1620133 (Refugee)

[2018] AATA 5725

1620133 (Refugee) [2018] AATA 5725 (17 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1620133

COUNTRY OF REFERENCE:                  Macedonia, Fmr Yugo Rep of

MEMBER:Peter Vlahos

DATE:17 December 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 17 December 2018 at 10:00am

CATCHWORDS
REFUGEE – protection visa – Former Yugoslav Republic of Macedonia – ethnicity – Albanian – worked for Albanian organisation – vandalised and attacked by extremists harm – wife continues to work at organisation – credibility – no real chance of persecution – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth) Schedule 2

CASES
Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547)
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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.

_________________________________________________________________________

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claims to be a citizen of Macedonia, Fmr Yugo Rep of, applied for the visa on 16 September 2014 and the delegate refused to grant the visa on 8 November 2016 because he did not satisfy subsection 36(2) of the Act.  

3. On 29 November 2016 the applicant made an application to the Tribunal for review of the delegate’s decision to refuse him a Protection visa.

4. On 2 August 2018, the Tribunal by letter invited the applicant to appear before it on 29 November 2018 to give evidence and present arguments relating to the issues arising in his application for Protection visa.

5. The applicant appeared before the Tribunal on 29 November 2018 to give evidence and present arguments.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Albanian and English languages.

7. The applicant was not represented at the hearing a legal representative or a registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. 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).

10. 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.

11. 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’).

12. 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

13. The issue in this case is Australia has protection obligations in respect of the [applicant]. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    APPLICANT’S MIGRATION HISTORY/BACKGROUND

14. The applicant is [an age]-year-old ethnic Albanian who was born and grew up in Macedonia. The applicant first arrived in Australia on [date] June 2014 as the holder of a [temporary] which expired on 20 September 2014.

15. The applicant has not departed Australia since his arrival. On 16 September 2014 the applicant lodged a valid Protection visa application and was granted a bridging visa in association.

16. Based on a copy of the applicant’s passport, which was provided to the Department of Immigration and Border Protection (the Department) and to the Tribunal at the hearing and in the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Former Yugoslav Republic of Macedonia and has had his claims assessed against that country in relation to sections 36(2)(a) and 36(2)(aa) of the Act. On the basis of this evidence, the Tribunal finds and accepts the applicant’s identity as a citizen of the Former Yugoslav Republic of Macedonia as claimed.

17. The Tribunal also has before it the Department’s file relating to the applicant. The Tribunal also has regard to material referred to in the delegate’s decision. The applicant provided a copy of the department’s record of decision to the Tribunal with the review application.

    EVIDENCE AT THE HEARING

    The applicant’s claims for protection

18. The applicant’s written claims for protection as submitted to the Department can be summarised as follows:[1]

    §After responding to a newspaper advertisement, he (the applicant) was appointed the [Position 1] of [an Albanian organisation] in [City 1] in 2009. This [organisation] was significant for Albanians from Macedonia and contained [Albanian related information] in Macedonia (FYROM).

    §The [organisation] was maintained by [a government agency] and consisted of [a number of] employees at the [organisation].

    §The situation for Albanians in Macedonia was difficult. He claims that both he and his family have been threatened and attacked. He also claims that his house in [City 1] has been shot at by neo-Nazis.

    §During his time as [Position 1] of this [organisation], the building was vandalised on several occasions.

    §The applicant claims that the [organisation] was vandalised because [groups] with Macedonia feared that Albanians were taking over Macedonia.

    §The applicant claims that he will be killed if he is to return to Macedonia, on account of having [worked at] this [organisation] in [City 1].

    [1] Department File [deleted] Folio [19]-[22]

19. The Tribunal read to the applicant the written claims with the assistance of the interpreter and asked him whether he had any further claims he wished the Tribunal to consider. In response, the applicant said that his fears for his life were genuine and had surfaced because of his involvement with the ‘[organisation]’ in [City 1] and his strong support for the protection and maintenance of [Albanian culture] in Macedonia. He feared as an ‘institution’ the [organisation] it faced a direct threat to its existence by extremist elements operating on a daily basis in Macedonia. [Details deleted]. These extremists do not want the Albanians of Macedonia to celebrate [the Albanian culture][2] [and] according to the applicant, the Albanians living in [City 1] fear (as he does) that future celebrations would be marred by violence caused by ‘neo-Nazis.’

    [2] [Source deleted].

20. The applicant stated that before coming to Australia, he lived in [City 1], Macedonia (FYROM) with his family. He is married and both his wife and son are currently living in [City 1] His wife, the applicant told the Tribunal, works at the [organisation]. The applicant is [an occupation] and worked as such in [City 1] for fifteen years before being appointed [as] one of the ‘[Position 1]s’ of the [organisation].

21. The applicant stated that he was of the Muslim faith but did not practise his faith either in Macedonia or while here in Australia.

22. He was appointed by the government as [Position 1] the [organisation]’s ‘managing [Position 1]’ in 2010 on the recommendation of [details deleted] after rigorous examination.

23. The applicant stated that his appointment as ‘managing [Position 1]’ was for two years.

24. In the time the applicant was involved in the [organisation]’s day-to-day management, he told the Tribunal that the [organisation]’s profile was enhanced among Albanians in [City 1] and it became a centre for the Albanians to better understand [their culture].

25. The applicant stated that he respected the Macedonian government and never gave cause to the authorities to re-visit his appointment or to question the correctness of their decision in appointing him.

26. Indeed, in the time he was involved with the [organisation] he worked well with all employees and had no issues with anyone.

    What does the [organisation] do? What is its purpose?

27. [Paragraph deleted].

28. [Paragraph deleted].

    Does the [organisation] receive government funding?

29. The applicant said the [organisation] did receive government funding for the wages of the employees of the [organisation]. It also received money from various benefactors. However, the [organisation] always had an on-going need for funds to allow it to operate to its maximum capacity. The applicant went on to tell the Tribunal that the [organisation] always faced this need for extra funds because the allocated funding from the Macedonian government was not always forthcoming on time.

30. The applicant went on to explain that this ‘shortfall’ could be explained because the previous government was not so supportive of the [organisation]’s purpose because it was more ‘nationalist’ in its outlook – wearing of the work of Macedonia’s minorities. This former government was a ‘coalition’ and it eventually lost power but the delays in funding from the Macedonian state have continued.

    What caused the applicant to fear for his life?

31. The applicant recalled an incident that occurred in 2009. That incident involved a group of ‘unknowns’ attacking the [organisation] – smashing its windows and doors and shouting anti-Albanian slogans like ‘…death to Albanians…’ The incident was reported to the local police but they did very little. The applicant also stated that the Albanian minority political parties in the Macedonian parliament also placed pressure on him to keep the incident ‘quiet’ because they feared further outbreaks of anti-Albanian feelings.

32. In 2012-2013 the [organisation’s] employees were attacked by ‘neo-Nazis’ the applicant recalled. On that occasion the [organisation]’s windows were again broken. Moreover, the [organisation] has endured further ‘vandalisms’ in 2017 and the authorities have done nothing to protect the institution.

    Have there been any attacks on the applicant’s family members living in [City 1]?

33. The applicant confirmed to the Tribunal that his wife and other employees are still working at the [organisation] on a daily basis and there have been instances of ‘vandalism’. However, the [organisation] has employed a ‘guardian’ and also ‘cameras’ have been installed to police and protect the premises from vandal attacks.

34. The applicant said that the attacks on the [organisation] were reported to [officials] in Macedonia who has asked questions why the local police had not taken any action to find the perpetrators.

35. Despite [officials’] involvement, the applicant told the Tribunal that no measures had been taken by the police.

    Does the applicant have continued fears about returning to [City 1]?

36. The applicant said that he feared that the [organisation] is being ‘spied on’ by ‘former politicians…’ and that no one felt ‘safe’. The feeling of apprehension and fear was caused because (according to the applicant) ‘no one wanted to cooperate with the [organisation]’. Everything involving the [organisation] is ‘political…’ Also, no funds have been distributed for the maintenance of [organisation] because everything is ‘…strictly controlled…’

    What did the applicant do when he realised, he could not get any assistance from the authorities in Macedonia?

37. The applicant said that when no help came from the authorities, he decided that he should leave Macedonia. He understood that the situation in the country was deteriorating. He told the Tribunal that his fears increased when he saw on television the Macedonian parliament being ‘stormed’ by nationalist protesters.

    Is the applicant afraid to return to Macedonia?

38. The applicant stated that he could “not exactly say…” how he feels about a return to Macedonia because over “…five years have pasted…” and “…things have changed…” However, employees who have worked for the [organisation] in the past “…two years…” “have lost their lives…”

39. The applicant could tell the Tribunal the circumstances of these employees’ deaths but he did not believe any “police reports…” The applicant went on to attribute these incidents on the “…former Macedonian Prime Minister…who is now a fugitive…” and seeking “…political asylum in Hungary…”

40. The applicant believed that such incidents were “acts of revenge…”

41. The applicant stated that he “feared for his family…” who were still living in [City 1] and his wife was working at the [organisation]. The applicant went on to tell the Tribunal, that “there were no attacks on his family…” currently, but such attacks can occur. The applicant then made mention of “…gunshots outside his home…” in 2012/2013 but offered no further details.

    FURTHER MATTERS RAISED BY THE APPLICANT

42. The applicant stated that he had personal issues with the authorities involving ‘…money…’ According to the applicant, an amount of AUD[amount] was owed to the government by the [organisation] and the applicant prior to coming to Australia had neglected its payment. An investigation was undertaken and the applicant was requested to pay this outstanding amount.

43. While here in Australia, the applicant told the Tribunal that this outstanding amount owed to the Macedonian government had been paid in full and no other issues are outstanding which affect the applicant directly as a former employee of the [organisation].

44. The applicant continues to fear the VMRO – the Macedonian ‘nationalist party’ which does not support the Albanians in Macedonia.

45. He also told the Tribunal that Albanians are “…discriminated…” in Macedonia even though the Albanian ethnic minority has a strong representation currently in the Macedonian parliament in Skopje. The applicant went on to tell the Tribunal that the Orchid Agreement which guaranteed the rights of the Albanian minority was not being given support by the Macedonia state and this would make the future very difficult for Albanians living in Macedonia.

46. The applicant said that Albanians (like him) face a future and a situation where bilingualism would be strongly opposed by ‘nationalist’ elements within Macedonia. The Tribunal was told that Albanians in Macedonia were resisting and were making it known to the authorities in Skopje that they not that country’s “…20% of its overall population but Albanians…”

    Why did the applicant not bring with him his family to Australia when he decided to leave [City 1]?

47. The applicant said that it was not his intention to remain in Australia for a indefinite period of time. He went on to tell the Tribunal that “…If I could remain here…I would bring my family later…”

48. The applicant’s wife, the Tribunal was told, has her “…brother …” living here and he concluded his comments to the Tribunal that “…he had no intention of remaining in Australia…”

49. The applicant is in regular contact with his family in [City 1]. His son is attending school on a regular basis and is (according to the applicant) in good health.

    COUNTRY INFORMATION – ALBANIAN MINORITY IN MACEDONIA (FYROM)

50. According to the official census data (held every ten years), Albanians made up 19% of the total population in 1953. The population fell to 13% in 1961, but increased again in 1971 to 17%. The group formed 19.7% in 1981 and 21% in 1991.[3] At the last census in 2002, the Albanian population was 25.2%. Ethnologue in 2002 estimated some 500,000 people speaking the Albanian language in the Republic of Macedonia.[4] In the decade since the republic declared independence from Yugoslavia, some Albanians have claimed to account for 30% of the population and demanded an appropriate share of power. On the other side, ethnic Macedonians said Albanians were barely 20%.[5] However, the widely accepted number of Albanians in the Republic of Macedonia is according to the internationally monitored[6] 2002 census. The census data estimated that Albanians account for about 25.2% of the total population. The 2012 census was not held and boycotted by the Albanian political parties.

    [3] “2002 Census results” (

    [4] “Macedonia” ( Reuters (2 December 2003) “World briefing – Europe: Macedonia: Overdue Ethnic Census is Completed” ( ) - via NYTimes.com

    [6] “Head of UN-created Kosovo Protection Corps arrested- 19:28 -B92” (

51. In the 2008 Macedonian parliamentary elections, Albanian political parties received 22.61% of the total vote receiving 29 of 120 seats.[7]

    [7] “B92 – News – Region – Grueski victorious in violence-marred Macedonian polls” (>

    The Republic of Macedonia has a few Albanian parties. The Democratic Union for Integration (DUI) and the Democratic Party of Albanians are the two largest Albanian political parties in the country. In 2008 Macedonian Parliamentary elections, the DUI won 11.3% of the total vote, while the DPA got 10.1%.[8] However, due to pre-election fights between the two main Albanian political parties, some Albanian areas of the country have revoted.

    [8] Ibid

52. In the 2011 Macedonian Parliamentary elections, Albanian parties received 20.96% of the popular vote. The DUI received 10.2% of the vote, giving it 15 seats. This is a loss of 3 seats from the previous elections. The DPA received 5.9% of the vote, winning 8 seats which is also a drop of 3 seats from the 2008 elections. The third Albanian party to receive seats in parliament is the National Democratic Revival Party which received two seats with 2.7% of the vote.[9]

    [9] “Conservative Leader Claims 3^rd Term in Macedonia” ( NPR. 2011-06-06

1. In the 2014 elections, the three Albanian parties, DUI, DPA and NDP won 19 seats, seven seats, and one seat, respectively, out of the 123 total seats. Ethnic Albanian parties received just fewer than 21% of the total popular vote.[10]

   [10] “Early Parliamentary and Presidential Elections 2014” ( State Election Commission.

   Current Issues

2. Amongst the unemployed, Albanians are highly overrepresented. In public institutions as well many private sectors they are underrepresented. They also face discrimination by public officials and employees.[11] According to the United States’ Country Report on Human Rights 2012 for Macedonia “…certain ministries declined to share information about the ethnic of employees…” The reports also added:

   “...ethnic Albanians and other national minorities, with the exception of ethnic Serbs and     Vlachs, were underrepresented in the civil service and other state institutions, including the       military, the police force, and the intelligence services, as well as the courts, the national        bank, customs, and the public enterprises, in spite of efforts to recruit qualified candidates      from these communities. Ethnic Albanians constituted 18% of army personnel, while        minority communities as a whole accounted for 25%of the population according to statistics      provided by the government…”[12]

   [11] ‘Albanians- Minority Rights Group’ (

   [12] ‘Country Reports on Human Rights Practices for 2012, Macedonia’ ( of Democracy, human Rights and Labour.

3. Albanian nationalism in the Republic of Macedonia came about during the Albanian nationalist movement which emerged as a response to the Eastern Crisis (1878) and proposed partitioning of Ottoman Albanian inhabited lands among neighbouring countries.[13]

   [13] Babuna, Aydin (2004). “The Bosnian Muslims and Albanians: Islam and Nationalism” Nationalities Papers. 32 (2): 287-321.

4. During the remainder of the Ottoman period various disagreements culminated between Albanian nationalists and the Ottoman Empire over socio-cultural rights. The Balkan Wars (1912-1913) ending with Ottoman defeat, Serbian and later Yugoslav sovereignty over the area generated an Albanian nationalism that has become distinct to Macedonia stressing Albanian language, culture and identity within the context of state and socio-political rights.

5. Pan-Albanian sentiments are also present and historically have been achieved only once when western Macedonia was united with the Italian Axis forces to their protectorate of Albania during the Second World War.

6. Reincorporated within Yugoslavia, Albanian nationalism in Macedonia had drawn upon socio-political influences stemming from Albanian nationalism in Kosovo. Being a minority population, the addition of Islam has also shaped and blended into definitions of local Albanian identity in opposition to the Orthodox Slavic-Macedonian majority. Traditions of armed resistance by local Albanians have occurred over time with the most recent fighting (2001) being between the National Liberation Army (NLA) guerrilla fighters and the Macedonian Army. The conflict ended with the adoption of the Ohrid Agreement (2001) which guaranteed extensive Albanian socio-political and linguistic rights in the country satisfying a main tenet of Albanian nationalism in Macedonia.

7. Albanians in Macedonia alongside their Kosovar Albanian counterparts after the fall of communism became the main force steering Albanian nationalism.[14] While Islam did not become a main focal point of articulating Albanian political nationalism it influenced the collective outlook of Albanians in Macedonia.[15] With Macedonian independence (1991) the status of Albanians became demoted to “national minority” from the previous Yugoslav category of “national minority.”[16] While the constitution referred to Macedonia as being as the nation-state of Macedonians. However, a referendum in 1992 was held in the Albanian majority of Western Macedonia with 72% of eligible voters voting for autonomy and the ‘federalisation’ of Macedonia.[17]

   [14] Merdjanova, Ina (2013). Rediscovering the Umma: Muslims in the Balkans between nationalism and transnationalism ( ) London: Routledge, pp. 296-317. ISBN9780415212762.

   [15] Ibid, also Ramet, Sabrina P, (1997) Whose Democracy? Nationalism, Religion and the Doctrine of Collective rights in post-1989 eastern Europe ( Lanham: Rowan & Littlefield.

   [16] Merdjanova, Ina (2013). Rediscovering the Umma: Muslims in the Balkans between nationalism and transnationalism ( )London: Routledge, pp. 296-317. ISBN9780415212762.

   [17]Bugajski, Janusz (1994). Ethnic politics in Eastern Europe: A guide to nationality policies, organisations, and parties, Armok: ME Sharpe. ISBN9781315287430.

8. The outcome of the referendum had political ramifications as some Albanian politicians from Tetovo and Struga regions declared the Republic of Ilirida during 1991-1992 with aims of uniting all Albanians of Yugoslavia into one entity.[18] The Ilirida is a portmanteau formed from the words Illyria and Da[rdania], ancient regions that were located in the modern Macedonian republic.[19]

   [18] Ibid

   [19] Neofitistos, Vasiliki P. (2004) “Beyond Stereotypes: Violence and the Porousness of Ethnic Boundaries in the Republic of Macedonia” p.28

9. As an interim measure toward unification, these Albanian politicians also advocated for the creation of an Albanian entity that would cover approximately half of the republic and federalise Macedonia.[20]

   [20] Bugajski 1994, at p.116.

10. Albanian political parties contended that the referendum was demonstrative and instead wanted the Macedonian state to recognise Albanians as a founding ethnic community of Macedonia.[21]

    [21] Fontana, Giuditta (2017) Education policy and power-sharing in post-conflict societies: Lebanon, Northern Ireland and Macedonia, htt:// Birmingham: Palgrave McMillan, at p.100.

11. Albanians in independent Macedonia held only 4% of state jobs, Albanian language secondary schools declined from ten to one and the Albanian language as a university language was taught as a foreign language.[22] During the 1990s protests by Albanians and tensions with Macedonian state development in incidents such as the government ordered cessation of flying the Albanian flag municipal offices in Tetovo and Gostivar alongside disputes with the Albanian education sector.[23] The return from Kosovo of several local Albanians from the professional elite to Macedonia contributed through influence over the Albanian populace by strengthening an Albanian national consciousness and mobilising socio-political organisation.[24]

    [22] Ahmed, Akbar (2013). The thistle and the drone: How America’s war on terror became a global war on tribal Islam, Washington, D.C, Brookings Institution Press, at p.244.

    [23] Ibid 244

    [24] Peshkopia, Ridvan (2015) Conditioning Democratization: Institutional Reforms and EU Membership Conditionality in Albania and Macedonia, London: Anthem Press, at pp. 63, 75.

12. The end of the Kosovo war (1999) resulted in offshoot guerrilla groups from KLA like the National Liberation Army (NLA) surfacing.[25] By 2001 conflict in the northern parts of the Republic of Macedonia erupted into an insurgency fought by Macedonian government forces against the NLA who avoided Islamic identifications while insisting on Islam being given constitutional equal status to Orthodoxy.[26] The NLA also insisted on expanding Albanian language education and government funding for Albanian language universities.[27] The struggle for civic equality and equality of Islam became interlinked with these demands that were achieved through the Ohrid Agreement (2001) which ended conflict by guaranteeing Albanian rights, (university) education, government representation and serving in the police force.[28] High-ranking members of the NLA and the Albanian political establishment in Macedonia favoured expanding Albanian rights within a unified Macedonia.[29] They viewed any form of territorial partition as a loss for Albanians due to their unfavourable demographic and political position.[30] Religion did not play a mobilising factor during the conflict between Albanians and Macedonians, though it is becoming a new element in the relations of the two peoples.[31]

    [25]Liotta, P.H. Jebb, Cindy R. (2004). "Cry, the Imagined Country: Legitimacy and Fate of Macedonia". In Liotta, Peter H.; Jebb, Cindy R. Mapping Macedonia: Idea and identity. Westport: Greenwood Publishing Group. pp. 63–98. ISBN9780275982478.

    [26]Koktsidis, Pavlos Ioannis; Dam, Caspar Ten (2008). "A success story? Analysing Albanian ethno-nationalist extremism in the Balkans" (PDF). East European Quarterly. 42 (2): 161–190.

    [27]Fontana, Giuditta (2017).Education policy and power-sharing in post-conflict societies: Lebanon, Northern Ireland, and Macedonia. Birmingham: Palgrave MacMillan. ISBN9783319314266.

    [28]Merdjanova, Ina (2013).Rediscovering the Umma: Muslims in the Balkans between nationalism and transnationalism. Oxford: Oxford University Press. ISBN 9780190462505.

    [29]Peshkopia, Ridvan (2015).Conditioning Democratization: Institutional Reforms and EU Membership Conditionality in Albania and Macedonia. London: Anthem Press. ISBN 9781783084227.

    [30] Ibid

    [31] Ibid

13. Post conflict, Albanians in Macedonia have placed new statues of Albanian historical figures like Skanderbeg in Skopje and named schools after such individuals while memorials have been erected for fallen KLA and NLA fighters.[32] These developments have increased tensions between Albanians and Macedonians.[33] The figure of Mother Teresa (1910-1997), a Catholic Albanian Nun born in Skopje has been used for nationalist purposes within Macedonia as her origins have been contested and her legacy claimed by some Macedonian and Albanian elites from the local political and academic spectrum.[34]

    [32] Koktsidis, Pavlos Ioannis; Dam, Caspar Ten (2008). "A success story? Analysing Albanian ethno-nationalist extremism in the Balkans" (PDF). East European Quarterly. 42 (2): 161–190.

    [33] Ibid

    [34] Alpion, Gëzim (2004)."Media, ethnicity and patriotism—the Balkans 'unholy war' for the appropriation of Mother Teresa". Journal of Southern Europe and the Balkans. 6 (3): 227–243.

14. Albanian nationalists view Macedonian ethnicity as invented by the Yugoslav s to weaken Serbia, prevent other identities forming and to legitimise the existence of the Republic of Macedonia in Yugoslavia.[35]

    [35]Peshkopia, Ridvan (2015). Conditioning Democratization: Institutional Reforms and EU Membership Conditionality in Albania and Macedonia. London: Anthem Press. ISBN9781783084227.

15. Macedonians are referred to by Albanians as an ethnic collectivity with the term Shkie (Slavs) that also carries pejorative connotations.[36] Some Macedonian commentators have worried that Albanian nationalists view Macedonians as being without historical territorial rights over areas in Macedonia that would become part of Greater Albania and lay claim to more than half of the territory of the republic as once promoted by the League of Prizen.[37]

    [36] Neofitistos, Vasiliki P. (2004) “Beyond Stereotypes: Violence and the Porousness of Ethnic Boundaries in the Republic of Macedonia” Tome; Rajkocevski, Rade (2014). "Psychological Profile and Types of Leaders of Terrorist Structures - Generic Views and Experiences from the Activities of Illegal Groups and Organizations in the Republic of Macedonia". In Milosevic, Marko; Rekawek, Kacper. Perseverance of Terrorism: Focus on Leaders. Amsterdam: IOS Press. pp. 84–102. ISBN9781614993872.

16. In the political sphere Albanian parties maintain secular and nationalistic platforms while supporting the secular framework of the state with an insistence on protecting Islam and the culture of Muslim constituents along with control and interference of Muslim institutions.[38]

    [38] Peshkopia, Ridvan (2015).Conditioning Democratization: Institutional Reforms and EU Membership Conditionality in Albania and Macedonia. London: Anthem Press. ISBN9781783084227.

17. Unlike Albania and Kosovo, national identity and Islam are traditionally linked and stronger among Albanians from Macedonia.[39] The status of Albanians being a minority in Macedonia and that most as Muslims have blended national and religious identity in opposition to the Orthodox Slavic Macedonian majority.[40]

    [39]Merdjanova, Ina (2013). Rediscovering the Umma: Muslims in the Balkans between nationalism and transnationalism. Oxford: Oxford University Press. ISBN9780190462505.

    [40]Ibid

18. Some Albanian establishment figures in Macedonia hold the view that being a good Muslim is synonymous with being Albanian.[41]

    [41]Ibid

19. Language remains an important marker of Albanian identity in Macedonia.[42] In Upper Reka, a region of western Macedonia is home to a Christian Orthodox Albanian speaking population that self identifies as Macedonians.[43] Controversies amongst Upper Reka Orthodox Christians have arisen over identity and the church with a few prominent individuals publicly declaring an Albanian identity or origin and others calling for an Albanian Orthodox Church to be present with in the region.

    KEY FINDINGS OF THE 2018 EUROPEAN COMMISSION REPORT ON MACEDONIA[44]

    Political criteria

    [42]Fontana, Giuditta (2017).Education policy and power-sharing in post-conflict societies: Lebanon, Northern Ireland, and Macedonia. Birmingham: Palgrave MacMillan. ISBN9783319314266.

    [43]Bechev, Dimitar (2009). Historical Dictionary of the Republic of Macedonia. Lanham: Scarecrow Press. ISBN9780810862951.

    [44] >

    The country has finally overcome its most severe political crisis since 2001. The difficult process of government formation reached a critical point during the 27 April 2017 attacks in Parliament, which were condemned in the strongest terms by the international community. Since May 2017, the new reform–oriented government has taken steps to address state capture by gradually restoring checks and balances, strengthening democracy and rule of law. The country is undergoing fundamental changes in a more inclusive and open political atmosphere. The municipal elections in October 2017 confirmed the support of citizens for the EU-oriented policies of the government coalition. The Parliament has continued functioning with opposition parties chairing key committees. The Parliament needs      to enhance its oversight and legislative functions, including by limiting the extensive use of    shortened procedures.

20. While the inter-ethnic situation was fragile, the situation remained calm overall. The review of the implementation of the Ohrid Framework Agreement, which ended the 2001 conflict and provides the framework for the inter-ethnic relations, needs to be followed up in a transparent and inclusive manner. The government has shown commitment to increase trust among communities.

21. Civil society continued to play a constructive role in supporting democratic processes and ensuring greater checks and balances. Since the second half of 2017, the climate in which civil society organisations operate has improved and the government has shown commitment           to dialogue and inclusion.

22. The country is moderately prepared with the reform of its public administration. Good progress has been made with the adoption of the public administration reform strategy and the public financial management reform program. Concrete efforts have been made towards increasing transparency and accountability and involving external stakeholders in policy‑making. The capacity of the Ministry of Information Society and Administration to drive and coordinate public administration reform needs to be improved. Strong political commitment to guarantee the professionalism of the public administration, especially on senior management appointments, and the respect for the principles of transparency, merit and equitable representation in line with the spirit and the letter of the law, remains essential.

23. The country’s judicial system has reached some level of preparation and good progress was made, notably in the latter part of the reporting period. The backsliding of previous years has started to be reversed through decisive steps taken in recent months, notably to start restoring the independence of the judiciary. The country adopted a credible new judicial reform strategy which lays the basis for further reform in this field, and key pieces of legislation have been amended in line with recommendations of the Venice Commission and the “Urgent Reform Priorities”. The Special Prosecutor’s Office faces less obstruction from the courts, allowing it to work more effectively. To address outstanding recommendations and to         ensure the judiciary can function without undue influence will require sustained efforts.

24. As regards the fight against corruption, the country has achieved some level of preparation. The legislative and institutional framework is in place, as well as a track record on both prevention and prosecution, although final court rulings on high level corruption cases remain           limited. Corruption remains prevalent in many areas and continues to be a serious problem. The capacity of institutions to effectively tackle corruption has shown structural and      operational deficiencies. Political interference remains a risk.

25. In the fight against organised crime, the country has reached some level of preparation. The legislative framework is broadly in line with European standards, and efforts to implement strategies must continue. The country has taken steps towards reforming the system of interception of communications and to address the related “Urgent Reform Priorities”. More needs to be done to effectively fight certain forms of crime such as money laundering and financial crimes. Coordination among all relevant stakeholders is essential. A track record on investigations, prosecutions and convictions in the fight against organised crime needs to be improved. The number of convictions remains low.

26. The legal and institutional framework for protection of fundamental rights is largely in place and reforms have enhanced compliance with European human rights standards. Full implementation requires sustained efforts. It is positive that the country ratified the Convention on preventing and combating violence against women and domestic violence (also known as the Istanbul Convention), initiated the necessary legal reforms for establishing an external oversight mechanism of the law enforcement authorities and that the amendments to the framework for non-discrimination were prepared in an inclusive manner. The situation in prisons and psychiatric institutions must be addressed, cases of hate crime and hate speech must be followed up and bodies involved in protecting and promoting human rights must be strengthened. More efforts are needed as regards Roma inclusion. As regards freedom of expression, the country has achieved some level of preparation and made good progress, notably through an improved climate for the media and decreased pressure on journalists. The country needs to address remaining challenges, including reform of the public broadcaster.

    Further Submissions made the applicant post-hearing

1. On 12 December the applicant provided to the Tribunal the following documents as part of his post-hearing submission:

   §Photographs of the [organisation]’s attack on November [date] 2016, and the attempt to burn the [organisation] in March 2017.

   §A ‘punishment’ issued against the applicant by [a government agency]

   §[Deleted].

   §[Deleted]

   §Letter from the Albanian/Australian Community Association, [in an Australian suburb]

   §Character reference letters from fellow worker s and employers of the applicant.

   FINDINGS AND REASONS

   The issue of Credibility

2. The Tribunal is aware of the importance of adopting a reasonable approach in finding of credibility. In Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 194:

   ….care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted….

3. The Tribunal also accepts that “…if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt…” (see, The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at paragraph [196]). However, the Handbook states at (paragraph [204]):

   …The benefit of doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts…

4. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing it is important to bear in mind the difficulties often faced with asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might be possibly true (see MIMA v Rajalingam (1999) 93 FCR 220).

5. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that that the particular assertion by an applicant has not been made out (see, Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

   The applicant’s claims

   a.The applicant’s involvement in the [administration] of the [organisation] in [City 1], Macedonia and the incidents – attacks on the [organisation’s] building in 2009, in 2012-2013 and 2016-17

6. First, the applicant told the Tribunal, that he was the ‘managing [Position 1]’ of [an organisation] dedicated to the [Albanian culture] in [City 1], Macedonia. The [organisation] also served the purpose of teaching Albanian Macedonians the history of their culture and traditions. The Tribunal was also told the [organisation] had accumulated many resources since its formation which were of value to the Albanian minority in Macedonia and in the particular, to those Albanian Macedonians living in [City 1]. However, these socio-cultural aims of the [organisation] were subjected to attacks by ‘unknown extremists’ or ‘neo-Nazis’ in 2009, the applicant claimed. The applicant reported the ‘attacks’ on the [organisation]’s premises to the local police but he claimed that the police did nothing. The applicant told the Tribunal that he also had received pressure from the ethnic-Albanian political parties, not to attract any further public attention to the [organisation] because it was feared that ‘anti-Albanian feelings’ would breakout in [City 1] and in other parts of Macedonia. The applicant complied with these wishes reluctantly but continued to fear for his and his family’s welfare and safety.

7. Second, the Tribunal was told by the applicant that in 2012-2013 the [organisation]’s employees, were attacked ‘neo-Nazis’. On this occasion the [organisation]’s windows were again broken. The applicant also claimed that his home was attacked. Again, these incidents were reported to the local police who chose to do nothing. The applicant made his concerns known to the [officials] and the [official] representative requested that some protective measures be taken by the local authorities Despite [official] intervention,   no such measures were taken. The applicant also told the Tribunal of an incident in which [organisation’s] employees were injured and killed by attacks perpetrated upon them by ‘unknown’ extremists. The Tribunal does not find the applicant’s claims as credible. The applicant’s evidence of the attacks on employees and the death of employees lacked details. The applicant offered no written evidence of reports made to the local police or copies of time logs of when these ‘attacks’ had occurred or the names of victims involved. The applicant, also claimed that his home had been attacked but provided no description of when this attack occurred except to tell the Tribunal that he and heard ‘gunshots’ outside his home in the period 2012-2013. The Tribunal pressed the applicant for specific details of this attack but he offered none.

8. Third, the applicant claimed that the [organisation] was again ‘vandalised in November 2016 and again, in March 2017. The applicant provided photographs of the damage that had been caused in both instances.[45] The Tribunal also noted from the photographs that anti-Albanian graffiti had been written on the walls and pavement outside the [organisation]. The Tribunal was told by the applicant that since these two most recent attacks, the [organisation] had engaged a private security guard company to provide protection for the premises and had upgraded the CCTV cameras on the [organisation] premises providing ongoing security surveillance.

   [45] AAT File Folios [88]-[95]

9. Overall, the Tribunal accepts that the applicant is an Albanian Macedonian would have experienced sporadic and direct levels of discrimination and displays of disapproval in the period he suggests which was caused by his work in [the] Albanian [organisation] in the city of [City 1], Macedonia,. Indeed, the country information available and referenced by the Tribunal above confirms that Albanian Macedonians have at certain periods in Macedonia’s recent history, experienced both violence and discrimination that was both officially sponsored by the state and unofficially by various ultra-nationalist groups. The attitude towards minorities of the former nationalist Macedonian prime minister now seeking asylum in Hungary was notorious especially against the Albanian minority in Macedonia. However, the applicant’s evidence to the Tribunal is that the situation of ‘fear’ remains at present and that – the ‘fear’ is ‘well-founded’. The Tribunal does not agree. While the applicant has come to Australia, his wife has continued to work at the [organisation] and has resided in [City 1] with the applicant’s young son and there have been no attacks on them or on the [organisation]. Indeed, if the [organisation] was under serious threat, it stands to reason that the applicant would have ensured that his wife and young son would not be still in ‘harm’s way’. – Both remain in [City 1], Macedonia and his wife continues to work at the [organisation]. No attacks have occurred on his home since he left Macedonia. Furthermore, the current Macedonian government remains committed to keeping and securing the ethnic peace in Macedonia as the Key findings of the 2018 European Commission Report on Macedonia reports. According to the EU Commission, the review of the implementation of the Ohrid Agreement, which ended the 2001conflict and provided the framework for inter-ethnic relations, needs to be followed up in a transparent and inclusive manner. The report concluded that “…the government has shown a commitment to increase trust among [the] communities…” Also, ‘civil society’ continued to play a constructive role in supporting democratic processes and ensuring greater checks and balances. According to the same report, since the second half of 2017, the climate in which civil society organisations operate has greatly improved and “…the government has shown [a] commitment to dialogue and inclusion.” The Tribunal therefore finds that that there is not a real risk that the applicant would be persecuted for his past political activities as the managing [Position 1] of an Albanian [organisation] in [City 1], Macedonia or would attract the attention of the Macedonian authorities or others because of his political beliefs, past actions, or opinions concerning [the] [organisation] or because of his race, being a Macedonian citizen of Albanian ethnicity or any other Convention reason.

   b.The applicant’s concerns with regards to moneys owed by him to the Macedonian government

10. The applicant claimed that he had personal issues involving ‘money…’ owed to the Macedonian government. According to the applicant’s evidence to the Tribunal, he owed the Macedonian government approximately AUD[amount]. The applicant provided translated copies of this demand to pay issued by the government.  This amount was owed by the [organisation] and the applicant claimed that he had been held responsible by the government for its repayment. It was not clearly stated to the Tribunal – why this amount was owing to the government and why the applicant was held responsible for its payment – the documents submitted do not make this clear. Nevertheless, the applicant had neglected its payment and had left for Australia. While here in Australia, the applicant raised the funds and settled the debt. The Tribunal accepts as credible that the applicant had incurred a debt to the government of Macedonia while he was the managing [Position 1] of the [organisation] but he admitted that debt had been settled.  Therefore, the Tribunal concludes that no consequences current or future, attach to the applicant because of his debt previously owed by him to the Macedonian government because, as the applicant admitted to the Tribunal he had paid the debt in full.

11. For the reasons given above, the Tribunal finds that there not a real chance that the applicant will face persecution for any of the Convention reasons including political opinion and race if he was to return to Macedonia and to the city of [City 1], now or in the reasonably foreseeable future. The Tribunal is not satisfied that the applicant is a person of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a) of the Act.

12. The Tribuanl also considered whether the applicant meets the complementary protection criterion under s.36(2)(aa) of the Act. The Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to [City 1], Macedonia, there is a real risk that the applicant would suffer significant harm.

13. The applicant claimed that because of his past political activities in [City 1], Macedonia as the managing [Position 1] and person with a profile as the one who responsible [for] [an Albanian organisation] (in [City 1]), and because of his race – being a Macedonian of Albanian ethnicity he has been and will be targeted by anti-Albanian nationalists with connections to the former government operating in Macedonia. Again, having regard to the findings above, the Tribunal does not accept and does not find that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to [City 1], Macedonia there is a real risk that he will be persecuted by anti-Albanian ultra-nationalists with links to the former nationalist government for his past and current political opinions, activities and because of his ethnicity as an ‘Albanian’ Macedonian.  

14. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

    DECISION

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

    Peter Vlahos
    Member