1604952 (Refugee)

1604952 (Refugee) [2020] AATA 1787 (20 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1604952
COUNTRY OF REFERENCE:                   Ukraine
MEMBER:Lilly Mojsin
DATE:20 May 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 May 2020 at 11.38 am
CATCHWORDS
REFUGEE – protection visa – Ukraine – conscientious objection to call-up for reservist duty – civil conflict, not external enemy – not eligible for exemption – assault by call-up officers – no public expression of views – country information on military service and conscientious objection – military service non-selective – avoidance treated as criminal offence, not political – no current mobilisation program – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36, 65
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 dependants.
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 on 9 March 2016 to refuse to grant the applicant a protection visa 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 7 October 2015. The delegate refused to grant the visa on the basis that the applicant did not have a well founded fear of suffering serious or significant harm on his return to Ukraine.
The applicant appealed that decision to this Tribunal, annexing a copy of the Department decision to his application for review.
In passing the Tribunal would like to make clear that issues with the COVID Virus have played no part in the making of this decision.
CRITERIA FOR A PROTECTION VISA
See Annexure A
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s claims in his Protection Visa Application [PVA ][1] are summarised:
[1] [File number]
·He escaped Ukraine because there was a real danger to his life and freedom
·He started receiving mobilization Summonses as part of an anti-terrorist operation
He is not a professional soldier or officer and did not think that he would be summoned, however, people like himself are being summoned
·Ukraine TV programs are showing programs about Ruslan Kotsaba[2] , a journalist who refused to be mobilized and kill people
[2] “Report on the human rights situation in Ukraine 16 August to 15 November 2015”, Office of the United Nations High Commissioner for Human Rights, 09 December 2015, CISEC96CF14147;
·The applicant does not consider the current conflict in Ukraine to be a real war where there is an external enemy
·The applicant claims that he would be the first to go to serve his country, but if he were mobilised he would be expected to kill his own people, so he refused and tried to avoid being summoned
·The applicant’s son showed him a video about Ruslan Kotsaba being imprisoned for his calls not to participate in killing Ukrainian citizens
·Even though Ukrainian citizens want to gain independence and did not support “Maidan” it was not a reason sufficient to kill them[3];
[3] Protests at Central Square in Kiev -December 2013 - February
·The applicant showed the video to his friends and they decided not to respond to summonses
·The Military Commissar sent a patrol to bring his son and himself to a mobilization point but they hid in the basement
·Next time the patrol came to his work and demanded he obey the summons;
·The applicant sent his sons to study in [in another country] as he did not want them to lose their lives for the financial interests of some oligarchs
·The applicant fears he will be put in prison even though he is not nearly as famous as Ruslan Kotsaba, however, Ukraine is in such a situation now that anyone who is critical of the current regime is being in danger of being imprisoned or killed
·Maidan was all for democracy, but the applicant claims there is even less democracy and freedom in Ukraine than before Maidan
·On one occasion, the Military Commissariat people came and demanded that he go with them
·He refused and said that he would rather be in prison that be killed and kill other people
·He was hit hard and lost consciousness and only regained consciousness in hospital
·He vomited for three days and was diagnosed with a brain concussion
·He received another summons with a remark that if he did not present himself he would be taken forcibly and punished
·He left for Poland and then flew to [Australia]
·It was useless to ask for protection in Poland or anywhere in EU as this question is pretty politicized there and his interests would be sacrificed in the name of good relations with Ukraine.
The applicant attended an interview, with the Department, on 4 March 2016. A copy of the recording of the Department interview is held on the Department file. The interview is summarised:
·The applicant’s parents, despite being born in Poland were relocated to Ukraine in the mass population transfers of Poles and Ukrainians between 1944 and 1946.
·The applicant was born in [the] Ukraine in [year]. The applicant’s sister, resides in [another country].
·The applicant married [Ms A] [in] 1993 and the couple had two sons [who] are international students [in another country].
·The applicant’s spouse, remains in Ukraine. She is employed as the [Employee] of a [Company].
·The applicant lived [number] kilometres from the Polish border. The applicant’s parents and parents-in-law also remain in Ukraine and live nearby.
·The applicant graduated as an [Occupation 1], worked as an [Occupation 2] and currently works with a company as [an Occupation 1]. The company had previously held substantive contracts with Russia, but these had ceased in 2013 and the company owner was seeking out new markets including new business ties with Australia.
·The applicant he left Ukraine because of “Maidan” and the war in the Eastern Ukraine. In March 2015, the government started to enlist people for an undeclared anti-terrorist operation.
·He had received Summonses (mobilisation orders) but did not have them, because he had refused to accept them.
·Enlistment Orders were served on him, firstly around April 2015. A representative of the Military Enlistment Office came to his door, but he refused to touch the Summons and he refused to sign for it. The second time was around July 2015 when both he and his son were issued with orders that he refused to accept or sign for them. On a third occasion, people at his work told him that someone came around trying to serve the Summons on him, but they wouldn’t accept it or sign for it. The applicant stated that the attempt was a farce. On the fourth occasion, two men wearing civilian dress and one man in uniform came to his door at the end of July 2015 or the beginning of August 2015. He answered the door but once again refused to accept the Summons. He told the men that he would rather go to jail than kill people. He remembered he received a heavy blow to his stomach and another to the back of his neck, but he really did not remember much. Then, his wife came home and she called an ambulance.
·The applicant stated that he had performed his National Service from July 1988 to June 1990, and all men up to the age of 65 were now being enlisted.
·Asked how he was able to depart Ukraine without incident, given that he claimed he had come to the adverse attention of authorities for Draft Evasion, he stated that it was a Special Summons, because it is an undeclared war and an anti-terrorist operation.
·He did not depart Ukraine with the intention of seeking Protection, but once he had entered Australia the opportunity presented itself.
·Put that he held a valid Schengen State visa, under which he had the right to enter and reside in any of the 26 Schengen State countries, all of which are State Parties to the Convention. He had not taken gone to one of those states as EU did not want to accept any refugees from Ukraine, they are afraid of Russia.
·He claimed he did not want to shoot people and Ukraine had a non-military option for conscientious objectors
·The journalist, Ruslan Kotsaba, had been a prisoner of conscience and had been imprisoned for one year.
·He feared authorities would continue to send him Summonses and enlist him. Should he be sent to East [East Ukraine] he would not come back. He stated that the conflict was all wrong and there is no official war in the Ukraine.
·He did not come to Australia for the purpose of applying for Protection, but to establish business contacts. He added that he was a good citizen, and should Australia ask him to return to Ukraine, he would return.
At the Tribunal hearing the applicant advised the Tribunal that he was born in [year]. The applicant confirmed that the information he provided in his PVA was true and correct.
The applicant said that he was working for a company from 2011 until 2015, in Ukraine producing [products]. His company sold most products sold to Russia. When war broke out in 2014, all those ties were broken so his boss started to look for alternative markets to sell their products. No competitors had connections in Australia, so he decided to be the first and to attend an exhibition in [Australia] for [product process]. He wanted to go somewhere and leave Ukraine. The fact that he ended up in Australia was a mere chance.
He went to Poland for his company, but he did not go very often. Asked why he did not return to Ukraine he said that he was received call up papers from the military in spring 2015 before Easter, at end of June 2015. The 3^rd call up was in July 2015 to his work place and they did not find him. He refused to accept call up papers in early August, he refused to accept them and 2 civilians beat him up. He thinks they were officers from the enlistment office. There were lots of cases like this, they could be police. Asked why he did not wish to accept the papers as a reservist he said that he is not a young man and he understood the war and whose interests were being fought for. He decided he would not go and would not let his sons go. His sons are now in [another country]. They are able to stay there as they are studying there and working there. They are able to remain their because they have student visas. Lots of people send their children to study in [overseas]. He works in Australia he works casually in the [work sector].
The applicant confirmed that he completed his military service from 1988-90 when Ukraine was still the Soviet Union. He is still a reservist.
The applicant and his boss crossed the border into Poland and on [in] September they left Warsaw by plane. He does not wish to return to Ukraine because mobilisation is still going on and those people were not the same and they came again and he does not feel comfortable that they will come again. Asked if it was the only reason he said yes he has the feeling if he goes to war he will not come back.
The applicant confirmed that he is an ethnic Ukrainian.
I discussed with the applicant my view that enforcement of laws providing for compulsory military service, and for punishment for desertion or avoidance of such service, will not ordinarily provide a basis for a claim of persecution for reasons of his race, religion, nationality, membership of a particular social group or political opinion because it lacks the necessary selective quality. The applicant said that he told them he would not be able to take a gun and he would not be able to fire a weapon, if he had to kill he would not be able to live. He explained to them the next time as well they only laughed.
I discussed with the applicant the independent evidence regarding the new government of the Ukraine in 2014 declaring six waves of mobilization in 2014 and the problems with getting the summons to potential draftees, and in September 2016 a seventh wave of mobilisation began and ended. I discussed that the age limit of staying in reserve was increased for the second class from 50 to 60 – for privates and sergeants, from 55 to 60 – for junior and senior officers, to 65 – for high rank officers. The applicant said that he expects to be a reservist for another 10 years.
I also discussed information that draft evasion and desertion are criminal offences and punishable by imprisonment but in practice, the courts issue fines or suspended sentences in most cases and such penalties are neither disproportionate nor excessive. He responded that he understood.
Discussing independent evidence that persons targeted for mobilisation included persons with past experience as paratroopers, grenade launchers, in artillery, logistical support, and other personnel (including physicians, electricians, mechanics and drivers) he said he is not in that category but he served in the [support] troops as [Occupation 3]. Put does not appear they are singled out and he responded that in 2015 they did not, they were not so selective. He referred to an elderly woman who had an elderly son and he said they wanted to take him. Police and military would just take them off the streets or in the nightclubs to check their ids and then give them all call up papers.
I put that there is no evidence to suggest that the Ukrainian government views a person’s refusal to participate in military service as an act of political opposition. He did not agree and said that a journalist from Western Ukraine who was telling people to evade military service and not go into the army was detained in Ukraine. I put that if persons are punished on return to the Ukraine, it is likely to be simply for the criminal offence of evading or deserting national service or the call-up. There are numerous exemptions, which include conscientious objection on religious grounds for members of religious organizations registered in Ukraine.
I indicated that I had not found any independent evidence to suggest punishment for draft evasion or desertion is disproportionately harsh or severe. I also put to the applicant that there was no evidence to suggest that he has ever publicly voiced his opinions about completing reservist duties or publicly identified himself as a conscientious objector. He said that he has not, other than with his friends and family. Asked about his friends the same age, he responded ‘yes’ there are people who received the papers, still half did not receive papers but he does not know why. Further, he confirmed there was no selectivity for call up based on a characteristic or reason set out in s.5J(1)(a).
The applicant said that he is a law obedient citizen. He is in Australia and if asked to leave will have to go. But he would like the Tribunal to take into consideration he is decent and good man.
REASONS AND FINDINGS
On the basis of his Ukrainian passport, I accept that the applicant is a national of Ukraine and not a national or citizen of any other country. The applicant held a Schengen visa that expired [in] July 2015 and allowed for 90 days, multiple entries. Ukraine is not one of the 26 countries that have signed the Schengen Agreement[4]. Therefore, the applicant does not hold a visa that gives him and right to enter and reside in a Schengen country, it only give him a right to enter a Schengen country for a maximum 90 days. Therefore, I accept that he does not have a right to enter and reside in any country other than Ukraine. 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 applicants’ “receiving country” for the purposes of s.36(2)(aa).
[4] >
In considering this application for review, I have considered the relevant Australian case law where the enforcement of compulsory military service and punishment for desertion or avoidance of such service has been judicially considered. In Australian law, enforcement of laws providing for compulsory military service, and for punishment for desertion or avoidance of such service, will not ordinarily provide a basis for a claim of persecution within the meaning of the Refugees Convention because it lacks the necessary selective quality. Without evidence of selectivity in its enforcement, conscription will generally amount to no more than a non-discriminatory law of general application.
The applicant is a Ukrainian citizen and an ethnic Ukrainian. He is [age] years of age. He gave evidence to the Tribunal in a forthright manner. I accept that prior to leaving Ukraine he received 4 call up notices. I accept that his son also received call-up notices and both his sons left Ukraine to study in [another country].
On 1 May 2014 the acting President of Ukraine signed a decree reinstating military conscription for males between the ages of 18 and 25 (who did not qualify for exemption). However, in January 2015, the upper limit of compulsory military draft age for male citizens was raised from 25 to 27 years. In April 2015, Ukraine Today noted that ‘Previously, the ministry recruited men from 18 to 25 years, but now their age is to be from 20 to 27 years.’
President Poroshenko’s official website reported on reservists in August 2016:
‘President Petro Poroshenko signed the Law to raise the age limit for military service in reserve for those who have the experience of military service and may be used to resupply the Armed Forces of Ukraine and other military formations. ‘In accordance with Law № 1604-VII “On amending Article 28 of the Law of Ukraine “On military duty and military service”, the age limit of staying in reserve is increased for the second class from 50 to 60 – for privates and sergeants, from 55 to 60 – for junior and senior officers, to 65 – for high rank officers.
The applicant is now [age] years of age, he was born in [year]. He is not eligible for call up/conscription. I accept that he is a reservist.
The applicant left Ukraine in September 2015, with a passport in his own name.
Over the two years from 2014, the new government of the Ukraine declared six waves of mobilization[5], a special kind of military draft separate from regular conscription that is used to respond to an emergency. The draft was needed to boost military units sent to fight the rebellious eastern regions of Donetsk and Lugansk. Ukraine nearly doubled the strength of its army from the initial 130,000 to 232,000 in 2014 and wanted to have 250,000 standing troops. It is reported that 210,000 people were drafted overall, some of them already demobilized. ‘The initial surge of volunteers dwindled while the number of people who would rather risk prosecution for dodging the draft than put their necks on the line increased. ‘During the latest sixth wave in July-August 2015, the Ukrainian military managed to get just over 60 percent of the intended draftees, the Defense Ministry reported. There were 8.5% of volunteers amongst them. ‘The military complained that its officers often had problems with getting the summons to potential draftees, who moved to another address or simply refused to open their doors. Of those who did get their summons, over half chose to ignore it and run. The ministry said 26,800 men are now subject to prosecution for avoiding military service.
[5]

After the applicant’s departure to Australia, in September 2015, a seventh wave of mobilisation began. Reporting in October 2016, Ukraine Interfax News Agency stated that 7,908 people will be sent to the Armed Forces of Ukraine, 5,000 people to the National Guard and 1,000 people to the State special transport service out of the total number of conscripts’....As the General Staff of the Armed Forces of Ukraine reported later on the official Facebook page, the conscript will finish on November 30, 2016. ‘At the same time, army discharge of those who have served fixed term of time military service has started. A total number of those who must be released in October-December 2016 is 8,315 people.’
I am satisfied that despite being attacked in August 2015 the applicant did not depart Ukraine with the intention of seeking protection in Australia, but because he and his boss wished to complete business in Australia and once he had entered Australia, “the opportunity presented itself”.
On the information before me, I am satisfied that the applicant left the Ukraine and arrived in Australia as the holder of a business visa and that whilst he suffered harm in Ukraine, when he was attacked by persons attempting to serve him with mobilisation papers, in August 2015, I am not satisfied that the harm he suffered was for reasons of race, religion, nationality, membership of a particular social group or political opinion but rather for refusing to accept mobilisation papers.
I am required to consider the situation if, in the reasonably forseeable future, the applicant were to return to the Ukraine, that there is a real chance the applicant would suffer serious harm for reasons of his race, religion, nationality, membership of a particular social group or political opinion or there is a real risk the applicant would suffer significant harm.
According to UK Home Office Country Policy and Information Note, November 2016[6] Ukraine's acting President Olexander Turchynov reinstated military conscription to deal with deteriorating security in the east of the country…Kiev scrapped compulsory military service for young men in late 2013 under a law introduced by then President Viktor Yanukovych. Regular military conscription of 18–25 year-old men was reinstated. As the conflict in the East intensified the Government in Kyiv instituted military mobilization in order to bring additional qualified personnel into the army.
[6]
The President issued three decrees on “partial mobilization” in 2014 dated 17 March, 6 May and 22 July respectively.
· Persons targeted for mobilization included persons with past experience as paratroopers, grenade launchers, in artillery, logistical support, and other personnel (including physicians, electricians, mechanics and drivers).
· Regular military conscription of 18–25 year-old men was being carried out between May-July and October-November 2014. Under Ukrainian law, conscripts serve for twelve months.
The applicant is now over [age] years of age. He confirmed he does not have past experience as a paratrooper, grenade launcher, in artillery, logistical support, and other personnel (including physician, electrician, mechanic and driver), rather he served in the [support] troops as [an Occupation].
There are numerous exemptions, which include conscientious objection on religious grounds for members of religious organizations registered in Ukraine. According to the UNHCR, Ukrainian Law No. 3543-XII of 21 October 1993 On Mobilization Preparedness and Mobilization[7] the following categories of people can be exempted from military draft during mobilization: employees of State authorities; local self-governance bodies; enterprises, institutions and organizations blocked for the mobilization period; persons recognized as unfit to serve due to health condition subject to certification every six months; caregivers to three and more children below 18 years old; single parents of children below the age of 18 years; caregivers of children with severe disabilities; legal guardians and foster parents of orphans or children deprived of parental care; caregivers to spouses or parents in severe medical condition; and parliamentarians. I have no information before me to suggest that the applicant meets one of these categories of exemption.
[7]
According to UK Home Office Country Policy and Information Note, November 2016[8] there is no evidence to suggest that the Ukrainian government views a person’s refusal to participate in military service as an act of political opposition. If persons are punished on return to the Ukraine, it is likely to be simply for the criminal offence of evading or deserting national service.
[8]
Following reforms of the penitentiary system in Ukraine in 2014, conditions in some prisons and correctional facilities have already been improved and Ukraine plans to implement further reforms to bring conditions more in line with European standards. Fewer cases of torture and mistreatment have been recorded by human rights organisations since 2012. In addition, the Supreme Rada of Ukraine transferred the functions of the key monitor of the ‘National Prevention Mechanism’ to the office of the Ukrainian Ombudsman. The EU and the Council of Europe have provided more than €10,000 to Ukraine to assist with these reforms, in particular to bring procedures and practices in prisons in line with European standards and to support the improvement of prison inspection and handling of prison complaints.
With support from the Ukrainian government, and with recommendations from the Council of Europe, the Ministry of Justice of Ukraine along with the State Penitentiary Service have improved the conditions in some prisons and have succeeded in reducing the number of prisoners who serve their sentence within state institutions. Many individuals are now placed under house arrest rather than in pre-trial detention centres. A new mechanism for probation was also introduced in 2015. In addition to this, the Ministry of Justice of Ukraine plans to reduce the number of prisons and detention centres in Ukraine by half and to update and improve aging remand buildings
As the applicant is over 50 years of age, he is not eligible for compulsory military service. I find remote the chance that the applicant would be conscripted in light of the evidence before me that since 2014 the Ukraine authorities have been extending the age of conscription but not as yet past 27 years of age.
I acknowledge that there is no civilian alternative to military service and penalties for draft evasion in Ukraine. On the information before me, the applicant has served in the military so he is a reservist. I have found no independent evidence to suggest that there are civilian alternative to reservist duties. There is currently no domestic legislation in Ukraine providing a legal basis for conscripts or reservists to claim exemption from military service on the basis of conscientious objection but Ukrainian Law No. 3543-XII grants limited exemptions. On the information before me, the applicant does not claim to be eligible for any categories of exemption.
I have considered whether the applicant would be prosecuted or punished on his return to Ukraine for avoiding mobilisation.
I have found no independent evidence to suggest that former reservists who return from abroad are prosecuted for avoiding their mobilisation in 2015 or subsequent mobilisations. I am of the view were it the situation it would be known to independent sources. Therefore, I am not satisfied that the applicant would be prosecuted on his return to Ukraine.
I have considered were I to be wrong and the applicant were prosecuted or punished for avoiding mobilisation.
Draft evasion, desertion and avoidance of mobilisation are criminal offences and punishable by law. UK Home Office Report on Ukraine March 2020[9] states:
‘In 2016, several […] criminal investigations were also launched concerning supposed draft evaders. Among them, a man, declared liable and fit for the military service, was sentenced to a deprivation of liberty for declining military draft under mobilization in a written statement in his application to the military commissar of Gorodishchenskyi district military commissariat (DMC). However, according to the Ukrainian Law Firm Ilyashev & Partners, “in each concrete case the court defines the degree of the person’s guilt under the actual circumstances and, if the person cooperates with the investigation authorities, the court applies more subtle type of punishment without isolation of a person from society”.’
Avoidance of mobilisation shall be punishable by ‘imprisonment for a term of two to five years’. The Ukrainian Ministry of Defense have no information about persons previously convicted under Article 336 of the Criminal Code of Ukraine (Avoidance of Mobilisation) being mobilised during any of the mobilisation campaigns of 2014-16.
[9] >
Evasion of mobilisation is punishable by imprisonment of two to five years. However, in practice, the courts issue fines or suspended sentences in most cases. I note that the evidence before me indicates that currently there are hundreds of cases opened in Ukraine for draft evasion. In practice (according to the Registry of Court Decisions), 77 guilty verdicts were issued by courts as of February 2016. The majority of these were immediately released on probation. The independent evidence indicates that draft evaders are usually given fines or suspended sentences, in most cases. I note that in 2016, 26 800 men were subject to prosecution for avoiding military service but of those who appeared before the courts in February 2016, the majority were immediately released on probation. I accept the independent evidence[10] that such penalties are neither disproportionate nor excessive.
[10] UK Home Office Country Policy and Information Note Ukraine Conscription, November 2016
Therefore, I am not satisfied the applicant will suffer serious or significant harm, for avoiding mobilisation in 2015, on his return to Ukraine.
After completion of military service Ukrainians remain as reservists in the army, subject to mobilisation. Reservists are required for duty until 60 years of age. Whilst the law of conscription/reservists is discriminatory in that it only applies to men of a particular age, I am satisfied that it is appropriate and adapted to achieving a legitimate object of protecting the security and safety of Ukraine and its population. In 2014 as the conflict in East Ukraine intensified the Government in Kyiv instituted military mobilization in order to bring additional qualified personnel into the army. Within 2 years there were 6 waves of mobilisation targeting different groups and whilst I am satisfied those waves of mobilisation were discriminatory in that different waves targeted different groups in society eg. paratroopers or physicians, I am satisfied that mobilisation of reservists and those who have not served previously in the military is appropriate and adapted to achieving a legitimate object of protecting the security and safety of Ukraine and its population.
In light of the independent evidence, I find that the laws governing conscription, mobilisation and reservist duties in Ukraine are laws of general application that are appropriate and adapted to a legitimate national objective of protecting the security and safety of Ukraine and its population. I have found no independent evidence to suggest that the conditions of military service or reservist duties would be so harsh as to amount to persecution.
I have also considered whether, on the applicant’s return he would be called up for reservist duties and he would seek to avoid that duty and would be punished for evasion of reservist duties.
The independent evidence regarding the Ukraine indicates that the war in Donbass is ongoing. I have found no independent evidence to suggest that Ukraine is mobilising reservists for military service.
The applicant has referred to Ukraine TV programs that show programs about Ruslan Kotsaba[11], a journalist who refused to be mobilized and to kill people. Ruslan Kotsaba[12] appealed on YouTube to boycott Ukraine’s military call-up in June 2015. The journalist blogger from western Ukraine was under arrest by the Security Service of Ukraine (SBU), accused of treason and espionage. He was arrested during the controversial fourth round of mobilization, aimed at calling mostly reservists between 25 and 60 years old into service. In May 2016, Kotsaba, who has been declared a prisoner of conscience by Amnesty International, was sentenced to over three years in prison for obstructing the Ukrainian army. He was released in July 2016[13], unexpectedly under domestic and international pressure. The applicant is neither a blogger nor a journalist and does not claim to have expressed his opinion against the war, publicly.
[11] Report on the human rights situation in Ukraine 16 August to 15 November 2015, Office of the United Nations High Commissioner for Human Rights, 09 December 2015
[12] >
In regard to the applicant being mobilised on his return to the Ukraine, I note that persons targeted for mobilisation included persons with past experience as paratroopers, grenade launchers, in artillery, logistical support, and other personnel (including physicians, electricians, mechanics and drivers). The applicant agreed that he does not meet that profile. According to the legislative and regulatory compliance practices medical opinion on fitness for military service may be appealed through the court.
Ukraine[14] on 3 December 2018 called-up the first of “several hundred” army reservists for training and to ramp up Ukraine’s defences, according to the country’s Armed Forces. The reserve soldiers have been summoned for 20-day military drills at firing ranges in Zaporizhia and Kherson oblasts. The training is designed to bring reserve soldiers into readiness “in case Russia starts open aggression” as well as to “refine the format of how to use mobilized reservists” when emergencies occur.
[14] >
The press service of the Ukrainian Ministry of Defense[15] stated that starting Monday, December 3, 2018, large-scale call-up of reservists and those liable for military duty will begin.
“In part, reservists will be called to duty for up to 15 days to command units and up to 20 days to training centers. Therefore, it is assumed that all the events will be completed before the beginning of the New Year holidays,” noted the Ministry.
“However, mobilization will only be carried out in the case of open aggression. In such situation, not only those on active duty but all reservists and those liable for military service will be called to duty in the Armed Forces of Ukraine,” the Ministry stated.
In addition, in areas in which martial law has been introduced, gathering of those liable for military service will last for 10 days. During this period, "combat coordination of brigades and territorial defense battalions will be held in order to prepare for the defense of these regions."
[15]
Further, information from the press service of the Ukrainian Ministry of Defense[16] stated
“…, mobilization will only be carried out in the case of open aggression. In such situation, not only those on active duty but all reservists and those liable for military service will be called to duty in the Armed Forces of Ukraine,” the Ministry stated.
[16]
A ReliefWeb report published on 26 December 2018[17] stated that there was no report on mobilization. However, the first reserve force of the military units (personnel aged under 40 who were previously deployed on military services - mostly 'ATO' veterans) went through additional trainings spanning from 1 day to 20 days.
[17]
I have found no independent information to suggest that reservists have been mobilised for military duties in the past 3 years, other than some attended training for up to 20 days. I am of the view that were the situation it would be known to independent sources.
I have found no independent evidence to suggest that since 2018 there has been any training duties for reservists. I am of the view that were the situation it would be known to independent sources.
I therefore find remote the chance that the applicant will be mobilised as a reservist to complete military service on his return to Ukraine. I also find that there is no real chance or real risk that the applicant will suffer serious or significant harm in the Ukraine as a draft evader or deserter on his return to the Ukraine, were he required to complete military service because he is a reservist and refused to do so.
I have considered the credibility of the applicant’s claims that he is a conscientious objection to military service. The applicant has not claimed, and there is no evidence to suggest, that he has ever publicly voiced his opinions about completing military service, reservist duties or publicly identified himself as a conscientious objector.
According to guidance by the UNHCR[18], conscientious objection to military service refers to an objection to such service based on principles and reasons of conscience, including profound convictions, arising from religious, moral, ethical, humanitarian or similar motives. Such an objection is not confined to absolute conscientious objectors, that is, those who object to all use of armed force or participation in all wars, but can encompass those who believe that the use of force is justified in some circumstances but not in others. Overall, I found the applicant's evidence about why he objected to military service to be limited to generalities (ie he would be expected to kill his own people). When put that he has not expressed his views publicly, he said that he has not other than to his friends and family. I am not satisfied that expressing a view to friends and families, amounts to expressing a view in public. Therefore, I am not satisfied that the applicant is a conscientious objector to military service or to all forms of military service, or to mandatory military service or military service as a reservist in Ukraine. Therefore, I am not satisfied that the applicant would express an opinion or act in such a way as to cause him to be imputed with an opinion that is opposed to reservist duties, compulsory military service or to military service more generally. I do not accept that he would speak out against conscription. I do not accept that the applicant has a well-founded fear of persecution because he is a conscientious objector. As I do not accept the applicant is a conscientious objector, I do not accept that there is real risk he will suffer serious or significant harm on this basis.
[18]
I do not accept that the applicant is a conscientious objector and I do not accept that he will be perceived as such were he to be required to complete military service as a reservist. I do not accept that the applicant will be mistreated or arbitrarily deprived of his life during mobilisation and military service as a reservist, or that he will be arbitrarily deprived of his life, or that the death penalty will be carried out on him, or that he will be subjected to torture, or that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment because he is, or is perceived to be, a conscientious objector.

I have considered the applicant's claims singularly and cumulatively. I have found that the applicant’s chances of being mobilised are remote, I also do not accept that he is a genuine conscientious objector or that he was, is or will be considered to be a draft evader by the Ukrainian authorities and I do not accept that he will be harmed for these reasons. I have found that, as a result of a law of general application, if the applicant were to have military service obligation as a reservist in Ukraine, he will not seek to evade conscription or resist or object to the requirement to complete his military service or mobilisation.
Having regard to the available country information, I am not satisfied that there is a real chance that the applicant will face serious harm at the hands of authorities, or any other persons or group for reasons of his religion, actual or imputed political opinion, his membership of a particular social group of conscientious objectors or for any other reason if he returns to Ukraine. I am satisfied there is not a real chance that he will be subject to serious harm for one or more of the reasons set out in s.5J(1) or for any other reason if he returns to Ukraine now or in the reasonably foreseeable future. The applicant does not satisfy the criteria in s.36(2)(a).
As I have found the applicant does not have a genuine conscientious objection to military service and as I am satisfied he will not be perceived as a conscientious objector and as I am satisfied he will not be perceived to be a draft evader or that he will evade or illegally avoid military service if he returns to Ukraine, I do not accept that he will be prosecuted and potentially imprisoned and mistreated for these reasons.
I have considered whether there is a real risk that he will face significant harm if he is required to complete military service obligation. Reuters[19] reports
"There's been negative publicity from the conflict zone ... There were problems with nutrition, medicines and the winter uniform. Patriotism is falling…. Poroshenko's government has also taken steps to improve conditions for those sent to the front. Last year it spent 5 percent of Ukraine's gross domestic product on the military, enabling the army to revamp its creaking Soviet-era hardware…Scandals over corruption and incompetence in the military are now less frequently splashed across the media, but have not disappeared. "
The US Department of State country report on human rights practice Ukraine covering events in 2016, stated that:
‘There were reports of hazing in the military. On August 4 [2016], the country’s human rights ombudsman sent a letter to the Prosecutor General’s Office and the Ministry of Defense expressing concern about military hazing following the suicide of Vlad Khaisuk, a young soldier serving in a unit stationed in Stanytsia Luhanska. After Khaisuk’s suicide, his parents found videos on Khaisuk’s smartphone of him being hazed and humiliated by other soldiers. The Luhansk Department of the Military Prosecutor’s Office investigated and found no signs of military hazing. At year’s end, however, police in Stanytsia Luhanska were investigating the accident as a homicide.
[19] Reuters. ‘Ukraine struggles to recruit soldiers for war in east,’ 4 February 2016.
I accept that there were problems with nutrition, medicines and winter uniform for those serving in the military and that an incident of hazing occurred which is being investigated. The Constitution provides for a human rights ombudsman, officially designated as Parliamentary Commissioner on Human Rights. 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[20].
[20]
On the evidence before me and having regard to the available country information, were the applicant to be mobilised, I find remote the risk that as a military reservist 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 he will be subjected to degrading treatment or punishment by the Ukrainian authorities. I therefore find that there are no substantial grounds for believing that there is a real risk that the applicant will be subject to significant harm completing military service as a reservist on his return to the Ukraine. Having considered the applicant's claims singularly and cumulatively, I find that the applicant does not face a real risk of 'significant harm' in Ukraine.
Therefore I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ukraine, that 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. The applicant does not satisfy the criteria in s.36(2)(aa).
Conclusion
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).
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).
There is no suggestion that the applicant can satisfy 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
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Lilly Mojsin

Member
ANNEXURE A
CRITERIA FOR A PROTECTION VISA
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, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 1787

20 May 2020

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