1600725 (Refugee)

[2017] AATA 2355

1600725 (Refugee) [2017] AATA 2355 (24 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1600725

COUNTRY OF REFERENCE:                  Ukraine

MEMBER:Luke Hardy

DATE:24 October 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Statement made on 24 October 2017 at 12:17pm

CATCHWORDS
Refugee – Protection visa – Ukraine – Complimentary protection – Ethnicity – Russian – Social group – Homosexual

LEGISLATION
Migration Act 1958, ss 36(2)(a), (aa), (b), or (c), 48A, 65, 499
Migration Regulations 1994, Schedule 2

CASES
SZGIZ v MIAC (2013) 212 FCR 235

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant [is] a citizen of Ukraine. He arrived in Australia [in] March 2000 on a [temporary] [visa]. He “defected” from [his group], as he has put it, and applied for a protection visa [in] May 2000. That application was refused [in] March 2001 and the Refugee Review Tribunal affirmed the decision on 21 March 2003. [The applicant] successfully appealed the decision but a differently-constituted Refugee Review Tribunal affirmed the delegate’s decision on 22 July 2005. [The applicant] appealed that decision without success and then requested Ministerial intervention, which was not considered. He also made a s.48B request that was not referred. Further requests and appeals were also unsuccessful.

3. [In] October 2012, [the applicant] lodged a fresh protection visa application, but the application was deemed to be invalid due to s.48A of the Act imposing a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused.

4. [In] October 2012, [the applicant] became the subject of a partner visa application, but that application was refused when his partner/sponsor withdrew the application.

5. Relevant to this case, from 24 March 2012, the Migration Amendment (Complementary Protection) Act 2011 amended the Migration Act 1958 to introduce a new criterion to allow for the grant of a Protection visa in situations that engage complementary protection obligations (ref. s.36(2)(aa) of the Act). Since then, protection visa applicants have first been assessed to determine if they are refugees under the Refugees Convention and relevant Australian law. If they are not found to be refugees, their claims have then been considered under complementary protection criteria.

6. Also relevant to the current application, the Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa.

7. In light of SZGIZ, [the applicant]’s fresh protection visa application was deemed [in] August 2013 to be valid. However, the Minister’s delegate refused the [date] October 2012 application [in] December 2015.

8. The delegate purported to determine the [date] October 2012 application on refugee grounds as well as on complementary protection grounds. However, applying the reasoning in SZGIZ, the Tribunal finds that it does not have power to consider the Refugee Convention criterion in s.36(2)(a), and has proceeded on the basis that it can only consider [the applicant]’s claims under the complementary protection provisions in s.36(2)(aa) of the Act.

9. [The applicant] appeared before the Tribunal on 13 October 2017 to give evidence and present arguments. He was accompanied at the hearing by his adviser, a registered migration agent. The Tribunal also received oral evidence from [Mr A]. At [the applicant]’s request, the hearing proceeded without need of an interpreter.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Issues

10. The main issue in this case is whether [the applicant] is entitled to complementary protection.

11. For the following reasons, I have concluded that the matter should be remitted for reconsideration.

    Claims

12. Essentially [the applicant] claims he is a gay male who faces arbitrary assault or worse in Ukraine where, he claims, authorities and society are becoming less tolerant of gays and also more tolerant of right-wing(nationalist) anti-gay vigilantes. He claims he would have to repress his sexual orientation or order to avoid violent assault. He claims he has, in any event, never had any experience in how to negotiate living in Ukraine as a gay man since he has only ever lived and expressed his sexual orientation in [Australia] where there is far less active and violent discrimination. He claims that there is nowhere in Ukraine to relocate in order to avoid the risk of significant harm. He claims his Russian name and ethnicity is a factor that would draw additional negative attention to himself. He claims his sexual orientation and Russian ethnicity would make it difficult for his to obtain protection from authorities against significant societal harm, potentially including degrading, cruel or inhuman treatment or punishment, or even torture or arbitrary deprivation of his life. He claims that the harm he faces is not faced by the population of Ukraine generally.

13. As he explained to me at the 13 October 2017 hearing, [the applicant] was brought up in [a particular] environment in an already repressive society and never dared disclose his sexuality to others or, for much of his youth, even admit it to himself. He told me he suffered great pressure avoiding intimate contact with other males, particularly in circumstances that commonly involved casual social and physical intimacy with the sharing of showers, toilets, dormitories and changing rooms. He described his fear of being caught up in adolescent and post-adolescent horseplay in showers and in dormitories (where, he said, everyone commonly slept naked) lest he be seen to be aroused in the presence of team mates. At one stage in the hearing he described the trauma of occasional pranking and frottage perpetrated on him in the showers by his team mates, who commonly teased him for being ethnic Russian, telling me that this caused him profound psychological anguish and confusion. He said that, in the course of some of the teasing he received, his sexuality was questioned by his colleagues. He indicated that whereas heterosexual colleagues might be able to brush off such remarks directed at them, he feared he was being tested, making it harder for him to dismiss such treatment.

14. Over the seventeen years of his visa application history in Australia, [the applicant], with support from several witnesses, has repeatedly if not entirely consistently argued his male homosexual orientation. He did not mention his sexuality in his original protection visa application, lodged within weeks of arrival in Australia with his [colleagues] in preparations for [an event]; his claims at the time mainly related to bullying and harassment due to his Russian ethnicity and family name in post-Soviet Ukraine. He was not interviewed by the first delegate who decided his application in 2001. He first brought forward his sexual orientation claims in his 2001 review application. In evidence to the first and second Refugee Review Tribunal in 2003 and 2005, he stated that he had remained somewhat confused about his sexuality even after coming to Australia, having only ever had brief sexual relations with few women in Ukraine.

15. [The applicant] appeared to make what decision makers have found to be confused, exaggerated and misleading claims about his nominal religion and the discernibly [Ethnicity 1] characteristics of his given name; he argued that his [Ethnicity 1]-sounding given name attracted [bullying] back in Ukraine. He has stated in statutory declarations that although raised a Catholic, he is [Ethnicity 1] on his mother’s side; however, according to evidence in his protection visa application form, his mother’s name is [name], which is a Slavic, not [Ethnicity 1] name. None of his claims about past harassment in in Ukraine satisfy me that he was being singled out for having some [Ethnicity 1] heritage. In my view, his reliance on these claims has not helped his case, but looking at the evidence overall, I am prepared to accept that he tended to rely on them at a time when he lacked confidence in disclosing his claims relating to sexual identity, and then found them difficult to abandon entirely. I have more difficulty with his ongoing adherence to these claims. It is fair to note, though, that his claims about being bullied over his name “[name]” appeared to be taken seriously by a spokesperson for [an ethnic board]. On the other hand, the second-constituted Refugee Review Tribunal found evidence to the effect that “[name]” is a common and popular Ukrainian name. The spokesperson for the [ethnic board] did not appear to be fully aware of the Ukrainian nationalist characteristics of the name “[name]”.

16. [The applicant] told me that it took some time after he came to Australia for him to be able to come to terms with his sexual orientation, pursue sexual encounters and try to form relationships, none of which, he indicated, have lasted very long. He claimed from around the time of his first Refugee Review Tribunal application that he was curious about the culture of the [gay and lesbian community]. In evidence to me he claimed to have bought tickets to [a] Party (which is not to be confused with the annual free parade) over several years dating back to about 2007. He also provided evidence of tickets purchased in recent years in his name. Although the annual [Party] does not exclude heterosexual patrons, least of all when they attend with gay and lesbian friends, I accept that [the applicant] has been a frequent patron of the [Party] over the years have given this fact some weight in assessing his claim to homosexual orientation.

17. A fact that concerned the most recent delegate was a claim that appeared in [the applicant]’s 2003 tax return in which he referred to a female cohabitant as his spouse or partner. The last delegate gave this issue some weight in deciding that [the applicant] was not, as at 2015, being truthful about his sexual orientation. [The applicant] explained to the delegate that he never had any sexual relations with this woman. In any event, around this time, he had been arguably candid in telling the Refugee Review Tribunal that he had hitherto continued to be somewhat confused in the matter of accepting his sexuality. He gave me a plausible and credible explanation as to why he had done this. He also explained his past deception to the ATO in a statutory declaration dated August 2015. Having considered all of the evidence before me in its entirety, I find that his lapse of judgment in relation to the tax return does not weigh significantly against his overall credibility.

18. In fact, throughout the 13 October 2017 hearing, which was a short one due to being able to proceed without an interpreter and also due to the supporting material on file, [the applicant] presented as a truthful and candid witness. The testimony from [Mr A], though a little meandering, was also helpful. [Mr A] stated under Oath that he had known [the applicant] for about a decade (which is since the last time [the applicant] gave oral evidence about his sexual orientation), having met him at a mutual friend’s party, had taken him home the first night they met and proceeded soon after to have a short sexual relationship with him before it evolved into something more platonic.

19. Several witnesses attest or declare that they know [the applicant] to be a gay man. One witness statement, however, suggests that [the applicant] used to be a resident of (Russian-annexed) Crimea during the time he spent [in] Ukraine, and argues that in the event of return to Ukraine he would likely have to live in a place where he has no roots or “ethnic” support. The author of this statement does not appear to be an independent witness to this particular fact and it is difficult to imagine whence he obtained the information. I give this particular assertion very little weight as [the applicant] claims to have social and family “roots” [in] the western region of Ukraine, near Poland. Nevertheless, this testimony calls to mind the fact that there is a high concentration of ethnic Russians in East Ukraine, but also a high concentration of right-wing, pro-Russia (and likely anti-gay) vigilante groups at large in the community there, in a region that is highly unstable at present and is likely to remain so in the reasonably foreseeable future; independent reporting submitted by [the applicant]’s adviser provides much detail about this.

20. A fair reading of evidence relating to [the applicant]’s unsuccessful partner visa application, including his own statutory declaration [in] May 2014 suggests that the relationship at the centre of the application, at the time, may have been a genuine one that fell apart. The statutory declaration states that the two went on to be friends with [the applicant] continuing to share accommodation with the former sponsor and the latter’s new partner. It might have been more helpful in this matter had [the applicant]’s former partner/sponsor provided an independent statement of support in his capacity as someone who went on to be a friend of [the applicant]’s but I do not presume that five year after the purported break-up such a statement is easily sought. In any event it has not been alleged by the sponsor that the nominee was acting in bad faith.  

21. [The applicant] has provided me with credible evidence of being socially active in the [Australian] LGBTI community. He has evidently also been involved in various sporting and social communities in [Australia].

22. Country information submitted with the current application includes recent reporting from Amnesty International, Mother Jones, Aljazeera and, in particular, the Kyiv Post, which published a report on 2 June 2017[1] relating to the spread of Russian and pro-Russia anti-gay vigilantes in Ukraine.

    [1]

23. I have located reports about nationalist and mainstream, pro-revolution society in Ukraine marginalising and vilifying the LGBT community due to its perceived invisibility in the 2013 Euromaidan mass rallies that helped to overthrow the previous pro-Russian regime. The response of LGBT community groups to this was, reportedly unsuccessfully, to point out that the regime they opposed was still in power and liable to target them discriminatorily.[2]

    [2] “One year after Euromaidan: What's changed for gay rights?,” EU Observer, 13 March 2015,

24. I have also had regard to recent HRW reporting and the following independent evidence:

    ·     “Gay Pride March Attacked In Kyiv,” Radio Free Europe, 6 June 2015,

    ·     “The 'new Ukraine' is failing us, LGBT activists say,” The Guardian, 31 March 2016,

    ·     “LGBT fans warned of violence ahead of Eurovision in Ukraine,” Metro News, 13 May 2017,  

    ·     “Gay couple in Ukraine are assaulted for holding hands in public,” The Telegraph, 29 July 2015,

    ·     Murder after the Revolution,” CodaStory, 8 June 2016, “Since Ukraine’s 2014 revolution, the number of killings of gay men has exploded. How Ukraine responds will help determine the country’s political trajectory—as a part of Europe or spinning toward Russia.”

25. On the evidence before me, I am satisfied that although private, adult consensual sexual activity commonly associated with homosexuality is not outlawed in Ukraine, and although the 2017 Gay Pride march proceeded without serious incident, violent anti-gay vigilantism is on the rise in Ukraine, sponsored by pro-nationalist interests on one side and pro-Russian interests on the other, all with an arguable degree of tacit approval by under-responding state authorities and an increasingly liberated Ukrainian diocese of the Roman Catholic Church.

26. The annual Gay Pride March in Kyiv takes pace under heavy police guard, but a similarly appropriate level of state protection is evidently not available to gays, lesbians and transgender persons who are, consequently, forced to subvert their identities and behaviour in order to avoid degrading and violent treatment, even in what is arguably the less conservative and more cosmopolitan capital of the country.

27. Looking at the situation as it might affect [the applicant], I accept that he is a gay man. I give some weight to his evidence about navigating his way through Ukrainian society in the past by repressing his sexual identity altogether, and I also give weight to the fact that over the last decade and a half he has only lived as a gay man in the relatively far less repressive environment of Australia; in the event of removal to Ukraine I accept that in order (or at least the better) to avoid significant harm, he would have to repress his identity in ways that it would be unreasonable and probably unrealistic to expect him to do. I give some cumulative weight in this matter to the fact that for the last decade and a half, [the applicant] has come out and integrated in Australian society as an “out” gay male and has not for a very long time been familiar with how to live as a gay man, let alone one who is “out” in Ukraine.

28. I give some weight in this matter to [the applicant]’s potential visibility and notoriety in Ukraine arising from his return to Ukraine decades after having deserted [his colleagues]. I find that this is a characteristic about [the applicant] personally that sets him apart from the general population and enhances the risk of media and other scrutiny into his private life and discrimination throughout Ukraine in the event of his removal to that country. Thus I accept that [the applicant]’s potential notoriety through his past actions, encouraging potential intrusion by the public into his private life, substantially increases the risk of his facing significant harm for reasons of his sexual orientation, even if he tries to repress evidence of it. Furthermore, I give some small but cumulative weight in this [the applicant]’s Russian family name which along with his actions in 2000, may well characterise him as anti-Ukrainian in the eyes of Ukrainian nationalists.

29. I accept that [the applicant]’s Russian family name could also be a cumulative factor in setting him apart from society in general and inflicting degrading, cruel or inhuman treatment or punishment, or even torture or arbitrary deprivation of his life. I give only little weight to this factor on its own, but I give it some cumulative weight.

30. As shown, above, my findings in favour of [the applicant] do not rely alone on his being a gay man in Ukraine. I find that individual factors including his Russian name, potential notoriety as a former [deserter] and potential difficulty in adapting the sexual identity, orientation and behaviour that he has long been able to explore, follow and articulate in Australia, to the current socio-political environment in Ukraine, are additional and essential factors adding to the risk of significant harm in his case.

1. I find that [the applicant] is not caught by any of the factors in s.36(2B).

2. Having considered all of the evidence before me in its entirety, I am satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Ukraine, there is a real risk [the applicant] will suffer significant harm.

3. Furthermore, I am satisfied on the evidence before me that [the applicant] is not caught by ss.36(3).

4. Accordingly, I am satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

   DECISION

5. The Tribunal remits the matter for reconsideration with the direction that the applicant s.36(2)(aa) of the Migration Act.

   Luke Hardy
   Member

   
   

   ATTACHMENT: Relevant Law

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, 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.

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 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).

8. 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.

9. 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’).

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.