1805548 (Refugee)

1805548 (Refugee) [2022] AATA 504 (13 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1805548
COUNTRY OF REFERENCE:                   Ukraine
MEMBER:Lilly Mojsin
DATE:13 January 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 January 2022 at 11.00 am
CATCHWORDS
REFUGEE – protection visa – Ukraine – Federal Circuit Court remittal – race and imputed political opinion – Russian-speaking ethnic Russian – assaulted by Right Sector members – brother-in-law an active separatist militia member – threats to applicant and wife by Ukrainian nationalists – particular social group – homosexual male – NSW relationship certificate – liability for military service as a reservist – credibility – no evidence that brother-in-law still alive and active – returned to home country after working abroad – claim on grounds of homosexuality not made in application or at previous tribunal hearing – no reference to applicant on partner’s social media – previous claim on grounds of religion not pursued – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
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 and Border Protection on 3 August 2015 to refuse to grant the applicant a protection visa [PV] under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Ukraine, applied for the visa on 7 January 2015. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant would suffer serious or significant harm on his return to the Ukraine in the reasonably foreseeable future.
The applicant appealed that decision refusing the applicant a Protection Visa [PV] to this Tribunal, attaching a copy of Department decision to his application for review.
A previously constituted Tribunal[1] had affirmed the delegate's decision on 30 November 2017, but that Tribunal decision was subsequently remitted by consent of the Federal Circuit Court order dated 23 February 2018 as the Tribunal failed to consider failed to consider the applicant's claim to fear harm on account of his Russian Orthodox religion. The matter is before the Tribunal, differently constituted, pursuant to an order of the Court.
[1] RRT 1510800
The applicant appeared before the Tribunal on 4 November 2021 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by Teams video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant who had access to Teams video. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The applicant consented to the hearing being held by Teams video.
I am satisfied the applicant was given a fair opportunity to give evidence and present arguments. The applicant confirmed that he could hear and see and that he understood the interpreter. I was able to interact with the applicant. All parties were able to maintain appropriate communication throughout the proceedings. The applicant was also provided with an opportunity to provide further written submissions post-hearing. I am satisfied that the hearing provided a real opportunity to be heard.
CRITERIA FOR A PROTECTION VISA
See Annexure A
CONSIDERATION OF CLAIMS AND EVIDENCE
In his PV application and evidence given to the Department and the former Tribunal the applicant claimed as follows:
·He was married with a daughter. He resided from 1998 to December 2014 in Odessa except when he travelled for work.
·He was ethnic Russian, of the Orthodox faith. He could not speak Ukrainian fluently
·An ultra-nationalist group called Right Sector 1 provoked unrest in Odessa in the aftermath of the "Maidan" revolution of February 2014 that removed the pro-Russian President Yanukovich from office.
·The Right Sector harassed ethnic Russian Ukrainian separatists and their relatives in particular, including his wife's brother [Mr A] who relocated to Donbas in Eastern Ukraine in 2014 to join a voluntary separatist militia. Neither he nor his wife know where in particular her brother is or what he is specifically doing.
·His wife was at home on the evening of 12 June 2014 in the family apartment on when two unidentified men broke in and demanded to know the whereabouts of her brother. They hit his [wife] with a truncheon and fractured [a body part], before leaving. They threatened to harm her and her family if she did not co-operate in future.
·He was working on a ship abroad at the time and returned to Ukraine [in] July 2014, joining his wife and daughter in their rural retreat. He did not suggest that any harm came to them there.
·On 10 September 2014 he had been lunching with his family in Odessa city centre when his family suffered another attack. A gang surrounded the family car after lunch, threatening to beat him and damage the car if he did not remove a St George ribbon from the rear-view mirror of his car. Fearing harm, he removed the ribbon.
·He attended a rally in Cathedral Square, Odessa, on 27 September 2014. Police and Right Sector members descended on the crowd and forced the crowd to disperse under threat of a violent crackdown. He left the place out of fear of being harmed.
·On [Date 1] October 2014, he was walking in the park when some uniformed members of the Right Sector, bearing Right Sector insignias, accosted and assaulted him. They called him by name and demanded to know what his brother-in-law was doing. He implied he was unable to tell them anything. He claimed that they demanded he shout the nationalist slogan and that when he refused, they hit him in the stomach and spat on him. They them pushed him to the ground and left.
·He made a report to the police on [Date 2] October 2014. He felt chest pain on [Date 2] October and attended a hospital on [Date 3] October 2014. He was diagnosed with "[Diagnosis 1]" and a "[Diagnosis 2]". He provided the Department with a copy of the hospital's [Date 3] October 2014 report of his injury[2].
·Ten days later the police called him to tell him they had not found any leads regarding the gang that accosted him in the park. He said this was typical of the unsatisfactory attitude of the police to their occupation.
·On the day before the general elections of 25 October 2014 there were several calls to his home telephone asking whether his household was intending to vote for the Public Front led by PM Arseniy Yatsenyuk. His family felt frightened "threatened" by this political exercise. He claimed that "they'', being the callers or the people behind them, "wanted" to remind him of what had happened on [Date 1] October 2014. He chose not to vote at all on the following day.
·On 4 November 2014 he was approached near his home and punched in the stomach by two men who asked him for the whereabouts of [Mr A], his brother-in-law. This event led to his family deciding to leave Ukraine. His wife took a temporary contract job on a ship on 3 December 2014. Their daughter moved in with his mother in Odessa.
·If he returned to Ukraine he feared being followed, interrogated and threatened as before. He would not be safe in any part of Ukraine. The police would not protect him.
·Claimed that the situation of unrest in Ukraine had led to all men from the age of 25 up to 60 being liable to call-up for military service. He was aged within the call-up age pool and did not want to be called up because he wants to have more children, fears death and does not want to kill innocent people at the behest of the current government.
Tribunal hearing 4 November 2021
[2]DIBP file f23
At the commencement of the hearing held on 4 November 2021, the applicant said that there was nothing that he wished to change or amend in his application. The applicant confirmed that all statements in the application he had made were true. The applicant confirmed that he relied on all documents submitted to the Tribunal.
The applicant told the Tribunal that he has a daughter in the Ukraine and 2 step-children. His brother has passed away and his parents are no longer alive. His daughter lives in Odessa, she is in a relationship, she does not have children. He divorced his wife, she lives in Odessa. They made joint divorce application. She took the unit when they divorced. She has not remarried. He has not spoken to her for the last 3 years.
The applicant works now as [an Occupation 1]. He has qualifications as [an Occupation 2] and has worked as [Occupations 3 and 4]. Due to COVID, he ceased working in [specified workplace] in Australia.
He finished [specified] school and he had worked as a seaman. He completed his mandatory military service. He is now a reservist. The applicant confirmed that he had travelled the world working on ships, going to places in [region], Australia, [country] until he stopped travelling. The last ship he worked on was [name] in July 2014. He stopped working on the ship because he became older and wanted to be at home with his daughter but there was not a big opportunity for work. He stopped in July 2014, that was last time at sea.
He had a [temporary] visa to enter Australia, valid until [date].11.15. He arrived in Australia in November 2012 and departed Australia in March 2013. Asked why he left Australia, he said he was just here on holidays. He confirmed he had no fears about returning to Ukraine at that time. I indicated to the applicant that this suggested he did not have any fear of serious harm in Ukraine as he returned there from Australia and from his subsequent trips abroad.
He said he was gay from when he was 18 or 17 years. I put to the applicant that he returned many times to the Ukraine and did not have any fears about doing so. He said that he had relationships on board the ship but had a 2^nd life in Ukraine. He said he was safe on the ship and tried to avoid people. Gay couples are not accepted in Ukraine.
Asked what he fears now about returning to Ukraine he said that he fears what they will think about him and his family. There will be ridicule and humiliation. He will not be protected by the law and there will be high level of cruel and degrading treatment.
Asked about his faith, he said that he goes to Orthodox Church in [Suburb 1], and a Russian church in [Suburb 2]. He lives in [Suburb 3] with his partner, who owns his own property. He met [Mr B], his partner, in April 2017 and they started living together in a relationship in August 2018. They hold themselves out as a couple to everyone. His partner works in [work sector]. [Mr B] is an ethnic Russian from Krasnodar. They have 2 children, they are [Mr B]’s natural children. Their mother lives in [Suburb 4]. [Mr B] and their mother lived together, they separated 6 years ago. [Mr B] has custody of the girls, their mother has access to the children.
I put to the applicant that he is able to go to the church in Ukraine. He said that the main issue is that after 2014 the Ukraine government has taken over the church, and now they do not speak Russian but Ukraine in the church. I put that he is able to go to an Orthodox church in Odessa and he said yes.
The applicant said that he cannot speak Ukrainian well. When it was the Soviet Union the Ukrainian language was not mandatory. I put that he would be able to speak some Ukrainian and he agreed that he could.
I asked the applicant on what basis he had suffered harm for his religion in Ukraine. He agreed that he had not. I put that nothing has happened to his family because of brother-in-law. He said he does not know where he is, he could have died. Since they are divorced, he has not heard from his wife and that could have happened.
I put he has not claimed to fear harm for his brother-in-law’s actions or deeds now. He said his brother-in-law was involved in pro-Russian activities and as a consequence the applicant was harmed. His brother-in-law moved away to Donbass in 2014.
I put to the applicant that merely being of Russian ethnicity, in Odessa, does not give rise to an imputation of being actively involved in pro-Russia political activity, in light of the number of Russians in Odessa and the fact that Odessa is a multiethnic city. He agreed. He said that before the revolution priority for Russian language was removed. He said that everywhere one is required to speak Ukrainian. The television stations are in Ukrainian. I put to the applicant that ethnic Russians are still able to speak their language. He disagreed and said that even in the supermarket when shopping one is required to speak Ukrainian. I put that there is no evidence of mistreatment of ethnic Russians by the Ukrainian state.
I put to the applicant that there was no evidence of discrimination against ethnic Russians on the basis of ethnicity, ethnic Russian are not prevented from getting social welfare, access legal services, jobs etc. He did not agree. I put to the applicant that the President is a Russian speaker. He responded that he is Jewish and a comedian.
I put to the applicant that he is not eligible for call up/conscription, but he is a reservist. I discussed that the age limit of staying in reserve was increased for the second class from 50 to 60 – for privates and sergeants. The applicant agreed.
I put to the applicant that the President issued three decrees on “partial mobilization”, in 2014 on 17 March, 6 May and 22 July respectively. Persons targeted for mobilization included persons with past experience as paratroopers, grenade launchers, in artillery, logistical support, and other personnel (including physicians, electricians, mechanics and drivers). I put that he claimed that he was called up but he was not in that category. He said he was [an Occupation 2] but he had been in [Division 1]. I put there was no evidence that everyone from [Division 1] was mobilised. He responded that the papers were sent to his home, he was in Australia then.
I put that I have found no independent information to suggest that reservists have been mobilised for military duties in the past 3 years, i.e., since December 2018. He said he does not know now.
I explained to the applicant that according to Australian law, enforcement of laws providing for compulsory military service, and for punishment for desertion or avoidance of such service, will not ordinarily provide a basis for a claim of persecution because it lacks the necessary selective quality and will generally amount to no more than a non-discriminatory law of general application. He said that he does not think they will call him up as he is outside the country. He said this happened in 2014 and his life has changed. He has not received a summons and has not been followed up in any way. I put that he had not received any follow up and he had recently renewed his passport. This suggested he was not concerned about the Ukrainian authorities locating him.
I also discussed information that draft evasion and desertion are criminal offences and punishable by imprisonment but in practice, the courts issue fines or suspended sentences in most cases and such penalties are neither disproportionate nor excessive. I put that there is no evidence to suggest that the Ukrainian government views a person’s refusal to participate in military service as an act of political opposition. I put that if persons are punished on return to the Ukraine, it is likely to be simply for the criminal offence of evading or deserting national service or the call-up.
I asked the applicant when he first became gay and what his claims of harm in Ukraine were. He said that he suffered harm during his military service. He was beaten. I put that this occurred when the military was part of the Soviet Union. He agreed.
I asked the applicant why he had not advised the Tribunal or the Department that he claimed to have suffered harm in Ukraine for his homosexuality. He said he was really scared and afraid. I put to him that he also returned each time he had been away despite having a valid [visa] that could be utilised for entry to Australia and this suggests he had no fear of harm. He said he had a contract with his employer and he was not aware he could use his visa to return. I put to the applicant that he had a [visa] from 2011, which was valid until 2015 and he used that visa to enter Australia in 2014. I asked him why he fears harm now when he did not previously. He said now he has a partner and when he was married, he was covered and lived with his wife. He has many homophobic friends. He cannot explain. Now he fears 10 times more for his children.
I put to the applicant that information he had provided to the Tribunal, being a UN Visit to Ukraine stated that during the visit, the Independent Expert received no indication of gross or massive acts of individual violence against lesbian, gay, bisexual, trans and gender diverse persons. Ukrainian legislation does not prescribe discrimination or violence on the basis of sexual orientation and gender identity: it is free from criminalization, contains general anti-discrimination provisions and, in a few instances, explicitly includes protections. He said they make it like that for Europe and it is big trouble and dangerous. He said people they hate you. The Church does not accept LGBTI community. Here he feels freedom. In Ukraine he would have to hide his partner and kids.
I put to the applicant that in 2020, Nash Mir stated that the Ukrainian ombudsperson's office consistently and promptly responded to incidents of incitement to discrimination and hate speech against LGBTI people. The Commissioner welcomed the Equality Marches in Ukrainian cities, did everything possible to protect the rights of LGBTI people, and called on the Ukrainian authorities to "carry on a permanent work for providing equal rights and freedoms for all, regardless of their sexual orientation and gender identity. He said there is so many different opinions. He is not allowed to adopt kids there and will be beaten if they hold hands. He was called faggot in Ukraine. I put he did not tell the previous Tribunal, he said that he did not have a family then.
I explained I must be satisfied that his claim of homosexuality in Australia was otherwise than for the purpose of strengthening his claims to be a refugee and I am required to disregard this conduct in my assessment of his well-founded fear of persecution if I am satisfied it was to strengthen his claims.
He said that he and his partner participated in Mardi Gras last year. He can go to gay shops and bars here in Australia. On the ship he had his boyfriends and nobody judged him. When he was back home in the Ukraine, he kept silent.
I asked if his partner had a [Social Media 1 account]. He said that his partner does not have one. I explained that I had concerns about the credibility of his evidence. He said they entered into a partnership as they wanted to be legal as his partner has a property.
I also put to the applicant that he had not provided any information to suggest that they were living together as partners or were identified by the community at large as partners other than a registration certificate.

After a short adjournment I showed the applicant a [Social Media 1 account][3] of [Mr B]. That page showed a man holding 2 girls on his lap. There were no posts by the applicant or about the applicant. The applicant said that he had forgotten about the [Social Media 1 account], it was inactive.
[3] [social media link deleted]
I informed the applicant that I would put to him information, pursuant to s.424AA of the Act. I advised the applicant that I proposed to put information to him that would, subject to anything else he might say, form reason or part of the reason for affirming the decision under review. I advised the applicant that he did not have to comment or respond immediately and he could seek additional time to do so, including after the hearing.
I put that his partner’s [Social Media 1 account] on the internet showed [Mr B] and his daughters. It did not suggest that the applicant was his partner. I put that he had stated that his partner did not have a [Social Media 1 account] and subsequently said he did not post. I explained the relevance that this information was inconsistent. I advised the applicant that if I relied on the information, I may find that it undermined his credibility and would lead me to conclude that his claims were not genuine, and I would have no other option but to find that he did not meet the definition of a refugee or the complementary protection criterion and I would affirm the decision under review.
He said that he forgotten his partner had a [Social Media 1 account]. He said it was this year and last year. He explained that he is not a social person, it is their relationship and they do not have to post on [Social Media 1] and are not interested in [Social Media 1]. It is their privacy.
I asked how the children would be able to leave Australia as their mother has access. He said that it is fine with her, but they would not be accepted in Ukraine.
He said that to go back to Ukraine is a high risk and their life will not be accepted. The Church does not recognise same sex law and you cannot have an open relationship. They will tell you what to wear. They do not support or help you. During gay pride in Ukraine police stay away. You have to keep silent, especially with kids. They think it is a disease and no one wants to listen to you.
Independent Country Information
A variety of domestic and international human rights groups generally operated without government restriction, investigating and publishing their findings on human rights cases in Ukraine. The crisis in Ukraine began with protests in the capital city of Kiev in November 2013 against Ukrainian President Viktor Yanukovych’s decision to reject a deal for greater economic integration with the European Union. After a violent crackdown by state security forces that drew an even greater number of protesters and escalated the conflict, President Yanukovych fled the country in February 2014.
In March 2014, Russian troops took control of Ukraine’s Crimean region, before formally annexing the peninsula after Crimea’s voted to join the Russian Federation in a disputed local referendum. Russian President Vladimir Putin cited the need to protect the rights of Russian citizens and Russian speakers in Crimea and southeast Ukraine. The crisis heightened ethnic divisions, and two months later pro-Russian separatists in the Donetsk and Luhansk regions of eastern Ukraine held a referendum to declare independence from Ukraine. Violence in eastern Ukraine between Russian-backed separatist forces and the Ukrainian military has by conservative estimates killed more than 10,300 people and injured nearly 24,000 since April 2014. Although Moscow has denied its involvement, Ukraine and NATO have reported the buildup of Russian troops and military equipment near Donetsk and Russian cross-border shelling. In July 2014, the situation in Ukraine escalated into an international crisis and put the United States and the European Union (EU) at odds with Russia when a Malaysian Airlines flight was shot down over Ukrainian airspace, killing all 298 onboard.
Full-scale combat started in eastern Ukraine on May 26, 2014, with the battle for Donetsk airport[4]. The Ukrainian army faced off against separatists from two self-declared “people’s republics” in Donetsk and Luhansk, and by extension the Russian military, which offered its unofficial support. Reports[5] indicate that an entrenched standoff took place from 12 April 2014 until 5 July 2014. The Donetsk People’s Republic briefly held this city of 164,000 for less than three months in 2014, from April 12 to July 5. In the years since the Ukrainian military recaptured the city from Russian-backed fighters that still occupy nine percent of eastern Ukraine, bomb craters and homes have been repaired. The “active stage” of fighting continued until February 2015, when the Minsk II agreement was signed. Almost none of the figures who led the initial protests against the Ukrainian government or the subsequent fighting against Ukrainian troops remain in today’s separatist leadership.
[4]
[5] >
Since February 2015[6], France, Germany, Russia, and Ukraine have attempted to broker a cessation in violence through the Minsk Accords. The agreement includes provisions for a cease-fire, withdrawal of heavy weaponry, and full Ukrainian government control throughout the conflict zone. However, efforts to reach a diplomatic settlement and satisfactory resolution have been unsuccessful. In April 2016, NATO announced that the alliance would deploy four battalions to Eastern Europe, rotating troops through Estonia, Latvia, Lithuania, and Poland to deter possible future Russian aggression elsewhere in Europe, particularly in the Baltics. These battalions were joined by two U.S. Army tank brigades, deployed to Poland in September 2017 to further bolster the alliance’s deterrence presence.
[6] >
The conflict in eastern Ukraine has transitioned to a stalemate after it first erupted in early 2014, but shelling and skirmishes still occur regularly, including an escalation in violence in the spring of 2018[7]. Russia[8], Ukraine and Europe’s top security body have announced an “indefinite” ceasefire in eastern Ukraine that analysts hail as a substantial step toward ending the five-year conflict. Sporadic fighting went on despite a ceasefire agreement signed in 2015. The OSCE[9] Daily Monitoring Mission to Ukraine continues to record ceasefire violations in both Donetsk and Luhansk regions to this day.
[7]
[8]
OHCRH Ukraine reporting on the human rights situation stated that the total civilian casualties recorded in 2019 (27 killed and 140 injured) were 40.6 per cent lower than in 2018 (55 killed and 226 injured), and were the lowest annual civilian casualty figures for the entire conflict period.
REASONS AND FINDINGS
On the basis of copies of identity documents in the Department file, including a Ukrainian passport, I accept that the applicant is a national of the Ukraine and is not a national or citizen of any other country or has a right to enter and reside in any country other than Ukraine. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Ukraine is the applicant's “receiving country” for the purposes of s.36(2)(aa).
I note that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might be possibly true (see MIMA v Rajalingam (1999) 93 FCR 220). However, the Tribunal is not required to accept uncritically any, or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that that the particular assertion by an applicant has not been made out (see, Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
In conducting this review, I have considered the material provided to the Tribunal and the oral evidence given at the previous hearing held by the Tribunal, differently constituted. The applicant has provided country information. I have considered the country information provided by the applicant to the Department and to the Tribunal.
The applicant was born in and lived in the port city of Odessa, in southern Ukraine. The applicant identifies himself as an ethnic Russian of the Russian Orthodox faith. His parents and brother are deceased. He is divorced from his wife and he has an adult daughter who lives in Odessa.
In his claims to the Department, and to the previous Tribunal, the applicant claimed that he and his former wife suffered harm on four occasions, on 12 June, 10 September, [Date 1] October and 4 November 2014. The applicant claimed that his ex-brother-in-law was pro-Russian. He provided a photocopy of an ID card pertaining to a "Donetsk People's Republic" Republican Guard Lieut. [Name], who he claims is his brother-in-law. He also submitted translated documents dated March 2017 that indicate that authorities knew that his ex-brother-in-law is operating with an illegal militia located in the Donetsk region of the contested territory of eastern Ukraine. Three of the four occasions when he claimed he was harmed, the assailants asked after his brother-in-law by name, the exception being on 10 September 2014 when he was harassed as he had a St George ribbon attached to one of his rear-vision mirrors. He had also received a threatening telephone call about how he intended to vote in the then upcoming election. The previous Tribunal did not accept his claims. The applicant did not pursue his claims before this Tribunal when asked what had happened to him in the Ukraine and what he feared on his return to Ukraine. He suggested that his former brother-in-law may no longer be alive. There is no evidence before me, nor has the applicant claimed, that his ex-wife or daughter suffered any harm in Odessa or that they were threatened because they were perceived to be associated with the ex-brother-in-law.
Even were I to give the applicant the benefit of the doubt and accept that he had been attacked and harmed in Odessa prior to his departure in 2014, the applicant does not now claim to fear harm on his return to Ukraine for his perceived political opinion. The applicant has not claimed to have a political profile, other than to having attended a protest in September 2014 when nothing happened to him and receiving some telephone calls. As the applicant did not have a political profile in Ukraine and as the applicant did not claim to fear harm for his perceived political opinion because of his brother-in-law’s pro-Russian profile or for attending a rally, I find remote the chance or the risk that the applicant will face serious or significant harm for his political opinion or perceived political opinion, within a reasonably foreseeable future, on return to Ukraine.
The applicant claimed before the Department and the former Tribunal that he was mobilised in 2015, in absentia, and feared harm for being mobilised as a reservist and because he had not responded to the mobilisation and would be punished. Draft evasion, desertion and avoidance of mobilisation are criminal offences and punishable by law. UK Home Office Report on Ukraine March 2020[10] states:
‘In 2016, several […] criminal investigations were also launched concerning supposed draft evaders. Among them, a man, declared liable and fit for the military service, was sentenced to a deprivation of liberty for declining military draft under mobilization in a written statement in his application to the military commissar of Gorodishchenskyi district military commissariat (DMC). However, according to the Ukrainian Law Firm Ilyashev & Partners, “in each concrete case the court defines the degree of the person’s guilt under the actual circumstances and, if the person cooperates with the investigation authorities, the court applies more subtle type of punishment without isolation of a person from society”.’
Avoidance of mobilisation shall be punishable by ‘imprisonment for a term of two to five years’. The Ukrainian Ministry of Defense have no information about persons previously convicted under Article 336 of the Criminal Code of Ukraine (Avoidance of Mobilisation) being mobilised during any of the mobilisation campaigns of 2014-16.
[10] >
Evasion of mobilisation is punishable by imprisonment of two to five years. However, in practice, the courts issue fines or suspended sentences in most cases. I note that the evidence before me indicates that currently there are hundreds of cases opened in Ukraine for draft evasion. In practice (according to the Registry of Court Decisions), 77 guilty verdicts were issued by courts as of February 2016. The majority of these were immediately released on probation. The independent evidence indicates that draft evaders are usually given fines or suspended sentences, in most cases. I note that in 2016, 26 800 men were subject to prosecution for avoiding military service but of those who appeared before the courts in February 2016, the majority were immediately released on probation. I accept the independent evidence[11] that such penalties are neither disproportionate nor excessive.
[11] UK Home Office Country Policy and Information Note Ukraine Conscription, November 2016
Over the two years from 2014, the new government of the Ukraine declared six waves of mobilization[12], a special kind of military draft separate from regular conscription that is used to respond to an emergency. The draft was needed to boost military units sent to fight the rebellious eastern regions of Donetsk and Lugansk. Ukraine nearly doubled the strength of its army from the initial 130,000 to 232,000 in 2014 and wanted to have 250,000 standing troops. It is reported that 210,000 people were drafted overall, some of them already demobilized. ‘The initial surge of volunteers dwindled while the number of people who would rather risk prosecution for dodging the draft than put their necks on the line increased. ‘During the latest sixth wave in July-August 2015, the Ukrainian military managed to get just over 60 percent of the intended draftees, the Defense Ministry reported. There were 8.5% of volunteers amongst them. ‘The military complained that its officers often had problems with getting the summons to potential draftees, who moved to another address or simply refused to open their doors. Of those who did get their summons, over half chose to ignore it and run. The ministry said 26,800 men are now subject to prosecution for avoiding military service.
[12]
After the applicant’s departure to Australia in December 2014, there was a sixth wave in July-August 2015 and in September 2015 a seventh wave of mobilisation began. Reporting in October 2016, Ukraine Interfax News Agency stated that 7,908 people will be sent to the Armed Forces of Ukraine, 5,000 people to the National Guard and 1,000 people to the State special transport service out of the total number of conscripts’....As the General Staff of the Armed Forces of Ukraine reported later, on the official Facebook page, the conscription will finish on November 30, 2016. ‘At the same time, army discharge of those who have served fixed term of time military service has started. A total number of those who must be released in October-December 2016 is 8,315 people.
I have considered whether the applicant would be prosecuted or punished on his return to Ukraine for avoiding mobilisation. I have found no independent evidence to suggest that former reservists who return from abroad are prosecuted for avoiding their mobilisation in 2015 or for any mobilisations. I am of the view were it the situation it would be known to independent sources. Therefore, I am not satisfied that the applicant would be prosecuted on his return to Ukraine for not appearing whilst in absentia.
Reservist, such as the applicant, are subject to mobilisation until 60 years of age. The applicant is now [age] years of age. Ukraine held an initial partial mobilization” in 2014 dated 17 March, 6 May and 22 July respectively. Reservists, targeted for mobilization included persons with past experience as paratroopers, grenade launchers, in artillery, logistical support, and other personnel (including physicians, electricians, mechanics and drivers). Despite claiming to have been mobilised in 2015, and as I pointed out to the applicant, he was not in the category of a person who was so mobilised in 2014, I have no independent evidence before me to suggest that Ukraine has mobilised any reservists since an initial partial mobilization” in 2014 dated 17 March, 6 May and 22 July respectively. The applicant does not claim to have been mobilised at that time. In light of the independent evidence indicating that reservists were mobilised in 2014 not 2015, I am not satisfied that the applicant was mobilised in 2015, as claimed.
According to UK Home Office Country Policy and Information Note, November 2016[13] there is no evidence to suggest that the Ukrainian government views a person’s refusal to participate in military service as an act of political opposition. If persons are punished on return to the Ukraine, it is likely to be simply for the criminal offence of evading or deserting national service.
[13]
Following reforms of the penitentiary system in Ukraine in 2014, conditions in some prisons and correctional facilities have already been improved and Ukraine plans to implement further reforms to bring conditions more in line with European standards. Fewer cases of torture and mistreatment have been recorded by human rights organisations since 2012. In addition, the Supreme Rada of Ukraine transferred the functions of the key monitor of the ‘National Prevention Mechanism’ to the office of the Ukrainian Ombudsman. The EU and the Council of Europe have provided more than €10,000 to Ukraine to assist with these reforms, in particular to bring procedures and practices in prisons in line with European standards and to support the improvement of prison inspection and handling of prison complaints.
With support from the Ukrainian government, and with recommendations from the Council of Europe, the Ministry of Justice of Ukraine along with the State Penitentiary Service have improved the conditions in some prisons and have succeeded in reducing the number of prisoners who serve their sentence within state institutions. Many individuals are now placed under house arrest rather than in pre-trial detention centres. A new mechanism for probation was also introduced in 2015. In addition to this, the Ministry of Justice of Ukraine plans to reduce the number of prisons and detention centres in Ukraine by half and to update and improve aging remand buildings.

When I asked the applicant, at hearing, if he feared harm for reservist duties, he responded that he did not as there is no mobilisation at present. I have no independent evidence before me to suggest that Ukraine is at present mobilising reservists for military duty. I am satisfied the applicant does not fear any harm on his return to Ukraine for reservist duties or for not responding to a mobilisation notice.
There is currently no domestic legislation in Ukraine providing a legal basis for reservists to claim exemption from military service on the basis of conscientious objection. On the information before me, the applicant does not claim to be a conscientious objector. I find remote the chance that the applicant would be mobilised as a reservist in light of the evidence before me that since 2014 the Ukraine authorities have only had one mobilisation for reservists.
After completion of military service, Ukrainians remain as reservists in the army, subject to mobilisation. Reservists are required for duty until 60 years of age. Whilst the law of conscription/reservists is discriminatory in that it only applies to men of a particular age, I am satisfied that it is appropriate and adapted to achieving a legitimate object of protecting the security and safety of Ukraine and its population. In 2014 as the conflict in East Ukraine intensified the Government in Kyiv instituted military mobilization in order to bring additional qualified personnel into the army. Mobilisation targeted different groups and whilst I am satisfied those waves of mobilisation were discriminatory in that different waves targeted different groups in society e.g., paratroopers or physicians, I am satisfied that mobilisation of reservists and those who have not served previously in the military is appropriate and adapted to achieving a legitimate object of protecting the security and safety of Ukraine and its population.
In light of the independent evidence, I find that the laws governing mobilisation and reservist duties in Ukraine are laws of general application that are appropriate and adapted to a legitimate national objective of protecting the security and safety of Ukraine and its population. I have found no independent evidence to suggest that the conditions of military service or reservist duties would be so harsh as to amount to persecution or that LGBTI persons or Russian speaking Orthodox Russians who do not speak Ukrainian fluently suffer discrimination in the imposition of those laws.
I have also considered whether, on the applicant’s return he would be called up for reservist duties and he would seek to avoid that duty and would be punished for evasion of reservist duties. The independent evidence regarding the Ukraine indicates that the war in Donbass is ongoing. I have no independent evidence before me to suggest that Ukraine is mobilising reservists for military service. According to the legislative and regulatory compliance practices medical opinion on fitness for military service may be appealed through the court.
I have found no independent information to suggest that reservists have been mobilised for military duties in the past 3 years, other than some attended training for up to 20 days[14]. I am of the view that were it the situation, it would be known to independent sources.
[14]
I therefore find remote the chance that the applicant will be mobilised as a reservist to complete military service on his return to Ukraine. I also find remote the chance or risk that the applicant will suffer serious or significant harm in the Ukraine, within a reasonably foreseeable future, as a draft evader or deserter on his return to the Ukraine, were he required to complete military service because he is a reservist and refused to do so.
I am not satisfied the applicant will suffer serious or significant harm, within a reasonably foreseeable future, for reservist duties, on his return to Ukraine.
The applicant claims that he is dissatisfied with the lack of Russian as an official language and he joined a rally in 2014. The applicant suffered no harm in Ukraine for these actions and there is no independent evidence before me to suggest that as a resident of Odessa, of the Orthodox faith and a Russian speaking ethnic Russian, who does not speak Ukrainian fluently, the applicant would suffer serious or significant harm for his political opinion or his religion. I am of the view that were it the situation, it would be known to independent sources. Therefore, I find remote the chance the applicant would suffer serious or significant harm for his religion or political opinion in the reasonably foreseeable future.
The applicant claims that he does not speak the Ukrainian language fluently or very well, everyone is required to speak Ukrainian, even in the supermarket, television stations broadcast in Ukrainian and Russian language is banned by the government.
According to an article by Peter Dickinson[15] originally published by Business Ukraine
Language has long been one of the key battlegrounds in the struggle to determine Ukraine’s post-Soviet identity. While most of the population is able to communicate in both Ukrainian and Russian, the issue has consistently served as a political flashpoint ever since Ukraine gained independence in 1991. Ukrainian is the official state language, but the status of Russian has ebbed and flowed over the past quarter century under a series of different administrations.
Many Russian-speaking Ukrainians spoke out against the Kremlin’s military intervention in Ukraine, rejecting Russian claims of any rights violations. Thousands more went even further, taking up arms against Russian hybrid forces in the east of the country. The role of Russian-speaking Ukrainians in the defence of the country has changed perceptions about what it means to be Ukrainian and led to a more inclusive approach to issues of national identity. Nevertheless, the ongoing conflict with Russia has placed the long-term development of the Russian language in Ukraine under question. With many of Ukraine’s largest cities still predominantly Russian-speaking, the future of the language in Ukraine is an issue of huge strategic importance.
Attitudes towards Russian speakers in today’s Ukraine are changing, but the conflict with Russia means that it remains a controversial theme. On the one hand, there is clearly a lot more acceptance since so many Russian-speaking Ukrainians participated in recent historical events in support of Ukraine, including the Revolution of Dignity and the volunteer movement in response to Russia’s hybrid war. On the other hand, many of Ukraine’s Russian speakers live in the conflict zone and some of them do indeed embrace the “Russian World”, together with its messages that Russians and Ukrainians are one people and Ukrainian independence is an aberration. Many welcomed the Russian aggression in Crimea and eastern Ukraine. This generates a lot of distrust. Nevertheless, people are starting to understand that while it is sometimes possible to find a connection between the language a person speaks and their attitudes towards the current conflict, language is not an accurate indicator of political loyalties. Due to the role of Russian-speaking Ukrainians in defending Ukraine against Russian aggression, we are indeed witnessing an historic evolution in our understanding of what it means to be Ukrainian. However, somebody speaking Ukrainian is still a lot more likely to be regarded as a Ukrainian patriot than somebody speaking Russian.
[15]
An article by Kyiv Post [16] states that many people in the east speak Ukrainian as their native language (mainly in rural areas), and many people in the west speak Russian as their native language (mainly in urban areas). Some speak a blend of the two languages, called “surzhyk” combining elements of the vocabulary and grammar of the two languages in a variety of mixes, depending on the locality. Surzhyk is most prevalent in east-central Ukraine, but can be heard in all parts of the country, especially in areas adjacent to big Russian-speaking cities. Some claim that Russian is still very widely used, to the extent that some describe Ukraine as a bilingual country, meaning that most Ukrainians speak and understand at least two languages: Russian and Ukrainian. I accept that Ukrainian is now the official language of Ukraine and I note that Russian is still widely used in Kyiv and other large cities, especially in the east. I do not accept that speaking Ukrainian as opposed to Russian may well reflect a person’s political views. According to France24[17] the President of the Ukraine Volodymyr Zelensky is a Russian speaker and received strong support from the country's Russian-speaking regions and other parts of Ukraine.
[16] >
The Ukrainian language is the official language of Ukraine. According to article 10 of the Constitution of Ukraine, the State has to ensure the comprehensive development and functioning of the Ukrainian language in all spheres of social life throughout the entire territory of Ukraine. Other languages spoken in Ukraine are guaranteed constitutional protection. Russian is recognized as the language of a national minority. In April 2019, the Ukrainian parliament voted a new law, "On provision of the functioning of the Ukrainian language as the State language" . On 16 June 2019, the law entered into force. The law regulates the Ukrainian language "in the media, education, and business. It aims to strengthen the language's role in a country where much of the public still speaks Russia.
According to an article on December 07, 2019 by Radio Free Europe/Radio Liberty
The Council of Europe’s constitutional experts have criticized controversial language legislation adopted in Ukraine earlier this year and previous regulations regarding educational institutions signed into law by the country's previous president, Petro Poroshenko as it sees as an extremely short transition period for the converting of Russian-language schools into Ukrainian-language institutions. The commission also said it considers quotas for minority languages in radio and TV programs to be unbalanced.

The State Language Law, which went into effect on July 16, declares that Ukrainian is "the only official state language" in the country. It adds that "attempts" to introduce other languages as the state language would be considered an effort to "forcibly change the constitutional order."

Some native Russian speakers in Ukraine claim Kyiv is deliberately curtailing the use of the Russian language. The Kremlin has also assailed the language laws. Ukrainian speakers argue that the prominence of Russia is a legacy of the Soviet era that undermines Ukraine's identity and cite efforts to suppress the Ukrainian language during communist times.

Ukrainian is the native language of some 67 percent of Ukraine's almost 45 million population, while Russian is the native language of almost 30 percent. Russian is spoken mostly in urban areas. Almost 3 percent of Ukraine's inhabitants are native speakers of other languages.

"In view of the particular place of the Russian language in Ukraine, as well as the oppression of the Ukrainian language in the past, the Venice Commission fully understands the need to promote the use of Ukrainian as the state language," it said.

“It is, therefore, commendable that the State Language Law provides for positive measures to this end by obliging the state to provide each citizen of Ukraine with an opportunity to master the language through the educational system, to organize free language courses, and to promote access to films and other cultural products in Ukrainian."
The OHCHR[18] stated that on 9 December 2019, the European Commission for Democracy through Law (the Venice Commission) published its opinion on the Law on Ensuring the Functioning of Ukrainian as the State Language. The Venice Commission concluded that, largely due to the absence of special legislation on the protection and use of minority languages, the current legal framework fails to strike a fair balance between the legitimate aim of strengthening and promoting the Ukrainian language and sufficiently safeguarding language-related rights of national minorities, thus confirming concerns previously raised by OHCHR. On 16 January 2020, Parliament adopted the law on general secondary education,105 which affirms that both indigenous and minority languages may be taught as a subject, and be used as the medium of instruction for other subjects throughout secondary education in public schools, but at varying percentages as compared to Ukrainian. It also allows private schools to choose the language of instruction as long as the educational facility ensures its students master Ukrainian. Overall, OHCHR considers that the legislation provides insufficient guarantees for the protection and use of minority languages in the absence of a law on the realisation of the rights of indigenous peoples and national minorities.
[18]
An article published by 112 International dated 16 June 2020[19] ‘Russia caught lying to OSCE about ‘persecution’ of Russian-speakers in Ukraine’, suggests that despite all of Russia’s efforts to push the idea that Russian speakers needed to ‘be defended’ in Crimea and Donbas, a survey carried out by the Kyiv International Institute of Sociology in April 2014 which found that 72% of people in the south-eastern oblasts did not agree that the rights of Russian speakers were violated. According to the International Republican Institute, only 12% of respondents considered there was such discrimination. In 2016, the Rating Group found that even in government-controlled Donbas 82% of respondents did not consider that there was discrimination of Russian speakers, with only 11% saying, on the contrary, that such discrimination existed. I note that the President is a Russian speaking ethnic Ukrainian.
[19] >
I have no independent evidence before me to suggest that the Russian language is banned, rather Russian is not an official state language of Ukraine, as it was in the past. Only Ukrainian language is now the official state language. It is the sovereign of a country to decide it’s official language. Whilst I accept that now in the Ukraine everyone is required to speak Ukrainian, even in the supermarket, television stations broadcast in Ukrainian independent sources such as UK Home Office, Freedom House, US State Department Reports Human Rights, Human Rights Watch, UNHCR etc. do not suggest that the rights of the Russian speaking population and representatives of national minorities are limited or suffer discrimination and stigmatization. I also note that the State Language Law provides for positive measures to provide each citizen with an opportunity to master the language via free language courses. Therefore, I find remote the chance or the risk the applicant will suffer serious or significant harm within a reasonably foreseeable future because he is required to speak Ukrainian in the Ukraine or that Russian is the official language.
According to the UK Home Office Report 2019 Ethnic Minorities in the Ukraine, Ethnic Ukrainians form 77.8% of the population of just under 44 million. Russians form the largest ethnic minority group, at 17.3% of the population. Belarusians form 0.6%, Crimean Tatars 0.5%, and Jews 0.2%. Numbers of Roma are estimated to be between 250,000 and 300,000 (around 0.6% of the population) ‘Ethnic Russians are by far the largest ethnic minority in Ukraine, constituting almost one fifth of the population.’ In May 2018, WorldAtlas.com reported that, ‘Southeast Ukraine has historically been populated by ethnic Russians and Russian-speaking Ukrainians, with close cultural and economic ties to Russia.’ Equal Rights Trust stated that non-Ukrainian nationals may receive discriminatory treatment by law enforcement agencies. The applicant is a Russian-speaking Ukrainian national. This report further states that the majority of Ukraine’s different minority groups are integrated into society although some itinerant Roma in particular are reported to suffer significant discrimination and disadvantage. The applicant is not a Roma. The report also states that in general, most members of minority groups in Ukraine experience very little discrimination by either state or non-state actors, and when discrimination is experienced, it is unlikely to be sufficiently serious by nature or repetition as to meet the high threshold of persecution or serious harm. Despite tensions with Russia in the east and Crimea, relations are generally good between ethnic Ukrainians and ethnic Russians, and CPIT could find no evidence of discrimination against ethnic Russians by the state[20]. The Special Rapporteur on minority issues found that Ukraine’s legislation and policy are generally consistent with the provisions of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities and are generally conducive to the protection of minority rights. In addition, the Constitution provides for freedom of religion and worship.
[20] UK Home Office Report 2019 Ethnic Minorities in the Ukraine
World Report 2020 stated that violence by far-right groups continued but it did not indicate that this violence was directed at ethnic Russians or Russian speaking ethnic Russians. This independent information does not suggest that ethnic Russians who are perceived as Russian are perceived as ethnic minorities and suffer harm or lack of police protection.
Independent assessments note the rise of right wing extremists in Ukraine but do not suggest that the Russian speaking population, or ethnic Russians or ethnic Russians of the Orthodox faith or not fluent Ukrainian speaking Russians are singled out for harm. I am of the view that were it the situation, it would be noted in those independent reports.
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 or Russian speaking ethnic Ukrainians as a minority group requiring protection. The applicant is not Romany.
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. 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.
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):

The testimonies collected by the Equal Rights Trust in April 2015 suggest that while there was no evidence of discrimination against ethnic Russians or Orthodox 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.
Reports from US State Department Report, Human Rights Watch and Freedom House provided by the applicant do not suggest that ethnic Russians or Russian speaking Ukrainians are a minority in Ukraine.
The applicant is an ethnic Russian of the Orthodox faith who does not speak Ukrainian well. He advised the Tribunal that the Ukrainian state has taken over the church. I accept that there has been major changes in the Orthodox church hierarchy in Ukraine and that the Ukrainian Orthodox church and the Russian Orthodox churches are conducting services in the Ukrainian language. The applicant made no claims of harm for his religion when he lived in the Ukraine other than on one occasion when he had a St George ribbon on his rear vision mirror and in fear of the gang that surrounded the car, he removed the ribbon. He has not claimed any serious harm occurred to him on that occasion. When put to the applicant that he is able to practise his religion in Ukraine and is able to attend church, he agreed that he could do so. I therefore find remote the chance or the risk that the applicant will suffer serious or significant harm for his religion, in Ukraine, within a reasonably foreseeable future.
According to Article 46 of Ukraine’s Constitution, citizens have the right to social welfare, including the right to decent treatment in their old age. “The right of Ukrainian citizens to pensions is also enshrined in the country’s law ‘on Universal State Pension Provision[21]”. I have found no independent evidence to suggest that the applicant, an ethnic Russian of the Russian Orthodox faith, would be refused a social welfare or a pension, when entitled, on his return to Ukraine.
[21] >
The applicant has provided information to the Tribunal from Nash Mir, an NGO in Ukraine and details of a UN visit to Ukraine. The information from UN Independent Expert stated:
the Independent Expert received no indication of gross or massive acts of individual violence against lesbian, gay, bisexual, trans and gender diverse persons. Ukrainian legislation does not prescribe discrimination or violence on the basis of sexual orientation and gender identity: it is free from the scourge of criminalization, contains general anti-discrimination provisions and, in a few instances, explicitly includes protections.
Nash Mir, in 2020[22], stated that the Ukrainian Ombudsperson's office consistently and promptly responded to incidents of incitement to discrimination and hate speech against LGBT people. The Commissioner welcomed the Equality Marches in Ukrainian cities, did everything possible to protect the rights of LGBT people, and called on the Ukrainian authorities to "carry on a permanent work for providing equal rights and freedoms for all, including regardless of their sexual orientation and gender identity”.
[22] Nash Mir Community Online LGBTI 2019
The applicant did not agree with the independent evidence from Nash mir that he provided to the Tribunal. He stated, “people hate you, the Church does not accept the LGBTI community” and he will not be allowed to adopt kids there and they will be beaten if they hold hands. Whilst I accept that the Orthodox Church does not accept the LGBTI community and the applicant will not be able to adopt children or may not be able to hold hands and that societal attitudes are less accepting than in Australia, I note that the independent evidence from Nash Mir indicates that Ministry of Justice, in cooperation with civil society, has developed a new Action Plan for the period until 2023, which includes drafting bills on criminalization of offences motivated by intolerance, and the introduction of the institution of registered civil partnership available to same-sex couples in Ukraine. This document, however, has not yet been adopted in early 2021. The independent evidence before me indicates that the Parliamentary Commissioner for Human Rights paid considerable attention and support to the protection of LGBT rights, responding promptly and effectively to hate speech against LGBT people by the media, officials, and religious figures.
I note that in 2015, the Ukrainian Parliament approved an employment anti-discrimination law covering sexual orientation and gender identity, and in 2016, Ukrainian officials simplified the transition process for transgender people and began allowing gay and bisexual men to donate blood. The applicant is of the view that Ukraine makes laws to satisfy Europe. I have no independent evidence before me to suggest that Ukraine makes laws to satisfy Europe.
The applicant claims that when he was in the army, he realised that he was gay and on 3 occasions, in a gay bar in Odessa in 2006 he was randomly attacked, in 2009 he met a guy online and was attacked in his home and in August 2012 he was fired from his job for kissing a customer. When put to the applicant he had not made these claims to the Department or the previous Tribunal he responded that he was really scared and afraid. When I put to the applicant that he also returned to Ukraine each time he left despite having a valid [visa] that could be utilised for entry to Australia, he said he had a contract with his employer and was not aware he could use the visa to return to Australia for his own purposes. I do not accept his explanation. As I pointed out to the applicant, he returned to Ukraine on numerous occasions. I am satisfied his return to Ukraine indicates a lack of a subjective fear of persecution. As for not knowing that he could utilise his [visa] that was obtained for him by his employer, the applicant utilised this visa in order to come to Australia in December 2014, by airplane and not on a ship as its employee. I am not satisfied that any of these claims i.e. being attacked in Odessa in 2006, in 2009 after he met a guy online, he was attacked in his home or that in August 2012 he was fired from his job for kissing a customer, occurred. I am of the view the applicant has created these claims in order to obtain the visa sought.
The applicant claims that he is in a homosexual relationship with his partner. They signed a NSW Relationship Certificate [in] June 2019. His explanation for not making a claim, to the Department or the previous Tribunal, that he was a homosexual that feared harm in Ukraine for his homosexuality, is that he was really scared and afraid. I find it implausible that the applicant would not have advised the Department and the previous Tribunal of the claimed incidents of harm for his sexuality especially as the applicant speaks English well and was represented by a migration agent.
The applicant has sent some photographs of himself and [Mr B], his claimed partner. Those photos show the applicant and [Mr B] in various social settings. I accept that the applicant and [Mr B] are known to each other and have attended social engagements. I accept that [Mr B] has parenting duties for his 2 daughters.
I accept that the applicant and [Mr B] participated in Mardi Gras last year. I place no weight on mere participation in the Mardi Gras in Sydney or going to gay shops and bars in Sydney in my assessment that a person is homosexual or in a committed homosexual relationship because anyone of any sexual orientation can and do attend Mardi Gras etc.
I have also considered a bank statement in both their names. The bank account does not suggest that the applicant and [Mr B] are both contributing their salaries to this joint account. Other than being in joint names the account has no evidentiary value.
I note that [Mr B] has a [Social Media 1 account]. I accept that the applicant does not like or use [Social Media 1], but this [Social Media 1 account] shows [Mr B] with his daughters, and makes no reference to the applicant. The applicant has provided only two photographs of himself, with [Mr B] and with other people. A motor vehicle insurance certificate of currency indicates that they are joint owners. A booking reservation suggests they will holiday together in December 2021 for 2 nights at [town], sharing a room. Therefore, I accept that [Mr B] and the applicant have a friendship and are known to each other.
The applicant’s claimed partner [Mr B] has not provided any information to the Tribunal. I find, on balance, that the whilst the applicant and [Mr B] are friends, I am not satisfied that they are in a dedicated homosexual relationship/marriage, as claimed. I am of the view that the applicant has created his claims, in order to obtain the visa sought. Therefore, I disregard that conduct as I am satisfied it was for the purpose of strengthening his claims to be a refugee.

100. I do not accept that the applicant is a homosexual in a committed relationship whose partner and children fear serious harm for the applicant’s sexuality. I do not accept that they would travel back to the Ukraine with the applicant.
101. Even were I to accept that the applicant is a homosexual ethnic Russian Orthodox who does not speak Ukrainian fluently, the independent evidence does not suggest that the applicant would suffer serious harm for that reason on his return to the Ukraine. I accept that as a homosexual he would not be able to go to gay shops in Odessa but independent evidence indicates there are gay bars/restaurants in Odessa[23] . I accept that the applicant would not be able to participate in Mardi Gras, but I do not accept that being unable to attend Mardi Gras amounts to serious or significant harm.
[23]
102. I find remote the chance or the risk that the applicant, an ethnic Russian Orthodox, from Odessa who does not speak Ukrainian fluently, will suffer serious or significant harm on his return to Ukraine, within a reasonably foreseeable future.
103. I have considered the applicants claims singularly and cumulatively. I find that the applicant does not have a real chance that, if returned to Ukraine, he would suffer persecution for reasons of his race, religion, nationality, membership of a particular social group or political opinion. I find that the applicant does not have a well-founded fear of persecution for these reasons. Accordingly, I find that the applicant does not satisfy the requirements of s.36(2)(a) of the Act.
104. I am required to consider if the applicant, an ethnic Russian Orthodox, from Odessa who does not speak Ukrainian fluently, will suffer significant harm on his return to the Ukraine. He does not speak or write Ukrainian well.
105. According to Human Rights Watch Report World Report 2020 – Ukraine hostilities in eastern Ukraine entered their sixth year and continued to put civilians’ lives and well-being at risk, even as absolute numbers of civilian casualties dropped. The applicant is not from an area where there are hostilities. He is not an IDP.
106. It is noted that President Volodymyr Zelensky is an ethnic Russian speaking Ukrainian[24]. The applicant opines that the President is Jewish, a member of a minority group. I note that after taking office[25], President Volodymyr Zelensky demonstrated commitment to carrying out anti-corruption reform and ending the armed conflict with Russia. The independent evidence before me, US State Human Rights Reports, UK Home Office Reports, Amnesty International, Human Rights Watch, Freedom House does not suggest that ethnic Russians are harmed by the state or non-state actors.
[24]
107. I have no independent before me to suggest that Russian speaking ethnic Orthodox Russians from Odessa who do not speak Ukrainian fluently suffer harm in the Ukraine. Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ukraine, there is a real risk that the applicant will suffer significant harm.
108. I do not accept on the evidence before me, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ukraine, there is a real risk that the applicant will be arbitrarily deprived of life, that the death penalty will be carried out on the applicant, that the applicant will be subjected to torture, that the applicant will be subjected to cruel or inhuman treatment or punishment or that the applicant will be subjected to degrading treatment or punishment.
109. Accordingly, I find that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.
Conclusion
110. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
111. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
112. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
113. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Lilly Mojsin
Member

ANNEXURE A
114. 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.
115. 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.
116. 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).
117. 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.
118. 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision
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 504

13 January 2022

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