1613326 (Refugee)

The applicant, a Ukrainian national of Bulgarian ethnicity, sought a protection visa in Australia. He claimed a well-founded fear of persecution if returned to Ukraine, specifically fearing conscription into the Ukrainian army due to his objection to fighting and killing. He also raised concerns about difficult living conditions in Ukraine and a desire to remain in Australia with his family. The delegate had previously rejected his application on the basis that he had a right to enter and reside in Russia or Bulgaria, which he had not fully utilised.

The court was required to determine whether the applicant had a well-founded fear of persecution for a Convention reason, or alternatively, whether there were substantial grounds for believing that his removal to Ukraine would result in a real risk of significant harm. A further issue was whether the applicant had failed to take all possible steps to utilise his right to enter and reside in a third country. The Tribunal was required to make a fresh decision, considering the applicant's claims and relevant country information and guidelines.

The court found that the applicant's objection to military service was not based on religious belief but on a personal aversion to killing. While acknowledging his fear of conscription and potential imprisonment, the court considered the provisions of Russian and Bulgarian law regarding the entry and residence of foreign citizens. The court noted that under Russian Federal Law No. 115-FZ, a temporary residence permit could be issued within or outside quotas, with various conditions. Similarly, the Foreigners in the Republic of Bulgaria Act outlined provisions for short-stay and long-stay visas, with specific durations and conditions for entry and residence. The court concluded that the applicant had not satisfied the criterion for a protection visa under section 36(2) of the Act, implicitly finding that he had not exhausted his options to reside in Russia or Bulgaria.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Protection visa.