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 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.
At an interview held by the delegate on 27 May 2015 the applicant stated that
·her opinion on the political situation in Ukraine was that it was “very bad”. There was an expectation that there would be less corruption and more law and order in Ukraine after Maidan.
·She was and is not a member of any political organisation but would go to the square occasionally to discuss the situation with others. She would be involved in marches from time to time. She was pro-Maidan.
·On 2 May 2014 she was in Cathedral Square for a Peace March. There were 2 groups in the Square, the Peace marchers and a group of football fans. There was an anti-Maidan scuffle and the ambulances were unable to get through the barricades.
·She saw a colonel in military uniform and approached him to ask for assistance for the ambulances. The colonel was talking about a situation that was happening. While the applicant was trying to get the colonel’s attention 2 people in civilian clothes approached him. She heard the colonel say that “[Mr C] is in charge here”. He indicated that at 4pm they had to move to the Trade Union building.
·She claimed to have heard a man on the phone with police ranking. She only found out later the rank of the person on the phone. The colonel spoke to the man on the phone who he addressed by his first name and then a patronomic name. She was present for the entire conversation. the colonel answered questions. She also stated that she was not taking much notice because Molotov cocktails were being thrown around them.
·The fight began in the lane off Cathedral Square when the 2 groups met in the lane that runs from Greek Square to Cathedral Square. Later she saw the Chief of the Odessa Police and a “rifleman” on television entering an ambulance.
·She decided to lodge a statement about what she had witnessed on 2 May 2014 after seeing the fire at the Trade Union Building on television. [In] May 2014 she heard an interview with [Mr D] during which he named [Mr C] as the organiser of the anti-Maidan movement. A request came from a television station for any information about “the incident’. She rang the phone number on the screen and said she had evidence. She was told to put her evidence on paper and send it to [the militia chief]. [In] May 2014 she hand delivered her statement.
·[In] May 2014 she was contacted by the militia to go over and clarify some points in her statement.
·[In] May 2014 she was met by [Mr F] at midday and taken to his office where he accused her of dividing Ukraine because of her statement against [a senior politician] of the Ukrainian parliament. She claims he accused her of being anti-government. She was in [Mr F]’s office for 1 hour during which time he expanded “a lot” on the “role of [Mr C]” in government and the country, and how good he was. She told [Mr F] that the government needed to investigate [Mr C]’s role in the Trade Union fire and he said that what they needed was unity. [Mr F] told her she would have to change her statement and produce a new statement. After 1 hour she left the building and no one tried to detain her.
·[In] May 2014 she received a phone call on her mobile phone from a person who introduced themselves as Right Sector and asked her why she made a statement about [Mr C]. She tried to “reason” with them and asked why they were asking about [Mr C] when he was not from the Right Sector but then she realised the caller was from the militia.
·Her daughter and grandchildren were threatened. She received 10 calls from 13 May to 20 May 2014. She did not attempt to change her phone number and did not report the calls to the police because they were the ones making the calls. After her interview with the police nothing further happened. She never changed her statement.
·The applicant called [Mr D]’s place of business and got the name and number of his lawyer. She contacted the lawyer and explained the reason for her call. [Mr E] was in Kiev with [Mr D] on a case against [Mr C]. He took the applicant’s number and said he would call when he returned to Odessa.
·She made a complaint to the Prosecutor’s office about the police asking her to change her statement and the abusive phone calls.
·[In] June 2014 she changed her statement after being threatened with prosecution. She phoned [Mr E] the lawyer and explained her situation then [in] June she changed her statement and he offered his protection if required.
·On 5 June someone tried to kill her with a knife. It was put to her that she had given testimony that it was 08 June near her home.
·She had not left Ukraine until August 2014 as she intended to return to Australia with her daughter and her daughter’s family.
·On 8 June a friend took her to Casualty. She did not want to report the attack to the police.
·She left for Kharkov [in] June 2014. She resided in [location] which is [distance] from Odessa where she stayed with her son-in-law [Mr G] for 2 months. She could not leave without her daughter and grandchildren. Her son-in-law was also in trouble with the police. She claims to have aided his escape from a hospital by taking him rope and assisting him out of a window [in] May.
·Asked if she was afraid while living in Kharkov she replied that she thought she would be safe in Kharkov. It was put to her that she did not appear to be afraid as she stayed there for 2 months. She claimed to be on a “wanted list” like her son-in-law.
The applicant provided the following documents:
·A photocopy and translation of a handwritten statement sent to Prosecutor of Odessa Region by the applicant dated [in] 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.
·A photocopy and translation of a statement made to the Prosecutor of Odessa Region by the applicant stating that she arrived at [Location 1]. When the clashes began people got injured. 2 ambulances were not able to come through from Paster street. 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.
·A photocopy and translation of a summons addressed to the applicant to be interviewed [in] June 2014 No [number] in a criminal investigation.
Submission by the applicant post interview stated that the applicant was prosecuted in Ukraine because of her refusal of concealment of facts about tragic events in Odessa on 2 May 2014. She witnessed events that prove that some of organizers of encounters were Ukrainian [politician] [Mr C] and [senior member] of Odessa Police [Mr B]. Oofficers from the Prosecutors Office and Police tried to make obstacles for an unbiased investigation due to the political positions. As a result, no one was named as guilty She is a threat for current high political figures of Ukraine and for officers of Ukrainian Police because they hide crimes of those politicians. She is an unneeded witness and as a result was intimidated and was a victim of an assassination attempt. All that actions were made by officers of Police and Prosecutor. Their motives are purely political. Her civil rights were brutally violated, and she was intimidated because they wanted to force her to change her position regarding high politicians’ crimes.
·I heard phone conversation of [Mr B] with person named [Name 1]. It is name and middle name of [Mr C]. [Mr B]’s words to two unknown people “All questions to [Mr C]!” Also confirm that he had conversation with [Mr C].
·[In May] 2014, at the time of submission of the application to the [government agency] to investigate the events May 2, 2014, an employee of the [government agency] treated them seriously enough. She thanked for the information registered my statement has issued my answers to her questions. She said that the investigation team to check everything carefully. At the same day mass media announced that [Mr B] run away from Ukraine. He is still in wanted list.
·[In May] 2014, the head of [named government agency] Odessa region [Mr F] demanded that I changed testimony. If my testimony was just a hypothesis, they would have to check and ensure their failure and simply not disregarded in the further investigation. But the behavior of [Mr F] and previously prepared protocol, where I am supposed to accept that written statements under the impression the interview [Mr D], and not based on the facts which witness I was. His attempt of psychological pressure and suspect me of separatism. All it talks that according to my readings of the Commission of Inquiry is investigating. Therefore, corrupt leadership of the Odessa police, obviously not having full control of the Commission of Inquiry, which had staff not only from Odessa, tried to eliminate my testimony putting pressure on me.
·Further developments, namely, threatening phone calls, threats from the prosecutor [Ms H] and an attempt on me: all it confirms that my statement is not pleasing to corrupt politicians and covering their law enforcement agencies.
·In the end, law enforcement officers have achieved that I gave false testimony. I was blackmailed that they would fabricate of a criminal case. Also, they threatened me with imprisonment for me and my grandson.
·Regarding the threatening of phone calls on my phone. It certainly was the police, or the people have received instructions from the police. They knew me by name, knew that I applied to the [government agency] about the involvement of [Mr C] and [Mr B] to the tragedy May 2, 2014. The fact that callers called themselves as representatives of the "Right Sector" was intended to intimidate me. "Right sector" is right-wing organization.
·When I contacted the [government agency], I was guided by the principles of Ukrainian patriot. I said to those who threatened me on the phone about it. But they did not react to it. From this it follows that they were not members of the "Right Sector".
·After the threatening phone calls, [in May] 2014, I appealed to the prosecutor Odessa region. On the personal reception I told about the statement to the police department and that the police department staff of the Odessa region demanded that I changed my testimony. I also said that unknown persons called me and threatened me after that. And they called themselves the "Right Sector". On the same day, my daughter received threatening phone calls.
·I thought that my appeal for the protection of the Prosecutor's Office will deliver me and my family from threats by the police. I could not see another way out of the situation and protect us at that moment. Therefore, the claim that I did nothing to protect my daughter and grandchildren from the threat does not correspond to reality.
·I really made a mistake during an interview with the period of receiving calls. By the time a one year has passed since those events. Everything happened in Ukraine was stress, the results of which were reflected on my health and on my memory. That's why I made a mistake in the exact dates. Because in the course of the interview, I restored the chronology of events (including threatening phone calls) based on the dates of other events that I remember exactly - dates of treatment to the police department and prosecutor's office. The entire chronology was given in the application form 866C.
Tribunal Hearing [T1]
I drew to the applicant’s attention a s.438 Certificate. I explained that it was my view that s.438 certificate was invalid. I proceeded to advise the applicant of the contents of the referred. I explained that page 78 was a Disclosure Decision Checklist dated 15 March 2016 stating there were no s.437 or s.438 documents on file and pages 54-55 was an identification test of photo and fingerprints confirming the applicant’s information. The applicant was advised that these were not relevant to the claims before the Tribunal.
The applicant said that when she lived in the Ukraine she worked part-time, that is on shifts, as a [Occupation 1]. She came to Australia in August 2011 for a month, visiting her son. Her son came to Australia in 2010 and he is an Australian citizen. Her son works in [Industry 1].
In regard to a telephone conversation that she overheard, she claims to have fled the Ukraine. She said it started a chain of events. On 2 May 2014 the applicant was in Odessa. At about 15.15 – 15.20 the applicant was at Cathedral Square, across the road and the policeman was standing there. There were riots and lots of people in the square. The people were gathered. They were throwing stones at each other. There were about 700 people there. There were also about 300 people with guns.
She went over to the policeman, there was a crowd around him, but he was talking to somebody on a mobile phone. There were no other police there, they were randomly placed.
The applicant said that the policeman was surrounded by a crowd who were throwing stones, these people were behind an armoury. Asked what the people were doing surrounding the policeman she said people were coming and asking him and he was trying to give orders.

Asked again to explain about a policeman standing on his own with a group of people surrounding him, she responded there were a couple policeman around him. It was put that he was not on his own and she responded it was just at the beginning of the demonstration. Asked again what the people were doing who had surrounded him, she said they were just taking stones from the pavement and starting to throw them. Asked if she was saying that there were people standing on the footpath picking up stones at the same time surrounding the policeman, she said that other policemen were lined further along. She said they were covered but sitting. The main one was a Colonel of Police. Asked if he was surrounded by people picking up stones and throwing the stones, she said that behind the frontier of the other police were covered by armoury, there was another crowd of people trying to throw Molotov cocktails to the other side of the square. The police tried to prevent the other side to penetrate the square. They were separating the crowds.
The applicant confirmed that the Colonel of Police was on his own and she went up to him and had a conversation. She said it was hard to get to him and get through the crowd. She saw 2 ambulances coming and the police didn’t allow the ambulance to come in and that is why she spoke to him. She was trying to tell him there is an ambulance who is not getting through and he could not answer her as he was on the phone. He was giving some orders to people on the phone and after he spoke to everybody then he turned to her and she told him about the ambulance. He called somebody and the ambulance was allowed to come in. She then went to the peace March.
Asked exactly what she heard him say, she said “[Name 1] everything is going to plan”. It was quite obvious he was working under this [person] and he was his boss. But then he also said to people in plainclothes “move to Trade Union House” where the whole tragedy happened, several hours later. Asked who were the people in plainclothes she said she did not know these people and they started to ask him some questions. She did not know who the plainclothes people were, but they were around the corner. These people did not have stones in their hands they were like commanders, police commanders in plainclothes. Asked how she knew they were commanders if they were in plainclothes, she responded if people were just people, he would not give the orders “everybody move to the house of trade union”. She heard him give those orders. It was put to her that a lot of other people might have heard those orders, she responded “I do not know I was not interested in what other people heard”.
After he gave those orders the people in plainclothes started to ask him something and when they started to ask him, he was so irritated he said “address all questions to [Mr C]”. She can remember it clearly. It was very traumatic to her it is not the situation at the surrounding environment. That was only the beginning. She just ran home and saw the rest on TV.
Asked what she did after that she said that she took a minibus home. It usually takes her 20 minutes to get home.
The applicant drew a plan for the Tribunal. She said that on a street called Prebresenska Street, it has a square next to it called Cathedral Square, that is called Greek Square and it goes across Greek Street. The applicant was asked to mark with an X where she was standing on a plan. She said that she travelled towards the police officer from Cathedral Square. The armoured police were further down from Greek Street. When she arrived, the policeman was already there. At 14.20 the peace march was starting and that is when she went to the square. She was standing with a group of people, the mature age group. There was to be a soccer match and soccer fans decided to join the peace march. She was on the square for some time, about 45 minutes, she spoke to the policeman about 15.20.
After she went home, she saw on TV that there was a fire at the Trade Union House and people were burned alive, it was horrible. After this on 6 May she saw on TV the interview with the Governor of Odessa and he openly said that one of the organisers of all this tragedy was [Mr C]. It was like a Lego puzzle that came together. She remembered everything then. There was a notice on the television that if anyone knew anything about the events to call the hotline. She called the hotline and said she had some information about 2 May in Odessa. They gave her a form to send to the Chief of Police of Odessa and she filled in the notification to the police. She even has a copy with her with the translation.
She had applied to come to Australia in April, with her whole family in the summer and get rid of these bad memories. Asked what the bad memories were, she said it wasn’t about the bad memories she had come back from Australia in December. They applied in April, she got together with the whole family and her daughter came up with the idea as her husband suffered a lot.
[In] May she went with a statement of events to the police. She went to the [police department], and was met by a lady who read her statement with huge attention. She said “ if we need some additional details we will give you a call”. She said in her statement of events [Mr B] was under [Mr C] who was second in charge of the Department of Police for Odessa. [In] May when she went to the police, [Mr B] had left the country and there was an international search for him. There was a lot of information on the Internet, U-tube, there were not only people throwing stones, but a professional shooter and he was shooting through the crowd. This was officially published. He and [Mr B] disappeared in an ambulance. Asked if she saw this on U-tube she said there was a lot of materials on the Internet about 2 May. These type of events were planned by the political forces. They wanted these altercations to become a big threat.
It was put to the applicant there was so much information on the Internet and U-tube about these events. She said she was a witness. She was invited by the police three days later to clarify her testimony. She went to the police [in] May to clarify events, but the conversation was in a completely different key. The policeman called [Mr I] asked her if she was for not a united but separate Ukraine. She was very surprised as she went to the peace march for United Ukraine. She was asked why she was blaming a respectable person, [Mr C], a Parliamentarian, a member of [Political Party 1]. She said she wrote what she witnessed. He said “you have to change this statement because it throws a shadow on a respectable man”. She said she will not change her statement. He said “you cannot behave like this, now there’s a war, you cannot behave like this against the government”. She said she thought then there was more reason to investigate the situation. He showed her the protocol that she saw a lot of TV and that by mistake she heard the names of [Mr B] and [Mr C]. Protocol was distorted and completely changed, she imagined these things. She refused to sign it. He let her go.
She started to get lots of telephone calls, on her landline and her mobile. It was the same person, a male person. She turned off the landline but could not turn off her mobile as it was connected to her work. There were insults, threats on the telephone calls. He was the representative of the riot sector. Asked how she knew that, she said he introduced himself and he said “you are such a bitch why are you writing all this about [Mr C]”. She thought it was some sort of mistake but put two and two together and she realised it was the police.
She did not report these phone calls to the police. She then went to the Police Prosecutor’s office. She wrote a letter to the Office of Public Prosecutions about the fact that [Mr I] was trying to make her change her statement and that she was getting threatening calls since that time. She asked the Office of Public Prosecutions to offer her a defence and she left a statement there.
On the day when she left the statement, her daughter got a threatening call with the same voice. She could not understand anything and she was told to tell her mother to shut up. “Otherwise it will be bad for your whole family not only your mother but also your children”. Her daughter asked her what was happening, she was not aware of all the evidence. She told her daughter not to worry, she went with a statement to the Prosecutor’s office and everything will be fine. She did not believe her and she was crying and said “what did you do”. Her [husband], after he applied to the prosecutor’s office, was arrested but that was very different matter.
She decided to call [Mr D] himself, she rang his office on 20 May and spoke to his secretary. Everything bad that happened to her started after his interview on television. She told his secretary and asked for his help. She was given the telephone number of his lawyer [Mr E], they told her to call him and he would help her. She called him several times and then she got through to him. He said that he was with [Mr D] that time in Kiev and [Mr C] applied to the court for a defamation case. At that time there was a hearing in the court in Kiev. He said her statement could be very useful for the court. He took down her phone number.
On 30 May she got a special invitation to the Public Prosecutor’s Office. The invitation was [for] June. One of the workers, [Ms H], started to dissuade her to change her statement and started to blackmail her. This was the 2^nd time she went to the Public Prosecutor’s Office. She was invited to talk with them and was the same as the police demands. He said “if you refuse to sign a statement and use statement or taken away we will find some criminal charges like your son-in-law, you helped him to run away from the hospital, and we will place some drugs on your grandson, we will make your life hell”. She did not expect this to happen as she thought the Office of Public Prosecutions is completely independent from the police. She realised her daughter was right and now her son-in-law was arrested. The pressure on her was horrible. She agreed to change her statement. She signed the statement the police offered to her.
[In] June she spoke to [Mr E], she apologised, she said she cannot help against [Mr C] and she told him she had signed a statement. Then there was a problem with her son-in-law she told him she was scared. He said “we cannot discuss it over the phone, please come to my office”. He was so persuasive. She knew her son-in-law was in hiding but as she trusted him, she said she would come.
[In] June at 9 am when she was coming home, she was opening her door and there was another man there and he had a knife. She pushed him and he did not expect her to be so quick. The dog barked and her door was already half open. She ran inside and closed the door. He also said “we will kill you anyway we will find you”. She then realised her mobile was bugged. It is quite common in Ukraine for people to disappear. [Mr E] had called her on 6 June, he told her when he returned from Kiev he would call her. There was a conversation with him that she apologised as she changed her statement. As her phone was bugged, they heard [Mr E] had promised her that the truth would come out. They were covering up the criminal politicians from the public. She assumed it was the police as simple people do not call you by your name and surname. She called her friend who came over as she saw the blood on her clothes. This man had wounded her in the back, it was not a dangerous wound and she needed a stitch. She could not go to hospital as the hospital has an obligation to call the police.
Her friend came over and she went to a clinic. There is only a doctor, nurse and x-ray person there and she knew everybody in that office. She asked them to help her without any registration. She did not have any certificates so the lawyer from RACS told her to get a certificate. She produced a certificate to the Tribunal. It was put to her that she said she was wounded in the back, she said there was a bag protecting her from the front and back. It was put that the medical report was from as an Australian doctor. It was put to her that she could have got the scar anyway. She said under [Body Part 1] you cannot get a scar like these. It was put to her that the doctor has not noted any markings from her cancer treatment on the report. Said she had another certificate from an oncologist about her cancer treatment and it wasn’t required to write about.
The report said she had a [scar] with two suture marks under her [Body Part 1]. It was put these incidents occurred in 2014 and five years had passed. Asked for the relevance of the report to having an injury in the Ukraine, she said it was the lawyer’s advice to go to a doctor and produce a report that she has the scar. I advise the applicant I would place no weight on the report as in five years anything could have occurred for her to have a scar.
It was put to the applicant that she did not leave the Ukraine until August 2014, she already had a visa and she waited 4 months. She responded that she waited to go together with her daughter and she was in the middle of such turmoil she just couldn’t move.
In regard to the letter from the Prosecutor’s Office in Odessa, addressed to [Mr E], she said that he is asking the Prosecutor’s Office about her situation with the police, if there is any requests or anything else. Asked how she got hold of the document she said she is in Australia and her former de facto contacted him and he made a request. There were 2 articles that she helped her son-in-law to run away from the hospital and disclosing government secrets. Nobody can prove she helped him disappear from hospital and of course it is a fabricated case. Nevertheless, if she went back to the Ukraine she would be arrested. Asked why she would be arrested she said there are two criminal cases against her and she is wanted and the border control would take her.
It was put that she was able to leave the Ukraine by plane. She said 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 [Country 1] authorities. She said that there was some mistake in the computer.
Asked what she fears about returning to the Ukraine, she said she is scared she would be arrested straight away, they would put her in holding cells. Also, they do not care about the situation of her illness. They have a doctor there, but she knows the level of medical help and she would miss her treatment. Nothing has changed in the five years since she left Ukraine. [Mr C] is in charge of [a named government body] of Ukraine. [Mr I] who forced her to change her statement is in Russia and gave interviews about how he was helping the rioters not to get criminal punishment. All government bodies are still scared that they covered the crimes of high-level politicians.
It was put to the applicant that she had no part in the death of 40 people, she had no political involvement in the Ukraine, she overheard a policeman make a comment on the street and as a consequence of that she claims that the Ukrainian authorities are so interested in her that they would imprison her when she returned to the Ukraine. She responded 5 years past she did not participate in the riots but the investigations are still going on, the real criminals are still there, the mass media is saying it was organised in the highest level but the investigation is slowed down. They do not need the information that high-level politicians were involved.
It was put to the applicant that it is easy to create fraudulent documents in the Ukraine. She said there is a chance in any country but not everybody creates fraudulent documents. It was put 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 applicant provided to the Tribunal at the hearing a letter from the Prosecutor’s Office in Odessa, addressed to [Mr E], dated [in] August 2018.
The applicant also provided a lengthy statement to the Tribunal. In that statement the applicant repeated her previous claims and further stated:
- She went to [Mr D]’s lawyer [Mr E] who told her that in Kiev, the case is being heard on the claim of [Mr C] to [Mr D] and it would be very helpful if she would speak in court. On 4June, 2014, by written order, dated 30 May 2014, she was summoned to the Prosecutor's Office of the Odessa region, where officer [Ms H] began to blackmail her threatening to open a falsified criminal case against her about assisting her son-in-law, who is wanted by the [police department], if she does not change the testimony that she gave to the police.
- Her son-in-law [Mr G] escaped from [a] hospital.
- They threatened they will suddenly find drugs on her grandson so he will end up in prison too. Her new testimony was "I am not sure that I heard precisely the name of [Mr C] from [Mr B]" and something else.
- [In June], 2014, lawyer [Mr E] called her and she informed him she had to give up her testimony, because she was threatened and blackmailed in the Prosecutor's Office.
- He told her that he was ready to be in charge of her legal defence in this matter. Her testimony will allow him to win the case in court against [Mr C]. [In June], 2014, after a conversation with [Mr E], she was attacked at the front door of her apartment with an attempt to kill me. A person connected with law enforcement agencies tried to kill her. Her phone conversation with [Mr E] was heard and intercepted.
- She did not report it to police, because she had no doubt that the attacker was associated with law enforcement groups. She went into hiding to Kharkiv with her daughter and son-in-law and family
- The applicant’s 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.
- mid-July, her son-in-law found out that the [police department] of Kharkov received instructions to establish his location and external surveillance of him and his family. It meant a threat to their lives and only departure from the country can save them.
- Already after their departure, the [police department] began to investigate the criminal case No, [number] of [date], 2014 regarding the applicant. This criminal case is combined with the criminal case of her son-in-law. She was accused of assisting him in disclosing state secrets (part 5 of article 27 and part 1 of article 328 of the Criminal Code of Ukraine). This was confirmed by the response of the Prosecutor's Office of the Odessa Region to lawyer [Mr E] dated [in August] 2018 No. [number].
- After 5 years after the events of May 2, 2014 in Odessa, the investigation is not over
  today. None of the organizers were punished.
- if returned to Ukraine, the applicant will be placed in the Detention Unit due to the presence of a criminal case against her. The conditions of medical care in Ukrainian prisons are extremely low and poor. Unfortunately, she has a serious illness (cancer stage 4) that developed after severe stress. That means that she will not be able to continue treatment in prison because she will not be receiving the necessary healthcare. People in Ukrainian prisons die, especially if they have a long term illness.
At a 2^nd Tribunal hearing it was put to the applicant that in her PVA she had stated that she overheard a conversation between [senior member] of the Odessa police [Mr B] and the [office bearer] of [Political Party 1] [Mr C] during clashes on May 2, 2014, on [Street 1]. At the previous hearing she stated that she was on Cathedral Square when she overheard the police conversation. She said it was not in Cathedral Square but in Grecheskaya Street.

Put that she said that when she went at 14.20. to Cathedral Square. [Mr B], was already there. At about 15.15 – 15.20 at Cathedral Square she crossed over the road. The policeman was standing there. At about 15.15 – 15.20 there were 2 groups in the Square, the Peace marchers and a group of football fans. The policeman was standing there. They were throwing stones at each other. There were about 700 people there. There were also about 300 people with guns. She said that there was an anti-Maidan scuffle and the ambulances were unable to get through the barricades. She saw a Colonel in military uniform and approached him to ask for assistance for the ambulances.
It was put that at 15.01 [Mr B] was in [Street 3] whilst the applicant claimed he was at Cathedral Square. 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 explained to the applicant that the ambulances did not come to the Square until one hour later, at 16.48. She said that it is not true, and she does not know about where he was. Also the ambulances were not called.
The applicant stated that she left the Square after telling the Colonel about the ambulances needing to enter the square. It was put that she also said that the Colonel let the ambulances into the Square, but the independent information indicates that the ambulance could not get through to Cathedral Square. The ambulance went to Preobrazhenskaya Street at 16.28 this was some time after the applicant left Cathedral Square. The applicant did not respond.
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. He has been declared a wanted man by Kiev who claim to be investigating the massacre and events leading up to it. So it is implausible that the police and prosecutor’s office would attempt to harm her as a witness as they wanted to prosecute him.
The applicant responded that [Mr B] was a big voice in the police service and was at Cathedral Square. She checked all the events and [Mr B] was at the place near where the action was. She is not aware [Mr B] had to report to Kiev because he was the top man in Odessa.
[Mr B] reported to Kiev but he reported to [Mr C]. It was put to her again he was in a different place on that day. She said there could have been time shifts. At the time there was a trench of military she was running through that.
Asked what she fears about returning to Ukraine as there is a change of government. She said that she believes that she will be arrested at the airport as they believe there is a criminal case against her.
What she fears about returning is that she went to the police and went to Department Public Prosecutions and they pressured her a lot and [police department] started case against her and she went to lawyer, and she was attacked with a knife.
I discussed independent evidence with the applicant that the State Bureau of Investigation, 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. There is a new government and she would be able to defend herself. She responded that the structures in Ukraine are only on paper, the new president is not able to control what is going on. The big structures will not be caught. They were everywhere saying the truth will come out and that is why she went to the police and asked for protection from them. Structures of [police department] but it was ex-KGB they do not change their way and never withdrew.
It was put she that she would not be able to leave through the airport. She said that when she left Ukraine [in] August they had fabricated a case against her.
It was put that there is a new government and there is nothing to prevent her returning to Ukraine. It was put to the applicant that she is able to obtain medical assistance in Ukraine for her condtion, but if she not able to, it does not amount to substantial harm.
The applicant’s daughter stated that at end May 20 she received a threatening telephone call and was told “your son is going to get it”. It was in a very rough voice. She rang her mother and asked her what was going on and her mother said that she has put her application into Department Public Prosecutions and before her husband applied to Public Prosecutions. She was asking her mother to withdraw her application as they were being threatened. This is all the evidence, but she saw her mother wounded when attacked by a knife and they were forced to leave all together. It was really scary and her children were in danger. She believes her other son who was an adult person was subjected to some physiological attack when shown his wounded father.
REASONS AND FINDINGS
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).
A s.438 Certificate in the Department file 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.
I disclosed the contents of the certificate. I notified the applicant that these documents were not relevant to the claims before the Tribunal and I therefore place no weight on them. 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.
I accept that there may be errors, omissions or misunderstandings that cannot be automatically attributed to an applicant's credibility or the applicant not being truthful. I am mindful of RRT guidelines on the assessment of credibility. I am also mindful that in the process of asking further questions and commenting on those questions during the process of assessing an applicant’s claims may mean that it is feasible an applicant will provide new information when he is asked to respond to or provide more details. I am also mindful that there can be interpreting errors, cultural differences and plausible explanations for inconsistencies other than deliberate falsehoods. I am also mindful that applicants who suffer from nervousness, anxiety, depression and or post-traumatic stress disorder may have difficulty remembering all recounting aspects of their claims. In particular they may block out or neglect to mention upsetting or traumatic experiences. I am also mindful that just because one part of an applicant’s claim is exaggerated does not mean that the entirety of the claim is dishonest.
Ukraine is a republic with a presidential-parliamentary system of government. The constitution provides for a directly elected president, a prime minister who is appointed by the president and confirmed by parliament, and a unicameral parliament (Verkhovna Rada). Ukraine continues to recover from the disorder that surrounded the ouster of Viktor Yanukovych from the presidency in 2014, as well as the related crisis sparked by Russia’s occupation of Crimea and military support for separatists in the Donbas area of eastern Ukraine. In 2014 Poroshenko won 54.7 percent of the overall vote and majorities in regions across the country. International observers deemed the vote competitive and credible. The authorities’ failure to prosecute extensive high-level corruption has undermined the popularity of the government and affected some reform efforts. June 30, 2018 Ukrainian comedian Volodymyr Zelensky was elected President with more than 73% of the votes. The former President, Petro Poroshenko, received 24% of the votes
The applicant is a retired [Occupation 1], she is a widow with an Australian citizen son. Her daughter, with her husband and children, travelled with her to Australia. The applicant and her daughter and family applied for a visitor visa to Australia on 13 April 2014. The applicant had returned to Ukraine from an earlier visit to Australia [in] December 2013.
The applicant has been treated for [cancer] in Australia and she has provided information regarding her medical condition and treatment in Australia. Her medical reports do not suggest that the applicant was unable to participate in the Tribunal hearings or that her treatment has affected her ability to recall events.
The applicant claims that on 2 May 2014, during the riots at about 15.15 – 15.20 the applicant went over to a policeman, [Mr B], because she was concerned that ambulances were unable to enter the Square where she was standing, and she spoke to the policeman and she overheard a conversation [Mr B] had with another person, that implicated him with the burning of the Trade Union Building that occurred later that day. She subsequently found out that the person with whom [Mr B] had the conversation was [Mr C], a [Political Party 1] member and now Parliamentarian. As she reported this conversation and made a statement to the authorities about this conversation, this created a chain of events that resulted in her being attacked, her son-in-law, daughter and grandson being threatened and harmed and the family fled to Australia. The applicant now fears that she will be imprisoned or killed or having a false charge laid against her by the police and the Prosecutor’s Office.
The incidents of 2 May 2014 in Odessa, are extensively documented. Internet news reports and utube posts can be located on the internet showing video of the protest from its commencement on a minute to minute basis.
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 Ukraine
Law 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.
Conclusion
116. 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).
DECISION
119. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Lilly Mojsin
Member

120.
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.
CONCLUSIONS
137. 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).
DECISION
141. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Lilly Mojsin
Member

Refugee criterion
142. 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 criterion
152. 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 considerations
155. 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.