1618296 (Refugee)

This matter concerned an application for a Protection visa by a national of Ukraine. The applicant claimed he had refused to comply with mobilisation orders in Ukraine due to his opposition to killing fellow citizens and the ongoing conflict with Russia. He alleged he had been threatened with imprisonment, sought out by military personnel, and physically assaulted when he evaded conscription. The applicant did not attend a scheduled hearing before the Tribunal.

The legal issues before the court were whether the applicant met the criteria for a Protection visa under section 36(2)(a) of the Migration Act 1958 (Cth) (the Act) as a refugee, or under section 36(2)(aa) of the Act as a person requiring complementary protection. Specifically, the court had to determine if the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, or if there was a real risk of significant harm upon his return to Ukraine. The validity of a section 438 certificate issued by the Department was also considered.

The court found that the applicant was a national of Ukraine and did not have a right to reside elsewhere, thus not excluded by subsection 36(3) of the Act. It accepted Ukraine as the applicant's "receiving country." The court determined that the section 438 certificate was invalid as its justification was based solely on the documents being internal working documents and business affairs, without further public interest considerations. However, the court did not rely on the documents to which the certificate related. Applying Australian case law, the court held that the enforcement of compulsory military service and punishment for desertion or avoidance of such service, without evidence of selective enforcement, generally does not constitute persecution under the Refugees Convention as it is a non-discriminatory law of general application. The applicant's claims did not demonstrate he was a genuine conscientious objector or that there was a real chance of him being persecuted.

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