1604622 (Refugee) - [2020] AATA 4865

1604622 (Refugee) [2020] AATA 4865 (22 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1604622
COUNTRY OF REFERENCE:                   Ukraine
MEMBER:Lilly Mojsin
DATE:22 October 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 22 October 2020 at 5:35 pm
CATCHWORDS
REFUGEE – protection visa – Ukraine – political opinion – Euromaidan protests – 2014 Odessa clashes – overheard a conversation between a policeman and a politician – burning of the Trade Union Building – forced to change her statement on what she had witnessed – credibility concerns – inconsistencies with independent evidence – left country legally – delay in leaving country – ease of obtaining fraudulent documents – general security situation in Ukraine – particular social group – cancer sufferer or cancer survivor – complementary protection – ‘arbitrary deprivation of life’ – inadequacies of Ukraine health care system – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MZAAJ v Minister for Immigration and Anor [2015] FCCA 141
SZDSD v Minister for Immigration and Anor [2018] FCCA 1029
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa [PVA] under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Ukraine applied for the visa on 3 September 2014 and the delegate refused to grant the visa on 15 March 2016. The applicant appealed that decision to this Tribunal, annexing a copy of the Department decision to her application.
The applicant appeared before the Tribunal on 15 May 2019 to give evidence and present arguments. The Tribunal conducted a further hearing on 3 September 2020. The hearing held on 3 September 2020 was held, during COVID, at the Tribunal premises. The hearing was held via video on Tribunal premises in order to ensure COVID safe practices were followed.
The Tribunal also received oral evidence from [Ms A], the applicant‘s daughter.
The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] AATA 4865
Decision Date: 22 October 2020

CaseChat Overview and Summary

This case concerned an application for a protection visa by a Ukrainian national. The applicant claimed to have witnessed a conversation between a senior police officer, identified as Mr B, and a politician, Mr C, during the 2014 Odessa clashes. She alleged that Mr B was instructed to proceed to the Trade Union Building and that subsequently, she was pressured by authorities to alter her statement, received threats, and was eventually attacked, leading her to flee Ukraine. The applicant sought protection on the grounds of Convention refugee status and complementary protection.

The primary legal issues before the court were whether the applicant had a well-founded fear of persecution for a Convention reason, specifically political opinion, and whether she would suffer significant harm if returned to Ukraine, thereby entitling her to complementary protection. This involved assessing the applicant's credibility, the plausibility of her account in light of independent evidence concerning the events of May 2, 2014, in Odessa, and the general security and human rights situation in Ukraine. The court also considered whether the applicant's status as a cancer sufferer or survivor constituted membership of a particular social group for the purposes of Convention protection, and whether the inadequacies of the Ukrainian healthcare system amounted to significant harm under the complementary protection provisions.

The court found that the applicant was not a witness of truth. It placed significant weight on inconsistencies between her account and independent evidence regarding the location of Mr B and the timing of events, concluding that her claims of overhearing conversations and subsequent threats were not plausible. The court determined that the applicant had not established a well-founded fear of persecution for a Convention reason, nor had she demonstrated substantial grounds for believing she would suffer significant harm if returned to Ukraine. The court noted that while the Ukrainian healthcare system faced challenges, these were general issues affecting the population and did not constitute intentional state action or omission amounting to arbitrary deprivation of life or cruel, inhuman, or degrading treatment. The court was satisfied that the applicant left Ukraine legally and that her claims were fabricated to obtain a visa, with her actual motivation for travel being to visit her Australian son.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Protection visa, finding that she did not satisfy the requirements of either the refugee criterion under s.36(2)(a) or the complementary protection criterion under s.36(2)(aa) of the Migration Act 1958 (Cth).

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.CONSIDERATION OF CLAIMS AND EVIDENCE In her PVA, the applicant claimed that ·She overheard a conversation between [a member] of the Odessa police [Mr B] and [an office bearer] of [Political Party 1] [Mr C] during clashes on May 2, 2014, on Grecheskaya Street. [Mr B] instructed two people to head to the House of Trade Unions after talking on a phone. He said that this is an order of the [Mr C].·On May 6, 2014, she heard an interview with Vladimir Nemirovsky, a former governor of Odessa region. He said that the tragic events in Odessa on 2 May 2014 were organized by Oleksandr Dubovoy.·[In] May 2014, 3 days later, she was asked to go to the police station because they had several questions about her statement. ·[In] May 2014, the applicant went to the police station and [a high ranking officer] demanded she change her statement because it would compromise [Mr C]. The applicant refused to comply with his demand.·She received several anonymous phone calls demanding she change her statement.·[In] May 2014 the applicant went to the Prosecutor’s Office to seek assistance. She told them the police tried to force her to change her statement and that she had been receiving threatening phone calls.·Her daughter also received a threatening phone call on that day saying she must persuade her mother to change her statement or their whole family would suffer. Her son-in-law was taken to prison after he complained to the Prosecutor’s Office.·The applicant sought help from [Mr D] who gave her the phone number of his lawyer, [Mr E], who agreed to help her.·[In] June 2014, whilst in the Prosecutor’s Office she was threatened with having a false charge laid against her if she did not change her statement. An officer in the Prosecutor’s office also threatened her son-in-law and her grandson so the applicant changed her statement.·On 6 June 2014 [Mr E]’s lawyer called her and invited her to his office where he told her he could protect her and her family.·[In] June 2014 the applicant was attacked by an unknown person with a knife outside her home because she “appealed to [Mr D]”. She was injured and received 3 stitches.·On the same day she and her daughter and grandchildren moved to Kharkov. The applicant’s son-in-law was living there after she had helped him escape from the [government agency].·[In] July 2014 the applicant’s son-in-law sent a statement to the Prosecutor General of Ukraine in relation to his situation and the attempt on his mother- in-law’s life.·The applicant’s son-in-law had a friend who was “familiar” with the [government agency]. The friend told her son-in-law that an “attempt” would be made on the applicant’s family. Her son-in-law was assisted across the border.·Prison and death are waiting for her in Ukraine, because she was a witness to the events and she has information that poses a threat to law-enforcement officials, exposes them as criminals who want to hide their crimes, violate human rights in Ukraine.·The applicant flew to Australia [in] August 2014.

Decision

Reasons for decision

According to The Guardian[1] in one of the most deadliest episodes in Ukraine’s turbulent 2014 power transition, 48 people were killed and hundreds injured on 2 May 2014 in Odessa. Street battles culminated in a fatal fire at a Soviet-era building where hundreds of pro-Russia activists were barricaded. Multiple investigations have shed little light on events. There is not even an official list of the dead, and none of the pro-Ukraine activists involved have been put on trial. Many allege that investigators are dragging their feet for political reasons, possibly to cover up high-level complicity. At least one participant formally accused of murder and attempted murder remains free, while awaiting trial. Rumours swirl of a higher death toll, the use of poisonous gas and the body of a pregnant woman garrotted by pro-Ukraine fanatics. Russian officials have compared the events to Nazi war crimes, and many Russian fighters battling Kiev in eastern Ukraine cite what happened in Odessa as their motivation for joining the separatist cause. On the other side, some in Kiev see a pro-Ukraine “victory” on 2 May that prevented a local attempt to form a Russian-backed separatist state, and hail those who threw cobble stones, or even fired guns, as heroes. [1] >Most of what is known was because the 2 May Group, an organisation of 13 local experts investigated the tragedy on a volunteer basis. Most of the deaths occurred in Odessa’s Trade Union building, a large five-floor structure on the edge of the city centre, which was defended by outnumbered pro-Russia activists and attacked by hundreds of pro-Ukraine protesters. But street battles first broke out several hours before the Trade Union building fire. They were sparked when a group of masked pro-Russia activists allegedly led by Sergei Dolzhenkov, a former police officer known as “Captain Kakao”, attacked a pro-Ukraine march mostly made up of football fans. The pro-Russia men were armed with clubs, fireworks, homemade grenades and guns. The first person to die was 27-year-old Igor Ivanov, a pro-Ukraine member of the extreme nationalist organisation Right Sector. He was gunned down on Odessa’s main street, Deribasovskaya, lined with cafes, bars and restaurants and usually thronged with tourists. In clear evidence of police complicity, video footage from these clashes show a pro-Russia activist, shielded by police, shooting with a modified AK-47. [Mr B], a [senior police officer] in Odessa reportedly known as “[Nickname]” to pro-Russia activists, was said to have been seen mingling with shooters. In a visit to Odessa, the Ukrainian president, Petro Poroshenko, accused [Mr B] of distributing arms to both sides. [Mr B], believed to be hiding in the pro-Russia Moldovan breakaway region of Transdnistria, claims he has been scapegoated by Kiev. Odessa’s police have a long history of cooperation with pro-Russian activists, according to local journalist Oleg Konstantinov, who was injured while covering events on 2 May. He estimated up to 80% of the police force had Russian sympathies. “They understand very well that Russia is a police state,” he said. Dolzhenkov, who is alleged to have led the attack in the city centre, is on trial with 19 associates on a charge of causing mass unrest. Other leaders have fled to Transdnistria or Russia.According to 2019 US State Department Human Rights Reports UkraineLaw enforcement agencies continued to investigate killings and other crimes committed during the Euromaidan protests in Kyiv in 2013-2014. The Office of the UN High Commissioner for Human Rights Monitoring Mission in Ukraine (HRMMU) noted little progress had been made in investigating the killings of protesters. Human rights groups criticized the low number of convictions despite the existence of considerable evidence. A February 19 statement by Amnesty International alleged that law enforcement bodies “resisted and obstructed justice” in relation to Euromaidan cases. As of late November, the Prosecutor General’s Office had identified 448 suspects in Euromaidan-related crimes, most of them former law enforcement officers, but also city administration officials, prosecutors, and judges. In total, the cases of 298 individuals were sent to court. Of those, 58 cases resulted in court decisions including 48 convictions, but only nine custodial sentences were handed down. Not one of the individuals imprisoned was a former police officer. On July 16, a Kyiv court authorized the release of one former Berkut officer on bail, and on October 24, a court removed the requirement that he wear a monitoring bracelet, which observers believed made him a flight risk. On August 31, a court acquitted a former Berkut officer and current police officer of torturing two Euromaidan activists. The prosecution appealed the case. On August 8, as part of reforms of the Prosecutor General’s Office, the prosecutor general dissolved two units within the Special Investigation Department responsible for the majority of investigations into crimes committed during the Euromaidan protests. Human rights experts saw the decision as another step endangering investigations into Euromaidan-related crimes. On October 28, human rights groups and families of the victims released a joint statement expressing their fear that investigations into the killings will be further delayed or halted altogether, because the National Anticorruption Bureau and the SBI, two newly-created bodies to which the Prosecutor General’s Office transferred the Euromaidan investigations, did not have the necessary processes or personnel to fulfill the task. On December 29, the country released into the custody of proxy authorities in Donbas former Berkut officers Pavlo Abroskin, Oleksandr Marynchenko, Serhiy Tamtur, Oleh Yanishevsky, and Serhiy Zinchenko, who were charged with killing 48 protesters and wounding another 80 in Kyiv in 2014, as part of a negotiated prisoner and detainee exchange with Russia.The HRMMU did not note any progress in the investigation and legal proceedings in connection with the 2014 trade union building fire in Odesa that stemmed from violent clashes between pro-Russian and Ukrainian unity demonstrators. During the clashes and fire, 48 persons died. As of August 15, preliminary hearings had begun against three high-ranking Odesa police officers and two officials charged with abuse of authority, forgery, and dereliction of duty in protecting people from danger.All the incidents of harm that occurred to the applicant and her family causing them all to flee to Australia are all attributable by the applicant to overhearing a conversation between a policeman and a politician and a directive to move to Trade Union House during the 2 May 2014 riots in Odessa. The events, covered extensively in the media and on Utube[2], identify [Mr B], as being at the riots and watching the events.[2] [Source deleted] I do not accept that the applicant’s claims regarding overhearing a telephone conversation by [Mr B] with a politican, is either truthful or plausible. I also do not accept, as plausible, that the applicant overheard [Mr B] direct people to move to Trade Union House. Therefore, it follows that I do not accept that the sequence of events that followed because the applicant reported this conversation to the authorities is truthful or plausible. I am satisfied, as discussed below, that the applicant is not a witness of truth. Firstly, in her PV application, the applicant claimed that she overheard a conversation between [senior officer] of the Odessa police [Mr B] and the [office bearer] of [Political Party 1] [Mr C] during clashes on May 2, 2014, on Grecheskaya Street. At T1 hearing she stated at first that she was on Cathedral Square when she overheard the police conversation. She then drew a plan and marked where she was standing with an X being on Grecheskaya [Greek] Street. The applicant claimed at T1 that at about 14.20 she went onto Cathedral Square. [Mr B], was already there. At about 15.15 – 15.20 at Cathedral Square she crossed over the road. She went over to [Mr B], who was on his own and there were lots of people around him, there were no other police. According to the Guardian[3], most of what is known today about the tragedy is because the 2 May Group investigated and analysed amateur footage and interviews with witnesses. The information obtained by 2 May group[4] indicates at that 15.01 [Mr B] arrived at Zhukovskogo Street, after being in a meeting at the Chief Prosecutors Office. Zhukovskogo Street, according to Google maps[5], is about 1.1 kilometres from Cathedral Square and 900 metres from Grecheskaya Square and Grecheskaya street. When put to the applicant [Mr B] was in Zhukovskogo Street she said “I do not know. It has been six years and I know that the march was supposed to start at 3.00pm”. I prefer to rely on the independent advice therefore I place great weight on this inconsistency. [3] [4] [5] type="1">I have considered a hand written document, claimed to be sent to the Prosecutor of Odessa Region by the applicant, wherein she stated that she arrived at Sobornaya [Cathedral] Square and when the clashes began people got injured, 2 ambulances were not able to come through from Paster street and in the crowd on Grecheskaya Square she spotted a police officer. She heard him, [Mr B], talking on the phone to [Name 1] and he heard him say “All questions to [Mr C]”. The ambulances arrived and she was able to go home. I place no weight on this document, it is inconsistent with the applicant’s evidence as to where she was and the independent evidence where [Mr B] was. Further, there is no evidence before me to suggest that it was sent or received by the Prosecutor’s Office. Secondly, the applicant claimed that she went up to [Mr B] at 15.15 to 15.20 and had a conversation with him. She said because she saw 2 ambulances coming and the police didn’t allow the ambulance to come in that is why she approached him and spoke to him. She said she was trying to tell him there is an ambulance that is not getting through, so he called somebody and the ambulance was allowed to come in. The independent evidence[6] before me indicates that at 16:28 an ambulance was coming to Preobrazhenskaya Street, next to Cathedral [Sobornaya] Square. This was about an hour later than the applicant’s version of the events. When put to the applicant that at 16.28 the ambulances were attempting to enter the Square, she did not agree. She also suggested that there could have been time shifts. I do not accept as plausible that there could have been time shifts. I prefer to rely on the independent evidence and I place weight on this inconsistency. [6] >Thirdly, I do not accept as plausible that [Mr B] was surrounded by lots of people on the square who were throwing stones and there were no other police around. I am of the view that were it the situation it would be known to independent sources. I also do not accept as plausible that the [senior police officer] directed plain clothes people to move to Trade Union House at about 15.20 as I have found no independent evidence to support this claim. I am of the view that were it to have occurred there would be some mention in the independent evidence. Fourthly, the applicant and family left Ukraine legally from Kiev airport. When put to the applicant she responded that at the time it was only a problem with her son-in-law, only he was wanted. When they were going to fly to Sydney, in [Country 1], her son-in-law was stopped in transit. It was put to her he arrived with her and that this had nothing to do with the Ukraine authorities. She said that there was some mistake in the computer. I am of the view it is implausible that the applicant and her family were able to leave Ukraine legally all together whilst her son-in-law was a wanted man who she had assisted to escape from detention in hospital and who she claimed is wanted for releasing state secrets. Fifthly, I do not accept as plausible that the applicant, claiming to fear serious harm, would wait about 4 months after obtaining a visa to leave the Ukraine for Australia. Her explanation for not leaving immediately was that she had to wait for her daughter and family to leave and she was in the middle of such turmoil she could not move. I am of the view that her delay in leaving Ukraine indicates a lack of a subjective fear of persecution. Sixthly, I do not accept as plausible that the police and prosecutor’s office would attempt to harm a witness to [Mr B]’s alleged complicity in the burning of the Trade Union building especially as the independent evidence indicates the authorities wanted to prosecute him and claimed to be investigating the massacre and events leading up to it. When put to the applicant that [Mr B], on 3 May 2014, was required to report to Kiev on his handling of events and he subsequently disappeared and has been declared a wanted man by Kiev, the applicant responded that [Mr B] was a big voice in the police service. She again claimed that [Mr B] was at Cathedral square. She said she was not aware [Mr B] had to report to Kiev because he was the man in Odessa. I reject her explanation. I place no weight it. I rely on the independent evidence before me that the Ukraine authorities wanted to prosecute [Mr B]. I do not accept the applicant is a witness of truth as I am satisfied the applicant was not on Cathedral Square or Grecheskaya Street or Grecheskaya Square on 2 May 2014. I am satisfied she did not hear that [Mr B] have a mobile phone conversation with anyone on that day or direct anyone to move to Trade Union House. I am satisfied that the applicant, who like thousands of other Ukrainian citizens on 2 May 2014, saw the events of 2 May 2014 on various media outlets, created her claims in order to obtain the visa sought. I have considered a handwritten statement claimed to be sent to the Prosecutor of Odessa Region by the applicant dated 20 May 2014 advising that she complained about [Mr F], Officer of [government agency] who had attempted to make the applicant change her testimony telling her that she had erroneously mentioned [Mr C] and since 13 May 2014 she has received daily telephone threats demanding she stop her accusations against [Mr C]. The callers introduced themselves as members of the Right Sector. I place no weight on this letter, it merely repeats the applicant’s claims. I also place no weight on Summons addressed to the applicant for her to be interviewed [in] June 2014 in a criminal investigation, No [number]. I note that the “Summons” states that the applicant was invited as a witness in a criminal investigation. The document does not suggest that the applicant is the accused nor does the document indicate the reason for the investigation. Therefore, I place no weight on the summons. I have considered a letter from the Prosecutor’s Office in Odessa, addressed to [Mr E], dated [in] August 2018 submitted by the applicant to the Tribunal. The document unlike the summons discussed above, has no stamps or seals. it declares the applicant is wanted for not appearing to a summons and states that the son-in-aw is a suspect in an investigation. The independent evidence indicates that fraudulent documents are common in Ukraine. The Immigration and Refugee Board of Canada (IRB)[7] stated in December 2012 that ‘an official of the Canada Border Services Agency (CBSA) Document Integrity Unit indicated that fraudulent documents, which are common in Ukraine, include police certificates and education certificates. According to the director of the Kharkov Human Rights Protection Group (KHPG), a non-governmental organization based in Kharkov[8], Ukraine, it is possible to obtain fraudulent medical and police reports throughout Ukraine. A further IRB Report states that in an interview with the Ukrainian Internet newspaper ForUm, a member of parliament in Ukraine stated that a large number of Ukrainians use forged documents to support their visa applications. According to ForUm, services provided by these agencies involve forgery of documents. When put to the applicant that it was easy to obtain fraudulent documents, she said there is a chance in any country but not everybody creates fraudulent documents. [7] Immigration and Refugee Board of Canada 2012, Ukraine: Fraudulent documentation, including types of fraudulent documents available and their prevalence; how they are obtained; who is producing and distributing them; how documents are falsified; state efforts to counter their usage: UKR104123.E, 3 December < [8] >When put to the applicant that it is easy to generate documents on a computer, she said she doesn’t use a computer and she is an honest person who swore on the Bible. The document produced to the Tribunal claiming to be issued by the Prosecutor’s Office had no seals or stamps on it. Whilst I accept that the applicant may not use a computer, I am of the view that the applicant would be able to organise for such a document to be computer generated. Additionally, fraudulent documents are common in Ukraine and whilst the applicant does not agree I prefer the independent evidence that fraudulent documents are common in Ukraine. Therefore, I place no weight on this document. I am therefore not satisfied that an investigator had undertaken a pre-trial investigation in a matter where the applicant’s son in law was a suspect or that there was a criminal matter filed against the applicant. I also do not accept that the applicant has two criminal cases fabricated against her and that she is wanted by the Ukrainian authorities. The applicant has provided a medical certificate. It was obtained 5 years after the claimed assault in the Ukraine and opines that the applicant has a scar under her [Body Part 1]. As the medical certificate was not obtained within a reasonable time after the claimed injury and as the certificate does not indicate that the scar is related to stab wound, I place no weight on this certificate as evidence that the applicant’s scar was obtained from a stab wound. I have considered the applicant’s claims that her son-in-law sent a statement to Kiev to the General Prosecutor’s Office about his own situation and about the events that occurred to the applicant when she was threatened by the Prosecutor’s office. As I do not accept that the applicant lodged any statement with the Prosecutor’s Office I reject as implausible her claim that her son-in-law lodged a statement about events that occurred to her and I also reject her claim that officer [Ms H] began to blackmail her threatening to open a falsified criminal case against her about assisting her son-in-law escape from [a named] hospital if she did not change the testimony that she gave to the police. It follows I do not accept that she helped her son-in-law to run away from the hospital and disclosing government secrets. I am satisfied that the applicant has created her claim of overhearing a conversation made by [Mr B]. I am satisfied that the applicant is not a witness of truth and she has created her claims in order to obtain the visa sought. As this conversation was the cause of all the claimed events that subsequently followed, I am satisfied that none of those subsequent events occurred. I am satisfied that the applicant is not a witness of truth. I am satisfied that the applicant has created her claims in order to obtain the visa sought. Therefore I find that the applicant did not overhear a conversation between [a senior member] of the Odessa police [Mr B] and the [office bearer] of [Political Party 1] [Mr C] during clashes on May 2, 2014, she did not speak to not speak to [Mr B] or any police officer during the 2 May 2014 clashes in Odessa, she did not overhear [Mr B] say “go to Trade Union House”. I do not accept that the applicant was on the streets of Odessa on 2 May 2014. The subsequent events that she claimed to have occurred all depend on the applicant being a witness to a conversation by [Mr B]. Therefore it follows that I find that the applicant did not make any report or statement to the police and it follows she was not forced to change her statement by any government authority, she did not receive several anonymous phone calls demanding she change her statement, her daughter did not receive threatening phone calls, her son-in-law did not go to prison, an officer in the Prosecutor’s office did not threaten her son-in-law and her grandson, she was not attacked outside her home, no threats were made to lay false charges against her. As the applicant is not a witness of truth I do not accept that she went into hiding, she did not help her son-in-law escape from hospital, her son in law did not write to the Prosecutor-General, no-one told her son-in-law there were threats against the family, she was not accused of disclosing government secrets and her family did not go into hiding. As I do not accept that the applicant is a witness of truth, I do not accept that the applicant demonstrated in marches in Ukraine. I am satisfied the applicant left Ukraine with her daughter, son-in-law and family because she came to Australia to visit her Australian citizen son. I am satisfied that the applicant has created her claims in order to obtain the visa sought. I have considered the applicant daughter’s evidence to the Tribunal. She claimed that at end May she received a threatening telephone call and was told “your son is going to get it”. As the caller said nothing else to her, I place no weight on this telephone call as corroborative evidence that her mother was being threatened by anyone. As for her adult son being subjected to an attack when shown his wounded father, the applicant did not make this claim therefore I place no weight on this evidence. I also place no weight on the daughter’s evidence the family were forced to leave Ukraine all together as the applicant’s evidence was that she waited 4 months to go together, with her daughter, to Australia.The applicant’s daughter said that she asked her mother to withdraw her application to Department of Public Prosecutions as they were being threatened. She also saw her mother wounded when she was attacked by a knife. Given that I do not accept that the applicant had overheard a [a senior police officer]’s conversation and therefore I do not accept her mother had lodged any document with the Department of Public Prosecutions and I have rejected the applicant’s claim that she was stabbed by a knife as a consequence of not changing this statement, I place little weight on the daughter’s evidence. I have considered the claims of the applicants individually and cumulatively. For the above reasons, I find that the applicant faced no serious harm in the past in Ukraine. I am required to consider the situation were the applicant to return to Ukraine, now or within a reasonably forseeable future. I have considered whether the applicant, a cancer sufferer or cancer survivor, would suffer serious harm on her return to Ukraine.I do not accept that the applicant is sought by the [police department] or that she is wanted or that there are any criminal cases against her in the Ukraine. I do not accept that the applicant had an adverse political profile or was perceived to have an adverse profile when she lived in the Ukraine or that her imputed political opinion was directly against the structure of Ukraine. I am satisfied that the applicant will not suffer serious harm for her political opinion on return to Ukraine. Information before the Tribunal indicates that Governor of Odessa Oblast Volodymyr Nemyrovsky stated on 2 May 2014 that the conflict could have been avoided had police fulfilled their duties, and accused police of inciting the confrontation and taking bribes to switch allegiance to the separatists' side. Several police were seen donning the red armbands worn by pro-Russian rioters. The leadership of the local police was then fired and may face criminal charges. Arsen Avakov, the interior minister, blamed local politicians for the events. People suspected of complicity include city council members, elections workers, police, relatives of former police officers, and active anti-Maidan campaigners. Twelve people were arrested, but their names were not disclosed. He then announced the formation of a new civilian-based special police force named "Kiev-1" to help police the city. An article about the new police force One Year Later Ukraine’s Patrol Police Enjoy Massive Spike in Trust[9] confirms a change in policing since 2014 and ongoing improvement. [9] In October 2018, Euromaidan Press[10] reported on the creation of the State Bureau of Investigation: [10] ‘A new law enforcement institution is to be created in Ukraine for the purposes of tackling problems related to crimes committed by top officials, law enforcement officials, military officers and judges. The creation of the State Bureau of Investigation (SBI) will lead to changes for other law enforcement agencies in Ukraine. In general, the newly created agency will be dealing with crimes committed by ex-presidents, MPs, judges, law enforcement officials, top state officials, including the Anti-Corruption Bureau and the Specialized Anti-Corruption Prosecutor’s Office. 100. Ukraine has an Ombudsman, a functioning legal system[11]. According to a report by the Council of Europe[12] during the period from 2014 to 2018, Ukraine undertook a large-scale legislative effort to adjust the judicial system to the principle of the rule of law and to strengthen the judicial independence in order that the judiciary may play an effective role in ensuring the democratic checks and balances between the different state powers. At the same time, those reforms have also been directed towards making the judiciary more efficient, transparent and above all, more trustworthy.[11] [12] 101. Full-scale combat started in eastern Ukraine on May 26, 2014, with the battle for Donetsk airport[13]. The Ukrainian army faced off against separatists from two self-declared “people’s republics” in Donetsk and Luhansk, and by extension the Russian military, which offered its unofficial support. Reports[14] indicate that an entrenched standoff took place from 12 April 2014 until 5 July 2014. After months of fighting, the rebels withdrew in Kramatorsk and the city came under Ukrainian control on 5 July 2014. Kramatorsk is now controlled by the Ukrainians. It is about 48 kilometres from the front line. The Donetsk People’s Republic briefly held this city of 164,000 for less than three months in 2014, from April 12 to July 5. In the years since the Ukrainian military recaptured the city from Russian-backed fighters that still occupy nine percent of eastern Ukraine, bomb craters and homes have been repaired. In 2016 Kramatorsk felt calm, despite the fighting that continued[15]. It serves as the provisional capital of the Donetsk Region. Kramatorsk became provisional centre of Donetsk Oblast in 13 October 2014. The “active stage” of fighting continued until February 2015, when the Minsk II agreement was signed. Almost none of the figures who led the initial protests against the Ukrainian government or the subsequent fighting against Ukrainian troops remain in today’s separatist leadership.[13] [14] Since February 2015[16], France, Germany, Russia, and Ukraine have attempted to broker a cessation in violence through the Minsk Accords. The agreement includes provisions for a cease-fire, withdrawal of heavy weaponry, and full Ukrainian government control throughout the conflict zone. However, efforts to reach a diplomatic settlement and satisfactory resolution have been unsuccessful. In April 2016, NATO announced that the alliance would deploy four battalions to Eastern Europe, rotating troops through Estonia, Latvia, Lithuania, and Poland to deter possible future Russian aggression elsewhere in Europe, particularly in the Baltics. These battalions were joined by two U.S. Army tank brigades, deployed to Poland in September 2017 to further bolster the alliance’s deterrence presence.[16] The conflict in eastern Ukraine has transitioned to a stalemate after it first erupted in early 2014, but shelling and skirmishes still occur regularly, including an escalation in violence in the spring of 2018[17]. Russia[18], Ukraine and Europe’s top security body have announced an “indefinite” ceasefire in eastern Ukraine that analysts hail as a substantial step toward ending the five-year conflict. Sporadic fighting went on despite a ceasefire agreement signed in 2015. The OSCE[19] Daily Monitoring Mission to Ukraine continues to record ceasefire violations in both Donetsk and Luhansk regions.[17] [18] 104. 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 applicants are not from an area where there are hostilities. In 2019, environment for media in Ukraine remained unsafe. The applicants are not journalists. Violence by far-right groups continued against minorities. The applicants are ethnic Ukrainians. 105. The applicant claims that the Ukrainian state does not care about her illness. I accept that since the applicant has been in Australia she has been diagnosed with cancer and has had treatment for cancer. She states that they have a doctor there, but she knows the level of medical help and she would miss her treatment. I accept that the level of service for cancer treatment may not be the same as she would receive in Australia but on the evidence before me I am not satisfied that the applicant will suffer harm on her return to Ukraine for reasons of her membership of a particular social group ‘cancer survivors or cancer sufferers’ or any other particular social group. Rather it is because relevant cancer medical services are not of the same standard anywhere in Ukraine for the whole population. I am satisfied the applicant will not suffer serious harm for her membership of particular social group ‘cancer survivors or cancer sufferers’ or any other particular social group.106. Therefore I am satisfied that the applicant will not suffer harm for a Convention related reason on her return to Ukraine. I find that therefore 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.107. I have considered whether the applicant, a cancer sufferer or cancer survivor would suffer significant harm on her return to Ukraine.108. In MZAAJ v Minister for Immigration and Anor [2015] FCCA 141, the Federal Circuit Court found the Tribunal was not in error when it failed to consider that the prospect of the applicant dying as a result of being unable to obtain dialysis in Sri Lanka would fall within the concept of arbitrary deprivation of life. In particular, the Court noted at [42] that the concept of arbitrary deprivation of life 'does not concern the consequences of scarce medical resources in developing countries'. 109. Having regard to SZDSD v Minister for Immigration and Anor [2018] FCCA 1029 where Judge Baird in regard to the question of whether the applicant would be denied medical treatment 'on an arbitrary basis' (at [60]) , Judge Baird rejected the submission that the fact there was a prospect of the applicant dying of a health condition would enliven the application of the criterion for complementary protection 'without more' (at [59]-[63]).110. I have had regard to the Department’s Guidelines[20] which state that “if a non-citizen’s life expectancy would be threatened by being removed due to a pre-existing medical condition (both terminal and non-terminal in nature), this would not amount to an arbitrary deprivation of life. Deprivation of life due to natural causes is not arbitrary.” [20] PAM3: Refugee and Humanitarian - Protection visas - Complementary Protection Guidelines, paragraph 12.111. Based on the evidence before me, I find that the inadequacies of Ukraine health care system to match those of Australia that the applicant may face on her return to Ukraine does not amount to significant harm as defined. It does not constitute the carrying out of the death penalty, the arbitrary deprivation of life, cruel or inhuman treatment or punishment or degrading treatment or punishment. The country information indicates that any failure to provide the applicant with relevant and appropriate health care treatment or support of the same standard as in Australia will be due to the Ukraine economy rather than any intentional act or omission. I also find that the risk of harm due to inadequate heath care services in Ukraine is one faced by the population of Ukraine generally and not faced by the applicant personally.112. The applicant is an ethnic Ukrainian. She suffered no harm in the Ukraine prior to coming to Australia. I accept that Ukraine hostilities in eastern Ukraine continue to put civilians’ lives and well-being at risk. The applicant is not from the area where there are on-going hostilities. The Constitution provides for a human rights ombudsman. A variety of domestic and international human rights groups generally operated without government restriction, investigating and publishing their findings on human rights cases. Government officials were cooperative and responsive to their views. The Human Rights Ombudsman’s Office frequently collaborated with NGOs through civic advisory councils on various projects for monitoring human rights practices in prisons and other government institutions[21]. [21] 113. I am not satisfied 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 suffer significant harm.114. 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 applicants 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. 115. Accordingly, I find that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.Conclusion116. 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).117. 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).118. 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).DECISION119. The Tribunal affirms the decision not to grant the applicant a Protection visa.Lilly MojsinMember120. US State Department Report 2019[22] [22] USSD HR Report 2018, Ukraine, 3, 13 March 2019 .121. I have considered whether the applicant belongs to a particular social group (women or cancer sufferers) and whether the applicant will suffer harm in Ukraine for membership of that group. Even accepting the applicant is a member of a particular social group women or cancer sufferers, persecution involves an element of motivation for the infliction of harm. 122. In October 2017, Euromaidan Press stated: ‘During the years of independence, Ukraine hasn’t been able to create a healthcare system that can effectively provide the population with quality and affordable medical services, respond to the current challenges related to increasing mortality rates and the spread of AIDS, tuberculosis or hepatitis C, and to carry out effective preventive measures. Today, despite high levels of state expenditure on the medical sector, citizens are forced to pay for expensive treatment on their own. For the disadvantaged section of the population, the payment of medical services is often excessive.’However, in August 2014, the Ministry of Health of Ukraine initiated a National Healthcare Reform Strategy for 2015-2020. In June and October 2017, the Verkhovna Rada approved healthcare reforms. Funding for the healthcare system will be increased by UAH 25 billion to 5% of GDP over the three years to 2020. In 2019 the Health Ministry plans to launch the reform of financing outpatient medical care. The healthcare institutions that signed agreements with the National Health Service of Ukraine would provide outpatient services free of charge. There are also plans for the reform of emergency healthcare in 2019 123. I accept that the applicant may not receive the same level of treatment in Ukraine as she has received in Australia. But this harm affects all residents who have similar medical conditions to the applicant. I note that mere inability on the part of a state to prevent harm is not sufficient to establish a refugee nexus. But, in this instance, it must be shown that the failure on the part of the state to prevent the relevant conduct is the result of toleration or condonation of the conduct, not simply inability to prevent it. The independent evidence indicates that Ukraine’s medical system faces a number of challenges, as outlined above. I have found no independent evidence to suggest that cancer treatment in Ukraine is the result of toleration or condonation by the Ukraine state. 124. I have considered all of the applicant’s evidence singularly and cumulatively. I do not accept the applicant is a witness of truth. I do not accept that the applicant fled Ukraine fearing serious harm. I am satisfied the applicant came to Australia in order to reunite with her Australian son and travel with her daughter and family. 125. In assessing whether there a real chance of serious or significant harm occurring in the reasonably foreseeable future on the applicant’s return to Ukraine I have considered the applicant’s account of her experiences and circumstances in the context of that country information in relation to Ukraine. 126. I accept that the general situation in relatively stable. There . These incidents affect the majority of the population. 127. I am not satisfied on the country information before me that there is a real chance of the applicant suffering serious harm if she returns to Ukraine in the reasonably foreseeable future.128. On the basis of my findings above, I find that the applicant can return to Ukraine and that there is not a real chance that she will be harmed on return for a Convention related reason now or in the reasonably foreseeable future. 129. I must also consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ukraine here is a real risk she will suffer significant harm. 130. I accept that the applicant is an ethnic Ukrainian, who has worked in the medical field. The US State Department report indicates that the constitution and law prohibit arbitrary arrest and detention and provide for the right of any person to challenge the lawfulness of his or her arrest or detention in court, but the government did not always observe these requirements. The HRMMU and other monitoring groups reported numerous arbitrary detentions in connection with the conflict between the government and Russia-led forces in the Donbas region. The applicant is from Odessa and not from the Donbas region. 131. The applicant fears she will be imprisoned or killed if she returns to Ukraine because she lodged a written statement with the [government agency] in Odessa. She also claims to have been threatened with having a false charge laid against her by the police and the Prosecutor’s Office. I have rejected her claims, above, that she lodged a written statement therefore I am satisfied that the applicant will not be imprisoned or killed on her return. 132. The applicant claims that she will suffer significant harm as she will be unable to access medical services for her on-going cancer treatment. 133. 134. the applicant claimed that A s.438 Certificate referred to the following information:Page 78- a Disclosure Decision Checklist dated 15 March 2016 stating there were no s.437 or s.438 documents on file. 54-55- identification test of photo and fingerprint confirming the applicant As the only justification for the certificate was the purported impact on the public interest because the documents in issue related to an internal working document and business affairs of the Minister’s Department I find the s.438 certificate was invalid.135. issue in this case is [insert brief description]. For the following reasons, the Tribunal has concluded that the [decision under review should be affirmed OR matter should be remitted for reconsideration].136. 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 Egypt, there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment. CONCLUSIONS137. 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).138. 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).139. 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. 140. Accordingly, the applicant does not satisfy the criterion in s.36(2).DECISION141. The Tribunal affirms the decision not to grant the applicant a Protection visa.Lilly MojsinMemberRefugee criterion142. 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). 143. 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.144. 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.145. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.146. 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.147. 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.148. 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.149. 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.150. 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. 151. 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 criterion152. 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’).153. ‘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. 154. 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.Mandatory considerations155. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

Ratio Decidendi

Legal Principle Established

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