1603702 (Refugee)

[2020] AATA 5062

1603702 (Refugee) [2020] AATA 5062 (2 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1603702

COUNTRY OF REFERENCE:                   Ukraine

MEMBER:Lilly Mojsin

DATE:2 October 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 2 October  2020 at 5.00 pm

CATCHWORDS
REFUGEE – protection visa – Ukraine – political opinion – membership of the Communist Party of the Soviet Union – membership of the Party of Regions – imputed pro-Russian and anti-Ukrainian views – perceived support for separatist ideologies – particular social group – Russian-speaking ethnic Ukrainian – rise of right wing extremists – access to mental health care services – independent country information – left the country legally with a passport in own name – obtaining evidence from witnesses – WhatsApp phone call – confidentiality issues – procedural fairness – claims of interpreting error and/or omissions – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 36, 65, 91R, 91S
Migration Regulations 1994, Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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 and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Ukraine, applied for the visa on 22 October 2014 and the delegate refused to grant the visa on 9 March 2016.

3. The applicant appeared before the Tribunal on 18 July 2019 and 26 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from [Witness A] and [Witness B].

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.

5. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. In her Protection Visa application [PV] the applicant said that she is a citizen of Ukraine. She travelled to Australia in 2001 for one month, returned in 2011 for 1 month and returned again in 2013 for 1 month. In 2014 she arrived in June, departed in July for [Country 1] and returned after 13 days. She applied for a PV on 22 October 2014. 

7. In her PV the applicant claimed that:

   ·She is a divorcee born in [Town 1], Hmelnitskaya Oblast, Ukraine in [year]. She speaks, reads and writes Russian and Ukrainian as well as being able to read English.

   ·Apart from her travels to Australia the applicant has also travelled to [Country 2] in 2006, 2008, 2010, to [Country 3] for 10 days in July 2000, [Country 4] for 1 week in April 2008, [Country 1] for 2 weeks in 2013 and again in 2014 for 13 days.

   ·She was employed as a [Occupation 1] in Kramatorsk for [number] years before travelling to Australia in July 2014.

   ·The [workplace] where the applicant [worked] was close to checkpoints and control positions where fighting between pro-Russian and pro-Ukraine forces was taking place. Many of the town’s residents began leaving the area and by May 2014 the [population] was negligible.

   ·She left Kramatorsk [in] May 2014 and travelled by bus to Kharkiv and then a train to Moscow. From Moscow the applicant flew to [Country 5] and then on to [Australia]. She arrived in Australia [in] June 2014.

   ·While in Australia the applicant was aware of the conflict in East Ukraine.

   ·Kramatorsk is now controlled by the Ukrainian army. The Ukrainian government has begun to investigate people suspected of assisting separatists in Kramatorsk. Anyone who may have supported the separatist in anyway or was in favour of an alliance with Russia may be considered an enemy.

   ·She became a Communist Party [CP] member in 1974 and remained so until its dissolution when Ukraine became independent from the Soviet Union in 1991. The applicant joined to further her career and not because she held to the philosophy of Communism.

   ·The CP is now widely regarded as supporting the annexation of Crimea and the formation of the Donetsk and Luhansk People’s Republics.

   ·In mid-2000 the applicant joined the Party of Regions [PR]. She joined at the recommendation of [a superior] of her [workplace] who told her it would ensure her wages would arrive on time and she would receive bonuses and benefits non-members would not receive. She was not an active member of the Party. In reality she never supported the Party of Regions [PR] it was just something she was asked to do by her superiors and could not disobey for fear of losing her job.

   ·PRs’ ideology was the defence or the rights of ethnic Russians and Russian speakers in Ukraine. In 2014 the Party advocated secession from Ukraine and joining the Russian Federation.

   ·She has not returned to her home in Kramatorsk because she fears that her membership of the CP and PR will impute her with an adverse political opinion and she will be investigated and possibly persecuted. Further, she fears for reasons of her ethnicity as she does not speak the Ukrainian language very well.

   ·In August 2014 the applicant resigned from her [position] in Kramatorsk because she was advised by [her superior] that it was better than her employment being terminated. Termination may affect her entitlements, pension and ability to work again. She is not entitled to unemployment benefits.

   ·The applicant does not have any relatives living in Ukraine.

   ·She is financially incapable of relocating within Ukraine and there is a lot of distrust between people from her area in other parts of Ukraine because it is believed they all support separatism.

   ·She faces financial hardship if she returns to Ukraine because she has minimal savings which she managed to withdraw in August whilst in Australia before her card was blocked. She is currently relying on the generosity of [Relative C] for food, accommodation and clothing.

   ·She does not wish to return to Kramatorsk where she has a small apartment because there is no guarantee that the separatists will not attack the town.

8. The applicant attached to her PV photos downloaded from internet in 2014 of damage of property after the fighting, various international reports about the situation in Ukraine, a number of certificates including Certificate for membership of Party of Regions [PR], Soviet Union Communist Party Membership [CP-Soviet].

9. The applicant attended an interview with the Department on 7 July 2015. Also present at the interview was the applicant’s authorised recipient. The interview was held with the assistance of a Russian speaking interpreter. The applicant made claims as follows:

   • she was not employed in Australia and she was being supported by her [Relative C].
   • she was due to leave Australia [in] August 2014 but could not go because of the war. She waited until October to apply for a PVA because when she “lost her job”, she began to prepare documents. She lost her job in late August 2014 and had been compiling documents and having medical checks.
   • she was a member and [office bearer] of CP for [number] years until its demise in 1991. She is not a current member.
   • she would be singled out for investigation for being a member of the CP or the PR because the Communist Party is banned at the moment and she would be considered a terrorist.
   • asked about her fear of investigation because she was a member of the PR she said that [the manager at] the [workplace] had told her and other [co-workers] they should join. No action was required as a member other than being present at election campaigns. Asked if she was currently a member of the PR and she said that the Party was under persecution at the moment and it dissolved.
   • asked if she believed she had a political profile in Ukraine that she has not mentioned in her written application she claimed that she was known as a CP [office bearer]. Asked if she was a member of any other political organisation she stated she was not. She was just a member.
   • asked if she would have continued with her [Occupation 1] career if she had returned to Ukraine and she said she would have.
   • asked about her claim that she was forced to retire she claimed that the [manager] said she was “getting to that age” and that she might have been put on “reduced hours”.
   • The pension age in Ukraine is 55 years. it is permissible to receive a pension and work.
   • asked why she resigned from her [Occupation 1] position in August 2014, she claimed that during her conversation with the [manager] she asked for an extension of her leave to 2 December 2014 and the [manager] advised her to take voluntary resignation because it would be less detrimental to her position. She explained that if she was dismissed from her [position] for failure to attend, she would not get another [Occupation 1] position. The applicant confirmed that she had sent a written formal resignation letter.
   • when she had contacted the [manager at] the [workplace], she was told that the [workplace] would remain closed for all of September and then reopen in October. She said that there were [a number of staff] at the [workplace] in August and that the building was not damaged. She claimed she did not return in October, when the [workplace] reopened because the area in which she lived was “really bad” adding that Kramatorsk had been shelled on 10 February 2015
   • put to the applicant that no country information could be found on investigations by the Ukraine government of people who had been members of the CP or PR. In response she said that in Horlovka city the mayor, who was a member of the CP, was kidnapped and his corpse was found in the river.
   • she was confronted by separatists but was left unharmed. She changed the date of her departure because she thought she may not be able to leave Ukraine as the Kramatorsk trains had stopped.
   • she is a single woman with a property in Kramatorsk. She wanted to draw attention to the unexploded sells or mines. The water supply has been interrupted several times during the conflicts and that there are gas shortages in winter.
   • Kramatorsk inhabitants who are Russian speakers are afraid to say what they think
   • the pension has been reduced by 15% due to the needs of the war.
   • on 15 May 2015 a law was passed banning the CP in Ukraine. Ukrainians in the west distrust those from the east. Ukrainians in the west are reluctant to accept IDP ‘s from the east and the Government does not have the resources to support IDP’s and that it is difficult to find employment.
   • asked if it were possible for the applicant to relocate to Russia she said that her [Relative D] will be arriving to take up permanent residency in Australia at any time.

10. The applicant provided to Tribunal:

    ·Medical Report [Dr E] dated 1 December 2017

    ·[Qualification] with Distinction which she completed at [University 1] of [a specified committee] of the Community Party of Ukraine and has attained higher Political education in the party training system,

    ·Copy of [an award] awarded to the applicant, Certificate to confirm that the applicant has been awarded a badge [Winner] of [a named] Competition,

    ·Copy of Certificate of Merit for [recognition of contribution],

    ·photos of the applicant relating to applicant’s political affiliation,

    ·Letter from [an Employer] dated 05 July 2019 that stated that the applicant [works in specified areas]

    ·evidence that the applicant had a consultation with [Mr F] on 31 July 2014.

    ·Two submissions dated 12 July 2019 from applicant’s advisor and an email making submissions and referring to numerous country information reports.

11. Statutory Declaration to the Tribunal dated 12 July 2019.  The applicant declared as follows: 

    • She has a profile as a political activist and association with the CP and PR and she is perceived as a person holding pro-Russian political opinion.
    • born on [date] in [Town 1], Hmelnitskaya Oblast, Ukraine and is an ethnic Ukrainian.  She was a divorcee who was employed as a [Occupation 1] in Kramatorsk for [number] years and was asked to resign from her post in August 2014. She lived in Kramatorsk, Donetsk Region, Ukraine for most of her life. The region is located in the Eastern Ukraine which has always been predominantly a Russian speaking area.
    • in the east of Ukraine people predominantly speak Russian. Both in 2004 and 2010, the majority of people in this region, chose Viktor Yanukovych, a native of the Donetsk Region, as their president.
    • She cannot speak or write Ukrainian at the level of a native speaker or learn it at that level at her age. As a result of lack of language skills in Ukraine, she would be perceived, as a person who has strong Russian connections or a supporter of Russia though she is ethnic Ukrainian.
    • Her [Relative D] is a Russian citizen who lived in Russia until 2016 when she came to live in Australia permanently. She does not have any relatives in Ukraine.
    • She became a member of the CP of USSR in 1974. Shortly thereafter, she was selected as a party [official] of the [workplace] which made her a representative at [a specified committee] of the Communist Party of Ukraine and she continued to serve the Party in that position until its demise.
    • Ukrainian authorities continue to suspect people who are associated with the CP as people holding pro-Russian political views. They perceive that those people promote and actively or passively support the annexation of Crimea and the formation of the Donetsk and Luhansk People’s Republics. Though, she never supported separatist actions, especially them taking control of the Donetsk Region breaking out into a fully armed conflict, Ukrainian authorities perceive and suspect people like her as the people who support the separatist ideologies which challenges the structure of the Ukrainian State.
    • Sometime in mid-2000, she was called to a meeting at the [manager’s] office at her [workplace] and was asked to join the PR. She was advised that PR is the main political party and by joining the party, they should be able to ensure that they would receive salaries on time and receive other benefits. those benefits were not available for people not part of the PR.
    • the objectives of the PR were to protect and uphold the rights of Russian-speaking Ukrainians in the south and east of the country. The Party’s leader, Victor Yanukovych pledged to pursue official language status for Russian and improvements in relations with Russia. Before February 2014, the PR had control in most regions of Ukraine, especially in the East and the South. During the Ukrainian revolution on 20 February 2014, some party members called for disintegration of Ukraine and to join the Russian Federation. Since President Yanukovych was ousted in February 2014, the party lost control in all parts/regions of Ukraine since all of their heads of regional administration were replaced. As a result, the Party’s symbol and activities have been banned in many Ukrainian regions.
    • She has been unable to provide her actual membership card since the party has disintegrated and no longer has a base in Kramatorsk. In early 2015 her friend in Kramatorsk obtained a copy of undated letter from [a branch] of the PR. this office closed shortly thereafter. It is possible that all her membership documents could be at her former place of employment.
    • Many of the former PR members either fled to Russia or were subjected to attacks by far rights organisations with little or no help from police who, at the time, were outnumbered by various armed pro-new government forces on the ground. Such attacks included forceful resignations, physical and psychological violence, prosecution and lustration. The government also launched criminal investigation into activities of some of the party’s members. After Kramatorsk became the new centre of Donetsk Region in October 2014, such occurrences took place there too. Party members who stayed in Ukraine are reluctant to go on the record for fear of retribution.
    • She has only been able to provide one statement in support of her membership and activities since other party members contacted were not prepared to go on the record for fear of retribution.
    • After the overthrow of President Yanukovych in February 2014, many peaceful rallies took place in Donetsk Region. She supported and continue to support the following:

    -the ousting of President Yanukovych in February 2014 was unlawful and unconstitutional;

    -the status of the Russian language in the Donetsk region

    -protection of the economic interest of Donetsk region

    -continuation of and establishment of stronger ties with Russia including trade

    -opposing the views of ultra-right nationalists who were increasing their influence on the new (temporary) Ukrainian government and were responsible for the rise of radicalism and nationalism in the country which directly affected her region.

    -she was concerned that the new government was not representing the interest of all Ukrainians since it was predominantly occupied by parties which represented the interest of the Western Ukraine.

    -The peace resolution of the conflict and the unity of Ukraine

    • The intention when attending those rallies was not to change the new government or to put separatists in power but to protect the interests of the Donetsk region population.
    • At the end of August 2014 (at that time she was in Australia), her [manager] asked her to resign from position as a [Occupation 1] and said if she failed to resign, the [employer] would take steps to terminate her which would affect her work related entitlement.
    • She believes the request by [this manager] was in order to avoid any issues with the authorities due to her perceived affiliation with the Pro-Russian groups.
    • She would be perceived as a person holding a political opinion supporting pro-Russian political opinion and anti-Ukrainian political opinion. She regularly attended the CP of Soviet Union’s political meetings (at least once a week) and conferences as well as carried out city duties as part of her membership of that party. As part of her duties as [an office bearer] of the [workplace] she would oversee the educational and political processes at [the workplace] and conduct meetings with party and non-party members of staff. Her enemies or persecutors would perceive that she had a significant role and profile based on her political opinion or activities.
    • Due to her perceived political activities and association with the CP of Soviet Union and the PR and her inability to fluently speak Ukrainian and her good knowledge of the Russian language it would influence the Ukrainian authorities that she does not like the Ukrainian language and she is basically a strong supporter of Russians. She would be perceived as an ethnic Ukrainian who supports pro-Russian nationalism which would escalate her fear of harm. There is a strong and reasonable possibility that the authorities and the Ukrainian nationalists may form the view that she is against Ukrainian nationalism and support Russian nationalism and support pro-Russian nationalist activities in Ukraine. they would consider her as a traitor of Ukraine which would further escalate her fear of harm from the authorities and Ukrainian nationalists. Her political affiliation and opinion would be considered as a political opinion which challenges the structure of the Ukrainian state.
    • She left Kramatorsk [in] May 2014, travelled to Kharkiv by bus and then to Moscow by train. From Moscow, she flew to [Country 5] and then came to Australia [in] June 2014 on a visitor visa which was granted to her on 14 May 2014.
    • even though Kramatorsk was under heavy shelling, at the time she did not have fear that she would face a real risk of significant harm such as degrading, inhuman or cruel treatment. As there was no imminent threat of harm to her specifically when she got a visitor visa, she did not leave Ukraine immediately following its grant.
    • She did leave Ukraine for Australia a little bit earlier than planned as the fighting in the region was escalating and civilians were leaving in thousands fearing for their safety.
    • Whilst holidaying in [Country 1], on 17 July 2014, Malaysian Airlines flight MH 17 travelling from Amsterdam to Kuala Lumpur was shot down. Animosity between Ukraine and Russia further worsened by July 2014. Whilst monitoring the situation by September 2014, the situation in Ukraine was getting worse and she became increasingly traumatised by the events witnessed in Kramatorsk before she left as well as watching what was happening in the Donetsk Region. She found it difficult to accept that she no longer had a job. After contacting people in Ukraine it was becoming clear that it was no longer safe for her to return.
    • Due to her mental health issues, she found it very difficult to provide clear and meaningful instructions to [Relative C] as she was still coming to terms with what was happening in her home country and her personally. [Relative C] had surgery and when she recovered she helped her with her application for a protection visa and she sought advice from a migration agent. There was no delay in applying for a protection visa.
    • If she returned to Ukraine she would face a real risk of harm including killing, torture, degrading, inhuman and cruel treatment due to her imputed political opinion supporting the pro-Russian movement in Ukraine and due to her imputed political opinion that she supports separatist ideologies and therefore she is an enemy of the nation. Due to her membership and association with the CP of Soviet Union and the PR, she would be considered a traitor and would be deprived of medical treatment in Ukraine.
    • She would face practical difficulties and in fact dangerous to move to other areas of the country due to following reasons due to her mental health issues, her age and her situation as a divorced, unemployed woman.
    • Local residents, especially in the west, would perceive her as a traitor who escaped the difficulties and hardship of the conflict.  Residents in the west would particularly be opposed to her living in their area due to her Donetsk Region origins. As a member of the PR, she could face threats from radical nationalistic groups in west Ukraine and local police would not be willing to help in that region.
    • She fears she would not be able to get effective protection from the authorities because her imputed political opinion directly against the structure of Ukraine.

1. Documents provided to the Tribunal

   • Photos celebrating the Birthday of the Revolution.
   • Photo taken during All Communist Party membership event.
   • [Certificate] - Winner of [a named] competition.
   • [Named award]
   • [Qualification] with distinction from [University 1].
   • Certificate of Merit

2. A declaration by [Witness A], made on 9 July 2019 states

   ·He met the applicant in the late 80s when he attended school in the same class with her [Relative C]. At that time, the applicant was a [Occupation 1] and an active member of the Communist Party of the Soviet Union in the city of Kramatorsk. From 1991 to 1994, he was married to her [Relative C] and saw the applicant occasionally, mostly during family celebrations. He did not see the applicant until February 2002, when they met in Kramatorsk while working on organising [an event for the] Party of Regions. At the time, he was a representative of the headquarters of the [named branch of the Party of Regions], and lived in the city of Donetsk. The head of [another branch] of Party of Regions in Kramatorsk introduced the applicant as a qualified specialist with many years of experience of working in [Industry 1] in Kramatorsk who was greatly respected by [those whom she had worked with].

   ·At the time, the applicant, a member of [the] Party of Regions, was responsible for organising campaign events (meetings, conferences, party seminars), the main objectives of those events was working supporting the Party of Regions and party leaders. The applicant participated in the 2004 presidential election campaign, helped running the campaign in the city for the presidential candidate from the Party of Regions Yanukovich V.F., and, as an observer from the Party of Regions she was also responsible for organising work at several polling stations in Kramatorsk.

   ·The applicant was being considered for [a specified role] from the Party of Regions during elections to the regional councils of Ukraine, but, due to prolonged illness, she had to take an extended leave and declined the opportunity offered to her.

   ·During the presidential campaign in Ukraine in 2009 - 2010, the applicant participated in events as a representative of the Party of Regions and was a participant of the campaign among the representatives [of] Donetsk region.

   ·The applicant enjoyed well-deserved respect among [those she worked with], she was also awarded letters of appreciation from the city and regional party management of Donetsk region. She actively participated in the development and participation in regional party projects in various regions of Ukraine. During coup d’etat which took place in Ukraine in 2014, the applicant already lived and worked in the city of Kiev. Sometimes he saw the applicant in Kramatorsk where he often went on business trips or to visit relatives. Due to her ideological and life beliefs, the applicant was against coup d'etat and was speaking in favour of close connections between Ukraine and the Russian Federation. 

   ·From his conversations with the applicant in 2014, he knew that she participated in peaceful protest rallies on protection of the Russian language and unlawfulness of the change of power in Ukraine. She also supported the joining of Crimea to the Russian Federation. For her participation in the peaceful events of the Anti-Maidan and her membership in the Party of Regions, the activists of the Right Sector (Ukrainian extremist nationalist organisation) could have included the applicant in the list of disreputable Ukrainian citizens who do not support nationalist ideology and supported the idea of connection of Ukraine with the Russian Federation, protected the economic rights of the Donbass territory after coup d'etat. 

   ·As far as he knows the applicant left Ukraine in late May /early June 2014, when Kramatorsk was held by separatists and the Ukrainian government was deploying military actions in the region.

   ·For participation in events until Ukraine took control, members of the Party of Regions became subjected to talks with elements of threats, psychological pressure by the agents of the Security Service of Ukraine. After a number of threats of physical violence, constant psychological pressure, many members of the Party of Regions were forced to leave the territory of Ukraine. In 2015, he was forced to depart from Ukraine due to the start of criminal prosecution related to party work as a representative of [a specified branch] of the Party of Regions in [a named] region. He moved to a permanent place of residence in the Russian Federation.

   ·For her ideological beliefs, the applicant could and can be subjected to threats and persecution by the nationalist-minded representatives of the new power. In case of the applicant’s stay on the territory of Ukraine, a criminal case could be initiated against her based on the article 110 of the Criminal Code of Ukraine (Trespass against territorial integrity and inviolability of Ukraine), which could result in imprisonment for 3 - 5 years with confiscation of property.

3. A medical report by [Dr E], Consultant Psychiatrist, dated 1 December 2017 stated that the applicant was suffering from Major Depressive Disorder, with Melancholic Features, Severe (DSM-5) and Post-Traumatic Stress Disorder (DSM-5). A medical report by [Dr E], Consultant Psychiatrist, dated 4 July 2019 consistent with the previous report, stated that the applicant had been exposed to traumatic war events in Ukraine as a civilian, where she witnessed unnatural death and serious injuries and violence. She had more than a 2 year history of having a depressed mood, with significant deterioration of her mood in the past year.  Her mood, appetite and motivation have improved on her current medications, however not to her baseline level. The applicant presented with Major Depressive Disorder, with Melancholic Features, Severe (DSM-5) and Post-Traumatic Stress Disorder (DSM-5). Her mental health issues were maintained by serious psychosocial issues including uncertainty of her residency status in Australia and the horror of returning back to Ukraine where she will be at risk of being killed, persecuted and tortured. She denied current acute risk issues and reported no substance or alcohol use problems.

4. A 2^nd medical report also dated 4 July 2019 by [Dr E] Consultant Psychiatrist responded to a number of questions asked by the applicant’s advisor. These included a comment that the applicant’s distress levels increase whenever she talks of the possibility of going back to Ukraine. The applicant’s symptoms of mental illness cause significant distress and impairment in important areas of functioning. These include decreased self-care, impairment in social functioning with social withdrawal and disinterest in social interactions. She requires to be accompanied to attend her medical appointments, cognitive impairment with decreased concentration and memory, slowing of processing of information. The applicant suffers from social withdrawal, no interest or pleasure in almost all activities, poor appetite with weight loss, tearfulness, low mood, hopelessness, helplessness, worthlessness, insomnia with nightmares, flashbacks of traumatic events in Ukraine, increase in her anxiety level, feeling detached from reality, avoidance of trauma-related thoughts and feelings. The applicant has been experiencing Severe Major Depressive Disorder. There is a direct link between her Major Depressive Disorder and her fear of going back to Ukraine.

5. In a submission dated 12 July 2019 the applicant’s advisor provided country information. He submits that the reports and press releases establish detailed the following facts.  The security and political situation in Ukraine remains very volatile and dangerous.

   • Human rights violations in Ukraine, particularly Russian nationalists or perceived nationalist continue.
   • The Ukrainian nation is at the point of disintegration.
   • These problems affect the whole country.
   • Much of the violence is fuelled by ethnic and nationalist ideologies and is directed against Russians and perceived Russian supporters 

6. Further, it was submitted that the reports indicate that there is growing far right nationalism in Ukraine and people who are perceived as pro Russia face serious harm in Ukraine. There is an entrenched animosity towards Russians or Russian supporters particularly in the aftermath of annexure of Crimea with Russia. There is a reasonable likelihood that the applicant will face a real risk of persecution due to her political opinion.  Further the political and security situation is still not conducive for a person like the applicant to lead a dignified life in Ukraine. Due to applicant’s political opinion, she may face persecution from both state and non-state actors and the government authorities will not or are unable or unwilling to protect her from harm. Human rights abuses continue in Ukraine against Russian supporters and the authorities are either unwilling to or unable to provide protection to people like the applicant. Due to applicant’s political opinion, she will be identified and targeted. Hence, there is a real possibility that the applicant will be persecuted in Ukraine. There are several reports which note that there is strong direct or tacit support for Ukrainian nationalists against Russians supporters among the Ukrainian authorities.  The applicant cannot avail appropriate state protection because the perpetrators include agents of State and Ukrainian nationalists. There is a reasonable possibility that the applicant will be exposed to the danger of physical harm even if she attempts to relocate in Ukraine, given the current ongoing political crisis there.

7. When assessing whether the applicant would face any practical difficulties in moving to other areas of the country, namely:

   ·Her age

   ·Her mental health issues

   ·Her inability to speak Ukrainian language fluently.

   ·There is no supporting network of relatives in other areas of the country. Country information and the applicant’s personal circumstances indicate that there is a foreseeable, real and personal risk of serious harm the applicant will face if she returned to Ukraine. due to growing animosity towards Russian supporters or perceived supporters and growing Ukrainian nationalism and the perception that the applicant is an anti-Ukrainian, there is a possibility that the applicant may be deprived of medical facilities in Ukraine which we submit will cause immense hardship to the applicant.

8. Ukrainian nationalism was growing in Ukraine, demonstrated by such incidents as demonstrators attacking a Russian Bank in Kiev, protests outside a Russian Embassy in Kharkiv, the rise of Ukrainian far-right party National Corpsa political party that emerged from a paramilitary group — the Azov regiment — fighting in eastern Ukraine. Founded in 2016, it advocates expanding the right to bear arms and restoring capital punishment.

9. The advisor submitted that there is growing Ukrainian nationalism and since those nationalists played a key role in fighting Russia-backed separatist rebels, there is a strong possibility that anyone who is seen as supporting Russia will be targeted by those nationalists. Accordingly, the applicant will also be targeted and harmed in Ukraine for her perceived political opinion and her former membership of the Party of Regions.  The harm feared by the applicant is from state and non-state actors who violently oppose pro-Russian political actors, and the Ukrainian Government and authorities have allowed those non-state actors to seriously harass and harm with an unacceptable level of impunity internal protection is not available to the applicant in the foreseeable future.  There is nowhere in Ukraine, in the reasonably foreseeable future, that the applicant would be able to lead a dignified safe life due to her political opinion.

   TRIBUNAL HEARING  17 July 2019

10. At the Tribunal hearing I drew to the attention of the applicant a Disclosure Certificate pursuant to s.438 of the Act regarding page 120 , PVA validity check, page 123– an identification check list, page 221 a Disclosure Decision Checklist dated 9 March 2016 stating there were no s.437 or s.438 documents on file.

11. The Tribunal notified the applicant that it was of the view that the certificate was invalid and  disclosed the information on those folios. I advised the applicant that they were not relevant to the application and I would place no weight on them.

12. The applicant confirmed that the information she provided in her PV was true and correct. She said that she left Kramatorsk [in] May 2014 and travelled by bus to Kharkiv and then a train to Moscow. From Moscow the applicant flew to [Australia] and arrived in Australia [in] June 2014.

13. She stopped working [on specified day in] May 2014.  She obtained annual leave from her employer, it was for 2 months and a few months and it was paid leave. She left on [the next day] because on that date the fighting started earlier.  [She] had ticket for [a date in] June 2014, but her [Relative C] changed the tickets, the situation was getting worse and it was tense. The separatist captured the city and all over the city were check points and people fled because you could hear the sound of fighting and shelling. The fighting had started in March/April. In May it was not intensive.  The applicant lived not far from [Location 1]. The separatists took [Location 1]. It began in April, but separatists created check points before that.  They were checked and could not pass. The roads and streets were closed. They had to make detours to get around.  She was still able to go to work but there were little children at [the workplace].  When shelling started, they took them  home. She went to work 4 days. Intensive fighting started later but before she left, she could hear the sirens and ambulance vehicles. There was shelling and firing at factories.  There was a kiosk not far from work, next to a tram stop.  When she had to go to work there were 2 factories that were destroyed. Airport was fired at.  She was in the area of fighting. A Ukrainian helicopter was shot down. She owned her own apartment.  Her apartment was not damaged in the fighting.  In that settlement where she worked, houses were damaged by bullets and families were escaping.

14. Put to the applicant that she did not suffer any harm at that time.  She agreed.  In April 2014 her neighbour asked her to take her belongings into their country home and the car was stopped.  Separatists saw a Ukrainian flag in the car and took it. They had a video camera and so they took it, checked the car and let them go.

15. She did not participate in the 11 May 2014 referendum because she feared persecution after that, as the purpose of the referendum was to separate from Ukraine and she would not go anywhere. She left Ukraine before all the fighting that occurred in eastern Ukraine. Kramatorsk is now under Ukrainian government control. 

16. The applicant stated she was a member of the Communist Party [CP Soviet] until 1991. Put that most people belonged to the Communist party. She said only the best were allowed to join and were devoted to the cause. There were 15 members in her [workplace]. She was a member of the Young Communist League and then went to the party. She was elected [office bearer]. Every week she had one day off for party affairs.  She would collect party dues and when she went to meetings would find out what was happening. She attended annual conferences and was a member of revision commissions and boards.  She felt honoured to join the party.

17. In 1991 she had a lot to do and was busy with her profession and was focused on her career. She was a member of the Union and ran workshops. She was a member of the board and organised an [event].  She went to study courses for [Occupation 1] and went to Donetsk.  She is [working] now at the [organisation] and does that every Saturday and she has been [working] there since 2016. She is well enough to [work].   

18. Regarding her joining the PR in 2001, she said she was asked to do that by her [manager]. She advised her and someone else because for many years after the break-up of Soviet Union she lived on her mother’s pension and was paid from time to time. She had heard about that party and she liked their ideas. She said when she was asked to resign, she was following the situation when MH17 was shot down and everything that happened made her so depressed. She saw it on TV and it was all terrible. One of her [acquaintance]’s husband was killed next to the [place] where she worked.  Also she saw how a bus was hit. Then her [manager] told her she was sacked and not working anymore. She said “you have resigned”. She rang her friend and told her to call the [manager]. The [place] did not work. She rang [this manager], she asked to keep her position for her, she said resign of your accord and it would be better for her career.  She was [age] years old. She is officially a pensioner.  She is entitled to a pension, at the moment she is not getting a pension and it was blocked.  Asked if it is because she is out of country. She said maybe something like that.  She was entitled to a pension from 55 years of age. Since then pension is from 60 years. She told her to resign because the active party members had left the city.  Two women she knew left for Russia in September or October 2014 when Ukrainian retook city and it was damaged.  Her [workplace] was not damaged.

19. When the Ukrainian army came, they retook the city and restored water and checked people who supported separatists.  Around that time, she went to [Country 1] and followed the situation and a lot of people disappeared and people were detained by SBU. When she was in Kramatorsk, the father of one of her [acquaintances] who owned [a specified] building was taken to [Town 2].

20. Asked what she fears about returning to Ukraine now she said that the police and the Right Radical Party work together and they persecute former RP members.

21. Regarding her claim that the Ukrainian government has begun to investigate people suspected of assisting separatists in Kramatorsk it was put that she has never been involved in assisting the separatists and no evidence was found or provided to support her claim that general members of the Communist Party, past or present, are being targeted by the Ukraine authorities. She responded that the PR is being persecuted. 

22. When put that she was not active when a member of the PR, she said during the interview she forgot but she was an active member. She said she never missed a single election. She was active in 2003 and 2004 when Yanukovich ran for president.  She said she took part in election campaign in 2006 and 2007.  Put that she did not advise Department in her PV. She said that she was fearing persecution and she was in such a state and she was blank and forgot lots of things. She did not quite understand the purpose of the interview. 

23. Put that prominent members of the PR, such as former members of Parliament or business people, could be identified, but that ordinary members of the PR cannot be identified.  She responded that she was an active member and took part in the election campaign because she worked in the headquarters. She said maybe because it was because of the state she was in. she was very active in election.  She was well known in the city. The former party members had to resign and leave and many people were detained and kept in detention and 77 people were missing.

24. On 22 February 2014 Yanukovich was removed from power and the country was in chaos. Put to the applicant that independent evidence indicates that PR scattered into the opposition. I put that Donetsk has been mostly Russian speaking. This region is highly industrialised. They mostly export to Russia and have strong ties with Russia. She said she was supporting stronger ties with Russia and wanted Russian as an official 2^nd language,  they are persecuted. If there was a rally they supported the Russians.

1. Put to her no independent evidence to support her claims. She said that when she asked colleague for assistance that she is member of PR, her colleague said that she is scared because of all the materials and leaflets and brochures used for promotion and people are disappearing. She is [age] and older than her.  All those who supported PR and supported Yanukovich are persecuted. On 2 February 2015 rocket launches fired into Kramatorsk. There were buildings damaged and a building [near hers] and missile hit and went through the storey down to the ground. She fears now that Kramatorsk is the administrative centre and SBU is very active and working with Idar. They are very radicalised and active in fighting. Deputy leader of Idar appointed Chief of Police of Kiev region and he is of nationalistic opinion.

2. She said that she will be persecuted because she is away for 5 years and that is because her passport has expired. Because of her opinions anti-Ukrainian position as if she is pro-Russian.  Russians keep quiet and they are afraid. Kramatorsk is a multinational city.  After war they came to rebuilt the mines and she is thinking about her [manager] and she worked there for so many years. [She] is afraid to have any direct connection with her.  She asked many people to help her and no one agreed to help her. All refused.

3. She would not reach Kramatorsk because of her passport. She will be questioned. She knows what the police are there. What is happening now there is a proposition to hold a tv program and Russian tv channel the right radicals came and rallied in front of the tv centre and demanded that management of tv channel be taken to court and to kill members of families.  Unknown persons fired from grenade launcher, in Kiev. She saw it on tv recently.

4. She is a well-known person in the city and she always worked for the city and took part in the political life. In 2010 during the election campaign when Yanukovych came to speak at the sports centre there was a few lines of security around the building she entered the centre and she was standing with a PR members and Yanukovych just said hello.  They just wrote down their requests and passed onto management and they took some action. There was another person that she worked with who was local and they together organized meetings and answered their questions.  She and her colleague organized excursions with children and this was policy of PR.

5. Asked why she would be imprisoned she said it was because of her pro-Russian opinion and view.  The applicant drew the Tribunal’s attention to Utube views. She said that she was increasingly traumatised by the events witnessed in Kramatorsk before she left as well as watching what was happening in the Donetsk Region whilst staying in Australia

6. The applicant’s advisor submitted that the applicant should be perceived as pro-Russian and anti-Ukrainian and she would be targeted and if perceived she has a pro-Russian opinion, she would be considered a traitor. HRW report says Ukrainian citizen living in Moscow when she visited the Ukraine was held.  Perception to the persecutors. When she applied for PVshe did not have legal representation at that stage, she put a lot of information in her Tribunal documents and should not be disregarded and should not be raised and coupled with her mental health issues to give details. That is the reason they want the Tribunal to call the witnesses.  

7. Prior to the 2^nd Tribunal hearing, the applicant provided the following documents to the Tribunal:

   ·Marriage Certificate of marriage to [Mr G] [in] July 2020 in Sydney

   ·Report from [Dr H], Consultant Psychiatrist dated 16 August 2020 who stated that the applicant was from Donbass, that her house had been shot at and there were bullet holes in the walls of the house. Former [acquaintances] of hers were killed and she feared her life would be at risk on return to Ukraine.  She was diagnosed with PTSD AND Major Depression. She developed depression, weight loss and her concentration and short-term memory were affected.  If she were to return her condition would deteriorate significantly. Her significant mental health issues are controlled by medication and being in a very good relationship.

   ·Statement [Witness B] with English Translation and copy of photo ID who opines that she met the applicant in 2000 at [a] seminar. She maintained a relationship with her, via telephone, regional seminars and meetings of the Party of Regions as they were both active members of the party, conducted campaigns and participated in elections. 

   She opines that up to the present time members of PR are considered untrustworthy, people go missing, in the city of Mariupol there are underground prisons of SBU where people are being tortured.  People live in fear because there might be sudden searches of their residences and even keeping party membership card at home might result in imprisonment. De-communism is being conducted, everything subject to the country’s communist past is subject to eradication. 

   The applicant’s return to Kramatorsk poses a threat to her freedom and life.   She herself is not able to move to another part of the Ukraine due to her elderly parents and but also people from Donetsk Republic are being treated aggressively, not accepted and not offered assistance being considered Russia’s supporters.

8. Submission dated 19 August 2020

   ·News report about existence of Secret Ukrainian Jail where women from Mariupol were detained and or killed for being suspected separatists.

   ·Human Rights Watch, Annual report on the human rights situation in 2019, 14 January 2020 available at:   

   ·Freedom House, Annual report on political rights and civil liberties in 2019, 4 March 2020, available at:

   ·US Department of State, Annual report on human rights in 2019, 11 March 2020, available at:

   Tribunal hearing 20 August 2020

9. The applicant requested that the Tribunal call witnesses. Asked why the applicant wanted them called she said it was to confirm that she is in the party. They are in Donetsk and know what the situation is like.

10. The Tribunal called the telephone number provided for [Witness A] and was advised “sorry this call cannot be setup”.  A number of attempts were made. The applicant asked if she could call the witness herself on her mobile phone.  I asked the advisor what he wanted to do, he responded it is not saying the number cannot be connected and he said there is something wrong from this end.

11. The applicant told the Tribunal that she had received a message from [Witness A] that he was waiting for the Tribunal to call.

12. [Witness B] told the Tribunal that she is a friend of the applicant and they have been in contact. She is an ethnic Russian. She said that she was asked to provide a letter to the Tribunal so that the applicant could get citizenship in Australia. She said that she was a member of PR, she had confirmation and she joined in 2000. She is not a member now as the party is banned and non-existent anymore since 2014 after Maidan and the war started. She lives in Donetska city in People’s Republic of Donetsk. It is 100 kilometres from Mariupol. Kromatorsk is 150 kilometres from Donetsk. She and the applicant were [Occupation 1s] and met in 2000 at a symposium. From 2000 to 2014 they met 3 to 4 times per year and met at seminars and meetings. They were both activists in the party. The symposiums were in Donetsk for 1 or 2 days, 3 or 4 times per year. They also communicated outside the meeting. Asked for the purpose of the seminar sessions she said that it was [professional development]. Asked if they met at any other times, she said for Maidan they participated in the meetings for the PR like demonstrations for holidays such as Independence Day they would represent their party and the applicant stayed at her place. They would stand in peaceful demonstrations representing the party. They were active members of the party. They did not hold duties in the party, they had no authorities..

13. Asked since the 2014 war and the PR been banned asked if she has suffered any harm, she responded that she was holding the same ideals in Kramatorsk people have to hide their affiliations. Asked if she herself suffered any harm for her membership of the party she said that she cannot enter Ukraine or that reason she cannot say as would be harmed. At the moment Republic of Donetsk, it is unrecognised territory. Asked if Donetsk is part of Ukraine or the separatist. She said they are under separatists. She said that she would not like to be classified as separatists. Donetsk is not under Ukraine government. They have their own government and banking system. She was last in Kramatorsk before the war in about 2013. Asked how she knows what is going on in Kramatorsk she said that they have internet and friends who live there. She is personally aware how former PR members are treated in Kramatorsk as she has friends, she said people cannot enter Ukraine for 6 years.  Asked what happened to PR politicians and if they joined other parties, she said that the majority left Ukraine. Put that many joined the opposition parties, she said they formed an opposition party, it is called For Life and there is only a few members. Asked if there was another person there assisting her to answer questions and she said she asked her husband, but she is no longer interested in politics. She is a member of a new party. Asked about her comments about people in a prison who were imprisoned she said some of them were members of PR, asked where she got that information from, she said that there were people with that news on the internet. Put that she has read these things on the internet, but she is not aware of these things personally. She said that they have a war going on and she has witnessed children being bombed. She has said she heard their testimonies who were tortured and part of prisoner exchange program. The advisor did not wish to ask the witness any questions.

14. It was put to the applicant that the prison referred to by the applicant in Mariupol closed in 2013. The applicant responded that only in July 2019 did they discover prisoner activity, it was put she was not from Mariupol. She said she was from Kramatorsk.

15. The Tribunal attempted to again call [Witness A], but a message was received again, “this type of call cannot be setup”. The Tribunal asked if the adviser if he wished to rely on the statement made to the Tribunal, and he responded that the 2^nd hearing was to call the witness, it is an opportunity for procedural fairness. I asked him if the Tribunal cannot connect to the witness what can the Tribunal do. The advisor said the witness is not taking the call and there is some issues in technology from the Tribunal’s end. I put that the Tribunal has tried on both a landline and a mobile phone unsucessfully. The advisor said the applicant has called from her mobile phone and it seems her call has connected. I asked the adviser as he has provided a statement from the witness if he wished to rely on that statement, the advisor did not wish to do so. The applicant volunteered that her call was via WhatsApp.

16. Put to the applicant that the President of Ukraine is an ethnic Ukrainian and Russian speaking. She responded that he is Jewish and can speak Ukrainian but not well enough. It was put he is like her ie he is of the same background so why would she be persecuted. She said yes. Asked why she would be persecuted and harmed by the government if the President is of the same background. She responded that he is so controlled, if he moves toward the left or right. Crimea had water interruptions and he mentioned it in Parliament then Ukrainian nationalists burnt fires in front of the palace claiming he was not representing Ukrainian interests. It was put that the independent reports indicate there have been attacks on journalists activists minority groups but she does not belong to those groups and she is an ethnic Ukrainian.  I put that like most people of her age who had lived in Russian speaking cities Russian speaking ethnic Ukrainians were not singled out for harm. She said she lived in small town of Kramatorsk, she was a member of CP for 16 years and then member of PR and she has been awarded a few medals. Many people know her in the town. All party members know her for 44 years. In her city she was an active member and after Kramatorsk was freed, 20% of [specified buildings] had been destroyed and [co-workers] in her [workplace] also travelled to Donetsk and they quit their jobs. They advocated for the government not to lose ties with Russia and they believe that Yanukovych was unfairly dismissed. Asked her again when the [co-workers] in her [workplace] were persecuted, she responded that after the town was restored the separatists were dobbed in.

17. It was put to the applicant that she was talking over the interpreter, she was not giving the interpreter the opportunity to tell the Tribunal what she was saying. 

18. Referring to her claim that in September to November 2014 the issue with the [Occupation 1s] occurred, it was put to her she was not in Kramatorsk. She agreed she was in Australia and she said she was thinking of going back. She was an active member at the time.

19. Put to her that she had said [Occupation 1s] in [her workplace] were persecution from September to November 2014 and she was asked what happened to them. She said when the town was freed, the army with the police were trying to find out who worked with the separatists. She said this was persecution.

20. Put there is no evidence that Russian speaking Ukrainians or Ukrainian with poor language skills are perceived adversely in the Ukraine.  The applicant responded that it is not just the language as Yanukovych promised there would be bilingualism. It was put that a number of surveys in 2016 and in government-controlled Donbas region found there was no discrimination of Russian speakers in the Ukraine. The applicant responded that it is not to do with language, the people prosecuted were those who took part in demonstrations. The nationalists discriminated against them in shops for not speaking Ukrainian.

21. In regard to [Dr H], she said she visited him once as [Dr E] now only works in hospital and is not seeing patients. It was put [Dr H] stated she was from Donbass. She said that was the region. It was put to her that this report stated she was from Donbass, that her house had been shot at and there were bullet holes in the walls of the house and she did not make this claim in her evidence to the Tribunal.  She said that it was mistranslated, she said it was the house next to her. Poroshenko came in 2015 and he witnessed it.

22. It was put that she claimed that she would be persecuted due to her association with PR. She said Ukrainians think that she has pro-Russian views. It was put that even if she had those views there is no independent evidence to suggest she would be harmed for that reason. She said that it will be clear from her documents when she gets to Kharkov, she will be taken off the train. Asked why, she said because her passport has expired, she has not been there for 6 years and she has not been getting the pension and she will be treated as a traitor for her political affiliation, it is considered a challenge to the Ukrainian government structure. 

23. It was put that PR politicians and high profile activists have gone on to other parties and nothing has happened to them and in 2019 some defunct PR politicians ran in the 2019 elections and some are running in Donetsk and Lugansk regions. It was put that in order to accept that PR members would be harmed in 2020 there needs to be independent evidence and there is no independent evidence to suggest former members of PR suffer harm in Ukraine and Kramatorsk. She responded that they all went to Russia and asked for political asylum. One million 800 000 people went to Poland US etc and more than ½ of PR went to Russia. It was put that some of those that remained ran in an election and ran for Our Land that adopted the PR white and blue branding. She said her friends are just now quiet and not opposing the current regime because refugees are not very well accepted, in Kiev they have gas and electricity disconnected.

24. It was put she could get medical services in the Ukraine, including for her mental health issues. She disagreed. Put the independent evidence indicates that the prison she has provided information about existed until the end of the 2018. She responded only in July 19 in Mariupol she said she is from Kramatorsk.

25. Put to the applicant independent evidence that issues of mental health have been addressed by the authorities, community-based care is available and the whole country is struggling to reach world standards and improve mental health care.  I put that mental health services are available to assist her and others like herself. She responded that those who have not registered are not eligible for that medical health.

26. Put that whilst pensions in Ukraine had been reduced for all its citizens, the applicant is entitled to a pension and there is no suggestion she would not be able to receive it on her return. She said that she does not know where it is, and she does not get it now.  It was put that perhaps because she is in Australia, she is not receiving a pension now. She said she does not know that, people who moved to Crimea were not getting their pensions for a year. I asked if the situation is different in Crimea and she responded that her situation is worse.

27. Put that the Kremlin is offering fast track Russian citizenship to Ukrainians who would like to avail themselves of obtaining a passport from Russia. The applicant said they only do it for those in Donetsk and Lugansk.

28. In regard to Kramatorsk itself, I put that independent evidence indicates that life has returned to normal and the city is being reconstructed. She said it is all propaganda. Independent journalists who did investigations found an ex sniper who confess what happened in Kramatorsk when 77 went missing and there were unidentified bodies.

29. I put that there is a ceasefire and whilst there are occasional ceasefire violations, Kramatorsk is not on the front line and is some 48 kilometres distant from it. She said it is all propaganda. Put that OSCE daily monitoring record ceasefire violations but evidence is that the cease fire is holding. She said that there has not been much coverage lately.

30. It was put that despite tensions relationships between ethnic Russians and Ukrainians are good. The is no evidence of discrimination of ethnic Russians by Ukrainians. She responded that she cannot go to Russia because of her age and health condition. In the west of Ukraine, they do not want people from Donetsk.

31. The Tribunal IT division had made a number of attempts to connect to the phone number provided by the applicant for her witness and were unable to do so. The applicant said she used WhatsAPP to call the witness. The applicant was asked if the witness could go to a landline in order for the Tribunal to call and the applicant said that she did not know.

32. The Tribunal again attempted to call the witness via a Tribunal mobile phone but was advised “sorry this type of call cannot be setup”.

33. The advisor stated he could call the number on his own personal mobile and proceeded to do so. The phone rang but it was not answered. The advisor explained that it was probably because the witness did not recognise his name appearing when the phone rang. I indicated to the adviser that this was not correct, the person on the other end of the phone only sees a mobile number and not a name. The advisor insisted that when he dialled and the phone rang his name was displayed and the witness did not recognise his name and therefore did not answer.  

1. The applicant called [Witness A] using her own phone. She was asked if the Tribunal could connect him that way and the applicant provided her phone. The Tribunal officer connected the applicant’s phone to the Tribunal recording equipment.

2. [Witness A], said that he lives in Moscow and he works in Donetsk, he lives in both places. He is currently in Moscow. Asked about his statement made to the Tribunal and when he met the applicant for the first time, he said it was before the war in Ukraine. It was in early 2000 when they were in PR. Asked if he was related to her he said that he was married to [Relative C]. They met in 90s but in early 2000 in the PR.

3. He said that she was in the pre-election campaign and was an active member [in] Kramatorsk. He knows that because he was responsible for the PR Donetsk branch. Asked if he was an active member, he said that he was one of the leaders. Asked what happened to the party he said that PR is not functional as part of political overhaul in 2014. It is not practically functional since 2014 and its members are actively and criminally prosecuted. It was put that independent evidence indicates that many politicians ended up going to other parties he said yes, they did. But it was not a mass event. I put that many joined other political parties, and some even ran for office in 2019 election under banner of other parties. He said that it was their personal choice and many of them were imprisoned. Asked who was in prison he said one of the leaders was arrested but others who had leadership positions stepped down. Asked about the ones who went to other parties he said that they are under criminal investigation and the situation is unstable and the regime in Ukraine appears to be fascist. Put that was his opinion and he responded that there is lots of information and many members like himself were forced to leave. 

4. Asked about his statement that there is a list of disreputable Ukrainian citizens who do not support nationalist ideology, he said that there was a law in 2014 and all members of PR were asked to step down. It was put that there is no independent evidence of a list of disreputable Ukrainian citizens who do not support nationalist ideology. He responded that if you read the media in 2014, 2015 and 2016 there were thousands of officials fired. Put that he wrote his statement in 2020 and what happened in 2014 and 2015 is different to 2020. He said that there is persecution and some of them had their assets ceased and the reason why they separated was for that reason. It was put that in 2019 former members of PR ran in the elections under Our Land and even adopted blue and white branding of PR for their party. He said that is their personal choice and he is speaking about his own personal view, but he was a witness to those events and criminal prosecutions. It was put that there is a new President, who is an ethnic Ukrainian Russian speaker. He said he is a Jew and speaks Russian Ukrainian and English.

5. Put that the independent evidence does not support his point of view. He said there is a  situation of war in Donetsk and Lugansk region. It was put that there is no evidence Ukrainian government in 2020 is pursuing former members of PR.  He said that he is not sure what is happening but there are ongoing criminal trials against those members.

6. I put to the applicant that I have difficulty with [Witness A’s] statement that she would be charged with a criminal case on Article 110 of Criminal Code of Ukraine as there is no independent evidence to support his claim she would be charged with a criminal case. She said that she did say that Ukraine has been overlooked in global scene because of other events. She said the interpreter did not say that. [Witness B] said that she got the information for people who were part of the prisoner exchange who were brought back from Donetsk to the Ukraine.

7. Put again that there is no reason for her to be arrested during the war.  I agreed that during the war a lot of wrong things happened but that did not mean that in 2020 or 2021 she would suffer harm because these things happened in war during 2014/2015. I put that the independent evidence indicates that in 2014 rebuilding[1] destroyed houses in Kramatorsk began there are educational projects, local volunteer program and in 2019[2], when Zelensky, assumed office, he promptly began replacing everyone in Kramatorsk associated with the previous administration.

   The applicant said that there is still a prisoner exchange underway. The Tribunal agreed that this may have occurred. Put she is able to renew her passport and no reason Ukraine authorities would seek to harm her. She responded that she will not be protected there. Asked why she said that when you cross the border and they see there is something wrong with your passport. There was a man who went missing. The army is in Kramatorsk.

   [1] >

   The applicant has provided a post hearing statutory declaration. In that declaration the applicant claims interpreting errors. These errors were claimed to be inaccurate or incomplete by shortening or simplifying the information. In regard to the [Witness B] the applicant opines that the interpreter omitted phrases important information in relation to the political situation in Ukraine. She states that the omitted information is crucial to her case. She provides an example that [Witness B] stated she is  'not interested in the politics  of Ukraine very much at present,'    and the interpreter translated this phrase to 'not really interested in politics at the moment.' She submits that this clearly changed the definition of the oral evidence provided by the witness.  She also states that [Witness B], had stated that she acquired information in relation to torture being used in prisons in Mariupol from 'news from the internet and people had confirmed it' but [Witness B] stated "There is news on the Internet, our Donetsk GUPA. There are people who were returning on prisoner exchange and confirmed this information on camera on TV. All of this is known". The interpreter did not ask what GUPA means.

8. In regard to witness [Witness A] the applicant opines that he was told to form shorter sentences, asks him to repeat what he had just said in parts which he begins to do and prior to allowing him to finish, she interrupts him, fails to translate what was said in its entirety in relation to important information on the treatment of members of the Party of Regions being persecuted and imprisoned. Further his opinion that former members of the Party of Regions who have joined other parties are under criminal investigation is derived from open sources and statistics.

9. The applicant also claims that she had stated that Kramatorsk has its own prisons, she had referred to a former opposition leader whose surname is "Strelkov,", not a sniper,

10. She further states that:

    ·Towards the end of my hearing, I was asked to provide and utilise my phone to attempt to contact one of my witnesses via the WhatsApp application. I was not advised of the confidentiality implications of utilising my phone or WhatsApp in contacting my witness. I believe the Tribunal should have enlightened me as to any confidentiality issues that may arise as a result of my use of WhatsApp and my phone in making contact with my witness. Additionally, I state that it is the Tribunal's obligation to facilitate to mode in which to acquire information from witnesses and not mine.

11. She further stated that the current President of Ukraine is Jewish. He promotes himself as a Ukrainian patriot and nationalist. As a result of that, he supports and condones the activities of Ukrainian extremists who continue to attack ethnic Russians or anyone who is perceived as pro-Russian supporters. As a result, the government led by Mr Volodymyr Zelensky actively and passively supports that Ukrainian ultra-nationalists. In my case, I am Russian and people perceive me as Russian and it should be further noted that I cannot speak the Ukrainian language.

12. The applicant has drawn to the Tribunal’s attention her personal circumstances:

    Due to age and COVID-19, there are practical difficulties for her to relocate to another part of Ukraine.

    She does not have a valid passport, she will be identified as a failed asylum seeker who provided adverse information about the human rights situation in Ukraine.

    She unable to speak the native Ukrainian and only speaks Russian. As a result  of  this  and  her political  affiliations,  she is  perceived  to  be  of  Russian nationality  and  will  be  particularly  targeted  and  harmed  as  a  result  of her outlined circumstances cumulatively.

13. The applicant provided extracts from The Human Rights Situation in Ukraine, Report of the Ministry of Foreign Affairs of the Russian Federation Moscow 2020, and submitted that

    ·The human rights situation in Ukraine continues to degrade.

    ·Discrimination against ethnic minorities is also underway in the areas of education and language.

    ·Human rights defenders have recorded dozens of cases of intolerance and/or aggression in Ukraine against persons belonging to minorities or holding alternative political views.

    ·An integral part of the official Kyiv's policy towards national minorities - forced Ukrainization - is discrimination against a significant part of the population on the basis of language, including major violations of the rights of the Russian-speaking community.

    ·The right to liberty and security of person is not guaranteed in Ukraine.

    ·Torture and violence by law enforcement officers and the SBU against detainees have a systemic nature and are commonly characterized by impunity.

    ·The Ukrainian authorities limit the rights of internally displaced persons and the Russian-speaking population.

    ·Restrictions imposed by the Kyiv authorities, including those of a legal nature, create extremely unfavourable conditions for residents of the non­ controlled territories in the south-east and impede the payment of pensions to them.

    REASONS AND FINDINGS

14. On the basis of copies of identity documents in the Department file, including a Ukrainian passport, I accept that the applicant is a national of the Ukraine and is not a national or citizen of any other country or has a right to enter and reside in any country other than Ukraine. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Ukraine is the applicant's “receiving country” for the purposes of s.36(2)(aa).

15. The Tribunal discussed with applicant Disclosure Certificates pursuant to s.438 of the Act. It referred to the following information:

    ·Page 120 – PVA validity check

    ·Page 123– an identification check list

    ·Page 221 a Disclosure Decision Checklist dated 9 March 2016 stating there were no s.437 or s.438 documents on file.

16. As the certificate stated that disclosure of the information would be contrary to public interest because the documents related to internal working documents and business affairs, I find the certificate invalid. I disclosed the contents of the documents to the applicant and I advised her that they were not relevant to the application because the documents were internal checklists. These documents are procedural, contained no information of relevance to the application before me and I place no weight on them.

17. The applicant requested that the Tribunal speak with her two witnesses. One was in Ukraine and the other was in Russia. Despite its best endeavours the Tribunal was unable to call [Witness A] via his mobile phone number, despite repeated attempts to do so. The applicant advised the Tribunal that she was able to communicate with him and proceeded to do so during the hearing via WhatsApp, an internet based connection. The Tribunal was then able, with the assistance of its IT staff and with the applicant providing her telephone, and using her personal WhatsApp address, to connect to her witness [Witness A].

18. The applicant opined in a post hearing submission as follows:

    “Towards the end of my hearing, I was asked to provide and utilise my phone to attempt to contact one of my witnesses via the WhatsApp application. I was not advised of the confidentiality implications of utilising my phone or WhatsApp in contacting my witness. I believe the Tribunal should have enlightened me as to any confidentiality issues that may arise as a result of my use of WhatsApp and my phone in making contact with my witness. I state that it is the Tribunal’s obligation to facilitate the mode in which to acquire information from witnesses and not mine”.

19. I note that applicant’s advisor was asked, when the Tribunal was unable to contact the applicant’s [Witness A] if the applicant would rely on the written statement of the witness. He insisted that [Witness A] be called. A number of attempts were made to contact [Witness A] via the Tribunal’s landline and a mobile phone but these were unsuccessful. The adviser suggested the Tribunal was at fault not being able to connect to [Witness A]. The adviser rang [Witness A] using his own mobile phone and when [Witness A] did not respond said that it was because [Witness A] did not recognise his name as the caller. I pointed out to the adviser that only his mobile phone number would appear on [Witness A’s] mobile phone but he disputed that stating his name and not his number was registered on the receiver’s mobile phones. I formed the view that the only method of communicating with [Witness A] that day, as was requested by the applicant and her adviser, was to use the applicant’s WhatsApp phone call. WhatsApp is a system that requires calls from individually registered users to individually registered users. To the best my knowledge and belief, the Tribunal does not have a WhatsApp address. Neither the applicant nor her advisor objected at the hearing, to using the applicant’s phone and using the applicant’s WhatsApp address to contact [Witness A], whose WhatsApp address was confidential to the applicant. The Tribunal has no record of that address.

20. WhatsApp Calling states[3] that the App

    lets you talk to your friends and family, even if they're in another country. Just like your messages, WhatsApp calls are end-to-end encrypted so WhatsApp and third parties can't listen to them. 

    [3] >

    I note that Australia has enacted legislation in 2018 compelling encrypted communication providers, like WhatsApp, to hand over messages if users are under investigation for serious crimes[4]. The applicant does not claim to be one of those persons. I am therefore satisfied that WhatsApp encryption creates as confidential an environment for an international call as a landline or a mobile because both landline and mobile phones can be phone spoofed or hacked [5]. I am satisfied that the only method of communicating that was possible with the witness [Witness A] was via WhatsApp and this conversation was recorded by the Tribunal. Neither the advisor nor the applicant suggested any other alternative. I am satisfied that confidentiality was maintained.

    [4]

    [5]

21. I note that 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 be possibly true (see MIMA v Rajalingam (1999) 93 FCR 220). However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that that the particular assertion by an applicant has not been made out (see, Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

22. I have considered the applicant’s medical reports of 2017 and 2019 by [Dr E]. The applicant requested that the Tribunal interview her doctor, in her hearing response for the Tribunal’s first hearing. The Tribunal had to adjourn that hearing that day for a further hearing date. When the second Tribunal hearing was held, delayed partly due to COVID19 restrictions, the applicant’s hearing response did not seek [Dr E] be called to give evidence at the second Tribunal hearing. Nor was a request made at the second hearing.  I note that the applicant advised the Tribunal that [Dr E] now worked in a hospital.

23. The applicant’s psychiatrist, [Dr E], concluded that the applicant presented with Major Depressive Disorder, with Melancholic Features, Severe (DSM-5) and Post-Traumatic Stress Disorder (DSM-5). Her mental health issues are maintained by serious psychosocial issues including uncertainty of her residency status in Australia and the horror of returning back to Ukraine where she will be at risk of being killed, persecuted and tortured. She denied current acute risk issues and reported no substance or alcohol use problems. The applicant’s psychiatrist does not report that the applicant has been prescribed medications or that she has issues of memory loss or an inability to recall or account events. I do not accept that the psychiatrist has any personal knowledge of the applicant's circumstances, apart from what has been presented to her by the applicant. Therefore, whilst I accept that the applicant has various psychiatric issues, I place no weight on these reports by [Dr E] in my assessment of what has happened to the applicant when she lived in Ukraine.

24. In regard to the medical report from psychiatrist [Dr H] dated 16 August 2020 he opines that the applicant’s house had been shot at and there were bullet holes in the walls of the house and former pupils were killed.  The applicant did not make this claim in her evidence to the Tribunal and when put to the applicant at second Tribunal hearing, she said that it was interpreting mistakes. I accept that the applicant suffers PTSD and Major Depression. [Dr H] states her significant mental health issues are controlled by medication and being in a very good relationship. I note that whilst [Dr H] states that the applicant’s concentration and short-term memory are affected, he does not state that the applicant is unable to remember crucial aspects of her circumstances or her former experiences. As the applicant claims there are interpreting mistakes made during her interview with [Dr H], I place little weight on his report.

25. At both Tribunal hearings, the applicant give evidence without hesitation and did not claim that she could not remember.  I am satisfied that the applicant was competent to give evidence during both hearings. Further she has been assisted by an experienced migration agent to present her claims to the Tribunal. The applicant's representative has not submitted that the applicant has been unable to provide instructions in relation to her claims.

26. The applicant opines in a submission dated 15 September 2020 that  at multiple points in the second Tribunal hearing, the interpreter failed to interpret fully what was said by either herself or her witness and would shorten or simplify the information provided to the Tribunal member. She claims she was not afforded procedural fairness.

27. In regard to witness [Witness A], the applicant opines that [Witness A] was told to form shorter sentences, asked to repeat what he had just said in parts which he begins to do and prior to allowing him to finish, the interpreter interrupted him, failed to translate what was said in its entirety in relation to important information on the treatment of members of the Party of Regions being persecuted and imprisoned. Further his opinion that former members of the Party of Regions who have joined other parties are under criminal investigation is derived from open sources and statistics.  The applicant does not provide detailed information about exactly what was omitted. The applicant was given the opportunity to provide post hearing submissions and no further statements etc were received from this witness.

Ethnic Russians  are by far the largest ethnic minority in Ukraine, constituting almost one fifth of the population. In light of the conflict between pro-Russian separatists and the Ukrainian state in the Donbass region of eastern Ukraine, the Equal Rights Trust sought evidence of discrimination against this group, in order to establish whether discrimination was a factor in creating or perpetuating the conflict. Interviews conducted for the report, together with research undertaken by other independent actors, found that relations between ethnic Russians and the majority were historically good, and remained good at the personal level even as the war raged in the east. While there were grievances among  ethnic Russians  in the east and south prior to the conflict of 2013–2014, these did not appear to have been based on ethnicity per se. Rather than ethnicity, the dividing factor seems to have been political opinion: divergent geopolitical orientations to Russia and to the West and the related language preference among otherwise bilingual populations have been both the cause and the consequence of the armed conflict.

The report of the Equal Rights Trust also stated that there was 'no evidence of discrimination against  ethnic Russians  on the basis of ethnicity' and 'no experience of any hostility at the personal level', although it was noted that 'the conflict had increased the tension between the two previously hardly distinguishable groups' (i.e.  ethnic Russians  and Ukrainians):

178.   The testimonies collected by the Equal Rights Trust in April 2015 suggest that while there was no evidence of discrimination against  ethnic Russians  on the basis of ethnicity, and while there has been no experience of any hostility at the personal level, the conflict has forced Russians in Ukraine to clarify and determine their belonging in an Ukrainian state, not as a “national minority” but as a constituent of the Ukrainian political nation which has always been characterised by the presence of Russian language and culture.

179.   Reports from US State Department Report, Human Rights Watch and Freedom House provided by the applicant do not suggest that ethnic Russians or Russian speaking Ukrainians are a minority in Ukraine.

180.   The applicant claims that Ukrainian authorities limit the rights of internally displaced persons and the Russian-speaking population. The applicant is not an internally displaced person as she resided in Kramatorsk, it is in a government controlled area and the applicant’s apartment was not shelled or demolished.

181.   According to Article 46 of Ukraine’s Constitution, citizens have the right to social welfare, including the right to decent treatment in their old age. “The right of Ukrainian citizens to pensions is also enshrined in the country’s law ‘on Universal State Pension Provision[42]”. I have found no independent evidence to suggest that the applicant, an ethnic Ukrainian or a Russian speaking ethnic Ukrainian, would be refused a pension on her return to Ukraine.

[42]  The applicant claims that restrictions imposed by the Kyiv authorities, including those of a legal nature, create extremely unfavourable conditions for residents of the non­ controlled territories in the south-east and impede the payment of pensions to them.  I accept that in the separatist areas there are unfavourable conditions and evidence suggest residents in those areas have had pension payments impeded. The applicant is not from the separatist area but from Kramatorsk. It is controlled by the Ukrainian state. 

183.   I do not accept that the applicant would suffer serious or significant harm on her return to Ukraine because she may not be able to obtain employment as a [Occupation 1] on her return. I accept that she may not be able to obtain unemployment benefits. The evidence before me is that the applicant is [age] years old and officially a pensioner.  She stated that she is entitled to a pension, at the moment, but she is not getting one as it was blocked.  Asked if this occurred because she is out of country, she said maybe something like that. I accept that the rights of older Ukrainians living in the nongovernment-controlled areas of Donetsk and Luhansk regions, suffer from discriminatory policies and practices that affect the way they can access and collect their pensions[43]. The applicant is not from that region. I have found no independent evidence to suggest that ethnic Russian speaking Ukrainian returnees from abroad or former members of PR and CP Soviet are not entitled to access their pension when they reside on the territory of the Ukraine. I am of the view were it the situation it would be reported in independent sources. I am satisfied that the applicant is entitled to a pension on her return to the Ukraine.

[43]

184.   The applicant claims that she faces financial hardship if she returns to Ukraine because she has minimal savings which she managed to withdraw in August whilst in Australia before her card was blocked. As the applicant has obtained her money, I do not accept that she will suffer harm for withdrawing her money. I do not accept that having minimal savings or withdrawing those savings amounts to serious harm or significant harm. Therefore, I find remote the chance the applicant will face greater financial hardship if she returns to Ukraine because she has minimal savings and/or because she is officially a pensioner.

185.   As for her claim that she will be persecuted because she was away for 5 years and also because her passport has expired, I accept that she may have to reapply for a passport but I do not accept as plausible that because she has been abroad for 5 years and needs to renew her passport that she will suffer either serious or significant harm. Nor do I accept that because her passport has expired the authorities would be aware she applied for a PV and has criticised the Ukrainian government. PV applications are confidential and I have no independent evidence before me to suggest that the Ukrainian government is willing or able to access Australian government confidential records. I reject her claim.

186.   In regard to her claim that she recently saw a demonstration on Television regarding right radicals rallying before a tv channel, I note that 112 Television reports[44] as follows;

[44] rally under 112 Ukraine TV channel in July 2019 ended with a grenade launcher firing at the building. It is a good thing that no one was hurt. This is a terrorist attack in the center of the capital, which was condemned even by the OSCE. At the same time, there are still no results of an investigation by law enforcement agencies, or punishment of those responsible.

The Ukrainian authorities, with the help of the administrative resource - the National TV Council and even the Security Service of Ukraine - tried to influence the editorial policy of the TV channel, the attempts are being made to take the channel away from its legal owner.

187.   The applicant claims that there is growing far right nationalism in Ukraine and people who are perceived as pro Russia face serious harm in Ukraine. I do not accept that former members of PR some 6 years after their membership has ceased or CP Soviet members some 28 years after their membership has ceased, are perceived as pro-Russian. Nor do I accept that ethnic Russian speaking Ukrainians, such as the applicant or the President, are perceived as pro-Russian and anti-Ukrainian and face serious harm for that reason. The applicant has claimed that the President promotes himself as a Ukrainian patriot and nationalist. Therefore I do not accept that all Russian speaking ethnic Ukrainians are perceived to be pro-Russian.

188.   I do not accept that the applicant would face threats from radical nationalistic groups in Ukraine or that local police would not be willing to help in the region in which she resides. Nor do I accept that the rise of radicalism has affected the applicant’s religion. The applicant has made no claims in regard to her religion. I have no independent evidence before me to suggest that there have any attacks by radical groups in Kramatorsk nor attacks on any religious groups in Kramatorsk. 

189.   I note that defunct PR politicians sought election in the snap election called in 2019. An article in Open Democracy[45] of 19 July 2019 stated:

[45] what’s notable in Donetsk and Luhansk regions is how hard former politicians from the now defunct Party of Regions – once the most powerful political force in Ukraine - are fighting one another. The electoral battle in Donetsk and Luhansk regions is being fought by former members of the Party of Regions. And Luhansk human rights activists Konstantin Reyutsky, Ivetta Kuzmina and Yevhenii Vasyliev have gone to the polls to try and stop the “Regionals” from winning their constituencies.

The most prominent former “Regionals” formed several separate political parties and parliamentary groupings. Most of them, including Our Land, adopted the Party of Region’s white-and-blue branding in an obvious claim to the party’s electoral heritage.

190.   I do not accept that the applicant will be questioned on her return as I do not accept that the applicant had an adverse political profile when she left Ukraine and I have not found any independent evidence to suggest that ethnic Russian speaking Ukrainians who are former members of CP Soviet or PR are questioned on their return to Ukraine. Whilst I accept that there has been a rise of the right wing in Ukraine under President Poroschenko, I note that the new President Zelensky has been elected on a platform of promised widescale reforms during his election campaign last year, which aimed to battle widespread corruption, increase transparency, reduce oligarchic influence, and improve the economy in Ukraine overall[46].  I also note that in the 2019 Ukrainian parliamentary election[47] all major Ukrainian right-wing parties formed a nationwide united party list with the political parties Svoboda, National Corps, the Governmental Initiative of Yarosh, and the Right Sector. However, the resulting coalition only managed to win 2.15% of the popular vote, and since the coalition failed to pass the 5% threshold it gained no parliamentary seats. No far-right parties gained seats in the Verkhovna Rada (Ukraine's parliament), as they all failed to win any single-mandate constituency seat.

[46]  I accept that after the hostilities ceased in Kramatorsk there remained unexploded shells or mines, and that the water supply has been interrupted several times during the conflict and there are gas shortages in winter.  The UNHCR[48] states that a team of demining experts from British demining charity the HALO Trust are demining in Ukraine. The most severely mined areas are those near the contact line, where civilians often risk stepping on landmines. The HALO Trust is helping to clear these landmines, as part of a broader humanitarian mine action response, coordinated under the Protection Cluster, led by UNHCR.  The HALO Trust works alongside two other organisations[49] - the Swiss Foundation for Mine Action and the Danish Demining Group - it works under the approval of the Ukrainian government and is financially supported by a number of European Union countries: Germany, Norway, Finland, the Netherlands, Belgium, the United Kingdom, the Czech Republic as well as the US State Department.

[48] have now established that there are 200 minefields across the Luhansk and Donetsk region, and there are obviously much more than that. The security situation prevents us from accessing the densest contaminated areas along the line of contact,” says HALO Trust regional director for Europe Nick Smart in an interview. Nevertheless, he continues, “We have been successful recently in accessing the 15 kilometre buffer zone from the line of contact. We are getting into highest impacted communities along those areas.”[50]

[50]  The applicant lived in Kramatorsk. Kyiv Post in 2017 reports[51]:

[51]

KRAMATORSK, SLOVIANSK – The life in Kramatorsk and Sloviansk, two cities in Donetsk Oblast some 540 kilometers southeast of Kyiv, seems very similar to that in any other place in Ukraine: People stroll through the streets, relax near the fountains in the city center, go to the parks, cafes, and movie theaters.

Although the two neighbouring cities are located just 80 kilometers from the front lines of Russia’s war on Ukraine in the Donbas, people who the Kyiv Post journalists interviewed said they felt safe there.

There has been no fighting since July 2014, when the Ukrainian army liberated both cities from occupation by the Russian-led separatist militants. Since then, local authorities and international organizations partly repaired roads, reconstructed public parks and built new playgrounds.

One of the inconveniences brought by the war is the cafes and shops in both cities becoming more pricy after Kramatorsk became the new administrative center of Donetsk Oblast, replacing Donetsk that has been occupied by the Russian-separatist militants. The arriving of many employees of international organizations and internally displaced people influenced the

193.   As I do not accept that the applicant had an adverse profile or was perceived to have an adverse profile when she lived in the Ukraine or that she expressed any opinions about the structure of the Ukraine or that her imputed political opinion was directly against the structure of Ukraine I do not accept that the applicant would not be able to get effective protection from the authorities. I do not accept that due to her age or mental health or being a former divorced now remarried, unemployed woman, who is a pensioner, that she would suffer serious or significant harm.

194.   I accept that around the time that the applicant went to [Country 1] [when in Australia July 2014] she was following the situation, a lot of people disappeared and people were detained by SBU and one of her [acquaintance]’s fathers, who owned the [a specified] building was taken to [Town 2]. Ukraine has now signed an agreement with pro-Russia separatists allowing for local elections to be held in separatist-controlled territory in eastern Ukraine. It could pave the way for further peace talks[52].  As the applicant had no adverse political profile when she left the Ukraine, I do not accept that she would suffer serious or significant harm on her return to Ukraine. Objectively the applicant’s fear is not well-founded and does not amount to a real risk. 

[52]

195.   I accept that the applicant does not have any relatives living in Ukraine, but the evidence before me does not suggest that she had relatives in the Ukraine prior to her departure. Her [Relative C] is in Australia and her [Relative D] has arrived in Australia from Russia. I am of the view that the applicant seeks to remain in Australia in order to remain with her family in Australia and her husband who she married in 2020.

196.   I do not accept that the applicant will be perceived to be an ethnic Ukrainian holding a political opinion supporting pro-Russian political opinion and anti-Ukrainian political opinion because she was asked to resign from her job, or because she attended Soviet Union CP meetings and activities, or her inability to fluently speak Ukrainian and her good knowledge of the Russian language. I therefore do not accept that the authorities and the Ukrainian nationalists may form the view that she is against Ukrainian nationalism and support Russian nationalism and support pro-Russian nationalist activities in Ukraine or that they would consider her as a traitor of Ukraine or she would be considered to have a political opinion which challenges the structure of the Ukrainian state.

197.   The applicant opines that the human rights situation in Ukraine continues to degrade, the right to liberty and security of person is not guaranteed in Ukraine, torture and violence by law enforcement officers and the SBU against detainees have a systemic nature and are commonly characterized by impunity.

198.   The US State Department Report Human Rights Practices whilst acknowledging the human rights situation and especially in the Crimea, the applicant is not from Crimea, stated that the Organization for Security and Co-operation in Europe (OSCE) and the Council of Europe’s Parliamentary Assembly (PACE) found the presidential election competitive and featuring a high turnout. Ukraine and the European Union discussed ways to protect the rights of internally displaced persons (IDPs), including de-linking of pension payments from IDP status. Other topics included the rights of LGBT persons and ethnic, linguistic, religious, and national minorities, the need to investigate attacks against civil society and the media, as well as the need to take into account the Venice Commission opinion on the draft law on the use of state language.

A resolution on Ukraine adopted at the 41st session of the United Nations Human Rights Council (HRC) recognized the need for ongoing reporting on human rights issues and invited the High Commissioner for Human Rights to continue to update the HRC. In its September report, the UN Office of the High Commissioner for Human Rights welcomed the decline in civilian casualties and called attention to the impact of the conflict on people living along both sides of the contact line and the lack of protection for media and civil society. The UN called on Ukraine to “reduce the impact on civilians” and to “prevent, stop and condemn all acts of violence” against media professionals and activists.

In 2016, Ukraine’s parliament amended article 124 of the constitution, removing a constitutional barrier to ratification of the Rome Statute as of June 2019.

Although Ukraine is not a member of the International Criminal Court (ICC), it accepted the court’s jurisdiction over alleged crimes committed on its territory since November 2013. The ICC prosecutor’s preliminary examination as to whether it should open an investigation into abuses committed during the armed conflict is merited remained ongoing.

199.   I am satisfied the applicant did not suffer any harm in Ukraine and I am satisfied that the applicant does not have a profile that would cause her to be of any interest to the authorities in Ukraine. Therefore I am not satisfied that the authorities will detain or persecute her or harm her on her return to Ukraine.

200.   I find that the applicant does not have a real chance that, if returned to Ukraine, she would suffer persecution for reasons of her race, religion, nationality, membership of a particular social group or political opinion. I find that the applicant does not have a well-founded fear of persecution for these reasons.

201.   I am required to consider if the applicant will suffer significant harm on her return to the Ukraine.

202.   The applicant is an ethnic Russian speaking Ukrainian from Kramatorsk. She does not speak or write Ukrainian well. She is a retired [Occupation 1] and a former member of CP Soviet and PR. She did not suffer any harm when she resided in Ukraine. She has psychiatric problems but the independent evidence, cited above, indicates that she is able to access medical assistance and I am satisfied that medical assistance is available to her.

203.   According to Human Rights Watch Report World Report 2020 – Ukraine hostilities in eastern Ukraine entered their sixth year and continued to put civilians’ lives and well-being at risk, even as absolute numbers of civilian casualties dropped.  The applicant is not from an area where there are hostilities. She is not an IDP. In 2019, environment for media in Ukraine remained unsafe.  The applicant is not a journalist. Violence by far-right groups continued against minorities. The applicant is an ethnic Ukrainian

204.   The applicant claims that she is perceived to be pro-Russian because she does not speak and write or read Ukrainian well. It is noted that President Volodymyr Zelensky is an ethnic Russian speaking Ukrainian[53]. The applicant and her witness [Witness A] opine that the President is Jewish and that he promotes himself as a Ukrainian patriot and nationalist. As a result of that, he supports and condones the activities of Ukrainian extremists who continue to attack ethnic Russians or anyone who is perceived as pro-Russian supporters. As a result, the government led by Volodymyr Zelensky actively and passively support Ukrainian ultra-nationalists. I note that after taking office[54], President Volodymyr Zelensky demonstrated commitment to carrying out anti-corruption reform and ending the armed conflict with Russia. I have no independent evidence before me to support the applicant’s claim that Ukrainian extremists attack former CP Soviet members or PR members or that Ukrainian extremists perceive Russian speaking Ukrainians to be pro-Russian and attack them for that reason. The independent evidence before me, US State Human Rights Reports, UK Home Office Reports, Amnesty International, Human Rights Watch, Freedom House do not suggest that ethnic Russians or Russian speaking ethnic Ukrainians are harmed by state or non-state actors.

[53] ttps://

205.   The applicant, who has remarried in Australia to an Australian citizen, has psychiatric problems. I note that I have found that the applicant is able to access medical care in Ukraine.

206.   I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Ukraine, there is a real risk that the applicant will suffer significant harm.

207.   I do not accept on the evidence before me, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ukraine, there is a real risk that the applicant will be arbitrarily deprived of life, that the death penalty will be carried out on the applicant, that the applicant will be subjected to torture, that the applicant will be subjected to cruel or inhuman treatment or punishment or that the applicant will be subjected to degrading treatment or punishment.

208.   Accordingly, I find that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.

Conclusion

209.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

210.   Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

211.   There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

212.   The Tribunal affirms the decision not to grant the applicant a Protection visa.

Lilly Mojsin
Member

Annexure A

RELEVANT LAW

213. 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

214.   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).

215.   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.

216.   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.

217.   There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

218.   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.

219.   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.

220.   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.

221.   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.

222.   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.

223.   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

224.   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’).

225.   ‘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. [

226.   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

227.   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.