1621420 (Refugee) - [2017] AATA 1671

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1621420 (Refugee)

Details

AGLC: 1621420 (Refugee) [2017] AATA 1671
Case: [2017] AATA 1671
Decision Date: 5 September 2017

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the protection visa applications of a Ukrainian national and her child. The applicant sought protection in Australia, claiming she feared persecution and significant harm if returned to Ukraine due to the ongoing conflict, general violence, and poor economic conditions.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under section 36(2)(a) or 36(2)(aa) of the *Migration Act 1958* (Cth). This required determining if she 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 removal from Australia. The Tribunal also considered whether effective protection measures were available to the applicant in Ukraine.

The Tribunal reasoned that while the applicant presented evidence of general violence and instability in Ukraine, including in her home city of Kharkiv, she had not established a well-founded fear of persecution for a Convention reason. Specifically, her claims regarding imputed political opinion as pro-democracy were not sufficiently substantiated, and her assertion of being part of a "Russian-speaking Ukrainian minority" as a particular social group did not meet the criteria under the Act. Furthermore, the Tribunal found that the general risks faced by the population in Ukraine, including economic hardship and crime, did not amount to significant harm to the applicant personally, nor were there specific grounds to believe she would be targeted. The Tribunal also considered the possibility of internal relocation within Ukraine and the availability of state protection, concluding that these factors mitigated the risk of significant harm.

Ultimately, the Tribunal affirmed the decision not to grant the applicants protection visas, finding that they did not satisfy the criteria under section 36(2)(a) or (aa) of the *Migration Act 1958*.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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 EVIDENCEEvidence 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

Decision

Reasons for decision

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 RiceMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

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 EVIDENCEEvidence 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.