1613775 (Refugee)
[2019] AATA 3330
•21 May 2019
1613775 (Refugee) [2019] AATA 3330 (21 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1613775
COUNTRY OF REFERENCE: Ukraine
MEMBER:Susan Hoffman
DATE:21 May 2019
PLACE OF DECISION: Perth
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Statement made on 21 May 2019 at 2:08pm
CATCHWORDS
REFUGEE – protection visa – Ukraine – political opinion – Fatherland party – Donetsk People’s Republic – targeted by pro-Russian separatists – persecution feared involves threat to life, liberty or significant physical harassment – relocation within home country not reasonable – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
SZMWQ v MIAC (2010) 187 FCR 109
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Ukraine, applied for the visas on 30 May 2014 and the delegate refused to grant the visas on 8 August 2016.
The applicants are mother and [child]. The [child] was born [date] and was [age] at the date of the hearing. [The child] did not attend the hearing. The mother (henceforth referred to as the applicant) appeared before the Tribunal on 23 April 2019 to give evidence and present arguments. She was accompanied by her husband who did not give evidence.
The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.
The applicants were represented in relation to the review.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
10. Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, another country apart from Australia (s.36(3)).
11. S.36(3) does not apply if the person has a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion in that other country or if the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of the right to enter and reside in that other country, there would be a real risk that the non‑citizen will suffer significant harm in relation to the country (s.36(4)).
12. S.36(3) also does not apply if the person has a well‑founded fear that a country will return the person to another country where they would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion or be returned to another country where there is a real risk or a real chance they might suffer serious or significant harm (s.36(5) and (5A)).
13. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. DFAT has not prepared country information assessments for either Ukraine or Russia which, if they had, would be relevant to this review.
14. The issues in this case are whether Australia has protection obligations to the applicants (because of the provisions about whether a person has the right to enter and reside in another country) and if so, whether or not the applicant satisfies the criteria for a protection visa.
15. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background, protection claims and the delegate’s decision
16. The applicant claims to be a citizen of Ukraine. The delegate recorded that the applicant submitted a range of identity documents including her Ukrainian passport. The [child]’s birth certificate records [the child’s] father (not an applicant in this case) as being Russian and [the] mother as being Ukrainian. The delegate was satisfied as to the two applicants’ nationality and that they are members of the same family unit. On the evidence before it, the Tribunal also accepts that the applicants are citizens of Ukraine and that Ukraine is their country of nationality and receiving country.
17. The delegate found that the applicants are excluded from Australia’s protection obligations under s.36(3) as they have the right to enter and reside in another country, that country being Russia.
18. The delegate referred to Russian Federal Law No. 115-FZ of 2002 which concerns the legal position of foreign citizens in the Russian Federation. Article 6 is about temporary residence of foreign citizens in the Russian Federation. A permit for temporary residence is valid for three years. It may be issued to a foreign citizen if certain criteria are met.
19. The delegate suggested that Article 6(3)(3) applied to the applicant. It requires the person to have a parent who is a citizen of the Russian Federation and who is incapable of working.
20. The delegate also referred to Article 6(3)(1) which requires the person to have been born in the territory of the RSFSR and was in the past a citizen of the USSR. The delegate wrote that the applicant was born in [year] as a citizen of the USSR.
21. The delegate also referred to Ukrainian citizens being able to stay in Russia without a visa or work permit for 90 days every six months, and that a holder of this permit receives most of the rights of a Russian citizen
22. The applicant was born in [year] in the city of [Town 1] in the Donetsk region of Ukraine in a part of Ukraine known as Donbas. She claimed that after [a number of] years of schooling, she obtained a diploma in [a specific subject]. She worked as a [Occupation 1], then as an [Occupation 2] employed by a [organisation]. Since 2009 and until she arrived in Australia, she was [self-employed].
23. The applicant claimed she divorced her husband (the father of the child applicant) in 2006. In 2007 she started a de facto relationship with another man. At the delegate’s interview she said that relationship was over.
24. The applicant advised the Department via a letter dated 30 November 2016 that she had remarried. The marriage certificate was attached which shows the marriage took place [in] November 2016.
25. The applicant arrived in Australia [in] June 2012 on a [temporary] visa to attend her mother’s wedding and she left Australia about a month later.
26. The applicant arrived in Australia [in] April 2014 on her [temporary] visa with her [child] (the second applicant). She lodged the protection applications on 30 May 2014.
27. The applicant told the delegate that when she came to Australia in April 2014 she had intended to return to Ukraine but the situation there deteriorated quickly.
28. In a statutory declaration dated 26 May 2014, the applicant made the following claims:
She has no right to legally reside in another country, on a permanent or temporary basis.
She feared returning to Ukraine due to her actual and imputed political opinion.
She left Ukraine because she was a member of Yulia Tymoshenko’s Fatherland Party in Ukraine.
She ran for [elections] in her home town of [Town 1] in the Eastern Ukraine. She [remained] an active party member.
Her main role in the party was quite important as she was [details deleted].
She also assisted an [official], [Ms A].
In her region, her political views placed her in the minority.
[In] April 2014, she received a call on her mobile phone from a private number. It was a man making threats. He pretended to know everything about her, he knew she was a party member, and he would choke her with his hands if she continued to spread propaganda. He threatened her child, saying he would meet [the child] on the way to school.
The man called the next day and swore down the phone. He asked if she had understood what he said the previous day. The applicant hung up. After this she changed her sim card and would not let her [child] walk to school [solo.]
[In] April 2014 the applicant was returning home after taking her [child] to school which was near a park. She was in the park when three men approached her and stopped in front of her. They grabbed her shoulders and pushed her into the bushes. One of them took out a knife and said if she screamed he would cut her. She asked them what they wanted. He said they were going to kill you bitches one after the other. He made further accusations about joining Russia and because of the party and fascists like the applicant, people would die in Ukraine and they would have revenge for those who were killed.
She tried to tell them she had nothing to do with this, she denied any involvement and said she had not done anything bad. She said they must have mistaken her for someone else and the man said he had not and they knew who she was and everything about her and her family.
Two of the men stood behind and kept hitting her head while the one in front talked to her. People in the park could see what was happening to her but no-one came to help her. The men wore orange and black ribbons which showed they were separatists. They said they had a grave ready for her partner and child, and she would see them being killed, and then they would kill her. She was crying and asking them to let her go.
The man who was talking to her put an orange and black ribbon around her neck and told her not to take it off. He said they knew everything about her and if she said anything about them or complained, she would be killed. They warned her not to go to the local police as they (the men) would know if she did straight away.
The men let her go. After this, she would not let her child go to school. She was too scared to go outside and was too afraid to go to the police as they were sympathetic to the separatists.
The following evening, she was washing dishes around 10 pm when someone threw eggs at the window. Although only eggs, because of what had happened to her the day before, she was terrified.
[In] April 2014 her mother rang and the applicant told her what had happened. She had already arranged a visa to come to Australia (issued in the February) and was intending to come to Australia [in] May 2014 when the school holidays started. Because of what happened her mother told her to leave straightaway.
She left her hometown [in] April 2014 by train as the airport in Donetsk was occupied by separatists. She did not tell anyone apart from family and a few close friends that she was leaving. She went to Kiev [in] April 2014 and flew out that evening to Australia.
The persecution suffered was perpetrated by pro-Russian separatists in the east of Ukraine. The government was unable to stop them. Since she left her home town, the situation is deteriorating. She does not think she can return to her area safely as she will be seriously harmed for her political affiliation and beliefs.
There is nowhere safe for her to go in Ukraine. If she went to the west of the country, she would still be at threat by virtue of being from the east. People would suspect her of being pro-Russian and supporting the separatists. She has no family or friends in the west who could protect her.
She fears being targeted by the same people or other separatists, wherever she went in Ukraine as she is known to them. It is not known what will happen and if Ukraine will descend into civil war or of Russian forces will invade.
29. The delegate recorded the following:
The applicant exhibited an adequate knowledge of the general party platform.
She admitted she did not have any connections to the executive leadership of the party and her role was on a local level in her city of [Town 1].
She belonged to the local party branch, and with other members, they were [undertaking a certain task] during the election period.
In 2010 she stood for [elections].
Her membership card recorded the last activity to be in 2012.
She did not get elected but [worked with an official]. She assisted the [official] in [undertaking various duties].
The applicant gave a consistent and detailed account of situation in East Ukraine and [Town 1].
The delegate found her account of being assaulted to be plausible in view of her role, [and] country information that reported on the deaths of people who belonged to the Fatherland party.
The delegate recorded that currently (then August 2016), the city was under the control of the Donezk People Republic forces and was the site of a military confrontation with the Ukrainian army. There was ongoing military conflict in that region which resulted in large numbers of displaced people from the region.
30. The delegate was satisfied that the applicant’s claims were credible, and that because of her political profile and accent she could not relocate elsewhere in Ukraine because she feared she would be harmed by pro-Russian separatists.
31. The delegate refused the applicants’ claims for protection on the grounds that they are excluded from Australia’s protection obligations under s.36(3) as they have the right to enter and reside in another country, that country being Russia.
Findings and reasons
32. In determining whether or not the applicant meets the criteria for protection, the Tribunal has considered the evidence before it including the sworn evidence of the applicant. The Tribunal recognises the difficulties for applicants when giving evidence through an interpreter, in a formal setting, and recalling events from years past.
33. Generally if the claims made by an applicant are credible the Tribunal will extend the benefit of any doubt to the applicant if they are unable to substantiate all of their claims. At the same time the Tribunal recognises that even when claims are broadly credible a person may embellish details to strengthen their case. The Tribunal therefore evaluates claims made by applicants critically.
34. The Tribunal was of the view that the applicant was truthful in giving her evidence. It was consistent with her initial claim when she applied for protection and the claims she made at the delegate’s interview. She seemed visibly distressed when describing the incident in the park when she was accosted by three men.
35. The delegate referred to country information sources which reported on the situation in [Town 1] in 2014. These indicated that [Town 1] was under control of the Donetsk People Republic forces and was a site of a military confrontation with the Ukrainian army and that there was ongoing military conflict in the region. The country information relevant to that period recorded incidents of abductions, physical and psychological torture, ill-treatment and other serious human rights violations in the Eastern Ukraine and that persons opposed, or perceived to be opposed, to the de facto authorities were reported to be particularly at risk.
36. The delegate quoted from a UK Home Office report from 2016 which stated that the Ukrainian judicial and law enforcement authorities were powerless to prevent or punish human rights abuses in the separatist-held region of Donetsk and other places in Ukraine, and that effective state protection was against ill-treatment or persecution at the hands of non-state actors was not available. The same report also stated that there was no evidence that the armed separatist militia groups were willing and able to provide effective protection to those at risk.[1]
[1] United Kingdom Home Office (2016) Country Information and Guidance Ukraine: Crimea, Donetsk & Luhansk, accessed 1 May 2019 at
37. The Tribunal sought out current country information. According to the most recent UK Home Office report (September 2017) covering the Donetsk region, “The armed conflict is continuing in these areas and escalated in the first quarter of 2017”.[2]
[2] United Kingdom Home Office (2017) Country Information and Guidance Ukraine: Crimea, Donetsk & Luhansk, accessed 1 May 2019 at
38. At 2.2.12, the report stated:
Reports state that both the Ukrainian authorities and separatist groups detain people unlawfully and engage in abductions. Separatist forces hold detainees in highly unsuitable conditions, including garages, sewage wells and basements, and both sides are reported to subject detainees to torture. Civilians in residential areas of Donbas where there are armed groups are at risk of sexual violence perpetrated by armed groups, with women being particularly at risk, but although such incidents are reported, the scale of sexual violence is not known as many victims are reluctant to report them.
39. The report goes on to say that factors which indicate an increased risk include, but are not limited to, the person being a journalist or blogger, a member of a civil society or humanitarian group and those suspected of supporting the Ukrainian government; and that a person who establishes they have come to the adverse attention of the groups controlling the Donbas is likely to be at real risk of persecution there.[3]
[3] The region of Donetsk is within Donbas.
40. The September 2017 report states that effective state protection against ill-treatment/ persecution at the hands of non-state agents is not available and that Ukrainian judicial and law enforcement authorities are unable to prevent or punish human rights abuses in the separatist-held regions of Donetsk and Luhansk. Effective state protection against persecution or serious harm by non-state agents is not therefore available.
41. The report states at 3.1.5 that internal relocation to government-controlled areas of Ukraine is likely to be reasonably available in most cases in order to avoid any risk of persecution or serious harm. Notwithstanding this, all returns from the UK would be to government-controlled areas.
42. The report includes the findings of an Austrian fact-finding mission towards internally-displaced people within Ukraine (7.6.4 on).
The available information on the attitude of local residents towards IDPs is contradictory. In some cases they claim to have neutral or friendly attitudes toward IDPs, expressing compassion and understanding of the difficult situation in which IDPs have found themselves and declaring readiness to provide help. On the other hand, there is evidence of discrimination and prejudice against IDPs, as well as negative stereotyping and the existence of hidden and potential social conflicts. The nearer people live to the conflict zone, the higher is their understanding for IDPs. We were told by various interlocutors that the attitude towards IDPs is basically positive but gradually changing. In Vinnitsa there have been isolated incidents with Crimean Tatars, but they don’t represent a general trend. Ukrainians are still very supportive of IDPs. The civil society in Ukraine is very strong and IDPs are generally cared for.’
The Austrian report further stated: ‘More than half of respondents throughout Ukraine … are willing to hire IDPs for jobs or provide them with housing for rent. More than half of respondents throughout Ukraine… would privately hire IDPs for apartment renovation or as a nanny. Which on the other hand means that nearly half of respondents would refuse to do so. Fear and distrust of strangers are named as the primary reasons for refusal in regard to these questions. Personal biases also play a negative role. 70% of the inhabitants of CLP have felt little or no influence from the arrival of IDPs to their communities. 64% have not noticed any crime rate reduction neither growth nor rise of social cohesion or tension. One fourth of respondents have heard about competition between the long-term local population and IDPs for jobs, housing, places in schools and kindergartens, and waiting time in public facilities; however, a minuscule number of respondents have had first-hand experience in any of these situations. Regular conflicts between IDPs and locals are largely unheard of: 81% of respondents are not aware of any such conflicts in their city, and 11% could remember individual cases. Thus, overall, host communities across Ukraine appear not to perceive any significant pressure from IDP presence on the infrastructure, labor or housing markets. Nor do host communities in general believe that life has undergone any fundamental changes. One of our interlocutors also mentioned the occasional perception of IDPs as competitors as far as jobs, housing etc. are concerned. ‘But the situation in particular localities differs from the one generally observed. The presence of IDPs is most noticeable in the East and in Kyiv. About a third of residents in these areas have noticed the effects of IDPs in their communities…’157 7.6.6 The Austrian report also noted that ‘Language is absolutely no issue. According to representatives of the International Organization for Migration (IOM), Russian speakers are not harassed in Ukraine in any way.’158
The Austrian report further noted that ‘according to one of our interview partners IDPs in western Ukraine are comparably well integrated and require a low level of government coordination
43. An article published in the LA Times on 1 October 2018 reported as follows:[4]
No western journalists have been allowed to visit Donbass since 2015, but former res idents, human rights activists and Ukrainian officials described a deteriorating security situation in which inhabitants face the constant threats of extortion and arbitrary detention by separatist police and shelling by Ukrainian forces.
[4] Mirovalev, M. (2018) Russia-backed separatists in Ukraine in disarray amid infighting and violence, accessed 2 May 2019 at
44. With regard to the right to enter and reside in Russia, Russia’s President Vladimir Putin announced that the process for Ukrainians living in the breakaway Donetsk to acquire Russian citizenship would be simplified. That announcement was made in the context of power plays between the Russian President and the recently-elected new Ukrainian President Volodymyr Zelensky, who is expected to take office in early June 2019. Although the announcement was made the report stated that it is “unclear whether the Kremlin will move forward with plans to offer Russian passports to all citizens of Ukraine”.[5] A BBC report stated that Zelensky mocked the idea.[6]
[5] Hodge, N. (2019) Ukraine's next president is already getting tough with Vladimir Putin, accessed 2 May 2019 at
[6] BBC News(2019) Ukraine's president-elect rejects Russian passport plan, accessed 2 May 2019 at At the time of writing this decision there is no certainty that this will eventuate and the Tribunal will not consider it further.
46. The applicant’s representative made written submissions before and after the hearing. The pre-hearing submissions were dated 22 September 2016 and 15 April 2019, and the post-hearing submission was dated 6 May 2019.
47. The submission of 22 September 2016 addressed the question as to whether or not the applicant had the right to enter and reside in Russia in some detail.
Does the applicant have the right to enter and reside in Russia?
48. Section 36(3) is about the right to enter and reside in another country whether temporarily or permanently, apart from Australia. The word ‘reside’, even when considered in conjunction with ‘temporarily’, suggests more than a passing or short visit to a country.[7]
[7] SZMWQ v MIAC (2010) 187 FCR 109 per Flick J at [97].
49. The Tribunal finds that the applicant does have the right to enter and reside in Russia on a temporary basis because she is Ukrainian and, according to Article 5 of Russian Federal Law no. 115-FZ of 2002, Ukrainian citizens may enter Russia under visa-free arrangements and stay for up to 90 days. This is, in the Tribunal’s view, more than a passing or short visit.
50. The Tribunal then considered if the applicant has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion if she entered and resided in Russia (s.36(4)) and whether the applicant has a well‑founded fear that Russia would return her to another country (in this case, Ukraine) where she would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (s.36(5)).
51. The Tribunal finds that the applicant does have a well-founded fear of persecution in respect of Russia, and that she also has a well-founded fear that Russia would return her to Ukraine, specifically east Ukraine, where she would be, in the Tribunal’s view, be persecuted because of her actual or imputed political opinion. The reasons for these findings, which are tied in with protection claims in relation to Ukraine, are set out below.
Imputed political opinion
52. The applicant gave the following evidence at hearing about what had happened to her before she left Ukraine.
About the threatening phone call she claimed to have received [in] April 2014, the applicant said she was threatened by the caller who swore a lot and abused her over the phone. She said it was the same voice when she got a phone call the next day with the same threats. She was very scared and changed her SIM card.
The applicant claimed the caller said he knew all about her and where her [child] went to school. As a result the applicant was scared to let [her child] go to school alone. She said that [in] April 2014, she had taken her [child] to school which was in a park. She was walking through the park when three men ran up to her, grabbed her and pulled her into the bushes. She said she was very frightened and thought at first they wanted to rob her.
The applicant claimed that two of the men were behind her and held her by her shoulders. The third man was in front of her. He took a knife from his jacket and waved it in front of her. He said that it was because of people like her that a revolution had started in Ukraine. He accused her of being connected to right wing groups, of compiling lists of people on behalf of the security forces and trying to subvert what was lawful. They said they would hunt down and kill them (people like her) one by one.
The applicant said she denied what they said about her but they were very aggressive and the two men behind her were making comments and swearing, and hit her on her back and in the back of her head. She said she was accused of belonging to a party that was trying to betray the Donetsk people. She said she could not stop them and started crying and then the man in front of her put the knife away. He took out a St George ribbon – orange and black stripes – which was a sign used by the separatists, put it round her neck and pulled it and told her not to take it off, ever.
The applicant also claimed that she was warned not to tell anyone about what had just happened and if she did, they would know and would kill her. She said after they put the ribbon around her neck, she was told to go home and she did. She then rang friends to go to school and collect her [child].
The applicant said that it left her feeling very scared and the next day she was too scared to take her [child] to school.
In relation to the incident with the egg thrown at her window the applicant said that her flat was on the second storey of a block of flats. It was dark outside and one minute all was quiet and then there was a bang on the window. The applicant said that after what had happened she was scared to look outside to see what had happened. The next morning she saw broken eggs on the window.
The applicant said that at the time she was [working] from home, [undertaking a certain task]. She said there was nothing political about her paid work that would have created problems for her.
The applicant said that the person she worked for in a [specific] capacity, [Ms A], had been granted asylum in [Country 1]. The applicant provided the Department with a copy of an email dated [in] October 2014 from Ms [A] in which she described seeking asylum in [Country 1], and the effect of war in Ukraine on neighbour’s children and her goddaughter.
53. The Tribunal accepts that the events described by the applicant – the threatening phone calls, being intercepted when walking through the park and the egging incident – occurred as she said. Her account of these events has been consistent, with a little added detail at the hearing. She appeared to be distressed when talking about them.
54. The Tribunal accepts that the applicant was a known supporter of former Prime Minister Yulia Tymoshenko and the Fatherland Party which were opposed to the Russian-backed separatists that held and currently hold power in the Donetsk region of Ukraine.
55. The applicant said that since leaving Ukraine she has not been politically active. She said that she still had terrible dreams about what happened to her, and about hiding or running away. She said that she had not sought psychological help in relation to her bad dreams.
56. The Tribunal accepts that events happened as the applicant described, that she was very scared by them, and remains scared at the prospect of returning to Ukraine. She mentioned the contrast of living in a country where it is peaceful. Having accepted that the incidents described by the applicant occurred as she said, the Tribunal accepts that these were targeted and not random incidents.
57. The Tribunal put it to the applicant that the events she described happened five years ago and asked why she feared returning to Ukraine given the time that has passed.
58. The applicant said at hearing that if she went back to Ukraine she would be persecuted by the same people who persecuted her when she lived there. She said that she also feared persecution at the hands of people who lived elsewhere in Ukraine as they regard people from Donetsk as being traitors to the country.
59. The applicant said that she believed the group represented by the men who threatened her had taken out contracts on her and others in her party. She contended that these men knew her name, what she did and where her [child] went to school. She said that even though she was low level in the Fatherland party’s hierarchy, they still had her name. She said that there are checkpoints to pass through to get to the Donetsk area and they would check her name off against the list that they had.
60. The applicant said that most of the people she worked with in 2014 have had to leave and others were put in prison. She said she did not know anyone who had returned to the area. She said that she lived in a small city and she was working in a capacity that meant that people saw her face, knew her name and knew where she worked.
61. The applicant referred to a Mr Vladimir Ybak who was murdered in 2014. There are a number of media reports that corroborate this. He was described as an outspoken city council member who was murdered after he tried to pull down the flag of the Russian-backed separatist movement. He was outspoken in his opposition to the pro-Russian movement.[8] The applicant claimed that the council deputy and his assistant were also killed; shot and then drowned.
[8] Luhn, A. (2014) Ukraine: murdered council member Vladimir Rybak buried, accessed 14 May 2019 at
62. The applicant said that the war is still going on and she was afraid she would be on a list of people thought to be enemies. She also claimed that other Ukrainians might regard her as a separatist because of where she came from, apparent from her accent.
63. The representative submitted that if the applicant returned to Ukraine, she would be required to disclose her papers which would show she has been in Australia for a number of years and if questioned by authorities as to why she was in Australia for the last five years, she would have to be truthful and tell them she had sought protection in Australia which could of itself place her at risk.
64. The applicant said that when she left Ukraine in 2014, she showed her passport and was let through without any issues. The applicant said that if she returned she would prefer Ukrainian authorities did not know she sought protection in Australia; she did not know how they might react.
65. The Tribunal considered the country information. It notes that in late October 2018, Russia announced sanctions against senior Ukrainian figures including Yulia Tymoshenko, who was at one stage a serious contender in Ukraine’s 2019 presidential elections. According to media reports, the sanctions were related to the ongoing friction between Ukraine and Russia, with the friction being to do with Crimea and Russia’s backing of the separatist movement in Ukraine. This suggests that there could be ongoing interest in a person who had previously been targeted because of their support of Tymoshenko.
66. DFAT’s travel advice current at 14 May 2019 states as follows:[9]
Do not travel to the eastern provinces of Donetsk and Luhansk, including to the Malaysia Airlines flight MH17 crash site. Armed separatist groups control parts of the Donetsk and Luhansk provinces. These groups have threatened, detained and kidnapped foreign nationals. The security situation is highly volatile, with ongoing conflict and deaths, including during periods of declared ceasefire…
Civil unrest, political tension and ongoing conflict make travel to the eastern provinces of Donetsk and Luhansk highly dangerous.
Armed separatist groups control parts of the Donetsk and Luhansk provinces. Fighting occurs regularly despite the signing of ceasefire agreements. These groups have threatened, detained and kidnapped foreigners. Conflict has also occurred in areas of Donetsk and Luhansk provinces that are under Government control, including in and around the cities of Slovyansk, Mariupol, Kramatorsk and Svyatohirsk.
Use of landmines in and near the conflict zones makes any travel by vehicle or on foot near the frontline hazardous, even in areas that appear relatively peaceful. Several civilians have been killed or seriously injured by such weapons in Donetsk and Luhansk in recent years.
[9] DFAT (2015) Ukraine, accessed 14 May 2019 at
67. Given the ongoing political unrest in the applicant’s home area, and that the separatists who previously targeted her still control parts of the area, the Tribunal accepts that the applicant has a well-founded fear of persecution for reasons of her imputed political opinion in relation to the part of Ukraine where she used to live.
68. The Tribunal then considered if it was reasonable for the applicant to relocate to another part of Ukraine.
Relocation within Ukraine
69. The UK Home Office report published in September 2017 stated that “internal relocation to government-controlled areas of Ukraine is likely to be reasonably available in most cases in order to avoid any risk of persecution or serious harm.”
70. A more recent article published by Carnegie in December 2018 includes the following:[10]
However, parts of the Ukrainian government are not making use of this resource and treat residents of the non-government-controlled territories effectively as second-class citizens. In this political context, many Ukrainian politicians accuse Russian-speaking eastern Ukrainians of being pro-Russian, disloyal, or even traitors…
As in the other conflicts, the passing of time hardens attitudes in the parent state. A sizable political constituency in Ukraine now talks of Donbas as a “gangrene” or “cancerous growth” that should be “cut off.” They disparagingly refer to Donbas residents as “sausage-eaters” or “Muscovites” who have no role to play in a future Ukraine. Electoral politics is a big factor here. IDPs in the region are already excluded from voting in local elections or in local constituencies in parliamentary elections.
[10] Carnegie Europe (2018) Eastern Ukraine: Different Dynamics, accessed 14 May 2019 at
71. The Carnegie report drew on one published by the International Crisis Group in October 2018.[11] This details how the Ukrainian government has been denying pensions to its citizens in eastern Ukraine, and citizens of that area feel increasingly abandoned by their government. With regard to the number of internally displaced persons, it states “Ukraine now has 1.5 million registered IDPs, the vast majority listed as living in eastern regions near the conflict zone and in Kyiv.”
72. The UNHCR has set out its plans “for engagement in Ukraine for a period of five years from 2018-2022”.[12] Relevant sections of the report include the following:
[12] UNHCR (2018) Multi-year, multi-partner protection and solutions strategy for Ukraine 2018 – 2022, accessed 14 May 2019 displaced persons, persons at risk of displacement and returnees
As of 7 August 2017, the Ministry of Social Policy has registered 1,586,439 IDPs. Of these, it is estimated that between 800,000 and 1 million IDPs reside more permanently in government-controlled areas (GCA). Sources provide varying information about the age and gender breakdown of the IDP population. While sources vary in their estimates, it is clear that a majority of the IDP population is female, and includes a large number of older persons.
Most IDPs were displaced from the non-government-controlled areas (NGCA) of Donetsk and Luhansk oblasts during 2014 and early 2015 as a result of armed conflict. Among IDPs registered with the Ministry of Social Policy, 31,000 of the total are from the Autonomous Republic of Crimea…
Having been displaced for more than three years, IDPs in Ukraine need to find longer-term solutions to their displacement. Less than 1% express an intention to return to their homes in the near future, while 62% say they may return in the future or after the conflict; 25% do not intend to return home at all. While 93% of IDPs mentioned that they feel fully or partially integrated in their communities, they also highlight barriers to complete integration. These challenges to integration include:
·Affordable and sustainable housing: Only 2% of IDPs reside in housing they own and 23% reside with relatives and host families. Almost two-thirds of IDPs rent housing, and the high cost of rent is a main concern for IDPs. The cost of utilities, especially for heating, has risen considerably. Queues for social housing were long even before the conflict, and IDPs are not eligible for social housing in areas where they lack residence registration. Some 6,000 IDPs live in 111 collective centers all across government-controlled areas of Ukraine with different types of ownership. Few plans are in place for helping these families to relocate to more stable and suitable housing.
·Employment: Only 46% of IDPs are employed with unemployment disproportionately affecting women; however, employment rates and income levels have risen gradually over time. Many working IDPs have re-entered the same fields and professions, yet permanent and full-time employment is more elusive and less lucrative than it was before displacement. Nationwide, the unemployment rate was 9.9% in the first three quarters of 2016.
·Discrimination: Survey data suggests that some 10% of IDPs experience discrimination, mainly in the areas of housing and employment. Discrimination occurs for various reasons: the system of residence registration creates barriers to access various rights and services; landlords and employers may consider IDPs as temporary residents and therefore less reliable; and negative social stereotypes and political undercurrents also contribute to discriminatory attitudes.
·Legal and administrative barriers: IDPs face difficulty in obtaining residence registration at their new place of residence because landlords generally do not issue formal rental contracts allowing people to prove their place of residence. Since IDPs lack residence registration in the locality where they now live, they are not eligible to vote in local elections. Some face difficulties in exercising economic rights, especially access to banking and loans. If they acquire residence registration in their new communities and relinquish their IDP certificates, some may be unable to access their pensions and social benefits due to regulatory and administrative inconsistencies.
73. The applicant’s mother lives in Australia. Her grandmother still lives in Donetsk. The applicant has no family outside of Donetsk. The country information suggests there is antipathy towards people from Donbas by other Ukrainians and this has increased in recent years. If the applicant was to return to Ukraine and live elsewhere, say Kiev, she would be recognisable as someone from Donbas as she is a Russian speaker and has a regional accent.
74. The Tribunal is satisfied that the applicant has a profile that sets her apart from other IDPs as she was personally targeted when living in Donetsk. If she was to relocate to other parts of Ukraine, including say, Kiev, she will be identified as someone who comes from Donbas. She could be imputed by other people as holding political views sympathetic to, or opposed to, the separatists. Further, with such large numbers of IDPs, it is possible there will be others from Donetsk who recognise her or know her name from when she was dealing directly with the public, during the period she was [working with an official]. This, in the Tribunal’s view, creates a real chance of serious harm for the applicant outside of her home area. It finds that her fear of persecution throughout Ukraine is well-founded.
75. As already recorded, the Tribunal notes that the delegate was satisfied that the applicant’s claims were credible, and that because of her political profile and accent the applicant could not relocate elsewhere in Ukraine because she feared she would be harmed by pro-Russian separatists. The delegate found that the applicant could enter and reside in Russia and the Tribunal will now return to that question.
Does the applicant have a well-founded fear in relation to Russia?
76. The analysis of the situation in Donbas, published in December 2018, set out just how involved Russia has been, and is, in the affairs of the region, through financing rebels, supplying them with heavy weaponry and installing leaders. It states that Moscow runs military and financial affairs in Donbas.[13]
[13] Carnegie Europe (2018) Eastern Ukraine: Different Dynamics, accessed 14 May 2019 at Because the potential perpetrators of the harm feared by the applicant are pro-Russian separatists backed by Russia, and her name is known to them as she was personally targeted, the Tribunal accepts that the applicant would face a real chance of serious harm if she was to enter and reside in Russia. It considers there is a real chance that Russia would return her to the agents of persecution she fears in eastern Ukraine because of the close ties between Russia and those in control in parts of eastern Ukraine.
78. The Tribunal finds therefore that s. 36(3) does not apply in the applicant’s case because of s.36(4), (5) and (5A), and Australia does have protection obligations towards the applicant even though she has the right to enter and reside in Russia on a temporary basis.
Effective state protection
79. The Tribunal accepts that the state would not be able to protect the applicant from serious harm if she was in the east Ukraine area as the separatists who personally targeted her are in control in that area.
80. With regards to elsewhere in Ukraine, the applicant would be one of many thousands of IDPs originating from east Ukraine. The numbers of IDPs are such that the UNHCR is involved and anticipates being so at least until 2022 – its plan for the period 2018 to 2022 is referenced above.
81. The Carnegie report refers to many Ukrainian politicians accusing Russian-speaking eastern Ukrainians – the applicant is one - of being pro-Russian, disloyal, or even traitors, and that they disparage Donbas residents as “sausage-eaters” or “Muscovites” who have no role to play in a future Ukraine. IDPs in the region are already excluded from voting in local elections or in local constituencies in parliamentary elections.
82. A media report from July 2017 refers to a major scandal such that IDPs from Donbas were attacked in Kiev by associates of the advisor to the head of the Ministry of Internal Affairs, Ilya Kiva.[14] The IDPs were allegedly referred to separatists. Allegations were also made that officers from the national police were behind the attack. While a single report is far from conclusive, it points to the difficulties faced by IDPs in Ukraine.
83. A report from January 2019 states that “the scale and consequences of the [IDP] problem mean that Ukraine is facing the greatest humanitarian crisis in its history.”[15] It also states:
Although the authorities in Kyiv have expressed their resolve to solve the humanitarian issues and reintegrate the eastern regions into the rest of the country as soon as possible, the measures the state has taken have been inadequate and ineffective. The legal mechanisms devised to assist displaced persons are often discriminatory and sometimes unlawful. This failure to provide effective aid to displaced persons leaving the occupied areas has revealed not only that the administrative apparatus is ineffectual, but also that Ukrainian politicians are unwilling to take real measures to meet this challenge…
The state’s policy towards IDPs is provisional and ineffective. Insufficient support, and complicated procedures and requirements for obtaining it, mean that IDPs are left to fend for themselves and avoid state bureaucracy. This considerably undermines trust in the state, not only with regard to social welfare that Ukrainian citizens are guaranteed under the constitution. The perception of state institutions as ineffectual and unfriendly has turned society against the current authorities, but also against the state as an organisational structure. This creates conditions for further division of the country and erosion of the sense of identification with the state.
[15] Nieczypor, K. (2019) In the shadow of war. Ukraine’s policy towards internally displaced persons, accessed 16 May 2019 at
84. Given these views, noting that “IDP’s are left to fend for themselves and avoid state bureaucracy”, the Tribunal is not satisfied that effective state protection would be available to the applicant if she was relocated to another part of Ukraine such as Kiev.
The second applicant
85. With regard to the second applicant, [he/she] is [age]. [He/she] lives with the first applicant. The Tribunal finds that the [child] is dependent on the first applicant and is a member of the same family unit.
CONCLUDING PARAGRAPHS
86. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).
87. The Tribunal finds that the essential and significant reason for the persecution feared by the applicant is her actual or imputed political opinion and that it is systematic, in the sense of not being random, and discriminatory in that it is directed at the applicant because of her past political views. The Tribunal considers that the persecution feared by the applicant involves serious harm in that it involves a threat to her life, liberty or significant physical harassment or ill-treatment (section 91R of the Act). The Tribunal is satisfied that the criteria set out in s.91R of the Act are met.
88. The Tribunal is satisfied on the evidence that the applicant has a well-founded fear of persecution for a Convention reason if she is returned to Ukraine now or in the foreseeable future.
89. The Tribunal is not satisfied that the other applicant is a person in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that the first named applicant’s [child] is a member of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of [the second applicant’s] application depends on the outcome of the first named applicant’s application. It follows that the other applicant will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
90. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.
Susan Hoffman
Member
MediaRepost (2017) На Украине крупный скандал: националисты избили в Киеве переселенцев из Донбасса, accessed 16 May 2019
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