1805548 (Refugee)

The applicant, an ethnic Russian from Ukraine, sought a protection visa. The dispute concerned whether the applicant had a well-founded fear of persecution or would suffer significant harm if returned to Ukraine, based on claims of race, imputed political opinion, membership of a particular social group (homosexual male), and religion. The matter was before the Federal Circuit Court following a remittal from the Federal Circuit Court.

The court was required to determine if the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958, specifically whether he was a refugee with a well-founded fear of persecution due to his race, imputed political opinion, or membership in a particular social group. Additionally, the court had to consider whether the applicant would suffer significant harm under the complementary protection provisions, section 36(2)(aa), as a necessary and foreseeable consequence of his removal to Ukraine.

The court considered the applicant's claims of being targeted by Ukrainian nationalists, including assaults and threats, stemming from his wife's brother's involvement with separatist militias. It also examined claims related to his ethnic Russian background, his Orthodox faith, and his homosexuality. The court found that independent evidence did not support the applicant's claims of widespread discrimination or persecution against ethnic Russians or Russian speakers in Ukraine. Regarding his homosexuality, the court found the claims of past attacks and job loss to be not credible, particularly given the applicant's failure to raise these issues earlier and his repeated returns to Ukraine. The court also noted that while societal attitudes towards LGBT individuals in Ukraine might be less accepting than in Australia, there were legislative efforts and official support for LGBT rights, and the applicant's inability to attend Mardi Gras or certain venues did not constitute significant harm.

Ultimately, the court was not satisfied that the applicant had a well-founded fear of persecution or a real risk of suffering significant harm if returned to Ukraine. The court found that the applicant had not established that he would be persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, nor that he would suffer significant harm. Accordingly, the court affirmed the decision not to grant the applicant a protection visa.