1605420 (Refugee)

[2019] AATA 6747

1605420 (Refugee) [2019] AATA 6747 (4 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1605420

COUNTRY OF REFERENCE:                   Ukraine

MEMBER:Lilly Mojsin

DATE:4 September 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 04 September 2019 at 12:14pm

CATCHWORDS

REFUGEE – protection visa – Ukraine – threat of war – evacuation scares – de facto relationship – veteran – reservist duties – health issues – no evidence provided – remote risk of harm – not a witness of truth – decision under review affirmed   

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 March 2016 to refuse to grant the applicants protection visas [PVA] under s.65 of the Migration Act 1958 (the Act).

2.The applicants, who claim to be citizens of Ukraine, arrived in Australia [in] December 2014 and applied for the visas on 20 March 2015.

3.The delegate refused to grant the visas on the basis that the delegate was not satisfied that the first named applicant [applicant] would suffer serious or significant harm on her return to the Ukraine. The applicant appealed that decision to the Tribunal, annexing a copy of the Department decision to her application for review.

CRITERIA FOR A PROTECTION VISA

4.See Annexure A

CONSIDERATION OF CLAIMS AND EVIDENCE

5.The applicants are citizens of the Ukraine. The first named applicant [applicant] first travelled to Australia for 20 days and arrived [in] November 2007, departing [later in] November and she returned to Australia [in] December 2014.

6.In her PVA[1] the applicant claims that:

[1] [File number] Folios 20 - 22

·The applicant is a [age] year old Ukrainian woman who speaks, reads and writes Russian, Ukrainian and English. 

·She has travelled to [Country 1], [Country 2] and [Country 3] between January 2010 and October 2014.

• The applicant has been employed by several [Industry 1] companies in Ukraine from 1995 until June 2015.

• She asked her friend to invite her to Australia because the company she worked for was based in Donetsk and she was required to visit there frequently during the course of her work.

• She was in fear of her life each time she entered the war zone.

• She constantly felt threatened and her property was damage. Very frequently she was advised to evacuate “the building”.

• She moved back to Kiev after a trip to Donetsk but the situation there was not safe. There were frequent evacuation scares and she considered moving outside the urban areas.

• She fears total war is inevitable and then Kiev will be under the control of “Putin”.

• She is unable to seek help because “so many were in the same situation”.

7.The applicant attended an interview at the Department on 7 July 2015. A copy of the interview is held on the Department file. The applicant additionally advised the Department that she formally resigned from her employment in Ukraine [in] June 2015. Her spouse was self-employed in Ukraine. She had worked for a company whose head office is in Donetsk. The applicant lived in Kiev. She travelled from Kiev to the head office 3 times over the past 3 years since November 2012 so when talking to colleagues in Donetsk she could hear explosions.

8.Her fear of returning to Kiev and Ukraine in general was the “war”.  She was not a member of any political party or organisation and the only march she had attended was the Orange Revolution which was 10 years ago. She attended recent marches when she was not working.

9.She was in Kiev the Trade Union Building was on fire. She said that her personal property was damaged. Her car was damaged by thugs employed by the government while she was distributing warm clothing and blankets to wounded people at Michaevsky Cathedral in Kiev.

10.At the Tribunal hearing on 22 August 2019 the applicant said that she and her de facto partner have been living in a de facto relationship. She grew up in [a named city], Ukraine. She studied [at a named college], [in Course 1] and she enrolled at [a named] uni at Kiev and she studied [Course 2] in [year] in Kiev. She completed her thesis via distance education. She was working [in a senior Industry 1 position] at [Company 1] and then [Company 2], and most recently with [Company 3] based in Donetsk. She was living in Kiev and went on business trips to Donetsk. The second named applicant was [an Occupation 1] but was working as [an Occupation 2] for a couple of years. She is now working as [an Occupation 3]. 

11.Asked why she left the Ukraine she said that she was stressed at the time and was talking to a friend in Australia who suggested she come to Australia. When the war started she was very affected by it and was crying every day. Her friend said you are stressed so this does not happen, come to Australia.

12.Asked why she does not wish to return to Ukraine she said that she is reading the news and every day something happened and Ukraine is circled by enemies and Russia can attack at any time. She said that she is very afraid as her grandmother told her about the war and she is afraid the war would start.  She said Kiev is only 2 hours from the border.

13.She said biggest problem she is Ukrainian and Russians hate them and they want to kill all Ukrainians. Her grandfather used to say if you have a Russian next to you a Ukrainian will be dead. They are getting ready for the war and there are military exercises in Belarus. Put that she returned to Ukraine from [Country 3] and [Country 2] after a visit there. She responded that she did not feel very safe in Europe either. Only in Australia she felt very safe.

14.I explained to the applicant that she did not appear to have suffered serious harm. I asked if she had anything further she said she just wanted to stay in Australia until the war is finished.

15.The second named applicant, who attended the Tribunal by telephone, when asked if he had any information he wished to provide to the Tribunal asked that his wife leave the room. I asked that applicant what it was about and he said that the situation is directly related to the application. I advised the second named applicant that even if he gave me information that he did not wish his wife to know about it would still be detailed in the Tribunal decision. The applicant did not wish to leave the room. I adjourned the hearing.

16.On recommencing the hearing the applicant did not leave the hearing room.

17.The second named applicant advised that he was a former Afghanistan veteran, he was in the war and he knows about war, not from books but saw it with his own eyes and he knows what war means. When all this started in Ukraine people like him had war experience behind them and received call up notices and he was wanted as an instructor. He said he refused to do that and did not want to take part in the war. He is now [age] years of age.

18.I put to him that he will not be called up as he would be too old. He said that the situation has changed significantly. He said that when he refused to work as a trainer of personnel going to the war, he got a warning and then he received threats and was beaten up in 2013 and had to stay at home.  He had his joints dislocated. It was the C14 the nationalist organisation and they have not changed. He told his wife he just had an argument.

19.I put to the second named applicant that he had not advised the Department of this claims.  He responded that he did not want his wife to know about it. He did not want to tell her today either. The threats he received were real as the nationalists know where he lives and where the apartment is. He does not want to go back to Ukraine because he is not a soldier.

20.Asked why nationalists would attack a former Ukrainian army soldier, he responded that the reason was his refusal to go and work as an instructor. I put to him that it was implausible that the government was providing information as to which instructors are refusing to work for them and reporting it to c14. He said that is how he understood it that time, there was not official order or information about this. It is how he perceived it. He was threatened and warned by people. He had to spend a month and a half in bed.

21.Asked if he reported it to the police he said he did not. The police are corrupt.  Asked what he fears about going back to the Ukraine he said that he is afraid it will happen again these young people are getting stronger. Put that he can report incidents of harm to the police, they are an effective police service.  He did not agree.

22.I then asked the applicant to comment. She responded that regarding the incident of her husband she thought it was a usual incident between men. She is concerned if he has to go back he has [Medical Condition 1] and can just die on the way back and he has [Medical Condition 2].

REASONS AND FINDINGS

23.On the basis of their Ukrainian passports, I accept that the applicants are nationals of Ukraine and not nationals or citizens of any other country. I accept that they do not have a right to enter and reside in any country other than Ukraine. Therefore I find that the applicants are 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).

24.The delegate of the Department was not satisfied that the second named applicant was a member of the applicant’s family. The applicant has claimed and I accept that the second named applicant is her partner with whom she lives in a de facto relationship. The second named applicant referred to the applicant as his wife. I am satisfied that the applicants are not married but live together as husband and wife. Therefore I am satisfied that the second named applicant is a member of the applicant’s family unit, he is her de facto spouse.

25.According to US State Department Report 2018 Human Rights Report:

Ukraine is a republic with a semi-presidential political system composed of three branches of government: a unicameral legislature (Verkhovna Rada); an executive led by a directly elected president who is head of state and commander in chief, and a prime minister who is chosen through a legislative majority and as head of government leads the Cabinet of Ministers; and a judiciary. The country held presidential and legislative elections in 2014; international and domestic observers considered both elections free and fair.

The constitution and law provide citizens the ability to choose their government in free and fair periodic elections held by secret ballot and based on universal and equal suffrage.

Civilian authorities generally maintained effective control over security forces in the territory controlled by the government.

26.By way of background[2] there was a wave of demonstrations and civil unrest in Ukraine, which began on the night of 21 November 2013 with public protests in Maidan Nezalezhnosti ("Independence Square") in Kiev.

The protests were sparked by the Ukrainian government's decision to suspend the signing of an association agreement with the European Union, instead choosing closer ties to Russia and the Eurasian Economic Union. The scope of the protests soon widened, with calls for the resignation of President Viktor Yanukovych and his government. The protests were fueled by the perception of "widespread government corruption", "abuse of power", and "violation of human rights in Ukraine". Transparency International named President Yanukovych as the top example of corruption in the world. The situation escalated after the violent dispersal of protesters on 30 November, leading to many more protesters joining. The protests led to the 2014 Ukrainian revolution.

During the Euromaidan, there were protests and clashes with police throughout Ukraine, especially at the Maidan (central square) in Kyiv, which was occupied and barricaded by protesters, along with some administrative buildings, including  Kyiv City State Administration. On 8 December the crowd toppled a Lenin statue nearby. Protests and clashes increased in January, after the Ukrainian parliament passed a group of anti-protest laws. Protesters occupied government buildings in many regions of Ukraine. The protests climaxed in mid-February 2014. Riot police advanced towards Maidan and clashed with protesters but did not fully occupy it. Police and activists fired live and rubber ammunition at multiple locations in Kyiv. There was fierce fighting in Kyiv on 18–20 February. As a result of these events, the Agreement on Settlement of Political Crisis in Ukraine was signed on 21 February 2014 by the President of Ukraine Viktor Yanukovych and the leaders of the parliamentary opposition (Vitaly Klitschko, Arseny Yatsenyuk, Oleh Tyahnybok) under the mediation of the European Union and the Russian Federation. The signing was witnessed by the Foreign Ministers of Germany and Poland, Frank-Walter Steinmeier, Radosław Sikorski, respectively, and the Director of the Continental Europe Department of the French Foreign Ministry, Eric Fournier. Vladimir Lukin, representing Russia, refused to sign the agreement.

Shortly after the agreement was signed, Yanukovych and other high government officials fled the country. Protesters gained control of the presidential administration and Yanukovych's private estate. Afterwards, the parliament removed Yanukovych from office, replaced the government with Oleksandr Turchynov, and ordered that former Prime Minister Yulia Tymoshenko be released from prison.

[2] to Human Rights Watch World Report 2019 Ukraine[3]

The armed conflict in eastern Ukraine between the Ukrainian government and Russia-backed armed groups entered its fifth year. According to the Organization for Security and Co-operation in Europe (OSCE) Special Monitoring Mission, as of October, at least 212 civilians were injured or killed in 2018, mostly from shelling and light weapons fire.

Shelling across or near the contact line separating the two sides continued to damage civilian homes and infrastructure and to threaten civilian lives. Since 2014, 740 education facilities were damaged during the conflict, 16 from January to October 2018. Both sides carried out indiscriminate or deliberate attacks on schools and used them for military purposes.

[3]

28.I accept that the applicant, who lives in Kiev, has been employed by several [Industry 1] companies in Ukraine from 1995 until  24 June 2015. I accept that the company she most recently worked for was based in Donetsk and she was required to visit there during the course of her work and she was in fear of her life each time she entered the war zone. I accept that she travelled from Kiev to the head office 3 times over the past 3 years since November 2012 and when talking to colleagues in Donetsk she could hear explosions.

29.I accept that the situation was not safe in Kiev or in Donetsk, for the applicant and other residents. Very frequently she was advised to evacuate “the building”. I am satisfied that being required to evacuate a building during times of civil unrest is a necessary security precaution for the safety of its citizens. I am satisfied it does not amount to serious harm.

30.The applicant claims that she was in Kiev when the Trade Union Building was on fire. I accept that this building was completely burnt down during the night of 18–19 February 2014  the day before the mass sniping fire took place during the 2014 Ukrainian Euromaidan Revolution. The applicant said that her personal property was damaged. Her car was damaged by thugs employed by the government while she was distributing warm clothing and blankets to wounded people at Michaevsky Cathedral in Kiev. The independent evidence indicates during Euromaidan events, there were recurrent attacks and provocations by police that occurred in and around the Trade Union building. Whilst I accept that her motor vehicle and personal property was damaged, I am not satisfied that thugs were employed by the government to damage cars and personal property of residents of Kiev. I have found no independent evidence to support this claim and I am of the view that were it the situation it would be known to independent sources that have reported on Euromaidan. I am not satisfied that damage to a car and personal belongings during a time of civil unrest amounts to serious harm. The applicant travelled abroad after the turmoil in Kiev in 2014, going to [Country 2] from [June] 2014 to [July] 2014 and again to [Country 3] [in] October 2014 to [later in] October 2014. Her return to Ukraine after being abroad indicates a lack of a subjective fear of persecution.

31.I accept that the applicant, was frightened and stressed about the war in Donetsk and the situation unfolding in Kiev. The hostilities in Eastern Ukraine and civil unrest that occurred during Euromaidan are factors that affected all Ukrainians and are not specific to the applicant.

32.As recorded in the 2001 census[4], the main minority groups in Ukraine include Russians – 8,334,100 (17.3 per cent), Belarusians – 275,800 (0.6 per cent), Moldovans – 258,600 (0.5 per cent), Crimean Tatars – 248,200 (0.5 per cent) and Bulgarians – 204,600 (0.4 per cent). Ukraine also has smaller populations of Poles, Jews, Romanians, Armenians, Hungarians, Roma and other nationalities. While a subsequent census was supposed to be conducted in 2011, it has been repeatedly postponed and is now scheduled to take place in 2020.

[4]

33.As for the applicant’s claims that she is Ukrainian and Russians hate them and want to kill all Ukrainians, I reject her claim. I have found no independent evidence to support her claim and I am of the view it would be known to independent sources such as Amnesty International, UK Home Office and US State Reports that all report extensively on ethnic minorities in Ukraine.

34.I am satisfied the applicant suffered no harm or serious harm in Ukraine prior to leaving the Ukraine to come to Australia. 

35.The applicant’s husband has claimed that he is a veteran of Ukraine army and was required to return to duty as an instructor. As a consequence of his refusal the second named applicant was beaten and harmed by a nationalist group, C14. He suffered severe injuries. He did not advise the applicant of the complete details and she believed he was in an altercation with another man.

36.I do not accept that the second named applicant is a witness of truth.

37.Firstly, I do not accept as plausible that the Ukrainian government, who were in 2014 commencing mobilisation and reinstating conscription to deal with the deteriorating security in the east[5] would have issued instructions to non-government groups to beat and harm those who refuse to agree to mobilisation. When put to the applicant he said that is how he understood it that time, there was not official an order or information about this. It is how he perceived it. I am of the view that were it the situation that the Ukraine government gave orders to any nationalist group to punish those who refuse to assist its war efforts, it would have been known to independent sources such as UK Home Office Country Policy and Information, US State Department reports and various human rights groups who report extensively on Ukraine.

[5]

38.According to UK Home Office Country Policy and Information Note, November 2016[6] 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. Therefore I find it implausible that the Ukrainian government would seek to punish the second named applicant in the manner claimed.

[6]

39.The second named applicant did not make any claims in the PVA that he suffered any harm in Ukraine. When put to the applicant he said that he did not want the applicant to know about it. Whilst I accept that the applicant believed her husband had been injured in a personal altercation with another person, I am of the view that it is implausible that a person who claims to have been so badly injured in the Ukraine in 2013 by non-state agents acting at the behest of the government would not have wanted his the applicant to know about it and would have made this claim in his PVA, the application made in order to obtain protection.

40.I am of the view that this claim is a late invention made to bolster the applicants’ claims to obtain the visa sought.

41.I am required to consider the situation if, in the reasonably forseeable future, the applicants were to return to the Ukraine, that there is a real chance the applicants would suffer serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion or there is a real risk the applicants would suffer significant harm.

42.The US State Department reports on the July 2019 elections[7]:

We congratulate the Ukrainian people on this weekend’s peaceful and historic parliamentary elections, which delivered a clear result and underscored Ukrainians’ commitment to democratic ideals.  We welcome the OSCE’s preliminary conclusion that the elections took place with overall respect for fundamental rights and freedoms.  We look forward to the OSCE’s final recommendations to improve electoral practices and encourage their implementation. We will work with the new Ukrainian government and the Ukrainian people as they advance reforms critical to ensuring Ukraine’s success.

[7] 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 for the reasons outlines 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.

44.In regard to the second named applicant, I put to him that he will not be called up as he would be too old. He said that the situation has changed significantly.

45.According to UK Home Office Country Policy and Information Note, November 2016[8] ‘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. 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).

[8]

46.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 is appropriate and adapted to achieving a legitimate object of protecting the security and safety of Ukraine and its population.

47.In light of the independent evidence, I find that the laws governing conscription and mobilisation 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 would be so harsh as to amount to persecution.

48.President Poroshenko’s official website reported on reservists in August 2016[9]: ‘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 second named applicant did not claim to be a high ranking officer.

[9] the law regarding mobilisation 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.  

50.Therefore I accept that since 2016 those who are members of the inactive reserve are eligible to be recalled for mobilization until they reach age 60 or 65 for high ranking officers officers[10]. I find remote the chance that the second named applicant will be called up for reservist duties because he is [age] years of age, he was not a high ranking officers and he has [Medical Condition 1] and [other medical conditions].

[10]

51.I have considered the second named applicant's claims singularly and cumulatively. I have found that the applicant’s chances of being mobilised are remote.

52.According to the Organization for Security and Co-operation in Europe (OSCE) Special Monitoring Mission[11], as of October, at least 212 civilians were injured or killed in 2018, mostly from shelling and light weapons fire. Shelling across or near the contact line separating the two sides continued to damage civilian homes and infrastructure and to threaten civilian lives.  Authorities continued to enforce discriminatory policies requiring pensioners from armed group-controlled parts of eastern Ukraine to register as internally displaced persons (IDPs) and maintain residency in government-controlled areas to access their pensions. Rules prohibit them from spending more than 60 consecutive days in armed group-controlled regions, or risk suspension of their pensions.  The applicants are from Kiev and are not from the contact lines between Ukraine and Russian controlled areas.

[11]

53.Independent evidence[12] indicates that the armed conflict in eastern Ukraine between the Ukrainian government and Russia-backed armed groups, in Eastern Ukraine, entered its fifth year. Total impunity for conflict-related abuses persisted in 2018. The government took further steps to restrict freedom of expression and association. Violence by radical groups promoting hatred put ethnic minorities, lesbian, gay, bisexual, and transgender (LGBT) people, activists, and journalists at risk. The applicants do not claim to be from an ethnic minority, lesbian, gay, bisexual, or transgender persons, or activists or journalists. There is still no resolution to the conflict in Eastern Ukraine. Whilst I accept that the applicants would find returning to Kiev stressful during the ongoing hostilities in Eastern Ukraine, and the applicant fears total war is inevitable, I have found no independent evidence to suggest that total war is inevitable in Ukraine. I accept that the applicant fears that Kiev will be under the control of “Putin” but I have found no independent evidence to support this claim.

[12]

54.The independent evidence indicates that Russia has continually denied military involvement in Ukraine despite overwhelming evidence to the contrary. For the duration of the conflict, which is now largely frozen but still sees sporadic fighting and has currently claimed over 13,000 lives, there has been ample evidence that Russia financed, trained and armed the separatist fighters[13]. There has not been a declaration of war and peace negotiations over the conflict continue. The applicants live in Kiev. The fighting is in Eastern Ukraine. I accept that the applicant worked for company in Kiev that required occasional travel to Donetsk in Eastern Ukraine. The applicant is no longer employed with that company. Even were the applicant on her return to Ukraine required to travel to Donetsk I find remote the chance that she would suffer serious harm for any of the reasons outlined in s.5J(1)(a) of the Act.

[13] have considered the applicants’ claims singularly and cumulatively. The applicants did not suffer serious harm in Ukraine prior to their departure. The applicant fears the war, every day something happens and as Ukraine is circled by enemies, Russia can attack at any time. She fears Putin will take over Kiev. The hostilities in Eastern Ukraine are factors that affect all Ukrainians, more particularly those that reside in the Eastern Ukraine and are not specific to the applicants. I am satisfied that the applicants’ chances of suffering serious harm in Ukraine, for reasons of her race, religion, nationality, membership of a particular social group or political opinion within the reasonably foreseeable future to be remote.

56.In considering whether the applicants will suffer significant harm on return to Ukraine as I have found remote that the second named applicant will be mobilised and as I have found that the applicants suffered no harm in Ukraine, I do not accept that the applicants will be arbitrarily deprived of their lives, or that the death penalty will be carried out on them, or that they will be subjected to torture, or that they will be subjected to cruel or inhuman treatment or punishment or that they will be subjected to degrading treatment or punishment .

57.Therefore I find remote the risk that the applicants will suffer significant harm on their return to Ukraine. 

58.I find remote the chance or risk that the applicants will suffer serious or significant harm on return to Ukraine because of the ongoing hostilities between Ukraine and Russia. 

59.The applicant is concerned if the second named applicant has to return to Ukraine he has [Medical Condition 1] and can just die on the way back and he has [Medical Condition 2]. The applicant provided medical reports to the Tribunal to support her husband’s inability to attend scheduled Tribunal hearings because of his medical condition. Whilst I accept that the second named applicant has [Medical Condition 2] I have no medical information before me to support a claim that the second named applicant would die on his way back to the Ukraine. I find remote the chance that the applicants will suffer serious or significant harm because the second named applicant has [Medical Condition 1] or [Medical Condition 2].

60.I am satisfied there is not a real chance that the applicants will be subject to serious harm for one or more of the reasons set out in s.5J(1)(a) of the Act or for any other reason if they return to Ukraine now or in the reasonably foreseeable future. The applicants do not satisfy the criteria in s.36(2)(a).

61.I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Ukraine, that there is a real risk that they will be arbitrarily deprived of life, that the death penalty will be carried out on them, that they will be subjected to torture, that they will be subjected to cruel or inhuman treatment or punishment or that they will be subjected to degrading treatment or punishment. The applicants do not satisfy the criteria in s.36(2)(aa).

62.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).

63.For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

DECISION

64.The Tribunal affirms the decision not to grant the applicants protection visas.

Lilly Mojsin
Member

ANNEXURE A

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.  

5. 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

6. 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.

   …