Postscript
36 I have found this case to be profoundly disturbing and am troubled by the decision of the Tribunal and in particular its conclusion that it was not satisfied that there is a real chance that the appellant would suffer serious harm amounting to persecution in future because of his Jewish religion should he return to Ukraine.
37 This concern was not an issue raised in the Court below and I am, therefore, unable to consider it as a ground of appeal.
38 As I observed above, the Tribunal accepted that the appellant was seriously injured following violent assaults on him by neo-Nazi groups in August 2006 and March 2007 and that the motivation for both assaults was hatred, on the part of the assailants, of his Jewish religion. Importantly too, the Tribunal accepted that, at the time of the assaults, the appellant was readily identifiable as a Jew and that he had been a regular worshipper at synagogue.
39 This case is to be distinguished on the facts from those found in the High Court judgment in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1. There, although the first respondent, as in this case, suffered two assaults, they were individual attacks by different perpetrators occasioned by violent adverse reaction to his proselytising as an adherent of the Jehovah Witness movement. In this case the assaults were on each occasion by members of a generic group namely neo-Nazis. Moreover, the appellant had taken no action to warrant or explain these assaults other than observably being a member of the Jewish faith. It was, viewed in that context, orchestrated violence by neo-Nazis, not merely, as in Respondents S152/2003 "random and uncoordinated".
40 The Tribunal member, however, when considering the position of this appellant and his asserted fear of future harm amounting to persecution, beyond expressing sympathy for the violence suffered by him and his serious and continuing aftermath, focussed on non-governmental statistics from various sources as to the level of attacks on Jews in Ukraine. From these the member concluded that attacks on Jews in Ukraine, such as that suffered by the appellant were uncommon and were merely "isolated or spasmodic".
41 Accordingly, the Tribunal considered the position generally of Jews in Ukraine who had suffered attacks rather than the position of the appellant, his fear and whether or not it was well-founded. Undoubtedly objective evidence of the extent of assaults is relevant. However, there was no evidence and no consideration given to whether the incidence of assaults is more likely towards Jews who, observably by their headdress and regular attendance at synagogue, are more vulnerable. Not all Jews, for example, the appellant's son, profess their Jewish faith openly to the extent that the appellant has done.
42 I do not regard as reasonable the Tribunal's characterisation of the fact that the appellant had, in the past, as had other Jews there, stoically become used to verbal abuse and insults since he was at school because he was a Jew as "a nuisance even if at times a severe one". Such "nuisance" included, in the case of the appellant, having large red swastika signs daubed, on three occasions, on the front door of his home as well as being the butt of verbal anti-semitic slurs.
43 In any event, as the appellant told the Tribunal, a fact borne out by independent country information, the level of anti-semitism in Ukraine has risen markedly in recent years with a particularly high level of it being evident amongst young Ukrainians aged 18-20 years. The appellant said that until 2006 he had tolerated the anti-semitism directed toward him but that by 2006 the position became unbearable.
44 In the same vein it seems to me to be of little relevance to conclude, as the Tribunal did at [67], on the question of the appellant's fear of persecution in the future, that he had been well educated and had, in the past, pursued a successful career as a medical specialist.
45 The independent country information arguably supports a conclusion that although, on occasions, arrests are made where anti-semitic attacks have been made that these are often disguised as "hooliganism" rather than "hate crimes". The official statistics for anti-semitic criminal conduct are, for this reason, distorted.
46 The Tribunal member, at [73], said:
… While it may be, as the Applicant claims, that the authorities are generally reluctant to admit that the problem of anti-Semitism exists to any significant degree in the Ukraine, I am not satisfied that there is anything in the independent country information to suggest that anti-Semitism is officially condoned or that efforts are not being made to prevent its expression.
47 There was evidence before the Tribunal, but not referred to in its reasons, in respect to this conclusion, which was to the contrary and which constitutes more than mere suggestion. The European Jewish Congress News of 12 February 2007 reported:
In addition, Ukraine media sources "frequently ignore anti-Semitic attacks, in contrast to the Russian media, which does a better job of reporting both anti-Semitic and racist violence." This is particularly due to the fact that the problem of neo-Nazi violence Russia, primarily targeted against Muslims, has reached such a massive scale that the government and media can no longer ignore it.
The report also mentions that local authorities in Ukraine have at times covered up hate crimes by classifying them as "hooliganism." Despite lofty promises by the Ukrainian federal government to combat anti-Semitism, it seems there is much work to be made on the local, regional level. The experiences in the wake of anti-Semitic attacks, of many small Jewish communities scattered around the country is testament to this contradiction.
48 There was detailed country information of what, it seems to me, were frequent assaults on Jews in the Ukraine associated with apparent indifference to these by the police and even some political leaders. The following are some examples.
European Jewish Congress News
February 15, 2007
53 year old Georgy Dobryansky burst into the Central Brodsky Synagogue in downtown Kiev in February last year as Shabbat services were under way, demanding that he be brought to see the rabbi. According to witnesses on the scene, he was brandishing a large knife and shouting that "Jews should be killed." Security guards then tackled the would-be attacked bringing him to police.
Earlier this week he allegedly issued a violent threat against "Evreysky Obozrevatel", a Ukrainian Jewish newspaper, on the phone.
At his sentencing, Dobryansky was not charged with a hate crime.
Chronicle of Antisemitism in Ukraine & Russia: 2005-2006
(February 2, 2007)
(For release January 2007)
Antisemitism remained a serious problem in Ukraine in 2005-2006. Both countries have yet to overcome the historical legacy of Tsarist and Soviet mistreatment, violence, and discrimination against Jews. Both confront similar problems of corrupt and dysfunctional criminal justice systems that are ill-equipped to deal with relatively complicated legal issues like hate crimes and hate speech. Antisemitic attitudes among the general population are widespread, and several politicians in both countries have been elected and re-elected while openly espousing antisemitic beliefs.
1. The neo-Nazi movement has expanded rapidly in both countries.
2. The frequency of violent attacks on Jews is higher in Ukraine than in Russia.
3. Ukrainian media frequently ignore antisemitic attacks.
4. In both countries, there is an unfortunate tendency by some local authorities and law enforcement agencies to cover up hate crimes by lumping them under the vague rubric of "hooliganism."
5. …
This report details only the most serious antisemitic incidents reported in 2005-2006 in Ukraine and Russia.
UKRAINE
1. On January 7, 2005, ten Orthodox Jewish youths (all around the age of 13) and three adults were assaulted by neo-Nazis as they made their way from a synagogue to their rabbi's home in Simferopol, Ukraine. .. the Jews were ambushed by around 20 skinheads who appeared to be 5-10 years older than their victims. Yelling "Here are the Jews!" the neo-Nazis threw the children and the rabbi's wife to the ground and started to beat them. Two 13-year-old girls were hospitalized, one with a broken skull, and another with severe damage to her face which necessitated an operation.
Just as dispiriting as the attack was the police's reaction to it. Mr. Gendin criticized local police for trying to hush the matter up by declaring it ordinary "hooliganism" rather than an antisemitic hate crime.
(2) … in the early evening of January 20, 2005 two young men approached a Jewish youth leader on a downtown Simferopol street and called him a "kike face."
(3) A synagogue in the western Ukrainian city of lvano-Frankovsk that was vandalized on multiple occasions last year was once again targeted by antisemites in late January 2005. The attack resulted in "significant damage". Police treated the incident as "minor hooliganism" rather than employing the rarely used section on the criminal code for hate crimes.
(4) According to a February 7, 2005 report antisemitic incidents continue to plague Jews in Donetsk. … antisemitic incidents are becoming more frequent in the city. "Overthe past year, there have been more incidents than there were in the preceding ten years,""More and more, youths are falling under the ideology of Nazism. If they see a Jew on the street, some of them yell out 'Heil Hitler!"' … there are at least five extremist youth gangs operating in the city, some of them openly antisemitic, and that the city has been inundated by "a sea of antisemitic literature" mostly produced in Russia.
(5) In March 2005, a project manager for the Hebrew Immigrant Aid Society (HIAS)was attacked in Kiev by skinheads and suffered a broken nose.
(6) On March 17 2005 the Ukrainian Jewish website 'Jewish News' reported that a Jewish youth was attacked by skinheads near Kiev's Brodsky synagogue on March 1. The youth, a university student named Aleksandr Koshman, was walking by the synagogue that evening with a friend when he noticed a group of around 15 skinheads wearing heavy boots and clothes reading "White Power." He started walking quickly towards his car, but was hit behind the head. When he turned around, he was called a "kike" and thrown to the ground, where the neo-Nazis started to kick him. … a large swastika was painted on the Brodsky synagogue.
(7) In May 2005, two young men assaulted Rabbi ShlomoWilhelm, his son, and two other members of the Jewish community on Sunday evening in downtown Zhitomir as the men were heading home on the second night of Passover.
(8) In August 2005, Mordekhay Molozhenov, an Israeli yeshiva student, was put into a coma after being beaten and stabbed by neo-Nazis in Kiev. Another yeshiva student suffered minor injuries.
Later in August 2005, showing the continuing problem of Ukrainian police officials denying that neo-Nazi violence is a serious problem in their country, the deputy minister of internal affairs publicly asserted that the attack on Mr. Molozhenov and two other violent assaults on Jews in the preceding months were not motivated by antisemitism,
The head of the Jewish Agency (said) "A sharp rise in antisemitic acts has taken place in Ukraine recently: desecrations of Jewish graves, antisemitic graffiti on Jewish community buildings, and now attacks on Jews."
(9) On September 11, Rabbi Mikhail Menis and his 14 year old son visited a beer festival at the Kiev Expo Center and ere set upon by seven young men and a young woman armed with chains and other weapons. After a sustained beating, during which some of the attackers reportedly yelled neo-Nazi slogans, the attackers left. Two of them were charged with "hooliganism" while the other six were held as witnesses.
(10) An October 6, 2005 article in the Ukraine edition of the Russian national daily Komsomolskaya Pravda mentioned in passing an incident which took place sometime in the spring of 2005. Within the context of an article on recent incidents of people being pushed onto the rails of the Kiev subway or jumping in front of trains in suicide attempts, the article briefly described the following incident: A Kiev neo-Nazi, believing that a man standing on a subway platform was Jewish, pushed him onto the rails. Luckily, the man was pulled off the tracks before the train came. Police later arrested the skinhead. It is not clear if the victim of the assault was Jewish or not, but the incident was just one of a rising number of incidents of antisemitic violence in Ukraine over the past two years, many of which have not received broad media attention, or received only the kind of cursory, dismissive coverage that this Komsomolskaya Pravda article gave it.
(11) On February 3, 2006 a man entered Kiev's Brodsky synagogue brandishing a knife and screaming that all Jews should be killed, according to a report that day by the Jerusalem Post. The man was detained by security guards and later arrested. Jewish leaders criticized the local prosecutor's decision to only charge the man with weapons possession rather than a hate crime, despite the fact that since his arrest he vowed to murder Jews upon being released from custody.
(12) On February 8, 2006 the Global Forum against Anti-Semitism - an Israeli quasi-governmental agency charged with monitoring anti-semitic incidents around the world - reported that anti-semitic incidents had decreased worldwide in 2005. The only two exceptions to the rule were Ukraine and Russia where the report found that anti-semitic incidents had noticeably increased.
(13) On May 19, 2006 JTA reported that Ukrainian rabbis called on authorities to ensure the safety of the country's Jews and adopt legislation against antisemitism. "We are trying to calm down Jews in our communities. We are trying to lower the level of anxiety," rabbis said in a statement after a rabbinical meeting in Kiev. "Unfortunately we do not see any adequate or unequivocal response toward manifestations of xenophobia from the Ukrainian authorities."
On May 29, 2006 JTA reported that Ukrainian Jewish leaders announced their intention to appeal a court decision that found a school teacher innocent of making antisemitic statements. A court in the Kirovograd region acquitted Nikolay Yakimchuk, a public-school teacher, of hate speech charges. Several of his students testified that he allegedly said during his lesson that "Jews are bad and impudent people," that Jewish students are only "taking space in our school" and there should be "no place for them among people."
The JTA report did not mention that the teacher called for the extermination of Jews in Ukraine (he reportedly told his students: "They need to be exterminated, they have no place among people" according to a May 26, 2006 AEN report). This goes well beyond the realm of un-PC talk to clear incitement of violence. Ukraine's hate speech law has only been successfully applied once, against the newspaper Silski Visti, a decision that was overturned after the Orange Revolution. President Yushchenko subsequently awarded that paper's editors medals.
(14) The parents of a Jewish youth who was shot by his neighbor in an alleged antisemitic attack accused police and prosecutors in Kiev of covering up the crime.
(15) Fans of a Tel Aviv soccer team who traveled to Odessa, Ukraine to lend their support in a match against the local Chernomorets club were attacked by soccer hooligans.
(16) A few days after this attack, the Russian Jewish web site Jewish.ru reported on September 20, 2006 that a group of youths beat up a Jew in front of numerous witnesses in Odessa's downtown area. Chaim Veitsman was set upon during the evening of September 18 on a crowded street. A gang off youths, who witnesses say often hang out on that street, approached Mr. Veitsman. One screamed in his face, "I don't like kikes!" and started to attack him. "The hooligans were not afraid of any witnesses or that anybody would stand up for him [the victim]" the report's author wrote.
After the beating was over, Mr. Veitsman, who was covered in his own blood and was suffering from a busted lip and a concussion, had to call the police himself. The officers who responded were reportedly not very interested in investigating the attack. A witness came forward and named one of the attackers. Mr. Veitsman then went to the police station with the officers and waited 40 minutes before someone took down his complaint. Sources within the local Jewish community told Jewish.ru that Odessa's streets are becoming increasingly dangerous. People interviewed at the Migdal Jewish Cultural Center reported that over the past two years, five Jews affiliated with their organization have been attacked, and that police have not been able to solve even one of those cases.
(17) On December 7, 2006 JTA reported that one in three Ukrainians do not want Jews to be citizens of their country. The survey also found that 36% of respondents do not want to see Jews as citizens of Ukraine, compared to 26% in a similar survey conducted in 1994. A Regions.ru report from December 6 added that the poll found 45% of 18-20 year olds in Ukraine don't want Jews to live in Ukraine---a higher rate than older respondents.
On December 16, 2006, three Orthodox laws were attacked in Kiev by a gang of young men screaming antisemitic abuse.
Country Reports on Human Rights Practices - 2007 (Released by the Bureau of Democracy, Human Rights and Labour: March 11, 2008).
Problems with the police and the penal system remained some of the most serious human rights concerns. … There was societal violence against Jews and increased violence against persons of non-Slavic appearance. Anti-Semitic publications continued to be a problem.
49 The appellant also gave uncontradicted evidence as to the longstanding and widespread failure on the part of the Ukrainian authorities, police and political leaders to protect Jews from violent attacks.
[The questions were asked by Mr A Mullin, the Tribunal Member].
INTERPRETER: You know, I'm just prohibited from having such kind of life that I would like to have, such kinds of life when I have my religious beliefs. I'm prohibited to do all that. And, you know, just I am again very scared that I would be harmed physically again.
. . .
You know, just what I meant, I meant that I would like to live like a normal civilised person, to have the right to follow religious beliefs that I would like to have, to have the religious beliefs that I would have, to have a normal life and to have work and, you know, not to worry about my life, not to be concerned about my life and about the life of my family. You know, since they didn't give you the opportunity to have a normal life. Every time you're leaving the synagogue you are just scared that you will be humiliated or will be beaten or harmed, physically harmed or in any other way.
MR MULLIN: Right. Right. Who would do this to you?
INTERPRETER: Who was doing all these to me before? The same kind of people, you know, who have loads of different Nazism group, fascist group right now. Nationalistic groups. You know, they shout, they cry at each corner, "Just kill the Jews", "Just destroy the Jews, because they have to be destroyed." You know, just from the tribunal, the supreme council, they opening declare such ideas. What else can they expect from the government? You know, just for example, two years ago, yes, we got used to live like that, and we became very patient and very tolerant of the fact when some signatures would appear on your door or they would break your windows, or they would call you names. We got used to it. But when it came from bad to the worst part, when they started just performing the physical harm, introduced - when the physical harm was introduced then, you know, it was next to impossible to tolerate all that, especially when you have this special hat on your head, skull cap, yeah.
INTERPRETER: Then it's - you know, it's like a sign for them.
. . .
What I meant was that some delegates in the Supreme Council of Ukraine, they were openly expressing their antagonistic hostile ideas against Jews. They were not supportive, they were not trying to improve the situation. But, on the other hand, they were just making speeches against Jews.
. . .
I did notice, especially after the Orange Revolution that took place in Ukraine; the situation became more critical and, you know, they started saying that it was due to the Jews, to the Jewish people, that there was a famine.
. . .
MR MULLIN: Right. When these things were happening, this incident, these incidents, did you go to the police about them?
INTERPRETER: You know, that from my early childhood I know that it's useless to go to the police for some help. We haven't seen - our subconscious, yes, but I tried to do so, I tried to go to the police with my complaints, but nothing happened. I didn't get any kind of assistance. You know, they don't want even to listen that this is - this has some kind of relation to the religious beliefs or to the nationality. They don't want to connect those things, they are just trying to explain that some hooligans did it.
50 This evidence together with the independent country information is capable of supporting a conclusion that the Ukrainian authorities were either unable or unwilling to protect its openly Jewish citizens from violence by neo-Nazis motivated by religious hatred. The "administrative charges" levelled against two of the appellant's assailants in respect of the first assault were inappropriate and did not respond to what were hate crimes. The modest fines imposed on them were plainly inadequate. They do not, on an objective basis, reflect an appropriate societal condemnation and repudiation of such hate fuelled crimes. They do not constitute any deterrent to his attackers or others.
51 The evidence is capable, arguably, of demonstrating that the violence against Jews in Ukraine is not random but is co-ordinated through the rising neo-Nazi movement there. The historical precedent for widespread and concerted attacks on Jews before and during the Second World War by the Nazis is well-established.
52 It is not for me to make any recommendation to the Minister to exercise one way or another, the discretion available to him under s 417 of the Migration Act. However, in this case, it seems to me that consideration of this case and the decision of the Tribunal ought be given by the Minister under this provision.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.