AO (Ukraine) [2024] NZIPT 802342
Ethnic Russian Citizens of Ukraine
- This is a brief paper that summarises an important appeal involving a refugee claimant from Ukraine. In a detailed decision, the Member of the Tribunal (BL Burson) discusses the following:
- Stale refugee cases brought many years after departure from the country of origin.
- Finding the correct country of origin in order to process the refugee claim (in this case an ethnic Russian born in Crimea, formerly part of Ukraine, now claimed by Russia).
- Issues relating to whether “conscientious objection” to further military service, can be claimed as persecution.
- Whether an ethnic Russian returned to the Ukraine faces persecution.
- AO was a ship jumper and had been in New Zealand for more than 20 years. He had completed his military service in the USSR. He was born in Sevastopol, Crimea, in the mid-1970s, and held a Ukrainian passport.
- In order to perfect his Russian citizenship, the appellant would be required to renew his Ukrainian passport. That required returning to Ukraine. Accordingly, it could not be said that his acquisition of Russian citizenship could be obtained and that the refugee claim could then be based on a notional refoulement to Russia (see AL (Myanmar) [2018] NZIPT 801255 and AC (Venezuela) [2019] NZIPT 801436-439). Accordingly, although not yet a Russian national, it could not be said that his acquisition would be available as a “mere formality.” In New Zealand refugee law the country of reference can include a country that will recognise the appellant’s nationality. The IPT caselaw, however, requires the completion steps to be straightforward and a “mere formality.”
- Even though the appellant desired to be a citizen of the Russian Federation and his family members in Crimea have all taken up Russian passports, his registration was at an address in Sevastopol as at the date of 18 March 2014 (when Russia annexed Crimea). The problem was that the appellant had no existing certificate of identity or existing passport. Once he is issued with a Ukrainian passport, he could in theory use that passport to make his application for Russian citizenship. The Tribunal however concluded that it was not satisfied that the acquisition of Russian citizenship was a “mere formality.” Accordingly, the Tribunal proceeded on the basis that the question as to whether the appellant faced persecution related only to Ukraine (as an ethnic Russian returning from abroad after 20 years).
20 years out of the country
- There is a lengthy discussion of the time element of international protection assessments. The longer the person has been out of the country, the less likely he would face persecution for events leading to his or her flight. However, the question remains in New Zealand whether there is a real as opposed to a remote or speculative chance of the claimant being persecuted at the present time, and if he is in danger of being arbitrarily deprived of life or subjected to cruel treatment (Tribunal case law cited at [52]). The Tribunal has looked at climate change-related cases in consideration of the relationship between “time” and “international protection” needs. There are however also cases that relate to intimate partner violence, see OF (India) [2023] NZIPT 802113 (at AO [54]).
- The passage of time is however far from always “linear” citing a decision of the RSAA (1 March 1994) noting that the Convention is concerned with prospective risk of persecution. This does not always require that an individual should already been victimised. Even if a flight occurred 20 years ago, the case must re-look at the current prospective risk.
- A further point is that a risk of protection-relevant serious harm does not need to be “imminent” upon return (pointing out that the concept of imminent risk in AF (Kiribati) is mistaken (a climate-change case).
- The Tribunal went on however to look at the particular issue at stake here, which was how time affects status determination in situations of armed conflict. The situation includes the following two issues:
- Given the sophisticated war underway, even non-state parties to a conflict will be increasingly able to force physical control well beyond the territory they control (ie, there will be a risk of harm anywhere within Ukraine).
- The invasion by and conduct of Russian armed forces on Ukrainian territory engender suspicion, discrimination and potential violence against such persons (ethnic Russians who do not speak Ukrainian) living elsewhere in Ukraine, such as the appellant (compare the internment of Japanese American citizens in the wake of the 7 December 1941 Pearl Harbour attack etc). See also AM (Ukraine) discrimination against Ukrainian nationals of Russian ethnicity in the wake of the 2022 invasion.
Conscientious objection to military service
- Military service is normally seen as a citizen’s obligation (and is not persecution). The Tribunal held that the appellant’s objection to performing military service in Ukraine was not a basis for a finding that he would be persecuted. A case was cited from the UK however confirming that if a person is imprisoned (for refusing to join the military) there was a real risk that the conditions of detention and imprisonment in the Ukraine would breach Article 3 of the European Convention on Human Rights (analogous to article 7 of the ICCPR). The Tribunal also found that there was no “safety corridor” by which the appellant could return to Crimea, (and then become a Russian citizen).
- The Tribunal however found that the risk of the appellant’s conscription was reduced by his personal background and characteristics (as a pro-Russian native from Sevastopol). He cannot speak Ukrainian and would be unable to understand or execute training or battlefield commands. The risk of him being “conscripted” was below the real chance threshold. Even if incorrect however, the Tribunal was not satisfied that the appellant could be properly characterised as a “conscientious objector” in order to engage Article 18 of the ICCPR (see discussion DS (Iran) at [245](c)).
Conclusion
- On return to Ukraine, the appellant would be an internally displaced person. He would struggle to find employment and to establish himself. As the conflict is likely to continue for some time, the appellant was regarded to be at risk. His risk arises due to the overlapping nexus of his Russian ethnicity (race) and his Ukrainian nationality. There was no internal protection alternative. The appellant was held to be a refugee (and complementary protection did not therefore arise).
24 July 2025
D J Ryken
Ryken and Associates