2312147 (Refugee) [2024] AATA 2263 (21 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2312147
COUNTRY OF REFERENCE: Serbia
MEMBER:Damian Creedon
DATE:21 March 2024
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
The Tribunal refers the matter for Ministerial consideration.
Statement made on 21 March 2024 at 2:02pm
CATCHWORDS
REFUGEE – protection visa – Serbia – particular social group – victim of loan sharks – religion – Roman Catholic – attacks by money lenders – physical assault – fear of killing – fear of compulsory military service – state protection – employment – Australian citizen children – referral for Ministerial Intervention – decision under review affirmed
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 Home Affairs on 8 August 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background:
The applicant, [an age]-year-old citizen of Serbia, applied for the visa on 22 June 2023.
The applicant first arrived in Australia [in] May 2006 as the holder of a [Partner] visa. He was granted a [Partner] visa on 3 March 2009 which was cancelled on 23 June 2021.
The applicant has not departed Australia since he arrived onshore; he is presently in immigration detention.
Protection visa application:
The applicant’s written claims for protection may be summarised as follows:
·In 2004 the applicant borrowed around $45,000 from a criminal organisation in Novi Sad City and agreed to pay back the loan in one year, but he couldn’t pay it back.
·He was overdue in paying back the money, and a couple of months before he left Serbia he was threatened by unknown people who said they would liquidate him and take everything he owned.
·They scared him, slapped him and threatened to kill him every time they came to his house.
·He tried to report to the police once in…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Keep reading for free
Create a free CaseChat account to read 2312147 (Refugee) and more:
This matter concerned an application for review of a delegate of the Minister for Home Affairs' decision to refuse the applicant, a citizen of Serbia, a protection visa. The applicant had arrived in Australia in May 2006 and had remained in the country since, currently being held in immigration detention. The applicant's claims for protection were based on fears of persecution stemming from an unpaid debt to a criminal organisation in Serbia, his Roman Catholic faith, and the possibility of compulsory military service.
The court was required to determine whether the applicant had established a well-founded fear of persecution for a Convention reason, specifically membership of a particular social group (victims of loan sharks) or religion (Roman Catholic), and whether he could access effective protection from the Serbian authorities. The court also considered the applicant's claims regarding compulsory military service and the general difficulties he anticipated upon return, including his perceived inability to find employment and the potential for negative assumptions about his financial status as a returnee from Australia.
The court considered the applicant's oral evidence regarding his debt to the criminal organisation, noting that while he described the initial loan process as "like a bank loan" with non-extortionate interest, he later recounted threats of violence and death, including physical assault, for non-repayment. The court also examined his claims regarding his Roman Catholic faith, acknowledging his statement that he would not be welcome and could face abuse, though he did not regularly attend church. The court noted the applicant's fear of compulsory military service due to the potential for conflict in Kosovo. Ultimately, the court found that the applicant had not established a well-founded fear of persecution for a Convention reason, nor had he demonstrated that he would be unable to access effective protection from the Serbian authorities for the claimed reasons.
The application for review was affirmed, meaning the delegate's decision to refuse the protection visa was upheld.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 August 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).Background: The applicant, [an age]-year-old citizen of Serbia, applied for the visa on 22 June 2023. The applicant first arrived in Australia [in] May 2006 as the holder of a [Partner] visa. He was granted a [Partner] visa on 3 March 2009 which was cancelled on 23 June 2021. The applicant has not departed Australia since he arrived onshore; he is presently in immigration detention. Protection visa application: The applicant’s written claims for protection may be summarised as follows:·In 2004 the applicant borrowed around $45,000 from a criminal organisation in Novi Sad City and agreed to pay back the loan in one year, but he couldn’t pay it back.·He was overdue in paying back the money, and a couple of months before he left Serbia he was threatened by unknown people who said they would liquidate him and take everything he owned.·They scared him, slapped him and threatened to kill him every time they came to his house.·He tried to report to the police once in 2005 but the police could not really do anything before an accident happened, and they said they couldn’t charge anyone unless they know who it is.·One month after arriving in Australia his parents informed him that people had broken into his house, and his family in [Country 1] stopped visiting Serbia.·He fears for his life in Serbia, and has never travelled back since he came to Australia.·He is a Roman Catholic and being a member of a different religion was a difficult life in Serbia after the religious war in Bosnia between the Serbian Orthodox and Croatian Catholics, and he always felt unsafe, had trouble finding a job, and lived on a farm because he felt disparaged.·There is a great possibility of war between Kosovo and Serbia, and he would be immediately recruited into the army as a conscript, where his life would be in danger.·If he returns to Serbia he could be caught by criminals he owes money to, and be tortured or killed in revenge for not returning the large amount of money he borrowed.·He would have to live on the streets because he has no accommodation and has no money to afford to rent anything, and no family to help, with his parents and brother living in [Country 1].·There is no opportunity to get a job without connections, and after working as [an occupation 1] for 15 years he has [specified] injuries, and wouldn’t be able to continue working in Serbia anyway, and life is not possible for him in Serbia anymore.·The authorities in Serbia could not protect him, as they cannot protect anyone who has a problem with organised criminals with [sic: without] proof.·He is not safe anywhere in Serbia because the big criminal organisation has all his details. There is no evidence that the applicant participated in an interview with the delegate.
Evidence
Evidence Before The Court
The applicant appeared before the Tribunal on 1 February 2024 to give evidence and present arguments. The applicant was not represented in relation to the review.Applicant’s oral evidence The following is a summary of the applicant’s oral evidence to the Tribunal:a.The applicant confirmed his personal details, his visa status upon his arrival onshore and his current circumstances as an immigration detainee. b.The applicant was born in Serbia, although his parents were resident in [Country 1] at the time. The applicant’s father is ethnically Serbian, his mother is ethnically Croatian, and he describes himself as “half Serbian, half Croatian”.c.After the applicant’s birth his family returned to [Country 1] where they lived until he was [age] years of age when they decided to move back to Serbia. The applicant lived with his parents in the town [named], Serbia, until the age of [age].d.When the applicant was [age], in [specified year], his parents moved back to [Country 1] where they resumed their “old jobs”. The applicant and his brother continued their schooling in [Country 1]. The applicant remained in [Country 1] for five years, between [specified years].e.At age [age], and as a Serbian citizen, the applicant returned to Serbia to complete compulsory military service. The applicant’s parents purchased a farm in Serbia where the applicant and his brother lived, and that it was held in their names. His parents remained in [Country 1], although they often visited at weekends.f.The applicant started running a business selling [produce]. Within the following six years the applicant completed his compulsory military service and established a life in Serbia, with a long-term girlfriend. He stated that he reached a point where he had to decide whether to stay in Serbia or return to [Country 1], and he elected to stay in Serbia. g.The applicant stated that “when democracy came” to Serbia changes began to be implemented, including the registration of rural businesses. He stated that, because of the reforms, it became impossible for small enterprises to continue in business. h.The applicant stated that in [specified year] he met an Australian citizen, “originally from [Country 2]”, who was travelling in Serbia, and that the two became romantically attached. The applicant stated that they were together for two months, but that his partner had to return to Australia for work. He stated that she was pregnant at this time and confirmed that he was the father.i.His partner returned to Australia, and the applicant made an application for a Partner visa so as to join her in Australia. The Partner visa was approved in May 2006.j.When pressed as to his motivations for coming to Australia, the applicant stated that his partner was one reason he wished to leave Serbia, but there were other reasons. He stated that his business was failing and that he wished to leave because of “the criminal group”. The applicant identified the group as being named “[Group 1]”, and that it was located in the city of Novi Sad, Serbia.k.When asked about his relationship with the group, the applicant stated that he heard through his brother, and through friends, that “you could borrow money” from them.l.The applicant stated, with the changes to the law that had affected the viability of his business, he was looking for ways to expand; he stated he formulated a plan to borrow money to “invest in the business”.m.When asked how he borrowed the money, the applicant stated that he went to a building in Novi Sad, he had a discussion with the person there about his plans, provided evidence of his parent’s ownership of the farm, and that he “signed papers”. He stated that he did not provide evidence of the ownership of the farm as collateral as it was not in his name.n.The applicant “went twice” to borrow money, the first sum was €[amount]; the second sum was €[amount]. The two transactions were “a month or two” apart. The applicant had to pay interest on the loan, but he cannot now remember at what rate the interest was charged.o.When pressed as to whether, to the best of his recollection, the interest rate was “very high”, the applicant stated that it was not. When pressed as to whether he was familiar with the term “loan shark”, that is a lender who charges “extortionate” interest rates, and whether his loans were of this nature, or “more like a bank loan”, the applicant stated:More like a bank loan.p.When asked to describe the physical process of borrowing the money, the applicant stated that the building where he negotiated the loan was “not really” like a business; he stated:It was stairs down somewhere… people registered some kind of business [with] guards on the door as well… it was organised but it’s not a little thing, they’re not little criminals.q.The applicant stated that the process was “like a bank” where “you meet someone”, and then there are “papers to sign”. The applicant stated that he did not ask questions about the organisation and was simply there to borrow money.r.When asked how he took possession of the money, the applicant stated that he was given cash. When pressed, the applicant stated that he took the money to keep at his home, and that he was told not to put “all the money” in the bank. The applicant stated that “at that time” cash transactions were common.s.When asked how he spent the money, the applicant stated:I didn’t spend it the right way, I started spending on fun. t.The applicant stated that he felt “a bit alive” with that amount of money at his disposal. He stated that a long-term relationship had broken up and he had been feeling “a little depressed”, and he wanted to “have a good time”.u.The applicant stated that after a month there was only “about [amount]” left, but he felt he could still invest it in his business. The applicant stated that it was easy to spend the money.v.The applicant stated he had entered his new relationship with his Australian partner by this time and felt that he could spend the money before he left Serbia.w.When pressed, the applicant stated that he made no repayments on the loan; nothing has been paid back. When further pressed as to when the lenders expected the first repayment to be made, the applicant stated “in 2006”; he stated to the best of his recollection that it was to be paid back at 12 months with a fix amount of interest. The applicant stated that the details were all in the papers, and that he thought:When the time comes [for repayment] I will see what I need to do.x.The applicant stated that when the loan was not repaid at the 12-month point he “got a phone call”. The applicant stated that the caller “was a lady” and that she stated that he was “late”, he was “overdue”. When pressed, the applicant stated that he borrowed the money in “autumn”, “before Christmas” in 2004. He stated that the call came “before Christmas” in 2005. The caller told him he should come to an address and bring the money back.y.When pressed as to his reaction to the phone call, the applicant stated that he put the caller off, saying that he will come, but that he did not know what to do. The applicant stated that he was drunk during the phone call, but that he knew that he was “in trouble” if he could not repay.z.When asked whether he was threatened, the applicant stated that “they came”, “after Christmas, before New Year”. When pressed, he stated that two people knocked on his front door and that when he opened the door, they “pushed” him inside the house and started talking to him. The applicant stated that they told him that they “wanted the money now”. One of the men started “taking stuff” from the house. The applicant stated that he did not have the money, and that he lied to them saying he would get the money “next week”. The applicant stated that at this point we realised how serious it was; he stated that he did not expect that kind of behaviour, thinking that he would only get a reminder.aa.The applicant stated that he was pushed onto the bed and that they were “screaming” at him that he needed to pay the money back, and that if they had to come a second time that they would kill him.bb.When pressed, the applicant confirmed that his Australian partner had already left for Australia at this stage, that he had made a Partner visa application, but that it had not yet been granted. The applicant confirmed that after meeting his partner, and becoming romantically involved, she had been living with him at his farm. He stated that the couple had briefly considered moving to [Country 1], but that they had decided that she would return to Australia for her job and that he would follow her. He stated:I decided then, let’s go to Australia, see how it is, if I can find [a] job. If it’s good we stay, if not we go to [Country 1] because I’ve got parents there, I’ve got support, you know, it’s easy for me to find a job.cc.The applicant stated that now it is different in [Country 1] as he could not find work there.dd.When pressed by the Tribunal as to what happened regarding his unpaid loan in the five months till he left Serbia in May 2006, the applicant stated that immediately after the incident he hid with a friend in Novi Sad city for “a couple of weeks” and that he was afraid to go back home. He stated that he returned to live at the farm “after new year”, in January 2006. He had asked a neighbour to watch the farm for a period, but he had to return to look after the animals.ee.When he returned to the farm, he asked his neighbour whether anyone had come to his farm, the neighbour said he had not seen anyone. The applicant confirmed that by the end of January he was back living at the farm.ff.When pressed as to whether he had any further interactions with the group before leaving for Australia, the applicant stated:One more time.gg.When pressed as to when, the applicant stated, “March or April”. The applicant stated that he was slapped in the face and was told that the money had to repaid. He stated that his life was threatened with statements such as “if you don’t pay back, you know what happened to other people” and “you’re dead” if the money is not repaid. There was only one person on this occasion, and the entire incident lasted approximately 20 minutes. The applicant stated his belief that it was his “last warning”.hh.When asked whether he believed such threats, the applicant stated:I know stories of people died [sic], and also police never found [sic].…These are stories, is it true or not? All who live there [know] the police are corrupt.ii.When pressed, the applicant stated that he went to the police after the first encounter. He stated that he reported the incident and police took the complaint, but he was told that they could not do anything unless “something happened”. This was the only occasion the applicant went to the police.jj.The applicant stated that the second occasion that he was visited by the money lender’s agent was the last time he saw anybody regarding his unpaid debt.kk.The applicant’s prospective partner visa was granted on 4 May 2006, and he travelled to Australia [in] May 2006.ll.The applicant lived for 10 years in Australia with his wife, until the couple were separated in around 2016 and then divorced in 2018. The applicant has [number] children; [number] with his ex-wife, [ages and gender specified]; and one child, born in [year], with his then girlfriend. He stated that all of his children are Australian citizens.mm.The applicant confirmed that he had been convicted of serious criminal offences, including indecent treatment of a child under 12 years, and possessing child exploitation material. nn.The applicant state that upon conviction he was sentenced to a period of imprisonment. The applicant expressed his sense of guilt and remorse at the conviction.oo.In respect of the applicant’s criminal conviction the Tribunal advised the applicant of the following information, in words to the following effect:I wish to assure you that none of the materials relating to your criminal offending will be weighed against you in arriving at a decision concerning your status as a refugee or considering whether you are owed complementary protection.pp.The Tribunal asked the applicant what it was that he feared about returning to Serbia now, or in the reasonably foreseeable future. In response the applicant stated:I think that they will find me, they will come. There could be big trouble… I don’t know how it is really because I’m not living there. I hear (just) stories from people on Facebook.qq.The applicant stated that he feared returning to Serbia on account of his unpaid debt. He stated that he feared violence or death at the hands of the lenders. When pressed he stated that the basis of his belief was stories that he had grown up with and heard, and what he had been told by his brother. He stated that he was told by his brother not to return to Serbia on account of his debt, and that his whole family, including his brother and parents were at risk.rr.When pressed, the applicant stated that there would be nowhere in Serbia where he would be safe as the organisation had a national reach. ss.The applicant confirmed that he is still in contact with his parents, and that they are aware of his situation. When pressed, the applicant stated that he “wished” that he could live with his parents in [Country 1], but that there is not much that they can do.tt.The applicant stated that he would like to move to [Country 1], but that his circumstances do not qualify him for citizenship or residency there.uu.When further pressed, the applicant stated that he feared returning on account of his Roman Catholic faith. He stated that his religious identity came from his mother and her Croatian ethnicity. The applicant’s father is of the Serbian Orthodox faith, but is “not practicing”.vv.When pressed as to the nature of his fears in this regard, the applicant stated:You are not welcome. ww.He stated that you can be “denied” or “abused” by members of the public if your religion in known.xx.When asked if he was a practicing Catholic, the applicant stated that he does not attend Church, but that he prays. The applicant stated that he would like to practice his religion, but that he would have to hide it in Serbia. When pressed, the applicant stated that he attended Mass in Serbia. He stated that there was a Catholic Church in his town during his youth, but that it had changed since the war.yy.When asked if there were other issues causing him to fear returning to Serbia, the applicant stated that the situation in Kosovo of concern for him. He stated that he feared being called up to serve in the army and that this was an issue for him until the age of “55 or 60”.zz.The applicant stated his concern that as a returnee from a Western country he would be perceived as having access to resources, and when asked whether he could find work in Serbia, the applicant stated that it would be “very hard for him”. He stated that nepotism was rife in Serbia, and that he could not easily find work as he did not know anyone there.Country of reference:
Decision
Reasons for decision
The Tribunal has before it a range of material, including: a.the applicant’s protection visa application forms, which were lodged on 22 June 2023; b.the delegate’s protection visa decision dated 8 August 2023, a copy of which the applicant provided to the Tribunal (delegate’s decision record); andc.the applicant’s application for review submitted to the Tribunal on 13 August 2023. The Tribunal also has before it copies of a number of documents provided by the applicant to the department, including the following:a.Letter of support from [Mr A], date obscured; b.Part copy of a Statutory Declaration made by [Partner A] (Statutory Declaration); andc.The opinion of [Psychologist A], Consultant and Forensic Psychologist, dated 29 March 2021 (Forensic Psychologist’s Report). There is no specific Country Information Report for Serbia prepared by the Department of Foreign Affairs and Trade, however the Tribunal has read and had regard to a number of sources of country information which are set out in the analysis below.Hearing The applicant appeared before the Tribunal on 1 February 2024 to give evidence and present arguments. The applicant was not represented in relation to the review.Applicant’s oral evidence The following is a summary of the applicant’s oral evidence to the Tribunal:a.The applicant confirmed his personal details, his visa status upon his arrival onshore and his current circumstances as an immigration detainee. b.The applicant was born in Serbia, although his parents were resident in [Country 1] at the time. The applicant’s father is ethnically Serbian, his mother is ethnically Croatian, and he describes himself as “half Serbian, half Croatian”.c.After the applicant’s birth his family returned to [Country 1] where they lived until he was [age] years of age when they decided to move back to Serbia. The applicant lived with his parents in the town [named], Serbia, until the age of [age].d.When the applicant was [age], in [specified year], his parents moved back to [Country 1] where they resumed their “old jobs”. The applicant and his brother continued their schooling in [Country 1]. The applicant remained in [Country 1] for five years, between [specified years].e.At age [age], and as a Serbian citizen, the applicant returned to Serbia to complete compulsory military service. The applicant’s parents purchased a farm in Serbia where the applicant and his brother lived, and that it was held in their names. His parents remained in [Country 1], although they often visited at weekends.f.The applicant started running a business selling [produce]. Within the following six years the applicant completed his compulsory military service and established a life in Serbia, with a long-term girlfriend. He stated that he reached a point where he had to decide whether to stay in Serbia or return to [Country 1], and he elected to stay in Serbia. g.The applicant stated that “when democracy came” to Serbia changes began to be implemented, including the registration of rural businesses. He stated that, because of the reforms, it became impossible for small enterprises to continue in business. h.The applicant stated that in [specified year] he met an Australian citizen, “originally from [Country 2]”, who was travelling in Serbia, and that the two became romantically attached. The applicant stated that they were together for two months, but that his partner had to return to Australia for work. He stated that she was pregnant at this time and confirmed that he was the father.i.His partner returned to Australia, and the applicant made an application for a Partner visa so as to join her in Australia. The Partner visa was approved in May 2006.j.When pressed as to his motivations for coming to Australia, the applicant stated that his partner was one reason he wished to leave Serbia, but there were other reasons. He stated that his business was failing and that he wished to leave because of “the criminal group”. The applicant identified the group as being named “[Group 1]”, and that it was located in the city of Novi Sad, Serbia.k.When asked about his relationship with the group, the applicant stated that he heard through his brother, and through friends, that “you could borrow money” from them.l.The applicant stated, with the changes to the law that had affected the viability of his business, he was looking for ways to expand; he stated he formulated a plan to borrow money to “invest in the business”.m.When asked how he borrowed the money, the applicant stated that he went to a building in Novi Sad, he had a discussion with the person there about his plans, provided evidence of his parent’s ownership of the farm, and that he “signed papers”. He stated that he did not provide evidence of the ownership of the farm as collateral as it was not in his name.n.The applicant “went twice” to borrow money, the first sum was €[amount]; the second sum was €[amount]. The two transactions were “a month or two” apart. The applicant had to pay interest on the loan, but he cannot now remember at what rate the interest was charged.o.When pressed as to whether, to the best of his recollection, the interest rate was “very high”, the applicant stated that it was not. When pressed as to whether he was familiar with the term “loan shark”, that is a lender who charges “extortionate” interest rates, and whether his loans were of this nature, or “more like a bank loan”, the applicant stated:More like a bank loan.p.When asked to describe the physical process of borrowing the money, the applicant stated that the building where he negotiated the loan was “not really” like a business; he stated:It was stairs down somewhere… people registered some kind of business [with] guards on the door as well… it was organised but it’s not a little thing, they’re not little criminals.q.The applicant stated that the process was “like a bank” where “you meet someone”, and then there are “papers to sign”. The applicant stated that he did not ask questions about the organisation and was simply there to borrow money.r.When asked how he took possession of the money, the applicant stated that he was given cash. When pressed, the applicant stated that he took the money to keep at his home, and that he was told not to put “all the money” in the bank. The applicant stated that “at that time” cash transactions were common.s.When asked how he spent the money, the applicant stated:I didn’t spend it the right way, I started spending on fun. t.The applicant stated that he felt “a bit alive” with that amount of money at his disposal. He stated that a long-term relationship had broken up and he had been feeling “a little depressed”, and he wanted to “have a good time”.u.The applicant stated that after a month there was only “about [amount]” left, but he felt he could still invest it in his business. The applicant stated that it was easy to spend the money.v.The applicant stated he had entered his new relationship with his Australian partner by this time and felt that he could spend the money before he left Serbia.w.When pressed, the applicant stated that he made no repayments on the loan; nothing has been paid back. When further pressed as to when the lenders expected the first repayment to be made, the applicant stated “in 2006”; he stated to the best of his recollection that it was to be paid back at 12 months with a fix amount of interest. The applicant stated that the details were all in the papers, and that he thought:When the time comes [for repayment] I will see what I need to do.x.The applicant stated that when the loan was not repaid at the 12-month point he “got a phone call”. The applicant stated that the caller “was a lady” and that she stated that he was “late”, he was “overdue”. When pressed, the applicant stated that he borrowed the money in “autumn”, “before Christmas” in 2004. He stated that the call came “before Christmas” in 2005. The caller told him he should come to an address and bring the money back.y.When pressed as to his reaction to the phone call, the applicant stated that he put the caller off, saying that he will come, but that he did not know what to do. The applicant stated that he was drunk during the phone call, but that he knew that he was “in trouble” if he could not repay.z.When asked whether he was threatened, the applicant stated that “they came”, “after Christmas, before New Year”. When pressed, he stated that two people knocked on his front door and that when he opened the door, they “pushed” him inside the house and started talking to him. The applicant stated that they told him that they “wanted the money now”. One of the men started “taking stuff” from the house. The applicant stated that he did not have the money, and that he lied to them saying he would get the money “next week”. The applicant stated that at this point we realised how serious it was; he stated that he did not expect that kind of behaviour, thinking that he would only get a reminder.aa.The applicant stated that he was pushed onto the bed and that they were “screaming” at him that he needed to pay the money back, and that if they had to come a second time that they would kill him.bb.When pressed, the applicant confirmed that his Australian partner had already left for Australia at this stage, that he had made a Partner visa application, but that it had not yet been granted. The applicant confirmed that after meeting his partner, and becoming romantically involved, she had been living with him at his farm. He stated that the couple had briefly considered moving to [Country 1], but that they had decided that she would return to Australia for her job and that he would follow her. He stated:I decided then, let’s go to Australia, see how it is, if I can find [a] job. If it’s good we stay, if not we go to [Country 1] because I’ve got parents there, I’ve got support, you know, it’s easy for me to find a job.cc.The applicant stated that now it is different in [Country 1] as he could not find work there.dd.When pressed by the Tribunal as to what happened regarding his unpaid loan in the five months till he left Serbia in May 2006, the applicant stated that immediately after the incident he hid with a friend in Novi Sad city for “a couple of weeks” and that he was afraid to go back home. He stated that he returned to live at the farm “after new year”, in January 2006. He had asked a neighbour to watch the farm for a period, but he had to return to look after the animals.ee.When he returned to the farm, he asked his neighbour whether anyone had come to his farm, the neighbour said he had not seen anyone. The applicant confirmed that by the end of January he was back living at the farm.ff.When pressed as to whether he had any further interactions with the group before leaving for Australia, the applicant stated:One more time.gg.When pressed as to when, the applicant stated, “March or April”. The applicant stated that he was slapped in the face and was told that the money had to repaid. He stated that his life was threatened with statements such as “if you don’t pay back, you know what happened to other people” and “you’re dead” if the money is not repaid. There was only one person on this occasion, and the entire incident lasted approximately 20 minutes. The applicant stated his belief that it was his “last warning”.hh.When asked whether he believed such threats, the applicant stated:I know stories of people died [sic], and also police never found [sic].…These are stories, is it true or not? All who live there [know] the police are corrupt.ii.When pressed, the applicant stated that he went to the police after the first encounter. He stated that he reported the incident and police took the complaint, but he was told that they could not do anything unless “something happened”. This was the only occasion the applicant went to the police.jj.The applicant stated that the second occasion that he was visited by the money lender’s agent was the last time he saw anybody regarding his unpaid debt.kk.The applicant’s prospective partner visa was granted on 4 May 2006, and he travelled to Australia [in] May 2006.ll.The applicant lived for 10 years in Australia with his wife, until the couple were separated in around 2016 and then divorced in 2018. The applicant has [number] children; [number] with his ex-wife, [ages and gender specified]; and one child, born in [year], with his then girlfriend. He stated that all of his children are Australian citizens.mm.The applicant confirmed that he had been convicted of serious criminal offences, including indecent treatment of a child under 12 years, and possessing child exploitation material. nn.The applicant state that upon conviction he was sentenced to a period of imprisonment. The applicant expressed his sense of guilt and remorse at the conviction.oo.In respect of the applicant’s criminal conviction the Tribunal advised the applicant of the following information, in words to the following effect:I wish to assure you that none of the materials relating to your criminal offending will be weighed against you in arriving at a decision concerning your status as a refugee or considering whether you are owed complementary protection.pp.The Tribunal asked the applicant what it was that he feared about returning to Serbia now, or in the reasonably foreseeable future. In response the applicant stated:I think that they will find me, they will come. There could be big trouble… I don’t know how it is really because I’m not living there. I hear (just) stories from people on Facebook.qq.The applicant stated that he feared returning to Serbia on account of his unpaid debt. He stated that he feared violence or death at the hands of the lenders. When pressed he stated that the basis of his belief was stories that he had grown up with and heard, and what he had been told by his brother. He stated that he was told by his brother not to return to Serbia on account of his debt, and that his whole family, including his brother and parents were at risk.rr.When pressed, the applicant stated that there would be nowhere in Serbia where he would be safe as the organisation had a national reach. ss.The applicant confirmed that he is still in contact with his parents, and that they are aware of his situation. When pressed, the applicant stated that he “wished” that he could live with his parents in [Country 1], but that there is not much that they can do.tt.The applicant stated that he would like to move to [Country 1], but that his circumstances do not qualify him for citizenship or residency there.uu.When further pressed, the applicant stated that he feared returning on account of his Roman Catholic faith. He stated that his religious identity came from his mother and her Croatian ethnicity. The applicant’s father is of the Serbian Orthodox faith, but is “not practicing”.vv.When pressed as to the nature of his fears in this regard, the applicant stated:You are not welcome. ww.He stated that you can be “denied” or “abused” by members of the public if your religion in known.xx.When asked if he was a practicing Catholic, the applicant stated that he does not attend Church, but that he prays. The applicant stated that he would like to practice his religion, but that he would have to hide it in Serbia. When pressed, the applicant stated that he attended Mass in Serbia. He stated that there was a Catholic Church in his town during his youth, but that it had changed since the war.yy.When asked if there were other issues causing him to fear returning to Serbia, the applicant stated that the situation in Kosovo of concern for him. He stated that he feared being called up to serve in the army and that this was an issue for him until the age of “55 or 60”.zz.The applicant stated his concern that as a returnee from a Western country he would be perceived as having access to resources, and when asked whether he could find work in Serbia, the applicant stated that it would be “very hard for him”. He stated that nepotism was rife in Serbia, and that he could not easily find work as he did not know anyone there.Country of reference:
Ratio Decidendi
Legal Principle Established
The Tribunal also has before it copies of a number of documents provided by the applicant to the department, including the following:a.Letter of support from [Mr A], date obscured; b.Part copy of a Statutory Declaration made by [Partner A] (Statutory Declaration); andc.The opinion of [Psychologist A], Consultant and Forensic Psychologist, dated 29 March 2021 (Forensic Psychologist’s Report). There is no specific Country Information Report for Serbia prepared by the Department of Foreign Affairs and Trade, however the Tribunal has read and had regard to a number of sources of country information which are set out in the analysis below.Hearing The applicant appeared before the Tribunal on 1 February 2024 to give evidence and present arguments. The applicant was not represented in relation to the review.Applicant’s oral evidence The following is a summary of the applicant’s oral evidence to the Tribunal:a.The applicant confirmed his personal details, his visa status upon his arrival onshore and his current circumstances as an immigration detainee. b.The applicant was born in Serbia, although his parents were resident in [Country 1] at the time. The applicant’s father is ethnically Serbian, his mother is ethnically Croatian, and he describes himself as “half Serbian, half Croatian”.c.After the applicant’s birth his family returned to [Country 1] where they lived until he was [age] years of age when they decided to move back to Serbia. The applicant lived with his parents in the town [named], Serbia, until the age of [age].d.When the applicant was [age], in [specified year], his parents moved back to [Country 1] where they resumed their “old jobs”. The applicant and his brother continued their schooling in [Country 1]. The applicant remained in [Country 1] for five years, between [specified years].e.At age [age], and as a Serbian citizen, the applicant returned to Serbia to complete compulsory military service. The applicant’s parents purchased a farm in Serbia where the applicant and his brother lived, and that it was held in their names. His parents remained in [Country 1], although they often visited at weekends.f.The applicant started running a business selling [produce]. Within the following six years the applicant completed his compulsory military service and established a life in Serbia, with a long-term girlfriend. He stated that he reached a point where he had to decide whether to stay in Serbia or return to [Country 1], and he elected to stay in Serbia. g.The applicant stated that “when democracy came” to Serbia changes began to be implemented, including the registration of rural businesses. He stated that, because of the reforms, it became impossible for small enterprises to continue in business. h.The applicant stated that in [specified year] he met an Australian citizen, “originally from [Country 2]”, who was travelling in Serbia, and that the two became romantically attached. The applicant stated that they were together for two months, but that his partner had to return to Australia for work. He stated that she was pregnant at this time and confirmed that he was the father.i.His partner returned to Australia, and the applicant made an application for a Partner visa so as to join her in Australia. The Partner visa was approved in May 2006.j.When pressed as to his motivations for coming to Australia, the applicant stated that his partner was one reason he wished to leave Serbia, but there were other reasons. He stated that his business was failing and that he wished to leave because of “the criminal group”. The applicant identified the group as being named “[Group 1]”, and that it was located in the city of Novi Sad, Serbia.k.When asked about his relationship with the group, the applicant stated that he heard through his brother, and through friends, that “you could borrow money” from them.l.The applicant stated, with the changes to the law that had affected the viability of his business, he was looking for ways to expand; he stated he formulated a plan to borrow money to “invest in the business”.m.When asked how he borrowed the money, the applicant stated that he went to a building in Novi Sad, he had a discussion with the person there about his plans, provided evidence of his parent’s ownership of the farm, and that he “signed papers”. He stated that he did not provide evidence of the ownership of the farm as collateral as it was not in his name.n.The applicant “went twice” to borrow money, the first sum was €[amount]; the second sum was €[amount]. The two transactions were “a month or two” apart. The applicant had to pay interest on the loan, but he cannot now remember at what rate the interest was charged.o.When pressed as to whether, to the best of his recollection, the interest rate was “very high”, the applicant stated that it was not. When pressed as to whether he was familiar with the term “loan shark”, that is a lender who charges “extortionate” interest rates, and whether his loans were of this nature, or “more like a bank loan”, the applicant stated:More like a bank loan.p.When asked to describe the physical process of borrowing the money, the applicant stated that the building where he negotiated the loan was “not really” like a business; he stated:It was stairs down somewhere… people registered some kind of business [with] guards on the door as well… it was organised but it’s not a little thing, they’re not little criminals.q.The applicant stated that the process was “like a bank” where “you meet someone”, and then there are “papers to sign”. The applicant stated that he did not ask questions about the organisation and was simply there to borrow money.r.When asked how he took possession of the money, the applicant stated that he was given cash. When pressed, the applicant stated that he took the money to keep at his home, and that he was told not to put “all the money” in the bank. The applicant stated that “at that time” cash transactions were common.s.When asked how he spent the money, the applicant stated:I didn’t spend it the right way, I started spending on fun. t.The applicant stated that he felt “a bit alive” with that amount of money at his disposal. He stated that a long-term relationship had broken up and he had been feeling “a little depressed”, and he wanted to “have a good time”.u.The applicant stated that after a month there was only “about [amount]” left, but he felt he could still invest it in his business. The applicant stated that it was easy to spend the money.v.The applicant stated he had entered his new relationship with his Australian partner by this time and felt that he could spend the money before he left Serbia.w.When pressed, the applicant stated that he made no repayments on the loan; nothing has been paid back. When further pressed as to when the lenders expected the first repayment to be made, the applicant stated “in 2006”; he stated to the best of his recollection that it was to be paid back at 12 months with a fix amount of interest. The applicant stated that the details were all in the papers, and that he thought:When the time comes [for repayment] I will see what I need to do.x.The applicant stated that when the loan was not repaid at the 12-month point he “got a phone call”. The applicant stated that the caller “was a lady” and that she stated that he was “late”, he was “overdue”. When pressed, the applicant stated that he borrowed the money in “autumn”, “before Christmas” in 2004. He stated that the call came “before Christmas” in 2005. The caller told him he should come to an address and bring the money back.y.When pressed as to his reaction to the phone call, the applicant stated that he put the caller off, saying that he will come, but that he did not know what to do. The applicant stated that he was drunk during the phone call, but that he knew that he was “in trouble” if he could not repay.z.When asked whether he was threatened, the applicant stated that “they came”, “after Christmas, before New Year”. When pressed, he stated that two people knocked on his front door and that when he opened the door, they “pushed” him inside the house and started talking to him. The applicant stated that they told him that they “wanted the money now”. One of the men started “taking stuff” from the house. The applicant stated that he did not have the money, and that he lied to them saying he would get the money “next week”. The applicant stated that at this point we realised how serious it was; he stated that he did not expect that kind of behaviour, thinking that he would only get a reminder.aa.The applicant stated that he was pushed onto the bed and that they were “screaming” at him that he needed to pay the money back, and that if they had to come a second time that they would kill him.bb.When pressed, the applicant confirmed that his Australian partner had already left for Australia at this stage, that he had made a Partner visa application, but that it had not yet been granted. The applicant confirmed that after meeting his partner, and becoming romantically involved, she had been living with him at his farm. He stated that the couple had briefly considered moving to [Country 1], but that they had decided that she would return to Australia for her job and that he would follow her. He stated:I decided then, let’s go to Australia, see how it is, if I can find [a] job. If it’s good we stay, if not we go to [Country 1] because I’ve got parents there, I’ve got support, you know, it’s easy for me to find a job.cc.The applicant stated that now it is different in [Country 1] as he could not find work there.dd.When pressed by the Tribunal as to what happened regarding his unpaid loan in the five months till he left Serbia in May 2006, the applicant stated that immediately after the incident he hid with a friend in Novi Sad city for “a couple of weeks” and that he was afraid to go back home. He stated that he returned to live at the farm “after new year”, in January 2006. He had asked a neighbour to watch the farm for a period, but he had to return to look after the animals.ee.When he returned to the farm, he asked his neighbour whether anyone had come to his farm, the neighbour said he had not seen anyone. The applicant confirmed that by the end of January he was back living at the farm.ff.When pressed as to whether he had any further interactions with the group before leaving for Australia, the applicant stated:One more time.gg.When pressed as to when, the applicant stated, “March or April”. The applicant stated that he was slapped in the face and was told that the money had to repaid. He stated that his life was threatened with statements such as “if you don’t pay back, you know what happened to other people” and “you’re dead” if the money is not repaid. There was only one person on this occasion, and the entire incident lasted approximately 20 minutes. The applicant stated his belief that it was his “last warning”.hh.When asked whether he believed such threats, the applicant stated:I know stories of people died [sic], and also police never found [sic].…These are stories, is it true or not? All who live there [know] the police are corrupt.ii.When pressed, the applicant stated that he went to the police after the first encounter. He stated that he reported the incident and police took the complaint, but he was told that they could not do anything unless “something happened”. This was the only occasion the applicant went to the police.jj.The applicant stated that the second occasion that he was visited by the money lender’s agent was the last time he saw anybody regarding his unpaid debt.kk.The applicant’s prospective partner visa was granted on 4 May 2006, and he travelled to Australia [in] May 2006.ll.The applicant lived for 10 years in Australia with his wife, until the couple were separated in around 2016 and then divorced in 2018. The applicant has [number] children; [number] with his ex-wife, [ages and gender specified]; and one child, born in [year], with his then girlfriend. He stated that all of his children are Australian citizens.mm.The applicant confirmed that he had been convicted of serious criminal offences, including indecent treatment of a child under 12 years, and possessing child exploitation material. nn.The applicant state that upon conviction he was sentenced to a period of imprisonment. The applicant expressed his sense of guilt and remorse at the conviction.oo.In respect of the applicant’s criminal conviction the Tribunal advised the applicant of the following information, in words to the following effect:I wish to assure you that none of the materials relating to your criminal offending will be weighed against you in arriving at a decision concerning your status as a refugee or considering whether you are owed complementary protection.pp.The Tribunal asked the applicant what it was that he feared about returning to Serbia now, or in the reasonably foreseeable future. In response the applicant stated:I think that they will find me, they will come. There could be big trouble… I don’t know how it is really because I’m not living there. I hear (just) stories from people on Facebook.qq.The applicant stated that he feared returning to Serbia on account of his unpaid debt. He stated that he feared violence or death at the hands of the lenders. When pressed he stated that the basis of his belief was stories that he had grown up with and heard, and what he had been told by his brother. He stated that he was told by his brother not to return to Serbia on account of his debt, and that his whole family, including his brother and parents were at risk.rr.When pressed, the applicant stated that there would be nowhere in Serbia where he would be safe as the organisation had a national reach. ss.The applicant confirmed that he is still in contact with his parents, and that they are aware of his situation. When pressed, the applicant stated that he “wished” that he could live with his parents in [Country 1], but that there is not much that they can do.tt.The applicant stated that he would like to move to [Country 1], but that his circumstances do not qualify him for citizenship or residency there.uu.When further pressed, the applicant stated that he feared returning on account of his Roman Catholic faith. He stated that his religious identity came from his mother and her Croatian ethnicity. The applicant’s father is of the Serbian Orthodox faith, but is “not practicing”.vv.When pressed as to the nature of his fears in this regard, the applicant stated:You are not welcome. ww.He stated that you can be “denied” or “abused” by members of the public if your religion in known.xx.When asked if he was a practicing Catholic, the applicant stated that he does not attend Church, but that he prays. The applicant stated that he would like to practice his religion, but that he would have to hide it in Serbia. When pressed, the applicant stated that he attended Mass in Serbia. He stated that there was a Catholic Church in his town during his youth, but that it had changed since the war.yy.When asked if there were other issues causing him to fear returning to Serbia, the applicant stated that the situation in Kosovo of concern for him. He stated that he feared being called up to serve in the army and that this was an issue for him until the age of “55 or 60”.zz.The applicant stated his concern that as a returnee from a Western country he would be perceived as having access to resources, and when asked whether he could find work in Serbia, the applicant stated that it would be “very hard for him”. He stated that nepotism was rife in Serbia, and that he could not easily find work as he did not know anyone there.Country of reference:
