1618296 (Refugee)

1618296 (Refugee) [2019] AATA 6102 (19 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1618296
COUNTRY OF REFERENCE:                  Ukraine
MEMBER:Lilly Mojsin
DATE:19 July 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 July 2019 at 9:12am
CATCHWORDS
REFUGEE – Protection visa – Ukraine – failed to attend the scheduled hearing – applicant didn’t evade mobilisation –not a draft evader –not a genuine conscientious objector – not a real chance of being persecuted– decision under review affirmed

PRACTICE AND PROCEDURE –s438 certificate invalid

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 362, 438, 499
Migration Regulations 1994, 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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 October 2016 to refuse to grant the applicant a protection visa [PVA] under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Ukraine, applied for the visa on 27 April 2016. The delegate refused the visa finding that the applicant failed to meet the criteria for the grant of a protection visa under the Act.
The applicant appealed that decision to this Tribunal, attaching a copy of the delegate’s decision to his application for review.
The applicant was notified that the Tribunal had considered the material before it but the Tribunal was unable to make a favourable decision on this information alone. The applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review, on 18 July 2019 at 2.00pm.
The applicant was advised that, if he failed to attend the scheduled hearing and an adjournment was not granted, the Tribunal might make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal.
The applicant did not acknowledge the Tribunal correspondence, the applicant did not attend the Tribunal on 18 July 2019 at 2.00pm and the Tribunal has received no explanation.
In these circumstances, pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear
CRITERIA FOR A PROTECTION VISA
See Annexure A
CONSIDERATION OF CLAIMS AND EVIDENCE
In his PVA the applicant stated that he was born in Dnipropetrovsk, Ukraine. The applicant is over [age] years of age. He claims that before he left Ukraine in 2015
·    He received mobilization orders and absolutely did not want to kill "my co-patriots, citizens of my own country";
·    If mobilised he would have to obey orders from the commanders and as such he could have killed innocent people residing in ATO zone
·    He is opposed to Ukraine's continuing diplomatic relationship with Russia;
·    He is opposed to Ukraine's mobilisation of unskilled and untrained boys in preference to the deployment of special forces to deal with terrorists;
·    He refused to be mobilized and was threatened with prison and a possible prison sentence of up to 15 years;
·    Military personnel came to his parent's place in Dnipropetrovsk and asked for him;
·    His parents were advised that should he not present himself to the military commissariat, and he would be forcibly brought in and detained;
·    He was able to avoid attendance at the military commissariat by remaining at a work address in [a] Village;
·    On one return visit to his parent's address, military personnel took him and demanded an explanation from him about why he was evading mobilization, and when he explained, he was beaten;
·    he offered a bribe so they could let him go;
The applicant did not provide any further information to the Tribunal.
REASONS AND FINDINGS
On the basis of his Ukrainian passport, I accept that the applicant is a national of Ukraine and not a national or citizen of any other country. I accept that he does not have a right to enter and reside in any country other than Ukraine. Therefore I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Ukraine is the applicants’ “receiving country” for the purposes of s.36(2)(aa).
A Disclosure Certificate, pursuant to s.438 of the Act, purported to apply to pages 60 - 61 and 87 of the Department file [file number deleted], stating that disclosure of the information would be contrary to public interest because the documents related to internal working documents and business affairs. As the only justification for the certificate was the purported impact on the public interest because the documents in issue related to internal working documents and business affairs of the Minister’s Department, I find the s.438 certificate invalid.
Pages 60-61 is a Department computer print regarding refusal of the applicant’s [temporary] visa application and page 87 is a copy of the first page of the letter sent to the applicant rejecting his PVA. I do not rely on these documents being relevant to this application.
In considering this application for review, I have considered the relevant Australian case law where the enforcement of compulsory military service and punishment for desertion or avoidance of such service has been judicially considered. In Australian law, enforcement of laws providing for compulsory military service, and for punishment for desertion or avoidance of such service, will not ordinarily provide a basis for a claim of persecution within the meaning of the Refugees Convention because it lacks the necessary selective quality. Without evidence of selectivity in its enforcement, conscription will generally amount to no more than a non-discriminatory law of general application.
Over the two years from 2014, the new government of the Ukraine declared six waves of mobilization. A special kind of military draft separate from regular conscription that is used to respond to an emergency. The draft was needed to boost military units sent to fight the rebellious eastern regions of Donetsk and Lugansk. Ukraine nearly doubled the strength of its army from the initial 130,000 to 232,000 in 2014 and wants to have 250,000 standing troops. 210,000 people were drafted overall, some of them already demobilized. ‘The initial surge of volunteers dwindled while the number of people who would rather risk prosecution for dodging the draft than put their necks on the line increased. ‘During the latest sixth wave in July-August 2015, the Ukrainian military managed to get just over 60 percent of the intended draftees, the Defense Ministry reported. There were 8.5 percent of volunteers among them. ‘The military complained that its officers often had problems with getting the summons to potential draftees, who moved to another address or simply refused to open their doors. Of those who did get their summons, over half chose to ignore it and run. The ministry said 26,800 men are now subject to prosecution for avoiding military service.
In September 2016 a seventh wave of mobilisation began. Reporting in October 2016, Ukraine Interfax News Agency stated that 7,908 people will be sent to the Armed Forces of Ukraine, 5,000 people to the National Guard and 1,000 people to the State special transport service out of the total number of conscripts. ‘...As the General Staff of the Armed Forces of Ukraine reported later on the official Facebook page, the conscript will finish on November 30, 2016. ‘At the same time, army discharge of those who have served fixed term of time military service has started. A total number of those who must be released in October-December 2016 is 8,315 people.’
On 1 May 2014 the acting President of Ukraine signed a decree reinstating military conscription for males between the ages of 18 and 25 (who did not qualify for exemption). However, in January 2015, the upper limit of compulsory military draft age for male citizens was raised from 25 to 27 years. In April 2015, Ukraine Today noted that ‘Previously, the ministry recruited men from 18 to 25 years, but now their age is to be from 20 to 27 years.’ The applicant is now 32 years of age, he was born in 1987.
President Poroshenko’s official website reported on reservists in August 2016: ‘President Petro Poroshenko signed the Law to raise the age limit for military service in reserve for those who have the experience of military service and may be used to resupply the Armed Forces of Ukraine and other military formations. ‘In accordance with Law № 1604-VII “On amending Article 28 of the Law of Ukraine “On military duty and military service”, the age limit of staying in reserve is increased for the second class from 50 to 60 – for privates and sergeants, from 55 to 60 – for junior and senior officers, to 65 – for high rank officers.
Ukraine[1] on Dec. 3 2018 called-up the first of “several hundred” army reservists for training and to ramp up Ukraine’s defenses, according to the country’s Armed Forces. The reserve soldiers have been summoned for 20-day military drills at firing ranges in Zaporizhia and Kherson oblasts. The training is designed to bring reserve soldiers into readiness “in case Russia starts open aggression” as well as to “refine the format of how to use mobilized reservists” when emergencies occur.
[1] >
The press service of the Ukrainian Ministry of Defense[2] stated that starting Monday, December 3rd, large-scale call-up of reservists and those liable for military duty will begin.
“In part, reservists will be called to duty for up to 15 days to command units and up to 20 days to training centers. Therefore, it is assumed that all the events will be completed before the beginning of the New Year holidays,” noted the Ministry.
“However, mobilization will only be carried out in the case of open aggression. In such situation, not only those on active duty but all reservists and those liable for military service will be called to duty in the Armed Forces of Ukraine,” the Ministry stated.
In addition, in areas in which martial law has been introduced, gathering of those liable for military service will last for 10 days. During this period, "combat coordination of brigades and territorial defense battalions will be held in order to prepare for the defense of these regions."
[2]
The applicant left Ukraine in 2015 with a passport in his own name. He did not attend the Tribunal hearing so I am unable to explore with the applicant how he was able to do so, if he had been mobilised, as claimed.
As the independent evidence, cited above, does not indicate that all males about 28 years of age in the Ukraine were mobilised in 2014-2015 and as the applicant did not attend the Tribunal hearing I do not accept that the applicant received mobilisation orders. As the applicant did not attend the Tribunal hearing I do not have sufficient information before me to accept that the applicant refused to be mobilised and was threatened with prison and a possible prison sentence of up to 15 years. As the applicant did not attend the hearing I also do not accept that Military personnel came to his parent's place in Dnipropetrovsk and asked for him, or that his parents were advised that should he not present himself to the military commissariat, he would be forcibly brought in and detained or that he was able to avoid attendance at the military commissariat by remaining at a work address in [a] Village or that one return visit to his parent's address, military personnel took him and demanded an explanation from him about why he was evading mobilization, and when he explained, he was beaten or that he offered a bribe so they could let him go. I also do not accept that he did not want to kill "my co-patriots, citizens of my own country". As I have no further information from the applicant I do not accept that the applicant was a conscientious objector or that was opposed to Ukraine's mobilisation or that he could have killed innocent people residing in ATO zone.
On the information before me I am satisfied that the applicant left the Ukraine and arrived in Australia as the holder of a [temporary] visa and that he suffered no harm in Ukraine.
I am required to consider the situation if, in the reasonably forseeable future, he were to return to the Ukraine, that there is a real chance the applicant would suffer serious harm for reasons of his race, religion, nationality, membership of a particular social group or political opinion or there is a real risk the applicant would suffer significant harm.
According to UK Home Office Country Policy and Information Note, November 2016[3]‘ 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).
· Regular military conscription of 18–25 year-old men was being carried out between May-July and October-November 2014. Under Ukrainian law, conscripts serve for twelve months.
[3]
The applicant is now over [age] years of age and he does not claim to have past experience as a paratrooper, grenade launcher, in artillery, logistical support, and other personnel (including physician, electrician, mechanic and driver).
There are numerous exemptions, which include conscientious objection on religious grounds for members of religious organizations registered in Ukraine. According to the UNHCR, Ukrainian Law No. 3543-XII of 21 October 1993 On Mobilization Preparedness and Mobilization[4] the following categories of people can be exempted from military draft during mobilization: employees of State authorities; local self-governance bodies; enterprises, institutions and organizations blocked for the mobilization period; persons recognized as unfit to serve due to health condition subject to certification every six months; caregivers to three and more children below 18 years old; single parents of children below the age of 18 years; caregivers of children with severe disabilities; legal guardians and foster parents of orphans or children deprived of parental care; caregivers to spouses or parents in severe medical condition; and parliamentarians. I have no information before me to suggest that the applicant meets one of these categories of exemption.
[4]
According to UK Home Office Country Policy and Information Note, November 2016[5] 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.
[5]
Following reforms of the penitentiary system in Ukraine in 2014, conditions in some prisons and correctional facilities have already been improved and Ukraine plans to implement further reforms to bring conditions more in line with European standards. Fewer cases of torture and mistreatment have been recorded by human rights organisations since 2012. In addition, the Supreme Rada of Ukraine transferred the functions of the key monitor of the ‘National Prevention Mechanism’ to the office of the Ukrainian Ombudsman. The EU and the Council of Europe have provided more than €10,000 to Ukraine to assist with these reforms, in particular to bring procedures and practices in prisons in line with European standards and to support the improvement of prison inspection and handling of prison complaints.
With support from the Ukrainian government, and with recommendations from the Council of Europe, the Ministry of Justice of Ukraine along with the State Penitentiary Service have improved the conditions in some prisons and have succeeded in reducing the number of prisoners who serve their sentence within state institutions. Many individuals are now placed under house arrest rather than in pre-trial detention centres. A new mechanism for probation was also introduced in 2015. In addition to this, the Ministry of Justice of Ukraine plans to reduce the number of prisons and detention centres in Ukraine by half and to update and improve aging remand buildings
As the applicant is over [age] years of age, he is not eligible for mobilisation. On the information before me, the applicant has not served in the military so he is not a reservist. The fighting in Ukraine has not, as yet, ceased. But as the applicant is [age] years of age, I find remote the chance that the applicant would be conscripted in light of the evidence before me that since 2014 the Ukraine authorities have been extending the age of conscription but not as yet past 27 years of age.
I have considered if I am wrong and the age has been extended to over men over [age] years of age. I acknowledge that there is no civilian alternative to military service and penalties for draft evasion in Ukraine. There is currently no domestic legislation in Ukraine providing a legal basis for conscripts to claim exemption from military service on the basis of conscientious objection but Ukrainian Law No. 3543-XII grants limited exemptions. On the information before me, the applicant does not claim to be eligible for any categories of exemption.
Draft evasion and desertion are criminal offences and punishable by law. Evasion of military service is punishable in law by up to three years’ imprisonment. However, in practice, the courts issue fines or suspended sentences in most cases. I accept the independent evidence[6] that such penalties are neither disproportionate nor excessive. I note that the evidence before me indicates that currently there are hundreds of cases opened in Ukraine for draft evasion. In practice (according to the Registry of Court Decisions), 77 guilty verdicts were issued by courts as of February 2016. The majority of these were immediately released on probation.
[6] UK Home Office Country Policy and Information Note Ukraine Conscription, November 2016
I further note that persons targeted for mobilisation included persons with past experience as paratroopers, grenade launchers, in artillery, logistical support, and other personnel (including physicians, electricians, mechanics and drivers). The military complained that its officers often had problems with getting the summons to potential draftees, who moved to another address or simply refused to open their doors. Of those who did get their summons, over half chose to ignore it and run. The ministry said 26,800 men are now subject to prosecution for avoiding military service. According to the legislative and regulatory compliance practices medical opinion on fitness for military service may be appealed through the court.

Conscription law in Ukraine applies to men aged 18 to 25 years of age but this has been varied since reintroduction and extended to 27 years of age. Whilst the law of conscription 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. After completion of military service Ukrainians remain as reservists in the army, subject to mobilisation. In 2014 as the conflict in East Ukraine intensified the Government in Kyiv instituted military mobilization in order to bring additional qualified personnel into the army. Within 2 years there were 6 waves of mobilisation targeting different groups and whilst I am satisfied those waves of mobilisation were discriminatory in that different waves targeted different groups in society eg. Paratroopers or physicians, I am satisfied that mobilisation of reservists and those who have not served previously in the military is appropriate and adapted to achieving a legitimate object of protecting the security and safety of Ukraine and its population. In light of the independent evidence, I find that the laws governing conscription 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. I find therefore that the applicant does not have a well-founded fear of persecution by being required to serve in the military.
I have also considered the situation of draft evaders in Ukraine. I have found no independent evidence to suggest punishment for draft evasion or desertion is disproportionately harsh or severe. I am of the view that were it the situation, it would be known to independent sources such as US State Department, UK Home Office and Canadian IRB who report extensively on the Ukraine. As stated previously I do not accept that the applicant evaded mobilisation and is a draft evader. Therefore, I also find remote the possibility that he will be imprisoned and/or fined for this reason on his return to the Ukraine. I find that he will not suffer serious or substantial harm in the Ukraine as a draft evader.
I have considered the credibility of the applicant’s claims that he has a conscientious objection to military service as he stated he did not want to kill "my co-patriots, citizens of my own country". As stated above, without further information from the applicant I do not accept his claim. The applicant has not claimed, and there is no evidence to suggest, that he has ever publicly voiced his opinions about completing military service or publicly identified himself as a conscientious objector.
According to guidance by the UNHCR[7], conscientious objection to military service refers to an objection to such service based on principles and reasons of conscience, including profound convictions, arising from religious, moral, ethical, humanitarian or similar motives. Such an objection is not confined to absolute conscientious objectors, that is, those who object to all use of armed force or participation in all wars, but can encompass those who believe that the use of force is justified in some circumstances but not in others. Overall, I found the applicant's evidence about why he objected to military service to be limited to generalities (he does not want to kill his fellow citizens). Therefore, I am not satisfied that the applicant is a conscientious objector to military service or to all forms of military service, or to mandatory military service in Ukraine.
[7]
I find that if, on return to Ukraine, he is required to complete military service he will do so. I find that, in the event of his return to Ukraine, on the information before me, the applicant would not express an opinion or act in such a way as to cause him to be imputed with an opinion that is opposed to compulsory military service or to military service more generally. I do not accept that he would seek to evade military service if he returned to Ukraine or that he would resist or speak out against conscription for any reason.
I do not accept that the applicant has a well-founded fear of persecution because he is a conscientious objector. As I do not accept the applicant is a conscientious objector, I do not accept that there is real risk he will suffer serious or significant harm on this basis.
I have considered the possibility that the applicant will be required to complete his military service. I find that, if the applicant is required to complete military service, he will do so in compliance with Ukrainian law. Therefore I am not satisfied that he faces a real chance that he will be prosecuted, penalised, fined, imprisoned or otherwise abused, mistreated or harmed on the basis of being a conscientious objector or for being a draft evader or deserter.
As I do not accept that the applicant is a conscientious objector or a draft evader and I do not accept that he will be perceived as such during his military service I do not accept that the applicant will be mistreated or arbitrarily deprived of his life during his military service, or that he will be arbitrarily deprived of his life, or that the death penalty will be carried out on him, or that he will be subjected to torture, or that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment because he is, or is perceived to be, a conscientious objector or a draft evader.
Therefore I find remote the risk that the applicant will suffer significant harm if he were to be mobilised and required to complete his military service.
I have considered the applicant's claims singularly and cumulatively. Whilst I have found that the applicant’s chances of being mobilised are remote, I also do not accept that he is a genuine conscientious objector or that he was, is or will be considered to be a draft evader by the Ukrainian authorities and I do not accept that he will be harmed for these reasons. I have found that, as a result of a law of general application, if the applicant were to have military service obligation in Ukraine he will not seek to evade conscription or resist or object to the requirement to complete his military service or mobilisation.
Having regard to the available country information, I am not satisfied that there is a real chance that the applicant will face serious harm at the hands of authorities, or any other persons or group for reasons of his religion, actual or imputed political opinion, his membership of a particular social group of conscientious objectors or for any other reason if he returns to Ukraine. I am satisfied there is not a real chance that he will be subject to serious harm for one or more of the reasons set out in the Refugees Convention or for any other reason if he returns to Ukraine now or in the reasonably foreseeable future. The applicant does not satisfy the criteria in s.36(2)(a).
As I have found the applicant does not have a genuine conscientious objection to military service and as I am satisfied he will not be perceived as a conscientious objector and as I am satisfied he will not be perceived to be a draft evader or that he will evade or illegally avoid military service if he returns to Ukraine I do not accept that he will be prosecuted and potentially imprisoned and mistreated for these reasons.
I have considered whether there is a real risk that he will face significant harm if he is required to complete his military service obligation. Reuters[8] reports
"There's been negative publicity from the conflict zone ... There were problems with nutrition, medicines and the winter uniform. Patriotism is falling…. Poroshenko's government has also taken steps to improve conditions for those sent to the front. Last year it spent 5 percent of Ukraine's gross domestic product on the military, enabling the army to revamp its creaking Soviet-era hardware…Scandals over corruption and incompetence in the military are now less frequently splashed across the media, but have not disappeared. "
The US Department of State country report on human rights practice Ukraine covering events in 2016, stated that:
‘There were reports of hazing in the military. On August 4 [2016], the country’s human rights ombudsman sent a letter to the Prosecutor General’s Office and the Ministry of Defense expressing concern about military hazing following the suicide of Vlad Khaisuk, a young soldier serving in a unit stationed in Stanytsia Luhanska. After Khaisuk’s suicide, his parents found videos on Khaisuk’s smartphone of him being hazed and humiliated by other soldiers. The Luhansk Department of the Military Prosecutor’s Office investigated and found no signs of military hazing. At year’s end, however, police in Stanytsia Luhanska were investigating the accident as a homicide.
[8] Reuters. ‘Ukraine struggles to recruit soldiers for war in east,’ 4 February 2016.
I accept that there were problems with nutrition, medicines and winter uniform for those serving in the military and that an incident of hazing occurred which is being investigated. The constitution provides for a human rights ombudsman, officially designated as parliamentary commissioner on human rights. A variety of domestic and international human rights groups generally operated without government restriction, investigating and publishing their findings on human rights cases. Government officials were cooperative and responsive to their views. The Human Rights Ombudsman’s Office frequently collaborated with NGOs through civic advisory councils on various projects for monitoring human rights practices in prisons and other government institutions[9]. On the evidence before me and having regard to the available country information, were the applicant to be mobilised, I find remote the risk that as a military conscript he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment by the Ukrainian authorities. I therefore find that there are no substantial grounds for believing that there is a real risk that the applicant will be subject to significant harm completing military service on his return to the Ukraine. Having considered the applicant's claims singularly and cumulatively, I find that the applicant does not face a real risk of 'significant harm' in Ukraine.
[9]
Therefore I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ukraine, that there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment. The applicant does not satisfy the criteria in s.36(2)(aa).
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
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).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Lilly Mojsin
Member
Annexure A
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 6102

19 July 2019

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

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Standing

Statutory Construction