1713394 (Refugee)

1713394 (Refugee) [2021] AATA 5225 (27 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1713394
COUNTRY OF REFERENCE:                   Kosovo
MEMBER:Lilly Mojsin
DATE:27 October 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 27 October at 10.30 am
CATCHWORDS
REFUGEE – protection visa – Kosovo – religion – low-practicing Sunni Muslim converted to Catholic Christianity while working in third country – isolation and discrimination by family and community – fear of harm from unemployment, corruption, lack of access to medical services and education, and Islamic radicalisation – credibility – voluntary returns – delay in applying for protection – applied after employer unable to apply for sponsorship – Australian-born children citizens of Kosovo – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5J(1)(a), 36(2)(a), (aa), 65
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (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 dependants.
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 on 9 June 2017 to refuse to grant the applicants protection visas [PV] under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Kosovo, applied for the visas on 30 October 2015. The delegate refused to grant the visas on the basis that the delegate was not satisfied the applicants would suffer serious or significant harm within a reasonably foreseeable future on their return to Kosovo.
The first applicant [applicant], the 2^nd applicant, his wife, the 3^rd applicant, his daughter and 4^th applicant, his son appealed the Department decision to this Tribunal, attaching a copy of the Department decision to their application for review.
The Tribunal hearing was held on 15 September 2021, via Teams video, during COVID 19 lockdown. The Tribunal determined it was reasonable to hold a hearing by Teams video during the COVID-19 pandemic.
I had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearings were not to be conducted by video. The hearing was attended by the applicant. I am satisfied that the applicants were given a fair opportunity to give evidence and present arguments on their behalf. The applicant and I could see and hear each other. The applicant was able to speak English and did not require the services of an interpreter. I was able to interact with the applicant. I was able to maintain appropriate communication throughout the proceedings.
CRITERIA FOR A PROTECTION VISA
See Annexure A
CONSIDERATION OF CLAIMS AND EVIDENCE
In the PV application the applicant claimed that:
§In 2005 the applicant began working for a [Country 1] company and went to work in [Country 2] with his employer.
§The applicant was born into a Muslim family but during his time in [another country] the applicant began accompanying his work colleagues to Sunday mass. After sometime the applicant developed a close relationship with the priest and was fascinated by learning about Catholicism. The applicant started reading the bible during work breaks and 'experienced a very profound joy that was missing inside me'. The applicant began to see life in a different perspective and six months after his first visit to the chapel he decided to convert to Catholicism.
§In 2008 he took urgent leave from work to return home to his father who was gravely ill. After his father's passing the applicant decided to remain in Kosovo.
§The applicant kept his conversion from his family and friends as he feared their reaction, He attended church in [Town] 60 kilometres from his home town in order to avoid being seen by relatives and friends. Word eventually got out however and the applicant found himself isolated and discriminated against by those in his community; he was also not invited to family gatherings.
§The applicant asked his priest, [Father A], for advice and was told that it would take many years before society would accept the applicant's new faith. The applicant also sought assistance from [Organisation] but they were unable to relocate or help him.
§The applicant wanted to get married and start a family. In 2010 the applicant met 2^nd applicant who understood and acknowledged his way of life. She was willing to marry the applicant but her family was unhappy that she would have to convert to Catholicism.
§The applicant and his partner wanted to leave Kosovo so that they would practice their religion freely and live without being isolated and mistreated. In 2010 he decided to apply for a visitor visa to Australia; during his time in the country he sought ways to migrate to Australia. The applicant found an employer who was prepared to sponsor his work visa and eventually enable the applicant to become a permanent resident.
§The applicant went back to Kosovo and then returned to Australia in August 2011 to begin work. The 2^nd applicant arrived in June 2012. They have attended church regularly since their arrival and are planning their wedding through their church.
§The applicant thought that his employer had fulfilled all the necessary conditions so that the applicant could become a permanent resident but learned that his employer did not meet the criteria and was unable to nominate the applicant. The applicant applied for a visitor visa in the hopes that during that time he could find another sponsor but was unable to do so.
§The applicant states that if he had been born into Catholicism, he would have no difficulties in Kosovo but because he converted from Islam it is problematic. If the applicant returns to his home country he will be abused and discriminated against, as well as unable to find work due to the high unemployment rate and levels of corruption which means that a job is often obtained only through bribery or nepotism. The applicant states that his children will not have access to medical care and also be denied education in a Catholic school.
The applicant attended a Department interview and additionally stated to the Department that:
§The applicant and the 2^nd applicant were in a de facto relationship
§He left Kosovo because he became a Catholic and found his new religion made living in his home country very difficult.
§He was born into a Sunni Muslim family but had not actively practiced his faith prior to becoming Catholic, attending mosque only infrequently although he did participate In Ramadan. The applicant's siblings are similarly casual in their practice as was the applicant's late father, the applicant's mother is more devoted to her faith although she does not attend mosque, as is the custom for females in Kosovo. The applicant attributed his family's relatively loose practice of Islam to Kosovo's communist history where religion was discouraged.
§In December 2006 the applicant travelled to [Country 2] for work, living on a [workplace 1] from which he was not permitted to leave. The applicant found his leisure time on the [workplace 1] to be tedious and so roughly-a year after his arrival he decided to join his colleagues in attending a chapel holding Catholic services. He had found going to chapel to be very interesting and different to his experience with Islam. The applicant had not understood what happened at mosque as prayers were conducted in Arabic, in contrast to the sermons at the chapel in English.
§The applicant also appreciated that the Catholic faith was not 'pushed' onto him and it was instead a matter of his own choosing whether he wanted to ascribe to it. After his third chapel visit the applicant spoke to the chaplain, [Father B]; and started reading about the faith; several months later he decided to convert.
§He had liked that no one he had come across in the church spoke ill of other religions, in contrast to Islam which saw all other faiths as secondary. He appreciated the fact that one needed only to dedicate one day a month to worship - as opposed to praying five times a day- and that there were not as many forbidden deeds as under Islam, such as the prohibition against drinking alcohol and eating pork.
§He had not prayed or refrained from consuming alcohol and pork products prior to his conversion.
§The applicant's father fell ill in March 2008 which prompted the applicant to resign from his job and return to Kosovo. He had hidden his new faith at first but then gradually discussed it with his family and friends, although the applicant refrained from revealing it to his mother. He had started to share his conversion with her but abandoned the attempt as she is elderly and he did not wish to upset her.
§After it was discovered that he had converted to Catholicism, his father had advised it would be difficult for him, and the rest of his family had not liked it. The applicant's brother told him outright that he was on 'the wrong path'. The applicant's sister suggested that he try going to different mosques in order to give him a new perspective on Islam.
§The applicant continued to say that after his Catholic faith was revealed he was 'mistreated' by the community. People would laugh at the applicant and he was not Invited to various events. The applicant was not asked to participate in Eid at the end of Ramadan despite other Catholic neighbours being asked
§he felt mistreated and Isolated due to his conversion to Catholicism
§The applicant stated that his partner is in all likelihood 'more Catholic' than he is at present. His partner's family had not been happy at her conversion but had not attempted to impede it in any serious way; they have also not said anything to the applicant in the few times they have met face-to-face.
§The applicant and his partner found their new faith prevented them from living as they would like and so the applicant travelled to Australia in February 2011 on a tourist visa to see how he could lawfully migrate. He spoke with a migration agent and was told that he could obtain permanent residency if he could find an employer to sponsor him. He did so and returned to Kosovo in May 2011 before returning on a work visa In August 2011. The applicant then went back to his home country to accompany his partner to Australia in June 2012.
§In regard to their marital status, the priest at his current church had spoken to him on that matter but he and his partner had wanted to tie their wedding celebration to the applicant being sponsored and obtaining permanent residency. This was continually postponed by his previous employer however until sponsorship fell through.
§The couple had provided evidence of a wedding ceremony and celebrant having been booked for a date but they discovered upon arriving in Australia that they were unable to be married in a church unless both parties were baptised.
§The applicant stated that he had been baptised in Kosovo but unable to find the documentation pertaining to that. He revealed his dilemma to his church in Sydney and with his wife and daughter were baptised [in] March 2016
§the significance of baptism for the applicant is that when one is baptised one is reborn - one is clean and has 'the light of new life'.
§if he and his family were to return to Kosovo, he would not be able to find work as the unemployment rate in his home country is very high and the only way one can obtain a job is through connections.
§in Kosovo between his return from [Country 2] and his departure to Australia he had worked in a [Workplace 2] which entailed going to [schools] and giving lectures regarding [a topic]. He had obtained this position as he knew people who worked at the centre.
§2^nd applicant previously worked in [Work sector] in Kosovo
At Tribunal hearing the applicant explained that he is qualified in [Subject 1]. When he finished his education in [Subject 2]. He worked in Australia first as an [Occupation 1] and since being on a bridging visa he has works as [an Occupation 2]. His children were both born in Australia.
The applicant arrived in Australia in February 2011 as the holder of a visitor visa, returned to Kosovo and then arrived again in August 2011 as the holder of a [Business] visa. He departed Australia in June 2012 and returned the same month. He applied for a PV on 30 October 2015. His boss told him on nearly the last day of his business visa that he could not sponsor him so on the same day he applied for a tourist visa for 3 months. This did not give him a right to work. At that time, he did not feel secure to go back to Kosovo.
Asked why he did not feel secure about going back, he said that his country mentality does not match with the law. He was isolated before he came, he was discriminated because they point the finger at you and if you want to get something you have no chance. They do not like those who convert to Catholics. I put that there are quite a lot of Catholics, in Kosovo. He agreed that there were.
Now in Kosovo there are Isis members, 400. It is a small country and people came back from the war. He is scared of extremism. If he goes back, he has nowhere to go, they will isolate him, nobody contacts him. I asked if he has contacted anyone and he said he did not.
I put to the applicant that the constitution provides for freedom of conscience and religion for all residents, including the right to change, express, or not express religious belief; practice or abstain from practicing religion; and join or refuse to join a religious community. The largest Catholic communities are in Gjakove/Djakovica, Janjeve/Janjevo, Kline/Klina, Pristina, and Prizren.
He said in Kosovo the Muslims do not marry Catholics, but it is a small country and everyone knows him. He can be harmed from anyone. His children will be bullied. It is hard to survive. It is a corrupt country and you are not protected by the law. In the last 2 weeks there were 2 people killed, they were high profile people in Peja and in Kosovo they carry a gun. A guy killed himself. There are hundreds of cases like that. I put to the applicant that this affects everyone, not only Catholics or Catholic converts. He said they discriminate or isolate them.
He does not know how he can survive there with children. He said everyone has a gun. Before it was not like that. I put to him that he returned there twice and nothing happened to him. He said now things in Kosovo have changed. He can expect anything from those who came from Isis. His son will be discriminated because of the mentality of the people, his son is not circumcised.
Put that independent evidence does not indicate Catholics are persecuted. He said it is very big problem.
I put that independent information before me indicates that today there are thousands of people who “want to become Roman Catholics again” in Kosovo. A new cathedral, is still under construction at Pristina’s Mother Theresa Square, big enough to hold 2,000 churchgoers. I put that this evidence does not suggest that Catholics or Catholic converts in Kosovo suffer serious harm. Put that he had a job in Kosovo. The applicant replied that he never said that they are seriously harmed. He said it is hard if you are Muslim and convert. If you convert then it is hard.
I again put to the applicant that nothing serious happened to him. He said there was discrimination, they insult you they mistreat you and isolate you. He said it is not a country like Australia. If you are isolated you suffer. I put that he was not discriminated in employment when he was there. He said he has no contact with people. Asked if he has made an attempt to contact them, he said no he did not. He has now lost every connection.
I put to the applicant that whilst not being invited to family gatherings or refraining to tell his mother may have occurred after he converted, this does not amount to serious harm. As for findings himself isolated and discriminated against by those in his community, he was able to live and work in Kosovo without serious harm. He is not sure now that somebody will not point a gun at him. His conversion is also a shame for his family members.
I put to the applicant that the constitution provides for an Ombudsperson’s Institution, which is responsible for monitoring religious freedom, among other human rights, and recommending actions to correct violations. It stipulates the state shall take all necessary measures to protect individuals who may be subject to threats, hostility, discrimination, or violence because of their religious identity. Public educational institutions shall refrain from teaching religion or other activities that propagate a specific religion. He said they have all that there, but if something happens to you then they cannot help you.
The applicant stated that he will not get a job. I put to the applicant that he and his wife are both highly qualified and both capable of finding work in their home country, but even should they be unsuccessful in doing so Kosovo has a comprehensive social welfare system which provides unemployment benefits, healthcare, and public education which the applicant and his family are eligible to access, as needed. He said that to find a job for them, it is zero chance. Any government support is minimum, they cannot survive. His children will be harmed there and mistreated and isolated as the mentality of the children there are different. He does not know what happen to them.
He said the reality is not true. In Kosovo if you look at the constitution you cannot rely on that. If you are of a different orientation you have right to choose but there, no-one can go outside and say anything.
He fears he will be discriminated and persecuted and he cannot imagine the impact on his children. They have grown up Catholic and for them it will be difficult. They will be mistreated on a daily basis, knowing the mentality of the people.
Qatar and Turkey finance the mosques. There are 800 mosques there now. In Pristina one can see people praying all around. This was not the situation before. After the war radicalism is going on there on a daily basis, they are now more hidden.
I put that there is no evidence that the government does not protect Catholics. Post hearing the applicant provided a submission claiming he will be subjected to mistreatment and discrimination because of his conversion from Islam to Christianity and in particular to be Catholic. He will be discriminated in every aspect due as 95% of the population are Muslim, mainly Sunni and only approximately 2.2% are Roman Catholic. He will be isolated, mistreated and discriminated by his own family and will not be able to practice his religion freely and will not be able to find proper employment at his age and his children will be prejudiced by not being able to receive a proper education and proper upbringing in Catholic schools. He will be excluded by the majority of the community and will be isolated and will be at risk of harm from practicing his Catholic faith . He and his family will be prevented from leading a normal life.
Kosovo is ravaged by massive corruption and he will persecution. He has a genuine fear for the future of his family as a result of the conversion to Catholic and he will experience discrimination as a converted person if he returned to Kosovo. The applicant believes that his human rights and his families human rights will be violated. As a result of his conversion he will suffer serious punishment or penalty. Being away from Kosovo for long time, he will be denied of access to employment even though he and his wife are highly educated. He understands that the unemployment rate in Kosovo is very high and he will be interrogated by his Sunni Muslim community members and harassed in a way that he will not maintain his serenity and peace of mind and he will live all his future with his family without his basic human rights or dignity. His situation is different to the majority of people in Kosovo because has converted and stopped attending the Mosque and will be persecuted because of the change of religion and his human rights deprivation is discrimination and he will be humiliated and subjected to violence which is a matter of serious harm.

The applicant also sent summary of an article/blog ‘Kosovo a place of Crime and Corruption’, by Simo Pietiläinen a Finnish lawyer. The applicant has not provided any references to the information provided. The information claims that in the courts of Kosovo, there is a high level of corruption cases, cases of hate crimes and cases of blood feuds. He states that defendants often evade prison by paying bribes or escaping responsibility because of people known in the courts. Citizens in Kosovo do not trust the legal system or other institutions. There is high unemployment and lack of investment. After the war, weapons were not handed over by Kosovo citizens and since 1999, some weapons have remained in their hands. Mosques are being funded by Qatar. Turkey has increased its influence in Kosovo. They also support women with "veils".
Independent evidence
The majority of ethnic Albanians[1] were forcibly converted to Islam, mostly through the imposition of high taxes on Catholics when the Ottoman Empire ruled the Balkans. For centuries, many remembered their Christian roots and lived as what they call “Catholics in hiding”. Some, nearly a century after the Ottomans left the Balkans, now see the chance to reveal their true beliefs. “Fifty or sixty percent of the population are linked emotionally with the Roman Catholic religion. This is because of feelings about what our ancestors believed,” said Muhamet Mala, a professor who teaches History of Religion at Pristina Public University. “We don’t make appeals to anyone to convert. People call us,” said Don Shan Zefi, chancellor of the Church’s Kosovo diocese. “We are not talking about individuals any more. There are inhabitants from dozens of villages who have contacted us.” Zefi said the process started decades ago, but added that today there are thousands of people who “want to become Roman Catholics again”. The Islamic community disapproves of such converts. The head of the Kosovo Islamic community, Mufti Naim Ternava, has opposed building a cathedral at the heart of Pristina and scoffs at new churches built across Kosovo. “No human brain can understand how a church should be built in the middle of 13 Muslim villages,” he said.
[1]
Around 90 percent of Kosovo’s Albanian population is Muslim, with just four percent Roman Catholics. Many mosques in Kosovo were destroyed during the 1998-99 war between Serb forces and the Kosovo Liberation Army. Since 1999, when the U.N. took control of Serbia’s breakaway province, ethnic Albanian mobs destroyed many Serb Orthodox churches. Roman Catholic churches were not destroyed. Most of Kosovo’s towns have a square named after Nobel Peace Prize winner Mother Theresa, an ethnic Albanian nun born in neighbouring Macedonia. She spent her life helping the poor in the Indian city of Calcutta and died in 1997. Beatified in 2003, Mother Theresa became a heroine to many Albanian worshippers. A new cathedral, still under construction at Pristina’s Mother Theresa Square, will be the tallest building in the capital and big enough to hold 2,000 churchgoers.
The U.S. government[2] estimates the total population at 1.9 million (midyear 2020 estimate). According to the 2011 census (the most recent), 95.6 percent of the population is Muslim, 2.2 percent Roman Catholic, and 1.4 percent Serbian Orthodox, with Protestants, Jews, and persons not answering or responding “other” or “none” together constituting less than 1 percent. The constitution provides for freedom of conscience and religion for all residents, including the right to change, express, or not express religious belief; practice or abstain from practicing religion; and join or refuse to join a religious community. The constitution provides for rights and protection for all citizens, including maintaining, developing, and preserving their religion using their own language. The constitution also states religious communities have the right to establish religious schools and charitable institutions with the possibility of being funded with government financial assistance “in accordance with the law and international standards.”
[2]
Significant human rights issues included[3]: undue restrictions on the press, including violence or threats of violence against journalists; government corruption and impunity; and attacks against members of ethnic minorities or other marginalized communities. The government took steps to identify, investigate, prosecute, and punish officials who committed human rights abuses, but at times lacked consistency. Many in the government, the opposition, civil society, and the media reported instances of senior officials engaging in corruption or acting with impunity. The government sometimes suspended or removed offenders from office, and the justice sector sometimes took steps to prosecute and punish those officials who committed abuses, offenses, and crimes. Many corrupt officials, however, continued to occupy public sector positions.
[3]
Unemployment is very high in Kosovo, because of the disruptions caused by the end of communist rule, conflict of 1999 and the struggle for independence. Thus, the economy is dependent on foreign aid and remittances sent from the diaspora. Unemployment rate in Kosovo increased to 27 percent in the fourth quarter of 2020 from 24.60 percent in the third quarter of 2020[4].
[4]
A universal basic pension was introduced in Kosovo[5]. The pension system in Kosovo comprises a universal basic pension financed by general revenue, a mandatory defined contributions system based on individual savings, a rarely used voluntary savings scheme, and a series of categorical and special benefits defined both for specific populations and related to the war.
[5]
According to an EU Publication[6] Policy-Brief-the-Balkans, between 2018 and 2020, the EU concluded separate “arrangements on antiterrorism cooperation” with the governments of all West Balkan states. According to the specific priority actions they envisaged action in Albania, North Macedonia and Serbia. In Kosovo and Bosnia and Herzegovina, measures are focused on:
1) Addressing the challenges posed by returning Foreign Terrorist Fighters (RFTF) and their families through: systematic investigation and prosecution of criminal acts committed by Foreign Terrorist Fighters (FTF); disengagement, rehabilitation and reintegration programmes inside and outside prisons; sharing of information on RFTF with EU Member States.
2) Updating the national criminal codes to align them with EU legislation and close gaps in the criminalization of terrorism-related offenses.
3) Rectifying deficiencies in and implementing the legal framework for criminalizing money laundering and terrorism financing.
4) Setting up (in BiH) of a Europol National Contact Point to enhance cooperation with Europol; pro-actively exchange information with Europol on returning FTF and money laundering.
[6]
REASONS AND FINDINGS
The 1^st and 2^nd applicants’ identities have been accepted by the Department in the visa application. On the basis of their Republic of Kosovo passports, I accept that the 1^st and 2^nd applicants are nationals of the Republic of Kosovo and not nationals or citizens of any other country. I accept that they do not have a right to enter and reside in any country other than the Republic of Kosovo. Therefore, I find that the 1^st and 2^nd applicants are not excluded from Australia's protection by subsection 36(3) of the Act. I also find that the Republic of Kosovo is the applicant’s “receiving country” for the purposes of s.36(2)(aa).
The 3^rd and 4^th applicants were born in Australia. Section 10 of the Act prescribes that a child born in Australia is taken to have entered Australia on the date of their birth. Although they have not provided a Republic of Kosovo passport for their children, I am satisfied that based on their parent’s citizenship, the 3^rd and 4^th applicants, are Kosovar citizens. Therefore, the country of reference for the protection visa assessment for the children is the Republic of Kosovo.
I note that 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). 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 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.
There may be errors, omissions or misunderstandings that cannot be automatically attributed to an applicant's credibility or the applicant not being truthful. I am mindful of AAT guidelines on the assessment of credibility. I am also mindful that in the process of asking further questions and commenting on those questions during the process of assessing an applicant's claims may mean that it is feasible an applicant will provide new information when he is asked to respond to or provide more details. I am also mindful that there can be interpreting errors, cultural differences and plausible explanations for inconsistencies other than deliberate falsehoods. I am also mindful that applicants who suffer from nervousness, anxiety, depression and or post-traumatic stress disorder may have difficulty remembering all recounting aspects of their claims. In particular they may block out or neglect to mention upsetting or traumatic experiences. I am also mindful that just because one part of an applicant's claim is exaggerated does not mean that the entirety of the claim is dishonest.
The independent evidence before me indicates that the Catholic Church in Kosovo has a population of approximately 65,000 in a region of roughly 2 million people. Another 60,000 Kosovar Catholics are outside the region, mainly for work.[7]
[7] >
I accept that the applicant was born into a Muslim family and converted to Catholicism with his wife. I accept that the applicant’s children are Catholic.
The applicant arrived in Australia in February 2011 as the holder of a visitor visa, returned to Kosovo and then arrived again in August 2011 as the holder of a [Business] visa. He departed Australia in June 2012 and returned the same month. He applied for a PV on 30 October 2015. When put to the applicant that he had returned twice to Kosovo after his arrival in Australia and did not apply for a PV until after his business visa ceased, the applicant responded that his former employer did not sponsor him and obtained a visitor visa in order to attempt to regularise his status. I am satisfied that he applied for a PV as a last resort to remain in Australia. I am also satisfied that the applicant’s two returns to Kosovo and delay for 6 years applying for a PV indicates a lack of a subjective fear of persecution.
Whilst the applicant initially refrained from telling his mother he had converted to Catholicism and he was not invited to family events, his conversion became known to his family and friends. As for feeling isolated and discriminated against by his family and the community as a consequence, the applicant returned twice from Australia to Kosovo. I do not accept that feeling isolated or discriminated against or being laughed at, including not being invited to family gatherings amounts to serious harm. I do not accept that the applicant suffered serious harm for his religion in Kosovo.
The applicant and his wife also were both employed in Kosovo, prior to their departure.
Therefore, the applicant and his wife have not faced any serious harm in Kosovo due to their religion or conversion or perceived religion.
I am satisfied the applicants came to Australia, where the applicant believes there are better opportunities and not because he suffered serious harm for his religion or any other refugee reason, in Kosovo.
I find therefore that the applicants had no adverse profile or perceived adverse profile in Kosovo prior to departing for Australia, for any of the reasons enumerated in s.5J(1)(a). I find the applicants did not flee Kosovo fearing harm.
I am required to consider the situation if there is a real chance the applicants, would suffer serious harm for his religion or perceived religion or a real risk they would suffer significant harm within a reasonably foreseeable future, if they were to return to Kosovo.
The independent evidence before me indicates that the Kosovo constitution provides for freedom of conscience and religion for all residents, including the right to change, express, or not express religious belief; practice or abstain from practicing religion; and join or refuse to join a religious community. The independent evidence, cited above, indicates that there are attacks against members of ethnic minorities or other marginalized communities. According to Minority Rights Group[8] the 2011 census (excluding North Kosovo) the main minority groups are Bosniaks (1.6 per cent), Serbs (1.5 per cent), Turkish (1.1 per cent), Askhali (0.9 per cent), Egyptian (0.7 per cent), Gorani (0.6 per cent), and Roma (0.5 per cent). However, because North Kosovo was excluded from the census, the true proportion of some minorities – particularly Serbs, who in some areas of the north comprise the majority of the population – may be under-estimated in these figures. The government took steps to identify, investigate, prosecute, and punish officials who committed human rights abuses, but at times lacked consistency. The applicant does not claim to be a member of one of those ethnic minority or marginalised community groups. The largest Catholic communities are in Gjakove/Djakovica, Janjeve/Janjevo, Kline/Klina, Pristina, and Prizren. I accept that some Muslims, as sighted above in the independent evidence, do not accept or approve of conversion to Catholicism. I have no independent evidence before me to suggest that converts from Islam to Catholicism would be abused, mistreated, isolated, discriminated against or harmed for their religion or their perceived religion.
[8]
Kosovo has an Ombudsman which is responsible for monitoring religious freedom, among other human rights, and recommending actions to correct violations. It stipulates the state shall take all necessary measures to protect individuals who may be subject to threats, hostility, discrimination, or violence because of their religious identity. The applicant did not agree. I prefer to rely on the independent evidence. I also have no evidence before me to suggest that the Kosovo state does not protect its Catholic residents or those that have converted to Catholicism from Islam. I am of the view that were it the situation, it would be known to independent sources, such a US State Department and UK Home Office, who report extensively on human rights issues in Kosovo. Whilst I accept that Kosovo is a small country, I do not accept that everyone knows the applicant. I am of the view such a claim is pure speculation. Therefore, I am not satisfied that the applicant and his children will suffer serious harm or significant harm, for their religion or perceived religion, within a reasonably foreseeable future on return to Kosovo.
The applicant claims that since living in Australia circumstances in Kosovo have become worse. He claims that his children will not have access to medical care, suffer discrimination, will be mistreated, bullied and isolated and especially because his son has not been circumcised. I accept that the applicant’s children, who have been born in Australia, have grown up in Australia and will struggle to adapt on their return to Kosovo. I accept that the applicant’s son has not been circumcised and this may cause him to be subjected to some criticism. I do not accept that being criticised for not being circumcised would amount to serious harm. I am of the view that it is pure speculation on the applicant’s part that his children will suffer discrimination, be mistreated or isolated. I have no independent evidence to support his claim that children of Catholic converts, returning from living abroad, will not have access to medical care, suffer discrimination, isolation or harm. I find remote the chance or the risk that the applicants will not have access to medical care, suffer discrimination, isolation or harm.
I note that freedom of religion is guaranteed by the constitution, education is free and religion is not taught in schools as the Constitution states that ‘public educational institutions shall refrain from teaching religion or other activities that propagate a specific religion’. I accept that the applicant’s children may not attend a Catholic school in Kosovo. I do not accept that not being able to attend a Catholic school in Kosovo amounts to serious or significant harm. I find remote the chance that the applicant’s children will suffer serious harm or significant harm within a reasonably forseeable future, in regard to their education or religious education.
The applicant and his wife, who both worked in Kosovo prior to their arrival in Australia, claim that they will not be able to obtain employment in Kosovo. I accept that Kosovo has high unemployment and that, as claimed by the applicant, people obtain work via contacts, an action the applicant had taken when he previously lived in Kosovo. The applicant claimed that he had not been in touch with people in the know in Kosovo but also agreed that he had not attempted to contact them. I put to the applicant that he and his wife are both highly qualified and both capable of finding work in their home country, but even should they be unsuccessful in doing so, Kosovo has a comprehensive social welfare system which provides unemployment benefits, healthcare, and public education that the applicant and his family are eligible to access, as needed. The applicant did not agree and said that for he and his wife to find a job there is no chance and any government support is minimum, they cannot survive. The also claims that his age [would] affect his ability to obtain employment.
Kosovo Agency of Statistics (KAS) has published the Results of the Labour Force Survey (LFS) in the first quarter of 2020[9]. According to LFS results, in Q1 2020, the unemployment rate is 25.0%. Unemployment is most pronounced among females with 30.6%, compared to males, 23.0%. The most pronounced unemployment rate is in the age group 15-24 with 46.4%. Whilst I accept that it may be difficult for the 1^st and 2^nd applicants on their return to Kosovo to obtain work, I have no independent evidence before me to suggest that Catholic converts and/or their children returning from living abroad, or who are [the applicant’s] age, are discriminated against in employment for a refugee reason. I am of the view that were it the situation it would known to independent sources such a US State Department and UK Home Office who report on Kosovo. I therefore find remote the chance or the risk that the applicants and/or their children will suffer serious harm or significant harm regarding employment, within a reasonably foreseeable future, in Kosovo.
[9]

The applicant claims that Isis has taken a foothold in Kosovo and it has become radicalised and he fears harm, from radicalised Muslims and from extremism. According to VOA [Voice of America], in an article dated January 2020[10], it stated that between 2012 and 2015, an estimated 355 Kosovars went to Syria to join IS and other Sunni militant groups, making up the highest per capita share of foreign fighters in Syria. Pristina last April brought home from Syria 110 of its citizens, consisting of 74 children, 32 women and four men. The total number of adult returnees has reportedly since reached about 250, with another 98 killed in Syria and dozens of others remaining unaccounted for. I note that reports in Balkan Insight state that recent repatriation of families of ISIS fighters to Kosovo, Albania and North Macedonia poses a tough challenge to all three countries to rehabilitate them back into society. I accept that in mid-July 2021, Kosovo announced that it had repatriated 11 of its citizens from Syria, saying only that the 11 included one woman and her children[11]. I do not accept that the return of these people indicates a radicalisation of Kosovo, whose population is expected to reach 1.82 million by the end of 2021[12]. I have no independent information to suggest that these events have resulted in a radicalisation of Kosovo. Therefore, I find remote the chance that the applicant and his family will be mistreated or suffer serious or significant harm due to the return of radicalised Kosovars or Kosovars from Syria.
[10]
[11]
[12]
The applicant claims that Kosovo is a corrupt country and you are not protected by the law. In the last 2 weeks there were 2 people killed, they were high profile people in Peja and in Kosovo they carry a gun. Everyone has a gun. There are hundreds of cases like that. According to Balkan Insights[13]Kosovo weapons black market is booming; pistols are ubiquitous, brought in via smuggling routes from Serbia, Macedonia and Albania. Loopholes in UNMIK’s legalising on arms have facilitated the trade in illegal weapons. Lax licensing procedures for hunting rifles have meant that Kosovars who want to keep a rifle at home can do so. Statistics vary but it is clear that a huge number of weapons have been legalised since 2001. Whilst I accept that guns are easily available in Kosovo, I have no independent evidence before me to suggest that any particular groups in Kosovo are targeted by gun owners. I accept that the Kosovo is a corrupt country, many guns are legalised and there is a lack of protection by the law for non-gun owners. I do not accept that merely being a Catholic convert or being imputed as being anti-Muslim because of conversion to Catholicism will give rise to a well found fear of persecution if the applicant and family are returned to Kosovo.
[13]
The applicant claims they will suffer harm for not attending the mosque and will be interrogated by Sunni Muslim community members and harassed. His human rights will be deprived. I have no evidence before me to suggest that Catholic or Catholic convert citizens suffer serious or significant harm at the hands of non-state actors and/or do not receive the protection of their government. Therefore, I find remote the chance that state protection will be withheld from the applicants.
I have considered the applicants’ claims and evidence individually and cumulatively. Whilst I note the independent evidence, cited above, regarding Kosovo I find that the applicant does not have a real chance that, if returned to Kosovo, he would suffer persecution for one or more of the reasons mentioned in s.5J(1)(a). I find that the applicant does not have a well-founded fear of persecution for these reasons.
I am required to consider whether there is a real risk that the applicants will suffer significant harm on their return to Kosovo.
The applicants claims to fear harm from non-state actors, their family and the wider Muslim community for their conversion to the Catholic religion. They claim an inability to obtain employment. The applicant claims his conversion is a shame for his family and he lacks support from them. The applicants’ claims for complementary protection are the same as those put forward in relation to their refugee claims.
The Department's Complementary Protection Guidelines state that there must be a real and personal risk to the individual, saying that where the threat is from non-state actors, decision-makers should be satisfied that there are 'extremely widespread conditions of violence, coupled with a particular risk to the individual in question before reaching a conclusion that there is a real risk that an applicant will be arbitrarily deprived of his or her life.
Whilst I accept that many Kosovars have guns and that Turkey and Qatar are building more mosques, there is no evidence before me that there is widespread conditions of violence in Kosovo. I accept that there is a lack of protection by law for gun-owners and risk of harm, but this risk of harm is faced by the whole population. I do not accept that there is a real risk or a real chance of significant harm from non-state actors.
I do not accept that the applicant, who is [a certain age] and/or his wife will not be able to obtain employment, because of his age or his religion. Whilst the applicant has claimed that he was not invited to family gatherings and felt ashamed of his conversion, I do not accept that the applicant will not be supported by his family and will be shamed by them. The applicant returned to Kosovo on 2 occasions and makes no claim of harm from his family or friends on those returns to Kosovo. Therefore, I am satisfied that the applicants will be able to subsist and will not suffer or be subjected to torture or cruel or inhuman treatment or punishment, or degrading treatment or punishment. There is no reliable evidence to suggest the applicants will be arbitrarily deprived of life, or that the death penalty will be carried out if them if they return to Kosovo in the reasonably foreseeable future.
I have considered the applicants’ evidence singularly and cumulatively. On the evidence before me, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Kosovo, there is a real risk they will suffer significant harm ie that they will be arbitrarily deprived of their life or that the death penalty will be carried out on them; that they will be subjected to torture or cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment. They therefore do not satisfy s.36(2)(aa).
Accordingly, I find that the applicants do not satisfy the requirements of s.36(2)(aa) of the Act.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicants do 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 applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicants satisfy 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 applicants do not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants a protection visa.
Lilly Mojsin
Member
ANNEXURE A
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, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
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, and country information assessments 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.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 5225

27 October 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction