1621420 (Refugee)

1621420 (Refugee) [2017] AATA 1671 (5 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1621420
COUNTRY OF REFERENCE:                  Ukraine
MEMBER:Saxon Rice
DATE:5 September 2017
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 05 September 2017 at 3:46pm
CATCHWORDS
Refugee – Protection visa – Ukraine – Ethnicity – Russian – Imputed political opinion – Pro-Democracy – Particular social group – Russian-speaking Ukrainian minority – Single mother – General violence and crime – Poor economic conditions – Availability of state protection

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 438, 499
Migration Regulations 1994, Schedule 2
CASES
BZADA v MIC and RRT [2013] FCA 1062
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 [in] November 2016 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 [in] April 2015. The delegate refused to grant the visas [in] November 2016.
This is therefore, an application for a review of that decision.
The applicants were given an opportunity to appear before the Tribunal on 3 August 2017 to give evidence and present arguments. The applicants are not represented in this matter.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
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.
CLAIMS AND EVIDENCE
Evidence
The evidence before the Tribunal includes the following relevant material:
- The completed protection visa applications, lodged [in] April 2015.
- Statutory Declaration dated [in] March 2015 signed by the applicant.
- Submission from the applicant’s former representative dated [in] October 2016.
- Photocopies of the applicants’ Ukraine passports.
- Audio recording of the applicant’s departmental interview dated [in] October 2016.
- The delegate’s protection visa assessment record (‘delegate’s decision record’) [in] November 2016.
- The applicant’s online application for review on 14 December 2016, which included a copy of the delegate’s decision record.
- Unsigned, undated submission received by the Tribunal on 18 August 2015.
- The applicant gave oral evidence at a Tribunal hearing on 3 August 2017 together with witnesses, [Priest A,] [Priest B], and the applicant’s husband, [Mr A].
The applicant provided a range of online news articles in Russian at the Tribunal hearing. The Tribunal notes that it has not placed any weight on Russian documents where an English translation has not been provided. This is because the Tribunal is unable to understand documents in languages other than English. The requirement for an English translation was explained to the applicant in the Tribunal’s letter dated 29 June 2017.
The Tribunal notes that the applicant’s departmental file includes a certificate and notification regarding the disclosure of certain information under s. 438 of the Migration Act 1958. The reason given for why disclosure of the information subject to the certificate would be contrary to the public interest is that the folios contain information relating to ‘and internal working document and business affairs’. The folios concerned contain purely administrative material including details of the department’s management of the applicant’s visa applications and a copy of the disclosure decision checklist.
The Tribunal gave consideration to the validity of the certificate and on the basis that a public interest reason has not been identified for the relevant folios, finds the certificate invalid. In any event, the relevant folios have not been considered relevant to this review because they are purely administrative. The Tribunal advised the applicant of the existence of the certificate and provided her with a copy at the Tribunal hearing. The Tribunal also advised the applicant of its finding to be invalid.
Background
When lodging her application with the department, the applicant stated that she was born in Kharkov in the Ukrainian Republic. She stated that she speaks, reads and writes Russian, Ukrainian and English. She indicated that her religion was Orthodox Christian and she identifies as ethnic Ukrainian/Russian.
The applicant outlined that she obtained a [tertiary qualification] in [year] as well as a ‘[further]’ qualification in 2009. She stated that she worked as a [Occupation 1] in Ukraine during 2008 and 2009 and again from 2010 to 2014.
The applicant holds a Ukrainian passport issued in 2010. According to details provided in her protection visa application, the applicant arrived in Australia on a [temporary] visa [in] November 2014 and she stated that she has previously travelled to [Country 1] in 2013 and Russia and [Country 2] in 2014.
The second named applicant is the applicant’s [child]. The second named applicant holds a Ukrainian passport issued in 2017.
Claims
The applicant’s claims, as set out in the statutory declaration accompanying her protection visa application and as set out in the delegate’s decision record provided to the Tribunal by the applicant and her evidence at hearing can be summarised as follows:
- The applicant was born in Kharkiv, Kharkiv Oblast, Ukraine.
- She is ethnically half Ukrainian and half Russian
- She has spent her life in Kharkiv, Ukraine
- She has one [child], [name], who is [age].
Travel between Ukraine and Russia
- The applicant states that she has travelled to Russia many times. Kharkiv is close to the border with Russia, approximately a 30 minute drive.
- The applicant states that she does not have a right to reside in Russia.
- She does not remember all of the dates or how many times she has visited Russia. She could only stay in Russia a couple of days at a time and would visit Russia a couple of times a year.
- She has visited her [relative] in Biysk, Russia in 1995 for a couple of weeks during her summer holidays however she does not remember the specific dates.
- [In] June 2012, [Applicant 2] and the applicant travelled to Russia.
Why the applicant left her home country
- The applicant left Ukraine to move to Australia to marry [Mr B].
- [Mr B] and the applicant met in 2012 in September on [social media]. [Mr B] visited the Ukraine in May 2013. When they were apart they kept in contact via [social media].
- In May 2014, [Mr B] and the applicant visited [Country 2] together. While they were there, he asked the applicant to marry him.
- The applicant arrived in Australia [in] November 2014 on a [temporary] Visa. [Mr B] and the applicant then separated at the beginning of February 2015 as they had relationship problems. They were very different, [Mr B] would become aggressive and would lose control. [Mr B] has psychiatric problems. [Mr B] had a very difficult relationship with [Applicant 2], and [Applicant 2] was scared of him. [Applicant 2] and the applicant felt uncomfortable and unsafe so they had to leave [Mr B].
- Due to the family violence and threats, the applicant was unable to go ahead with the planned marriage to [Mr B] as she feared for the safety of [Applicant 2] and herself.
- After the relationship broke down, initially she just wanted to return to Ukraine but unfortunately the in-country situation has changed since she came to Australia. She is no longer safe to return due to war.
Life in Ukraine
- When she left the city of Kharkiv, it was safe.
- She now watches the news every week and feels that the danger is worse. Buildings such as restaurants, offices, train stations, cars and court houses have been attacked. Explosions are occurring without any warning and it is impossible where the rebels will attack next. Currently the rebels want to overthrow the city.
- Kharkiv is not far at all from the major danger zone, and part of the Kharkiv region is a military zone. There is increasing provocation between the pro-Russian separatists and the Ukrainian military.
- In the recent months there has been major conflict in the Kharkiv area.
- Ukraine has a very difficult economic situation. People are turning to crime because of the economic situation, because they cannot find work, and that is making Kharkiv an even more dangerous place.
- One terrorist spokesman, Zaharchenko, in the Donetsk area has threatened that Kharkiv will be the next target by the pro-Russian rebels.
- At the beginning of March, Russian forces fought on the border between the Kharkiv region and Russia. Russia has placed surveillance technology on the border to monitor the situation in Kharkiv.
- At the beginning on February 2015, there was an explosion [near a location] that the applicant used to work in [address], Kharkiv, that was attributed to the terrorists. On Saturday 21 February 2015 there was a rally in Kharkiv, in support of the Ukrainian army, there was an explosion. Four people were killed and many were injured.
- Even in Kiev, the situation is not stable, so the war has not stopped.
- The applicant's mother is still in Kharkiv. Her father recently passed away in Ukraine. Major factories and businesses in Kharkiv have closed because of the conflict, and it's very difficult to find work.
- As well as the danger, the security situation has inflated prices of food, bills and living expenses and consequently her family is struggling to support themselves.
- Her mother is worried about the danger posed by war, and have warned the applicant not to return.
- Her family would like to escape however there is nowhere they can relocate to.
- The Ukrainian Government fears more danger and conflict is imminent in Kharkiv so they have strongly reinforced the military forces around Kharkiv. The Government had built around 1300 bomb shelters in Kharkiv.
- The Ukrainian media is full of stories, predicting that the conflict will escalate in May due to the build-up of Russian forces around the Kharkiv area. Kharkiv as Ukraine's second city is seen as a high profile prize for the Russian-backed rebels.
- The situation is becoming increasingly worse day by day.
What the applicant fears would happen if forced to return to Ukraine:
- The applicant states that the Ukraine is a dangerous place for [Applicant 2].
- She fears that the situation in the Ukraine is getting worse. She fears that the civil war in Donetsk and Luhansk will extend to Kharkiv. She fears that if she were to return to Ukraine, their lives would be in danger, and they would be killed by one of the frequent explosions in Kharkiv.
- She contends that there is nowhere safe for her to go in the Ukraine. She fears the due to heightened tensions and because of her first language being Russian; she would be viewed with suspicion as a supporter of the terrorists, by people in Western Ukraine.
- She has nobody in other major cities and the government cannot protect or support her. The authorities cannot protect the applicant because they are not strong enough, they do not have the money to be able to fight the rebels. The government is not interested in supporting or helping their citizens. They still have the mentality of the USSR.
- Weapons are regularly being provided to different people inside the military zone and elsewhere, and not all these people are under any kind of control or authority.
Evidence at Tribunal hearing
·The applicant gave evidence that she would be providing evidence for and on behalf of the second applicant and that her protection visa application and statutory declaration accurately reflected her claims but she wanted to add that because of the war in Ukraine and the economic situation, there is a lot of crime in Ukraine. There is also a lot of disease because there is not enough vaccination and as a result, there is a lot of ill people and a lot of sickness which can create life threatening conditions.
·The applicant explained that in November 2016 she married a [Country 3] citizen in Australia who currently holds a [temporary] visa. They recently had a baby who is [age] and who comes under her husband’s visa. She said they intended to apply for a [Country 3] passport for their newborn child. The applicant said her family was living together and her husband was an [Occupation 2] and she had set up her own business as a [Occupation 3].
·The applicant confirmed that her mother was living with her [family member] in Kharkiv in their family house and her father passed away in 2016. She said her [family member] is working as a [Occupation 4] and her mother is on a pension and she spoke to her family around one month earlier. They have not left Kharkiv because they do not have the money to do so and her mother has [a medical condition] which means she is unable to travel.
·The applicant told the Tribunal that she has worked since the age of [age] including in an [section] of a hospital, as an [Occupation 5] in a school, in a company involved in [business activity] and at different [types of] companies until she had her child in [year].
·The applicant told the Tribunal that when she left Kharkiv, there was a revolution in Kiev and all the violence had already begun. The applicant did not suffer any harm before she came to Australia and nothing happened to her personally but she was anxious and afraid and when they slept they had televisions on in every room.
·When the Tribunal asked if any family members had encountered any problems in Kharkiv, the applicant said that there is now a big ‘conflict of interest’ going on and once, her [family member] had a fight with some guys in May 2014. She said the fight was related to her [family member]’s Russian ethnicity and observance of symbols of importance and during the fight, her [family member] suffered some bruises but this was the only incident for her [family member]. The applicant said the ‘conflict of interest’ related to tensions between those of Russian ethnicity or not and the observance by ethnic Russians of the celebration of Great Victory and certain symbols that are now being used in the conflict zone. The applicant also said that when she was in Australia, the large [company] she worked in was blown up and there was a lot of provocation and frequent notifications of bombs and people being killed.
·The applicant claimed that in February 2017, there was a shooting in a neighbouring district to her house involving two militant groups but eventually the police managed to stop the conflict and arrested the people. The applicant referred to the documents she provided in Russian and claimed that since the conflict began, almost ten thousand people had died and more than twenty-one thousand people had been injured, including two hundred children killed up to the end of 2016.
·The applicant fears that Ukraine is a completely unsafe country. It is unstable and involves light arms and rockets and tanks. The applicant again referred to the articles she provided in Russian and told the Tribunal that she fears the war, not just general violence. The applicant claimed that it is not just general violence because if she happens to express and opinion accidentally then she can come to great harm because saying anything against the government is not allowed and there are many psychologically imbalanced people who will throw grenades.
·The applicant claimed that she has always had a political opinion but never been a member of a political party and while it is not outlined in her protection visa application or with the department, she talked about it in her interview with the [agency] prior to the submission of her protection visa application but they then discussed the language issue more. The applicant told the Tribunal that she does not support power and authority and she was pro-democracy which does not exist in Ukraine because websites and social media have recently been banned because of Russia so people do not have access to other information and lots of people commit suicide in Ukraine because they cannot cope with the challenges and pensions are much less than rent.
·The applicant told the Tribunal that she was very afraid to go to Ukraine because a couple of months ago in a town approximately one and a half hours from Kharkiv, an underground storage of weapons exploded and the explosions went on for days.

[Priest A] and [Priest B] supported the applicant’s application for protection and also told the Tribunal that she was a model citizen and very supportive in her community. They supported the applicant’s claims regarding generalised violence affecting the lives of all citizens and the overall economic situation in Ukraine. [Priest A] expressed concern for the second applicant on the basis that she had forgotten to speak Russian and it would not be pleasant for her to speak English because people may think she is American and she could be targeted because of this.
[Priest A] also told the Tribunal that he knows the Ukrainian culture and ‘one can be an easy target’ so he felt that the applicant’s return to this culture is life threatening.
[Priest B] told the Tribunal that there was no room in the family home for the applicant and her children and they could not relocate to Western Ukraine because there is a neo-Nazi situation in Western Ukraine that is anti-Russian and the applicant would be under direct threat because of her Russian language. [Priest B] also noted that the applicant’s home city was near to the border with Russia and while the conflict zone is some way away, the border area could be invaded at any time and Russian soldiers are more like criminals.
[Mr B] told the Tribunal that he sees and hears what his wife is going through when she talks to family and friends in Ukraine. He said that the applicant’s [family member] was attacked returning from work and he broke his hand which resulted in him being in hospital for weeks.
[Mr B] said that people get attacked all the time, they can’t afford to leave because the economic conditions are difficult and not all the information is on the news or on the internet. He said his wife did not even go home when her father died.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of reference
The applicants claim and the Tribunal is satisfied on the basis of the personal details provided, that they are Ukrainian nationals. Ukraine is therefore the receiving country for the purpose of assessing the applicant’s claim for protection.
Independent country information
Russian ethnicity, language and imputed political opinion
In a report dated January 2017, the UK Home Office states that there is no evidence of mistreatment of ethnic Russians, Belarussians or Moldovans by the state.[1] The UK Home Office acknowledges a report by Equal Rights Trust of August 2015 which stated:
Ethnic Russians are by far the largest ethnic minority in Ukraine, constituting almost one fifth of the population. In light of the conflict between pro-Russian separatists and the Ukrainian state in the Donbass region of eastern Ukraine, the Equal Rights Trust sought evidence of discrimination against this group, in order to establish whether discrimination was a factor in creating or perpetuating the conflict. Interviews conducted for the report, together with research undertaken by other independent actors, found that relations between ethnic Russians and the majority were historically good, and remained good at the personal level even as the war raged in the east. While there were grievances among ethnic Russians in the east and south prior to the conflict of 2013–2014, these did not appear to have been based on ethnicity per se. Rather than ethnicity, the dividing factor seems to have been political opinion: divergent geopolitical orientations to Russia and to the West and the related language preference among otherwise bilingual populations have been both the cause and the consequence of the armed conflict.
[1] UK Home Office, Country Policy and Information Note, Ukraine: Minority groups, January 2017, p. 7.
Further information in the report of the Equal Rights Trust was considered by the Department of Immigration and Border Protection in its Standard Q&A Report dated 24 December 2015. The Equal Rights Trust stated that ‘[p]rior to the 2014 conflict, relations between ethnic Russians and the majority population in Ukraine were generally harmonious, with little evidence of discrimination or disadvantage.’[2] The report indicated that the conflict did not appear to have had an adverse impact on these relations, stating that:
While the conflict between Ukraine and pro-Russian separatists in the east of the country has resulted in a more negative image of the Russian state among the Ukrainian public, this does not appear to have translated into a negative attitude or behaviour towards ethnic Russians in Ukraine.
[2] Department of Immigration and Border Protection, Standard Q&A Report, Ukraine: CI151204133128962 – Security Situation – Pro-Russians – Pro-Ukrainians – Ethnic Russians, 24 December 2015, p. 16.
The report of the Equal Rights Trust also stated that there was ‘no evidence of discrimination against ethnic Russians on the basis of ethnicity’ and ‘no experience of any hostility at the personal level’, although it was noted that ‘the conflict had increased the tension between the two previously hardly distinguishable groups’ (i.e. ethnic Russians and Ukrainians):[3]
The testimonies collected by the Equal Rights Trust in April 2015 suggest that while there was no evidence of discrimination against ethnic Russians on the basis of ethnicity, and while there has been no experience of any hostility at the personal level, the conflict has forced Russians in Ukraine to clarify and determine their belonging in an Ukrainian state, not as a “national minority” but as a constituent of the Ukrainian political nation which has always been characterised by the presence of Russian language and culture.
[3] Department of Immigration and Border Protection, Standard Q&A Report, Ukraine: CI151204133128962 – Security Situation – Pro-Russians – Pro-Ukrainians – Ethnic Russians, 24 December 2015, p. 16.
Ukrainian is the official language of Ukraine, however, it is widely recognised as a bilingual country. While ethnic Ukrainians were in the majority in eastern Ukraine, the majority of persons in eastern Ukraine speak Russian rather than Ukrainian.[4] Reports have also been located which refer to the majority of ethnic Ukrainians in the east speaking Russian.[5]
[4] Equal Rights Trust 2015, In the Crosscurrents: Addressing Discrimination and Inequality in Ukraine, August, UNHCR Refworld, pp.18-19
[5] Woehrel, S, Ukraine: Current Issues and U.S. Policy, United States Congressional Research Service, 12 February 2015, Federation of American Scientists, p.7.
On the issue of distinguishing characteristics of ethnic Russians and Ukrainians, the Equal Rights Trust noted that:[6]
Such identity elements as speaking Russian as a first language, being Orthodox Christians or loving Russian culture do not appear to be sufficient as there are many ethnic Ukrainians and members of other ethnic groups in Ukraine who also share these characteristics. Moreover, these cultural identifications do not impede a person to feel a part of the multi-ethnic Ukrainian political nation.
[6] Department of Immigration and Border Protection, Standard Q&A Report, Ukraine: CI151204133128962 – Security Situation – Pro-Russians – Pro-Ukrainians – Ethnic Russians, 24 December 2015, p. 17.
In its International Protection Considerations Related to the Developments in Ukraine — Update III of September 2015, the United Nations High Commissioner for Refugees (UNHCR) highlights that "Claims for international protection of persons having been involved in recent developments, including, for example, political activists, journalists and human rights defenders may need to be given particular attention.”[7]
[7] United Nations High Commissioner for Refugees, International Protection Considerations Related to the Developments in Ukraine — Update III, September 2015, p. 15.
In an earlier report of July 2014, UNHCR stated that "Claims for international protection of persons having been directly or indirectly involved in or affected by the recent unrest and the current situation may need to be given particular attention."[8]
[8] United Nations High Commissioner for Refugees, International Protection Considerations Related to the Developments in Ukraine — Update I, July 2014.
However, the UNHCR has not stipulated people of Russian ethnicity as being a group at risk in the Ukraine on the basis of their race/ethnicity, nor is it suggested that they are automatically imputed with a political opinion on the basis of ethnicity.
Similarly, there is no stipulation about people of Russian ethnicity as being a group at risk in a report by Office of the United Nations High Commissioner for Human Rights (UNHCHR) published in 1 June 2015.[9] The same report in 2014 had noted increasing hate speech and anti-Russia propaganda had contributed to 'anti-Russia' rhetoric, and a rise in intolerance in Ukraine. This indicates that the rhetoric has not been translated to systematic ongoing harassment, or systematic targeted harm or acts of violence against ordinary, non-politically active ethnic Russian citizens of Ukraine.
[9] Office of the United Nations High Commissioner for Human Rights, Report on the Human Rights Situation in Ukraine – 16 February to 15 May 2015, 1 June 2015.
In 2015, Freedom House noted that although the national government has generally protected the legal rights of minority groups, the country's Romany population continues to suffer from discrimination. The report does not identify the ethnic Russians as a minority group requiring protection.[10]
[10] Freedom House, Freedom in the World 2015 - Ukraine.
The Tribunal outlined the above information to the applicant and invited her to comment. The applicant told the Tribunal that the escalation is always there. Nationalist groups support the Ukrainian language and if you speak any other language or Russian language they can beat you up and blackmail you. And the tension is always there between West Ukraine and East Ukraine.
The Tribunal also noted the claim the applicant had raised during the course of the Tribunal hearing regarding her ‘pro-democracy’ political opinion and advised the applicant that it might not consider the applicant would face a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future on the basis of this opinion. The applicant claimed that the Ukraine Consulate in [city] discriminated against her when she went to them for help when she was a victim of domestic violence after her arrival in Australia.
Current situation in Ukraine and Kharkiv
Freedom House stated in 2016 that Ukraine has survived the severe political crisis that Russia instigated after popular protests. Freedom House outlined that:[11]
In a deal brokered by Germany and France in February 2015, Ukraine and Russia signed the second “Minsk Agreement,” which called for a cease-fire in eastern Ukraine, set out terms for the withdrawal of military equipment, and provided a sequence of steps for a final political solution between the two sides. The agreement brought some relaxation in the conflict, but a comprehensive cease-fire was achieved only in September, after representatives of Germany, France, Ukraine, and Russia met again in Paris.
…
Despite the largely frozen conflict in the east, political life stabilized in 2015, and there was some progress on the huge range of reforms Ukraine requires to become a fully democratic state based on the rule of law.
…
Outlook for 2016: Ukraine will continue to face challenges to its statehood and territorial integrity due to Russian aggression and the fragility of its national democratic institutions. At the same time, the most severe crisis has likely passed, and the country will have more space for implementing reforms and encouraging economic recovery. The largest challenges remain the high level of corruption and the weakness of institutions tasked with ensuring the rule of law. The majority coalition in the parliament suffers from internal rifts, and the dissolution of the Verkhovna Rada for early parliamentary elections in 2016 cannot be ruled out.
[11] Freedom House, Nations in Transit: Ukraine 2016, p. 2.
A variety of sources outline that the security situation remains volatile in and near to the conflict zone in the Donetsk and Luhansk oblasts but the situation in the rest of Ukraine is relatively calm. Economic conditions are challenging and unemployment is at 9.0% in Ukraine in 2017.
Kharkiv oblast, which is located in the immediate vicinity of the Donbas region, and which shares a 315-km stretch of Ukraine's border with Russia, was one of the regions where attempts were made to kindle separatist sentiments during the spring of 2014. Some central government buildings were briefly occupied by pro-Russian demonstrators who declared a 'Kharkov People's Republic', but efficient countermeasures by the Ukrainian institutions of force quickly calmed the situation in the region.[12] The war's impact on the situation in the region is clearly apparent. Kharkiv oblast has become the destination for many of the refugees escaping from the Donetsk and Luhansk oblasts. According to official data, they currently number around 170,000 people, but even the local authorities emphasise that the true figure actually exceeds 300,000. Kharkiv oblast is the fourth largest region of Ukraine; it has a population of 2.73 million people, more than half of whom (1.4 million) live in Kharkiv city.[13] According to the first independent all-Ukrainian population census conducted in December 2001, the breakdown of ethnicity in Kharkiv was Ukrainians 52.8%, Russians 43.2% and Jews 0.7%.[14]
[12] The Centre for Eastern Studies (OSW), The Kharkiv Oblast – A Fragile Stability, OSW Commentary No. 172, 3 June 2015.
[13] The Centre for Eastern Studies (OSW), The Kharkiv Oblast – A Fragile Stability, OSW Commentary No. 172, 3 June 2015.
[14] Wikipedia, Kharkiv,
In June 2015, The Centre for Eastern Studies outlined that anti-war sentiment in the region was rising steadily, and the oblast's residents were aware that a possible outbreak of separatist sentiment could lead to a repeat of the events in the Donetsk and Luhansk oblasts. Around a third of the population displayed clearly pro-Ukrainian sentiments and their presence was by far the most visible in the region. According to government estimates, since the beginning of the year sabotage groups have carried out 12 terrorist acts in Kharkiv oblast; since the spring of 2014, there have been a total of 48 such incidents.[15] The worst such act took place on 22 February 2015, when during a march in Kyiv, an explosive device hidden in snow by the roadside went off.[16]
[15] The Centre for Eastern Studies (OSW), The Kharkiv Oblast – A Fragile Stability, OSW Commentary No. 172, 3 June 2015.
[16] Office of the United Nations High Commissioner for Human Rights, Report on the Human Rights Situation in Ukraine – 16 February to 15 May 2015, 1 June 2015.
The US Department of State also reported that in late 2014 and early 2015, acts of terrorism in the form of low-level bombings began to occur primarily in the cities of Kharkiv and Odesa. Most of the explosions detonated between 2200 and 0600, resulting in focused damage and no injuries or loss of life. However, a few of the bombings targeted clubs, restaurants, and bars frequented by Ukrainian soldiers.[17] The Tribunal is not aware of any country information regarding further attacks in Kharkiv since mid-2015.
[17] US Department of State Overseas Security Advisory Council (OSAC), Ukraine 2015 Crime and Safety Report, 18 May 2015.
Despite reports of violence, the Organization for Security and Co-operation in Europe (OSCE), monitors' reports between January 2015 and 7 July 2015, were constant that the situation in Kharkiv was ‘calm’ and this situation is still reflected in the current DFAT travel advice for Ukraine which states that ‘While the situation in most cities is generally calm – excluding Donetsk and Luhansk – the security situation can deteriorate without warning.[18]
[18] Department of Foreign Affairs and Trade, Smart Traveller, Ukraine Latest Advice, 27 June 2017.
The Tribunal put a summary of the above information to the applicant and invited her to comment. The applicant said that she had an argument with a friend in Russia because the friend said that they would have to throw bombs on all in Ukraine. The applicant told the Tribunal that part of Kharkiv is in the “grey-zone” with military bases related to the conflict and there is no peace in the regions of the conflict zone. The applicant told the Tribunal that there was still provocation in her city because she watches the news all the time and there was no information reported about a whole city in Kharkiv region being evacuated. The applicant told the Tribunal that the government tries to keep quiet about these things in order to receive help from Europe and the US. But no one can say anything about what is going on and if you say something or do something then people can report you so there is no democracy.
The Tribunal also noted that country information indicates that Ukraine appears to have effectively implemented a de facto self-censorship for a period that includes Russian computer programs, cable television, Russian-based internet providers and social media. However, the Tribunal understands these actions to be part of the ongoing propaganda warfare between Ukraine and Russia that is not inconsistent with the overall conflict environment and that these measures would not amount to serious or significant harm or be considered to be targeted at Ukrainians of Russian ethnicity. The applicant said that she did not want something to happen to them and that criminal occurrences are happening there. The applicant then claimed that if they go back, people might assume that they are ‘loaded’ and come and kill them all because people are desperate. The applicant said it is hard to find employment and as a mother of two, it would hard to find employment.
The Tribunal also noted that the applicant appeared to be making a new claim to fear being targeted as a returnee to Ukraine. The Tribunal advised the applicant that it was not aware of any country information that indicated that people returning from abroad or failed asylum seekers are at risk of serious or significant harm in returning to Ukraine and that Ukrainians appear to be quite mobile, particularly to and from Europe. The applicant told the Tribunal that there are a lot of criminals and it is quite possible. She said that her reason for not raising this claim previously was because she omitted to say it.
The Tribunal noted that the applicant was claiming to fear crime, generalised violence and the overall economic and health situation in Kharkiv and Ukraine, including her ability to find employment (other than due to her Russian ethnicity). The tribunal noted that it could not see that healthcare in particular would be withheld from either applicant and that these concerns appear to be faced by the population generally and not by the applicant personally. The applicant she understood in relation to the general population but not everyone had the opportunity to apply for protection and she wants to live and have everything correct for her children and she does not want them to suffer because of what is happening in Ukraine because it really could touch them.
The applicant also said that salaries are so small and it is harder to find work with two children. She said that she did previously work online but this was casual and it was hard to find a constant job. The applicant told the Tribunal that the Ukraine pension was 1,400 Ukrainian Hryvnia per month but that it cost 2,000 Hryvnia per month to heat the house in winter and it is difficult to live in those conditions.
Women and women with children
In a report dated November 2015, the UK Home Office states that “Gender based violence remains a major concern in the Ukraine. Domestic violence is a serious problem and increasingly common, with some 85,200 complaints being registered in the first nine months of 2014. There are also numerous incidents of rape and sexual assault. Most cases go unreported due to domestic violence and rape being widely considered as private matters and limitations in the law.”[19]
[19] UK Home Office, Country Information and Guidance, Ukraine: Women fearing gender based violence, January 2017, p. 5.

However, the UK Home Office also stated that “Being female does not on its own establish a need for international protection. Whilst there are numerous incidents of gender-based violence in Ukraine, the actual number of incidents when compared with the overall size of the population suggests that there is not a general risk of women being subjected to persecution or serious harm on account of their gender alone.” The report identified several groups of women that are at heightened risk of gender-based violence such as women in the conflict zone, internally-displaced women, unaccompanied minors and women from ethnic minorities such as Roma. The report did not identify an increased risk of harm for women of Russian ethnicity.[20]
[20] UK Home Office, Country Information and Guidance, Ukraine: Women fearing gender based violence, January 2017, p. 5.
The Tribunal put the above information regarding women to the applicant and asked if she would like to comment. The applicant stated that it is very hard to find work in Ukraine with children because employers want women of a certain age and childless women. The applicant said that she is still in contact with her mother and [family member] but she does not want her children to live in those conditions and to hear everything happening around them.
The applicant told the Tribunal that there is persecution of women when finding employment because when you have young children there is no one to help you and they (employers) close every door. The applicant said that employers have money they can pay for a blind eye to be turned.
The applicant also said that she does not want her children to be victims and [Applicant 2] has stopped speaking Russian – or [Applicant 2] speaks with great difficulty – and speaks with a pronounced accent and therefore, the applicant claimed it would be difficult for [Applicant 2] to go back and difficulty psychologically to see all this around [Applicant 2] and [Applicant 2] understands that people die there.
The Tribunal noted that the applicant’s fear regarding [Applicant 2]’s language ability may relate more to societal discrimination that would not be considered serious or significant harm. The applicant said that it would be hard for [Applicant 2] because people from ex-Soviet countries do not have much love for English speaking people and they might think [Applicant 2] is American.
State protection
UK Home Office also states that in general, people are likely to be able to access effective state protection against non-state actors or rogue state actors in the government-controlled areas of Ukraine.[21] The Tribunal invited the applicant to comment on this information and she stated that there is complete lawlessness in Ukraine and maybe she will have access to minimal protection and minimal financial help if she is unable to find employment but prices are so high that she will not be able to survive.
[21] UK Home Office, Country Information and Guidance, Ukraine: Background information, including actors of protection and internal relocation, August 2016, p. 7.
FINDINGS AND REASONS
The issues in this review are whether the applicants have a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to their receiving country of Ukraine, there is a real risk they will suffer significant harm.
The Tribunal also notes that the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:
As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.
Having considered the relevant evidence, the Tribunal accepts that the applicant has a subjective fear of returning to Ukraine with her children. It is also evident to the Tribunal that the applicant is and has been very involved in her community since she has been in Australia and she clearly has the support of her community leaders.
However, as outlined above, the Tribunal is required to consider whether the applicant’s claims meet the criteria to be a refugee or the alternate criteria for complimentary protection. The applicant’s claims relate to her Russian ethnicity, having a pro-democracy political opinion, being a Russian-speaking Ukrainian minority, a single mother, a returnee and the situation in her home city, including general violence and crime, economic and health conditions and the availability of state protection.
For the reasons set out below, the Tribunal does not accept that any of the applicant’s claims for protection are well-founded.
Russian ethnicity, language and actual or imputed political opinion
The Tribunal accepts that the applicant is of Russian ethnicity. However, the Tribunal does not accept that the applicant is imputed with any political opinion on account of her Russian ethnicity, or that she faces a real chance of serious harm or a real risk of significant harm on account of her ethnicity in the reasonably foreseeable future.
Country information outlined above indicates that there is no evidence of mistreatment of ethnic Russians by the state or nationalist groups. Rather, the Equal Rights Trust states that there was ‘no evidence of discrimination against ethnic Russians on the basis of ethnicity’ and ‘no experience of any hostility at the personal level’, although it was noted that ‘the conflict had increased the tension between the two previously hardly distinguishable groups’ (i.e. ethnic Russians and Ukrainians). Ethnic Russians are also not a group recognised by UNHCR as a group at risk in Ukraine. Therefore, the Tribunal does not accept the applicant’s claim relating to her Russian ethnicity. In addition, the Tribunal does not accept that the applicant is imputed with a pro-Russian political opinion on account of her Russian ethnicity. While the applicant did not articulate this claim, the Tribunal has considered this possibility and has found that there is no country information to support such a claim.
The Tribunal notes that the applicant claimed her [family member] was involved in a ‘conflict’ due to his Russian ethnicity, but that he only suffered bruises. Other than the applicant’s assertion that this is the experience of her [family member], the Tribunal has no other evidence that this conflict occurred, or that his Russian ethnicity was the reason. The Tribunal also notes that the applicant did not make this claim previously and she also told the Tribunal that this was the only incident her [family member] was involved with. However, this evidence was contradicted by her husband who told the Tribunal that the applicant’s [family member] was also attacked when he was using a bank on his way home from work and broke his hand and was in hospital for weeks. In accordance with s.424AA procedure, the Tribunal outlined this contradictory evidence to the applicant and explained that inconsistencies in evidence can cause the Tribunal to doubt the credibility of the claims being made. The applicant was offered but did not seek additional time to respond and told the Tribunal that her [family member] had been involved in three incidents, one [in] May 2014, one in February 2014 and one a few months ago. The Tribunal asked why the applicant had not mentioned these incidents previously and the applicant said that she told the [agency] when they helped her prepare her application because her English was not very good. The Tribunal asked the applicant if she used an interpreter and she said yes, but she must have forgotten because they were students. Based on the applicant’s explanation, the Tribunal is not convinced or satisfied that any or all of these incidents occurred to the applicant’s [family member] in Ukraine, or that they occurred due to his Russian ethnicity. On this basis, and in light of country information already outlined, the Tribunal places no weight on the applicant’s (or her husband’s) claim that her [family member] has been attacked in Ukraine due to his Russian ethnicity.
Similarly, the Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm because she is Russian speaking. As outlined above, country information indicates that Ukraine is widely recognised as a bilingual country and significant numbers of people in eastern Ukraine speak Russian, including a majority of ethnic Ukrainians. There is no country information to indicate that Ukrainians of Russian ethnicity or ethnic Ukrainians are persecuted or face any risk of harm due to their use of the Russian language.
The Tribunal notes that the applicant also claimed that the second applicant was not speaking Russian or had forgotten to speak Russian and spoke with a pronounced accent. [Priest A] supported this evidence and suggested that there may be problems for the second applicant if [Applicant 2] spoke English in Ukraine as [Applicant 2] may be mistaken for being American. When the Tribunal discussed this issue with the applicant and particularly whether her concern related to societal discrimination, the applicant and her witness agreed. While the Tribunal is prepared to accept that there is societal discrimination against speaking English in Ukraine, the Tribunal is not aware of any country information to suggest that people are targeted for using the English language in Ukraine. The Tribunal understands the applicant’s concern for [Applicant 2]. However, societal discrimination does not meet the threshold of serious or significant harm and on this basis, the Tribunal does not accept that the second applicant faces a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future on account of [Applicant 2’s] use of the English language in Ukraine.
The Tribunal acknowledges that country information indicates that Ukraine appears to have effectively implemented a de facto self-censorship for a period that includes Russian computer programs, cable television, Russian-based internet providers and social media. However, the Tribunal understands these actions to be part of the ongoing propaganda warfare between Ukraine and Russia that is not inconsistent with the overall conflict environment and it does not accept that these measures amount to serious or significant harm or that they are targeted at Ukrainians of Russian ethnicity or Ukrainians that prefer to speak Russian.
For the sake of completeness, while the Tribunal might have some doubts about the applicant’s political opinion and its strength, it is prepared to accept, for the purposes of this review that she holds a ‘pro-democracy’ political opinion. However, the Tribunal notes that Ukraine became an independent, democratic state following the Ukrainian Parliament’s (Verkhovna Rada) passing of the Act of Declaration of Independence on 24 August 1991 and a subsequent referendum held on 1 December 1991 in which approximately 90 per cent of voters expressed support for the Act. In addition, the general platform of the ruling government in Ukraine is ‘pro-democracy’ and it does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future on the basis of her political opinion.
Finally, the tribunal also notes that the applicant claimed that the Ukraine Consulate in Australia discriminated against her when she sought their assistance after she was a victim of domestic violence. The Tribunal made this statement in reference to her political opinion. The Tribunal understands that the applicant may have been disappointed by the response of the Ukraine Consulate to her circumstances but the Tribunal cannot see how this encounter would have enabled the Consulate to be aware of any political opinion held by the applicant; that her political opinion if known would have caused the Consulate to discriminate against her; or that the Consulate would have been able to provide the necessary services to assist the applicant in the circumstances she described. On this basis, the Tribunal does not accept that the Ukraine Consulate discriminated against the applicant on the basis of her political opinion because it did not provide her with assistance relevant to being a victim of domestic violence in Australia.
Women and women with children
The UK Home Office states that while gender-based violence remains a concern in Ukraine, “Being female does not, on its own, establish a need for international protection.” The UK Home Office identified that groups of women at heightened risk of gender-based violence included women in the conflict zone, internally-displaced women, unaccompanied minors and women from ethnic minorities such as Roma. The report did not indicate that those with Russian ethnicity are at heightened risk of gender-based violence and the Tribunal noted that it was not aware of any country information that suggested that women with children face a real chance of serious harm or a real risk of significant harm.
The applicant made a general reference to her fear of returning to Ukraine due to her gender and being a single woman with children. However, when the Tribunal discussed this claim with her during the Tribunal hearing, the applicant’s concerns related to the difficulties she felt she would face as a single mother, including her ability to find employment, the overall economic conditions, discrimination against women with children in the workplace and her ability to protect her children from crime and health concerns.
The Tribunal has considered the issue of economic and health conditions and generalised violence below in relation to the current situation in Ukraine and Kharkiv. In relation to the applicant’s concern regarding discrimination against women with children in the workplace, the Tribunal acknowledges that country information indicates that while Ukraine’s labour code prohibits discrimination in the workplace based on race, colour, political, religious and other beliefs, sex, gender identity and a range of other factors, the government did not effectively enforce the law and discrimination in employment and occupation reportedly occurred with respect to gender.[22] However, the applicant also acknowledged that she had previously done work online (albeit casually) when she had her first child and she otherwise has an extensive and full work history, including having set up her own business in Australia as a [Occupation 3] that would assist the applicant in finding work or running her own business in Ukraine.
[22] US Department of State, Ukraine 2016 Human Rights Report, p.57.
In any case, the Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm on the basis of her gender if she returns to Ukraine in the reasonably foreseeable future and it does not accept that workplace discrimination amounts to serious or significant harm.
Current situation in Kharkiv and Ukraine – including general violence, economic and health conditions and state protection
The Tribunal understands that the security situation remains volatile in and near to the conflict zone in the Donetsk and Luhansk oblasts and that there have been a number of attacks on Kharkiv in the past. However, country information indicates that the current situation in the rest of Ukraine other than the conflict zone (which does not include the city of Kharkiv or Kharkiv oblast) is relatively calm. On this basis, the Tribunal does not accept that the applicant cannot return to Kharkiv. The Tribunal notes that the applicant’s mother and [family member] still reside in Kharkiv and while [Priest B] told the Tribunal that there was no room in the family house for the applicant and her children, the applicant would have the support of her mother and [family member] and the applicant also told the Tribunal that she would likely be able to access government financial assistance although she did not think the amount was very much.
The Tribunal notes that the applicant and her witnesses raised concerns about the current environment and the location of the applicant’s home city of Kharkiv being near to the Russian border. However, while country information outlined above indicates that there were a number of incidents in Kharkiv early in the conflict and until 2015, country information also outlines that Kharkiv was quickly protected by Ukrainian government forces when the conflict broke out and it remains part of the government-controlled area and not an area controlled by pro-Russian separatists. The Tribunal notes that the applicant told the Tribunal that she could not return to Kharkiv because part of Kharkiv is in the “grey zone” with military bases related to the conflict; there is no peace in the conflict zone; that there was still provocation in Kharkiv; and that there was no information reported about a whole city in Kharkiv region that was evacuated. While the Tribunal accepts that there are military bases in and near to Kharkiv and that the situation in the conflict zone is still volatile (but this does not include Kharkiv or Kharkiv region), the Tribunal places more weight on the country information cited that the situation in Ukraine, outside the conflict zone is relatively calm and this appears to have been the assessment since 2015.
The Tribunal notes that the applicant claims to fear generalised violence and the overall economic situation in Kharkiv and Ukraine, including her ability to find employment (other than due to her Russian ethnicity or her status as a parent as addressed above) and the availability of health treatments. However, the tribunal does not accept that the situation as it relates to generalised violence and economic or health conditions as harm the applicant may face has any connection to race, religion, nationality, membership of a particular social group or political opinion required by the refugee criterion and therefore, finds that the applicant does not face a real chance of serious harm. In addition, when the Tribunal considered these claims in relation to the complimentary protection criteria, the Tribunal finds that such factors are faced by the population generally and not by the applicant personally.
The Tribunal notes that when it discussed these issues with the applicant, she acknowledged the issue in relation to the general applicability of these factors but reiterated her fears. The Tribunal also notes that the applicant claimed that [a location near her former place] of work was ‘blown up’ and people were killed and similarly that there was a shooting in a neighbouring district between militant groups but the police go the situation under control. The applicant did not claim that any of these incidents was targeted at her personally or advance any reason other than referring to them as examples of generalised violence. Therefore, the Tribunal is not satisfied that there are grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ukraine, there is a real risk she will suffer significant harm.
While the economic environment may be challenging in Ukraine, as noted above, the applicant also told the Tribunal that she is likely to be entitled to a Ukraine pension and financial assistance (although she raised concerns for the overall value of this assistance compared to costs).

For the sake of completeness, the Tribunal notes that the applicant said she feared for [Applicant 2]’s psychological state in returning to Ukraine because [Applicant 2] knows people die there. However, the applicant has not provided the Tribunal with any medical evidence relating to concerns regarding [Applicant 2]’s current psychological state, nor has the applicant claimed that there would be any intent to psychologically harm [Applicant 2] if they return to Ukraine, or that the psychological harm might inflicted for any reason relating to the refugee criteria.
Country information indicates that health services are available in Ukraine although they may be not be adequately resourced. However, there is no information to suggest that the applicants would be withheld medical assistance for a reason relating to the refugee criteria if it was sought in Ukraine, and access to health and medical assistance is an issue faced by the population generally and not by the applicants individually. Therefore, the Tribunal does not accept that there are grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Ukraine, there is a real risk the second applicant will suffer significant harm due to potential future psychological issues or access to health and medical services.
Finally, country information indicates that many Ukrainians are internationally mobile, particularly with travel to Europe. The Tribunal is not aware of any country information to suggest that Ukrainians are targeted due to their travel abroad, return to Ukraine from a western country, perception of wealth due to their travel abroad or as failed asylum seekers. On this basis, the Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm if she returns to Ukraine in the reasonably foreseeable future due to having been in a western country or a failed asylum seeker.
In addition, country information indicates that in general, people are likely to be able to access effective state protection against non-state actors or rogue state actors in the government-controlled areas of Ukraine. The applicant also referred to an instance in a neighbouring district where the police broke up a conflict and arrested the relevant people. There is no country information to indicate that the police would withhold protection from the applicants for any reason. Therefore, the Tribunal does not accept that the applicants would be unable to avail themselves of state protection if they required it.
Cumulative assessment
Considering the applicants’ individual circumstances and country information on a cumulative basis, the Tribunal finds their fear of persecution is not well-founded as required by s.5J of the Act and therefore they are not refugees within the meaning of s.5H.
Considering the applicants’ individual circumstances and country information on a cumulative basis, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Ukraine there is a real risk that they will suffer significant harm.
CONCLUSIONS
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Saxon Rice
Member

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.
…

[2017] AATA 1671

5 September 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Natural Justice