2010781 (Refugee) - [2024] ARTA 565

2010781 (REFUGEE) [2024] ARTA 565 (20 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2010781
Tribunal:General Member C Wall
Date:20 November 2024

Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(aa) of the Migration Act.

Statement made on 20 November 2024 at 12:40pm
CATCHWORDS
REFUGEE – protection visa – Ukraine – ethnic Russian and former member of Communist Party – government’s anti-Russian activities and social discrimination and exclusion – age and multiple physical and mental health conditions – one adult child in home country, and other children settled in Australia – consistent and reliable claims and evidence – country information – Russian invasion, infrastructure destroyed and delivery of basic services unreliable – older people disproportionately killed or injured – ongoing and unpredictable circumstances – no evidence that government is targeting citizens of Russian ethnicity – refugee criteria not met – complementary protection – particular vulnerability and risk not the same as that faced by population generally – limited right to enter Russia temporarily – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (4)(a), 36(2)(a), (aa), (2A), (2B)(c), (3), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
BBK15 v MIBP (2016) 241 FCR 150
MZAAJ v MIBP [2015] FCA 478
SZSPT v MIBP [2014] FCA 1245
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 June 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a national of Ukraine, applied for the visa on 14 April 2016. The delegate refused to grant the visa on the basis that he was not owed protection by Australia.
The applicant appeared before the Tribunal on 14 November 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages. The applicant’s support person, [Mr A], was present throughout the hearing.
The applicant was…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading 2010781 (Refugee)

Details

AGLC: 2010781 (Refugee) [2024] ARTA 565
Case: [2024] ARTA 565
Decision Date: 20 November 2024

CaseChat Overview and Summary

The applicant, an ethnic Russian former member of the Communist Party from Ukraine, sought a protection visa on the basis of anticipated persecution in Ukraine due to government anti-Russian activities and social discrimination, exacerbated by his age and health conditions. The case was heard by the Administrative Appeals Tribunal (AAT) in Australia. The primary legal issue before the AAT was whether the applicant met the criteria for a protection visa under Australian law, specifically whether he qualified as a refugee or was entitled to complementary protection.

The AAT examined the applicant’s claims and evidence, including his age, health conditions, family support, and the social and political environment in Ukraine. The Tribunal noted the applicant's detailed and consistent claims, supported by medical reports and statements from family members. However, the AAT found that the evidence did not establish that the Ukrainian government was specifically targeting ethnic Russians or communists, nor did it demonstrate that the applicant's situation was markedly worse than that of the general population. The country information provided indicated that while there were ongoing hostilities and difficulties in Ukraine, there was no specific evidence that the government was persecuting ethnic Russians.

The AAT concluded that the applicant did not meet the refugee criteria as he had not demonstrated a well-founded fear of persecution on account of his political opinions or ethnicity. The Tribunal also found that the applicant did not qualify for complementary protection because his particular vulnerability did not amount to a risk different from that faced by the general population in Ukraine. The decision was remitted to the Department of Home Affairs for reconsideration.

The Tribunal's decision was based on the lack of specific targeting by the Ukrainian government and the broader circumstances in Ukraine that did not distinguish the applicant's situation from the general population. The applicant's claims, though detailed and consistent, did not meet the required threshold under Australian migration law for protection.

Orders

Orders of the court

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Background

Background to the litigation

The applicant was represented in relation to the review and the representative attended the hearing. BACKGROUND The applicant is now [Age] years old. He was born in [Kazakhstan], which at that time was part of the USSR. He later lived in Ukraine and obtained Ukrainian citizenship when Ukraine gained independence in 1991. He married in 1962 and had 3 children; [names and ages]. His wife died in Ukraine in 2014. The applicant has travelled to Australia on multiple occasions since 1996 to visit his son [Mr B] and his family. His daughter [Ms C] moved to Australia in 2022. [Ms D] remains in Odessa. The applicant worked in [work sector 1] in Ukraine and since his retirement he has received a government pension. He lived in his own home in [Town] which is approximately [Distance] km from Odessa. Over recent years he has experienced a number of health problems and his daughter [Ms C] cared for him in Ukraine prior to 2015. The applicant last came to Australia [in] February 2015 and subsequently sought protection. He lives with his son [Mr B] and daughter-in-law and their [children] in Melbourne.CLAIMS In the visa application the applicant’s claims were (in summary):He is ethnically Russian. He was formerly a ‘middle tier member of the Communist Party’.Since the coup-d’état in 2014 the Ukrainian government has strengthened its ani-Russian activities, with Russian books and films banned and communists treated with suspicion. This is scary for people like him and he developed depression and anxiety. It is no longer safe for him to publicly celebrate the traditional Soviet Victory Day in Ukraine, Soviet-era monuments have been knocked down and Russian named public places renamed. He expects the situation for Russians in Ukraine to become worse.The cost of living is very high for someone like him on a small pension. The applicant was interviewed by the Department on 11 June 2020. The applicant’s claims to the Tribunal are (in summary):The applicant’s age, severe health conditions, lack of family support in Ukraine and the hostile conditions in Odessa, and in Ukraine broadly, collectively make him highly vulnerable and in need of protection.The situation in Ukraine has become very dangerous since Russia invaded the country in February 2022. On 6 November 2024 Russian forces launched 63 drones and 2 guided air missiles targeting the Odessa region.The applicant’s medical conditions have become increasingly complex, making the idea of independent living an impossibility for him. He has an uncontrolled arrhythmia, hypertension and advanced osteoarthritis. His mental health is fragile. He relies on daily assistance from his family for basic tasks such as cooking, cleaning and mobility. His daughter [Ms D] is the only family member remaining in Ukraine and she is unable to care for him because of her own health problems and because she lives some distance from the applicant’s home. He has a stable family network in Australia which comprises his son [Mr B], daughter in law [Ms E], daughter [Ms C], [grandchildren] and [great-grandchildren]. Three of his family members were recently invited to apply for Resolution of Status (ROS) visas.The applicant’s Russian ethnicity places him at further risk of discrimination and social exclusion in Ukraine. He would face prejudice, hostility and limited access to resources. Russian is his primary language, and he does not speak Ukrainian fluently.Supporting documents

Evidence

Evidence Before The Court

The following documents were provided in support of the applicant’s claims to the Tribunal:a.Legal submission with relevant country information.b.Applicant’s statutory declaration dated 6 November 2024.c.Statement of [Mr B] (son in Australia).d.Statement of [Ms C] (daughter now in Australia).e.Statement of [Ms D] (daughter in Ukraine).f.Statements from [Ms F] (friend), [Ms G] (granddaughter), [Ms E] (daughter in law).g.Medical report form [Doctor H] dated 24 October 2024.h.Copies of ROS offers to [named persons].i.Numerous articles relating to the conflict in Ukraine.Evidence at hearing The Tribunal was mindful at hearing of the applicant’s physical and mental health conditions. As the representative had submitted detailed information about the applicant’s circumstances and claims, in additional to detailed country information, I limited my questioning to areas which required clarification or confirmation. The applicant said that his daughter [Ms D] is his only family member remaining in Ukraine and that she lives with her de facto partner in a rented apartment in Odessa. When asked if [Ms D] is [an occupation 1], as stated in the delegate’s decision, and he said that she is [an occupation 2], or [related occupation]. He confirmed that he owns a home in [Town] and that it now belongs to [Ms C], but distant relatives are living there as ‘it needs to be cared for’. He said that he last spoke to [Ms D] one week ago and she was recovering from [surgery] and unable to work. When asked why he decided to remain in Australia in 2015, given that he had visited on many previous occasions, the applicant said that his health was deteriorating at that time and life was getting too difficult for him in Ukraine. I sought to clarify if the applicant has the right to reside and enter in any other country, other than Ukraine, given that he had referred in his visa application to an inter-governmental agreement which gives Ukrainian citizens access to other former USSR states. He appeared confused by the question and was unable to provide further details. Four witnesses attended the hearing to give evidence in support of the applicant’s claims. Given that I was satisfied with the reliability of the evidence presented in the written submissions and supporting statements, I did not find it necessary to take oral evidence from the witnesses.CRITERIA FOR PROTECTION VISA The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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