1705788 (Refugee)

1705788 (Refugee) [2022] AATA 1243 (4 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1705788

COUNTRY OF REFERENCE: Ukraine
MEMBER:Scott Clarey
DATE:4 March 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 4 March 2022 at 3:03pm
CATCHWORDS
REFUGEE – protection visa – Ukraine – nationality – race – Ukrainian – political opinion – support for the Ukrainian government in Donetsk – forced acceptance of Donetsk National Republic – harm from pro-Russian separatists – military conflict – fear of killing – employment – internal relocation – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Randhawa v MILGEA (1994) 52 FCR 437
SZATV v MIAC (2007) 233 CLR 18
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 dependants.
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 Home Affairs on 3 March 2017 to refuse to grant the applicant ([named]), a citizen of the Ukraine, a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). On 23 March 2017, [the applicant] applied to the Tribunal for review of this decision. She provided the Tribunal with a copy of the delegate’s decision record.
The delegate refused to grant the visa on the basis that they were not satisfied the applicant was owed protection in Australia. I note that, in its findings under the complementary protection criteria, the delegate stated that the applicant’s home area of Donetsk ‘remains volatile and movement through the area is difficult and dangerous. Accordingly, I accept the applicant’s risk of harm on return to Donetsk is more than remote’. The delegate decided that it would be reasonable for the applicant to relocate to another part of Ukraine where she could safely live. I note that the delegate’s decision long predated the current conflict in Ukraine, and that there is significant amounts of new information before the Tribunal.
[The applicant] appeared before the Tribunal via teleconference on 15 February 2022 to give evidence and present arguments. The applicant’s] representative attended the hearing via telephone link. The Tribunal also heard evidence from [name], the daughter of [the applicant]. The Tribunal was assisted by an interpreter in the Russian and English languages.
At the hearing, [the applicant] stated that she is [an age]-year-old Ukrainian woman born in [City 1], Lugansk Region in the Ukraine on [date]. [The applicant]’s stated that her daughter, son-in-law and [grandchildren] live in Australia in Australia, while her husband and mother are residing in Ukraine. Prior to her arrival in Australia, [the applicant] stated she worked as [an occupation 1] in [industry 1] and also as [an occupation 2] at [an agency 1]. [The applicant] stated that she was not religious. She stated that she is of Ukrainian ethnicity and speaks both Ukrainian and Russian languages. I accept all of these biographical details to be true.
[The applicant] first arrived in Australia [in] December 2013 on a [visitor visa] which expired [in] March 2014. She subsequently departed Australia [in] February 2014. [The applicant] arrived again [in] July 2014 on a visitor visa, departing [in] October 2014. [The applicant] last arrived in Australia [later in] October 2014 on a visitor visa which expired [in] January 2015. On 15 January 2015, she lodged the protection visa application that is the subject of this review and was granted an associated bridging visa.
On the basis of the copy of [the applicant’s] Ukrainian passport provided to the Department, I accept that she is a citizen of Ukraine and that her identity is as she claims it to be. I accept that Ukraine is [the applicant’s] country of nationality for the purposes of the refugee assessment and the receiving country for the purposes of the complementary protection assessment.
The issues in this review are whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J(1) of the Act if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Ukraine, there is a real risk she will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Claims and evidence
Evidence before the Department
[The applicant] set out her claims for protection in her application form as follows:
Q89:     I am seeking protection in Australia so that I do not have to return to
A:       Ukraine
Q90:     Why did you leave that country(s)? Provide specific details
A:I LEFT DONETSK, UKRAINE, IN JULY 2014 BECAUSE MY LIFE WAS IN DANGER DUE TO UPRISING WAR CONFLICT IN MY HOME CITY BETWEEN UKRAINIAN ARMY AND PRO-RUSSIA SEPARATISTS. I SUPPORT UKRAINE INTEGRITY, BUT, UNFORTUNATELY, MOST OF PEOPLE IN DONETSK SYMPATHIZE WITH THE REBELS, THOSE WHO SUPPORT UKRANIAN ARMY LIVE IN FEAR RECEIVING LIFE THREATS ALMOST EVERY DAY. ALSO, CIVILIANS DIE EVERY DAY FROM BOMBS AND BULLETS.
Q91: What do you think will happen to you if you return to that country(s)?
A:I MAY BE KILLED OR HARDLY INJURED UNDER ARTILLERY FIRE OR GUN SHOTS SINCE BOTH SIDES DON’T CARE MUCH ABOUT CIVILIANS AND NUMBER OF DEATHS RISE EVERY DAY. I CAN ALSO BE HARMED OR KILLED BY PRO-RUSSIA SEPARATISTS BECAUSE I SUPPORT UKRAINIAN ARMY AND UKRAINIAN INTEGRITY. THOSE PEOPLE LIKE ME ARE CONSIDERED AS ENEMIES AND BETRAYERS.
Q92: Did you experience harm in that country(s)
A:[The Agency 1] I WAS WORKING IN WAS OCCUPIED BY PRO-RUSSIAN SEPARATISTS AND SINCE I SUPPORT UKRAINIAN GOVERNMENT I WAS FIRED. ALSO, I HAVE BEEN TOLD TO PUT A NEW STAMP OF DONETSK NATIONAL REPUBLIC IN MY PASSPORT OR LEAVE A CITY. SINCE I DON’T RECOGNISE DNR I HAVE BEEN THREATENED MANY TIMES.
Q93:Did you seek help within the country(s) after the harm?
A:ALL FORMER GOVERNMENT DEPARTMENTS IN DONETSK LIKE POLICE, NATIONAL SECURITY AGENCY, DEPARTMENT OF JUSTICE ARE OCCUPIED BY PRO-RUSSIA SEPARATISTS. THERE ARE NOWHERE IN MY CITY WHERE I CAN ASK FOR HELP.
Q94:     Did you move, or try to move, to another part of that country(s) to seek safety?
A:I DON’T HAVE ANY RELATIVES OR FRIENDS IN OTHER PARTS OF UKRAINE EXCEPT MY MOTHER WHO LIVES IN LUGANSK REGION WHERE SITUATION IS THE SAME. AND, SINCE, I HAVE DONETSK ADDRESS IN MY PASSPORT AND I SPEAK RUSSIAN MOST OF UKRAINIANS IN OTHER REGIONS CONSIDE PEOPLE LIKE ME AS PRO-RUSSIAN SEPARATISTS.
Q95:Do you think you will be harmed or mistreated if you return to that country(s)?
A:IF I RETURN TO UKRAINE I WILL BE HARMED BY PRO-RUSSIA SEPARATISTS WHO ALREADY THREATENED MY LIFE AND FORCED ME TO LEAVE THE CITY IF I WON’T SUPPORT THEM. THERE IS ALSO A BIG RISK OF BEING INJURED OR EVEN KILLED BY ARTILLERY ATTACK WHICH KILLS INNOCENT PEOPLE EVERYDAY.
Q96: Do you think the authorities of that country(s) can and will protect you if you go back?
A:ALL GOVERNMENT AUTHORITIES IN MY CITY ARE OCCUPIED BY PRO-RUSSIA REBELS AND I CANNOT GET ANY HELP FROM THEM BECAUSE THEY CONSIDER PEOPLE WHO SUPPORT UKRAINE AS BETRAYERS. UKRAINIAN AUTHORITIES HAVE NO CONTROL IN MY CITY AND CANNOT HELP ME.
Q97:     Do you think you would be able to relocate within that country(s)?
A:BECAUSE HISTORICALLY I SPEAK RUSSIAN AND HAS DONETSK ADDRESS IN MY PASSPORT PEOPLE FROM OTHER PARTS OF UKRAINE CONSIDER ME AS PRO-RUSSIAN SEPARATISTS. IT IS DANGEROUS FOR ME TO MOVE TO ANOTHER CITY OF UKRAINE.
I note that [the applicant’s] representative made multiple submissions to the Tribunal on her client’s behalf, including a legal submission dated 8 Feburary 2022 and a post hearing submission dated 18 February 2022. I note also the submissions included various topical news and other reports about the rapidly deteriorating situation in Ukraine in general and the Donetsk region in particular, although these news items have now largely been superseded by fast moving recent events. I note that these submissions contain significant new information that was not before the Department at the time of its decision, including of course information related to the current and ongoing conflict in Ukraine.
Evidence from the Tribunal hearing on 15 February 2022
At the hearing, [the applicant] stated that she was born in [year] in [City 1], Lugansk (alternate spelling: Luhansk), Ukraine. She grew up and finished her schooling there before moving to Donetsk to pursue university studies in [subject]. She married in 1980 and had [children], born in [specified years]. After graduating in [year], [the applicant] began working at [an industry 1] company in Donetsk, before moving to a research institute that studied [industry 1]. After her [child] was born in [year], [the applicant] took extended maternity leave. She eventually began working at a large [agency 1] in Donetsk, where she performed [specified duties].
[The applicant] told the Tribunal that after a visit to Australia in 2014, when she came to visit her daughter who lives here, she returned home to Donetsk and noticed a distinct change in the political climate of the city. She said that there was a noticeable increase in military activity from pro-Russian separatist militia, who she described as ‘bearded men’ of different nationalities who were obviously not from the area. She said they were heavily armed and behaved poorly, as if laws did not apply to them. She said the changed situation in Donetsk had divided local opinion; some people welcomed the arrival of these Russian-backed forces, believing that they would install Russian-style law and order in the city, but she said many other people, including herself, did not think their arrival was a good thing. She said over time the conduct of these unruly militia deteriorated and their behaviour was unchecked.
[The applicant] stated that the [agency 1] where she worked was fortified with concrete roadblocks by the militia to prevent cars from approaching. She said that designated the facility of high interest to them because its [products] were required for [their military operations which] were incurring. Other rules were instituted around the premises including a ban on taking photographs, and the building began being guarded by the armed militiamen who intimidated passers-by and staff. She said that by April 2014 there was no police or other security forces left in Donetsk as they had all evacuated the area due to the increased presence of, and threat from, the Russian-backed militia. She said that on her way to work she had to pass through several checkpoints where these armed men would ask her questions and check documents. She said the militia then placed their own personnel inside the [agency 1], as it became an important resource to provide [products] to their front-line soldiers. She said Donetsk over time became completely controlled by these Russian-backed militia, and Russian flags began to fly all over the city.
[The applicant] told the Tribunal that on one occasion she had participated in an act of rebellion at her work, where she and several work colleagues had removed a Russian flag that was flying on top of the building. Although she said that she and her colleagues had got away with this act of defiance, a driver who had assisted them was murdered by militiamen for his suspected participation.
When I asked [the applicant] what harm she feared if she were to return to Ukraine in the foreseeable future, she stated that the situation there was very bad and increasingly unstable. She said the economic situation in Donetsk had rapidly deteriorated, and she feared if she returned that she could be extorted or imprisoned by people linked to the militia. When asked why she would be targeted specifically [the applicant] said it would be known that she had returned from Australia and it would be assumed that she had money that they could extort from her. She said that because she was Ukrainian, she would be discriminated against because the region had, over time, been turned into a Russian enclave. She said that the Ukrainian people who remained there had become oppressed and resigned to live under these conditions, which included curfews and an inability to express themselves including through their native language. She said she had no desire to live this way. I note that the Tribunal hearing took place on 15 February, the week prior to Russia’s full-scale military invasion of Ukraine.
RELEVANT LAW
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 themselves 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–5LA, 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.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Findings and reasons
The issues in this review are whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J(1) of the Act and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Ukraine, there is a real risk that she will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Does the applicant face a well-founded fear of persecution in the future?
I accept that [the applicant] was born in Ukraine and has lived most of her life in the Donbas region. I accept that she is ethnically Ukrainian, and is of the Ukrainian nationality. I accept that prior to arriving in Australia in 2014 [the applicant] lived in Donetsk and worked in [an agency 1] in the city. I accept that the operations and product of the [agency 1] were of interest to the Russian-backed militia and that militiamen took over partial control of the facility while [the applicant] worked there.
Are the applicant’s fears of harm well-founded?
Given these findings about [the applicant’s] ethnicity, nationality, past experiences and circumstances in Ukraine, I have considered whether she faces a well-founded fear of persecution from Russian forces (including Russian-backed militia in the Donsbas region) for a refugee reason as set out in s 5J(1)(a) if she returns to Ukraine in the foreseeable future.
In considering this question, I have had regard to various sources of country information concerning the highly fluid and rapidly deteriorating security situation in Ukraine, including information relating to the recent and ongoing Russian military invasion of the country. This includes information from DFAT’s country information report on Ukraine, information from the US Department of State, Amnesty International, the UNOHCR, the UK Home Office, the UNHCR and various other UN agencies. I have had regard to this country information to determine if [the applicant’s] fears of serious harm from particular Russian-backed militia and/or the regular Russian forces, due to her profile as a woman of Ukrainian nationality who may have actual or imputed anti-Russian or pro-Ukrainian political views, are well-founded.
I note that various sources of recent country information suggest that the security situation in Ukraine more broadly is rapidly deteriorating as Russian forces advance on, and begin to take control of, several Ukrainian cities including Kyiv, Kharkiv and Mariupol. According to a very recent statement made by Filippo Grandi, United Nations High Commissioner for Refugees, there is a mass exodus of Ukrainians fleeing the violence in Ukraine into neighbouring countries. According to various reports, including a statement made on 28 February 2022 by Martin Griffiths, United Nations Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, there have been heavy (and increasing) civilian casualties in the early stages of the conflict, in addition to the destruction of various buildings and infrastructure. Reports vary, but some suggest that the civilian death toll at the time of this decision has surpassed 1000[1].
[1] ‘More than 2,000 Ukrainian civilians killed during Russian invasion, as shelling hits residential areas across the country’, 3 March 2022, ABC News Australia. Accessed at:
I note that the human rights situation facing Ukrainian nationals in the Donbas region have long been fraught. For example, a 2015 report by the Committee on Legal Affairs and Human Rights noted that the ‘OHCHR’s Human Rights Monitoring Mission in Ukraine received new reports on killings, torture and ill-treatment as well as unlawful arrests, forced labour, looting, ransom demands and extortion of funds on the territories controlled by the armed groups. The persecution and intimidation of persons suspected of supporting the central authorities remained widespread’. A report by Carnegie Europe stated that ‘parts of the Ukrainian government are not making use of this resource and treat residents of the non-government-controlled territories effectively as second-class citizens. In this political context, many Ukrainian politicians accuse Russian-speaking eastern Ukrainians of being pro-Russian, disloyal, or even traitors’.[2] A 2014 report from the office of the United Nations High Commissioner for Human Rights on the human rights situation in Ukraine stated that:
IDPs from the Donetsk and Luhansk regions report leaving the region with few personal belongings, sometimes without time for preparation, in order to disguise the purpose of their departure from the region, so they have few resources to establish themselves. IDPs who leave the eastern regions generally maintain a low profile, since they report fearing reprisals against family members who have remained at home.
[2] Thomas De Waal, ‘Eastern Ukraine: Different Dynamics’, Carnegie Europe, 3 December 2018

Various sources of country information report on the current crisis in Ukraine that was triggered by the Russian military invasion of Ukrainian territory that began on 24 February 2022. In his statement to the UN on 1 March 2022[3], Filippo Grandi, United Nations High Commissioner for Refugees, described the rapidly evolving situation as follows:
…But we know that we are not even scratching the surface to meet the needs of Ukrainians, including an unknown but surely very substantial number who have been forced to flee their homes over the past days. The situation is moving so quickly, and the levels of risk are so high by now, that it is impossible for humanitarians to distribute systematically the aid, the help that Ukrainians desperately need.
…
As we speak, there are 520,000 refugees from Ukraine in neighboring countries. This figure has been rising exponentially, hour after hour, literally, since Thursday. I have worked in refugee crises for almost 40 years and I have rarely seen such an incredibly fast-rising exodus of people – the largest, surely, within Europe, since the Balkan wars. Over 280,000 have fled to Poland. Another 94,000 to Hungary, nearly 40,000 are currently in Moldova; 34,000 in Romania, 30,000 in Slovakia; tens of thousands in other European countries. We are also aware that a sizeable number have gone to the Russian Federation.
…
I regret to say that unless there is…an immediate halt to conflict, Ukrainians will simply continue to flee. We are currently planning – repeat: planning – for up to four million refugees in the coming days and weeks.
…
I speak to you as a sixth night of anguish falls over Europe, struck once again by war, and as millions of innocent Ukrainian civilians huddle in bunkers, scramble to board overcrowded trains, and think with trepidation about the future of their children.
Let me say – as an old humanitarian worker myself – that the responsibility that you have – to ensure that eventually peace and security for all prevails over power struggles and narrow national interests – has never been as urgent, and as indispensable a task, as it is tonight.
[3] Filippo Grandi, United Nations High Commissioner for Refugees, Statement on Ukraine to the United Nations Security Council, 1 March 2022. Accessed at:
In his statement to the UN on 28 February 2022[4], Martin Griffiths, the United Nations Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, made the following comments on the situation in Ukraine:
[4] Martin Griffiths, United Nations Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, Statement to the Security Council on Ukraine, 28 February 2022. Accessed at:
As we all feared, civilians are already paying the price. The scale of civilian casualties and damage to civilian infrastructure, even in these very early days, is alarming.
Humanitarian needs are growing at an alarming pace in the hardest-hit areas.
Civilian children, women and men have been injured and killed. Homes have been damaged and sometimes destroyed.
As of yesterday, the Office of the UN High Commissioner for Human Rights reported at least 406 civilian casualties, including at least 102 dead in these few days. The real figure could be considerably higher, as many reported casualties have yet to be confirmed.
We know, and we will hear, of course, much more from Filippo, that at least 160,000 people have been internally displaced across Ukraine, fleeing for safety. We know that figure is likely much higher – potentially a significant proportion of the entire population. And, of course, as Filippo will tell you, we believe more than half a million refugees have been forced to choose to flee their country in search of safety.
So, families are separated.
The elderly and people with disabilities find themselves trapped and unable to flee, not even able to get that small comfort.
The picture is grim – and could get worse still.
Aerial attacks and fighting in urban areas are damaging critical civilian facilities and disrupting essential services such as health, electricity, water and sanitation, which effectively leaves civilians without the basics for day-to-day life.
Bridges and roads have been destroyed, cutting off people’s access to critical supplies and services.
The use of explosive weapons in urban areas carries a high risk of indiscriminate impact. This is of particular concern in places like Kyiv and Kharkiv.
Civilians will undeservedly suffer the most from these attacks on densely populated urban centres, it follows.
All parties must respect international humanitarian law; take constant care to spare all civilians and civilian objects from harm throughout their military operations.
And parties should also, of course, avoid the use of wide-area explosive weapons in populated areas.
And the longer this goes on, the greater the cost will be for civilians.
Children will miss school and face a greater risk of physical harm, displacement and unimaginably severe emotional distress.
Women, so often disproportionately affected by conflict, as so often discussed in this chamber, will be at even greater risk of gender-based violence. Women and children may be exposed to other forms of exploitation. The economy of Ukraine could implode, which will further exacerbate humanitarian needs and create a ripple effect that travels far beyond Ukraine's borders.
Already the upheavals in recent days are deepening a pre-existing humanitarian crisis.
Eight gruelling years of the conflict in eastern Ukraine had already left 3 million people in need of humanitarian assistance on both sides of the contact line in the Donbas region.
And it goes without saying that humanitarian needs are now much greater, including the large-scale displacement, to which I have already referred across and beyond the whole country and not only in one region thereof.
…
The lives of millions of civilians are simply at stake. We know from other recent conflicts how brutal, deadly and protracted urban warfare can be.
We know how countries’ economies can be devasted. Infrastructure investment and development gains set back an entire generation. And we know enough to know that we do not yet know what will be the consequences of the events that we observe today.
These things should never happen in any country anywhere.
Every effort, of course, must be made to de-escalate the conflict.
The hundreds of thousands of Ukrainians who have taken the decision to leave their homes to seek safety elsewhere in their country or beyond, and those, even more of them, who remain at peril for the loss of basic services – of pensions, of support, of the services their children need, of the safety of the day that may come and may not.
In the context of this major military conflict within Ukraine that has been characterised by the destruction of civilian, government and military infrastructure and resulted in large and growing numbers of civilian casualties, and a mass exodus of Ukrainian citizens from Ukraine into neighbouring countries, I consider that it is not far-fetched that [the applicant] may be at risk of harm from Russian-backed militia and/or regular Russian military forces who are now in Ukraine. I note that country information before me suggests that the fact that [the applicant] is Ukrainian, and may be considered to hold anti-Russian or pro-Ukrainian political opinions (either real or imputed) may make her a specific target of Russian-backed militia in the Donbas region where she lived previously, or of regular Russian forces who are part of the recent Military incursion by Russia into Ukraine. I note also historic reports that suggest ethnic Ukrainians have been the targets of extortion, ransom demands and unlawful arrests in the Donbas region previously. More broadly, country information indicates that the current security situation in Ukraine is highly unstable due to the ongoing Russian military incursion and campaign there, and that it is likely to worsen in coming days and weeks.
In this context, and given I accept that [the applicant] is ethnically Ukrainian and from the Donbas region of Ukraine, I accept that should she return to her home in Donetsk, now or in the foreseeable future, there is a real chance she will face serious harm from Russian-backed militia and/or regular Russian military forces, as required by s 5J(4)(b) of the Act, in that it involves threat to her life or liberty or significant physical harassment or ill-treatment. I consider that [the applicant’s] Ukrainian ethnicity/nationality, and/or her anti-Russian or pro-Ukrainian political opinion (actual or imputed) is the essential and significant reason for the persecution she fears, as required by s 5J(4)(a), and that the persecution that she fears involves systematic and discriminatory conduct, as required by s 5J(4)(c), in that it is deliberate or intentional and involves selective harassment for reasons of her ethnicity, nationality and/or political opinion (actual or imputed).
I am satisfied, based on these findings, that [the applicant] faces a well-founded fear of persecution based on her ethnicity, nationality and/or her political opinion (actual or imputed) as per s 5K of the Act.
Relocation
In SZATV v MIAC (2007) 233 CLR 18 the High Court endorsed the proposition that a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable to expect him or her to do so. The Court further held at [24] that what is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country. As Kirby J stated at [97], the supposed possibility of relocation will not detract from a ‘well-founded fear of persecution’ where any such relocation would, in all the circumstances, be unreasonable.
I am satisfied that [the applicant], as a citizen of Ukraine, has the right to relocate within Ukraine. I note that the range of factors which may be relevant in any particular case to the question of whether relocation is reasonably available will be largely determined by the case sought to be made out by an applicant.[5]
[5] Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 443; per Whitlam J at 453.
I have considered if [the applicant] faces a real chance of persecution in all areas of Ukraine as required by s 5J(1)(c) of the Act. As noted, [the applicant] lived in Donetsk prior to coming to Australia in 2014. I have therefore considered whether the real chance of serious harm she faces relates to all areas of Ukraine.
I note that I have found that [the applicant] would face a real chance of serious harm from Russian-backed militia in Donetsk where they continue to exert control and influence and also from regular Russian military forces who are currently waging a widespread military campaign across Ukraine. I note the country information concerning the current crisis that has been triggered by the recent Russian military incursion into Ukraine, which includes descriptions of millions of internally displaced persons and a mass exodus of Ukrainian citizens fleeing the conflict into neighbouring countries. While in ordinary circumstances the relocation to another part of Ukraine outside of the Donbas region might be a reasonable option, I do not consider it to be reasonable or practical in the context of the current military conflict that has engulfed the country.
For the reasons given above, and given the current and ongoing military conflict within Ukraine, I am satisfied the real chance of persecution in [the applicant’s] case relates to all areas of Ukraine as required by s 5J(1)(c). Consequently, I am satisfied that [the applicant] faces a well-founded fear of persecution as required under s 5J of the Act.
The availability of effective protection measures
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2) of the Act. I have considered if effective protection measures are available to [the applicant] in Ukraine as required by s 5LA.
Based on available country information before the Tribunal, I am not satisfied that the State, party or any organisation is willing and able to offer protection in the context of the current widespread military conflict within Ukraine, in addition to concerns about the lack of Ukrainian government authority within the Donbas region, and the prevalence of human rights abuses committed by Russian-backed militia groups and the lack of control over militias by the Ukrainian authorities. I am not satisfied that effective protection measures provided by the State or any party or organisation, as per s 5LA, are available to [the applicant] in Donetsk.
Conclusion
Considering [the applicant’s] particular circumstances cumulatively, and in the context of the relevant country information, I find that there is a real chance that she will suffer persecution involving serious harm, from pro-Russian separatist militia and/or regular Russian military forces, if she returns to her home in Donetsk, Ukraine. I am satisfied that the real chance of serious harm [the applicant] will face if she returns to her home area in Donetsk will be a result of systematic and discriminatory conduct in that it will be done to her selectively and intentionally. I find that the essential and significant reason for the serious harm [the applicant] faces relates to her ethnicity, nationality and/or anti-Russian or pro-Ukrainian political opinion (actual or imputed). I am not satisfied that effective protection measures are available to [the applicant]. I am satisfied the real chance of persecution in [the applicant’s] case relates to all areas of Ukraine.
For the reasons given above, I am satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Scott Clarey
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2022] AATA 1243

4 March 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies

Natural Justice