1619824 (Refugee)

[2020] AATA 1783

1619824 (Refugee) [2020] AATA 1783 (28 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1619824

COUNTRY OF REFERENCE:                   Republic of North Macedonia

MEMBER:Lilly Mojsin

DATE:28 February 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 28 February 2020 at 8.05 am

CATCHWORDS

REFUGEE – protection visa – Republic of North Macedonia – religion – Christian – race – Macedonian – religious violence – fear of returning ISIS fighters – physical assault – attack by Albanian Muslims – Police – state protection – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36, 65, 360, 425, 426, 441
Migration Regulations 1994 (Cth), 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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Republic of North Macedonia, applied for the visa [PV] on 17 August 2014 and the delegate refused to grant the visa on 31 October 2016. The applicant applied for review of that decision to this Tribunal, annexing a copy of the Department decision to his application for review.

3. The applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 25 February 2020 at 10.00 am. The invitation stated that if the applicant did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.

4. The applicant did not acknowledge the Tribunal correspondence. The applicant did not attend the scheduled Tribunal hearing on 25 February 2020 at 10.00 am. In addition, the Tribunal finds that the applicant is aware of the issues before the Tribunal, as the issues were set out in the delegate's decision provided by the applicant to the Tribunal, and the applicant has failed to take advantage of the opportunity to attend the hearing and present evidence and arguments in support of the application for review, or provide any other supporting evidence.

5. Section 426A of the Migration Act provides that if an applicant has been invited under s425 to attend a hearing and does not appear on the day on which, or at the time and place at which, she or he is scheduled to appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

6. I find the hearing invitation, was sent to the applicant's email address, was sent to the email address that was given by the applicant in the applicant's application for review. I am satisfied the hearing invitation was given to the relevant person by one of the methods in s.441A and that the prescribed period of notice of the relevant day, time and place of the scheduled hearing has been given. In these circumstances, pursuant to s.426A of the Act, I proceed to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal.

   CRITERIA FOR A PROTECTION VISA

7. See Annexure A

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Evidence in the Department file[1] indicates as follows:

   [1] [File number]

9. The applicant was born on [date] in Skopje, Republic of North Macedonia.  The applicant graduated from [a named educational institution], in [year].  The applicant worked as [an occupation] in the then Macedonia and as [a related occupation] in [another country].

10. The applicant claimed that in February 2011 he was walking towards his church in [Town 1], his hometown. A group of Muslims stopped him in the street and demanded to know what he was carrying. He said that he was carrying his bible and going to the Christian church. They said ‘Oh, a Christian,’ and then grabbed his bible and candles. They took his bible and started ripping pages out of it. He was horrified and asked them to stop because that it was his holy book. They laughed and one of them hit him with what was left of the bible, calling him “Gyaur” meaning infidel. This was great humiliation. The group then walked away and continued laughing. He was extremely angry.

11. The applicant wanted to pay them back for the humiliation so the next day he bought a Quran and went to their Mosque hoping to meet them at their prayer time. When they finished their prayers he went and found some of those people who tore up his bible the previous day and then started tearing up the Quran in front of them. When they saw that they and other Muslims attacked him and beat him. The applicant was severely beaten. He was afraid for his life. They left him lying in pool of blood when passers-by intervened. The Muslims continued to chant ‘we are going to kill you’. It was only because of the other people they couldn’t do it. One friendly person took him in his car to the police station and the applicant reported the attack. He told them how it all happened but they were not sympathetic to him. This was because more than half of the police in their town are Muslims. The applicant went home after that, feeling very afraid for his life. He made plans to depart as soon as possible because he claims that he knew that the Muslims were very violent and he feared that they would seriously injure or kill him so he decided to go to Australia to study and be as far as possible away from them.

12. [In] May 2011 the applicant arrived in Australia as a holder of a [Student] visa.

13. On 23 August 2012, the applicant applied for a Student [further] visa and was granted a Bridging visa A with Work Limitation condition.  On 25 October 2012, the applicant’s Student visa application was refused.

14. The applicant appealed that decision and [in] April 2014 the then Migration Review Tribunal[2] affirmed the Department decision.

    [2] MRT [File number]

15. [In] July 2014 the applicant applied to the Minister for Ministerial Intervention.

16. On 15 July 2014 the applicant was granted a Bridging visa E. He indicated to the Department that he was returning back to Republic of North Macedonia and provided his air ticket for travel [in] August 2014.[3]

    [3] [File number] F95-6

17. The applicant applied for PV on 17 August 2014. The applicant was interviewed by the Department on 21 October 2015.

18. The applicant provided the following relevant documents to the Department:

    ·Press Statement: Macedonia Operation on Suspected ISIL Facilitators - Source: U.S Department of State 6.8.15

    ·Article: Clashes in Kumanovo, Macedonian, Kill 5 Police Officers - Source: CNN 19.10.15

    ·Article: Gun Battle in Ethnic Albanian Region Deepens Macedonian Crisis - Source: Reuters, 10.5.15

    ·Press Statement: Macedonia: Police Officers and ‘Armed Group’ Members Killed During Clashes - Source: The Guardian 11.5.15

    ·Article: Macedonia Battles Gunmen in Albanian Region; 6 Dead - Source: Reuters – 19.10.15

    ·Article: Macedonia Police Killed in Clashes with ‘Terrorists’ - Source: BBC – 10.5.15

    ·Article: Macedonian Police Arrest 7 Alleged Armed Group Supporters - Source: The Washington Post 19.10.15

19. A letter by the applicant stated:

    I came in Australia on student visa. I study English then I want it to continue with my education and I apply and they accept me in [a named] College on [a subject]. When a apply for student visa I didn’t know that I need guarantee of $[amount]. I don’t have them and I ask for help. The person told me that he will help. He gave me ban statement with more than enough money and I apply but Immigration ask some more documents and he change his mind, he didn’t want to give me that. So Immigration refuse my application. Then I apply in MRT they also refuse my request. After that I apply and sent letter to the Minister. All this period I was lawful, I have all rights. When I took documents that I sent letter to the Minister to the Immigration Office which was 6 days after, I sent the letter the officer in immigration office told me that minister already refuse my letter and officer in Immigration cut my rights to work and he put me to be unlawful and he told me to leave Australia in 28 days. From that moment I loose right to work. Cause of sensitivities of my case I was scared to talk with anyone and I didn’t know that I can apply before I was struggling with money all period when I’m here in Australia, I didn’t have money and my English is not good enough to go to talk with agent or lawyer.

    All applications I make by myself. I was ready to leave Australia but I talk with some friend in Macedonia and they told me that situation is worst and very bad, they told me there is more than 10 people from Macedonia who died in Siria (sic) and Iraq who a Muslims and they been killed fight for ISIS. That scared me more cause some Albanian Muslim who a fighting there in Syria and Iraq for ISIS when they will come back home to Macedonia if they of someone told them what I’ve done easy they can find me and hurt me or kill me also my family can be hurt. Resume, I didn’t apply before cause I was scared I didn’t know when I can apply cause my English was not good I didn’t have help from agent migration or lawyer, all period I was lawful I was planning to solve my problem thru studies and not to come to stage to have to talk about my case cause really I’m scared to go back in my country.

20. The applicant did not provide any submissions to the Tribunal.

    REASONS AND FINDINGS

21. The applicant's identity has been accepted by the Department in his visa application. On the basis of his then Republic of Macedonian passport, I accept that the applicant is a national of the now Republic of North Macedonia and not a national or citizen of any other country. I accept that he does not have a right to enter and reside in any country other than the Republic of North Macedonia. Therefore I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that the Republic of North Macedonia is the applicant’s “receiving country” for the purposes of s.36(2)(aa).

22. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. Similarly that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

23. The applicant was put on notice that the department did not accept his claims. The applicant did not attend the Tribunal hearing and I am unable to explore important aspects of his claims with him.

24. I accept that the applicant is an ethnic Christian Macedonian. According to the US State Department Report on Human Rights Practices: North Macedonia 2018[4]

    The Republic of North Macedonia is a parliamentary democracy. A popularly elected president is head of state and commander in chief of the armed forces. The unicameral parliament exercises legislative authority. Parliamentary elections were last held in 2016 and presidential elections in 2014. In its final report on the parliamentary elections, the Organization for Security and Cooperation in Europe’s Office for Democratic Institutions and Human Rights (OSCE/ODIHR) observed that the elections were transparent, well administered, and orderly but took place “in an environment characterized by a lack of public trust in institutions and the political establishment” and failed to meet some important OSCE commitments for a democratic electoral process.

    According to the country’s most recent census in 2002, the ethnic composition of the population was 64.2 percent Macedonian , 25.2 percent Albanian, 3.9 percent Turkish, 2.7 percent Romani, 1.8 percent Serbian, 0.8 percent Bosniak, and 0.5 percent Vlach. According to the ombudsman’s annual report, ethnic minorities, with the exception of Serbs and Vlachs, were underrepresented in the civil service and other state institutions, including the military, police, intelligence services, courts, national bank, customs service, and public enterprises.

    [4]

25. The applicant claims fear of serious harm by non-state agents for reasons of his ethnicity and religion.

26. The applicant claims that as a Christian Macedonian he was attacked and seriously harmed by Albanian Muslims in [Town 1] when he tore up a Quran because his attackers had previously tore up his bible, taken his candles and humiliated him. The applicant further claims that the police in [Town 1], who were more than half Muslims, were unsympathetic and unwilling or unable to protect him.

27. The applicant was born in Skopje and went to [educational facility] in Skopje, but he claims to have lived in [Town 1]. Without further information from the applicant, I am not satisfied that the applicant lived in [Town 1].

28. Information provided in the ‘Handbook on Policing in Central and Eastern Europe’ indicates that in 2011 Macedonia’s National Police force had a total of 11,195 employees.  They comprised of  8813 Macedonians and 1888 Albanians, 182 Serbs, 70 Turks, 72 Roma, 28 Bosniaks and 92 Others. The Law on Police, enacted in 2006, contains detailed provisions on supervision and control over police. There is an Ombudsman for oversight of the police and a unit within the Ministry of Police, the ‘Unit for Internal Control and Professional Standards’ to investigate cases of abuse of police powers or conduct. Whilst I accept that that [Town 1] is a town with a majority ethnic Albanian population, in light of the independent evidence, without further evidence from the applicant, I do not accept that the police in [Town 1] were majority Muslim who were unsympathetic or who refused to protect the applicant. Without further information from the applicant I do not accept that the applicant attended a church in [Town 1] and was harmed on his way home from church by ethnic Albanians who tore up his bible and took his candles.

29. The applicant arrived in Australia in 2011 and he did not apply for a PV until 2015, some four years later. The applicant was able to apply for a student visa onshore, he was able to apply for review of the refusal to grant him a protection visa, he was able to apply for bridging visas and also request Ministerial Intervention. Therefore, I do not accept, without further information from the applicant, that the delay in applying for a PV was because he came to Australia to study and he was scared to talk with anyone or that he did not know that he could apply for a PV, or he was struggling with money or that his English was not good enough to talk to an agent or lawyer.

30. Nor do I accept, without further information from the applicant, that a reason for delay in applying for a PV was because the applicant was scared of Albanian Muslims who had been fighting in Syria and Iraq for ISIS and would come back home to Macedonia, find him and hurt him or kill him and he was planning to solve his problem through studies. I have read the independent information provided by the applicant to the Department. That information indicates that in 2015 the police arrested suspects of terrorism and some were killed fighting against rebels wanting the creation of an independent Muslim state. These incidents occurred in 2015, after the applicant applied for a PV.  Further I have found no independent evidence to suggest that returned Albanian Muslims fighters for ISIS have attacked or harmed minority ethnic Christian Macedonians in [Town 1].  

31. The applicant’s delay applying for a PV for over four years raises serious concerns in relation to the credibility of the applicant and the veracity of his claims. I am satisfied that a four year delay indicates a lack of a subjective fear of persecution.

32. I am satisfied that the applicant departed the now Republic of North Macedonia as the holder of a student visa to come to Australia.

33. On the evidence before me, I find that the applicant did not suffer serious harm in the now Republic of North Macedonia, prior to his departure. 

34. I am required to assess if the applicant has a real chance of suffering Convention related harm or significant harm on his return to the Republic of North Macedonia now or within a reasonably foreseeable future.

35. The independent evidence[5] indicates that

    Civilian authorities maintained effective control over the army and the Ministry of Interior, and the government has effective mechanisms to investigate and punish abuse.

    The constitution provides for “autonomous and independent” courts, supported by an independent and autonomous Judicial Council. The government demonstrated greater respect for judicial independence and impartiality compared to previous years. Limited judicial independence, politicization of the judicial oversight body, and inadequate funding of the judiciary, however, continued to hamper court operations and effectiveness.

    Citizens had access to courts to submit lawsuits seeking damages for human rights violations. Individuals may file human rights cases in the criminal, civil, or administrative courts, and the Constitutional Court, depending upon the type of human rights violation in question and its alleged perpetrator.

    According to the ombudsman’s annual report for 2017, the greatest number of citizen complaints (576 or 17 percent) concerned the judicial system. Almost half of the complaints related to the rights of citizens in enforcement procedures. Between January and August, the greatest number of complaints (432 or 19 percent) related to the judiciary. The report stated citizens complained about long trials, bias, selective justice, and undue pressure on judges.

    Ethnic Albanians continued to criticize unequal representation in government ministries and public enterprises, as well as inequitable budget allocations. The country’s police academy continued to fall short of the number of minority trainees needed to comply with the constitution, which stipulates that the administration reflect the ethnic composition of the state. Ethnic Albanians alleged the government designed the testing process in the academy unfairly to deny access to minority groups. In particular, ethnic Albanians complained of cultural biases in the tests. Ethnic Albanian and other minority representation within the civilian administration of the Ministry of Defense remained low. Some elite units of the police and the military had almost no representation of ethnic minorities.

    [5] >

    According to 2018 Report on International Religious Freedom: North Macedonia[6]

    The constitution and laws prohibit religious discrimination and guarantee freedom of religion and religious expression.  They provide for equality before the law for all individuals regardless of religious belief. In December hate crimes were added to the criminal code, including crimes based on the religion or belief of the victim. According to the last national census, in 2002, an estimated 65 percent of the population is Orthodox Christian and 33 percent Muslim.  

    [6] >

    I accept that [Town 1] is a majority ethnic Albanian town. I accept that in 2015 there have been various clashes with the police and terrorist group in the Republic of North Macedonia. I am satisfied, in light of the evidence before me, that the State of the Republic of North Macedonia has put in place reasonable measures to protect the lives and safety of its citizens, including appropriate criminal law and the provisions of a reasonably effective and impartial police force and judicial system.

1. I have considered the claims of the applicant individually and cumulatively.  For the above reasons, I find that the applicant faced no serious harm in the past for a Convention related reason and I am not satisfied the applicant faces a real chance of serious harm upon return to the now Republic of North Macedonia for a Convention related reason in the reasonably foreseeable future. I am satisfied that the applicant does not have a profile that would cause him to be of any interest to the authorities.

2. The available information also does not indicate that there is a real chance that in the reasonably foreseeable future, the applicant, an ethnic Christian Macedonian, would be subjected to violence or significant physical harassment or ill-treatment, or have his life or liberty threatened, or denied access to basic services or the capacity to earn a livelihood or suffer economic hardship that would threaten his capacity to subsist. I am of the view that, were it the situation, it would be known to independent sources such as US State Department and the OSCE who monitor the situation in the Republic of North Macedonia.

3. Having considered these circumstances, singularly and cumulatively, I do not accept there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Republic of North Macedonia, there is a real risk that he would suffer significant harm in terms of s.36(2)(aa) of the Act. I am not satisfied  that there is a real risk that the applicant would be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subject to cruel or inhuman treatment or punishment or to degrading treatment or punishment.

4. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa.

5. Accordingly, the applicant does not satisfy the criterion in s.36(2).

   DECISION

6. The Tribunal affirms the decision not to grant the applicant a Protection visa.

   Lilly Mojsin
   Member

   
   

   ANNEXURE A

7. 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.

8. 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).

9. 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.

10. 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’).

11. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs.