1602390 (Refugee)

1602390 (Refugee) [2018] AATA 5356 (31 October 2018)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1602390
COUNTRY OF REFERENCE:                  Ukraine
MEMBER:Brendan Darcy
DATE OF DECISION:  31 October 2018
DATE CORRIGENDUM
SIGNED:15 March 2019
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:
·In paragraph 2. For ‘applied for visa on 17 February 2016 read ‘applied for visas on 2 April 2014’.
·In paragraph 22.
oFor the word ‘Cherkasy read ‘Chernihiv’.
oFor ‘the second applicant was born on [date]’, read ‘the second applicant was born on [correct date].
oAt the end of the same paragraph a full stop is added.

·In paragraph 68, 84 and 115. For the word ‘Maiden’ in paragraph 68, ‘Euromaiden’ in paragraph 84 and ‘Midian’ in paragraph 115 read ‘Maidan/Euromaidan’.
·In paragraph 72. For the date ‘[incorrect date in]February 2015’ read [correct date] February 2014. Also, at the end of the paragraph a full stop is added.
·In paragraph 73. For the date ‘25 or 26 February 2018’ read 25 or 26 February 2014’.
·In paragraph 77. For ‘his efforts had been future’ read ‘his efforts had been futile’.
·In paragraph 88. For ‘its lack of progress, read Ukraine’s lack of progress’.
·In paragraph 89.
oFor ‘A January 2018 Open Democracy noted …’ read ‘An article in January 2018 Open Democracy noted……’.
oFor ‘ministry who is currently Arsen Avovk’ read ‘minister who is currently Arsen Avovk

·In paragraph 122. In the sentence beginning ‘The same article indicated that….’ the words ‘it had been’ has been deleted.
·In paragraph 136. In the sentence ‘the Tribunal finds that the chances of the first applicant …… and not a real chance’ for ‘first applicant’ read ‘fourth applicant’.

Brendan Darcy
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1602390
COUNTRY OF REFERENCE:                  Ukraine
MEMBER:Brendan Darcy
DATE:31 October 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the first named and second named applicants for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the second named applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

The Tribunal affirms the decision not to grant the third named and fourth named applicants protection visas.

Statement made on 31 October 2018 at 4:21pm
CATCHWORDS
REFUGEE – protection visa – Ukraine – political opinion – Party of Regions – opposition to the government – Ukrainian-Russian relations – religion – Russian Orthodox – attack by ultranationalist activists – anti-Semitic groups – Euromaidan protests – fear of killing – internal relocation – member of the family unit – ministerial intervention requested – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 36, 65, 91R, 91S, 351, 417, 499, 501J
Migration Regulations 1994 (Cth), rr 1.05A, 1.12, Schedule 2
CASES
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MIELGEA (1994) 52 FCR 437
SZATV v Minister for Immigration and Citizenship [2007] HCA 40
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Ukraine, applied for the visas on 17 February 2016 and the delegate refused to grant the visas on 17 February 2016.
The first named applicant, [named], will be referred to as the first applicant or applicant throughout this decision; the second named applicant, [named],as the second applicant; the third named applicant, [named], as the third applicant; and the fourth named applicant, [named], as the fourth applicant.
The applicants appeared before the Tribunal on 22 February 2018 and 12 April 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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.
Member of the same family unit
Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouses and biological children as dependents.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
All the applicants claimed to be born in Ukraine and to be citizens of Ukraine. Copies of their Ukrainian passports are the Department’s file ([number]).
The first applicant was born on [date] in [City 1] in the Ukrainian oblast (province) of Cherkasy; the second applicant was born on [date] in [City 1] in the same Ukrainian oblast. The first and second applicants claimed to be in a spousal relationship since 1994 and that the second applicant’s maiden name had been ‘[name]’
The third applicant was born on [date] in [City 1] in the Ukrainian oblast (province) of Cherkasy; while the fourth applicant was born on [date] in the same city.
Both the third and fourth applicants claimed to be the biological children of the first and second applicants; that they are not engaged, married or in a de facto relationship; and that they do not have any children of their own.
The applicants arrived in Australia [in] March 2014 while holding [temporary] visas. The visas were to expire [in] April 2016. They were sponsored by the second applicant’s [relative, named].
The applicants lodged applications for class XA subclass 866 protection visas on 2 April 2014. They have never been unlawful non-citizens in Australian and they have not departed Australia since arriving.
Applicants’ claims and other evidence
In the submitted 866 forms for protection, the submitted information indicates that the applicant are ethnically Ukrainian; that they speak Russian and Ukrainian; and that their religion is Orthodox Christian.
The information submitted also indicates that the first applicant undertook compulsory military service under the Soviet Union prior to Ukraine’s independence in 1992.
The first applicant submitted a four page statement (signed but not dated) outlining the reasons he and his family departed for Australian and cannot return to his country of nationality. Below is a summary of those claims:
·     The first applicant claimed they are persecuted in Ukraine because of the applicant's membership with the Party of Regions and also because of his religion since he belongs to the Russian Orthodox Church;
·     The first applicant, it was claimed, was a chief officer in the [named] section of a small [business] in Kiev that made [products];
·     The first applicant claimed that in November 2013 there had been political unrest in central Kiev and over time, the clashes between the police and protestors intensified.
·     While the first applicant concedes the leader of the Party of Regions President Yanukovych may not be the best political figure and he disagreed with some of his policies and methods of governing, he was not prepared to accept that his country's future lies in becoming more ultra-nationalistic;
·     The first applicant claimed that he was not prepared to tolerate the persecutions he was subjected to in recent months [prior to his departure from Ukraine for Australia]; and that he was concerned about the wellbeing of his family and his children's education.
·     The first applicant's problems began when he terminated the employment of three "trouble makers" who had been agitating workers at the [business] to participate in anti-government activities. The next few days, the first applicant saw them around the [business] wearing clothing resembling Nazi uniforms;
·     The first applicant claimed he was targeted with threatening phone calls and calling him derogatory names such as a "moskal" and "zhidovskaya morda"; that they threatened to kill the first applicant and his family by burning down his place; and that they also threatened the Chief Executive Officer (CEO) of the [business] for employing the first applicant;
·     On one occasion, it was claimed, a considerable number of these men came and smashed the windows whilst shouting "the next of kikes and moskaliv";
·     They reported this incident to the police but the police did nothing. Only one officer came to the [business] as all the police were concentrated in the centre of Kiev;
·     According to the first applicant’s research, there were three forces behind the riots and that they were the Right Sector, Svoboda and Udar;
·     The first applicant claimed he was also beaten not far from his home. The offenders told the first applicant point blank that they will persecute the applicant and his family until they vanish from Kiev and other patriots will complete the job by kicking them out of Ukraine;
·     The first applicant's wife was abused and spat at when she went to church;
·     Ukraine has offered persecution to the applicant because the applicants belong to a particular political wing and a different religion. The applicant and his family are therefore unwilling to go back to Kiev or Ukraine in general; and
·     The applicant claimed that no one knows what will happen in Ukraine in the future except that a disaster is guaranteed and that he and his family can be able bodied and hardworking assets for Australia.
The Department interviewed the first applicant on 29 July 2015 with the assistance of an interpreter in the Russian and English languages.
On 30 July 2015, the applicants submitted additional material to support their claims for protection.[1] On 3 August 2015, additional documents were also submitted.[2]
[1] [File number] Folios 98-107.
[2] [File number] Folios 109-114.
A delegate on behalf of the Minister refused to grant the applicants protection visas on 17 February 2016. The applicants then applied to have the delegate’s refusal decision reviewed by the Tribunal on 26 February 2016.
On 9 December 2015, the applicants submitted additional material for a request for more material, including a translation of a marriage or matrimony certificate, a church certificate (pertaining to the Ukrainian Orthodox Church, Moscow Patriarchate in Kiev), and a translation of the first applicant’s leave certificate from his former employer.[3]
Evidence before the Tribunal.
[3] [File number] Folios 118-125.
On 26 February 2016 the applicants applied to have the delegate’s refusal decision not to grant protection visas to be reviewed by the Tribunal.
On 6 February 2018, the applicant’s new representative submitted a legal submission and a statutory declaration signed by the first applicant providing more details about his claims. The statutory declaration was dated 12 September 2017.
The first applicant appeared before the Tribunal on 22 February 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages. A resumed hearing was required as the other applicants were not present.
During this interim period, the applicants’ representative submitted a further legal submission and four statutory declarations outlining the individual claims for protection for each review applicant. [4]
[4] [File number] Folios 152-159.
Also submitted was a certified copy of residency document indicating the applicant resided and owned an apartment in Kiev (Kyiv), with an accompanying certified translation; [5] a number of certificates of academic achievement pertaining to the third and fourth applicants; and news reports and articles about the political situation in Ukraine.
[5] [File number] Folios 160-162.

The Tribunal was also provided with a medical assessment about the second applicant’s psychological impairment from a relevant professional and further news articles on 11 April 2018.
The applicants appeared before the Tribunal at a resumed hearing on 12 April 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.
The applicants were represented in relation to the review by their registered migration agent. The representative attended both Tribunal hearings.
On 20 April 2018, the applicants’ representative provided a further news article indicating that that the relationship between the Ukrainian government and the Muscovite patriarchy in Ukraine was becoming more strained as the government moved to keep out the Kremlin’s influence in that church’s operations in Ukraine. The move was opposed by the Opposition bloc.
ASSESSEMENT OF CLAIMS AND FINDINGS
Country of Reference
All four applicants provided copies of their Ukrainian issued passport which in on the Departmental file ([number]).[6] Those passports indicate the applicants are citizens of the Ukraine
[6] [File number] Folios 22-58.
Based on these documents and without evidence to the contrary, the Tribunal finds that all four applicants are citizens of Ukraine, that the Ukraine is each of the applicants’ country of nationality for the purposes of the Refugees Convention, and that Ukraine is their receiving country for the purposes of complementary protection.
Third Country Protection
During the scheduled hearings, the Tribunal discussed with the applicants whether they were able to enter and reside, temporarily or permanently, in a third country for the purposes of s.36(3).
Since June 2017, an agreement to provide visa free travel for Ukrainian citizens with biometric passports was put in place. Ukrainian citizens traveling to the European for up to 90 days in any 180 day period, for tourism, to visit relatives or friends, or for business purposes, but not to work. The exemption applies to all EU countries, except Ireland and the UK, plus Iceland, Liechtenstein, Norway and Switzerland.[7] During the first hearing, the applicants expressed a level of dismay that they might be required to travel from one European Union country to another without ever residing. They also mentioned they do not have any current sponsored work visas for Ukraine, while the representative claimed the right to enter and reside usually conferred employment privileges which this visa-free travel does not permit.
[7] Visa-free travel for Ukrainians comes into force, official European Union website, >
While the Tribunal accepts the applicants have the right to enter such states in Europe, assuming the temporary right of entry to such states could not be said to amount to a right to enter and to reside, for the purposes of s.36(3).
The Tribunal therefore finds that the applicants are not excluded from Australia’s protection obligations under s.36(3).
Membership of the same family unit (MSFU)
Second Applicant
At the time of application, the first applicant claimed his legal wife under Ukrainian law is the second applicant. The applicants submitted a certified copy of a matrimony certificate issued in Ukraine with an accompanying certified translation.[8] The translation indicates the first and second applicants were married in 1994 in [named town], Ukraine. The first applicant also claims that he has two children who are now adults with the second applicant. Based on the information before the Tribunal and with no evidence to the contrary, the Tribunal is satisfied the first and second applicants are in a genuine spousal relationship and that the second applicant satisfied clause 1.12(4)(a) of the Migration Regulations, that she has membership of the same family unit as the first applicant for the purposes of this application for review.
Third and Fourth Applicants
[8] [File number] Folio 118-119.
The submitted passports indicate that the third applicant was born in [specified year] and that the fourth applicant was born [in specified year]. Given the visa application was lodged in April 2014, this indicates that the third applicants was aged [age] and therefore an adult at the time of application with the Department, while the fourth applicant was aged [age] and therefore a minor at the time of the application.
Under clause 1.12(4)(d) of the Migration Regulations, a person can be considered a member of the principal applicant's family unit if the person is a relative who does not have a spouse or de facto partner, is usually resident in the family head's household and is dependent on the family head. Clause 1.05A(2) defines a dependent, for the purposes of a protection visa application, as a person who is wholly or substantially reliant on the other person for financial, psychological or physical support.
At the time of making this decision, both the third and fourth applicants were adults, claiming to be the biological dependent children of the first and second applicants.
However, neither claimed to have any disabilities nor claimed they were in spousal relationships, at the scheduled hearing. The third applicant said that he was studying full time in [a different state] in a [specified] degree for nearly two years; that his English was proficient and that he would like to complete a Master’s degree. The fourth applicant claimed that she resided with her parents in suburban Melbourne and that after completing second college in Australia she went to study [a course] which she will complete in 2019.
At the time of application the fourth and second applicant was not a minor. It is claimed the first applicant is the head of his household and that first applicant is the biological father of the third applicant and that the second applicant is the biological mother of the third applicant.
While neither the first and second applicants claimed the other applicant had disabilities, they claimed to be an emotionally close knit family and that the third and second applicants were wholly materially dependent on them to achieve their academic accomplishments and feared they would not find work due to their English language skills.
While the Tribunal is satisfied that the first and second applicants are biologically related to the third applicant; shared the same household in the past in Ukraine and occasionally in Australia and was not in a spousal relationship, since his arrival Australia, it is not necessary to consider that the third applicant was a dependent adult of the first applicant at the time of application. The third applicant is an adult and he does not have any financial, physical or psychological conditions which would cause or contribute to his total or substantial reliance on his parents or prevent him from working to support himself. While the third applicant is emotionally close to his parents and materially supported by them, there is no evidence that he is wholly or substantially reliant on his parents for financial, psychological or physical support at the time of this decision. Based on these accepted circumstances at the time of this decision is made, it finds that the third applicant does not satisfy the regulatory requirements in relation to dependency.
While the Tribunal is satisfied that the first and second applicants are biologically related to the fourth applicant; shared the same household in the past in Ukraine and Australia and was not in a spousal relationship, since her arrival Australia, it is not necessary to consider that the fourth applicant was a dependent minor of the first applicant at the time of application. The fourth applicant is an adult and she does not have any financial, physical or psychological conditions which would cause or contribute to her total or substantial reliance on her parents or prevent her from working to support herself. While the fourth applicant is emotionally close to her parents and was materially supported by them, there is no evidence that she is wholly or substantially reliant on them for financial psychological or physical support at the time of this decision. Based on these accepted circumstances at the time of this decision is made, it finds that the fourth applicant does not satisfy the regulatory requirements in relation to dependency.
For reasons above, the Tribunal finds that third and fourth applicants are not a member of the same family unit as first applicant as they do not satisfy clause 1.12(4)(d) of the Migration Regulations.
The applicants’ accepted personal circumstances
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
Overall, the Tribunal found the applicants to be reliable and credible witnesses whose written and oral claims did not have any significant inconsistencies and whose documentary evidence supported the claims.
Firstly, the Tribunal accepts that the applicants were born in Chernihiv oblast, as claimed, and moved to Kiev in 1999 from the oblast of Chernihiv, as claimed at the scheduled hearing. It is accepted that they resided in an apartment which the first applicant owned, as claimed and documented by the applicants.
It is claimed by each of the applicants that they are ethnically Ukrainian but as they belong to the Russian Orthodox Church-Moscow Patriarchy (UOC-MP). Documentary and oral evidence was provided for this, including the applicants’ ongoing participation in the same Christian faith tradition since their arrival in Australia in March 2014.
It is also accepted that each of the applicants speak, read and write both Russian and Ukrainian and that that they are ethnically Ukrainian who speak Russian.
The first applicant claimed to have undertaken military service in the Soviet Union prior to Ukrainian independence in 1991; and that he held the role as [section] manager in a [product] manufacturing company in Kiev. This is also accepted to be credible.
It is also accepted the applicant departed for Australia on a [temporary] visa in March 2014 and that they forwent a surety attached to that [visa] when they applied for protection visas in April 2014. The Tribunal acknowledges that during this time in Ukraine there was a great deal of political turmoil and violence.
First applicant: Claims and Finding
Past incidents of Harm
It is central to the first applicant’s claims that he had experienced incidents of harm arising from his actual political opinions in favour of the Party of Regions (now defunct), the Viktor Yanukovych led-government (2010 – 2014) and in favour of better Ukrainian-Russian relations.
The first applicant claimed that the first serious incident occurred when he, as a [section] manager of [business], dismissed three ‘trouble makers for distract the other works by agitating them to attend Maiden protests in the centre of Kiev. The first applicant explained that his role included overseeing disciplinary measures and reporting poor productivity and unwanted behaviour in the workplace. While the first applicant was confident the decision was lawful, the three trouble makers were seen outside the [business] wearing black paramilitary uniforms and that they targeted him personally as he was known to be ‘pro-Moscow’ and supportive of Yanukovych government. He claimed that began receiving phone calls insulting the first applicant as being pro-Russian and Jewish, as well as making threats to kill both him and his other family members. The first applicant also claimed the Chief Executive Officer also received such phone calls. This would be followed up with acts of vandalism at the [business]. In the first applicant’s 12 September 2017 statutory declaration, he claimed that the [business] was picketed by up to [number] male protesters yelling anti-Russian/anti-Semitic insults. When the police were called in, the police did not investigate further into the matter due to the Maiden protests.
Based on the Tribunal’s over all finding in favour of the applicants’ credibility, the Tribunal accepts these initial incidents of harassment and threatening phone calls occurred, as claimed.
The first applicant further claimed the second incident of harm occurred nearby his residency. In his September 2017 statutory declaration, the first applicant claimed that he was assaulted on [a date in] January 2014 when he was coming home from work at about 7.00PM in the evening. He claimed he was knocked to the ground and had his face pressed to the concrete pavement; insulted; and then warned that he and his family should leave the country. He did not report the incident to the authorities because he knew the police were preoccupied with the Maidan protests. The Tribunal accepts this to be the case.
The first applicant claimed there was a second assault on him [in] February 2014, again near his residency. He claimed he was stuck with a fist to the back of his head and then beaten and kicked by as many as three men wearing masks making the same insults and warning as in the first incident. The first applicant claimed that on this occasion he contacted the police by phone but they were unable to investigate the matter due to the demonstrations.
There was another claimed incident of intimidation which involved the second applicant. Both the first applicant (in his written and oral claims) and second applicant at the scheduled hearing claimed that [in] February 2015, the second applicant was confronted by a large group of masked demonstrators outside the main UO-MP Cathedral of Kiev when his wife was spat upon. The demonstrators were calling for members of the congregation to ‘go home to Russia’ and ‘go home to the Moscow Patriarchate’. Based on the consistency of detail in the written and oral claims, the Tribunal accepts this incident occurred
The applicants also claimed that the fourth applicant encounter an incident of intimidation while at her college on 25 or 26 February 2018. It was claimed that a number of masked men stopped the fourth applicant to ask about her name and her classes. The fourth applicant claimed at the scheduled hearing that she did not respond; that she ran to hide inside the college; and that she called her father who hired a taxi to retrieve her from the college. Based on the consistency of detail in the written and oral claims, the Tribunal accepts this incident occurred.
The first applicant claimed that throughout this whole period he was continuing to receive threatening phone calls, but it was the incident involving his daughter that convinced him to leave Ukraine for Australia permanently. The Tribunal accepts that the first applicant and the other applicants departed Ukraine in March 2014 arising from further harm.
Real chance of serious harm if returned to the first applicant’s home area
In this decision, it is accepted the primary critical reason advanced by the first applicant that he holds well-founded fear of persecution is based on his actual political opinion which is critical of the current national leadership of Ukraine in favour of a more concessional approach towards Russia and Russian-Ukrainians and one that is less nationalistic.
The following extract from the first applicant’s 11 March 2014 statement of claims reflects those genuine political views:
The first applicant wrote in his original statement of claims: As a Ukrainian citizen and my country patriot I do not consider that neo Nazi in my county have right to dictate me and many other Ukrainian citizen of many nationalities which way our country should head. (sic)
[…]
I may accept the fact that the leader of the Party of Regions the outset President Yanukovych is not the best political figure for my country and also have some disagreement with some of this polices and methods of governing, but I am not prepared to accept the fact that my country future deepens on ultra nationalistic mood and am not prepared to tolerate persecutions that I was subjected to in the period of the recent few months. (sic)
The first applicant also claimed that he had been an enthusiastic member of the Party of Regions and that he had been issued with a membership card but did not claim to have been an office bearer within the party. The first applicant claimed he did not have the membership card as he was afraid it was risky to travel with it in case the authorities searched him at checkpoints. At the first hearing, the first applicant undertook to provide some evidence of his membership; however he claimed in a statutory declaration dated 6 April 2018 that his efforts had been future as it was hidden in his Kiev apartment. He also attempted to obtain a letter of confirmation from one of the Party’s official to support this claim; however he claimed that, although he tried, many had departed the country or were scared to assist him. Ordinarily the Tribunal would find these explanations to be weak and prevaricating; however, the Tribunal was able to find country information that in the wake of the Maidan protests the central offices of the Party of Regions in Kiev had been ransacked. Given these circumstances, the Tribunal accepts the first applicant has not been in a position to substantiate this specific claim. With no evidence to the contrary and based on the Tribunal’s finding that the first applicant is a reliable and credible witness, the Tribunal accepts that he was a member of the now defunct Party of the Regions and that his support for the Party was widely acknowledged among those who had targeting the applicant for harm in the past, as claimed.
It follows from this that the Tribunal is also accepted the first applicant holds a genuine and deeply subjectively held fear of persecution based on his political opinions, if he were to return to his home area in metropolitan Kiev where he owns property and had lived in recent years with his family since 1999.
This issue before the Tribunal is whether there is an objective basis for the first applicant to hold his fear of persecution for a Convention reason, namely his political opinion, if he were to return to Kiev in the reasonably foreseeable future.
When cumulatively considering the following assessment of the available country information in combination with the first applicant’s profile as a supporter of the Party of Regions in the past and the current beleaguered Opposition, the Tribunal is satisfied there is sufficient reasons for it to find the applicant has both a subjective and objective well-founded fear of persecution for a Convention reasons, if he were to return to his home area.
Since the 2014 turmoil, Ukraine is more integrated into the European Union’s economic orbit and the economy has continued to steadily grow. According to the Carnegie Endowment, the government has drawn up an ambitious plan: joining the EU’s Schengen Area, Customs Union, Energy Union, and the Digital Single Market. According to Ukrainian President Petro Poroshenko, Ukraine can be integrated into the EU by policy area and then “the issue of membership would be a formality and matter of time.” [9] The article called this ambitious agenda ‘Europeanisation’ and it recognised that there are low levels of capacity to reach these goals measured by the government reaching on ten of the 89 legal provisions of the Association Agreement between the EU and Ukraine. It further mentioned that according to a December 2017 poll, 50 percent were in favour of EU integration, only a slight drop from the 59 percent high in 2014 and much higher compared to a mere 16 percent of Ukrainians in favour of integrating with the Russia-led Eurasian Economic Union.
[9] The EU and Ukraine: Taking a Breath, by Balazs Jarabik et al, Carnegie Endowment of International Peace, type="1">
The Tribunal assesses from this information that Europeanisation of Ukraine has widespread support and that pro-Russian opinions have become more marginalised, partially because of intimidation from the actions from both the authorities and non-state actors which can be reasonably described as extremist or nationalistic, including C14, Right Sector, and Svobada.
There have also been other developments including the Russian annexation of Ukrainian Crimea in March 2014; and the eruption of a civil war in eastern oblasts between pro-Russian secessionists and the Ukrainian government. According to the United Nations Human Rights Monitoring Mission in Ukraine (UNHRMMU), mortar, rocket, and artillery attacks between April 2014 and May 2016 killed over 9,000 people and injured more than 21,000—including civilians and combatants on all sides—in Donetsk and Luhansk regions.
This has heightened both anti-Russian sentiments throughout western Ukrainian, including its capital. This anti-Russian feeling has been expressed by the destruction of statues of Russian leaders like Lenin and Field Marshal Mikhail Kutuzov by both Euromaiden protestors and Right Sector activists.
According to Human Rights Watch in 2017, febrile nationalist sentiment has also interfered with journalism. Nationalist groups attacked journalists for their work in eastern Ukraine. In May 2016, the website Myrotvorets published the names and personal data of hundreds of journalists and others who had been accredited by the DNR press center, accusing them of “cooperat[ing] with terrorists.” Authorities launched an investigation, but top government officials applauded the publication. Several reporters received threats after the data dump.[10]
[10] Ukraine: Events of 2015, Human Rights Watch, >
Noting that Ukraine had a democratically election but more Russian friendly government prior to 2014, the Tribunal has considered whether the first applicant might be able to garner the internal protection of the authorities, if he were to return to Kiev. However the Tribunal has again considered the Carnegie Endowment article mentioned above in assessing the foreseeable political future of Ukraine:
The 2019 elections mark a paradoxical point in Ukraine’s political development. On the one hand, they will test Ukraine’s reform credentials, but on the other hand, there are currently no realistic alternatives to the candidates and parties that have dominated Ukrainian politics since even the pre-Euromaidan era. Despite their overall low popularity ratings, which are in the low double digits, Poroshenko and former prime minister Yulia Tymoshenko and their respective blocs or parties remain the key contenders in both elections.
The country information above strongly indicates to the Tribunal that the levels of internal protection accessible to the first applicant if he were to return to Kiev will be elusive given his political opinion and his former political membership.
Additonally troubling to the Tribunal has been its lack of progress in tackling corruption, especially among reform among law enforcement.
A January 2018 Open Democracy noted that after the Maidan protests, the Ukrainian revealed that change was unavoidable: the Ukrainian public was no longer prepared to put up with humiliation from the authorities, and wanted to live in a country governed by the rule of law. The reform of the police officially began in November 2015, when a new “National Police Service” law came into force. President Petro Poroshenko called in a team of Georgian reformers: Eka Zguladze, who put the police out on patrol, and Khatia Dekanoidze, who later headed the new national police service. The start of Ukraine’s police reform was highly promising; however the reforms ran into institutional inertia. When 5000 allegedly corrupt or negligent police officers were fired, the courts reinstated them. Furthermore, rather than reducing ministerial interference by increasing the independence of law enforcement, the reforms concentrated the power into the Interior Ministry who is currently Arsen Avovk, the founder of People’s Front which holds 82 seats in the current parliament. The article continues:
The lack of any real reform also serves the personal interests of Interior Minister Arsen Avakov. According to the law, the head of the National Police appoints his own deputies, and has these decisions approved by the Interior Minister, which gives the latter an opportunity to push through his own candidates. This is what happened with Khatia Dekanoidze, who did not agree to the appointment of Vadym Troyan (a former commander in Azov battalion and member of the Patriot of Ukraine neo-Nazi group) as her deputy on Avakov’s request. Avakov is also responsible for appointing regional police chiefs across Ukraine, and puts forward the police budget, which has impacted the reform of beat officers, leaving the old system in place.
It is accepted that first applicant had been targeted with threats of political violence and physical ill-treatment in the past and that he had been a person of interest to violent nationalistic non-state actors in the past. Should the first applicant return to Ukraine, the Tribunal accepts the chance of such significant physical ill-treatment will be more than a remote chance given the first applicant is known to Right Sector and/or other similar political movements or parties and because the government has failed to take adequate measures to punish or curb such actors from committing abuses, resulting in a climate of impunity. In this regard, the Tribunal notes the translated examples of media reports provided by the applicants’ representative about chauvinistic and politically motivated street violence to intimidate journalists, activists and political groups. Indeed, one of these examples include the some members of the Ukrainian Orthodox Church- Moscow Patriarchy (URC-MP) being accused of anti-government activities as representatives of the Moscow patriarchy.
The Tribunal also notes that Right Sector’s best performance was in Western Ukraine, Kyiv city and Oblast, and in the Dnipropetrovsk Oblast, in the 39th constituency, in which party’s leader Dmytro Yarosh was elected to parliament.[11] This indicates that the home area of the first applicant has an ongoing problem with such violent political movements that is more heightened than other areas of Ukraine.
[11] The new political landscape of Ukrain, Euromaidean Press, 24 April 2015, >
While the Tribunal assesses that the first applicant does not have a real chance in encountering such nationalist actors who are in authority carrying out physical ill-treatment or harassment towards the first applicant, it is not satisfied the first applicant has sufficient internal protection measures, if he were to return to Kiev. This is on the basis members of police and others in authority will invariably hold political views hostile towards the applicant’s own views or to yield to jingoistic political interference or even corruption.
Given this assessment of inadequate internal protection, the Tribunal is therefore satisfied the applicant remains an ongoing person of interest among violent nationalists in Kiev, leading to a chance of serious harm that is more than remote or far-fetched chance.
In conclusion, the Tribunal is satisfied that the persecution feared by the first applicant comes within the Convention reasons of political opinion, by virtue of opposition to the current ruling party of Ukraine, his former membership of the Party of Regions, and one that is heighted by his religious association with the URC-MP. The Tribunal accordingly finds that the first applicant’s actual political opinion is the essential or significant reasons for the persecution which he fears, as required by paragraph 91R(1)(a) of the Act, if he were to return to his home area of Kiev.
The Tribunal is accordingly satisfied that the first applicant has a well-founded fear of persecution for a Convention reason, if he were to be returned to his home area of metropolitan Kiev.
Relocation considerations
The Tribunal has considered whether relocation to another part of Ukraine outside of the capital city of Kiev, the first applicants’ home area, is reasonable.
Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. The principles discussed by the court in Randhawa v MIELGEA (1994) 52 FCR 437, per Black CJ at 440-1, require the Tribunal to determine whether he or she can, reasonably in all the circumstances, live safely and free from a risk of such harm by resettling and living in another part of his country.
What is 'reasonable', in the sense of ‘practicable’, will depend upon the particular circumstances of each applicant and the impact upon him or her of relocation within his or her country of nationality. However it should be noted that the Refugees Convention is concerned with persecution in the defined sense, not with living conditions in a broader sense. Whether relocation is reasonable, in the sense of practicable, is therefore not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights: see SZATV v Minister for Immigration and Citizenship [2007] HCA 40 at [23]-[25] per Gummow, Hayne and Crennan JJ (with whom Callinan J agreed).
During the hearing, it was discussed that the eastern oblasts of Donetsk and Luhansk (collectively also known as Donbass) would be unsuitable given the armed conflict between the Ukrainian government and pro-Russian fighters seeking annexation into the Russian Federation. Given the widespread chaos and killing in Donbass, the Tribunal finds that the civil war conditions in that region renders relocation of the first applicant to Crimea to be unreasonable, in the sense of being impracticable.

100. More complicatedly, it was raised by the Tribunal with the first applicants that relocation to the Crimea peninsula may be reasonable since Crimea was forcibly annexed by the Russian state in 2014 from Ukraine. Crimea remains officially under international law to be part of Ukraine. Given the first applicant’s pro-Russian views and the likelihood the illegitimate authorities there would not seek to harm the first applicant based on his political opinion, the Tribunal said it was open to it to consider whether relocation was reasonable. Both the first applicant and his representative argued it was not although their objections were not clearly articulated.
101. Nevertheless, the Tribunal assesses the severe economic problems and the geo-political tensions over Crimea, including recent tensions over the Azov Sea and access to water from the North Crimea Canal controlled by Ukraine and the adverse impact of international sanctions, renders relocation of the first applicant to Crimea to be unreasonable, in the sense of being impracticable.
102. The Tribunal has also considered whether the first applicant would be able to relocate to an oblast such has his home oblast of Chernihiv or any other oblast outside of Kiev, Crimea, Dontesk or Luhansk.
103. As Anne Applebaum noted in a 26 September 2018 article in the Miami Herald, [12]
[12] Putin’s invasion has backfired as the people of Ukraine push back against anything Russian, Anne Apple Baum, Miami Herald, 24 September 2014, the never-ending conflict [in western Ukraine] is altering attitudes here, leading to what a perceptive Atlantic Council report has called “the geopolitical divorce of the century”: the separation of two countries that have been part of the same empire for centuries. Trade between Ukraine and Russia, whose economies have been intertwined since the Middle Ages, has plunged, replaced in Ukraine by trade with Europe and the rest of the world. India, not Russia, is now the largest buyer of Ukrainian food. Ancient religious links between the two countries are dying, too: The Ukrainian Orthodox Church has now formally split from Moscow. Even personal ties are fading: With travel now limited by bans on direct flights between the two countries, Ukrainians are less likely to live and work in Russia, and more likely to go to Poland instead.
Russian cultural influence, once all-powerful, is also disappearing, partly thanks to official decisions. Ukrainian radio stations — like those in Canada or France — are required to play a certain percentage of Ukrainian-origin songs, and many Russian state television stations are banned on the grounds that they carry war propaganda. Some want to go further: Foolishly, the regional legislature in Lviv recently declared it wanted to ban all Russian books and music, a measure that no one in this profoundly bilingual country will be able to enforce. Russian books were readily available at shops, at street stalls and at the city’s recent annual Book Forum. I asked my own Ukrainian-language publisher what she thought of the ban. She texted back a single word: “Crazy.”
These petty, discriminatory measures are an expression of frustration with a war that doesn’t end. They are also pointless, because a more profound, tectonic shift is already under way. Thanks to the war, and to their anger at its perpetrators, Ukrainians themselves are choosing to speak Ukrainian — more say they do every year. Thanks to the war, the different regions of this vast country are drawing more closely together. Many complain that the war also gives Ukrainian politicians an excuse not to do things, not to make the radical economic and legal reforms that the country still needs. But thanks to the war, more Ukrainians also identify themselves as “European,” in opposition to Russia, and more Ukrainians understand that this “Europeanness” means they need to be vocal and organized in their desire for change.

104. In this regard, it is assessed that this political situation for Ukrainians who openly supported the now defunct Party of Regions operates through the rest of Ukraine and that perceived anti-government or pro-secessionists views can be encountered by violent physical ill-treatment. In the first applicant’s case, he has other factors that heighten his actual political opinion and impute him with anti-government political opinion, including his religious affiliation.
105. Even in provincial Chernihiv, there are recorded incidents of such political activities by chauvinists and nationalists likely to be hostile to the first applicant and his political views or to impute political opinions him with anti-nationalist views. In particular, the Tribunal has in mind the pro-Russian news outlet, Sputnik news, report regarding pro-nationalist Ukrainians in Chernihiv, Rivne, Zakarpattia, Lviv and Volyn attempting to block Russian trucks heading to Europe through western Ukraine in February 2016, and that the initiative was joined by the Right Sector’s paramilitary group.[13]
[13] Activists Trying to ‘Blockade’ Russian Trucks in Western Ukraine, Sputnik News online, 13 February 2016, As the harm feared by the first applicant is from non-state actors who violently oppose pro-Russian political actors, such as the first applicant and the Ukrainian Government and authorities have allowed those non-state actors to seriously harass and harm with an unacceptable level of impunity, the Tribunal finds that internal protection is not available to him in the foreseeable future. Therefore there is nowhere in Ukraine, in the reasonably foreseeable future, where there is no appreciable risk of the persecution feared by the first applicant for a Convention reason, namely the first applicant’s political opinion, both actual and imputed.
107. For these reasons, relocation anywhere within Ukraine outside the first applicant’s home area is not reasonable, in the sense of being impracticable, for the purposes of the Refugees Convention as amended by the Refugees Protocol, for the foreseeable future.
108. Having regard to the available information, and considering the first applicant’s claims cumulatively, the Tribunal finds that the first applicant has a well-founded fear of persecution for a Convention reason, if he were to return to anywhere within Ukraine.
109. The Tribunal finds that the first applicant is outside his country of nationality, Ukraine. For the reasons given above, the Tribunal finds that he has a well-founded fear of being persecuted for reasons of his political opinion and imputed political opinion if he returns to that country now or in the reasonably foreseeable future. The Tribunal finds that the first applicant is unwilling, owing to his fear of persecution, to avail himself of the protection of the Government of Ukraine.
110. There is nothing in the evidence before the Tribunal to suggest that the first applicant has a legally enforceable right to enter and reside in any country other than his country of nationality, Ukraine. Accordingly the Tribunal finds that the first applicant is not excluded from Australia’s protection by subsection 36(3) of the Act.
111. It follows that the Tribunal is satisfied that the first applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Consequently the first applicant satisfies the criterion set out in paragraph 36(2)(a) of the Migration Act for the grant of a protection visa.
Findings for the second applicant
112. In the light of the Tribunal’s finding that is satisfied the first applicant satisfies s.36(2)(a), it is not necessary to consider that the second applicant’s claims and circumstances against the same criteria.
113. As mentioned in an earlier finding, the Tribunal is satisfied that the second applicant is the spouse of the first applicant and is a member of the same family unit as the first applicant for the purposes of s.36(2)(b)(i). As such, the fate of her application depends on the outcome of the first applicant’s application. It follows that the second applicant will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.
Findings for the third applicant
Claims and Findings
114. As mentioned in an earlier finding, the Tribunal is not satisfied the third applicant is a dependent of the first and second applicant, and therefore, is not a member of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i) and s.36(2)(c)(i). As such, the fate of his application does not rely on the outcome of the first named applicant’s application.
115. According to his submitted statutory declaration dated 7 April 2018, the third applicant claimed that at the time of the Midian protests in Kiev, he was [age] years of age studying at the [named college in] Ukraine. He claimed that his parents are well-educated people and that his father was a member of the Party of Regions. He stated that he personally supported Ukraine joining the European Union.
116. The third applicant recalls that that in the winter of 2013-2014 the political situation deteriorated: many black masked men run around Kiev, threatening violence; some students at his campus had been attacked by such men; some were abused on racial grounds; and that he was warned not to engage in political discussions. The third applicant also recalled that his father had been injured – bruised face and bleeding – in the past and that he knew it was associated with political troubles.
117. The written claims further outline the third applicant is afraid to return to Ukraine because there is still a war in the east of the country; there is a great deal of discrimination against those who are perceived as pro-Russian and because right wing nationalists have considerable power in the country. He argued there is pressure on those who do not speak Ukrainian or attend Ukrainian church to leave the country and he fears he will be killed by such anti-Russian forces, including the paramilitary C14, who act with impunity towards their perceived Russian enemies and argues the police will not protect him.

118. During the hearing, the third applicant claimed that while he lived and studying in [a different Australian city], he was attending [name], a Russian orthodox church. He claimed he shared the same political views as his father as he wanted Ukraine to live in peace, as well as European Union countries.
119. The Tribunal accepts the third applicant has the same or similar political opinions to the first applicant, as claimed, albeit not with the same levels of enthusiasm and commitment. Although it is accepted his sister had been intimidated by masked nationalists and this can be reasonably construed as an indirect threat the third applicant, the third applicant has not experienced any direct threats or any harm in the past and he has not demonstrated any strong interest to the Tribunal in participating in political activities, either in Ukraine or in Australia. Even in combination with being imputed with his father’s political opinions and membership, the Tribunal is not satisfied the third applicant is a person of interest to any violent extremist or nationalist or he has a real chance of being targeted by any right wing nationalists or extremist Ukrainian political movement based on his actual and imputed political opinions.
120. Neither does the Tribunal accept the country information supports anti-Russian sentiment or forces within the Ukraine, including Kiev, will force the third applicant to leave Ukraine in combination with other factors, as discussed below.
121. As reported by The Economist, on September 7th the Ecumenical Patriarch took the first steps towards granting the wishes of Mr Poroshenko (the current Prime Minister of Ukraine) and his fellow legislators. He mandated two North American bishops to act as his representatives in preparing the way for a fully self-governing church in Kiev. According to The Economist, that will not be easy. As of now, the most widely organised church in Ukraine is one that owes allegiance to Moscow, sometimes called the Ukrainian Orthodox Church-Moscow Patriarchate (UOC-MP). The second most extensive is the Kiev Patriarchate (KP) which enjoys no international recognition. The Economist further reports that presumably the creation of a national church would involve conferring a higher status on the KP and encouraging parts of the UOC-MP to join the upgraded structure. (The UOC-MP has far more priests and monasteries under its sway, but polls suggest that the KP is much more popular among the 70% of Ukrainians who identify as Orthodox.) The article goes on to state that Patriarch Kirill of Moscow declared that his church would cease to pray publicly for Patriarch Bartholomew. It was announced that neither the Russian Patriarch nor any bishops under his authority would celebrate the Eucharist (Christianity’s holiest rite) with bishops under the command of Patriarch Bartholomew. These are gestures of huge symbolic importance. It was made clear that if the Ecumenical Patriarch blesses the full independence of a Ukrainian church, there would be a total rupture of communion between the Patriarchates of Constantinople and Moscow.[14]
[14] Two Patriarchs clash, mirroring Russian-Ukrainian tensions, by ‘Erasmus’, The Economist, 17 September 2018, Even before this recent specific event, around 60 parishes have switched to the Kiev-cantered church since 2014 in transfers the leadership of the Moscow patriarchate says were illegal, according to US-based National Catholic Reporter on 4 April 2018. [15] This indicated to the Tribunal that belonging to the UOC-MP did not necessarily mark out its members as hostile to Ukrainian nationalism as claimed. The same article indicated that it had been the absence of the Ecumenical Patriarch’s recognition of the Kievian Patriarch’s pre-eminence within the country is the main reasons many parishioners and priests remain affiliated with the UOC-MP. While the Tribunal acknowledges that some ugly insults, beatings, vandalism, bullying and protests have been conducted outside UOC-MP congregations, including the one involving the third applicant’s mother, there are few reports of significant physical ill-treatment or physical harassment arising from these confrontations, including those submitted by the applicants’ representative.
[15] Ukrainian Orthodox switch allegiance from Moscow to Kiev-linked churches, National Catholic Reporter, 4 April 2018, While it accepts that the third applicant belongs as a practicing Orthodox Christian to the UOC-MP whose divisions with the Kiev Patriarch has deepened since its recent elevation by the Ecumenical Patriarch in Constantinople to full independence from Moscow’s patriarch, the Tribunal finds the chances of the third applicant being seriously harmed if he returned to anywhere in Ukraine, to be remote and not real in the foreseeable future is not supported by the available country information.
124. The Tribunal accepts the third applicant is ethnically Ukrainian who speaks Russian. Although both Slavic languages are similar, their distinctiveness from each other does invite the Tribunal to consider that Russian speaking Ukrainians such as the third applicant may be imputed with pro-Russian political opinion, However Russian remains the native language of millions of Ukrainian citizens, both ethnic Russians and as many as five million Ukrainians.[16] However, the Tribunal could not locate any reports to such people targeted with serious harm solely on this basis and none was submitted by the third applicant or on his behalf. While the Tribunal accepts there is a chance of serious harm arising from the third applicant’s linguistic background and ethnicity by some easily provoked nationalists or extremists, it finds the chances of the third applicant being seriously harmed for these or any related Convention reason to be remote and not real in the foreseeable future, if the third applicant had to return anywhere within Ukraine.
[16] According to official data from the 2001 Ukrainian census, the Russian language is native for 29.6% of Ukraine's population (about 14.3 million people).[18] Ethnic Russians form 56% of the total Russian-native-language population, while the remainder are people of other ethnic background: 5,545,000 Ukrainians, 172,000 Belarusians, 86,000 Jews, 81,000 Greeks, 62,000 Bulgarians, 46,000 Moldovans, 43,000 Tatars, 43,000 Armenians, 22,000 Poles, 21,000 Germans, 15,000 Crimean Tatars. Russian language in Ukraine, Wikipedia,
125. Having cumulatively considered the third applicant’s specific claims and circumstances and based on its assessment of the country information outlined above, the Tribunal finds that the chances of the first applicant facing serious harm based on his actual or imputed political opinion in combination with his accepted religious, ethnic and linguistic background or any other related Convention reasons if returned to Ukraine, is found to be remote and insubstantial and not a real chance. This is because the third applicant, as otherwise ordinary Russian speaking Ukraine who belongs to the UOC-MP, does not have any past or ongoing profile among far-right or extreme nationalists which are active throughout most of Ukraine which lead his political opinions, imputed or otherwise, to come the adverse attention of such actors leading to any corresponding real chance of serious harm.
126. Based on the same considerations about the third applicant’s political opinions, ethnic, linguistic and religious background, the Tribunal is also finds there are no substantial grounds for it to believe the third applicant faces a real risk of significant harm of any kind as a necessary and foreseeable consequence of being removed from Australia to anywhere within Ukraine.
127. Having considered the third applicant’s claims cumulatively as well as individually, the Tribunal is satisfied there are no more residual claims to consider for the third applicant and that it finds that there is no real chance that should he return to Ukraine now or in the reasonably foreseeable future the third applicant will encounter serious harm capable of amounting to persecution for any Convention or non-Convention reason.
128. The third applicant does not have a well-founded fear of persecution for the purposes of the Refugees Convention and does not satisfy s.36(2)(a).
129. Having considered the third applicant’s claims cumulatively as well as individually, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the third applicant being removed from Australia to Ukraine, there is a real risk of significant harm. The Tribunal does not accept that the third applicant will suffer harm by way of him being arbitrarily deprived of his life; the death penalty will be carried out on him; he will be subject to torture; he will subject to cruel or inhuman treatment or punishment; or he will be subjected to degrading treatment or punishment, as required in s.36(2)(aa).
Findings for the fourth applicant
Claims and Findings
130. As mentioned in an earlier finding, the Tribunal is not satisfied the fourth applicant is a dependent of the first and second applicant, and therefore, is not a member of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i) and s.36(2)(c)(i). As such, the fate of her application does not rely on the outcome of the first named applicant’s application.
131. It has been consistently raised by the first and fourth applicants that the fourth applicant has been subjected to any intimidating incident whereby masked nationalists had asked about her whereabouts while at school but she was able to avoid any harm. As stated above, the Tribunal accepts this incident to have credibly occurred and that it does invite the Tribunal to consider whether the fourth applicant has a real chance of serious harm or a real risk of significant harm arising from that incident.
132. However, the Tribunal notes that fourth applicant does not claim to have been political active or interested while in Ukraine and that her existing interest in politics extends to reading the news on the internet and that she is deeply wary of the rule by Ukrainian nationalists and the actions of extremists given her religious background as a practising member of the UOC-MP, who speaks both Ukraine and Russian (according to her father’s testimony at one of the scheduled hearings), as well as the experiences of her father. In this regard, the Tribunal notes the fourth applicant did not advance either in the hearing or in her written claims her own personal political views (unlike the third applicant) and that she fears her political opinion is imputed by her association with her father’s accepted views and membership. In this regard the Tribunal accepts that the fourth applicant has a genuine subjective fear of persecution arising from her perceived ethnicity as Russian and her imputed political opinion if she were to return to Ukraine in the reasonably foreseeable future. Furthermore it accepted the harm she subjectively fears would be inflicted by politically violent nationalistic or extremist Ukrainian non-state actors and that she fears the authorities will not offer her effective or adequate internal protection.
133. The Tribunal accepts the fourth applicant is ethnically Ukrainian who speaks Russian as well as Ukrainian, belongs to the UOC-MP and may be perceived to pro-Russian due to her father’s political opinions, if she were to return to Ukraine. However based on the same country information assessment regarding her accepted religious membership considered in the third applicant’s claims, the Tribunal does not accept the fourth applicant has a chance of serious harm arising from her religion or any other related Convention reasons that is remote and not a real chance.
134. Furthermore it finds that the fourth applicant as a Russian speaking Ukrainian citizen only faces a remote chance and not a real chance of serious arising from her ethnicity, perceived or otherwise, as her ethnicity or any other related Convention reason, if she were to return to Ukraine.
135. The Tribunal does not accept the fourth applicant is a person of ongoing interest to Ukrainian nationalists or extremists who approached her prior to her departure for Australia. This is because such actors were primarily interested in further intimidating and harming her father due to his political opinions and membership and are not primarily motivated to intimidate all Russian speaking Ukrainians to leave the country, as claimed. Given the passage of time and the fact her father will not be returning to Ukraine in the foreseeable future, the Tribunal finds that the fourth applicant will not return to Ukraine as a persons of interest to either the feared non-state actors or any one in authority throughout Ukraine. Although the Tribunal does not discount the fourth applicant encountering serious harm arising from such people if she were to return to Ukraine, it assesses that the chances of serious harm based on her political opinion, imputed or otherwise, as a Convention reasons to be remote and insubstantial and not real.
136. Having cumulatively considered the fourth applicant’s specific claims and circumstances and based on its assessment of the country information outlined above, the Tribunal finds that the chances of the first applicant facing serious harm based on her political opinion, imputed or otherwise, in combination with her accepted religious, ethnic and linguistic background or any other related Convention reasons if returned to Ukraine, is found to be remote and insubstantial and not a real chance.
137. Based on the same considerations about the fourth applicant’s political opinions, ethnic, linguistic and religious background, the Tribunal is also finds there are no substantial grounds for it to believe the fourth applicant faces a real risk of significant harm of any kind as a necessary and foreseeable consequence of being removed from Australia to Ukraine.
138. Having considered the fourth applicant’s claims cumulatively as well as individually, the Tribunal is satisfied there are no more residual claims to consider for the fourth applicant and that it finds that there is no real chance that should she return to Ukraine now or in the reasonably foreseeable future the fourth applicant will encounter serious harm capable of amounting to persecution for any Convention or non-Convention reason.
139. The fourth applicant does not have a well-founded fear of persecution for the purposes of the Refugees Convention and does not satisfy s.36(2)(a).
140. Having considered the fourth applicant’s claims cumulatively as well as individually, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the fourth applicant being removed from Australia to Ukraine, there is a real risk of significant harm. The Tribunal does not accept that the fourth applicant will suffer harm by way of her being arbitrarily deprived of her life; the death penalty will be carried out on her; she will be subject to torture; she will subject to cruel or inhuman treatment or punishment; or she will be subjected to degrading treatment or punishment, as required in s.36(2)(aa).
Ministerial Intervention
141. While reaching this decision has been difficult, the Tribunal is confident that it has reached its decision in accordance with the Refugees Convention and the complementary protection provisions.
142. As outlined above, the Tribunal is not satisfied the third and fourth applicants satisfied s.36(2)(a) or (aa). However Ukraine remains a troubled and volatile country and it will cause considerable distress to the first and second applicants who appear to be eligible for permanent residency if their adult children were to return.
143. The Tribunal has considered the third and fourth applicants’ case and the ministerial guidelines relating to the discretionary power set out in the Minister’s guidelines regarding Ministerial intervention under s.351, s.417, and s.501J of the Act, and it has decided to refer the matter to the Department to be brought to the Minister’s attention.
144. In examining the Ministerial guidelines regarding requesting the Minister to personally intervene, the Tribunal is also confident the third and fourth applicant’s circumstances had been anticipated by the relevant legislation and the Tribunal’s application of relevant provisions is not an unintended consequence of the legislation.
145. However, in making this referral the Tribunal has taken into account that the applicants belong to a genuinely close knit and mutually devoted family and that the third and fourth applicants should not unreasonably be separated from their parents, even as young adults, by being excluded from applying for an offshore visa for three or more years, to avoid significant ongoing emotional and psychological hardship to the family. With particular regard, the Tribunal notes that the second applicant psychologically suffers from [specified symptoms] for which reliable evidence from medical professional had been submitted.[17] The Tribunal is concerned the second applicant’s mental health condition will deteriorate. The Tribunal also notes the third and fourth applicants have more than satisfactorily advanced their higher learning since their arrival in Australia, indicating to it that they have the strong capacity to meaningfully and materially contribute to Australia.
[17] AAT Folio 222-230
146. Taking the applicants’ circumstances as a whole, the Tribunal is referring this matter to the Department on the basis strong compassionate circumstances will result in hardship if not recognised.
Conclusion
147. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations. Therefore the first named applicant satisfies the criterion set out in s.36(2)(a).
148. The Tribunal is not satisfied that the second named applicant is a person in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that the second named applicant as the spouse of the first named applicant is a member of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i).
149. As such, the fate of her application depends on the outcome of the first named applicant’s application. It follows that the second named applicant will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.
150. For the reasons given above the Tribunal is not satisfied that the third named and the fourth named applicants are persons in respect of whom Australia has protection obligations. Therefore these specific applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa.
151. Furthermore, the Tribunal is not satisfied that the third named applicant and the fourth named applicant are dependent children on the first named or second named applicants. Accordingly, it is not satisfied the same applicants are members of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i) or s.36(2)(c)(i). In this regard, it follows that the third named and fourth named applicants will not be entitled to protection visas.
152. As the third named and the fourth named applicants do not satisfy the criteria for protection visas, they cannot be granted the visas.

DECISION:

153. The Tribunal remits the first named and second named applicants for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the second named applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

154. The Tribunal affirms the decision not to grant the third named and fourth named applicants protection visas
Brendan Darcy
Member

[2018] AATA 5356

31 October 2018

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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