1713394 (Refugee)

This matter concerned an application for a protection visa by a person from Kosovo. The applicant, who was born into a Muslim family, converted to Catholicism while working in a third country. Upon returning to Kosovo, the applicant claimed to face isolation and discrimination from his family and community due to his religious conversion. He also expressed fears of harm from unemployment, corruption, lack of access to medical services and education, and Islamic radicalisation. The case was heard by Lilly Mojsin.

The primary legal issues before the court were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth) as a refugee, or alternatively, under section 36(2)(aa) as a person facing significant harm as a necessary and foreseeable consequence of removal from Australia. This involved determining whether the applicant had a well-founded fear of persecution for reasons of religion, and if so, whether such persecution would involve serious harm and be systematic and discriminatory, or if there was a real risk of significant harm upon return to Kosovo.

The court considered the applicant's claims of religious persecution, isolation, and discrimination in Kosovo. It also examined the provisions of the Migration Act 1958 (Cth) concerning the definition of a refugee, a well-founded fear of persecution, and significant harm. The court noted that a person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour to avoid persecution, unless such modification conflicts with fundamental aspects of their identity or conscience, such as religious beliefs. The court also considered the complementary protection criterion, which requires a substantial ground for believing there is a real risk of significant harm upon removal.

Ultimately, the Tribunal affirmed the decision not to grant the applicants a protection visa, finding that they did not satisfy the criteria under section 36(2) of the Act.