2203237 (Refugee)

[2022] AATA 1864

2203237 (Refugee) [2022] AATA 1864 (11 March 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  2203237

COUNTRY OF REFERENCE:                   Ukraine

MEMBER:  Scott Clarey

DATE AND TIME OF

ORAL DECISION AND REASONS:          11 March 2022 at 3:06 pm (VIC time)

DATE OF WRITTEN RECORD:                29 April 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 29 April 2022 at 12:35pm

CATCHWORDS

REFUGEE – protection visa – Ukraine – nationality – race – Ukrainian – imputed political opinion – anti-Russian or pro-Ukrainian opinions – forced conscription – military conflict – targeting of Ukrainian civilians – fear of torture – fear of killing – annexation of Ukrainian lands – state protection – internal relocation – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2

CASES

Chan v MIEA (1989) 169 CLR 225
Chen Shi Hai v MIMA (2000) 201 CLR 293
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Ram v MIEA (1995) 57 FCR 565
Randhawa v MILGEA (1994) 52 FCR 437
SZATV v MIAC (2007) 233 CLR 18
VSAI v MIMIA [2004] FCA 1602

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

In accordance with s 431 of the Migration Act 1958 (Cth), the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant.

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under

   s 65 of the Migration Act 1958 (Cth) (the Act). The delegate refused to grant the visa on the basis that they were not satisfied the applicant was owed protection in Australia. On 3 March 2017, [the applicant] applied to the Tribunal for review of this decision. He provided the Tribunal with a copy of the delegate’s decision record.

1. [The applicant] appeared before the Tribunal via teleconference on 11 March 2022 to give evidence and present arguments. At the hearing the Tribunal made an oral decision and gave an oral statement of decision and reasons. These written reasons are based on the oral reasons provided during the hearing and have been amended for the purposes grammatical correctness and to expand further on the reasons for the decision.

1. I note that [the applicant] was originally a second named applicant on his then wife’s protection visa application (Tribunal case number 1703771). When the Tribunal conducted a hearing for this case, it learned that the marriage had had broken down in 2017 after the protection visa application was lodged, and that he and his former wife have had very little contact since. In light of these changed circumstances related to the make-up of the family unit, and the likelihood that [the applicant] may have independent protection claims of his own based on recent events in his country of nationality (Ukraine, discussed further below), a decision was made to separate [the applicant’s] case from his ex-wife’s case. [The applicant’s] ex-wife was not involved in the Tribunal hearing for this case which was held on 11 March 2022. As such, the following reasons and decision only relate to [the applicant’s] case. This decision does not relate or apply to [the applicant’s] ex-wife or daughter, whose case was heard by the Tribunal separately and independently of [the applicant’s] case).

1. [The applicant] first arrived in Australia with his daughter and his then wife [in] April 2014 on a visitor visa (Subclass 600) which expired [in] July 2014. On 15 May 2014 (as outlined above), his ex-wife lodged the protection visa application that is the subject of this review (with [the applicant] as a second named applicant) and was granted an associated bridging visa.

1. On the basis of [the applicant’s] Ukrainian passport provided to the Department, I accept that he is a citizen of Ukraine and that his identity is as he claims it to be. I accept that Ukraine is [the applicant’s] country of nationality for the purposes of the refugee assessment and receiving country for the purposes of complementary protection assessment.

1. The issue in this case is whether there is a real chance [the applicant] will suffer persecution involving serious harm as a consequence of a Convention reason, should he return to Ukraine, and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Ukraine, there is a real risk that he will suffer significant harm.

7.    For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

RELEVANT LAW

1. 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, the applicant 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.

Refugee criterion

1. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

1. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

1. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

1. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

1. Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

1. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

1. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.

1. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched

possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

1. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

1. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

1. 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 a protection 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 the applicant 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’).

1. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

1. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

Mandatory considerations

1. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. As noted above, [the applicant] was originally a second named applicant on his ex-wife’s protection visa application. Her claims for protection were set out in the application form as follows:

Q42:    I am seeking protection in Australia so that I do not have to go back to:

A:        UKRAINE

Q43:    Why did you leave that country?

I DON’T FEEL SAFE AND I FEAR FOR MY FAMILY’S LIVES ON THE GROUNDS THAT UKRAINE FACES AN ARMED CONFLICT, TERROR AND VIOLENCE ESCALATING INTO A FULL-SCALE CIVIL WAR

I AM AFRAID OF RUSSIAN INVASION WHICH SUPPORTS TERRORISTS ACTING ON THE UKRANIAN TERRITORY, GRABS UKRANIAN LANDS SUPPORTING ILLEGAL REFERENDUMS, DETAINES AND TORTURES UKRANIANS.

I AM AFRAID OF BEING SUBJECTED TO VIOLENT TREATMENT FOR SPEAKING NATIVE (UKRANIAN) LANGUAGE AS UKRANIAN SPEAKERS ARE BELIEVED TO BE AGAINST RUSSIA AND THEY ARE PERSECUTED BY PRO-RUSSIAN EXTREMISTS.

Q44:    Have you experienced harm in that country?

A:I HAVE EXPERIENCED CONSIDERABLE EMOTIONAL HARM AS I LIVED IN UKRAINE UNDER A CONSTANT FEAR AND INTIMIDATION RELATING TO THE TERROR ACTIONS GOING ON IN UKRAINE DURING RECENT HALF A YEAR.

I AM TOTALLY DEMORALISED AND I LOST A FEELING OF SAFETY AND PEACE BEING SCARED OF GOING OUTSIDE MY HOME AS A COURCE OF PROVOCATIONS CAN’T BE PREDICTED.

I WAS AFRAID OF GOING ANYWHERE IN UKRAINE AS I SAW GUNMEN IN A UNIFORM WHICH WERE NEITHER MILITARY MEN (STATE) NOR POLICEMEN OR SAW MILITARY VEHICLES IN MY CITY; AND EXPERIENCED FRUSTRATION GUESSING WHAT LANGAUGE TO SPEAK IN DIFFERENT SITUATIONS IN ORDER TO NOT BE PERSECUTED.

Q45:    What do you fear may happen to you if you go back to that country?

A:I FEAR TO HAVE DIED IN CLASH PROVOKED BY MILITANT EXTREMISTS.

I FEAR THAT MAY FAMILY MEMBERS OR MYSELF CAN TURN THE VICTIMS OF PROVOCED AGRESSION OR BLOODY INCIDENT.

THERE ARE KIDNAPPINGS, TORTURE WHICH I FEAR MAY HAPPEN WITH MY FAMILY.

I FEAR THAT UKRAINE MAY BE FURTHER DIVIDED AND I WILL NOT BABLE TO RETURN TO THE SAME COUNTRY.

Q46:    Who do you think may harm/mistreat you if you go back?

A:I MAY BE HARMED OR MISTREAT BY THE MILITANT EXTREMISTS OR PRO-RUSSIAN PROTESTERS OR OTHERS WHO ORCHESTRATE OR TAKE PART IN ARMED CONFLICTS, STREET WARS, CLASHES IN DISORDERS IN UKRAINE.

Q47:    Why do you think this will happen to you if you go back?

A:THIS WILL HAPPEN BECAUSE AN ARMED CONFLICT IN UKRAINE IS ESCALATING DRAMATICALLY INTO A FULL-SALE CIVIL WAR AND UKRAINE PEOPLE ARE BEING KILLED, KIDNAPPED AND TERRORISED EVERYDAY;

BECAUSE RUSSIAN AGRESSION AND INVASION DETRIORATES AND MORE TERRITORY IS GRABBED; PRO-RUSSIAN GUNMEN CONTROL MORE AND MORE TOWNS IN UKRAINE;

BECAUSE THE NUMBER OF UKRAINE VICTIMS IN PROVOCATIONS INCREASES.

Q48:Do you think the authorities of that country can and will protect you if you go back?

A:I DON’T THINK UKRANIAN AUTHORITIES CAN OR WILL PROTECT ME FOR THE REASON THAT THEY ARE UNABLE TO PROTECT UKRANIAN BORDER AGAINST VIOLATION OF RUSSIAN GUNMEN AND MILITANTS SPREADING THEIR INFLUIENCE THROUGH UKRAINE AND SUPPLYING VEHICLES AND GUNS FOR TERROR ACTIONS IN UKRAINE;

THE GOVERNMENT HAVEN’T UNDERTAKEN EFFECTIVE STEPS AGAINST ANNEXATIONS OF UKRANIAN LANS TO RUSSIA AND WAS IGNORANT TO UKRANIAN RESIDENTS DETAINED IN CRIMEA BY THE RUSSIAN FORCES;

THE AUTHORITIES HAVEN’T PROTECTED UKRANIAN RESIDENTS FROM MILITANTS AND SNIPERS KILLING UNARMED CIVILIANS IN KIEV IN FEBRUARY THUS MORE THAN 100 PEOPLE WERE KILLED; AND THE UKRANIAN POLICE ACTED AGAINST PEOPLE THEN. THESE CRIMES ARE STILL NOT INVESTIGATED BY THE AUTHORITIES.

NOW THE UKRAINE’S POLICE FORCES ARE IGNORANT AND PASSIVE, THEY STAND BY CLASHES AND OFTEN PROVIDE COVER FOR PRO- RUSSIAN PROTESTORS SHOOTING AT AND KILLING PRO-UKRANIANS, THAT TOOK PLACE IN ODESSA ON THE 2ND OF MAY 2014.

THUS THE UKRANE’S AUTHORITIES CANNOT PROTECT ME, OR OTHER CITISENS OR THE TERRITORY ; THEY ARE UNABLE TO ENSURE SECURITY IN THE COUNTRY.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. I note that the Tribunal hearing took place on 11 March 2022, approximately two weeks after the start of Russia’s full-scale military invasion of Ukraine.

Evidence from the Tribunal hearing on 11 March 2022

1. At the hearing, [the applicant] stated that he was born in Chernihiv, Ukraine on [date]. He grew up in Chernihiv and attended school there. He said his mother was still living in Chernihiv and his father died two years earlier. He said he has a [sibling] that lives in [another country]. [The applicant] stated that he finished high school in Chernihiv, but did not complete any tertiary education. He finished two years of an apprenticeship as [an occupation 1] and went on to study [the related subjects]. [The applicant] stated that he is a Christian of the Russian Orthodox denomination and that he is ethnically Ukrainian. [The applicant] stated that he owned a business in Ukraine selling [products] prior to coming to Australia. He said that since arriving in Australia in April 2014 he has done several jobs including in [specified] industries. [The applicant] stated that his marriage had broken down in early 2017 and he had formally divorced his ex-wife in July 2017.

1. I asked [the applicant] about the reasons he feared returning to Ukraine in the foreseeable future. He stated that there was a full-scale war currently being waged in Ukraine. He said his birth town is currently surrounded by Russian military forces and is being bombarded by heavy munitions 24 hours a day. He said that Kyiv, where he had lived prior to coming to Australia was suffering a similar fate. He said that because various cities in Ukraine were surrounded by Russian forces it was very difficult to exit them. He said that military age men such as himself were not being allowed to exit the country, and he believed that he would be conscripted into the army to fight the Russians if he was to return home. [The applicant] voiced general fears of being killed or wounded by indiscriminate Russian attacks on Ukrainian cities. [The applicant] stated an additional fear he held, [relating to his family background]. He said that it was widely known that various Russian special forces were actively [seeking persons in his family situation]. [The applicant] stated that he feared [details deleted].

Findings and reasons

1. I accept that [the applicant] was born in Ukraine and has lived most of his life there. I accept that he is ethnically Ukrainian, and is of the Ukrainian nationality. I accept that [the applicant], if he were to return to Ukraine, would likely return to his hometown of Chernihiv, where his mother still lives, or the capital Kyiv where he previously lived.

Issues related to the current conflict in Ukraine

1. As noted above, in the week following the Tribunal hearing on 16 February 2022, a major military conflict escalated into a war between Ukraine and Russia. I have therefore considered how the situation has impacted on [the applicant]’s, taking into account his particular circumstances. In considering this question, I have had regard to various sources of country information concerning the highly fluid and rapidly deteriorating security situation in Ukraine, including information relating to the recent and ongoing Russian military invasion of the country. This includes information from DFAT’s country information report on Ukraine, information from the US Department of State, Amnesty International, the UNOHCR, the UK Home Office, the UNHCR and various other UN agencies. I have had regard to this country information to determine if [the applicant] may face persecution involving serious harm from particular Russian military forces, due to her profile as a man of Ukrainian nationality (of conscription age) who may have actual or imputed anti-Russian or pro-Ukrainian political views.

1. I note that various sources of recent country information suggest that the security situation in Ukraine is rapidly deteriorating as Russian forces advance on, and begin to take control of, several Ukrainian cities including Kyiv, Kharkiv and Mariupol. According to a very recent statement made by Filippo Grandi, United Nations High Commissioner for Refugees, there is a mass exodus of Ukrainians fleeing the violence in Ukraine into neighbouring countries. According to various reports, including a statement made on 28 February 2022 by Martin Griffiths, United Nations Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, there have been heavy (and increasing) civilian casualties in the early stages of the conflict, in addition to the destruction of various buildings and infrastructure. Reports vary, but some suggest that the civilian death toll at the time of this decision has surpassed 1000.1

1. Various sources of country information report on the current crisis in Ukraine that was triggered by the Russian military invasion of Ukrainian territory that began on 24 February 2022. In his statement to the UN on 1 March 20222, Filippo Grandi, United Nations High Commissioner for Refugees, described the rapidly evolving situation as follows:

…But we know that we are not even scratching the surface to meet the needs of Ukrainians, including an unknown but surely very substantial number who have been forced to flee their homes over the past days. The situation is moving so quickly, and the levels of risk are so high by now, that it is impossible for humanitarians to distribute systematically the aid, the help that Ukrainians desperately need.

…

As we speak, there are 520,000 refugees from Ukraine in neighboring countries. This figure has been rising exponentially, hour after hour, literally, since Thursday. I have worked in refugee crises for almost 40 years and I have rarely seen such an incredibly fast-rising exodus of people – the largest, surely, within Europe, since the Balkan wars. Over 280,000 have fled to Poland. Another 94,000 to Hungary, nearly 40,000 are currently in Moldova; 34,000 in Romania, 30,000 in Slovakia; tens of thousands in other European countries. We are also aware that a sizeable number have gone to the Russian Federation.

…

I regret to say that unless there is…an immediate halt to conflict, Ukrainians will simply continue to flee. We are currently planning – repeat: planning – for up to four million refugees in the coming days and weeks.

…

I speak to you as a sixth night of anguish falls over Europe, struck once again by war, and as millions of innocent Ukrainian civilians huddle in bunkers, scramble to board overcrowded trains, and think with trepidation about the future of their children.

1 ‘More than 2,000 Ukrainian civilians killed during Russian invasion, as shelling hits residential areas across the country’, 3 March 2022, ABC News Australia. Accessed at: invasion/100877338

2 Filippo Grandi, United Nations High Commissioner for Refugees, Statement on Ukraine to the United Nations Security Council, 1 March 2022. Accessed at: commissioner-s-statement-to-the-united-nations-security-council-on-ukraine/

Let me say – as an old humanitarian worker myself – that the responsibility that you have – to ensure that eventually peace and security for all prevails over power struggles and narrow national interests – has never been as urgent, and as indispensable a task, as it is tonight.

1. In his statement to the UN on 28 February 2022,3 Martin Griffiths, the United Nations Under- Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, made the following comments on the situation in Ukraine:

As we all feared, civilians are already paying the price. The scale of civilian casualties and damage to civilian infrastructure, even in these very early days, is alarming.

Humanitarian needs are growing at an alarming pace in the hardest-hit areas.

Civilian children, women and men have been injured and killed. Homes have been damaged and sometimes destroyed.

As of yesterday, the Office of the UN High Commissioner for Human Rights reported at least 406 civilian casualties, including at least 102 dead in these few days. The real figure could be considerably higher, as many reported casualties have yet to be confirmed.

We know, and we will hear, of course, much more from Filippo, that at least 160,000 people have been internally displaced across Ukraine, fleeing for safety. We know that figure is likely much higher – potentially a significant proportion of the entire population. And, of course, as Filippo will tell you, we believe more than half a million refugees have been forced to choose to flee their country in search of safety.

So, families are separated.

The elderly and people with disabilities find themselves trapped and unable to flee, not even able to get that small comfort.

The picture is grim – and could get worse still.

Aerial attacks and fighting in urban areas are damaging critical civilian facilities and disrupting essential services such as health, electricity, water and sanitation, which effectively leaves civilians without the basics for day-to-day life.

Bridges and roads have been destroyed, cutting off people’s access to critical supplies and services.

The use of explosive weapons in urban areas carries a high risk of indiscriminate impact. This is of particular concern in places like Kyiv and Kharkiv.

Civilians will undeservedly suffer the most from these attacks on densely populated urban centres, it follows.

All parties must respect international humanitarian law; take constant care to spare all civilians and civilian objects from harm throughout their military operations.

And parties should also, of course, avoid the use of wide-area explosive weapons in populated areas.

And the longer this goes on, the greater the cost will be for civilians.

3 Martin Griffiths, United Nations Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, Statement to the Security Council on Ukraine, 28 February 2022. Accessed at: coordinator-martin

Children will miss school and face a greater risk of physical harm, displacement and unimaginably severe emotional distress.

Women, so often disproportionately affected by conflict, as so often discussed in this chamber, will be at even greater risk of gender-based violence. Women and children may be exposed to other forms of exploitation. The economy of Ukraine could implode, which will further exacerbate humanitarian needs and create a ripple effect that travels far beyond Ukraine's borders.

Already the upheavals in recent days are deepening a pre-existing humanitarian crisis.

Eight gruelling years of the conflict in eastern Ukraine had already left 3 million people in need of humanitarian assistance on both sides of the contact line in the Donbas region.

And it goes without saying that humanitarian needs are now much greater, including the large-scale displacement, to which I have already referred across and beyond the whole country and not only in one region thereof.

…

The lives of millions of civilians are simply at stake. We know from other recent conflicts how brutal, deadly and protracted urban warfare can be.

We know how countries’ economies can be devasted. Infrastructure investment and development gains set back an entire generation. And we know enough to know that we do not yet know what will be the consequences of the events that we observe today.

These things should never happen in any country anywhere. Every effort, of course, must be made to de-escalate the conflict.

The hundreds of thousands of Ukrainians who have taken the decision to leave their homes to seek safety elsewhere in their country or beyond, and those, even more of them, who remain at peril for the loss of basic services – of pensions, of support, of the services their children need, of the safety of the day that may come and may not.

1. I note other sources of country information, including various very recent news reports suggest that scores of people internally displaced by the conflict are seeking shelter in neighbouring countries. According to the UNHCR, as of 6 March 2022, the number of Ukrainians fleeing Ukraine into neighbouring countries has risen exponentially since the conflict began, with more than 2 million people having fled the country since the conflict began.4 According to various credible reports, Poland alone has received over 900,000 people fleeing Ukraine since 24 February 2022. I note that the United Nations High Commissioner for Refugees has stated that this represents the most rapid refugee crisis in Europe since World War II.5

1. I note that there are also various credible reports of mounting civilian casualties within Ukraine.6 For example, a statement from the Ukrainian Deputy Prime Minister on 6 March 2022 stated that Russia is deliberately targeting civilian infrastructure in Ukraine, including

4 BBC News Online, ‘Ukraine: Civilians evacuated from two areas under attack’, 8 March 2022. Accessed at: BBC News Online, ‘Fastest-growing refugee crisis in Europe since WW2, says UN’, 7 March 2022. Accessed at: Daniel Boffey and Peter Beaumont, ‘Macron urges Putin to allow Ukraine’s besieged cities to be evacuated’, The Guardian, 7 March 2022. Accessed at: ceasefire-russia-ukraine

hospitals, apartment buildings and schools.7 A planned mass evacuation of Ukrainian civilians from the city of Mariupol had to be called off because the limited and temporary ceasefire that was to enable the operation failed to hold.8

1. There is growing evidence that the Russian military offensive in multiple Ukrainian cities are becoming increasingly indiscriminate. There are credible reports that Ukrainian civilians are being deliberately targeted in Russian munition attacks. For example, on 7 March US Secretary of State Antony Blinken stated ‘…we've seen very credible reports of deliberate attacks on civilians, which would constitute a war crime. We've seen very credible reports about the use of certain weapons,’.9 I note that an official update published on 6 March 2022 by the United Kingdom Ministry of Defence stated:10

The scale and strength of Ukrainian resistance continues to surprise Russia. It has responded by targeting populated areas in multiple locations, including Kharkiv, Chernihiv and Maruipol. This is likely to represent an effort to break Ukrainian morale. Russia has previously used similar tactics in Chechnya in 1999 and Syria in 2016, employing both air and ground-based munitions.

1. In the context of this major military conflict within Ukraine that has been characterised by the destruction of civilian, government and military infrastructure and resulted in large and growing numbers of civilian casualties, and a mass exodus of Ukrainian citizens from Ukraine into neighbouring countries, I consider that it is not far-fetched that [the applicant] may be at risk of harm from Russian military forces who are now in Ukraine and/or who are conducting major military operation there. I note that the country information before me suggests that the fact that [the applicant] is Ukrainian, and may be considered to hold anti- Russian or pro-Ukrainian political opinions (either real or imputed), in addition to [his specific family background], may make him a specific target of Russian forces who are part of the military incursion by Russia into Ukraine. More broadly, country information indicates that the current security situation in Ukraine is highly unstable due to the ongoing Russian military incursion and campaign there, and that it is likely to worsen in coming days and weeks.

1. In this context, and given I accept that [the applicant] is ethnically Ukrainian and previously lived in the Ukrainian capital Kyiv, I accept that should he return to his home town of Chernihiv or the capital Kyiv, now or in the foreseeable future, there is a real chance he will face serious harm from Russian military forces, as required by s 91R(1)(b) of the Act, in that it involves threat to her life or liberty or significant physical harassment or ill-treatment. I consider that [the applicant’s] Ukrainian ethnicity/nationality, and/or his anti-Russian or pro- Ukrainian political opinion (actual or imputed) is the essential and significant reason for the persecution he fears, as required by s 91R(1)(a), and that the persecution that he fears involves systematic and discriminatory conduct, as required by s 91R(1)(c), in that it is

7 BBC News Online, ‘Ukraine: Russia has attacked schools and hospitals, says deputy PM’, 7 March 2022. Accessed at: ABC News Australia, ‘Second Ukraine ceasefire fails after Russian shelling halts evacuation of Mariupol, rockets destroy civilian airport in Vinnytsia’, 7 March 2022. Accessed at: time/100887244

9 Byron Tau, ‘Blinken Says Credible Reports of Russian Attacks on Civilians Could Show War Crimes’, The Wall Street Journal, 7 March 2022. Accessed at: reports-of-russian-attacks-on-civilians-could-show-war-crimes-IWYPjwa8U7PNBbNuKsrj

10 Katy Clifton, ‘UK intelligence says Russia targeting populated areas but Ukraine’s resistance ‘slowing Putin’s advance’’, The Independent, 6 March 2022. Accessed at: b2029562.html

deliberate or intentional and involves selective harassment for reasons of his ethnicity, nationality and/or political opinion (actual or imputed).

1. In considering whether [the applicant] meets s 91R(1)(c) of the Act, I am cognisant that the persecution must involve systematic and discriminatory conduct. The issue of systematic conducted involved with the persecution claimed was considered in Chan v MIEA11 in reference to the convention. McHugh J stated:

   The notion of persecution involves selective harassment ... [It is not] a necessary element of “persecution” that the individual should be the victim of a series of acts. A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, she is “being persecuted” for the purposes of the Convention.

1. In VSAI v MIMIA12 Crennan J, when considering s 91R(1)(c) of the Act, stated that where conduct is shown to be serious harm when assessing if it is ‘systematic conduct’, it would be wrong to require the applicant to show anything more than the act is deliberate or pre- meditated. It would not be necessary to show that the conduct is widespread or frequently recurring. Nevertheless, the frequency of an act may be relevant in determining whether conduct amounts to ‘serious harm’ if the isolated incidents can be described as involving minimal or low-level harm.13

1. In addition, pursuant to s 91R(1)(c) of the Act, it is generally considered that the discriminatory element of persecution involves an element of motivation on the part of the persecutor. In Ram v MIEA14, Burchett J said:

   Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

1. However, it has been held that while persecution will necessarily involve an element of motivation on the part of the persecutor, and will often be motivated by enmity,15 it is wrong to require an attitude of ‘enmity’ or ‘malignity’ before persecution can be made out.16

1. I am satisfied, based on these findings, that [the applicant] faces a well-founded fear of persecution based on his ethnicity, nationality and/or his political opinion (actual or imputed) as per s 91S of the Act.

11 Chan v MIEA (1989) 169 CLR 225 at [429–430]. His Honour supported this proposition by reference to Periannan Murugasu v MIEA (1987) 217 ALR 17, where Wilcox J had stated at [23] ‘[t]he word “persecuted” suggests a course of systematic conduct aimed at an individual or at a group of people. It is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances.

12 VSAI v MIMIA [2004] FCA 1602 at [53].

13 Ibid.

14 Ram v MIEA (1995) 57 FCR 565 at [568].

15 MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [72].

16 Chen Shi Hai v MIMA (2000) 201 CLR 293 at [33]–[35], [60]–[61]. While the words ‘enmity’ and ‘malignity’, or ‘hostility’, appear in some dictionary definitions of persecution (see for example the Oxford English Dictionary (2nd edition, 1989, vol 11), as cited by Gummow J in Applicant A v MIEA (1997) 190 CLR 225 at [284]; also the Australian Concise Oxford Dictionary (Oxford University Press, 3rd edition, 1997), and the New Oxford Dictionary of English (Clarendon Press: Oxford, 1998), these notions have not been carried forward into some of the modern dictionaries (for example the Macquarie Dictionary (Macquarie Library, Revised 3rd edition, 2001). Indeed, Kirby J, although acknowledging his own reliance on dictionaries in Chen Shi Hai v MIMA (2000) 201 CLR 293 at [312], has cautioned against using dictionary definitions of the word ‘persecuted’ in the Convention definition: see MIMA v Khawar (2002) 210 CLR 1 at [108].

1. I am satisfied that cumulatively there is a real chance that [the applicant] is at risk of serious harm if he returns to Ukraine now or in the reasonably foreseeable future and there is a real chance that persecution will occur. In reaching this conclusion I have had regard to the (non- exhaustive) examples of serious harm set out in s 91R(2) of the Act.

Relocation

1. In SZATV v MIAC (2007) 233 CLR 18 the High Court endorsed the proposition that a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable to expect him or her to do so. The Court further held at [24] that what is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country. As Kirby J stated at [97], the supposed possibility of relocation will not detract from a ‘well-founded fear of persecution’ where any such relocation would, in all the circumstances, be unreasonable.

1. I am satisfied that [the applicant], as a citizen of Ukraine, has the right to relocate within Ukraine. I note that the range of factors which may be relevant in any particular case to the question of whether relocation is reasonably available will be largely determined by the case sought to be made out by an applicant.17

1. I have considered if [the applicant] faces a real chance of persecution in all areas of Ukraine as required by s 5J(1)(c) of the Act. As noted, [the applicant] lived in Kyiv prior to coming to Australia in 2014. I have therefore considered whether the real chance of serious harm he faces relates to all areas of Ukraine.

1. I note that I have found that [the applicant] would face a real chance of serious harm from Russian military forces who are currently waging a widespread military campaign across Ukraine. I note the country information concerning the current crisis that has been triggered by the recent Russian military incursion into Ukraine, which includes descriptions of millions of internally displaced persons and a mass exodus of Ukrainian citizens fleeing the conflict into neighbouring countries. While in ordinary circumstances the relocation to another part of Ukraine might be a reasonable option, I do not consider it to be reasonable or practical in the context of the current military conflict that has engulfed the country.

1. For the reasons given above, and given the current and ongoing military conflict within Ukraine, I am satisfied the real chance of persecution in [the applicant’s] case relates to all areas of Ukraine.

The availability of effective protection measures

1. I note that harm from non-State agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were

17 Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at [443]; per Whitlam J at [453].

entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.

1. Based on available country information before the Tribunal, I am not satisfied that the level of protection available to [the applicant] from the Ukrainian authorities, in the context of the current widespread military conflict within Ukraine involving Russian military forces, meets the level of protection which citizens are entitled to expect as discussed by the High Court in MIMA v Respondents S152/2003 (2004) 222 CLR 1. Based on the available country information, I find that [the applicant] would not be able to avail himself of effective state protection against the harm he faces.

Conclusion

1. Considering [the applicant’s] particular circumstances cumulatively, and in the context of the relevant country information, I find that there is a real chance that he will suffer persecution involving serious harm from Russian military forces, if he returns to her home in Kyiv, Ukraine. I am satisfied that the real chance of serious harm [the applicant] will face if he returns to her home area in Kyiv will be a result of systematic and discriminatory conduct in that it will be done to him selectively and intentionally. I find that the essential and significant reason for the serious harm [the applicant] faces relates to his ethnicity, nationality and/or anti-Russian or pro-Ukrainian political opinion (actual or imputed). I am not satisfied that effective protection measures are available to [the applicant]. I am satisfied the real chance of persecution in [the applicant’] case relates to all areas of Ukraine.

1. For the reasons given above, I am satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s 36(2)(a).

DECISION

1. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Scott Clarey Member