2104403 (Refugee) - [2025] ARTA 815

2104403 (REFUGEE) [2025] ARTA 815 (24 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2104403

Tribunal:General Member K Hoang
Date:24 February 2025

Place:Brisbane
Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that
(i)that the first named applicant meets s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 24 February 2025 at 12:43pm

CATCHWORDS
REFUGEE – protection visa – Ukraine – imputed political opinion – particular social group – blogger – conscientious objector – Donetsk region – corruption – online activist – fear of killing – fear of forcible conscription – fear of detention – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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 an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 March 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants in this case are [name] (the applicant), [name] (the second named applicant) and [name] (the third named applicant). The applicants who claim to be nationals of Ukraine applied for the visas on 29 April 2016. The applicant applied for protection in his own right, while the second and third named applicants did not have their own protection claims. They rely on being a member of the same family unit as the applicant.
The delegate refused to grant the visas on the basis that the applicant is not a person in respect of whom Australia has protection obligations under either the refugee or complementary protection criterion. Consequently, the second and third applicants did not meet the criterion as members of the same family unit.
The applicant appeared before the Tribunal on 4 February 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Ukrainian and English languages.
The applicants were not represented in respect of the review.
The issue in this case is whether any of the applicants are persons in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
RELEVANT LAW
The relevant law governing the criteria for the grant of a protection visa are set out in the Attachment.
BACKGROUND
According to information on the protection visa application, the applicant is [age] years old. He was born in Horlivka in the Donetsk Oblast of Ukraine. He speaks Ukrainian, Russian and English.
The applicant moved to Kiev and resided there between 2010 and 2012. After this, he engaged in extensive travels through [Country 1] and [specified countries]. He returned to Kiev [in] May 2015 where he married the second named applicant. They departed for Ukraine [in] October 2015 and spent a period of time in [Country 1] before arriving in Australia on a transit visa [in] February 2016. The third named applicant was born in Australia in [specified year], and an Australian birth certificate is available on the Department’s file.
Evidence before the Department
The applicant’s claims for protection as expressed in his protection visa application, and at interview with the Department on 9 February 2021, can be summarised as follows.
The applicant’s family resided in the Donetsk region prior to the war on 12 April 2014. The applicant was on holidays in Asia with his wife during this time. They were working remotely on their [business 1] remotely. Once the war started, their business collapsed, and they returned to Kiev [in] May 2015. At the time, Kiev was an area not affected by the war. The applicant’s wife entered university to pursue her studies.
The applicant and his wife formed a non-government organisation called ‘[NGO 1]’ in Kiev. The organisation was helping civilians and soldiers of the Ukrainian army headed by [Leader A]. The army sent ‘[NGO 1]’ a letter asking for financial and medical support. The applicant along with other [NGO 1] members met with [Leader A] and another [Leader B]. They agreed that [NGO 1] would assist with the purchase of [equipment]. The applicant helped to fundraise USD $[amount] which was then given in cash to [these military leaders].
The applicant contends that under Ukranian law, he was ‘accountable for the donated money and had to provide a legal and official document to the Foundation for the financial report to be produced’. This required an ‘act of acceptance’ from the beneficiaries which would stipulate how the funds are being used. The soldiers told the applicant they needed 10 days to collect the required stamps and signatures. However, they provided the applicant with a generic document on [a day in] July 2015, which did not meet the legal requirements. The applied tried to request the document again from [Leader A] and [Leader B], but he was told not to contact them further. The applicant claims that [Leader A] threatened to have him join the army and send him to certain death as part of [a named] “Military Special Unit ". He also threated the applicant to have the applicant’s family killed.
The applicant claims that he did not succumb to the threats. Instead, he wrote a letter to the government and started an internet blog about it. The purpose of the blog was to provide information about this event, the actions of [Leader A], to shine a light on corruption, and to avoid himself being accused of misappropriation of funds.
He claims that [in] August 2015, two people in army uniform assaulted him outside his apartment with a [weapon]. They [inflicted specified injuries] and told him to stop talking. While the applicant was in hospital receiving treatment, his [two relatives’] apartment doors were set on fire. The applicant reported both incidents to the police, but they did not take any action because they had not proof of who the perpetrators were.
Following these incidents, the applicant claims he and his wife moved outside Kiev and stayed in various places. The applicant and his wife believed that they needed to leave Ukraine, and they decided to travel to [Country 1]. For the safety of his family members remaining in Ukraine, the applicant removed his internet blog and materials from the internet.
The applicant and his wife were resident in [Country 1] between [October] 2015 and [January] 2016, following which they went to [Country 2]. While there, the applicant claims that his mother-in-law received two letters summoning him to join the Ukranian army. The applicant claims this was illegal because of his ‘origins and family being within the war zone’.
Further, the applicant claims that in December 2015 his mother received a call from someone who identified themselves as being a ‘serving officer in the Separatists’, and who questioned her about the applicant’s whereabouts. The applicant’s mother said she had not seen her son for a long time. A few days later, his mother was informed by neighbours that Separatist police officers had came to her apartment in Horlovka.
Sometime in 2016, after the applicant had moved from [Country 1] to [Country 2], his mother informed him that she had received a call from Separatists in Donetsk, who told her that they were aware that the applicant is in Asia and that prior to leaving Ukraine he had been assisting the Ukrainian Army.
At interview, the applicant further claimed since his arrival in Australia, he as uploaded a number of videos [online] in relation to his views of situation in Ukraine and the actions of the Ukrainian army and military.
Fears of return
The applicant fears that he will be killed by people associated with [Leader A] due to the misappropriated funds. He also fears being forcibly conscripted into the army and that he will be killed at the war front by people associated with [Leader A]. He also fears that his family would be harmed by the same people if they are aware of his return. The applicant also fears that Separatists will harm him because they are aware that he helped fund the Ukrainian army.
Supporting documentation
The applicant provided the following documentary evidence in support of his claims:
·a copy of a letter — not in English — purportedly provided to ‘[NGO 1]’ by the Ukrainian army;
·a copy of a letter — not in English — purportedly a statement made by the applicant to Ukrainian police;
·photograph of the applicant on a hospital bed;
·photographs of the applicant at the [named] forum;
·photographs of the applicant purportedly collecting money for ‘[NGO 1]’
·copy of a volunteer card — not in English — purportedly a volunteer identity card which bears his photograph;
·a letter in English purportedly written by the applicant’s mother, dated 29 July 2016;
·an original and translated copy of a draft military notice in the applicant’s name;
·an original and translated copy of a certificate issued to him by [Agency 1], Ukraine dated [in] July 2015;
·numerous screenshots of the applicant on the [online] channel ‘[Channel 1]’ between February and April 2017; and
·a [specified] press card, validity date [in] 2020;
Delegate’s decision
The delegate accepted that the applicant was born in the Donetsk region of Ukraine but found on the evidence that the applicant had resided in Kiev from 2009, and that was also the last place he resided prior to departing Ukraine. The delegate determined Kiev to be the applicant’s ‘home region’, and the place he will return to if returned to Ukraine.
On the evidence before them, the delegate accepted that:
·the applicant was involved with and worked as a volunteer with ‘[NGO 1]’ and collected funds for the Ukranian army to purchase [equipment];
·as a consequence of his blog posts in relation to [Leader A] and [Leader B’s] misappropriation of funds and subsequent actions against him, he was targeted and threatened by them;
·the applicant has never undertaken military service in Ukraine and he objects to fighting in the conflict region in the Donbass region of Ukraine;
·he was called up to register and enlist with the Ukrainian military in 2015; and
·since his arrival in Australia in 2017, the applicant has uploaded a number of videos [online], related to his views on happenings in Ukraine and the actions of the Ukrainian government and military.
The delegate found that, given the passage of time, and the absence of any evidence of the applicant’s condemnation of [Leader A] and [Leader B], they were not satisfied that the applicant continues to be of interest to them or that he will be targeted upon return. In respect of the applicant’s [online] activities, the delegate found there was no evidence to indicate that they have viewed by the Ukrainian authorities, or that the videos are considered as dangerous or harmful to the reputation of the current regime. Accordingly, the delegate was not satisfied there is a real chance the applicant would be persecuted for reasons of videos related to the actions of the Ukrainian government and military.
While the delegate accepted that the applicant objects to fighting in the Donbass region, the delegate found on country information at the time, the age for regular military service in Ukraine is 27. Given that the applicant was aged [over that age] at the time, the delegate found the applicant no longer falls within the current age for regular military service. Country information available to the delegate at the time suggested that persons under the age of 60 could be called to serve as a private in the Ukrainian army, but the delegate was not satisfied there was a call for mobilisation or partial mobilisation. The delegate was not satisfied that conflict in the Donbass region would escalate in the reasonably foreseeable future. As such, the delegate considered it remote the applicant would be conscripted and that he would face serious harm as a result of being a conscientious objector.
For the reasons above, the delegate was not satisfied of a real chance the applicant would be persecuted upon return to Ukraine. For the same reasons, they were also not satisfied that there is a real risk that the applicant would face significant harm if returned to Ukraine.
Evidence before the Tribunal
Pre-hearing submissions
The applicant provided the following materials on review:
·a copy of his Ukrainian passport;
·an original and NAATI translated copy of his birth certificate;
·a copy of a Ukrainian passport in respect of the second named applicant;
·an original and NAATI translated copy of a birth certificate in respect of the second named applicant;
·an original and NAATI translated copy of a name change certificate in respect of the second named applicant;
·translated copies of overseas travel document in respect of the applicant and second named applicant;
·an original and translated copy of the applicant’s Tax File Number;
·a screenshot of a blog post and a translated copy from the blog [named];
·photos of whom the applicant claims to be of [Friend A];
·numerous screenshots of the applicant on the [online] channel ‘[Channel 1]’, from March to July 2018; and
·a screenshot of [online] Analytics for the channel [Channel 1] for the period [November] 2016 to [April] 2021 – this shows the chanel as having 56,258 followers and total views of 38.4 million.
In his submission of 11 April 2021 to the Tribunal, the applicant sought to address the findings made the delegate. First, the applicant contended in respect of his home region that he lived, resided and was registered at the city of Horlivka, and that he only travelled to Kiev for short business trips. The applicant claims that according to Ukranian law, he is required to register a new place of residence within 30 calendar days after arrival. The applicant claimed that if he had resided in Kiev, it would be stated on his internal passport. The applicant claimed that he and his wife had not planned to leave Ukraine, and this is evidenced by the fact that his wife had enrolled to study at [a named] University.
The applicant submitted that prior to leaving Ukraine, he had deleted a number of articles and publications regarding [Leader B] and [Leader A], but some records remained. The applicant provided a reference to [name], being a blog post dated [in] July 2015. He submitted that this blog post is still available online. I have viewed the original blog post online and I accept that to be the case.
The applicant submitted that he, along with another individual [Friend A], are the co-owners of the [online] Channel ‘[Channel 1]’. The applicant submitted that the channel has over 33 million views and 56,000 subscribers, and he claimed that this ‘makes me the leader of public opinion for some groups of the population of Ukraine’.[1] The applicant submitted in his videos that he had criticised ‘the Ukrainian army and the internal policies of Ukraine … which makes me a desirable victim for [Leader A] and [Leader B], who need to kill me so that I could not testify against them in court’.[2] In support of this, the applicant provided a link to a [Country 3] news article — where [Friend A] had sought refuge — which provides as follows:[3]
[Name deleted] has [an item] about a Ukrainian 'citizen journalist' who is currently [residing] in [Country 3]. [Friend A] served in the [armed] forces in the Ukrainian military between [specified years], but says he grew disillusioned with corruption and [related activities] he saw there.
He left the [armed forces] and founded the '[Channel 1]' [online] channel, which he says is a [journalism] initiative that the Ukrainian authorities do not [approve]. He says he fears persecution in Ukraine because of his [citizen journalism], but claims not to be pro-Russia. He says he [opposes] the annexation of Crimea, and does not support the [conflict] in eastern Ukraine
[1] Applicant’s submission, p 7.
[2] Applicant’s submission, p 7.
[3] See [Source deleted.]
The applicant also claimed that bloggers, public figures and journalist were at risk of harm and provided references to country information in this regard. He claimed that for a long time, he has been a member of the [named professional association] and he took part in ‘part in webinars and zoom meetings with colleagues, and I understand all the processes taking place in Ukraine’.[4]
[4] Applicant’s submission, p 8.
In respect of his claims as conscientious objector, the applicant conceded that he has reached the age of [age] and cannot be called upon to serve in the army, but this did not relieve him of criminal responsibility for ‘refusing and ignoring service in the Ukraine’.[5] The applicant submitted that upon entry to Ukraine, he could be imprisoned for a period of 3-5 years.
[5] Applicant’s submission, p 16.
In a further submission in July 2024, the applicant provided further information regarding his claims. He stated that:[6]
A series of my actions made me a relevant target for Ukrainian corrupt officials in the army and government bodies. As you understand, the state of Ukraine cannot provide me with full protection and safety for my family, as the Ukrainian army and other services, which see me as an enemy, are part of the state. After the large-scale invasion of the Russian Federation began, I started receiving serious threats and bullying, including from some members of the Ukrainian and Russian communities in [Australia], and I, being harassed by them, had to hide all the materials of my blogs and rename my [online] channel.
[6] Applicant’s submission, p 1.
The applicant also submitted that his property in the Russian Occupied Territory had been requisitioned and permanently lost.
The applicant also reiterated this claim that he would face forced mobilisation, were he to return to Ukraine. He referred to the increased need for mobilisation and referred to several sources of country information in this regard. He claimed that he has been denied a new passport and the Ukrainian consulate has advised him that he must first register for military service.
Tribunal hearing
The applicant provided a credible and internally consistent account of his experiences in Ukraine at hearing. This included his involvement with ‘[NGO 1]’, the agreement that was reached with the Ukrainian army in respect of the provision of the [equipment], and the consequences he faced after blogging about the fallout with [Leader A] and [Leader B].
The applicant expanded further on his claims with respect to his blogging activities. He explained that he had been video blogging on the ‘[Channel 1]’ channel as far back as November 2016. He said he had another channel previously that talked about Russian crimes in the Ukrainian territory where his mother had lived. He began blogging about the first invasion, how it was affecting his mother and how the Russians rebels were taking over cities.

In respect of the [online] Channel, ‘[Channel 1]’, the applicant claimed that he started this channel with his friend [Friend A]. The applicant claimed that on the channel they would discuss issues related to the Ukrainian military, jails, the Prime Minister and how the government sells and buy weapons and how they steal money. He said that after a couple of years, he had become one of the most popular video bloggers in Ukraine, and his videos had been [made available elsewhere]. He claims he was citizen journalist, and he was invited to various journalist unions. The applicant said when the ‘big war’ started three years ago, he did not delete the channel, but he put it ‘under lock’ because he did not want to discredit the Ukrainian army. The applicant said this was because he supported his country, but he does not support people within institutions — particularly special military units and divisions — who are corrupt. The applicant was able to show the Tribunal videos from his [online] channel, one of which had over 1.5 million views.
The applicant gave evidence that in order to renew his passport he was advised that he had to register himself for military service. He said for the same reason, he was not able to obtain and passport or citizenship certificate for his son. The applicant said he had job proposition for a position [at a business 2], but he was not able to take that job without a passport.[7]
[7] There is on the Tribunal’s file, copies of a job contract issued in respect of the applicant for a job [with a business 2], along with various training certificates issued by the [relevant training institute].
When asked about his objections to serving in the army, the applicant said he is religious and does not want to kill people or be killed. He also said he does not trust the Ukrainian system because they had stolen money from him and harmed him in the past, and they might try to do it again. The applicant also said he had injuries that would make it difficult for him to join the army and he also has a young son and family. The applicant said his objections are about his ‘heart and soul’ and he does not want to kill people. He is a Pacifist and does not support any war. He stated that is why he did not provide anything else other than [the specific equipment] to the Ukrainian army.
When asked what would happen if he were to return to Ukraine, the applicant said he would be arrested at the airport because he is on the list of people who they want to take to the army. He will be killed if he joins the war. He said otherwise he will be prosecuted as a person who actively avoided military service or given the choice to go to war without any training. When asked what he would do if given that option, the applicant responded that he would not do anything, he would sign any papers or take part in the war because he is a Pacifist. He stated that it is not his war. He said the government will harm him because he is famous, and they know his face and his name.
COUNTRY INFORMATION
In the absence of a DFAT Country Information Report for Ukraine, I have been guided by the following in reaching my decision .
Security situation in Ukraine
According to Human Right Watch World Report of 2025, the war between Russia and Ukraine continues unabated, including in the Donetsk (Donetska) region and Kiev:[8]
Russia's war against Ukraine continued to cause immense civilian suffering. Since its full-scale invasion in February 2022, Russian forces have committed widespread war crimes and other abuses and maintained a climate of fear in Russia-occupied areas of Ukraine. In 2024, Russia’s large-scale coordinated attacks on Ukraine’s energy grid significantly reduced Ukraine’s power-generating capacity, causing country-wide blackouts. The International Criminal Court (ICC) issued four arrest warrants against senior Russian officials for their role in these attacks.
From February 2022 through November 2024, 12,162 Ukrainian civilians were killed and 26,919 injured, according to the United Nations Office of the High Commissioner for Human Rights. At least 6.7 million Ukrainians fled and remain abroad. Millions more remain internally displaced. Throughout 2024, tens of thousands fled frontline cities in Kharkivska and Donetska regions to other parts of the country due to Russia’s continued military advancement.
…
Russian forces carried out numerous attacks on densely populated areas in 2024, causing devastation and suffering across Ukraine. Most civilian casualties were caused by explosive weapons with wide area effects, which also damaged residential buildings, hospitals, schools, cultural heritage sites, and other civilian infrastructure.
At least 219 civilians were killed and 1,018 injured in July, making it the deadliest month for civilians in the past two years. Russian forces’ strikes on multiple cities on July 8 killed at least 43 civilians, including five children, and injured at least 190. The attacks also caused significant damage to vital civilian infrastructure, including the Okhmatdyt children’s hospital in Kyiv, the country’s largest children’s hospital. Ukrainian authorities reported that the strike on Okhmatdyt and another hospital in Kyiv killed nine patients and healthcare workers and injured 16 patients, including children. Human Rights Watch and others called for the strike on Okhmatdyt to be investigated as a war crime.
[8] Human Rights Watch, World Report 2025 – Ukraine, available at < accessed 20 February 2025.
Around the time of the hearing, according to the National Security and Defence Council of Ukraine, martial law and mobilisation had been extended until 7 February 2025:[9]
The Verkhovna Rada of Ukraine has extended martial law and mobilisation from 10 November this year to 7 February 2025.
Secretary of the National Security and Defence Council of Ukraine Oleksandr Lytvynenko reported on the draft laws on the extension of martial law (No. 12151) and on the extension of mobilisation (No. 12152).
On 23 July, the Verkhovna Rada voted to extend the martial law in Ukraine until 9 November. At that time, the Parliament had extended the general mobilisation for 90 days as well.
Since the beginning of Russia's full-scale invasion of Ukraine, this is the 13th extension of martial law and mobilisation. It was 24 February 2022 when martial law was introduced and general mobilisation was announced in Ukraine for the first time.
[9] National Security and Defense Council of Ukraine, Ukraine extends martial law and mobilisation until 7 February 2025, available at < accessed 20 February 2025.
At the time of this decision, martial law in the Ukraine had been further extended until May 9, 2025.[10] The law firm Baker and McKenzie have advised that there is no limit to the number of times that martial law can be extended.[11]
[10] National Security and Defense Council of Ukraine, Extension of martial law and mobilization: NSDC Secretary submits two draft laws to Parliament, available at < accessed 20 February 2025.
[11] Baker McKenzie, Ukrainian Laws in Wartime: Guide for International and Domestic Businesses, 4^th edition, 10 December 2024, <available at accessed 10 December 2024.
Mobilisation, conscription and evasion
In April 2024, CNN reported that:[12]
Ukrainian President Volodymyr Zelensky has signed into law a key piece of legislation overhauling the country’s mobilization rules.
The legislation places a new requirement on all men between 18 and 60 to register with Ukraine’s military and to carry their registration documents on them at all times. The aim is to make recruitment processes more efficient and more transparent, the government says.
Men of service age who are living abroad will not be able to renew their passports at Ukrainian consulates without producing up-to-date registration paperwork.
The new law does not cover any potential increase in the number of people who might be called up to serve.
[12] CNN, Zelensky signs law overhauling Ukraine’s mobilization rules, 16 April 2024, <available at accessed 20 February 2025.
The Danish Refugee Council and Centre for Documentation and Counter Extremism has reported in relation to Mobilisation in Ukraine that:[13]
As a rule, all Ukrainian men aged between 18 and 60 are liable for mobilisation. The Armed Forces of Ukraine mobilises different categories of profiles, based on military background, professions, expertise and needs. As the regular conscription of men between 18 and 27 years is suspended during martial law, men in this age category are, generally, not mobilised, unless having completed military service before 24 February 2022. Other profiles liable for military service include Ukrainian nationals residing abroad, Ukrainians with dual citizenship as well as some categories of women.
Some categories of persons are eligible for exemption from mobilisation, such as persons with disabilities and caretakers. The procedure for applying for exemption is irregular and there are cases of persons being mobilised despite having a formal justification for exemption. Moreover, it is possible to apply for deferment, although there are examples of violations in the procedure.
Persons liable for military service receive a summons letter in person that must be signed upon receipt, after which they must approach the Territorial Recruitment and Social Support Centre (TRC) within a specific period for military registration and undergo a medical examination. The procedure of mobilisation is not digitalised and handled manually, giving rise to irregularity and corruption. There is a prevalence of forceful mobilisation in all regions, involving elements of intimidation, violence and aggression by recruitment officers. The duration of service in the military is not systematically regulated, and, in general, it is difficult to be demobilised or granted leave of absence. Besides wounded servicemen, the consulted sources had no examples of servicemen being demobilised. Moreover, there are reports of insufficient military training and conditions during quartering.
Under martial law, there is no legal foundation for exemption from mobilisation on grounds of conscientious objection, and alternative service is therefore not an option. Therefore, refusal to serve with reference to conscientious objection is considered as draft evasion and punishable with imprisonment, which is enforced in practice.
It is a criminal offence to evade mobilisation or to desert from service. Since the adoption of amendments in January 2023 that introduced harsher punishment to deserters and evaders, it is uncertain to which extent the amended legislation has been enforced in practice, and reportedly, there has not been established legal practice yet. Legally, draft evaders and deserters returning from abroad are subject to prosecution, although it is not clear whether they in practice face prosecution due to limited legal practice to date. Corruption in the mobilisation procedures is prevalent and widespread at all levels of the military system, mostly in the Military Medical Commissions (MMC) due to vague legal regulations and lack of digitalisation. Moreover, there is a high prevalence of persons liable for military service who pay bribes to circumvent mobilisation.
[13] Danish Refugee Council and Centre for Documentation and Counter Terrorism, Country of Origin Information Report: Ukraine Mobilisation, March 2024, p 1 (emphasis added).
The report further highlights in respect of nationals residing abroad:[14]
1.2.3 Mobilisation of Ukrainian nationals residing abroad
Ukrainian nationals residing abroad are liable for mobilisation. They have an obligation to register with the Ukrainian representation in their country of residence and have their military record registered. Nevertheless, Ukrainians abroad generally refrain from registering at Ukrainian representations. According to UHHRU and a humanitarian NGO, individuals failing to meet this obligation of registering at a Ukrainian representation are, in practice, not held legally responsible since there is no mechanism to summon them, and, generally, they will not face any problems with document issuance at the Ukrainian representation. However, it is difficult to rule out the possibility of sanctions from the Ukrainian authorities upon return. It was the opinion of a Ukrainian NGO that no Ukrainian national residing outside of Ukraine has been summoned.
However, the Ukrainian NGO could not exclude that a Ukrainian national would be mobilised if the person was subjected to a criminal investigation abroad and subsequently deported to Ukraine. There have been political discussions about mobilising Ukrainians residing abroad.
The President of Ukraine has had bilateral discussions with neighbouring countries on this topic.
In terms of Ukrainians residing abroad who are returning to Ukraine, an international organisation noted that the primary areas of return or intended return include Kyiv oblast, Kyiv city, Mykolaiv, Chernivtsi and Kharkiv. According to periodic surveys, concerns about mobilisation have been described amongst men as an obstacle to return.
[14] Danish Refugee Council and Centre for Documentation and Counter Terrorism, Country of Origin Information Report: Ukraine Mobilisation, March 2024, p 17 (emphasis added).
There are numerous reports of mobilisation squads operating across Ukraine in attempts enlist more people, and the government has rolled out of an online conscription register.[15] Some reports have suggested that the suspension of consular assistance to men aged 18-60 abroad is an attempt to ‘pressure them into registering with recruitment services’.[16]
[15] See Dinara Khalilova, Ukraine is digitalizing its military ahead of a new mobilization wave, 25 May 2024, available at < accessed 23 February 2025.
[16] The Loop, Ukraine is conscripting its citizens abroad. Is that strictly legal?, available at < accessed 20 February 2025.
Sources report that there around 300 criminal cases against conscientious objectors as of 30 October 2024, many of whom are Jehovah’s witnesses.[17]
[17] See Forum 18, UKRAINE: About 300 criminal cases against conscientious objectors, available at < accessed 20 February 2025.
Political opinion and freedom of expression
According to Freedom House’s 2024 report into Ukraine:[18]
[18] Freedom House, Freedom in the World Report 2024. Ukraine, < , accessed 20 February 2025.
Are individuals free to express their personal views on political or other sensitive topics without fear of surveillance or retribution?
Ukrainians in government-controlled areas generally enjoy open and free private discussion, although the polarizing effects of years of war have weighed on political expression. Heated exchanges in the media and instances of violence against those expressing views considered controversial are not uncommon, likely contributing to self-censorship among ordinary people.
A week after Moscow launched the full-scale invasion of Ukraine in February 2022, Ukrainian lawmakers, in the absence of meaningful public comment, amended the criminal code to expand grounds for collaborationism charges to include public denial of Russian aggression, glorification of Russia, and insulting the honor and dignity of Ukrainian soldiers. Violations are punishable by fines, imprisonment, and restrictions on the ability to “hold certain positions or engage in certain activities” for a period of up to three years. More than 2,000 cases had been filed by the end of 2022.
Russian occupying authorities respond to perceived dissent with repression and violence, including arbitrary detention, assault, and sexual violence, severely limiting free expression in areas they control.
Does due process prevail in civil and criminal matters?
Although due process guarantees exist, in practice individuals with financial resources and political influence can often escape prosecution for wrongdoing. Judges have stymied corruption investigations into high-profile officials, including within the judiciary.
Wartime collaboration was added to Ukraine’s criminal code a few days after the full-scale Russian invasion in February 2022. The law did not introduce a clear definition of what constituted collaboration, and charges and penalties have varied considerably from region to region. Critics also say the law is too harsh in its punishment of people in occupied territories, who may have engaged in banned activities due to Russian military coercion. Domestic and international observers have also expressed concern about whether the more than 2,000 accused individuals will receive proper due process in the midst of a war.
Despite these and other significant challenges, the Ukrainian courts have showed resilience during the conflict, with most maintaining very high clearance rates, according to a recent report from the European Commission.
The US State Department’s 2023 Country Report on Human Rights’ Practices in Ukraine notes that:[19]
There were also significant human rights issues involving Ukrainian government officials, although not comparable to the scope of Russia’s abuses, which included credible reports of: enforced disappearance; torture and cruel, inhuman, or degrading treatment or punishment; harsh and life-threatening prison conditions; arbitrary arrest or detention; serious problems with the independence of the judiciary; restrictions on freedom of expression, including for members of the media, including violence or threats of violence against journalists, unjustified arrests or prosecutions of journalists, and censorship; serious restrictions on internet freedom; substantial interference with the freedoms of peaceful assembly and association; restrictions on freedom of movement; serious government corruption; extensive gender-based violence; systematic restrictions on workers’ freedom of association; and the existence of the worst forms of child labor. Some of these human rights issues stemmed from martial law, which continued to curtail democratic freedoms, including freedom of movement, freedom of the press, freedom of peaceful assembly, and legal protections.
The government often did not take adequate steps to identify and punish officials who may have committed abuses.
ANALYSIS, REASONS AND FINDINGS
[19] US Department of State, 2023 Country Information Report on Human Rights Practices in Ukraine, <available at accessed 20 February 2025.
Applicants’ identities and country of reference
Based on copies of the applicant’s and second applicant’s passports available on the Departmental file, I find that Ukraine is their country of nationality and receiving country for the purposes of refugee and complementary protection. I also find that the third applicant, although born in Australia, is a citizen of Ukraine by virtue of Ukrainian Citizenship Law, which provides that ‘a person, whose parents or one of the parents were citizens of Ukraine at the time of his/her birth is a citizen of Ukraine’.[20]
[20] See Law Of Ukraine, On Citizenship of Ukraine, Article 7, available at < accessed 20 February 2025.
Credibility and findings of fact
In assessing the applicant’s case, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. However, the Tribunal is not required to accept uncritically any or all of an applicant’s claims,[21] and nor does the Tribunal require rebutting evidence before it can find that a particular assertion by an applicant has not been made out.[22]
[21] MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
[22] Randhawa v MILGEA (1994) 52 FCR 437 per Beaumont J at 451; Selvadurai v MIEA (1994) 34 ALD 347 per Heerey J at 348 and Kopalapillai v MIMA (1998) 86 FCR 547.

As noted above, I found the applicant to be a credible witness at hearing. His oral testimony was consistent with information he provided to the Department at interview and with the documentary evidence provided to the Tribunal. As a result, I accept his claims and make the following findings of fact.
I accept:
·that the applicant was involved with a charitable organisation called ‘[NGO 1]’;
·the applicant and others collected funds to assist the Ukrainian army to purchase [equipment] and that these funds were misappropriated by [Leader A] and [Leader B];
·the applicant’s attempts to push the [leaders] to provide evidence that [specific equipment] had been purchased met with resistance and he subsequently posted blogs critical of them;
·the applicant was subjected to harm as a result of his activities and the decided to flee Ukraine;
·since his departure from Ukraine the applicant has been served with letters summoning him to join the Ukrainian army;
·the applicant objects to the joining the Ukrainian army;
·since the applicant has been in Australia, he has posted videos to his [online] Chanel, ‘[Channel 1]’; and
·he has been advised that he cannot renew his passport nor obtain a passport for his son unless he registers for military conscription.
Does the applicant satisfy the refugee criterion for protection?
I will now assess whether, on the basis of the findings of fact above, the applicant’s future conduct if he returns to Ukraine and relevant country information, he has a well-founded fear of persecution, now or in the reasonably foreseeable future. As a starting point, I note that the country situation in Ukraine has changed considerably since the delegate’s decision in 2021. Importantly for the purposes of this decision, the Russian-Ukrainian war has escalated significantly, and the laws and regulations surrounding mobilisation have also changed.
I find that the if the applicant were to return to Ukraine, he would most likely return to Kiev, being his place of last residence prior to his departure. The applicant claims to have a fear of persecution for cumulative reasons that relate to his imputed political opinion against the Ukrainian government, his profile as a blogger/citizen journalist, his status as a conscientious objector, and his status as a draft evader. The applicant also fears retribution from [Leader A] and [Leader B] which would result in him being sent to the front lines of the war.
I turn first to the applicant’s claims that he would conscientiously object to military service were he to return to Ukraine. On the information before me, I consider that the Ukrainian conscription law is, on the face of it, a law of general application that applies to all men in Ukraine between 18 and 60. I note that laws of general application, where they: are implemented or enforced in a selective or discriminatory manner; the motivation for such enforcement is for one or more of the reasons set out in s 5J(1)(a); and the punishment involves serious harm, then enforcement of such laws may be persecutory.
The applicant claimed at hearing that he conscientiously objects to military service on the basis of being a Pacifist and his mistrust of the Ukrainian system. I accept this. I note that the United Nations High Commissioner for Refugees (UNHCR) has defined conscientious objection to military service as referring to ‘an objection to such service which derives from principles and reasons of conscience, including profound convictions, arising from religious, moral, ethical, humanitarian or similar motives’.[23]
[23] UNHCR, Guidelines on International Protection No 10, Claims to Refugee Status related to Military Service within the context of Article 1A (2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees, HCR/GIP/13/10/Corr. 1, 12 November 2014, p 1.
On the country information before me — although I note that the majority of cases before the courts for draft evasion on conscientious objection grounds relate to Jehovah’s witnesses — I do not consider that this means that the Ukrainian government is enforcing the law, at a broad level, in a selective or discriminatory manner against Pacifists, or those with anti-government opinion. Nothing on the country information suggests that Pacifists or those with anti-government opinions receive greater penalties than those who conscientiously object for other reasons. Accordingly, I find that the law of general application as it relates to conscientious objectors does not have a persecutory element as it does not involve systematic or discriminatory conduct (s 5J(4)(c). I therefore do not accept there is a real chance that the applicant would be persecuted on the basis that he would conscientiously object to being conscripted due to his Pacifist beliefs or for reason of his political opinion or imputed political opinion.
With respect to his claims of political or imputed political opinion more broadly, I have accepted above that the applicant wrote blog posts critical of high-ranking military [leaders] and suffered harm as a result. I further accept, in relation to the applicant’s [online] activities in Australia, that he has been critical of the actions of the Ukrainian Army and Ukrainian Government. I consider that the applicant’s [online] activities are a continuation of his blogging activities in Ukraine, and I am satisfied that he has engaged in this conduct other than for the purposes of strengthening his claims to be a refugee. Accordingly, I am not required under s 5J(6) to disregard his conduct in my assessment of his well-founded fear of persecution under the refugee criterion.
I note that the delegate accepted the applicant’s videos as having ‘a number of public views’ but considered that there is ‘no evidence to indicate that they have [been] viewed by the Ukrainian authorities or that the videos are considered as dangerous or harmful to the reputation of the current regime’.[24] I have come to a different view on the information before me, which suggests that the applicant’s [online] channel has some 38 million views. This makes it not implausible that members of the regime — including [Leader A] and [Leader B] — could have become aware of the applicant’s views. Further, I put weight on information above that corroborates [Friend A’s] involvement with the ‘[Channel 1]’ Chanel, and his views of corruption within the Ukrainian army that is consistent with the applicant’s.
[24] Delegate’s decision, p 8.
I have considered country information above that the criminal code has been expanded in respect of ‘collaborationism’, a criminal offence for which now includes ‘insulting the honor and dignity of Ukrainian soldiers’. I accept that the applicant has been critical of the Ukrainian army, certain soldiers, and government in his videos, and if his views are known to the authorities, I consider it gives rise to the possibility that he has engaged in collaborationism.
I am required to consider the totality of the applicant’s circumstances when assessing whether he faces a real chance of being persecuted upon return. In this instance, the applicant would return to Ukraine with a political profile — having been vocal against the army and government via his [online] channel —, as a known blogger/ citizen journalist, and as a ‘draft evader’ having ignored official requests for him to join the army and having not taken any steps in Australia to register with Ukrainian representation.[25] On the applicant’s own evidence, he is known to consular officials having enquired about obtaining a passport for his son.
[25] I note that UNHCR Guidelines refers to draft evasion as ‘when a person does not register for, or does not respond to, a call up or recruitment for compulsory military service. The evasive action may be as a result of the evader fleeing abroad, or may involve, inter alia, returning call up papers to the military authorities … Draft evasion may be for reasons of conscience or for other reasons’. UNHCR also notes that ‘draft evasion or desertion is not synonymous with conscientious objection as other motivations, such as fear of military service or the conditions of such service may be involved’. See UNHCR, Guidelines on International Protection No 10, Claims to Refugee Status related to Military Service within the context of Article 1A (2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees, HCR/GIP/13/10/Corr. 1, 12 November 2014, pp 1-2 (emphasis added).
When I consider these factors cumulatively, I am satisfied there is a real chance the applicant will be identified by the Ukrainian government upon return to Kiev. I consider it not farfetched or remote the possibility that the applicant will be prosecuted as a draft evader returning from abroad and/or subject to prosecution on the basis of collaboration and ‘insulting the honor and dignity of Ukrainian soldiers’. While I accept it is not clear the extent to which amended laws have been enforced in practice, I consider that the applicant’s known anti-government opinion significantly heightens the risk to him to this regard, and I consider that the government may be motivated to treat him differently to others when applying these laws. On the available country information, it is not certain that the applicant would have access to a fair trial in the midst of a war, particularly in cases involving allegations of collaboration. The applicant is therefore at risk of imprisonment which would constitute a threat to his liberty. The alternative is that the applicant would be sent to the front lines of the war against his will, where it is likely he will suffer serious or significant harm. Country information also suggests that the government takes actions against journalists — the applicant having been a citizen journalist — including violence or threats of violence, unjustified arrests, or prosecutions. Such consequences would easily meet the threshold of serious harm.
When I consider these risks cumulatively, I am satisfied of the real chance that the applicant, in his particular circumstances, would face serious harm if he were to return to Kiev for the reasons given above (s 5J(1)(b)). I am satisfied that the essential and significant reason for the persecution is the applicant’s actual or imputed political opinion against the Ukrainian government and its military (s 5J(4)(a). I am satisfied that the persecution is not random and involves systematic and discriminatory conduct against the applicant (s 5J(4)(c)).
Given that the agent of persecution is the state, I find that real chance of harm extends to all areas of the receiving country (s 5J(1)(c)), and that effective protection measures are not available to the applicant (s 5LA)
Having regard to s 5J(3), I do not consider that there are reasonable steps that the applicant can take modify his behaviour so as to avoid a real chance of persecution. Indeed, despite the fact that the applicant has placed his [online] videos under ‘hidden view’, I have found above that their initial existence are likely to have resulted in the applicant being imputed with an anti-government opinion. I note that I cannot require the applicant to take actions to alter his political beliefs or conceal his true political beliefs, by for example, not ever making his channel available again for public viewing.
Having regard to all of the applicant’s circumstances, I am satisfied that the applicant has a well-founded fear of persecution under s 5J(1), and he is a refugee under s 5H. I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having found that the applicant is a refugee, it is not necessary for me to consider the applicant’s claims against the complementary protection criterion.
There is no evidence or indication that the applicant has a right to enter and reside in any other country. Accordingly, I find he has no such right and that he is not excluded from Australia’s protection by s.36(3) of the Act.
The second and third applicants
I am not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, I am satisfied on the information before me that the second and third applicants are the de facto and son of the first applicant and are members of the same family unit as the first applicant for the purposes of s 36(2)(b)(i).[26] As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
[26] I note that while the applicants’ claimed to have been married in 2015, there is no marriage certificate available on either the Tribunal or Departmental file. Nonetheless, I accept that the applicants arrived together in Australia, have resided together and have a child. In these circumstances, I accept that they are, at the very least, in a de facto relationship for the purposes of s 36(2)(b)(i).
DECISION
The Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that
·(i) the first named applicant meets s 36(2)(a) of the Migration Act; and
·(ii) that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Date of hearing: 4 February 2025
ATTACHMENT
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.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
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.
…