2207086 (Refugee)

2207086 (Refugee) [2022] AATA 3628 (21 October 2022)

DECISION RECORD

DIVISION: Migration & Refugee Division

REPRESENTATIVE: Ms Anna Copeland

CASE NUMBER: 2207086

COUNTRY OF REFERENCE: Stateless

MEMBER: Deputy President J.L Redfern PSM

DATE: 21 October 2022

PLACE OF DECISION: Sydney

DECISION:The Tribunal remits the matter for consideration with a direction that the applicant meets
s 36(2)(a) of the Migration Act.
Statement made on 21 October 2022 at 4:54pm

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

CATCHWORDS

REFUGEE – Protection (Class XA) (Subclass 866) visa – whether the applicant is Stateless – former habitual residence – Croatia – state protection – humanitarian visa cancelled – Serbian ethnicity – intellectual disability and mental health issues – criminal deportee – suffering trauma – applicant found to be a refugee – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36(1C), 36(2)(a), 36(3), 36A 411 and 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

Al-Anezi v Minister for Immigration & Multicultural Affairs [1999] FCA 355 BZADW v Minister for Immigration and Citizenship [2013] FCCA 1229 Calado v Minister for Immigration and Multicultural Affairs (1997) 81 FCR 450 Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 FER17 v Minister for Immigration & Anor [2018] FCCA 3767
FER17 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCAFC 106 VSAB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 239 XFCS v Minister for Home Affairs [2020] FCA 71
XFCS v Minister for Home Affairs [2020] FCAFC 140

SECONDARY MATERIALS

A Guide to Refugee Law in Australia - Administrative Appeals Tribunal
Department of Home Affairs, Policy – Refugee and humanitarian – Refugee Law Guidelines Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84 – Consideration of Protection Visa applications, 24 June 2019

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 BACKGROUND

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 May 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

The applicant was born in Croatia to Serbian parents in [month] 1989. He and his family left Croatia in 1995 and they lived in refugee camps in Kosovo and Serbia before the family was granted humanitarian visas in [month] 2002. The applicant arrived in Australia in [month] 2003 with his parents and brother at the age of 13. The applicant has an extensive criminal record, which commenced in 2005 when he was still a minor.

In 2014, the applicant was convicted of one charge of common assault and two charges of blackmail and was convicted, after guilty pleas, on one count of theft, intentionally causing injury and blackmail. He was sentenced to 5 years and 10 months imprisonment with a minimum non-parole period of three years. On 15 March 2018, a delegate of the Minister decided under s 501(3A) of the Act to cancel the applicant’s humanitarian visa. The applicant made a request under s.501CA of the Act that the cancellation be revoked and on 27 November 2018, a delegate of the Minister decided not to revoke the cancellation. The applicant applied to this Tribunal for a review of that decision and on 20 February 2019, the Tribunal affirmed the delegate’s decision. The applicant subsequently applied for judicial review to the Federal Court of Australia. This appeal was dismissed.1 The applicant further appealed this decision and, by order made on 17 August 2020, the appeal was dismissed.2

The applicant applied for a protection visa [date] 2021. In his application, the applicant claimed that his family left Croatia at a time where Croatian forces were seeking independence from the Socialist Federal Republic of Yugoslavia. His family were minority Orthodox Christian Serbians living within the area of the Socialist Republic of Croatia and were subjected to ethnic cleansing. They were forced to flee their home, spent eight years in refugee camps under the control of the United Nation’s High Commissioner for Refugees and eventually settled in Australia. The applicant experienced psychological distress and fear when he was in the former Republic of Yugoslavia and later in refugee camps. The applicant claimed that even if he returns, Croatia does not recognise him as a citizen and he is therefore ‘Stateless’. Further, the applicant claimed that the government is unable or unwilling to provide him with protection from persecution on his return to Croatia. The applicant also made claims about his mental illness and intellectual disability and the stigma and discrimination he would face if he returned to Croatia.

The delegate assessed the application as to whether the applicant met the alternative criteria for protection in ss 36(2)(a) or 36(2)(aa) of the Act. The application was refused because the delegate was not satisfied that the applicant’s claims met either criterion.

In brief, the delegate found that the applicant was a citizen of the Republic of Croatia. While it was accepted that there was a history of racial tensions in Croatia and that Serbs have faced harassment, discrimination and abuse, the delegate had regard to recent policy changes in the government and found that the chance of the applicant facing serious harm from authorities and members of the public would be ‘remote and less than a real chance’. The delegate was satisfied that there were adequate resources in place to deal with the applicant’s mental health issues and was not satisfied that there was information before him

1 XFCS v Minister for Home Affairs [2020] FCA 71.
2 XFCS v Minister for Home Affairs [2020] FCAFC 140.

or her to suggest that the applicant would be denied access to services or treatment. The delegate did not consider that the applicant’s mental health issues would engage complementary protection because, even if the applicant’s life expectancy was threatened by removal, deprivation of life due to natural causes and pre-existing medical conditions would not be ‘arbitrary’. The delegate was not satisfied that any harm relating to the applicant’s intellectual disability and mental health issues would be caused by intentional or deliberate lack of medical treatment. The delegate therefore rejected the applicant’s claims in relation to complementary protection.

The applicant has been in custody and/or immigration detention since [year]. He appeared before me on 15 September 2022 by video from immigration detention on Christmas Island to give evidence and present arguments. He was represented by his lawyer, Ms Anna Copeland, who attended the Tribunal hearing and provided extensive written and oral submissions. Further written submissions were made by Ms Copeland on 22 September 2022.

The applicant makes the claims set out in his application for protection. These claims have not changed. He also claims that these matters should be considered cumulatively, together with his mental health and intellectual disability, which it is submitted will significantly impact his ability to deal with the issues of discrimination and persecution.

The issue for determination in this case is whether the applicant meets the criteria for a protection visa under ss 36(2)(a) or 36(2)(aa) of the Act.

For the reasons that follow, I have found that the applicant meets the refugee criterion in s 36(2)(a) of the Act. It is therefore unnecessary for me to consider whether the applicant also meets the criterion in s 36(2)(aa).

CRITERIA FOR A PROTECTION VISA

The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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).

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.

A threshold issue in this case, for the purposes of making the assessment of protection obligations, is to make a finding about the country of reference, being the ‘receiving country,’ against which protection obligations are to be assessed. Section 5(1) of the Act defines ‘receiving country’ as being the country of which the non-citizen is a national or, if the non- citizen has no country of nationality, the country of his or her former habitual residence, regardless of whether it be possible to return the non-citizen to that country.

Accordingly, a critical issue for determination in this case is whether the applicant is a national of Croatia or some other country and, if not, what is the country of his former habitual residence.

Whether a person has a particular nationality is a question of fact. Nationality is not identical to citizenship although there is some overlap. According to Weinberg J in VSAB v Minister for Immigration and Indigenous Affairs the concept of ‘nationality’,
….is a term somewhat lacking in precision. It is generally used to signify the legal connection between an individual and a State. The primary relevance of nationality under international law is to provide a basis upon which a State can exercise jurisdiction over persons. However, the term is employed in different ways in international law, and domestic law.3

As noted in the Guide to Refugee Law in Australia, referring to FER17 v Minister for Immigration, Citizenship and Multicultural Affairs, entitlement to nationality or a capacity to become a national under the laws of the country is insufficient to establish nationality under the Act.4

According to the Department of Home Affairs Refugee Law Guidelines, factors that may be relevant in determining an applicant’s country of former habitual residence include whether the applicant had established a significant period of de facto residence in the country in question, residence or settlement of some duration that is more than a short term or temporary stay, continuity of stay or settled intentional purpose to stay and the nature of the residence.5 This is guidance only and should not be treated as a checklist of minimum requirements. As the Guide to Refugee Law in Australia notes, there is limited judicial authority on these matters and ultimately this will be a question of fact.6 However, it is clear that the ability of an applicant to return to their country of former habitual residence is irrelevant for the purpose of determining whether they satisfy the definition of a refugee in section 5H(1) or meet the criterion for complementary protection. Furthermore, the ability to re-enter a country where a person was habitually resident because that person has no right of re-entry does not of itself constitute persecution.7

Section 36(3) provides that Australia is taken not to have protection obligations to non- citizens who have not taken all possible steps to avail themselves of a right to enter and reside in a country apart from Australia. There are exceptions to this qualification which operate, broadly, where a person has a well-founded fear of being persecuted or faces a real

3 VSAB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 239 at [48].
4 ‘A Guide to Refugee Law in Australia’ Administrative Appeals Tribunal, Chapter 2 at p2.11 and FER17 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCAFC 106 per Kerr, White and Charlesworth JJ.
5 Policy – Refugee and humanitarian – Refugee Law Guidelines , Department of Home Affairs.
6 Ibid at pp2.17-2.19.
7 BZADW v Minister for Immigration and Citizenship [2013] FCCA 1229.

risk of significant harm in that country, or has a well-founded fear of refoulement from that country to a place where they face such treatment.8

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

DECISION OF THE DELEGATE

The delegate noted that the birthplace for the applicant was [city] in the Socialist Republic of Croatia (SRC) which was a member state of the Socialist Federal Republic of Yugoslavia (SFRY)) at that time. The applicant’s birth certificate was said to have been issued under the authority of the SRC and the SFRY. The applicant’s travel document shows his identity details, recording that he was born in [city] Croatia. In response to a request for information dated 14 December 2021, the applicant provided a document signed by a Croatian court dated 12 April 2021, which stated that there were no records in their database that a person known as [applicant’s name] was born in any hospital in Croatia or that a birth certificate or other document of his life or existence had been issued in Croatia. The delegate noted that a birth certificate for the applicant was provided to the Department in support of the Humanitarian visa, recording that the applicant was born in Croatia.

Having the details in this birth certificate, the delegate gave no weight to the letter from the Croatian court and found that the applicant’s identity is [applicant’s name] born [in] [date] 1989 in [city] Croatia. The delegate found that the applicant was entitled to Croatian citizenship by birth through his parents. The delegate therefore rejected the claim that the applicant was stateless and found that he was a citizen of Croatia. The delegate also found that under Article 32 of the Constitution of Croatia, he would have the right to return to Croatia at any time. The delegate assessed the applicant’s claims by reference to his country of nationality, being the Republic of Croatia.

The delegate accepted that the applicant is of Serbian ethnicity and that he is an Orthodox Christian. The delegate also accepted, based on a 2008 report prepared by [individual A], forensic psychologist, headed Psychological Assessment and Court Report, that the applicant’s intellectual functioning was at the lower level of the borderline range for intellectual disability. The delegate also accepted the psychological assessment undertaken by [individual B] dated 25 April 2018, which concluded that the applicant had suffered significant psychological problems for most of his life, which had been compounded by features of post-traumatic stress disorder, substance abuse disorder and a lower level of intelligence. The delegate noted that the applicant had a criminal record in Australia, that he had a good relationship with his mother but no contact with his father and brother, who were all living in Australia, that he had no relatives or family living in Croatia and that the applicant had mental health issues.

The delegate noted that ethnic Serbs made up just over 4 percent of the population and that sources reported that Serbians suffer ‘a degree of official and societal discrimination and some societal violence’. The delegate also noted reports said to state that authorities in Croatia had implemented comprehensive anti-discrimination laws to promote equal treatment and address cases of discrimination but that despite these legislative reforms and

8 A Guide to Refugee Law in Australia’ Administrative Appeals Tribunal, Chapter 9 at p9-2

attempts by the current government to promote reconciliation between Croats and ethnic Serbs, ‘numerous historical grievances remain unresolved’ and was an ongoing source of communal tension. The delegate referred to country information, including information from the US Department of State, the World Report for 2020 and 2021 published by Human Rights Watch and the Bertelsmann Stiftung’s Transformation Index 2022 report. The delegate also noted that Croatia’s human rights record was examined by United Nations Human Rights Council Universal Periodic Review Working Group in November 2020 and that several of the countries participating in the review had welcome efforts made in relation to reconciliation but had recommended further action to be taken. The delegate noted that no information has been located which makes any specific references to Croatian-Serbs being unable to or facing difficulties in accessing state protection in Croatia and that multiple media reports had stated that authorities in Croatia had charged individuals involved in hate crimes against Serbs in Croatia.

Relevantly, the delegate made the following assessment:
I recognise that there is a history of racial tensions in Croatia, tied to religion, and that ethnic Croatian-Serbs have faced harassment, discrimination, abuse and harm from the general community and the authorities. I acknowledge that recent reports indicate that Croatian-Serbs continue to be treated with suspicion. Having considered the country information, I place more weight on recent sources that show the Croatian authorities have improved their approach and implemented measures to increase engagement with the Croatian-Serb community. I consider information that shows that policy changes in government have contributed to changing perspectives and attitudes towards Croatian Serbs in the community. Whilst the applicant has claimed to face harassment and discrimination in the past by authorities on the basis of his race, taking into consideration the recent country information and the information before me, I am not satisfied that the applicant has a profile which will attract any adverse attention from the authorities in Croatia. Moreover, I consider the country information indicates that discrimination against Croatia-Serbs remains a concern however there are indicators of greater social cohesion. As such, I consider the chance of the applicant facing serious harm on account of his ethnicity and religion from the authorities or members of the public to be remote and less than a real chance.

The delegate noted that State funded entitlements within the social welfare system in Croatia which were available to Croatian citizens with residence in Croatia. However, it was also noted that in 2017, the United Nations Special Rapporteur reported on concerns that the mental health system in Croatia remained focus on institutionalisation with inadequate resources for output services. It was recommended that Croatia should develop policies strongly orientated towards addressing the needs and rights of service users.9

The delegate concluded that the country information indicates that Croatia has an improving and assessable social welfare and mental health care system and support for citizens of the country. Even though it was accepted that the applicant has no family or relative support in Croatia and has a borderline intellectual disability, the delegate concluded that mental health care assistance was available to him. While the delegate accepted that the applicant had reported suffering suicidal ideation and has borderline intellectual disability with a diagnosis of PTSD, the delegate was not satisfied that the applicant faced a real chance of serious harm from the general public or authorities in Croatia. The delegate concluded that there was no intent to cause harm to people with mental illness in Croatia and that social stigma and discrimination associated with mental health would not amount to a real chance that the applicant would suffer serious harm for this reason. It was accepted that there may be difficulty for the applicant in assessing services or treatment, but the delegate concluded that

9 Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health on his visit Croatia, UN Human Rights Council, 28 April 2017.

there was no information that the applicant was denied access to services or treatment to assist him with managing his mental well-being.

The delegate was not satisfied that the fact the applicant was a criminal deportee would expose him to harm and did not accept the applicant would be a person of interest. The delegate stated that the assessment was made both individually and cumulatively. In summary, the delegate was not satisfied that the applicant would face serious harm on account of his race/ethnicity, religion or membership of a particular social group as ‘a male with mental health issues without family support or protection in Croatia with a prolonged stay in a Western country’.

As such, the delegate was satisfied that the applicant feared persecution but was not satisfied that this fear was ‘well-founded’. The delegate was not satisfied that the applicant’s claims engaged complementary protection for similar reasons.

OUTLINE OF CLAIMS AND EVIDENCE

As already noted, the claims made by the applicant were set out in his application for protection and are summarised in the decision record of the delegate. The applicant’s claims remain as they were expressed in written submissions before the delegate, however, the Tribunal has had the benefit of more detailed submissions provided by Ms Copeland prior to the hearing which focused on the key issues in dispute. A summary of those submissions is set out later in my reasons.

The applicant gave oral evidence at the hearing and said that he agreed with the ‘Factual Background’ set out in the decision of the Federal Court at paragraphs [13] to [19] of the judgement of his Honour, Justice O’Bryan, is reproduced from the judgement as follows:
13. The applicant was born in Croatia to Serbian parents in [month] 1989. His family was affected by the outbreak of war in Croatia following the disintegration of the former Yugoslavia.

14. The applicant stated that his family’s home was burnt down in 1995 or thereabouts. His father was also shot in the conflict. The applicant apparently observed these events as a young boy.

15. As a result of the conflict in Croatia, the applicant’s family decided to flee. They travelled by tractor to Serbia. They remained there for some time until they eventually resettled in a refugee camp in Kosovo. They remained in Kosovo for another four years. Conflict ensued in Kosovo in approximately 1999. Once again, given the conflict that emerged, the family returned to Serbia.

16. The conditions which the family endured throughout this period after leaving Croatia can be best described as spartan. They resided in several refugee camps and frequently the entire family was living in a very small room.

17. Eventually, in December 2002 the family were granted refugee visas for Australia. They first arrived in 2003 having spent most of the previous eight years in refugee camps either in Serbia or Kosovo. Throughout this time, the applicant had witnessed and lived through difficult times which included conflict and war hardship, which has left the applicant with some level of trauma.

18. The family’s first residence in Australia was in Burnie in Tasmania. They remained there for approximately one year before they moved to Melbourne in the greater Dandenong area as a result of various friendships that they had within the Serbian community.

19. The applicant’s father, it appears, was frequently violent to both his children and his wife. The applicant’s mother and her husband separated in approximately February 2004. Their eldest son left home in approximately 2006. Later the applicant left home and led a somewhat itinerant lifestyle. In terms of accommodation, he engaged in the practice of what he described as “couch surfing”. The evidence of the applicant and his mother was that this had an effect on the applicant to the extent that he stopped attending school in approximately 2005.

[References to AAT reasons omitted]10

The applicant said that he had first left Croatia when he was six years old. He said that ‘a lot has happened since this time’ and there was ‘a lot of violence’ when he was in Croatia involving his family, in particular his mother. The family ended up in Serbia but, according to the applicant, the Serbs did not accept the family and then they ended up in Kosovo. His father was abusive to the family and there was also violence in the refugee camps. He and his brother went to school, but they were bullied because they were refugees and because they were poor. His mother protected him from his father.

When the family settled in Tasmania, he found it difficult. His father was still aggressive. The family was not able to speak English when they first arrived. They moved to Melbourne to find work. His father left him and his mother. The applicant says that that he went ‘downhill’ after this. He was expelled from school and started spending time with ‘bad people’. He ended up in prison. He initially did well but once he got out of prison and went back to his old friends, he got into trouble and was convicted of further offending. He went back to prison.

He trusts his mother and she has told him it would be ‘very bad’ for him to return to Croatia. He is extremely anxious about having to return to Croatia. He gets treatment from a psychologist and counsellor regularly while he is in detention and is on medication. He has no family in Croatia. Some of his extended family has settled in the United States, some in the United Kingdom and some in Australia. He talks to his mother every day. The applicant says that he has been immigration detention or prison for the past 10 years. He is now 33 years old.

The applicant has an extensive criminal record, which commenced when he was 16 years old. This is not in dispute. He was first sentenced to a term of imprisonment for 30 months in 2009, when he was 20, followed by numerous driving, drug and property offences and, finally, the offences for which he was sentenced to 5 years and 10 months by Judge Sexton on [date] 2014. The detail of those offences and the applicant’s previous criminal conduct is not relevant to my assessment of whether the applicant meets the refugee or complementary protection criteria for the reasons previously outlined. As such, I have not included the detail in these reasons, suffice to say that there was evidence before the previous Tribunal and before me that the applicant’s intellectual disability, substance abuse and mental health issues appeared to have exacerbate his criminal offending.

According to a report from [individual A], forensic psychologist, dated [date] 2008, he assessed the applicant as having intellectual functioning at the lower end of the borderline range.11 It was further reported [individual A] as follows:
[The applicant’s] general reasoning capacity is barely sufficient to allow him to function at a modest level within the wider community. He suffered specific language deficits that have significantly impacted his verbal scores and would impair his daily functioning in the wider community. [The applicant’s] performance was in the upper end of the mildly retarded range across verbal areas of functioning. His performance

10 XFCS v Minister for Home Affairs [2020] FCA 71 at [13]-[19].
11 Psychological Assessment and Court Report, [individual A], Forensic Psychologist dated [date] 2008.

was in the borderline range across non-verbal areas of functioning. The variation between his verbal and non-verbal IQs is statistically significant and related to his poor education and English literacy.

[Individual A] further relevantly reported:
[The applicant] suffers a significant intellectual impairment. He will for the rest of his life be severely impeded in effectively planning and executing behaviour, gaining insight, and being able to foresee possible consequences of his actions.

………………….

In my opinion the applicant has the capacity to rebuild his life. However, his lack of positive role models, poor English literacy, education and family support will necessitate a considerable community input in terms of support and supervision.

Consultant forensic psychologist, [individual B], provided a report dated [date] 2018 to the applicant’s previous advisors and this was provided to a previous delegate of the Minister who was considering whether to cancel the applicant’s humanitarian visa in 2019.12 In his report, [individual B] noted that the applicant’s intellectual functioning had previously been assessed by Central Melbourne Psychology with a full-scale IQ of 62 (10 points less than the assessment made by [individual A]) and that this falls within the ‘intellectual disabled’ category. [Individual B]-reported that it was clear the applicant had suffered significant psychological problems for most of his life, which had been compounded by features of Post Traumatic Stress Disorder, Substance Use Disorder and a lower level of intelligence. It was concluded that this would have ‘significant implications’ in terms of the applicant’s limited capacity to negotiate his environment, particularly if he was deported and was consequently reliant on his own means in order to survive. [Individual B] reported that the applicant had long-standing symptoms of depression, anxiety and low self-esteem. Notably, he opined that the applicant had a prior history of poor impulse control and that he would ‘not cope at all if he was returned to Croatia by virtue of his very poor capacity to effectively negotiate his environment, problem solve and critically evaluate solutions even under optimal circumstances’.

Given there was uncertainty about whether the applicant is entitled to Croatian citizenship, the applicant’s lawyer was requested to obtain any further evidence to assist in relation this determination. The applicant’s lawyers provided a letter to the Tribunal on 18 August 2022, which attached an email, translated into English, from [individual C], [Position] in the Croatian region of Topusko. Topusko is about 175 km from the place where the applicant was born in [city]. The email is to the effect that the applicant would be entitled to obtain citizenship but that there would be difficulties for him in finding a place to live or to get a job and there would be animosity amongst locals if he was to return.

SUBMISSIONS

The applicant, through his lawyer, concedes that he is eligible for Croatian citizenship, although it is submitted that there may be difficulties for him in having the State recognise this or for this to be given proper effect because of the applicant’s intellectual and mental health disabilities. It is accepted that, despite these uncertainties, Croatia is the country of his former habitual residence. It is therefore accepted that, for the purposes of assessing Australia’s protection obligations, Croatia should be taken as the receiving country. It is further submitted that, even if the applicant is entitled to return to Croatia to be considered for citizenship, his absence for many years and the uncertainty surrounding his citizenship

12 Psychological Assessment, [individual B], Consultant Forensic Psychologist, dated [date] 2018.

and entitlement are significant matters that should be taken into account in assessing whether the applicant meets the refugee or complementary protection criteria.

It is submitted that the background country information in relation to Croatia, and the applicant’s particular circumstances and characteristics, support the applicant’s contention that he has a genuine fear of persecution if he returns to Croatia and that this fear is well- founded.

Partition of Croatia began in 1990 when the Croatian Democratic Union party won the 1990 elections on an anti-Serb platform. The government immediately took steps to ensure that the Serbs would be rendered ‘second-class citizens in a Croatia defined constitutionally as the national state of the ethnically Croat people’. When Croatia declared independence in June 1991, the Serbs in the region announced their desire to remain in Yugoslavia. The Yugoslav army supported the Serbs, who took control of one third of the territory of Croatia. The pattern of war in Croatia after this was the partition of the regions that had been most mixed ethnically. This resulted in populations forced to divide into different areas, ‘rendering hundreds of thousands of people homeless’ in an attempt to ‘homogenise the population’. By March 1994, only about 150,000 Serbs remained in parts of Croatia under government control and others fled to Serbia controlled areas of Croatia and Bosnia or to Serbia itself. According to Human Rights Watch, in the aftermath of ‘Operation Storm’, it is estimated that 200,000 ethnic Serbs were displaced and had fled after the armed conflict, followed by police abuse and attacks against ethnic Serbs and their property which increased after 1995. It is contended that the long-term effect of military events in 1995 meant that non-Croats continued to face ethnic discrimination and were arbitrarily denied citizenship, despite having resided in Croatia for decades. Three decades after this upheaval the number of ethnic Serbs living in Croatia is small, less than 5%, and there is country information to the effect that tensions between Croats and Serbs is resurfacing resulting in ethnic vigilantism.13

The applicant is an ethnic Serb and a member of an ethnic minority in Croatia. Making up a small percentage of the population, ethnic Serbs have been living in Croatia since its formal creation in 1991. When the Republic of Yugoslavia existed, individuals of Serbian ethnicity lived in the Croatian region and were considered Croatian citizens. Following the breakup of Yugoslavia, these ethnic Serbs now constitute a minority ethnic group in Croatia.

It is submitted that despite the enactment of anti-discrimination legislation, ethnic Serbs in Croatia continued to be discriminated against. As reported in the US Department of State 2021 Country Reports on Human Rights Practices: Croatia report, there has been an increase in hate speech and crime in the Croatian media and political sphere. Ms Copeland refers to the following extract from the US Department of State report:
According to the Serb National Council (SNV), the Serb national minority continued to face discrimination, including hate speech and anti-Serb graffiti. Serbs were subject to discrimination especially in Eastern Slavonia. The SNV also said members of the Serb national minority faced significant discrimination in employment, and there were unresolved, long-standing issues of registration of Serb schools in Eastern Slavonia and in the justice system, particularly with respect to missing persons and unprosecuted war crimes cases.

Ms Copeland also refers to an article, Navigating Exclusion as Enemies of the State: The case of Serbs in Croatia and Croats in Serbia, published by Dustin Tsai who writes that since the breakup of Yugoslavia and the subsequent Croatian war of independence in the

13 Written submissions dated 4 September 2022 at [3.2] to [3.6] referring to published country information and articles at footnotes 3 and 4; ‘Serbian and Croatian Nationalism and the Wars In Yugoslavia’, Robert Hayden, Cultural Survival Quarterly Magazine, June 1995 and ‘In Bosnia, Fear Mounts Over Rising Ethnic Tensions’, Consider This From NPR, 9 February 2022.

1990s, ethnic Serbs living in Croatia face threats to their life and liberty, significant physical harassment and significant physical ill-treatment. According to Mr Tsai, right-wing nationalist Croats have consistently attacked and threatened the Serbian population. As noted in publications by Balkan Insight and Refworld (referred to in the written submissions) this environment has resulted in many Serbs living in Croatia hiding their ethnicity out of fear and to avoid discrimination for job applications, to loss of business or social status and to prevent verbal and physical attacks. 14

Ms Copeland referred to further country information in her written submissions, referencing external sources, including recent reports about events during 2022, which are said to illustrate the ongoing tensions, discrimination and persecution of Serbs in Croatia. These include an incident in July 2022 when the Croatian government refused to allow Serbian President Aleksandar Vucic to visit the Jasenovac memorial complex, the site of the Nazi- allied Croatian Ustasa death camp during World War II, where more than 80,000 Serbs, Jews, Roma and others were murdered. According to Balkan Insight, this raises further tensions and a level of mistrust.

It is submitted that there is ‘no doubt’ the applicant’s ethnic minority status will make him more vulnerable to violence as well as discrimination by non-state actors. Even if this was not sufficient to result in a real chance of serious harm, and thereby persecution, it is submitted that this factor must be considered cumulatively with the other grounds applying to the applicant. Relevantly, it is submitted as follows:
The clear picture emerging of Croatia currently is a country rife with ethnic tensions and therefore one that requires a member of the ethnic minority to deftly and sensitively manoeuvre.

Ms Copeland contends that the particular circumstances and characteristics of the applicant mean that he will be unable to properly manoeuvre these ethnic tensions and that these factors further make him a target of persecution.

It is submitted that the applicant’s intellectual disability will make it difficult for him to survive if he is returned to his country of origin. There is evidence that he has high levels of anxiety about the possibility of his return to Croatia, poor coping skills and therefore limited capacity to effectively negotiate his environment.

It is further submitted that the applicant is a member of a particular social group, being a person with intellectual disability, and that this, coupled with his Serbian ethnicity, would make him a target of persecution from Croatian nationals from which the state will would be unwilling or unable to prevent. Ms Copeland refers to the definition of intellectual disability by the American Psychiatric Association (AMA) which states that persons with disability have difficulty in their ability to learn, problem solve, exercise judgement and adaptive functioning and independent living. According to Ms Copeland, the AMA has also outlined that special education, vocational programs and family support can improve an impaired person’s ability to function and enable them to thrive. Given this will not be available to the applicant if he returns to Croatia, this is a further matter to consider.

14 Written submissions dated 4 September 2022 at [4.5] and referring to published country information and articles at footnotes 6, 7 and 8; ‘Navigating Exclusion as Enemies of the State: The Case of Serbs in Croatia and Croats in Serbia’, Dustin Tsai, Taylor Francis Online, 15 March 2021; ‘Croatia’s Serbs Must Vote to ‘Preserve Their Rights’’, Anja Vladisavljevic, BalkanInsight, 2 May 2019 and ‘Croatia: Treatment of minority groups, including Roma, Serbs, Bosnians, and Romanians; state protection available in cases of violence and discrimination, including legislation (2012-June 2015)’, Canada: Immigration and Refugee Board of Canada, 15 July 2015.

It is further noted that in a 2014 survey conducted by Human Rights Watch, it was found that people with intellectual disability in Croatia are vulnerable to social exclusion as they are often institutionalised and subjected to verbal abuse, forced treatment, lack of privacy and limited freedom of movement. According to the 2014 report to United Nations, Croatia’s Ombudswoman for Persons with Disabilities reported to the effect that little progress has been made in the development of treatment for people with psychosocial disabilities or in improving the quality of healthcare available to them in the community.

According to Ms Copeland, the applicant has a number of other characteristics which would place him in a particular social group, being a criminal deportee, suffering trauma and having spent his formative years in Australia. This also has the potential to make the applicant vulnerable to serious harm. In this regard, Ms Copeland referred to the case of Robert Jovocic, a Yugoslav citizen who moved to Australia at the age of two but was subsequently deported to Serbia in 2005. After becoming destitute because he had no lawful status in Serbia and could not access services or employment, he was eventually granted permanent residency and allowed to return to Australia.15 it is submitted that the circumstances the applicant are similar in that even if Croatian authorities recognise that the applicant was born in Croatia, the process of obtaining citizenship may be fraught. There is no guarantee the applicant will be able to obtain citizenship or residential status in Croatia, particular given his difficulty in negotiating complicated processes. This will leave the applicant to deal with a society that is completely foreign to him where he only holds traumatic memories. It is submitted that the applicant has none of the skills, sensitivities or knowledge to navigate this and his disability, along with his Serbian ethnicity, would make him a target.

It is submitted that, in addition to the refugee criterion, the applicant’s circumstances would also engage obligations under the complementary protection provisions because he faces a real risk of significant harm in the form of inhumane and degrading treatment due to his disability, a risk which is exacerbated by his Serbian ethnicity.

Ms Copeland contends the delegate’s decision is wrong because it did not address the applicant’s intellectual disability. The delegate identified the applicant’s membership of a particular social group as being a male with mental health issues without family support or protection in Australia with a prolonged stay in a Western country. The delegate failed to properly assess the impact of the applicant’s intellectual disability and failed to assess this ground cumulatively with that of the applicant’s Serbian ethnicity and the fact that he is a criminal deportee, with trauma returning after more than two decades.

It is submitted that the applicant cannot relocate within Croatia to avoid the harm, in other words persecution plus the whole of Croatia and there is no safe third country for the applicant to enter or reside.

In supplementary written submissions provided after the hearing, the applicant’s lawyer expanded upon this final submission, stating that while the country of reference may be Croatia, the possibility that Serbia may be a safe third country in which the applicant could seek refuge is ‘pure speculation’ that should be rejected. Furthermore, under Serbian citizenship law, there is no right of citizenship unless the person was born of parents who were at the time, citizens of Serbia. This does not apply to the applicant. It was also submitted that, while Croatia is moving towards full membership of the European Union sometime in 2023, there is no right to enter EU countries for Croatian citizens at this stage, nor is there evidence a right to reside.

15 Written submissions dated 4 September 2022 at [6.2] to [6.4].

FINDINGS OF FACT

l accept that the applicant was born in Croatia in 1989. I also accept the applicant has Serbian ethnicity, that he and his family left Croatia as refugees when he was six years old and he has not returned since this time. I find that the applicant has no relatives living in Croatia, he does not speak the language and has intellectual disability and mental health issues. I accept that he is a criminal deportee who has lived outside of his country of origin for most of his life and has no family support in Croatia.

There is no evidence before me to the effect that the applicant is a citizen of Croatia, in fact it is contended that he is not. Based on the evidence before me, I am satisfied that the applicant has an entitlement to obtain citizenship because he was born in Croatia. His entitlement arises by reason of Article 3 of the Croatian Citizenship Act (2020), which provides that Croatian citizenship is acquired by origin, by birth within the area of the Republic of Croatia, by naturalisation and pursuant to international treaties. I also accept the findings of the delegate in this regard, which were based the Report on Statelessness in South-Eastern Europe UNHCR, which reported as follows:
Citizenship in the former Socialist Federal Republic of Yugoslavia; ‘The SFRY citizenship system consisted of two levels – the federal and republican level; one was a SFRY citizen and was also a citizen of one of the member-republics’. This was affirmed in Article 249 of the 1974 SFRY Constitution. There was no succession treaty regulating issues of citizenship following the disintegration of the SFRY, all successor States used the principle of continuity of internal (i.e. Republican) citizenship in the creation of their new nationality laws.16

[footnotes omitted]

The question therefore arises as to whether I am satisfied that the applicant has a nationality and, if so, what is that nationality for the purposes of assessing whether he meets the refugee or complementary protection criteria.

As noted, ‘nationality’ and ‘citizenship’ are not identical. It was observed by Weinberg J in VSAB v MIMIA that the Refugee Convention (and relevant to this case, s 5H of the Act) speaks of nationality rather than citizenship, which must be determined ‘in accordance with the domestic law of that country regarding such matters.’17 The complexity of these differences was further explained by Weinberg J as follows:
50. One of the terms that is often used synonymously with "nationality" is "citizenship". It has become usual to employ the term "citizen" instead of "subject" in States that adopt a republican form of government.……………

……………

52. In any event, it is sufficient for present purposes to accept that the term "citizenship" overlaps with the term "nationality". Both notions embody some form of link to, or membership of, a State giving rise to the existence of reciprocal rights and duties. International legal instruments, such as art 15 of the Universal Declaration of Human Rights, generally use the term "nationality", rather than the term "citizenship". However, nothing of any consequence turns upon this.

This issue was further considered by the Full Court in FER17 v MICMA.18 In that case, similar to the facts in this case, there was evidence the applicant was entitled to Sri Lankan

16 Report on Statelessness in South Eastern Europe', UNHCR, September 2011.
17 VSAB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 239 at [53].
18 FER17 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCAFC 106, on appeal from FER17 v Minister for Immigration & Anor [2018] FCCA 3767.

citizenship but there were a number of matters that needed to put in place, including registration of his birth certificate in a certain manner. The discussion by the Full Court is useful because it illustrates the considerable overlap in the concepts of citizenship and nationality and provides guidance on how an entitlement to citizenship should be assessed.

In that case, the Minister submitted that the applicant would have been a citizen of Sri Lanka if he had undertaken the appropriate steps, including providing the required supporting documentation. According to the Minister, the capacity to acquire citizenship meant the applicant should have been found to be a national of Sri Lanka for the purposes of determining his receiving country. While it was accepted that the words ‘a national’ or ‘nationality’ are not defined terms in the Act, the Minister contended that nationality must be understood as conveying a broader notion than citizenship and that ‘a national’ as properly construed should be understood as applying to a person who had the capacity or right to acquire such a status pursuant to the laws of another country. The applicant submitted that ‘whatever minimum bundle of rights’ would be sufficient for a person actively possessed of such rights to fall within the description of a national, there was nothing in the Act to suggest that the Minister’s construction should be accepted.19

The Full Court followed the established principles of statutory construction and considered the ordinary meaning of ‘a national’ by reference to the Macquarie Dictionary, noting that the definition for ‘national’ when used as a noun meant ‘a citizen or subject of a particular nation, entitled to its protection’. The Full Court observed that the definitions refer to a status ‘actually and presently’ held by a person and further noted:
As a matter of textual analysis, applying the ordinary and natural grammatical meaning of their words, we are satisfied that there is no basis on which to construe those provisions as extending to any status that a person does not presently possess. Instead, on their ordinary and natural meaning, the words “national” and “nationality” refer to a status presently possessed. They do not encompass a status capable of being sought and acquired, but which is not presently held.20

Despite this definition, the Minister contended that the context or purpose of the relevant provisions of the Act provided a good reason to give the word national in the definition of receiving country a meaning extending beyond its ordinary and natural meaning. The Full Court rejected this submission, noting as follows:
The Court is satisfied that the meaning submitted for by the Minister finds no footing in the text of the statute. As Mr McDonald submits, if nationality is not established then the definition of “receiving country” in s 5 of the Act provides a fall-back alternative: “habitual residence”. We accept that submission. Given that Parliament has expressly provided for that specific eventuality, there is no reason inherent in the text to find that pragmatic considerations require this Court to construe the words “a national” and “nationality” in the relevant provisions other than in their ordinary and natural sense.

As such, it is clear from FER17 that the applicant’s entitlement to citizenship is not sufficient to establish that he is a national of Croatia. While the applicant spent time in Serbia and Kosovo as a refugee, there is insufficient evidence to suggest that that he is a national of either of these countries, nor is there evidence that he is a national of another country. I am therefore satisfied that the applicant has no country of nationality and is stateless.

Given the applicant has no country of nationality, the further question that arises is to determine the country of the applicant’s ‘former habitual residence’ for the purposes of determining the applicant’s receiving country.

19 Ibid at [43], [45] and [53].
20 Ibid refer at [61] – [62] and [64].

The applicant, through his representative, says that Croatia is the place of his former habitual residence. I accept this. The applicant was not only born in Croatia but resided there for the first six years of his life until he and his family were forced to flee. When they moved to Serbia and Kosovo they resided there as refugees, not as a family seeking to move to settle in another country. While the family lived in both these countries for several years and the applicant and his brother attended school there, there is no suggestion that the family intended to settle in those countries. The purpose of moving to these countries was driven by the need to leave Croatia and to seek asylum in another country outside the region.

Even if it could be argued that Serbia or Kosovo are countries where the applicant has previously resided, it is unnecessary to show a well-founded fear of persecution or a real risk of significant harm in respect of each country of former habitual residence. As the Federal Court observed in Al-Anzezi v MIMA:
……it does not follow that a stateless person who has had more than one country of former habitual residence is necessarily to be assessed, in relation to a claim for recognition as a refugee, by reference to each of those countries. Indeed, to approach the matter in that way would be to distinguish between persons with a nationality and stateless persons significantly to the detriment of the latter. A person who has a nationality, who has left the country of nationality owing to persecution for a Convention reason and is, as a result of a fear of such persecution, unwilling to return or is unable to avail himself or herself of the protection of that country, remains a refugee no matter in how many intermediate countries he or she may have resided and however many of them may correctly be described as countries of former habitual residence. It would be surprising if a stateless person who, owing to a well- founded fear of persecution for a Convention reason, had left (was outside) a country of former habitual residence and was unable or, due to such a fear, unwilling to return to that country, ceased to be a refugee merely because of subsequent habitual residence in another country in which he or she had no fear of persecution.21

Having found that Croatia is the applicant’s receiving country for the purposes of assessing protection obligations, a further question that arises, in respect of which is necessary to make a factual finding, is whether the applicant has the right to enter and reside in a country other than Australia, where he would not be persecuted or otherwise face a real risk of significant harm. The right referred to in s 36(3) must be an existing right, and not a past or lapsed right, or a potential right or an expectancy. The right does not need to be a legally enforceable right under local law and can be a ‘liberty, permission or privilege lawfully given’ which has not been withdrawn.22

When it is unclear whether the applicant would have the right to acquire a passport or any other travel document, it is difficult to conceive a possible pathway for the applicant to enter a third country, let alone reside there. Relevantly, there is no evidence that the applicant has the right to enter and reside in Serbia and I find that any entitlement to enter or reside in another country in the EU is highly speculative. Accordingly, I find that the applicant does not have the right to enter and reside in a ‘safe’ third country.

CONSIDERATION

The issue in this case is whether the applicant meets the refugee criterion for protection in s 36(2)(a), or, alternatively, the complementary protection criterion set out in s 36(2)(aa) of Act. There is now no longer any dispute that the country of reference for the purposes of assessing Australia’s protection obligations is Croatia.

21 Al-Anzezi v Minister for Immigration & Multicultural Affairs [1999] FCA 355 at [22] per Lehane J.
22 A Guide to Refugee Law in Australia’, Administrative Appeals Tribunal, Chapter 9 at pp 9-6 and 9-7.

Does the applicant meet the refugee criterion?

As already noted, to meet the criterion for protection under s 36(2)(a), an applicant must satisfy the Tribunal that they are a ‘refugee’ within the meaning set out in the Act. Relevantly, s 5H defines a refugee as a person who has a nationality and is outside their country of nationality and is unable or unwilling to avail himself or herself of the protection of that country owing to a well-founded fear of persecution. In a case where the person does not have a nationality, the person will be a ‘refugee’ if he or she 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.

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 of the Act.

The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).

For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.

I accept that the applicant has a subjective fear of persecution if he returns to Croatia. The question is whether this fear is well-founded and whether the fear relates to one or more of the reasons mentioned in s 5J(1)(a) of the Act.

The submission of the applicant in relation to the treatment of Serbs in Croatia, made through his lawyer, is supported by the country information referenced in those submissions and is consistent with many of the findings of the delegate.

In summary, there is evidence that ethnic Serbs in Croatia face discrimination and societal violence. While there is also country information that the authorities in Croatia have implemented comprehensive antidiscrimination laws to address these issues and promote reconciliation between Croats and ethnic Serbs, there is also country information to the effect that numerous historical grievances remain unresolved and is an ongoing source of community tension in Croatia.23

23 BTI 2022 Country Report Croatia, Bertelsmann Stiftung, 23 February 2022 p 34.

According to Freedom of the World 2022 report, Freedom House reported that:
Ethnic and religious minorities and elsewhere LGBTI+ people in Croatia face discrimination. Analysts have expressed concerns that the increasing visibility of far right, nationalist groups has created discriminatory rhetoric. Occasionally, the government’s actions suggest their endorsement of far-right groups, and observers have expressed concern that the government has tacitly approved discriminatory behaviour. A group of NGOs in December 2018 criticised the government for lacking a comprehensive human rights policy, and warned of the continuing deterioration of the protection of human rights in the country, especially for marginalised groups and women.

……

According to a June 2021 Council of Europe (CoE) report on the protection of national minorities, ethnic Serbs continue to face high levels of discrimination.24

In online articles in 2019 and 2020, Balkan Insight, a widely published online news service, reported on hate crimes against Croatia’s Serb minority, with the December 2019 report providing a summary of hate crimes and hate speech that had occurred in 2019 against ethnic Serbs.25 In its April 2021 report, Balkan Insight noted that the Serbian National Council, which represents the Serb minority, warned that ‘threats, hate speech and violence against Serbs in the country persist’, despite a lower number of cases being registered in 2020, which it attributed to the pandemic and the decrease in public events that may have otherwise provoked an increase in hate speech.26

While I accept the delegate’s finding that the applicant does not have a particular ethnic profile that will attract adverse attention from authorities in Croatia, there is country information to the effect that the applicant may be targeted by members of the community because of his ethnicity. Behavioural issues arising from the applicant’s intellectual disability and the mental health issues may draw greater attention to him as an ethnic Serb, possibly exacerbating the harassment, ill-treatment and discrimination that he may face in the community. As reported by [individual B] the applicant has long-standing symptoms of depression, anxiety and low self-esteem, with a prior history of poor impulse control. Given these vulnerabilities, I find that the applicant’s intellectual disability and mental health issues are attributes that may exacerbate the impact of any harm he may suffer, such that harassment in the form of verbal abuse may be sufficient to cause the applicant significant psychological harm.

As such, having regard to the available country information and the applicant’s particular circumstances and attributes, I find that there is a real chance he will face serious harm from non-state actors if he returns to Croatia. This harm may take the form of physical or verbal harassment or ill-treatment or discrimination, resulting in economic hardship. This harm applies to all areas of Croatia as there is no evidence to suggest that there are regions or cities within Croatia where the ethnic tensions reported will be reduced such that there will not be a real chance the applicant will face persecution.

The ethnicity of a person may be a ‘race’ for the purposes of identifying a refugee nexus for the refugee criterion. As observed in the Guide to Refugee Law in Australia, while there is little Australian authority on ‘race’ as a refugee ground, it is generally considered to be a very broad concept and not particularly contentious.27

24 ‘Freedom in the World 2022- Croatia’, Freedom House.
25 ‘Croatia:2019 Blighted by Anti-Serb hatred’, Balkan Insight , 23 December 2019.
26 ‘Intolerance, Hate Speech Persists Against Croatia’s Serbs: Report’, Anja Vladisavljevic, Balkan Insight, 13 April 2021.
27 ‘A Guide to Refugee Law in Australia’ Administrative Appeals Tribunal at p12, Chapter 5.

In Calado v MIMA the Court held:

When considering the meaning of the expression “race” in a case such as the present, it is appropriate to take into account the “popular” understanding of the term which accords importance to physical appearance, skin colour and ethnic origin. There can be no single test for the meaning of the expression “race” but the term connotes considerations such as whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of colour, and national or ethnic origins.28

In my view, the applicant’s ethnicity as a Serb is consistent with the notion of race. I am satisfied that the applicant’s ethnicity, or more relevantly, his race, is the essential or significant reason for the risk of harm and that any persecution would, at the least, involve societal discriminatory conduct which is systemic in nature. I find that the applicant could not take reasonable steps to modify his behaviour to avoid a real chance of persecution because to do so would require a modification to conceal his ethnicity.29

Section 36(2) provides that a person does not have a well-founded fear of persecution if effective protection measures are available to the person in the receiving country. Section 5LA provides that ‘effective protection measures’ are available to the person in the receiving country if protection against persecution can be provided by the relevant State, which is willing and able to offer such protection. Subsection (2) provides the relevant State is taken to be able to offer protection against persecution to a person if the person can access the protection, the protection is durable, and it consists of an appropriate criminal law or reasonably effective police force and an impartial judicial system.

Given the applicant’s particular characteristics and circumstances, there is little dispute that he will find it difficult to navigate State services and protection. This is supported by evidence of [individual B]. Furthermore, it is also possible the applicant may provoke, or exacerbate, hate crimes or physical and verbal abuse because of his inability to cope under stress. Lack of impulse control has caused difficulties for the applicant while he has been in Australia and there is a distinct possibility that Croatian authorities may be less inclined to assist the applicant and to protect him from harm where he is targeted in the community. In summary, I am not satisfied that the applicant will be able to access protection from the State because of his complicated intellectual and medical health conditions. Accordingly, I am not satisfied there are effective protection measures available to the applicant on his return to Croatia if he is persecuted by the members of the community because of his Serbian ethnicity.

I am therefore satisfied that the applicant meets the criterion in s 36(2)(a) of the Act.

Section 36(3) of the Act provides that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside, whether temporarily or permanently in a safe third county.

I accept Ms Copeland’s submission about these matters. As already noted, I am not satisfied that the applicant has the right to enter and reside in any safe third country and I therefore find that Australia’s protection obligations in respect of the applicant are not excluded by reason of s 36(3) in the Act.

Section 36A of the Act provides that, in considering valid protection applications, the Minister must consider and make a record of whether a non-citizen satisfies any of the criteria listed relating to the refugee or complementary protection criteria under the Act. Section 36A(1)(a)

28 Calado v Minister for Immigration and Multicultural Affairs (1997) 81 FCR 450.
29 Refer s 5J(3) of the Act.

provides that the Minister must consider whether the non-citizen satisfies the refugee criterion (under s 36(2)(a)) and the criterion under s 36(1C) of the Act. Section 36(1C) requires the Minister to be satisfied that the non-citizen is not a person who the Minister considers, on reasonable grounds, is a security risk or a danger to the Australian community. On the material before me, there may be a basis for the Minister, or a delegate, to decide that the applicant does not meet the criterion in s 36(1C) because he has been convicted of serious crimes in Australia. The delegate did not make any record relating to s 36(1C), because he or she was not satisfied that the applicant met the criterion in s 36(2)(a). The Migration and Refugee Division does not have the jurisdiction to determine issues relating to s 36(1C) (refer ss 411(1)(c) and (d)).

As such, while I am satisfied that the applicant meets the criterion in s 36(2)(a) of the Act, I have not made any findings about s 36(1C) of the Act.

DECISION

The Tribunal remits the matter for consideration with a direction that the applicant meets s 36(2)(a) of the Migration Act.

J.L Redfern PSM Deputy President

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
…
(1C)A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a)is a danger to Australia’s security; or
(b)having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Note: For paragraph (b), see section 5M.

…
(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.

…

Protection obligations

(3)Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

…

Key Legal Topics

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Immigration
Administrative Law

Legal Concepts

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Citations

2207086 (Refugee) [2022] AATA 3628

Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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AWL17 v Minister for Immigration and Border Protection [2018] FCA 570

[2022] AATA 3628

21 October 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Jurisdiction

Procedural Fairness

Remedies