1620126 (Refugee)

The applicant sought a protection visa, claiming to fear persecution in Ukraine due to his political opinion favouring unification with Russia and his status as a conscientious objector. The dispute concerned whether the applicant met the criteria for a protection visa, either as a refugee or on complementary protection grounds. The decision was made by the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the applicant qualified as a refugee under section 36(2)(a) of the Migration Act 1958, or alternatively, whether he met the criteria for complementary protection under section 36(2)(aa) by facing a real risk of significant harm upon removal from Australia. The Tribunal was required to assess the applicant's claims against the statutory definitions of "refugee" and "significant harm," considering the evidence presented and relevant policy guidelines.

The Tribunal reasoned that the onus was on the applicant to establish all statutory elements of his claim, and that mere assertion of fear or risk was insufficient. The applicant's claims regarding his political beliefs and his experiences as a conscientious objector, including alleged assaults and ill-health during military service, were examined. However, the Tribunal found discrepancies between the applicant's claims and the supporting medical evidence, such as evidence of an old knee injury rather than a broken leg, and evidence of a fractured eye socket instead of a broken jaw. The Tribunal also noted that the applicant had left Ukraine legally and did not present evidence of being a member of a family unit with a protection visa holder.

Ultimately, the Tribunal affirmed the decision not to grant the applicant a protection visa, concluding that the applicant had not satisfied the criteria under section 36(2) of the Migration Act.