1614224 (Refugee)

1614224 (Refugee) [2019] AATA 3414 (5 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1614224
COUNTRY OF REFERENCE:                   Kosovo
MEMBER:Denis Dragovic
DATE:5 March 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

CATCHWORDS
REFUGEE – protection visa – Kosovo – links to Serbian community – links to powerful organisation member – Christian minority in Muslim majority country – decision affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91R, 91S
Migration Regulations 1994, Schedule 2
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 dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Kosovo, applied for the visas on 10 June 2014 and the delegate refused to grant the visas on 24 August 2016.
Having viewed the passports of both applicants I am satisfied that they are citizens of Kosovo.
The first named applicant appeared before the Tribunal on 7 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [Sibling 1] ([sibling] of the first named applicant and [child] of the second named applicant). The Tribunal hearing was conducted with the assistance of an interpreter in the Albanian and English languages. The applicants were invited to return for a second hearing primarily for the reason that the second named applicant was unable to attend the first hearing. In a response from the representative a request was made for written questions to be submitted and the right to the hearing was waived. A written submission was made in response to questions submitted by the Tribunal (‘post hearing submission’).
The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
RELEVANT LAW
The criteria for a Protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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
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).
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
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.
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.
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.
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 a 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.
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.
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
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’).
‘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.
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.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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.
Member of the same family unit
Paragraphs 36(2)(b) and (c) provide as alternative criteria that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a Protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include mother.
CONSIDERATION OF CLAIMS AND EVIDENCE
Summary of claims: The first named applicant claimed to fear harm because of the relationship of his father with the Serbian community from 1990 to 1999. It was claimed that on [date] a shot was fired through the family home in Kosovo and it was a premeditated shooting to intimidate and harm the applicant’s [sibling] who was living there at the time. The applicant claimed to have been attacked and abused while living in Kosovo, experiencing both verbal and physical attacks. He claimed that in [year] his father was to be taken and possibly killed by a member of [an organisation], however his father was not murdered because his [sibling] commenced a relationship with [a member of the organisation] and she remained in the relationship to keep their family safe despite the man repressing her life. The applicant stated he fears harm for reasons of being associated to his [sibling] who may testify against [organisation members]. The applicant stated that the population of Kosovo is 95% Muslim and he fears general violence and persecution based upon being a minority.
The second named applicant fears harm for similar reasons. In addition, in a post hearing submission she explained that she will be harmed as she goes to church or buys groceries, she fears having to live her life in such a way that she fears for her son. She claims to have had to wear gloves to cover her hands which have Christian symbols tattooed on them. She fears that being seen as collaborators with the Serbians will lead to continued oppression by KLA and ex-KLA members.
The delegate refused to grant the visas on 24 August 2016. The delegate accepted that the applicants are Catholic Albanians from Kosovo and that they would seek to continue religious observance and church attendance if they returned. However, it was concluded that there was no objective basis to believe that the applicants would be subjected to serious harm on account of their religion and/or perceived pro-Serbia political opinion, reasoning that the applicants’ fears were not well-founded due to a lack of evidence concerning previous incidents of harm, a lack of country information supporting the existence of sectarian violence or the absence of state protection. The applicant’s [sibling]’s [former relationship with a public position holder and ex-organisation member] was not a cause for harm to the applicants on the basis that the claims lacked detail and she is now residing in [Country 1].
A medical certificate dated 26 April 2016 was provided to the Department indicating the second named applicant received medical treatment during the period 19 to 25 April 2016, however the reason for the treatment is not stated (DIBP f.118). A medical certificate dated 4 May 2016 from her GP was submitted advising that the second named applicant is struggling with depression (DIBP f.124). I accept the medical evidence provided, but give it less weight for the reason that it is not recent and her diagnosis of depression is made by a GP and not a psychologist.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Evidence and findings of fact
The first named applicant (‘the applicant’), [name], is a [age]-year-old single male from [Town], Kosovo. The second named applicant, [name], is a [age]-year-old widowed woman from [Town] and mother of the main applicant. The applicant completed secondary school in [year] and subsequently managed the family [business], where the second named applicant also worked. The applicants are Albanian Catholics and a certificate was provided showing the applicant was baptised on [date] (DIBP file f.138).
The applicant stated that he has [number siblings], the oldest is [Sibling 1], who left Kosovo in [year] and lives in Australia, and the second oldest is [Sibling 2], who left Kosovo a short time after the war and also lives in Australia. The applicant said that his [sibling], [Sibling 3], is currently living in [Country 1] and his [sibling], [Sibling 4], who married in [year], now lives in [Village 1] which is [number] kilometres outside of [Town]. The applicant’s father died in [year].
Their wider relations include on the first named applicant’s father’s side [several relatives] who are still alive, [number] of whom live in [Town]. On the mother’s side there are [several relatives] who are alive. Most of them live in Kosovo but about one hour outside of [Town]. They are all Catholic.
In 2010 the second named applicant visited her two [children] in Australia on a Sponsored Family Visitor visa and returned to Kosovo [later] in 2010. The applicant’s [sibling] said at the hearing that their mother didn’t apply for protection in 2010 so as not to leave her son behind. Both applicants most recently arrived in Australia in April 2014 as the holders of Sponsored Family Visitor visas. The applicants’ declared travel history also included transit visits to [Country 2] and [Country 3] in April 2014.
At the hearing the applicant stated that his family had lived in the centre of the [town] in a [number]-storey building with [number] bedrooms.
I accept as fact the above narrative covering the applicants’ personal biography and travel details.
The applicant gave evidence about his assets in Kosovo. He owns the building in which his family lived and it includes [other facilities]. He also owns [land] located in [Town] and [Villages 2 and 3], which are a few kilometres from [Town]. The land is not worked and all assets are in his name. His father conducted mostly agriculture on the land. He confirmed that he continues to own that land. I asked him if he knew whether [organisation] members take other people’s property when vacant. He responded he has heard of that, however in his case the [organisation] members were focused on personal harm over land or houses. The applicant’s [sibling] confirmed that the applicant’s home is in the centre of town and worth [amount]. He said that their family have lots of [land], including land next to a [specific location]. The applicant’s [sibling] clarified that the land is being worked by someone else, however he doesn’t know by whom. In the post hearing submission the applicants wrote that they do not ‘know the state of the land or know if anyone has been using the land for any other purpose’. Adding in the following sentence that they believe someone has ‘seized these lots of land for their own personal or commercial use.’ The witness at the hearing said that it is common not to change the name on the title because it formalises that someone has taken it, however it can be taken on a de facto basis. He said that when the Serbians were forced to flee and the KLA fighters took their houses, some people were forced to sell and others have the house in their name but the KLA live there. In the post hearing submission the applicants wrote that they have been made aware of ‘unknown individual’s squatting on their property.’ There was no mention of squatters at the hearing. At the hearing it was claimed that people are working their land but in the post hearing submission they didn’t know. Despite these contradictions, I give them the benefit of the doubt and accept as fact the assessment of their assets and that their land is being worked by others.
The applicant spoke about his family’s experience during the war. When the war broke out in 1999 the family’s [business] closed and they fled to [Village 1]. He said that his family lived in a church in [Village 1] during the war for a period of approximately [number] months. He described [Village 1] as mainly populated by Catholic communities and said his father felt secure in a Catholic community. He said the town is small and still populated by Catholics, and a lot of Albanian Catholics live there. I accept this as fact.
Business association with a Serbian company
The applicants’ family had numerous businesses run by the father of the applicant. The businesses had connections with Serbia. From [year] they worked with the Serbian company [Company 1] and later with [Company 2]. The family business ceased in 1999 when the war broke out. The Tribunal received a photo of the applicant’s [siblings] and father in front of a [Company 2] store. I accept this as fact.
In written submissions to the Tribunal it was stated the applicants fear being killed because their family [business] had a Serbian connection and its success antagonised the Muslim neighbours. It is claimed that the first named applicant’s father was perceived negatively among the Muslim community due to his business activities with the Serbian government. I accept that the community know of the applicant’s former family businesses’ past relations with Serbian companies.
After the war ended the applicant’s family returned back to their home. Serbian forces left that part of Kosovo and the KLA took over control. The applicant stated that luckily his home was not burned despite this happening to others. He believes that because his father put a cross on the home and his father’s prior relationship with Serbian businesses it wasn’t burned down by the departing Serbian forces. He said that other houses in the neighbourhood were burned and demolished. I accept that their house was not burned down. I find it speculative to presume that it was because of the cross or his father’s prior relationship with Serbian businesses.
When the KLA moved in following the exit by Serbian forces the applicant said that the KLA did not damage their home. In the post hearing submission the applicants added:
There were ex-Yugoslavian and Serbian forces that were still in [Town] at the time. When NATO peacekeeping forces arrived, the Serbian army were present in [Town] and Muslims did not take the opportunity to burn every Christian home as little to no KLA fighters were able to enter at that time. What followed was a mass evacuation facilitated by the Serbian forces and local residents which ensued over 2–3 days. By the time the evacuation had been effected, NATO troops had already stationed themselves in [Town]. We submit that it would have been difficult for Muslims to damage or destroy homes during this time, particularly in light of the increased risk of being caught or shot on site whilst NATO troops remained present in the area.

At the hearing the applicant said that the KLA didn’t have any intention to cause material damage to their property but rather to harm his father. There is some inconsistency between the written statement received post hearing and the applicant’s claims at the hearing in that the former suggests that the KLA did not have an opportunity while the latter said that they were not interested in causing material damage. Considering that NATO troops would not be able to protect every house throughout the day and night yet their house was not destroyed I find that the applicant’s evidence at hearing has more logical cogency and as such I prefer it over the written submission.
The applicant’s [sibling] said at the hearing that their home was ransacked. They were not sure which group took their furniture but suspect that it was the Albanian KLA. The reason they believe it to have been the KLA and not other groups is because, ‘the buses and tractors responsible for getting the Serbians out of the area passed the church where the applicants were hiding – these vehicles were in clear sight of the applicants and they would have easily noticed if large items such as furniture or equipment had been leaving with them.’ I find this reasoning to be flawed. The applicant stated that they had sheltered in a church in [Village 1], a town outside of [Town], where their house is, for [number]months. I do not accept that they would be able to see each and every vehicle movement nor that they would be able to see inside trucks. I accept that the house was ransacked. I find it speculative to suspect the Albanian KLA was responsible.
[Sibling 3’s] relationship
At the hearing the applicant stated that in [year] his father was going to be taken by [an organisation] member, however his father was not harmed because [Sibling 3] commenced a relationship with [a member of the organisation]. He claimed that his [sibling] did this to keep her father safe. I accept this as fact.
The applicant stated that his [sibling]’s ex-boyfriend [now holds a public position].
According to written submissions made to the Tribunal, the EU intends to prosecute ex-KLA members in relation to war crimes through the Kosovo Specialist Chambers and Specialist Prosecutor’s Office, a form of a tribunal to be established in The Hague. Given [Sibling 3’s] knowledge of her ex-boyfriend’s crimes the applicants are afraid that he will target her or the applicants to stop them acting as witnesses against him. The applicant claims that [Sibling 3] fled Kosovo for fear of harm and is now living in [Country 1]. I accept the circumstances described above of [Sibling 3’s] relationship and that she is living in [Country 1].
The applicant acknowledged that the special court hasn’t charged anyone from the KLA yet and he doesn’t know if [Sibling 3’s] ex-boyfriend has committed any war crimes. The applicant repeated that the ex-[organisation] member has harmed his [sibling], attempted to kill their father and threatened the applicant. The applicant’s [sibling] explained that [Sibling 3] is of interest to her ex-boyfriend because of the Special Court. He said that the court process is leading to witnesses disappearing. It was suggested that the applicant’s [sibling] may know information about the threats that were made against their father and maybe she knows something that she should not know. The applicants were not willing to name the ex-boyfriend. There is only speculation that [Sibling 3] may know of something that could harm her ex-boyfriend. For this reason I find it speculative to suggest that the ex-boyfriend is of interest to the Special Court and that in turn would place the applicants in danger because of [Sibling 3].
The applicants submitted photos of damage caused by a shooting at their home. According to the applicants’ written submissions to the Department the photos show that the house is secluded and demonstrates that the shooting was deliberate and intentionally directed towards their home. The applicant gave oral evidence that the bullet was fired into his family’s home in [year] and his [sibling] was living there at the time. He believes that the bullet was fired into the house because of his [sibling’s] relationship with her ex-boyfriend and because of the family’s relationship with the Serbian community. The first named applicant thought that the intent was to kill his [sibling] or threaten her. I put to the applicant that if that was the case they wouldn’t shoot a single bullet into a [number]-storey house in which she was living alone if they wanted to kill her, but would wait for her and kill her or go inside and kill her. The applicant responded that she left straight away for [Country 1]. He claimed if the risk wasn’t real she would still be living in Kosovo. When asked about other possible causes for the bullet being fired the applicant’s [sibling], who appeared as a witness, advised that shootings do occur at weddings and soccer matches, noting that while Catholics can’t shoot at weddings, the law doesn’t apply to Muslims. I accept that a bullet hit the window of the applicants’ house.
According to written submissions made to the Tribunal, when the applicant’s [sibling] visited Australia in 2013, the ex-boyfriend contacted her and said that if she did not return to him, he would ensure that her family would be in serious danger. The applicant claims that his [sibling] has maintained a low profile since leaving Kosovo and has heard that her ex-boyfriend has made inquiries seeking to find her. He claims that her ex-boyfriend has significant influence amongst ex[organisation] members across Kosovo and it is highly likely that he would be alerted if the applicants returned to Kosovo. Consequently, serious harm or death will be caused to the applicants or the applicant’s [sibling] will be lured back to enslavement. I accept that [Sibling 3] was contacted by the ex-boyfriend and threats were made in 2013.
There were no claims that [Sibling 4] has been approached by the ex-boyfriend. The applicant said that she couldn’t be found because she changed her name. If the ex-boyfriend is as powerful as claimed then [Sibling 4] would have been found. As I have accepted that the ex-boyfriend [holds a public position] I find that he could find her. That there are not claims that he did reach out to [Sibling 4] or the numerous [relatives] leads me to find that he has chosen not to pursue [Sibling 3] through family members.
The status of Catholics in a predominantly Muslim country
In written submissions to the Tribunal it was stated that the applicants, as a minority group in a Muslim majority country, feel threatened by fellow Albanians. The submission notes the emergence of Islamic State (IS) as radicalising Muslims in Kosovo and the applicants’ fear, as a well-known Catholic family, that they will be targeted because of their religion. Due to their Catholic beliefs, they say that Islamists believe the applicant’s family are connected to Serbia which has been belligerent in the past war.
The applicants submitted various information to the Department and the Tribunal related to Islamic extremism in Kosovo along with articles that suggest an anti-Catholic/Christian environment, including but not limited to:
   Information from the New York Times concerning the development of Wahhabism in Kosovo
   A web link concerning a report that Muslims capture Christians and take them to slaughterhouses to dissect them while they are alive for their organs, before they are sold to Turkey or Saudi Arabia
   Two Amnesty International articles titled ‘Kosovo: If they are not guilty, who committed the war crimes?’ concerning the acquittal of three high-ranking members of the KLA by the ICTY, dated 29 and 30 November 2012
   A news report titled ‘Man wanted by the U.S. “lives openly in Kosovo”’ concerning a man wanted on charges of conspiracy to provide support to terrorists, dated 24 November 2010
   A news article by the National Catholic Register titled ‘Catholics Under Threat in Kosovo?’, concerning allegations of ethnic cleansing by Muslims, dated 17 October 1999
   Wikipedia information concerning the demographics of Kosovo
   An article on ISIS in Kosovo and an investigation into the radicalisation of some Muslim communities as a result of which 14 imams have been arrested and 19 Muslim organisations have been shut down
   An article from 1999 titled, ‘Catholics under threat in Kosovo?’
   ‘Catholic Church Calling for Reconciliation in Kosovo’, 21 February 2008
   Articles about architectural heritage in Kosovo and the damage they sustained during and after the war
The applicant gave oral evidence that he has been beaten on two occasions by two members of what he claims were Wahhabi Muslims. He said he was beaten unconscious in 2010 by [Mr A] in an internet café and explained that every time they see him they say ‘look the Serbian is coming’. They also say, ‘Why are you wearing this cross’. In 2011 while at the swimming pool the applicant said that he was attacked for wearing a cross in the pool and this resulted in a broken collar bone and split chin. The applicant said that he always wears a cross and explained that the Muslim community, if they see a Catholic or Orthodox person, consider him as a non-believer and they want that person to hide their pride in their religion. I accept that these incidents occurred.
The applicant said that nobody stopped his attackers. He advised that he reported the attack by [Mr A] to the police and one month later he was attacked again by [Mr A]. The applicant stated that [Mr A]’s second attack occurred because he had reported [Mr A] to the police. I put to the applicant that it could be that perhaps the police followed up on the report and warned [Mr A] and that is how [Mr A] found out that he had reported it. The applicant responded that [Mr A] would not have attacked him again if this was the case. I put to him that many criminals recommit offences. In his written submission to the Department the applicant stated the police do not issue police reports to Catholics because they do not want evidence that Catholics are being attacked.
I accept the applicant’s descriptions of his clashes with Muslim youth as described above. I do not accept his claim that the police are nefariously involved in facilitating such attacks or covering them up as this is speculative without further evidence.
In an earlier submission the applicant claimed that Catholics cannot travel to 70% of Kosovo and that he had not been able to finish studying because travelling to and from university was too dangerous. He had once been beaten on a bus trip to university. In a post hearing submission the applicant clarified that he would travel by bus to [City] where he was studying. It was through an area claimed to be a KLA dominated area and they would undertake checks of buses and take travellers who were deemed to be a threat. The applicant claimed that for this reason he was very fearful. I accept that this happened.
At the hearing the applicant discussed what characteristics make him identifiable as a Catholic. He said that [given name] isn’t a Catholic name; however he thinks that [surname] is identifiable as a Catholic name in [Town 1]. The applicant explained that it is also customary for people to greet each other by Muslim prayers, but he doesn’t respond, so people know he isn’t Muslim. In a post hearing submission it was added that they don’t celebrate Muslim feast days and don’t eat the same food.
The applicant’s [sibling] said that his family can be identified as Christian by the dialect they speak ([dialect name]) and never use the Muslim greeting ‘Marhaba’, and even if you don’t reply to ‘Marhaba’, then you are identified as non-Muslim he claimed. He also said that their mother, the second named applicant, can be identified as a Catholic because she wears black following their father’s death, whereas Muslims wear a white shawl in these circumstances. In a post hearing submission it was put that the second named applicant has a cross tattooed on her hands and that previously they farmed pigs, an indicator that they are not Muslim.
I accept that the applicants can both be visually identified as Catholic based upon the cross he wears and the clothes she wears along with her tattoos. This will then be confirmed through personal engagement with the applicants.
The applicant’s [sibling] advised that he tried to get Kosovo citizenship but he was told that no records of him could be found. He is not sure what is behind this, noting that the records were not burned. I find it speculative to conclude that the witness’s trouble in getting a Kosovo passport renewed in Australia is because of his religion.
The applicants claimed that they survived in Kosovo in large part because of the money that was provided by other members of the family living abroad. I accept that they received money from their relatives living overseas. I do not accept that it was ‘in large part’ what helped them ‘survive’ as they had large land holdings and a [number]-storey house which they did not seek to sell or to rent parts of.
The second named applicant wrote in her submission that her late husband was a member of the [political party] Kosovo. I accept this as fact.
I have also considered the documented mental health situation of the second named applicant who has been described by a GP as having depression. I accept that the second named applicant has depression and take this into consideration below.
Considerations
Considerations – Family’s previous involvement with Serbia
The applicants wrote in the post hearing submission that:
[U]nknown persons have placed large crates in front of their family home. The applicants do not know who is responsible for this, although they have been made aware that unknown individuals have entered the house and are currently squatting on their property. The applicants have land next to the [specific location] in [Town], as well as land in the farms in [Villages 2 and 3] ([Town], Kosovo) but there are no houses on these lands and the applicants do not know the state of the land or know if anyone has been using the land for any other purpose. The applicants believe that someone, if not members of the KLA, have seized these lots of land for their own personal or commercial use.
Prior to the war the applicant’s family had run an [business] bringing [product] made in Serbia to the Kosovo market. At the outbreak of the war the business was closed. The applicants fear that their family’s previous business activities in Serbia will put them at risk of harm. I note that the witness claimed that their house had been ransacked during the war. Nevertheless, the family returned to live in it and continued to live in it until the incident when a bullet was fired into their house in [year]. I give some weight to the fact that their house was not burned as other houses had been during the war. I acknowledge that the house was ransacked, something that I give little weight to for the reason that other houses were as well during the war and there is no evidence to suggest that they were targeted. That they were subsequently able to return to the house and continued to live in the house for 15 years without being threatened is suggestive to me that their former business ties to Serbia and any perceptions of being aligned with Serbia were not considered by potential persecutors as a reason to harm them. As such I find that the applicants do not face a real chance of serious harm or a real risk of significant harm for reasons of having had prior associations with Serbia or being perceived to support Serbia.
Considerations – Members of a minority group in Kosovo
The applicants have claimed that their minority status in Kosovo can place them at harm both from fundamentalist Muslims such as Islamic State and the wider Muslim community.
The applicants argue that the police lack the capacity and willingness to protect Christians in Kosovo and address the increasing radicalisation of Islam citing the return of 300 ISIS fighters to Kosovo as an example of the government’s unwillingness to act.
The applicant claimed that attending Sunday mass places him at risk. He said that the church was not safe and the Muslim community would attack. The applicant said that when he was still in Kosovo NATO would send KFOR forces to Catholic churches when the community was attending mass. He acknowledged that KFOR can provide protection, but if the population is Muslim, the situation cannot be contained.
During the hearing the applicant said that [Village 1] is still populated by Catholics, and a lot of Albanian Catholics live there. The applicant was asked the reason why he couldn’t live in [Village 1]. He said that he fears that he can’t resolve his fear of Kosovo being populated by Muslims and noted that all groups are connected to the KLA and that they might find him or kill him.
The applicant’s [sibling] informed the Tribunal that three or four towns near [Town] are completely Catholic and not one Muslim lives there, however the applicant couldn’t live there in part because their family is well known and because the villages are 2–3 kilometres from [Town], are underprivileged and residents travel to [Town] for their basic necessities. So being based there wouldn’t prevent their risk of harm.
The applicant’s [sibling] said that Catholics didn’t fight in the war, but every second Muslim has a family member in the KLA. He stated that there are 32,000 Catholics in Kosovo and the community doesn’t dare to speak up because that would be seen as going against the nation. He informed the Tribunal that religious leaders in Pristina referred to Catholicism as the religion of the devil. He said that their family were second-class citizens, noting that his mother didn’t get any education because she was Catholic and even Tito’s laws weren’t being applied.
The second named applicant has stated that she has not experienced physical harm in the past but substantial mental abuse. She has been called names when people see her tattoos on her hands based upon an assumption that she is Serbian Orthodox. She claims to have experienced mental anguish in witnessing what her children have gone through.
At the hearing the following country information was put to the applicant:
Kosovo continued to fight the growing threat of terrorism in 2017. Approximately 403 Kosovo citizens have travelled to Syria and Iraq to fight for or join ISIS or al-Nusrah Front, of which approximately 74 are deceased. Some 133 of these individuals have returned, while approximately 196 remain in these conflict zones. This number includes 40 children born to Kosovo citizens in conflict zones. The government continued to implement its comprehensive strategy and updated its action plan for countering violent extremism (CVE). In 2017, the government drafted its third counterterrorism strategy and action plan. The Minister of Interior took the role of Counterterrorism National Coordinator in November.
The applicant replied that the government is not capable of responding to the threats that are coming from Islamic State. The government can’t manage the situation. He said that he fears ISIS because he is part of a small minority and because he is Catholic.
The following information concerning legislation, law enforcement and border security was summarised to the applicant:
Kosovo’s legislative framework is sufficient to prosecute individuals suspected of committing or supporting terrorist activities, but prosecutors lack experience with such cases. Kosovo’s officials recognize the need to improve interagency cooperation.[1]
The applicant responded that if the government was capable then the people who went to fight wouldn’t have gone to fight for ISIS.
[1] United States Department of State, Country Reports on Terrorism 2017 – Kosovo, 19 September 2018, available at < accessed 26 October 2018

The applicant was informed that The Advisory Committee on the Framework Convention for the Protection of National Minorities notes:
Representatives of religious and minority communities were of the opinion that expression of freedom of religion has become somewhat easier. For instance, in 2015, the Serbian Orthodox Church (SOC) Saint Vitus (Vidovdan) festivities took place without major obstacles albeit with a high level of security present.[2]
[2] The Advisory Committee on the Framework Convention for the Protection of National Minorities, ‘Comments by the United Nations Interim Administration Mission in Kosovo (UNMIK) on the Fourth Opinion of the Advisory Committee on the implementation of the Framework Convention for the Protection of National Minorities in Kosovo’, 21 December 2017, available at < accessed 15 January 2019
The applicant responded that the situation remains the same and Catholics are persecuted. He said that there has not been stabilisation in the religious community and he does not believe that tensions are settling down.
I submitted in writing to the applicants excerpts from the International Religious Freedom Report 2017 for Kosovo noting that the majority of issues related to devout Muslims and Serbian Orthodox adherents and asked for their written response following their decision not to attend the second hearing:
On September 5, high-level government officials and representatives from the principal religious communities attended the consecration of St. Theresa Catholic Cathedral in Pristina. President Thaci called the cathedral a symbol of religious tolerance.
The national police reported 44 incidents targeting religious sites of incidents involving property damage, theft, and graffiti during the year. These targeted the Islamic community (21), Serbian Orthodox Church (20), and Roman Catholic Church (3) sites.
According to some religious communities, the government continued to respond to societal violence and vandalism against several religious minority communities.
The applicants responded that efforts at unification have been attempted. They shared news reports of a Catholic statue being removed from the main square in [Town] because the Muslim population did not recognise [the subject of the statue] as a symbol of peace. They noted that despite the majority of the population being Muslim the majority of attacks against religious sites were Christian (Serbian Orthodox and Roman Catholic).
I submitted to the applicants information about religious sites in [Town]:
[Town] municipality has a total of seven (7) mosques, three (3) were damaged/burned during the 1999 conflict and reconstructed in its aftermath, and four (4) new ones have been built. There are eight (8) Serbian Orthodox churches and monasteries, five (5) churches were destroyed in the aftermath of the 1999 conflict, one (1) was reconstructed in 2006. There are nine (9) Catholic churches, all functional.[3]
[3] Municipal Profile 2018, Peje/Pec Region, Organization for Security and Co-operation in Europe, Mission in Kosovo, available at < accessed on 15 January 2019
The applicants put to the Tribunal in their post hearing submission that the Catholic churches served as centres for refuge for all ethnicities and as such they were not targeted. They note reports of Catholic buildings in neighbouring locations being damaged and destroyed.
I asked the applicants to comment on the report that during 2017 Kosovo adopted a Regulation on Institutional Mechanisms for Protection from Discrimination in Government and Municipalities.[4]
[4] European Union, ‘Country Updates on Human Rights and Democracy 2017’, 28 May 2018, CIS7B839411446
They claimed that government initiatives are not evidence of change on the ground. They noted that the same report states:
Despite some progress, implementation of human rights strategies and legislation is often undermined by inadequate financial and other resources, particularly at local level, limited political prioritisation and lack of coordination. More needs to be done to effectively guarantee the rights of persons belonging to minorities and displaced persons, to ensure gender equality in practice, to set up an integrated child protection system and to advance the protection of cultural heritage.
They provided further country information which suggests a weak rule of law in the country. I note that the judiciary remains an area of concern for international observers particularly in addressing corruption and competency to deal with complex cases and efficiency.[5] The submission concluded by stating, ‘Whilst the country may improve and have a functioning legal system that is able to protect its citizens in the distant future, this is not the current climate of Kosovo. The applicants will not be protected from harm in Kosovo, despite the country declaring that it is making efforts for improvement.’
[5] Bertelsmann Stiftung, ‘BTI 2018 Country Report – Kosovo’, 23 March 2018, CIS7B83941684
I asked that the applicants comment in writing to country information which indicates that the Kosovo police are the most trusted rule of law institution in the country and are reported to be relatively well trained and equipped.[6] The applicants disputed that civilians in Kosovo trusted the police to uphold the rule of law. They had previously submitted articles relating to the police, one of which was a Canadian Immigration and Refugee Board response dated 2011. They also referenced the same report which I had quoted and emphasised that it showed some policing required improvement. The applicants submitted that, ‘Whilst the Kosovo Academy of Public Safety may be progressing towards building a strong police force, the fact remains that for as long as ex-KLA members remain in positions of power in Kosovo, the Kosovo police cannot be fully trusted by the people to protect them and ensure the rule of law is fairly and justly upheld.’ Country information from 2011 was provided to support this claim though the evidence provided appears to also suggest that it is in cases where the police are combating ‘high-level crimes’ that there is political interference. Other instances were provided through news reports where the police were perceived to be failing in their ability to uphold the law or where the police were the perpetrators of criminal acts inferring that the police force more generally was unable to uphold the law. An article which was submitted by the applicants shows the police taking action against a man who was photographed holding an ISIS flag and perceived to be a threat to the Prime Minister.
[6] European Commission, ‘Kosovo 2018 Report’, 17 April 2018, available at <>
The applicants also noted in their post hearing submission that Kosovo law lacks international standard protections for whistleblowers such as the applicant’s [sibling], though as no claims were made that the applicants were whistleblowers or intended to be I give this little weight only in that it indicates that Kosovo’s jurisprudence has areas that fall short of international norms.
The applicants argued that the rate of inter-religious incidents of conflict reported in the media is lower than what occurs in reality because journalists are intimidated. Examples of the intimidation of journalists were provided in the post hearing submission which I accept occurs.
The question I now turn my mind to is if the applicants were to return to Kosovo would they face a real chance of serious harm for reasons related to their minority status.
Regarding the applicant’s fear of physical harm, I acknowledge that when he was young the first named applicant was confronted by local youth which led to a fight over his religion and that he has experienced other forms of harassment because of his faith. The violence that had been perpetrated against the first named applicant including being knocked unconscious and having a broken collar bone I find to amount to serious and significant harm.
In MIMA v Respondents S152/2003 Gleeson CJ, Hayne and Heydon JJ observed that ‘no country can guarantee that its citizens will at all times and in all circumstances, be safe from violence’.[7] I draw upon the applicant’s past experiences to in part inform the circumstances he would return to. I accept that the past harm inflicted upon the applicant does amount to serious harm and was it to occur again it would similarly reach the threshold of serious harm. While I accept that his beating having occurred twice is indicative of a perilous situation I note that five years have passed since he left Kosovo. Based upon the country information noted above related to the calibre of the police, the anti-discrimination laws in place and ongoing efforts by the government to minimise inter-religious violence I find that the current circumstances in Kosovo have improved since when he earlier experienced attacks and that the applicant does not face a real chance of serious harm or a real risk of significant harm from Muslim aggressors.
[7] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26]
Regarding fears of discrimination, the witness claimed that while in Australia he couldn’t get a Kosovo passport because of his Christian name and that he wouldn’t be able to process documentation because he is Catholic. He acknowledged that the applicant did get his passport but claimed that it was because the name is less evidently Catholic. In the post hearing submission the applicants claimed that it has always been difficult for them to access documentation in Kosovo because they are Catholics including getting appointments with officials without bribery. The example given of bribery being required in the submission did not present any evidence that it was because of their religion. No independent country information was provided to support these claims. As such I find that their religion does not lead to an increase in the rate or level of corruption they will encounter.
Considering that there is widespread corruption in Kosovo as evidenced through submissions I have also considered whether the applicants will face serious or significant harm arising from it. As the applicants have family support both in the country and outside and recognising the extent of their assets and the second named applicant’s access to a pension (discussed further below) I find that were any intermittent need to arise for the applicants to bribe an official to obtain basic personal documents they will have the resources and ability to do so. I have considered whether such an imposition would reach the level of serious or significant harm. I note that even were it to, giving the applicant the benefit of the doubt, there is no basis upon which to assume that it would be systematic and discriminatory as per s.91R(1)(c) or that it doesn’t apply to the population of the country generally as per s.36(2B)(c). As such I find that the applicant does not have a well-founded fear of persecution or a real risk of significant harm arising from the prevalence of corruption in Kosovo.
I accept that when the mother was young she too experienced discrimination including not being able to access education. She did not claim to have faced any physical violence. The second named applicant has not claimed to have faced any discrimination since the war ended which amounts to a period of 15 years though she has claimed to have faced name calling. I note that the past can be a strong indicator of future circumstances the second named applicant will face if she was to return. Considering the stark difference between the circumstances of when she was a child and the post-1999 war I give greater weight to her experiences in the latter period.
I accept that the second named applicant will be called names as a result of her tattoos in the future. I find that such name calling does not amount to serious harm or significant harm.
I find for both applicants that although there are pockets of Islamic extremists in Kosovo and that they have taken up arms abroad, the government is acting to minimise their impact. Considering the small number of extremists and the government’s actions I find that the applicants do not face a real chance or a real risk of being victims to their actions.
Overall I find for the reason of their faith including but not limited to the ability to practise their faith, such as by attending Sunday mass or to identify by their faith, such as through their names, dialect and clothes, the applicants do not face a real chance of serious harm or a real risk of significant harm.
Considerations – Danger from a public figure
The applicants claim that they fear harm from a [organisation] figure who they speculate believes that [Sibling 3] has information which could be used against them in the newly established Kosovo Specialist Chambers and Specialist Prosecutor’s Office. The new court has been tasked specifically with investigating certain crimes against humanity, war crimes and other crimes under Kosovo law which allegedly occurred between 1 January 1998 and 31 December 2000.
The applicants said that the bullet fired into the house in [year] was evidence of an intention to harm the applicant’s [sibling] and threaten the family. As discussed at the hearing the gunfire could be for various reasons including random celebratory gunfire from a wedding, or as they claimed, a targeted effort to intimidate [Sibling 3] because of her failed relationship. Based upon the circumstances I find that there was no intention to kill the [sibling] as that could have been achieved by entering the house or waiting for her to leave the house. In the circumstances that were described even firing a bullet into a house is too vague a means of intimidating someone without some sort of follow-up to ensure that the message is understood. As such I find that the bullet fired into the house wasn’t fired by the [sibling]’s ex-boyfriend or his agents. Furthermore, I find that it would be speculative to suggest that it was for reasons of the family’s religion or associations with Serbia more than 15 years earlier.
I asked why [Sibling 4], who continued to live in Kosovo, would not be under threat to reveal information about [Sibling 3’s] whereabouts or be harmed so as to send a message to prevent [Sibling 3] from speaking out. The applicant said that [Sibling 4] married and left [Town] to live with her husband. I asked if the [organisation] member was afraid of [Sibling 4’s] husband. The applicant responded that [sibling]’s husband was able to protect her, however he is not sure how. The second named applicant in a post hearing submission wrote that when a woman marries she becomes a part of her husband’s household and added, ‘As far as I know, she was never exposed to any violence like us as she had already entered into an arranged marriage during the war.’ She wrote in the submission that her [child]’s marriage was with a man whose [relative] had fought for the KLA and hence their family were protected throughout the war. I do not accept that [Sibling 4] would not be pressured to give information simply because of her husband’s family’s association with the KLA, quite the opposite – because of the association and the protection, there would be various channels through which information of [Sibling 3’s] whereabouts could be gained but no evidence was provided that [Sibling 4] had even been approached. Furthermore, if [Sibling 3’s] ex-boyfriend is as powerful as they claim and fearful of her testimony in the new court then I find it implausible that he would not pursue [Sibling 4] simply because of a tradition that she is no longer considered a part of the family.
I note that the applicants do not know what [Sibling 3] fears, specifically whether her fears of the man are related to her knowledge of any possible crimes or for other reasons. They have no evidence that the man currently has any degree of interest in [Sibling 3] other than a phone call in 2013 and a bullet being fired into a house which I found was not related to the ex-boyfriend. There is no evidence that the ex-boyfriend has any interest in the wider family and specifically the applicants. For these reasons I find that the basis of the applicants’ fears is speculative. I find that the applicants do not face a real chance of serious harm or a real risk of significant harm from the former ex-boyfriend of [Sibling 3].
Considerations – Housing and subsistence
The representative also put forward an argument that an inability to subsist should be considered. His argument as it was structured, though, was based upon the current legislation rather than the Act as it was when the application was made. Nevertheless, I have considered the claim but according to the relevant law.
As accepted above the applicants have numerous close relatives in Kosovo including on the first named applicant’s father’s side [several relatives] who are still alive, [number] of whom live in [Town]. On the mother’s side there are [several relatives] who are alive and most live in Kosovo but about one hour outside of [Town]. In a post hearing submission the applicants contradicted this evidence by claiming that 95% of their family have already left Kosovo, a claim I take to refer to the immediate family including the applicant’s [siblings]. They wrote that they wouldn’t want to place their remaining family members in danger and feel that it would be unfair to ask them to shelter them. As I have found that the basis upon which they claim to fear return is not well-founded I do not accept the reasons they claim they could not stay with their family. No other reasons being given I find that the applicants can remain temporarily with family.

100. I have considered the applicants’ claims that neighbours had reported squatters in their home. If this is the case it may require the applicants to reside with family or rent a house temporarily until the police can evict the squatters and their home is returned. I do not accept that sharing a home with family or friends temporarily would lead the applicants to face serious or significant harm. I noted in written questions that I found at least one charity that provides social housing services and property rights-related free legal advice (Social Housing and Property Rights in Kosovo). They responded:
We submit that although Social Housing and Property Rights in Kosovo presents as an NGO that may theoretically assist the applicants with social housing, by their own admission, “there is a clear need for assistance in the area of property rights and social housing. There is virtually no support stemming from the civil society organizations in this regard”. This particular NGO is based in Pristina and the applicants are not aware of any other NGOs that provide similar services in [Town] or the surrounding areas, and that can provide the security and protection that they require. Notably, the abovementioned NGO is not a relatively large service provider and evidently lacks the resources and capacity to make an adequate difference in the circumstances of the applicants.
We further note that although the NGOs are supposedly independent, these organisations are likely to reflect the general trend in Kosovo whereby 95.6% of the nation is Muslim. In light of this, and the applicants’ previous encounters as persecuted Christians, they significantly struggle to trust any individuals beyond their own immediate family.

101. Furthermore the applicants stated that they would be unwilling to approach the NGO for support as it would alert their ‘oppressors’ to their whereabouts. I do not accept this claim as I have found earlier that the ex-boyfriend has not shown any interest in the applicants since a verbal threat over the telephone in 2013. Furthermore, considering the claimed status of the ex-boyfriend, being [a public position holder and an ex-organisation member] I find that approaching an NGO to seek legal support would not contribute any greater awareness of their presence than he would anyway have. I have also considered whether other ‘oppressors’ would be alerted to their presence including for example anti-Catholic social groups and the squatters living in their house. In this instance two news reports were submitted including a crime story about uninhabited Serbian houses being forcibly opened (4 October 2018) and a news report titled ‘Kosovo Serb shot for reclaiming own home’, dated 2 January 2007.

102. As the applicants have explained and I accept, [Town] is relatively small and they are relatively well known in their community. As such were they to return their presence would be known regardless of whether they applied to an NGO or not. As for raising the ire of the squatters, the news article from 2007 provides an example of the possibility that the squatters will be associated with an extremist group and willing to intimidate the applicants. I accept this as a possibility. But I also find that pursuing the property through legal means brings with it a degree of official authority and protection which would deter violent action. As noted in this decision the state protection offered by police is considered positive, a situation that would not have been the case eight years after the war had ended and tensions were still high. As the applicants have been told that there are squatters but nothing more is known I find that on the evidence available the squatters would not be in a position to leverage political and/or legal support against the applicants nor is there a real chance or a real risk that they are people who would cause serious or significant harm to the applicants.
103. I note that the applicants’ home is a [number]-storey house with a ground floor [area] which was used for their business before. The applicants have an opportunity to draw upon rental income from this building to survive once they arrange for the eviction of the squatters. As such I find that in the reasonably foreseeable future neither applicant faces a real chance of serious harm or a real risk of significant harm arising from socio-economic deprivation.
104. It was claimed that the second named applicant would not be able to work due to her age and health. I accept this. In response to the written question of whether there is a reason that the second named applicant could not access the universal pension system in Kosovo she responded that while there is a law that supports the entitlement in practice the process of accessing the benefit is ‘unreasonably prolonged’ and provides no guarantee that the pension will be received. They added that pensioners of a minority group experience difficulty in dealing with offices and authorities in obtaining such entitlements.
105. The second named applicant further submitted that she fears engaging with the government for reasons of being tormented for her former Serbian associations and Christian faith and making her family’s details known to her oppressors. Based upon her claimed past experience of having received ‘daily systematic persecution’ and being accused of being a ‘traitor’ she claims to have experienced a serious diminution of her mental stability. In tandem with this claim she wrote that the amount of the pension is not large enough to make the risk worthwhile and furthermore that it would not be enough for her and her son to subsist.
106. I find that the applicant will have access to the pension albeit after a period in which she will have her application processed. I find that engaging with the government to access the pension will not lead to serious or significant harm in the form of further diminution of her mental stability. No evidence being provided nor available to suggest that there are ethnic or religious influences in who obtains a pension or delays in obtaining pensions I find that a bureaucratic waiting period would not place her in a position of facing a real chance of serious harm or a real risk of significant harm.
Considerations: Limited movement
107. The applicant claimed in a submission that 70% of Kosovo is inaccessible to him. In a post hearing submission the applicant claimed that because Catholics speak, greet, dress and dine differently he would be easily identified when travelling. He submitted that discrimination and hate crimes occur throughout Kosovo. A news report of a UN worker being killed in 1999 for speaking Serbian was submitted. It was claimed that the applicants have experienced such behaviour on a daily basis and that the type of behaviour that led to the UN worker’s death continues but is unreported. Further information was provided from 1999 showing the then situation of Catholics in Kosovo. The applicants argued that because 95.6% of the population is Muslim this limits the scope of their ability to travel. They further provided evidence from the Department of Foreign Affairs and Trade travel advice on Kosovo which warned to take a ‘high degree of caution in Kosovo overall due to the threat of politically motivated violence’.
108. The majority of evidence provided to the Tribunal to support the claim that the applicant is limited in his movements and risks harm when travelling is based upon information from 1999. The war ended in 1999. It is 20 years since then. I do not accept that reports of murders due to ethnicity would go unreported as claimed for the reason that NATO remains heavily involved and that there are brave journalists who continue to provide coverage such as those highlighted by the applicants’ submissions. While I accept traveller advice from DFAT I note that it is premised upon the reader being a foreign traveller unfamiliar with the country, culture and language. This profile carries a far higher risk of being inadvertently caught in ‘politically motivated violence’ than does the applicant’s profile. While I accept that there is politically motivated violence I find that based upon the country information available the applicant does not face limitations on his movement arising from a fear of harm.
109. No information was provided to suggest that the incidence of political violence was high such that it presents a real risk to ordinary citizens. I also find that as the applicants are not politically active and would not have reason to find themselves in circumstances different to those of ordinary citizens who I find do not face a real chance of serious harm or a real risk of significant harm then consequently I find that so too the applicants would not face a real chance of serious harm or a real risk of significant harm.
Other considerations
110. It was stated that the father of the applicant was a member of the [political party] of Kosovo. No claims were made upon this basis. The father passed away in [year]. I find that were the applicants to return 10 years after his passing, his membership of a legal political party would not lead to them facing a real chance of serious harm or a real risk of significant harm.
111. I have also considered the second named applicant’s depression arising at least in part due to her mental anguish. I note that she has not sought treatment from a psychologist while in Australia. There is only one reference to it submitted to the Tribunal in a General Practitioner’s note from 2016. Considering that the applicant has not pursued treatment and that she has family in Kosovo, understands the language and will have access to the pension I find that the applicant can seek the same level of support relating to her depression as she has here such that any mental health challenges that may arise from mental anguish in witnessing what her children go through, mental abuse or other sources can be treated such that they don’t rise to a level of serious or significant harm.
Cumulative considerations
112. I have also considered the situation cumulatively. The applicants have a [sibling/child] who was in a relationship with a powerful man in Kosovo. She may be of interest to him but I found that he has no interest in pursuing her through the family. Other possible harm arising from earlier findings included the applicants facing discrimination due to their religion; the applicant facing physical violence; both applicants pursuing ownership of their home; the second named applicant pursuing her pension; general levels of corruption; an association with Serbia; vulnerability to subsist arising from housing, income and mental health reasons; being related to someone who was a member of the Democratic League of Kosovo; and risks of generalised political violence and Islamic extremist violence. I find when considered collectively that the applicants do not face a real chance of serious harm or a real risk of significant harm.
Conclusions
113. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a Protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a Protection visa, they cannot be granted the visa.
DECISION
114. The Tribunal affirms the decision not to grant the applicants Protection visas.
Denis Dragovic
Senior Member

[2019] AATA 3414

5 March 2019

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Appeal