1604952 (Refugee)

This matter concerned an application for a Protection visa by a Ukrainian national. The applicant claimed he fled Ukraine due to a real danger to his life and freedom, specifically citing his refusal to be mobilised for an anti-terrorist operation, which he did not consider a genuine war against an external enemy. He expressed a conscientious objection to killing his own people and recounted instances of being forcibly approached by military officials, including an assault that resulted in a concussion. The applicant sought protection in Australia after being unable to obtain it in the European Union.

The core legal issues before the Tribunal were whether the applicant met the criteria for a Protection visa under section 36(2)(a) of the Migration Act 1958 (Cth) as a refugee, or alternatively, under section 36(2)(aa) as a person to whom Australia owes protection obligations due to a real risk of significant harm if returned to Ukraine. Specifically, the Tribunal had to determine if the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, or if he faced a real risk of significant harm, including torture, cruel, inhuman, or degrading treatment or punishment, or arbitrary deprivation of life.

The Tribunal found that while draft evasion, desertion, and avoidance of mobilisation are criminal offences in Ukraine, independent evidence indicated that penalties for such offences typically involve fines or suspended sentences, with imprisonment being less common. The Tribunal was not satisfied that the applicant was a genuine conscientious objector, noting his failure to publicly express his views beyond discussions with friends and family. Furthermore, the Tribunal found the chance of the applicant being mobilised as a reservist to be remote, and even if mobilised, there was no real risk of him suffering serious or significant harm. The Tribunal concluded that the applicant did not meet the refugee criterion under s.36(2)(a) nor the complementary protection criterion under s.36(2)(aa).

Consequently, the Tribunal affirmed the decision not to grant the applicant a Protection visa, finding that Australia did not have protection obligations towards him under either the refugee or complementary protection criteria.