1600725 (Refugee)

This matter concerned an application for a protection visa by an individual claiming to be a gay male of Russian ethnicity from Ukraine. The applicant contended that he faced arbitrary assault and worse in Ukraine due to increasing societal intolerance towards gay individuals and a growing tolerance of anti-gay vigilantes. He also argued that his Russian ethnicity would attract further negative attention, and that neither his sexual orientation nor his ethnicity would afford him protection from Ukrainian authorities against significant harm, including degrading treatment, torture, or arbitrary deprivation of life. The applicant further claimed that there was no safe place for him to relocate within Ukraine and that he had no experience navigating life as a gay man in Ukraine, having only lived openly in Australia. The case was heard by Luke Hardy.

The primary legal issue before the court was whether the applicant was entitled to complementary protection under section 36(2)(aa) of the Migration Act 1958 (Cth). This required the court to determine if there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's removal from Australia, there was a real risk that he would suffer significant harm. The court also considered the applicant's claims regarding his well-founded fear of persecution for reasons of his sexual orientation and ethnicity, which are grounds for protection under the Refugee Convention, as well as the specific circumstances of his upbringing in a repressive environment and past experiences of psychological anguish and confusion stemming from teasing by teammates regarding his ethnicity and questioning of his sexuality.

The court found that the applicant was a person in respect of whom Australia had protection obligations under section 36(2)(aa) of the Migration Act. Consequently, the matter was remitted for reconsideration with the direction that the applicant met the criteria under section 36(2)(aa).