that over past months they have been active in Sumy seeking out corruption, detecting ‘phone terrorists’, and they prevented a terrorist act on a military facility in early December 2017. While they have placed a yellow threat level on the Sumy area, their website shows their focus is on counterintelligence and counter-terrorism and they are active and successful in performing those activities in the Sumy region. As well, the US Overseas Security Advisory Council in a Ukraine 2017 Crime and Safety report discussed the poor standard of law enforcement agencies, but as I pointed out, since 2015 thousands of newly recruited police have taken to the streets of Ukraine cities and have been described as polite, well-trained and fit. The recruitment of new police shows that Ukraine is seeking to improve the standard of its law enforcement and appears to have increased the community’s trust in police in a number of cities.
[4] Security Service of Ukraine site, [>
The applicant claims that he stay in Australia will make her a target for criminals and extortion and she gave the example of a murder of the mother of a returnee. However, if the applicant returns to Sumy the general population will not be aware she had stayed in a western country. Regardless, as I discussed, a general internet search about Sumy does not show any reports that suggest this area is in a situation of generalised violence. Her evidence is that she and her family in Sumy are not affluent and in light of the country information and her low profile as a woman [age] returning to a non-affluent family I am not satisfied there is a real chance or a real risk she will have a heightened profile as a returnee with money that would attract the adverse attention of criminals.
As well, as I pointed out, authoritative sources[5] show that in the government-controlled areas of Ukraine that include Sumy: law and order and the rule of law are maintained; authorities maintain control over law enforcement agencies; and in general, a person is likely to be able to access effective state protection against persecution or serious harm by non-state actors or rogue state actors. Country information does not show that there is a real chance of Russia invading and attacking other areas of Ukraine including Sumy in the reasonably foreseeable future. In sum, I carefully considered all of the country information but consider it does not show there is a breakdown of law and order or a situation of generalised violence in Ukraine including the applicant’s home area of Sumy. I find that effective state protection from police is available to the applicant should she require it on returning to her home area. I find that in travelling to and residing in Sumy now and in the reasonably foreseeable future, there is not a real chance the applicant will suffer serious harm, or a real risk she will suffer significant harm, for the reasons she has claimed or for any reasons.
[5] UK Home Office Country Information and Guidance Ukraine, August 2016, [ Human Rights Watch, World report 2018 Ukraine, [>
The applicant claims she has been in a de facto relationship since last year, and also that she assists her daughter and grandchildren. The daughter gave evidence about the assistance given and her need for the mother. I acknowledge that the applicant will be separated from her partner and daughter and grandchildren for a period if she returns to Ukraine and while she seeks to migrate to Australia as a partner of an Australian citizen. This separation will reasonably cause depression and anxiety. But on the material before the Tribunal I am not satisfied the applicant will have psychiatric disorders that will attract the adverse attention of people in Ukraine such that they will seek to harm her. I am not satisfied that because she has some psychological stress, anxiety and associated symptoms upon her return, there is a real chance that her future condition will result in her experiencing serious harm such as a threat to her life or liberty; significant physical harassment; significant physical ill-treatment; significant economic hardship that threatens her capacity to subsist; or denial of capacity to earn a livelihood of any kind, where the denial threatens her capacity to subsist (s.91R(2) of the Act). Nor am I satisfied the psychological stress, anxiety and associated symptoms upon her return will cause her significant harm.
Conclusion
I find that the applicant will be able to enter Ukraine, most likely Kiev by air, and then travel by train or bus to her home area in Sumy, Sums’ka oblast province, without facing a real chance of serious harm or real risk of significant harm. Based on her evidence it is likely that in her home area she will be able to return to the family home where her mother lives. I do not accept there is a situation of generalised violence in her home area or elsewhere in Ukraine away from Crimea, Donetsk and Luhansk, or generalised criminality such that there is a real chance she would be a target for kidnap and ransom. I do not accept that she will be a target of anti-Western forces or harmed by paramilitaries. I find that on returning to Ukraine now and in the reasonably foreseeable future, there is not a real chance the applicant will suffer serious harm, or a real risk she will suffer significant harm, for the reason of being drafted to the reserve or to military service, or for the reason of being a draft evader.
When I consider all of the applicant’s personal circumstances and all of my findings about her narrative and evidence both individually and cumulatively, I find there is not a real chance that if returned to Ukraine, the applicant would be persecuted now and in the reasonably foreseeable future for any Convention reason. I find the applicant does not have a well-founded fear of persecution if returned to Ukraine. Nor do I accept there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ukraine, there is a real risk that she will suffer significant harm.
Refugee criterion
In light of the above assessment, the Tribunal finds that in Ukraine the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for the reasons she claims. The Tribunal finds that in Ukraine the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for one or more of the Convention reasons either when looked at individually or cumulatively. The Tribunal finds the applicant does not have a well-founded fear of Convention-related persecution, now and in the reasonably foreseeable future, if she returns to Ukraine. 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).
Complementary protection

I considered whether on the evidence before me, there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ukraine, there is a real risk that she will suffer significant harm. For the reasons set out above, I have not accepted there to be a real chance that the applicant will suffer serious harm if she returns to Ukraine, now or in the foreseeable future. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. It follows that I do not accept there to be a real risk that the applicant will suffer significant harm from anyone for the same reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Ukraine.
I accept the applicant may face financial difficulties on returning to Ukraine. However, she has qualifications, work skills and work experience that will enable her to seek and get work in her home area. She has a brother and mother there who will be available to provide support on her return. I do not accept her potential financial and personal circumstances in Ukraine rise to the level of significant harm, now and in the reasonably foreseeable future.
Request for referral to the Minister
The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The reasons for the request are related to the applicant’s de facto relationship in Australia to an Australian national and the support she gives to her adult daughter and grandchildren. However, at the hearing the representative confirmed the applicant, although she has had this option, has not yet made any request to the Minister in light of the applicant’s current circumstances. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’ but has decided not to refer the matter.
The Tribunal notes that the applicant can still make a request directly to the Minister.
Overall Conclusion
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).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative criterion in s.36(2)(aa). However, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a Protection visa.
C. Packer
Member

ATTACHMENT A – RELEVANT LAW
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
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).
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
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.
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.
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.
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
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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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.

[2018] AATA 723

2 March 2018

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