1516123 (Refugee)

[2017] AATA 2074

1516123 (Refugee) [2017] AATA 2074 (4 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1516123

COUNTRY OF REFERENCE:                  Ukraine

MEMBER:Saxon Rice

DATE:4 September 2017

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 04 September 2017 at 2:33pm

CATCHWORDS

Refugee – Protection visa – Ukraine – Political opinion –– Active participation in the Batkivshchyna Party – Fear of persecution by the former USSR Ukrainian and Russian government apparatus – Inconsistent evidence – Credibility concerns

LEGISLATION

Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

BZADA v MIC and RRT [2013] FCA 1062

MIEA v Guo (1997) 191 CLR 559 at 596

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

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 [in] November 2015 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Ukraine, applied for the visas [in] March 2015. The delegate refused to grant the visas on the basis that the applicant’s claims regarding persecution by the former USSR, Ukrainian and Russian government apparatus was lacking in credibility and the applicant’s claim regarding his involvement with the Batkivshchyna Party was not well-founded.

3. This is therefore, an application for a review of that decision.

4. The applicants were given an opportunity to appear before the Tribunal on 11 August 2017 to give evidence and present arguments. The applicants are represented in this matter.

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

   CRITERIA FOR A PROTECTION VISA

6. 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, he or she 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.

7. 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 because the person is a refugee.

8. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

9. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

10. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

11. 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.

    CLAIMS AND EVIDENCE

    Evidence

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

    • The completed protection visa applications, lodged [in] March 2015, including NAATI translations of the applicant’s responses to questions 43-48 of the application.
    • Photocopy of the applicants’ Ukraine passports.
    • Various documents relating to the applicant’s extended family’s illnesses, treatments, deaths, civil court matters and interactions with Ukraine authorities and English translations.
    • Photographs of the applicant attending political protests in Ukraine.
    • Audio recording of the applicants’ departmental interview [in] May 2015.
    • The delegate’s protection visa assessment record (‘delegate’s decision record’) of [date] November 2015.
    • The applicant’s online application for review on 24 November 2015, which included a copy of the delegate’s decision record.
    • Submission from the applicant’s representative dated 24 July 2017, including statutory declaration from the applicant dated 25 July 2017 with various attachments of news articles and reports of country information and the applicant’s membership card of the Batkivshchina Party dated [date] November 2012.
    • Submission from the applicant’s representative dated 28 August 2017 addressing matters raised during the Tribunal hearing and including Wikipedia information about Yulia Tymoshenko and the Batkivshchina Party.

    Claims

13. The applicants’ claims, as set out in the primary applicant’s protection visa application and interview with the department and detailed in the delegate’s decision record provided to the Tribunal by the applicants, and their submission to the Tribunal and evidence at hearing can be summarised as follows:

    Protection visa application

14. The applicant states that his great uncle, [Mr A], was a soldier of the Soviet Union who fled the USSR in 1945. The applicant states that after becoming an Australian citizen, [Mr A] returned to the USSR to visit relatives in 1976, and following his departure, members of his family began to rapidly contract various illnesses, and become involved in various accidents that have led to injury, impairment or death.

15. The applicant states that this has been perpetrated by the Komitet Gosudarstvennoy Bezopasnosti (KGB, the main security agency for the Soviet Union from 1954 until its break-up in 1991), the USSR police, and following the dissolution of the USSR, the Ukrainian and Russian police. The applicant states this has occurred systematically over the course of the past four decades, and has provided the following examples of his extended family's maltreatment:

    • The applicant states that in 1975, personnel at a maternity hospital forced his mother to relinquish her newborn baby.
    • The applicant states that in 1977, two months after [Mr A]'s departure, the applicant's father died, followed closely by his grandfather's death in 1978.
    • The applicant stated that during the Soviet Union era, his family were under surveillance, and that this surveillance continued after Ukraine's independence from the USSR.
    • The applicant states that his aged relative [was] attacked by a pack of dogs, set upon her by the Ukrainian police so that they could seize the apartment she was residing in. The applicant states that the apartment belonged to the applicant's family.
    • The applicant states that in 1995, his step-grandfather [was] hit by a car and killed. The applicant states that [he] died on his (the applicant's) birthday, which he believes was his 'gift' from the Ukrainian government, to mark twenty years of the government spying on him.
    • The applicant states that following [his step-grandfather]'s death, the Ukrainian government purchased [his step-grandfather]’s apartment using fake documents. The applicant states that his step-father [was] not present for the sale, and did not sign any of the documentation. The applicant states that the matter was raised through the courts by his family, however the case was downgraded from a criminal matter to an administrative one.
    • The applicant states that in 1997, his aunt [Ms B] emigrated from Ukraine to Australia, and became an Australian citizen. The applicant states that in 2001, [Ms B] and her [husband] [Mr B] travelled to Rostov, Russia to visit the applicant's great [uncle]. He states that whilst in Russia, a KGB-Federal Security Service (FSB) officer approached [Ms B] and [Mr B], and accused them of photographing an "object of strategic importance". He states that the KGB-FSB officer told them they must hand over the film, or pay a 100-200 dollar bribe, and [Mr B] opted to give the officer the film.
    • The applicant states that a few weeks later, after [Ms B] left Russia, [the applicant’s great uncle] suffered a [medical condition] and died. He states that [Ms B] tried to send money back to Russia to assist with [the] funeral arrangements, but the local government of Rostov put a freeze on the transfer.
    • The applicant states that [Ms B] travelled to Ukraine in 2007 to visit her mother, and upon returning to Australia, she received a phone call from an unknown person, advising her to have a 'cancer check'. He states that [Ms B] declined, as she felt well, but then the same person contacted her husband, who convinced her to have a check-up, and she was subsequently diagnosed with [a kind of] cancer. The applicant states to believe that to mark the ten year anniversary of [Ms B] emigrating from Ukraine, the Ukrainian government put chemicals in her meals to give her cancer. He states to believe that as the Ukrainian authorities have no jurisdiction in Australia, the people making phone calls to [Ms B] and her husband must have had the assistance of the Australian police.
    • The applicant states that Ukrainian government officials demanded bribes from him in order to continue conducting his business, and told him if he refused, someone would get hurt. The applicant states that he refused, and then a few days later his [relatives] were involved in a car accident, and his [other relative] had a stroke. He states to believe these two things were orchestrated by the Ukrainian authorities, and were direct consequences of refusing to pay the bribes.
    • The applicant stated that he filed a complaint to the Ukrainian [authority] regarding the attacks on his family, and the pressure being put on his business. He states that the [authority] responded that the police had acted lawfully. The applicant states that he attempted to contact the media, but claims that the police have ordered all journalists to avoid contact with him.
    • The applicant states that he attempted to seek assistance from [a foreign country’s] Embassy in Kiev, however he believes that the Ukrainian police ordered the Embassy to close its doors and gates on him, and that the Embassy staff and security guards had all left the premises.
    • The applicant states that in 2012, he believes the Ukrainian police added chemicals to his wife's food that caused issues with her [health], and resulted in [certain symptoms].
    • The applicant states that in March 2012, a car attempted to run him over, however he jumped out of the way in time to avoid it. He believes this was an assassination attempt by the Ukrainian police.
    • The applicant states that in April 2012 whilst in [Country 1], the [Country 1] government refused an extension of his visa because the required documentation was incomplete. He states that some of this documentation he lodged has now 'gone missing,' and believes it was stolen by Ukrainian and/or [Country 1] officials.
    • The applicant states that in June 2012, the [Country 1] police began "putting pressure on [him] in every possible way". He states that he went to the headquarters of [a Country 1] [newspaper], and attempted to inform them about what had been happening to him in Ukraine, however he believes the [Country 1] police had ordered the journalists to avoid contact with him.
    • The applicant states that he wanted to remain in [Country 1] to avoid being killed in Ukraine, however to have his visa extended he was required to have an employer sponsor him, but the [Country 1] police would not allow him to attain this.
    • The applicant states that he made another application to the [Country 1] government for a visa, with which he provided documentation regarding the car accidents, his [relative]'s stroke, his communication with the [authority], and his complaints about the Ukrainian government putting pressure on him. The applicant states that he was invited to attend one of the [Country 1] immigration offices and re-write his application, however the [Country 1] authorities "did not like [his] 'blood-stained' documents containing information about attacks on [his] family members". He states that the [Country 1] officials threw away his application, and his visa application was refused.
    • The applicant states he believes that the Ukrainian and [Country 1] authorities were working together, and that in October 2012, the [Country 1] authorities demanded a "ransom" for him, which he refused to pay.
    • The applicant stated that on the [date] of October 2012, he lodged complaints to the embassies of [two other countries] in [Country 1], regarding the persecution he feared by the Ukrainian and [Country 1] governments. He then claims that on the [date] of October, his relative [Ms C] died of a [a medical condition], which he believes to have been orchestrated by the Ukrainian government.
    • The applicant states that his aunt,  [Ms B], again travelled to Ukraine to attend the funeral of [Ms C], and at Boryspil Airport in Kiev, passport control officers asked her for some coins as a keepsake, and neglected to stamp her passport. The applicant states that as a consequence, [Ms B] was later accused by other Ukrainian officials of having entered the country unlawfully, and had to present at the KGB Border Security office to get "entry confirmation".
    • The applicant states that when she left Ukraine to return to Australia, [Ms B] sought to repatriate [Ms C] 's remains in a large ceramic container, which she checked in as oversize baggage. The applicant states that upon arriving in [a city in Australia], the ceramic container had broken, along with other items in her baggage. The applicant states to believe that KGB/Sluzhba Bezpeky Ukrayiny (SBU, the Security Service of Ukraine) officers at Kiev airport have deliberately jumped on [Ms B]'s luggage to break these items.
    • The applicant states that shortly after his wife arrived in Australia, she and his aunt [Ms B] pulled out of their residential complex in [Ms B]'s car, when they were struck by another vehicle. The applicant states to believe this was orchestrated by the Ukrainian police, potentially with the assistance or complicity of the Australian police.

    16.With regard to how he believes to have been personally targeted, the applicant has stated the following:

    • The applicant states that in 1982, three men attempted to abduct him from a children's swimming pool. The applicant states that they grabbed him, but he clung to the fence, and they were unable to tear him away.
    • The applicant states that in [year] he was enrolled in [a] school for the children of military officers and bureaucrats, which he states was orchestrated by the Ukrainian authorities to keep him under control.
    • The applicant states that at the grocery stores in Ukraine, the checkout attendants close their cash registers and leave before he can buy his groceries.
    • The applicant states that the operators at petrol stations in Ukraine refuse to fill his car with fuel.
    • The applicant states that the employees at the subway station in Ukraine refuse to accept his payment for tickets.
    • The applicant states that he ordered topsoil for his [home] in Kiev, however the soil he received was mixed with chemical waste, and had dark yellow granules with a strong sharp smell.
    • The applicant states that even when he pays his electricity and utilities bills, power and water still get cut off to his home.
    • The applicant states that in 1994 he had a [medical condition], however the cause was not detected by the Ukrainian doctors who treated him. He states to believe that the Ukrainian police have somehow put chemicals in his [body].
    • The applicant states that in 1999 his general state of heath began to decline, however after being referred to numerous doctors, none were able to help him. He states that after being diagnosed with a [medical condition] and prescribed '[a certain medicine]', his [certain body parts] became swollen and painful, and he now has permanent [medical condition]. He states to believe the Ukrainian police have colluded with the doctors to ensure he receives incorrect treatment.
    • The applicant states that in 2001, a co-worker offered to share his lunch from the same plate. The applicant states that this resulted in him contracting a virus, and the Ukrainian police then "transported [his co-worker] in the direction unknown to me".
    • The applicant stated that in 2002-2004, he was told by medical practitioners that his blood tests came back positive for a viral infection, and told him that he required a [certain] test. The applicant states that a doctor of [an institute] in Kiev gave him a false [test] result three times, in order to provoke him to aggression against himself or the community. He states that the same practitioner then cleared him of [the disease], stating that he in fact had [another] virus.
    • The applicant states that in 2007-2008, whilst working in [a certain] department of [a workplace] in Kiev, the Ukrainian police turned off the building's ventilation, and planted an employee in his work area who had an infectious strain of [a disease]. The applicant states to believe this was an attempt by the Ukrainian police to infect him with [the disease]. The applicant states that when he eventually contracted [the disease], the doctors refused to treat him, as they said the x-rays showed no sign of [damage]. He states that the doctors told him [details deleted].
    • The applicant states that he found a doctor who prescribed him with some medication which helped to treat his [disease], however the disease did not ever "close". The applicant states to believe that the Ukrainian police artificially kept the disease active in his system.
    • The applicant states that in 2007, he went to see a dentist, who extracted one of his healthy teeth. He states that the Ukrainian police then transferred the dentist away from the area.
    • The applicant states that in 2010 he contracted [a disease] of[a body part], and that an [doctor] prescribed him [medications] to treat it. The applicant states that these medicines have printed on their labels that they are not for use for persons with [the disease], and caused him pain when used. The applicant instead sought to treat himself by dissolving another anti-[disease] medication in boiled water, and applying it to his [certain body part].
    • The applicant states that in 2011, he experiences strong headaches. The applicant states that he walked away from his house and the headache went away, yet as he walked back toward his house it increased. The applicant believes this occurred because the Ukrainian police have installed an electromagnetic emitting device in his home.
    • The applicant states that upon returning to Ukraine after seeking protection in [Country 1], his mother made an impromptu purchase of a bright orange cake, which upon consumption, caused his various health ailments [to] subside. The applicant states that ten to fourteen days afterward, he began to feel an itch in his whole body, similar to what is commonly felt when a wound it healing. The applicant states to believe that this orange cake contained an antidote.
    • The applicant states that when he closed down him bank account in Ukraine, the bank took twenty-four hours to issue the money to him. He states that the cash he received was damp, and touching the bank notes resulted in joint inflammation, swollen hands, and a burning sensation.
    • The applicant states that he purchased a book over the internet, and upon receiving the book, he noted that the pages caused a burning sensation and swelling in his hands.
    • The applicant states that if experiences pain in his lymph nodes when he uses eau de cologne, he experiences bleeding in his gums when he uses toothpaste, and when he eats sweets such as 'Mars' or 'Snickers' he experiences pain. The applicant states the Ukrainian police have 'made' allergies for him so that "life literally wouldn't seem sweet."
    • The applicant states that he began undergoing testing for [a disease] whilst residing in Ukraine in June 2012, and shortly after arriving in Australia in June 2013, the test came back positive. The applicant states that his doctor told him [the disease] is only found in Australia and Canada, and can only be contracted from contact with [certain animals]. The applicant states that has never been to Canada, had only briefly been in Australia, and had never had contact with [this kind of animal], therefore he believes he has been infected by the
    • Ukrainian authorities.

    Department interview [in] May 2015 as outlined in the delegate’s decision record

1. The applicant made the following relevant addition to his written claims:

   ·The applicant states that he had joined a Ukrainian political party called Batkivshchina and provided a series of photographs of him participating in party rallies in Kiev.

   Submission and statutory declaration to the Tribunal dated 24 and 25 July 2017

2. The applicant’s representative advised that the primary review applicant summarised his claims at paragraphs 7 and 8 of his statutory declaration as follows:

   7. I believe persecution against me has been made originally by the KGB and when they dissolved the FSB in Russia and the SBU in Ukraine. The KGB ‘Komitet Gosudarstvennoy Bezopasnosti’ in English, ‘Committee for State Security’ was the secret police in the Soviet Union from 1954 to 1991 and the FSB ‘Federal Security Service’ was the main successor afterwards for domestic security of the Russian Federation. The SBU are the ‘Sluzhba Bezpeky Ukrayiny’ in English ‘Ukrainian Intelligence Organisation’, Secret Service of Ukraine.

   8. Persecution by these agencies against me and my family have been extensive throughout my entire life because of 2 reasons (1) the actions of my great uncle, [Mr A] who fled from the USSR Army in 1945 and (2) later in my adulthood my active participation in the Batkivshchyna Party.

3. The applicant provided news articles as evidence to substantiate that Ukraine and Russian authorities using surreptitious activities to persecute people and the applicant’s representative stated that “what may appear far-fetched and implausible are actual occurrences abroad”.

4. The applicant’s statutory declaration dated 25 July 2017 concludes as follows:

   1. I have no faith in the Ukrainian authorities. The Ukraine is a very corrupt country. I have tried to go through our proper channels of justice but there is no justice. I have tried to seek documents to evidence things that have happened to me and my family and such documents can now no longer be found.

   2. I believe I have been declared a criminal of the State because of my great Uncle and his actions in 1945 fleeing from the USSR Army. Since then his family has been under the surveillance and the authoritative abuse and maltreatment of the police forces.

   3. I also believe my active participation in the “Fatherland” further identified me as an ongoing person of interest.

   4. The family chart I attach shows my family and I have highlighted those who have died at the hands of Ukrainian/Russian police.

   5. I am denied health care in the Ukraine for symptoms which have been chemically induced by the Ukrainian police.

   6. I am denied the ability to carry out a business without be extorted by Ukrainian police.

   7. I am denied the legal right to retain property because of fraudulent actions permitted by Ukrainian police and facilitated by out [authority].

   8. I fear I will be killed if I return to Ukraine. I fear I will not have the basic human rights one is inherently entitled to.

   9. Since arriving in Australia my health is better.

   10. The actions of the police are secretive, they are not published and the majority of their victims are too scared to make public their actions for fear of retaliation. I referred in my original claims that it is a Mafioso like culture with fear imbedded in the Ukrainian people.

   Evidence at Tribunal hearing

   ·The delegate’s decision record satisfactorily summarises the applicant’s claims.

   ·The applicant’s mother [and siblings] still live in Ukraine and his brother owns a [business]. The applicant last spoke with his family approximately 3 months ago and he usually speaks with them around four times per year by phone.

   ·Prior to travelling to Australia, the applicants lived in a house they owned just outside the city of Kiev and also at the second applicant’s mother’s apartment in Kiev city. The second applicant’s mother passed away in 2015.

   ·The applicant stated that he had a number of jobs and just before coming to Australia he opened a [business] with his brother as well as owning [another business].

   ·The applicant said he is no longer a part owner of the [business] with his brother because prior to travelling to Australia, the police forced him to close it. The applicant said that his refusal to pay bribes caused his brother and wife to be involved in a car accident and his [relative]’s stroke in 2010. He reported the persecution to the [authority] and after that, the [business] whose operations he was fulfilling as [an occupation] increased their percentage so that it became unfeasible to work and he was forced to close the [business]. He said this was the police cutting off his financial means.

   ·The applicant stated that he had told the Tribunal that his brother was working as [an occupation] even though this is the same agency he said is closed because the agency was actually inactive and his brother has just started working in the [business] again in the last few months. The applicant believes that his brother has been able to work again in the agency because the applicant turned to the United Nations (UN) and applied for refugee status in Australia and because he has visited various embassies regarding protection that Ukraine police have allowed the [business] to operate.

   ·After he turned to various embassies for help, relatives started dying including the second applicant’s mother who died soon after the applicants visited [Country 2’s] Embassy in Australia in March 2014.

   ·The second applicant [came to] Australia and then returned in February 2013 [using] a migration agent and she was aware that this visa was a temporary visa. The second applicant thought her second [temporary] visa was valid until May 2015.

   ·When the applicant arrived in Australia, he had a medical assessment for his prospective employment which discovered that he had ‘[a certain disease]. The applicant was sure that Ukraine police were responsible for his infection and that police ordered medical staff not to treat him. As a result he thought about seeking refugee status and also because his great uncle died on his aunt’s birthday. The applicant and his representative later clarified that he cannot assert that Ukraine police influenced Australian doctors but he assumed that Ukraine police contaminated him.

   ·The applicants returned to Ukraine in 2015 to convince relatives to emigrate from Ukraine and so that the second applicant could legalise her ownership of her mother’s apartment after her mother died and to bury her mother’s ashes. The applicant was unable to bring relatives to Australia with him because of their low intellect, they were “chicken” and not familiar with the legal issues.

   ·The applicant stated that Ukraine police influenced his wife’s ability to claim her inheritance in Ukraine following her mother’s death. For example, the police stalled the hearings and the reason given was that the judge was in another place to visit relatives and the process took more than one and a half years and only after the applicant sent all his information to the UN in Australia about the judicial system in Ukraine, a hearing date was set and his wife was granted her inheritance. The applicant believes that under Ukraine law, his wife should have been able to obtain her inheritance within 30 days and therefore, this shows that they are under surveillance from the Ukraine government and authorities who try to cause them various problems.

   ·While in Ukraine, the applicant met with his [family members] one by one to try to convince them to leave Ukraine. The applicants stayed in the second applicant’s mother’s apartment and the applicant said he received a threatening phone call soon after his arrival, stating that he would not be able to leave Ukraine. The applicant thought about leaving immediately after this phone call but he did not, even though he was very worried and nervous. The applicants did not have any trouble leaving Ukraine.

   ·While in Ukraine, the second applicant visited lawyers and Kiev regional government offices in order to progress her inheritance matter and she also had her passport reissued while she was in Ukraine.

   ·The applicants did not have any difficulties entering or leaving Ukraine on their various trips to [three other countries].

   ·The applicant claimed protection because in the Ukraine system, if one person is declared a criminal then all the people associated with that person are also declared criminals. Because of the actions of the applicant’s great uncle in defecting from the USSR army, he was declared a criminal and so all relatives in Russia and Ukraine are also criminals. As a result, the applicant cannot access health services or run a business in Ukraine and authorities have attempted to kidnap him, kill him and ruin his health through infection.

   ·The applicant said that in 2012, he was threatened that he would have a child born without an arm. He said that in 2008 he had a co-worker who had a child born without an arm. When he ran into his co-worker in the supermarket, his co-worker passed on the demand from the police that he must pay them and if not, his child would be born without an arm. On the basis that the applicant had been threatened in this way, the applicant assumed that Ukraine police had made a substance that could cause birth defects.

   ·The applicant fears returning to Ukraine on the basis of his participation in “Batkivshchina Party” because members of parties that are not the ruling party are persecuted. The applicant joined this party in November 2012 after he left [Country 1] on the basis that “if you are not interested in politics then politics is interested in you”. His party activities included attending four to five peaceful demonstrations during his approximate seven months of membership before arriving in Australia, organizing groups and observing vote counts. Nothing happened to him personally at any of the demonstrations he attended.

   ·The applicant said that because the party is in opposition, it is under repression. He claimed that Ukraine police are concerned about his participation because members of the party are a threat to the government and can bring instability to the country. He stated that he has never been arrested.

   ·The applicant did not know his great uncle’s rank in the USSR Army but thought he was a low ranking soldier. He did not know how long his great uncle served and he does not have any evidence of his great uncle’s military service. He said that he was not able to access documents in military archives because he is not a close relative. He understands his great uncle served in the USSR Army because all his relatives told him. The applicant stated that he relies on the word of relatives that his great uncle defected from the USSR Army and he cannot be certain that the USSR Army knows that his great uncle defected as opposed to being killed or missing in action. The applicant does not know when his great uncle arrived in Australia or became and Australian citizen.

   ·The applicant believes that Russian and Ukraine authorities are interested in him now because the official position of the Russian government is that “traitors should be treated this way”. The applicant assumes that his great uncle was killed by Ukraine and Russian police in Australia.

   ·The applicant did not know why his great uncle returned to the USSR in 1976 but according to relatives, he was frightened to go back. The applicant did not know why authorities would target him (or his family members) for the actions of his great uncle. He said it was difficult to know whether it was revenge or punishment but just that according to the law of Russia and Ukraine, if one person is a criminal then all other relatives are considered criminals.

   ·The applicant did not know why the USSR was apparently not interested in the perpetrator of the crime (the applicant’s great uncle) when he returned to USSR in 1976. He said that it may be because he was known to [Country 2’s] government and under the protection of Australia.

   ·The applicant did not have any independent evidence of the connection between his great uncle’s actions and the events of his or his relatives’ lives and stated that he based his application on things that were relevant to him and on the basis of what relatives had told him.

   ·The applicant wanted to stay on in [Country 1] in 2012 and he applied for a visa and expected to get [Country 1’s] citizenship but then he applied for protection because Ukraine police started demanding money from him, threatening him and relatives were attacked. He could not remember why his [Country 1’s] protection visa application was refused.

   ·When questioned by the Tribunal, the applicant retracted his claims (as set out in the delegate’s decision record) that Australian police assisted Ukraine authorities to make phone calls to his aunt [Ms B] about her cancer and that Australian police may have been complicit in a car accident involving the applicant’s aunt [Ms B] and his wife and stated that it was only the Ukraine police involved in both cases.

   ·The applicant stated that business vendors target him because everything is under the control of the government in Ukraine and the government is corrupt.

   ·The applicant “fully decided” to apply for a protection visa once he arrived in Australia and on day three after arriving in 2013, he went to the Department of Immigration and got the forms for a protection visa application but he had a conflict with his wife as she did not want to apply because of the number of refusals and so the applicant submitted to the demands of his wife which was a personal weakness. The second applicant stated that she felt fear at the mention of a protection visa because she lacked legal understanding and knowledge and she was conditioned that every expression of opinion was persecuted and this held her back.

   ·In response to the Tribunal’s questions regarding the inconsistency and contradiction in the applicant’s evidence regarding his brother’s [business] and the consequences of him having spoken to other countries, the applicant claimed that an officer of the Department of Immigration in Australia told him that he would have to send the applicant’s protection visa application to authorities in Ukraine and the applicant had made it known that he did not want the Ukraine government to know that he was making a protection visa application in Australia. The applicant believed that his application would be sent to authorities in Ukraine and he did not say anything about this to the department or his current migration agent because he did not know anything about legal regulations.

   ·The applicant stated that he bases his concern about his participation in the Batkivshchina Party on the statement from the party’s leader, Yulia Tymoshenko that the party was being repressed in Ukraine. The applicant sought to provide more evidence of this claim and the Tribunal agreed to provide the applicant with fourteen days to do so.

   ·When the Tribunal raised its concerns with the applicant regarding the USSR not being interested in the perpetrator of the crime, the lack of overt action by authorities, the applicants’ return to Ukraine and delay in applying for protection and provided him with an opportunity to comment, the applicant stated that he had no comment and he would continue to adhere to his application.

5. After the Tribunal hearing, the applicants provided a submission addressing the Tribunal’s concerns regarding evidence provided by the applicant and including information from Wikipedia regarding the Batkivshchina Party which is considered below. The applicant’s representative also reinforced the submission that the applicant genuinely believes he will be persecuted upon his return, so much so that he decided to proceed with a Protection Visa as opposed to a [temporary] Visa for which his wife was eligible for having met the associate [requirements] in Australia.

   CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS AND REASONS

   Country of reference

6. The applicants claim and the Tribunal is satisfied on the basis of the personal details provided, that they are Ukrainian nationals. Ukraine is therefore the receiving country for the purpose of assessing the applicants’ claim for protection.

   Assessment

7. The issues in this review are whether the applicants have a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to their receiving country of Ukraine, there is a real risk they will suffer significant harm.

8. 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.

9. Having considered the relevant evidence, the Tribunal has concerns about the credibility and ‘well-foundedness’ 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 his claims to fear harm.

10. The Tribunal was also concerned about inconsistencies in the applicant’s evidence and on a number of occasions, the applicant gave evidence that was not credible and not consistent with country information which further undermined his credibility. The Tribunal has made these findings for the reasons set out below.

    Connection between the applicant and his family’s life events and his great uncle’s defection from the USSR Army in 1945

11. The Tribunal raised a number of concerns with the applicant in relation to the lack of evidentiary connection between the applicant and his family’s life events and his great uncle, [Mr A]’s defection from the USSR Army in 1945. For example, the Tribunal noted that there did not appear to be any evidence of [Mr A]’s military service or his defection, there did not appear to be any independent evidence linking the actions of [Mr A] and the events as described by the applicant. The Tribunal also noted that [Mr A] returned to USSR in 1976 which might suggest he did not have a fear of returning for his actions and while in the USSR, he did not appear to be of interest to the authorities which might suggest that the USSR authorities had no interest in him for his actions.

12. Similarly, the Tribunal noted that the applicant has not been subject to any overt action by Russian or Ukrainian authorities and he has not been arrested or detained which might appear inconsistent with a claim of being targeted by those authorities. However, when the Tribunal invited the applicant to comment in relation to its concerns, the applicant provided no further information and told the Tribunal that he would continue to adhere to his application for protection.

13. On this basis, the Tribunal is prepared to accept, for the purposes of this review, the applicant’s claims that his great uncle, [Mr A] absconded from military service in the USSR in 1945; that several members of the applicant's extended family have passed away since 1976, including the applicant’s great uncle; and that the applicant and several members of the applicant's extended family have contracted illnesses; been involved in motor vehicle accidents; and been involved in various civil court matters since 1976.

1. However, the Tribunal does not accept that the applicant and his family are considered 'enemies of the state' by the Ukrainian or Russian governments; that the applicant or his extended family members’ illnesses and medical conditions have been artificially or chemically induced surreptitiously by the Ukrainian government; that the deaths and illnesses of the applicant and his various extended family members have occurred as a result of the acts or omissions of the USSR, Russian or Ukrainian governments (including denial of health care); that the Ukrainian government has caused business vendors to refuse the applicant service, or have in any way interfered with other administrative processes such as the operation of his business activities or property ownership or disputes; or that the USSR, Russian or Ukrainian governments or their agencies (including the KGB, FSB and SBU) have sought to target, assassinate or otherwise harm the applicant, or members of his extended family in any way, including through covert means involving the governments and authorities of any other country.

2. As noted above, for the purposes of this review, the Tribunal is prepared to accept that [Mr A] absconded from military service in the USSR in 1945, despite the applicant’s evidence being vague in relation to [Mr A]’s military history and there being no evidence of his military service or defection and no evidence to support a conclusion that the USSR Army believes [Mr A] absconded. However, even when accepting this fact (which the applicant claims is the cause of the harm he and his extended family claim to have suffered) the applicant was unable to provide any satisfactory explanation for why, if [Mr A]’s absconding from the USSR Army resulted in [Mr A] and his extended future family members being considered criminals and enemies of the state, [Mr A] returned to the USSR in 1976 and secondly, that [Mr A] returned to the USSR in 1976 and he was not apprehended or otherwise seemingly of any interest to authorities during his visit.

3. The Tribunal cannot understand why, if [Mr A]’s absconding from the USSR Army in 1945 was such a serious offence that could have ramifications for his extended future family, he would return to the USSR where he may be apprehended or otherwise come to harm. Similarly, the Tribunal does not accept that the USSR would dedicate such resources to the pursuit of the applicant or [Mr A]’s extended family in the way described by the applicant when the perpetrator of the original crime, [Mr A], could have been apprehended and prosecuted when he returned to the USSR in 1976. The Tribunal notes that the applicant asserted that the USSR authorities did not apprehend or otherwise have any interest in [Mr A] because he was known to [Country 2’s] government and under the protection of Australia. However, the applicant also said that he did not know why the USSR authorities appeared to have no interest in his great uncle and given the lack of any other information about [Mr A] and his military service, the Tribunal cannot rely on the applicant’s assertion regarding the influence any other country had at that time.

4. The Tribunal notes that the applicant provided an article from BBC.com in Russian to substantiate his claim that relatives of former Russian service people are punished for the crimes committed by their relatives.[1] However, the Tribunal considered the entirety of this article with the assistance of an online translation facility and while the Tribunal acknowledges that such a translation is not accredited, it enabled the Tribunal to understand the context of the selected quotes provided by the applicant in English, in relation to the entire feature article.

   [1] See submission dated 24 July 2017 at attachment 29 with selected English translation at attachment 25.

5. It appears evident to the Tribunal that this article by the BBC is a feature about the 1937 Decree enabling the wives and children of convicted traitors (particularly of a political nature) of the “homeland” to be put into special camps. The article’s reference to “family” does not appear to extend past the wives and children of convicted traitors and the article also appears to suggest that the bulk of ‘family repression’ occurred in the years 1937-1938. The tribunal cannot extrapolate from this article that it relates to the current day or even recent history or that such references could be in any way determinative of the applicant’s situation. On this basis, the Tribunal is concerned the applicant has been selective with his reference to this material and it places no weight on the article. In addition, the Tribunal is not aware of any credible country information to substantiate a claim that the current laws of Russia and Ukraine are such that the relatives of criminals are also considered criminals or that such a “law” extends to such a broad and extended definition of relatives. The applicant did not advance any other argument for why his great uncle absconding from the USSR Army in 1945 had any connection to events of the applicant’s life and the lives of his extended family.

6. The Tribunal also notes that the applicant has not been subject to any overt action by USSR, Russian or Ukraine authorities. The applicant and his wife have not been arrested or detained and they have been afforded multiple Ukraine passports that have enabled them to travel freely between Ukraine and a number of other countries. The Tribunal finds that these facts are inconsistent with a claim that the applicant and his family are being targeted by Ukraine (or Russian) authorities.

7. Given the USSR did not appear to be interested in the perpetrator of the crime when he returned to the USSR in 1976, the Tribunal does not accept that the USSR, Russian or Ukraine authorities have, or have had, any cause to persecute or harm (whether overtly or surreptitiously) the applicant or his extended family.

8. Contributing to the Tribunal’s findings above is the fact that the applicant’s immediate family continue to live in Ukraine. In addition, the Tribunal has doubts about the genuineness of the applicants’ fear of harm in Ukraine given they both returned to Ukraine in 2015 and the second applicant also returned to Ukraine from Australia in 2012.

9. The Tribunal notes that the applicant claims to have returned to Ukraine in 2015 to convince family members to leave Ukraine and apply for protection. However, the Tribunal is not persuaded by this explanation given the applicant also told the Tribunal that he is in regular contact with his family via telephone. The Tribunal finds the applicant’s explanation lacking in credibility that he needed to return to the place of feared harm when he could have spoken to his family and tried to ‘convince’ them via any number of electronic means that would not have meant that he needed to return to Ukraine, potentially putting the lives of he and his wife in danger.

10. In addition, the second applicant told the Tribunal that they returned to Ukraine in 2015 in order for her to bury her mother and settle her mother’s estate which required a number of interactions with government authorities, including the second applicant applying for and renewing her Ukraine passport. The Tribunal is not persuaded that these are the actions of people fearing serious or significant harm from Ukraine authorities. The Tribunal notes that the applicant claims that soon after his arrival in Ukraine in 2015, he received a threatening phone call but there were no other problems. However, the threatening phone call did not cause him to leave Ukraine but rather, the applicants stayed for one month. The fact that the second applicant’s passport was reissued and both applicants confirmed that they did not have any problems entering or leaving Ukraine also suggests to the Tribunal that the applicants are not persons of interest to Ukraine authorities.

11. The Tribunal notes that in his earlier evidence, the applicant claimed that the police also caused problems for the second applicant in settling her mother’s estate. However, this claim contradicts the applicant’s statement during the hearing that he received a threatening phone call but there were no other problems. In addition, the explanation given by the applicant for the ‘problems’ experienced by the second applicant included a delay in setting a court date and the applicants were told that the judge was in another place to visit relatives. The Tribunal is of the view that it cannot reasonably conclude that the availability of judges and the scheduling of court processes necessarily involves police interference and given the applicants did not appear to be persons of interest to Ukraine authorities in any other way during this visit to Ukraine and the Tribunal does not accept that the applicants are considered ‘enemies of the state’, it does not accept that the police had any cause to interfere in this process.

12. Similarly, the applicant did not apply for a protection visa until almost two years after first arriving in Australia, approximately one year after the applicants claim to have visited [Country 2’s] Embassy in [a city in Australia] seeking protection and just prior to the expiration of the second applicant’s [temporary] visa. If the applicant genuinely held the fears claimed, the Tribunal would have expected him to have lodged a protection visa application shortly after his arrival in Australia or at the very least following his unsuccessful visit to [Country 2’s] Embassy in [a city in Australia] and well before the expiration of his wife’s [temporary] visa. In addition, the applicant arrived in Australia less than one year after being refused protection in [Country 1]. On this basis, the Tribunal does not accept the applicant’s explanation that due to a moment of weakness on his part, his wife convinced him not to lodge a protection visa application and it finds this explanation inconsistent with their claim to have sought protection at [Country 2’s] Embassy in [a city in Australia].

13. The Tribunal is of the view that the applicant, after being refused a protection visa in one country, continuing to fear the same harm and arriving in another safe country, would make a new application for protection at the earliest opportunity and particularly after having visited another country’s embassy in Australia regarding protection.

14. Given the Tribunal does not accept that the applicants are of any interest to authorities in Ukraine or Russia, it follows that the Tribunal does not accept that Ukraine (or Russian) authorities have caused him or his family any surreptitious harm, including through business vendors, or that they would have any reason to do so in the future. Therefore, the Tribunal finds that the applicants do not face a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future from the Ukraine or Russian governments or their relevant authorities due to the actions of the applicant’s great uncle in fleeing the USSR Army.

    Not credible evidence

15. In relation to the Tribunal’s doubts about the overall credibility of the applicant and his claims, the Tribunal also notes that the applicant originally claimed that his application for protection and his claims as set out in the delegate’s decision record were an accurate reflection. However, when the Tribunal raised its concerns about the applicant’s claims that the Australian police were complicit in causing him and his family harm, the applicant retracted these claims and stated that it was only Ukraine police. Similarly, when the Tribunal raised its concerns about the applicant’s claims of complicity of the governments or authorities of [two other countries], the applicant stated that his claim related to Ukraine police.

16. During the Tribunal hearing, the applicant claimed that he was forced by authorities to close his [business] with his brother but due to his contact with the UN and other embassies, his brother was then able to resume business. On the other hand, the applicant told the Tribunal that due to his contact with other embassies, relatives were killed. The Tribunal has concerns about these two apparently conflicting statements and when it put its concerns to the applicant, he stated that the events described did not occur at the same time. He said that family members died from 2012-2014 and at that time, he did not make an application for protection in Australia. He said that his brother’s [business] was inactive for a few months in 2017. The applicant then went on to claim that he believes his brother was allowed to continue his business because of his applications to the “Australian Embassy of the UN” in regard to violations of rights after an officer of the Department of Immigration in Australia told him that he would have to send the applicant’s protection visa application to authorities in Ukraine and the applicant had made it known that he did not want the Ukraine government to know that he was making a protection visa application in Australia.

17. The Tribunal noted its doubts about this claim and concerns for the applicant’s credibility and advised the applicant that it would listen to the audio recording of the applicant’s interview with the department in order to verify this claim. The audio recording of the applicant’s interview records that the interviewing officer advised the applicant that his “personal information, including information provided at this interview and further interviews is protected by law, including the Privacy Act so the information will not be made available to authorities in Ukraine or Russia”. The applicant acknowledged this statement. The interviewing officer continued to advise the applicant that if he is found not to be a refugee, his details may be provided to relevant authorities, including in his home country, to facilitate his return to Ukraine. The applicant acknowledged this statement with the assistance of an interpreter in the Russian language.

18. Following the Tribunal hearing, the applicant’s representative acknowledged that the officer of the department made the statements outlined above to the applicant. The applicant’s representative submitted that the applicant did not mislead the Tribunal by stating that during his interview with the Department, the officer “told him that particulars of his claim were going to be disclosed to the authorities overseas in his home country”. The applicant’s representative stated that the applicant understood this to be said to him during the interview and that it can be understood how he made that conclusion.

19. The Tribunal does not accept this explanation as it was clear to the Tribunal that the interviewing officer made two separate statements to the applicant about the information he was providing and what would happen if he was found not to be a refugee and the applicant acknowledged both statements individually. If there had been any confusion such as that claimed by the applicant, particularly given the applicant’s claims and his previous experience claiming protection in [Country 1], the Tribunal is of the view that the applicant could have sought clarification at the time, including through the Russian interpreter that was present during the interview but the applicant did not do so.

    Active participation in the Batkivshchyna “Fatherland” Party

20. The Tribunal accepts that the applicant became a member of the Batkivshchyna “Fatherland” Party in November 2012, seven months prior to his travel to Australia. The Tribunal also accepts that as part of his activities as a member of the Party, he attended peaceful rallies.

21. However, the Tribunal does not accept that the applicant is an ongoing person of interest due to his participation in political activities with the Batkivshchina Party or that he faces a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future due to this political participation.

22. The applicant told the Tribunal that his short period of active membership prior to his travel to Australia involved attendance at a number of peaceful demonstrations and other party activities such as observing vote counts. The applicant told the Tribunal that he was not arrested at any of these demonstrations and he does not appear to have come to the attention of authorities for any reason associated with his membership and active participation in this Party.

23. In addition, the Tribunal notes country information outlined below that does not suggest that opposition supporters are a group at risk in Ukraine. Until recently, the Batkivshchina Party was part of the ruling government and while the applicant provided a statement from the party’s leader, Yulia Tymoshenko, stating that the party was being repressed, the Tribunal prefers to rely on independent country information quoted below. For example, the Tribunal notes that there is considerable international attention on Ukraine by various countries, international organisations such as UNHCR and the UN High Commission for Human Rights and Freedom House and none of these organisations, with regular access to Ukraine has identified opposition supporters as being a group at risk in Ukraine.

24. The Tribunal also notes that the applicant was such a low level participant for such a short period of time and was not arrested at any demonstrations. In addition, while the Batkivshchina Party is no longer part of the ruling coalition, its platform is still very much in line with the ruling government and they are not diametrically opposed.

25. At the hearing, when the Tribunal outlined its concerns regarding the statement from Yulia Tymoshenko as set out above. The applicant told the Tribunal that he continued to rely on the statement by Yulia Tymoshenko that the party was being repressed but requested additional time following the hearing to provide more country information. The Tribunal agreed to the applicant’s request to provide further evidence of his claim in this regard although it noted that it would need to give consideration to the reliability of the sources of information provided.

26. On 28 August 2017, the applicant’s representative provided a submission to the Tribunal stating that “additional supporting evidence of such repression has been difficult to ascertain by the review applicants” and attached a Wikipedia page titled “Criminal cases against supporters of Yulia Tymoshenko”. The Tribunal has considered this information (being mindful that the courts have commented on Wikipedia as source), however, the information provided by the applicant refers to criminal cases against supporters of Yulia Tymoshenko since 2010 under the previous government of Viktor Yanukovych. The Tribunal understands that the Batkivshchyna party’s leader, Yulia Tymoshenko, was arrested and imprisoned under Viktor Yanukovych and following the fall of his government, she was released from prison in February 2014. All charges against her were dropped and she was permitted to run as a candidate in the May 2014 presidential election, where she came second to the winner Petro Poroshenko. The other people referred to in the article include former cabinet ministers of Tymoshenko and regional governors. None of these people could be considered general party members such as the applicant.

27. Given that the only additional material the applicant was able to provide the Tribunal relates to the treatment of the Batkivshchyna party’s leader, Yulia Tymoshenko and members of her earlier government under the former President Viktor Yanukovych and nothing related to the current treatment of general members of the Batkivshchyna Party, the Tribunal confirms its finding that it does not accept that the applicants face a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future due to the applicant’s past political participation or his current, former or future membership or participation in the peaceful activities of the Batkivshchyna Party.

1. For the sake of completeness, the Tribunal does not accept that the applicants are unable to return to Ukraine due to the ongoing conflict in the east of the country. While this was not an explicit claim made by the applicant, the Tribunal considered this possibility given the ongoing conflict. However, while country information indicates that the security situation remains volatile in and near to the conflict zone in the Donetsk and Luhansk oblasts, the current situation in the rest of Ukraine other than the conflict zone (which does not include the city of Kiev) is relatively calm. On this basis, the Tribunal does not accept that the applicants cannot return to Kiev where they would have the support of the applicant’s family who still live near to the city of Kiev.

2. The applicant was provided with an opportunity to comment on this information and stated that he did not touch upon the conflict in his application and he has no comment about the war actions between Ukraine and Russia. On this basis, the Tribunal does not accept that the applicants face a real chance of serious harm or a real risk of significant harm if they return to Ukraine in the reasonably foreseeable future on account of the current situation in Ukraine.

   Cumulative assessment

3. Considering the applicants’ individual circumstances and country information on a cumulative basis, the Tribunal finds their fear of persecution is not well-founded as required by s.5J of the Act and therefore they are not refugees within the meaning of s.5H.

4. Considering the applicants’ 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 applicants being removed from Australia to Ukraine that there is a real risk they will suffer significant harm.

   CONCLUSION

5. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

   DECISION

6. The Tribunal affirms the decision not to grant the applicants protection visas.

   Saxon Rice
   Member

   
   

   ATTACHMENT 1 -  Extract from Migration Act 1958

   5 (1) Interpretation
   …
   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)that is not inconsistent with Article 7 of the Covenant; or

   (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)that is not inconsistent with Article 7 of the Covenant; or

   (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)for the purpose of intimidating or coercing the person or a third person; or

   (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   receiving country,  in relation to a non-citizen, means:

   (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   5J Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)   the real chance of persecution relates to all areas of a receiving country.

   Note: For membership of a particular social group, see sections 5K and 5L.

   (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note: For effective protection measures, see section 5LA.

   (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)   conceal an innate or immutable characteristic of the person; or

   (c)   without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)   the persecution must involve serious harm to the person; and

   (c)   the persecution must involve systematic and discriminatory conduct.

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)   a threat to the person’s life or liberty;

   (b)   significant physical harassment of the person;

   (c)   significant physical ill‑treatment of the person;

   (d)   significant economic hardship that threatens the person’s capacity to subsist;

   (e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

   5K  Membership of a particular social group consisting of family

   For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

   (a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

   (b)   disregard any fear of persecution, or any persecution, that:

   (i)the first person has ever experienced; or

   (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

   Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

   5L  Membership of a particular social group other than family

   For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

   (a)   a characteristic is shared by each member of the group; and

   (b)   the person shares, or is perceived as sharing, the characteristic; and

   (c)   any of the following apply:

   (i)the characteristic is an innate or immutable characteristic;

   (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

   (iii)the characteristic distinguishes the group from society; and

   (d)   the characteristic is not a fear of persecution.

   5LA  Effective protection measures

   (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)   protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

   (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)   the person can access the protection; and

   (b)   the protection is durable; and

   (c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

   ..

   36Protection visas – criteria provided for by this Act

   …

   (2A)A non‑citizen will suffer significant harm if:

   (a)   the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)   the death penalty will be carried out on the non‑citizen; or

   (c)   the non‑citizen will be subjected to torture; or

   (d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)   the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

   …

   Attachment 2 – Country information

   Batkivshchyna “Fatherland” Party

   Country information searches found no recent information about the treatment of members of the opposition Batkivshchyna Party in Ukraine, including those who have attended party rallies.[2] Recent major human rights reports for Ukraine do not discuss the treatment of supporters of the Batkivshchyna party, or the treatment of opposition supporters more generally.[3] No recent reports of violence against such individuals were found.[4] One dated report from 2015 was located of a bombing of a Batkivshchyna party office; however, it is unclear who was responsible for this incident.[5]

   [2] Sources consulted include UNHCR Refworld, The European Country of Origin Information Network (ECOI), DIBP resources including CISNET, US Department of State, NGO and human rights organisations, local news sources and major international newspapers.

   [3] For example, see: ‘Country Report on Human Rights Practices 2016 – Ukraine’, US Department of State, 3 March 2017, ‘Amnesty International Report 2016/17’, Amnesty International; ‘Nations in Transit 2016 – Ukraine’, Freedom House, 12 April 2016; ‘Freedom in the World 2017 – Ukraine’, Freedom House, 15 April 2017.

   [4] Sources consulted include UNHCR Refworld, The European Country of Origin Information Network (ECOI), DIBP resources including CISNET, US Department of State, NGO and human rights organisations, local news sources and major international newspapers.

   [5] ‘Tymoshenko Calls Party Office Bombing 'Terrorist Attack', Radio Free Europe, 4 July 2015. Also see: ‘Politics behind explosion at Batkivshchyna’s Sumy office’, Yulia Tymoshenko, 4 July 2015; ‘Batkivshchyna Office Bombed In Sumy’, The Interpreter, 2015.

   2015 bombing of a Batkivshchyna party office
   One report was located of an explosion at the Batkivshchyna party’s office in the northern city of Sumy in July 2015. The explosion damaged the building; however, there were no injuries.[6] The party’s leader, Yulia Tymoshenko, stated there were ‘political reasons’ behind the incident, describing it as a ‘terrorist attack’.[7] Tymoshenko reported that party officials at the Sumny branch had received threatening phone calls after they uncovered a ‘corruption agenda under the housing and utilities tariffs.’[8] COISS found no information about whether law enforcement officials determined who was responsible for the incident.[9]

   [6] ‘Tymoshenko Calls Party Office Bombing 'Terrorist Attack', Radio Free Europe, 4 July 2015.

   [7] ‘Tymoshenko Calls Party Office Bombing 'Terrorist Attack', Radio Free Europe, 4 July 2015.

   [8] ‘Tymoshenko Calls Party Office Bombing 'Terrorist Attack', Radio Free Europe, 4 July 2015. Also see: ‘Politics behind explosion at Batkivshchyna’s Sumy office’, Yulia Tymoshenko, 4 July 2015; ‘Batkivshchyna Office Bombed In Sumy’, The Interpreter, 2015.

   [9] Sources consulted include UNHCR Refworld, The European Country of Origin Information Network (ECOI), DIBP resources including CISNET, US Department of State, NGO and human rights organisations, local news sources and major international newspapers. A basic search for Ukrainian-language information was also undertaken using Google Translate.

   Background information and current status of the Batkivshchyna party
   The Batkivshchyna party was founded in March 1999. The party was described by the Political Parties of the World and The Europa World Year Book publications in 2002 as a ‘moderate conservative’ party which believed in ‘a strong state’ and the ‘nationalization of major industries and land’.[10] A January 2014 Christian Science Monitor report stated that the party’s political platforms at that time included ‘signing the EU Association Agreement in preparation for ultimate future EU membership and the severing of close trade bonds with Russia (in the longer term).’[11] Reports further describe the Batkivshchyna party as ‘largely affiliated with western Ukraine’;[12] as having ‘a populist, pro-Europe bent’[13] and as a party that ‘advocates for European values’ and ‘one of many parties that oppose Russia’s influence after a bloody history of control by the former Soviet Union.’[14] It was also described as ‘one of the more active parties’ during the Euromaidan protests in Kyiv.[15] According to Open Democracy, the Batkivshchyna party was one of the only opposition political parties to continue operation following the Euromaidan revolution and former president Yanukovych’s removal.

   [10] ‘UKR41625.E – Ukraine: Treatment of Batkivshchyna (Fatherland; Motherland) Party members and its leader Yuliya (Yulia) Tymshenko (Tymoshenko) by police’, Immigration and Refugee Board of Canada, 10 June 2003.

   [11] ‘Just who is Ukraine’s opposition?’, Kordunsky, A, The Christian Science Monitor, 24 January 2014.

   [12] ‘Report on the Human Rights Situation in Ukraine’, Office of the United Nations High Commissioner for Human Rights, 15 April 2014, 15 April 2014, p.15.

   [13] ‘No, Ukraine is not being run by fascists’, Weber, P, The Week, 7 March 2014.

   [14] ‘Ukraine’s polarizing political parties’, Zahriyeh, E, ‘Aljazeera, 26 February 2014.

   [15] ‘Ukraine’s polarizing political parties’, Zahriyeh, E, ‘Aljazeera, 26 February 2014.

   Yanukovych’s fall from power was such a shock that most of the old parties were unable to run their candidates in the presidential and parliamentary elections. Only Yulia Tymoshenko’s Batkivshchyna Party was able to retain seats in the Rada after the 2014 elections. Other factions disappeared or reformed as new parties.[16]

   [16] ‘A new party for Ukraine’s euro-optimists?’, Open Democracy, 15 August 2016.

   The situation of the Batkivshchyna party has improved since the Euromaidan revolution of 2014. The party currently freely operates in Ukraine and has 19 members serving in parliament.[17] Until recently, the party was part of the ruling coalition led by President Petro Poroshenko. In February 2016, it pulled out of the ruling coalition along with the Self Reliance and Radical parties, after the government survived a no-confidence vote following calls for the removal of former Prime Minister Arseniy Yatseniuk from office.[18]

   [17] ‘Batkivshchyna Party leader Tymoshenko holds YouTube conference to speak out’, Kyiv Post, 6 January 2017.

   [18] ‘Ukraine’s governing coalition loses majority’, Stern, D, Politico, 18 February 2016; ‘Ukraine governing coalition collapses’, Samson, A, Financial Times, 19 February 2016.

   Following the Euromaidan revolution in 2014, the party moved from being in opposition to being a part of the Ukraine government; it won 19 out of 421 available seats in the Ukrainian Parliament at the 2014 parliamentary elections.[19] The Batkivshchyna party did well in the October 2015 elections to fill more than 10,000 mayoral positions and 155,970 local, district and regional council members, winning over 8,000 seats; the second highest number of any party.[20]

   [19] ‘General official results of Rada election’, Interfax Ukraine, 11 November 2014.

   [20] ‘Freedom in the World 2017 – Ukraine’, Freedom House, 15 April 2017.

   The Batkivshchyna party’s leader, Yulia Tymoshenko, was released from prison in February 2014. All charges against her were dropped and she was permitted to run as a candidate in the May 2014 presidential election, where she came second to the winner Petro Poroshenko.[21] Tymoshenko was a leading figure of the 2004 Orange Revolution[22] and served as prime minister in 2005 and again between 2007 and 2010. She was convicted and imprisoned in 2011 for abuse of power and misuse of state funds.[23] Her conviction was condemned by western governments as being politically motivated.[24] At the time of her imprisonment, Tymoshenko was described as ‘Ukraine’s most prominent opposition politician.’[25]

   [21] ‘Ukraine: Current Issues and U.S. Policy’, Woehrel, S, Congressional Research Service, 8 July 2014, pp.1-3; ‘Human Rights Report 2014 Ukraine’, US Department of State, 25 June 2015, p.30.

   [22] The Orange Revolution was a series of demonstrations in 2004 and 2005 in Ukraine following the run-off vote of the 2004 presidential election which reportedtly involved widespread corruption and electoral fraud. For more information, please see: ‘Ukraine's Orange Revolution’, Karatnycky, A, Foreign Affairs, March-April 2005.

   [23] ‘Human Rights Report 2014 Ukraine’, US Department of State, 25 June 2015, p.12; ‘Ukraine brings new criminal charges against Yulia Tymoshenko’, The Guardian, 12 November 2011; ‘Former Ukraine Premier Is Jailed for 7 Years’,  Barry, E, The New York Times, 11 October 2011.

   [24] ‘West condemns Ukraine over Yulia Tymoshenko jailing’, BBC, 11 October 2011.

   [25] ‘Former Ukraine Premier Is Jailed for 7 Years’,  Barry, E, The New York Times, 11 October 2011.

   Current situation in Ukraine and Kiev

   Freedom House stated in 2016 that Ukraine has survived the severe political crisis that Russia instigated after popular protests. Freedom House outlined that:[26]

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

   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.

   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.