2312147 (Refugee)

[2024] AATA 2263

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

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 417, 499
Migration Regulations 1994, Schedule 2

CASES

Abebe v Commonwealth – Minister for Immigration and Multicultural Affairs v Eshetu (2000) 24(1) Melbourne University Law Review 190
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZAFC v MIMIA [2003] FCA 1405
W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379
ZAFC v MIMIA [2003] FMCA 380

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

1. 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:

2. The applicant, [an age]-year-old citizen of Serbia, applied for the visa on 22 June 2023.

3. 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. 

4. The applicant has not departed Australia since he arrived onshore; he is presently in immigration detention.

   Protection visa application:

5. 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.

6. There is no evidence that the applicant participated in an interview with the delegate.

7. The delegate refused to grant the visa on 14 September 2023 on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.

8. The applicant applied for a review of the delegate’s decision on 8 August 2023.

   Application for review:

   Material before the Tribunal

9. 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); and

   c.the applicant’s application for review submitted to the Tribunal on 13 August 2023.

10. 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); and

    c.The opinion of [Psychologist A], Consultant and Forensic Psychologist, dated 29 March 2021 (Forensic Psychologist’s Report).

11. 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

12. 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

13. 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:

1. The applicant claims to be a citizen of Serbia.  Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Serbia is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The relevant law:

2. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

3. 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.

4. 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).

5. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

6. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

7. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   Assessment of evidence:

8. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

9. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

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

10. The Tribunal also accepts that ‘if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

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

    Analysis, findings and reasons:

    General

11. The Tribunal has had regard to the President's Directions and in particular the direction that members are to take all reasonable steps to complete papers allocated to them as quickly as possible, and that generally in reviewing a decision to refuse the grant of a protection visa members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.

12. For the avoidance of doubt, and as explained to the applicant during the hearing, the Tribunal places no weight against the applicant on account of his criminal convictions either in the assessment of his credibility, or in the assessment of his claims to refugee status, or to be owed complementary protection.  As analysed below, however, the Tribunal has considered whether the applicant’s convictions of themselves invoke Australia’s protection obligations.

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    General country information: Serbia

14. Before proceeding to an analysis of the applicant’s specific claims it is useful to set out the recent general history of modern Serbia as context to understanding them. In this regard Britannica provides the following information on Serbia from the period of the mid-1980s (citations omitted):[1]

    [1] See: < rise of Slobodan Milošević

    Mounting inflation and the failure of federal commissions on the economy (1983) and the political framework (1986) to change the country’s course opened the way for new party leaders at the republic level. Within Serbia, demands by the Kosovar Albanian majority for greater representation or even formal status as a republic faced growing protests from the Serb minority there. Slobodan Milošević, one of the “postliberal” generation of local leaders, skillfully used these protests to rise to power. By 1987 he had brushed aside his former mentor Ivan Stambolić and was championing party reform as an “antibureaucratic revolution.” He used this slogan to replace party leaderships in the Vojvodina, Montenegro, and Kosovo, as well as in Serbia, with his supporters. In 1990 he abolished the provincial autonomy of the Vojvodina and Kosovo.

    By taking effective control of four of the eight constituent communist parties, Milošević confronted the republics of Bosnia and Herzegovina, Croatia, Macedonia, and Slovenia with the threat of political as well as economic centralization stemming from Belgrade. His effort to convene a full congress of the League of Communists in Belgrade in January 1990 ended abruptly with the dissolution of the party. The multiparty elections throughout the republics later that year generally resulted in communist defeats. In Serbia, however, Milošević simply changed his party’s name to the Socialist Party of Serbia (Socijalistička Partije Srbije; SPS) and used a media monopoly and heavy-handed intimidation to win a large parliamentary majority in belated December elections. Relying on the Serbian domination of the Yugoslav People’s Army (YPA) to hold the federation together, he confronted the secession of Slovenia, Croatia, and Macedonia in 1991 and of Bosnia and Herzegovina in 1992.

    The disintegration of the federation

    Serbian policy during the wars of Yugoslav secession, first in Slovenia and Croatia and then in Bosnia, hovered uneasily between a need to protect the specific interests of the Serbian republic and a desire to defend the wider Serb diaspora. The choice was usually shaped by the SPS to defend its position. When the Slovene and Croatian governments implemented their threat to withdraw from the federation on June 25, 1991, a 10-day war was fought between the multiethnic YPA and Slovene militia and civilian reserves. The clash ended with the ignominious withdrawal of the Yugoslav army into Croatia, where the YPA troops then squared off with Croatian paramilitary groups. Germany’s quick recognition of the new independent states of Slovenia and Croatia was followed by wider Western recognition.

    From the Serbs’ perspective, the loss of Slovenia could be countenanced because very few Serbs lived there; for the same reason, the independence of Macedonia in September 1991 went uncontested. Croatia and Bosnia and Herzegovina, however, were a different matter: there Serbs constituted 12 percent and 31 percent of the population, respectively. Serbia backed local Serbs in separatist resistance, with the apparent aim of retaining some areas of the republics within a rump of Yugoslavia.

    Parts of Croatia along its border with Bosnia and adjoining the Vojvodina were combined into the Serbian Krajina and Eastern Slavonia. The Slavonian city of Vukovar surrendered to Serb forces in November 1991. Some 250 wounded Croats were removed from the hospital in Vukovar and executed, an action Serbia recognized as a war crime in 2010. In January 1992 a United Nations-sponsored cease-fire was negotiated between the Croatian National Guard and the Serb forces, which permitted patrols by a UN Protection Force.

    Initially, with the assistance of the YPA, local Serb militias carved out several autonomous regions in Bosnia, which were consolidated in March 1992 into the Serbian Republic of Bosnia and Herzegovina. A bitter and protracted war broke out between the forces that were loyal to the government of Bosnia, Croatian units attempting to secure a union between Croatia and Croat-majority areas of the republic, and a secessionist Serb army. The destructive use of ethnic cleansing (the effort to establish an ethnically homogenous area by forcibly expelling a particular ethnic group) by irregular Serb troops to consolidate strongholds in places with a previously mixed population created a flood of refugees. Sarajevo, the Bosnian capital, was besieged from May 1992 to December 1995, during which time its citizens endured severe privations and losses. Meanwhile, logistical and financial support from the Milošević regime sustained the Bosnian Serb forces.

    The “third Yugoslavia”

    On April 27, 1992, a new Federal Republic of Yugoslavia was inaugurated, comprising only Serbia and Montenegro. Its capital and assembly were both placed in Belgrade. The new state was not recognized by the entire international community, however, because of its continued military involvement in other republics of the former Yugoslavia. Stricter economic sanctions than those that had been imposed in 1991 were established by a UN security council resolution in May 1992, contributing to the hyperinflation that afflicted the country from 1992 to 1994.

    Despite the hardships the population experienced and massive antigovernment demonstrations in 1991, Milošević still managed to win the elections in December 1993, using a largely controlled media against a divided opposition. The SPS remained the largest party in the Skupština, and it was able to hang on to power by promising the public continued commitment to the autonomist movements in Croatia and Bosnia. But the economic and political cost of this commitment was beginning to wear on the regime. Thus, when a Croatian offensive in the spring and summer of 1995 stripped the Krajina of virtually its entire Serb population, Serbia did not intervene (although many of the expelled Serbs were resettled in the Vojvodina). Serbia also failed to go to the aid of Bosnian Serbs when a Croat-Bosniak (Muslim) alliance scored a series of military victories during the summer.

    The collapse of Bosnian Serb military resistance, together with the withdrawal of Serbia’s support and NATO bombing orchestrated by the United States, forced the Bosnian Serbs to accept a series of agreements negotiated in December 1995 in Dayton, Ohio. The vigorous backing of the Dayton Accords by Milošević secured the removal of most of the economic sanctions that had been imposed on the new federation. Serbia’s slow movement toward improved international standing advanced again when it concluded an agreement in January 1996 that provided for demilitarizing and returning to Croatian control the Serb-occupied region of Eastern Slavonia.

    Some reconstruction of the reduced, sanctioned, and unreformed Serbian economy began with a currency reform introduced in January 1994. The manufacturing and marketing sectors were rejuvenated, and the rampant black market and racketeering were brought under control. Attempts to stabilize the economy were constantly undermined, however, by the determination of Milošević and the SPS to retain power in spite of overwhelming opposition by the mid-1990s. Elections in November 1996 returned the SPS to power, in coalition with minority parties. After three months of demonstrations, the government conceded that there had been large-scale electoral fraud. In response, Milošević removed ministers representing SPS coalition partner Yugoslav United Left, a political party led by his wife, Mirjana Marković, but he otherwise failed to introduce economic reforms or expel corrupt party favourites from enterprise or bank management.

    As the SPS continued to introduce additional repressive measures, it strained relations between Serbia and Montenegro. The Montenegrins were eager to integrate their economy with that of the international community, but they were increasingly frustrated by the central government in Belgrade. In July 1997 Milošević, debarred by the constitution from further service as Serbia’s president, engineered his election to the federal presidency, and elections in October returned an opposition candidate, Milo Djukanović, as president of Montenegro. The two units of the federation then embarked on a succession of clashes that resulted in Montenegrin representatives’ losing their federal powers, leaving the federation one in name only. With the economy in decline, Milošević was defeated by Vojislav Koštunica in the Yugoslav presidential election in 2000, after which international sanctions against the country were lifted. Milošević was arrested in 2001 and extradited to The Hague to be prosecuted for war crimes.

    The Kosovo conflict

    The most serious threat to both the internal stability and the international rehabilitation of Serbia during the late 1990s was the deteriorating situation in the province of Kosovo. In 1989 Ibrahim Rugova, leader of the Kosovar Albanians, had initiated a policy of nonviolent protest against the loss of provincial autonomy. The refusal of the international community to address the situation in Kosovo in Dayton lent support to the arguments of Rugova’s more radical opponents that the changes they demanded could not be secured by peaceful means. A new organization, the Kosovo Liberation Army (KLA), emerged during 1996, and its sporadic attacks on Serbian police and officials steadily escalated, leading by 1998 to a substantial armed uprising in the Drenica region. The Serbian military effort to reassert control over the region was accompanied by atrocities such as the destruction of over 500 villages and the killing of an estimated 10,000 civilians, and some 200,000 refugees fled the area. Concern grew in the international community, but this did not deter the Yugoslav army and Serbian forces from launching a major offensive against the KLA in February 1999. Negotiations that had quickly been convened in Rambouillet, France, to resolve the crisis broke down and were followed in March by NATO air strikes against Serbian military targets and infrastructure. The Serbian response to the NATO action, however, was to drive out all of the Kosovar Albanians, pushing nearly 900,000 refugees into neighbouring Albania, Macedonia, and Montenegro

    In June 1999, after weeks of air strikes, the Yugoslav government accepted a proposal for peace that had been mediated by representatives from Russia and Finland. Federal troops quickly evacuated the region, along with most of Kosovo’s Serb civilians, while nearly all of the displaced Kosovar Albanians returned. UN peacekeeping forces were deployed to the region, which then came under UN administration.

    The federation of Serbia and Montenegro

    In the late 1990s, secessionists gained ground in Montenegro and called for independence from the Yugoslav federation and their much-larger Serbian neighbour. Despite the popularity of independence within Montenegro, international authorities, particularly those in the European Union (EU), believed that further political instability in Yugoslavia might unleash violence once again, especially in Bosnia and Herzegovina and Kosovo. In 2001 Montenegro’s pro-independence governing coalition announced that it would hold a referendum on independence, but in 2002 Javier Solana, the EU’s foreign minister, was able to forestall the plebiscite, brokering an agreement between Yugoslav Pres. Vojislav Koštunica, Montenegrin Pres. Milo Djukanović, and Serbian Prime Minister Zoran Djindjić that would maintain the federation. The accord, which renamed the country Serbia and Montenegro, called for a loose federation between the two republics. The federal government would have jurisdiction over foreign and defense policy and coordinate international economic relations, but the republics would retain autonomy in other spheres. It also allowed each republic to hold a referendum on independence after the agreement had been in effect for three years. The historic pact was ratified in early 2003 by the Serbian, Montenegrin, and Yugoslav parliaments, and in February the name Yugoslavia was once again relegated to the annals of history. In turn, the federation of Serbia and Montenegro ceased to exist in 2006. Montenegro held a referendum in the spring of that year that resulted in its formal declaration of independence and its separation from Serbia on June 3.

    Independent Serbia

    During the breakup of Serbia and Montenegro, the contentious matter of Kosovo’s future remained at the forefront of Serbian politics. Talks begun in 2005 resulted in a plan—proposed by the UN envoy Martti Ahtisaari in 2007 and supported by the United States and most members of the EU—that called for independence for Kosovo, albeit under international supervision. Serbia rejected the plan, however, and months of further talks between Serbian and Kosovar leaders were inconclusive. With the support of the EU and the United States, Kosovo declared independence in February 2008. However, Serbia, backed by Russia, China, and several members of the EU, refused to recognize Kosovo as a sovereign country.

    In the wake of Kosovo’s secession, Serbia’s governing coalition—composed of the pro-European Democratic Party (Demokratska Stranka; DS) and its offshoot, the centre-right Democratic Party of Serbia (Demokratska Stranka Srbije; DSS)—collapsed. For a European Serbia, a pro-EU bloc led by Serbian president and DS leader Boris Tadić, won nearly 40 percent of the vote in the May 2008 parliamentary elections. The nationalist Serbian Radical Party, however, captured nearly 30 percent, making the formation of a pro-EU governing coalition less certain. Nevertheless, in July the pro-EU alliance joined with a Socialist-led bloc of parties to form a new government whose stated goal was to obtain EU candidacy for Serbia. Accordingly, in December 2009 the Serbian government officially applied for EU membership.

    The newly formed Serbian Progressive Party (Srpska Napredna Stranka; SNS), which had split off from the Radicals in 2008, had by 2010 joined the DS in supporting Serbia’s accession to the EU. In March 2010 the Serbian parliament voted to condemn the 1995 Srebrenica massacre of Bosniaks (Bosnian Muslims). It stopped short of calling the killings an act of genocide, but the vote helped to advance Serbia’s EU candidacy. Domestic support for EU accession rose following the lifting of the Schengen visa restrictions on travel to EU member countries in December 2009. This rise in support coincided with the beginning of the ratification process of a Stabilisation and Association Agreement between the EU and Serbia.

    In July 2010 a ruling from the International Court of Justice found that Kosovo’s declaration of independence did not violate international law. However, the nonbinding decision did not settle the question of borders or other matters that remained to be resolved with Kosovo.

    In May 2011 Gen. Ratko Mladić—who had commanded the Bosnian Serb army during the Bosnian conflict and who was a fugitive from charges of genocide and crimes against humanity—was captured in Serbia. In announcing Mladić’s capture and the preparation for his extradition to The Hague, Tadić said, “Today, we close one chapter of our recent history that will bring us one step closer to full reconciliation in the region.” In July the arrest and extradition of Goran Hadžić, the other major Serb war crimes suspect at large, allowed Serbia to take another step toward eventual membership in the EU. The troublesome question of recognizing Kosovo’s independence remained.

    The Serbian economy showed signs of modest growth in 2010, buoyed by a new IMF loan and some currency depreciation after a 3 percent decline in 2009. Nevertheless, unemployment topped 20 percent, and the austerity-related freezes in public salaries threatened political consequences for the DS. The growth of exports and the revival of foreign direct investment appeared to be dependent on a general European recovery.

    In October 2011 the European Commission recommended Serbia for elevation to EU candidate status, but EU member states decided to postpone that action until Serbia could demonstrate that it had taken steps to normalize relations with Kosovo. Clashes between Serbs, Kosovar Albanians, and NATO peacekeepers in Serb-dominated northern Kosovo injured dozens, and violence threatened to spiral out of control as Serbs in Kosovo rejected Pristina’s attempts to impose customs controls at the border. After EU-mediated talks in December 2011, Serbia and Kosovo agreed to jointly manage the border crossings. Citing this as proof of Serbia’s commitment to regional stability, the European Council granted Serbia status as a candidate country on March 1, 2012.

    Continued high unemployment, accusations of corruption, and a sluggish economy sparked a wave of general dissatisfaction with the DS government, as the euro-zone debt crisis hampered the return of foreign investment. In legislative elections held in May 2012, the populist SNS won the largest share of votes, but a DS-led coalition finished close behind, leaving the third-place SPS in the role of kingmaker. Two weeks later, SNS leader Tomislav Nikolić defeated two-term incumbent Tadić in the second round of presidential balloting. Observers initially worried that Nikolić, who had previously advocated an anti-Western form of Serb nationalism, would divert Serbia from its pro-EU course. Nikolić was quick to clarify that he believed that closer integration with Europe was the key to Serbia’s future. Nikolić was inaugurated in late May 2012, but negotiations on the formation of a new government stretched into July. Ultimately, the SNS entered into a coalition with the SPS and the United Regions of Serbia party to form a government, with SPS leader Ivica Dačić at its head. In April 2013 Serbia and Kosovo agreed to normalize relations, although Serbia stopped short of recognizing Kosovo’s independence. The Kosovar government vowed to grant limited autonomy to ethnic Serbs in northern Kosovo, and both countries stated that they would not work to hinder the other’s progress toward accession to the EU. The European Commission responded to the development by recommending that the EU begin membership talks with Serbia, and accession negotiations formally opened in January 2014.

    Wishing to capitalize on the popular support for this milestone, the SNS called for a snap election in the hopes of solidifying its mandate. The move was successful, and in March 2014 the SNS captured a clear parliamentary majority, winning more than 150 of the legislature’s 250 seats. The leader of the SNS, Aleksandar Vučić, was a one-time ally of Slobodan Milošević, but his campaign focused on economic reform and anticorruption measures rather than nationalism. He promised to continue to follow a pro-European path by privatizing inefficient state businesses and liberalizing the economy, a goal made all the more challenging by an unemployment rate that continued to hover around 20 percent.

1. The most comprehensive and authoritative statement of the contemporary situation of human rights in Serbia is that prepared by the United States Department of State (USDOS).  The Executive Summary of the USDOS 2022 Country Reports on Human Rights Practices: Serbia (USDOS Report), notes:

   The Republic of Serbia is a constitutional, multiparty, parliamentary democracy, led by a president. In April, the country held regular elections simultaneously for seats in the unicameral National Assembly (parliament) and for the presidency. International observers stated the country efficiently organized the elections, but the dominance of the ruling party, the opposition parties’ lack of access to the media, and the lack of media diversity limited voters’ choice. A coalition led by President Aleksandar Vucic’s Serbian Progressive Party lost its absolute majority in parliament, winning 43.2 percent of the vote as opposition parties rejoined parliament following their boycott in 2020. Irregularities in the April elections required revoting at approximately 100 polling stations. Although irregularities had a minimal effect on overall results, they delayed certification of the presidential election by a month and parliamentary elections by three months.

   The national police maintain internal security and are under the control of the Ministry of Interior. Civilian authorities maintained effective control over the security forces. Members of the security forces committed some abuses.

   Significant human rights issues included credible reports of: torture or degrading treatment at police establishments; harsh prison conditions; serious problems with the independence of the judiciary; serious restrictions on free expression and the press, including violence, threats of violence, and unjustified arrests and prosecutions against journalists; serious government corruption; lack of investigation of and accountability for gender-based violence including domestic or intimate partner violence, sexual violence, and early marriage among Romani children; trafficking in persons; and crimes, including violence, targeting lesbian, gay, bisexual, transgender, queer, and intersex individuals.

   The government took steps to identify, investigate, prosecute, and punish officials who committed human rights abuses, both in the police force and elsewhere in the government, following public exposure of abuses. Nevertheless, many observers believed numerous cases of corruption, social and domestic violence, attacks on civil society, and other abuses went unreported and unpunished.

   Country information: organised crime

2. Freedom House rates Serbia as “Partly Free” in 2024.  It’s current report on Serbia notes, relevantly:[2]

   Although the number of arrests and prosecutions for corruption has risen in recent years, high-profile convictions are very rare. Critics have credibly accused [Serbian President] Vučić and the SNS government of having ties to organized crime, and cronyism—in the form of jobs provided to allies of the president and the ruling party—is reportedly common.

   [2] See: <>

   In its review of “Criminal Actors” in Serbia, the Global Organized Crime Index (GOC Index) notes, relevantly:[3]

   State-embedded actors leverage criminals and criminal groups to exert control over private and public sector entities. Additionally, some high-ranking politicians are reportedly allied with football hooligans, receiving protection in exchange for allowing them to carry out illegal activities. State-embedded actors are also heavily involved in white-collar organized crime, especially in public procurement. Furthermore, criminal networks are widespread and maintain connections that enable sound control of criminal markets and members. Criminal networks commonly use extortion and intimidation to control criminal markets and political connections. Serbia’s strategic and geographical position, combined with a high regional demand for narcotics, especially in the EU and Turkey, has accelerated the activities of criminal groups. Additionally, so-called football hooligans are a concern, as they tend to collaborate with criminal networks, in some cases providing logistical support.

   Montenegrin criminal actors, largely in the form of mafia-style groups, dominate the criminal economy in Serbia, while China and Russia also have a strong influence, facilitated by their strong political links and economic penetration in the country. There is also a growing Turkish influence, especially in the Sandzak region. Mafia-style groups in Serbia enjoy protection from political figures and are used as an extended hand of the state in controlling the private sector. Their members are frequently recruited and nurtured from hooligan groups. The environment of impunity enables Serbian gangs to be involved in drug and arms trafficking markets at the local and transnational level with no major consequences. Their profits are such that they have invested substantially in the legal economy. The connection between criminal actors and politicians in Serbia extends to media control, privatization, and public procurement, making some criminals almost untouchable.

   Most major private businesses are mainly owned by people connected to high-level politicians. These businesses are commonly involved in financial crime, particularly corrupt public procurement projects. Those that are not are frequently controlled through intimidation and the use of state resources, such as inspections and audits.

   [3] See: <>

   Overall, general country information paints a picture of Serbia as a country rebuilding its civic structures after the fall of communism and the Balkans conflict of the 1990s and early 2000s.  Within this context, while organised crime features in the country information as a persistent theme, it is mostly connected with government procurement practices, “white-collar crime”, and official corruption.  

   Analysis: fear of moneylenders[4]

   [4] For the purposes of this decision the Tribunal will use the term “moneylenders” as a shortcut for “unlicensed moneylenders” and including the practices commonly understood by the term “loansharks”.

3. In assessing the applicant’s claims the Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:

   In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[5]

   [5] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf

4. The Tribunal is also mindful of the following considerations surrounding credibility:

   a.Firstly, the fact that a refugee claimant may “yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself”.[6]

   b.Secondly, a decision-maker’s rejection of some evidence, material or peripheral, relating to past or present facts, should not necessarily lead to the rejection of all of the claimant’s evidence.[7]

   c.Thirdly, there are natural limitations to human memory, and a persons’ recall of dates, and the frequency and duration of events, is often reconstructed from inference, estimation, and guesswork.[8]  The Tribunal notes in this regard that on several occasions during the hearing the applicant stated to the effect that his accurate recollection of events had been affected by the passage of time. 

   [6] Abebe v Commonwealth – Minister for Immigration and Multicultural Affairs v Eshetu (2000) 24(1) Melbourne University Law Review 190.

   [7] International Association of Refugee Law Judges, Assessment of Credibility in Refugee and Subsidiary Protection Claims Under the EU Qualification Directive – Judicial Criteria and Standards,  (March 2013) at [A.18].

   [8] W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379; Bello v Sweden [2006] ECHR 32213/04.

5. This should not, however, lead to “an uncritical acceptance of any and all allegations made by” the applicant.[9]

   [9] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.

6. Overall, the Tribunal found the applicant’s oral evidence in respect of his core claims to be coherent.  When pressed for details in respect of these core claims the applicant was able to answer the Tribunal’s questions in a manner consistent with honest, unaffected recollection.  However, for reasons which will be explained, the Tribunal had concerns with the speculative and generic nature of the applicant’s evidence when he departed from his core claims.

7. In the absence of corroborating evidence, the Tribunal cannot be certain of the applicant’s account of his circumstances.  However, having had the benefit of speaking with him, the Tribunal is not able to make a confident finding that that applicant’s account in respect of his core claims is not credible, and it is sufficiently persuaded that it is possible that the core of his claims is true.[10] 

   [10] See: Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 (Sackville J) at [62] to [64].

8. The Tribunal therefore accepts the possibility that:

   a.In autumn 2004 the applicant borrowed €[amount] in two transactions from an organisation of moneylenders in Novi Sad, who he identified by name as “[Group 1]”.

   b.The general terms of the agreement were recorded in writing, signed by the applicant, and required him to repay the loans within 12 months together with interest thereon.

   c.The terms of the loan were not usurious; the applicant described the transaction as “more like a bank loan”.

   d.Although the applicant borrowed the money to invest in his farming business, in fact he spent the bulk of the money having ‘fun’, and none of the borrowed money has been repaid.

   e.When the loans came due the applicant was telephoned once, and then visited twice at his farm by agents of the moneylender.

   f.The second visit was the applicant’s last contact with the moneylenders, as shortly thereafter he departed for Australia, and he has not returned to Serbia since.

9. Central to the applicant’s claims for protection is his claim that he was assaulted and threatened with violence and death by the agents of the money lender who visited his home.  To assess the veracity of this claim it is necessary to consider country information specific to the allegations raised in the applicant’s evidence.

   “[Group 1]”

10. The applicant explicitly identified the moneylenders from whom he borrowed as an organisation named “[Group 1]”.  He described the organisation as a “criminal group”.

11. Country information reviewed by the Tribunal identifies only one organisation in Serbia by the name of “[Group 1]”, being [type of group specified].[11] 

    [11] [Source deleted.]

12. The Tribunal notes in this regard the information in the GOC Index to the effect that [similar groups] in Serbia are known to ally with high-ranking politicians, to collaborate with criminal networks, and that they can provide a source for recruitment for “mafia-style groups”.

13. A review of the [Source 1][12] entry for “[Group 1]”, however, does not connect the group with political corruption, organised crime, moneylending, or illegality of any kind. There is no country information to suggest that “[Group 1]” is a currently a criminal organisation or a “criminal group” as described by the applicant, or that it has been so at any material time.  In respect of the characteristics of its members, the “[Group 1]” [Source 1] entry notes (citations omitted):

    The [Group 1] does not consist of a certain group of people with a specific identity. In their ranks are assembled people from different [backgrounds and interests]. . [Details deleted.]

    [12] [Details deleted.]

14. [Details deleted.]

15. [Details deleted.][13]

    Moneylending in Serbia

    [13] [Source deleted].

16. Country information relating to the issue of “loansharking” or unlicenced moneylending in Serbia is scarce. Notably, the USDOS Report makes no mention of the “Serbian mafia”, of organised crime in Serbia generally, of “loansharking” or of moneylending in Serbia.  A review of Amnesty International’s latest report on Serbia makes comparable observations to the USDOS Report in respect of key human rights metrics, but again makes no mention of violence associated with “loansharking” or moneylending.[14]

    [14] See: <>

    The only source of country information on “loansharking” in Serbia discovered by the Tribunal is an article from September 2021 by the Global Initiative Against Organized Crime entitled “Reducing vulnerability to loan sharking in Serbia” (GIAOC Article).[15]  The article notes that loansharking “flourished” in Serbia in the 1990s, and continues:

    [15] See: < a rule, loan sharks were dangerous characters from the criminal underworld or men returning from the war. They often extorted people and threatened them with violence or kidnapping if the borrowed money was not returned. There is a well-known example of former military serviceman who gained his initial capital by reselling foreign currency in the 1990s, and later lent money to people by concluding an agreement in which the debtor’s real estate was used as collateral. As a result, he became the owner of many shops, houses and apartments before he was shot dead in 2009. In another case, a man was arrested (and is now serving jail time) when one of his victims tried to kill himself because the loan of €9 000 that he had taken out jumped to €42 600 in a year and a half.

    Today, money is loaned quite openly in Serbia at an unrealistically high interest rates. A billboard of a company that offers citizens cheque cashing and quick loans in euros has been standing in a Belgrade mall for several years. Next to it is a pawn shop that offers similar services. At several bus stops in Belgrade, there have been advertisements offering loans with an interest rate of 6.5% for employees and 10% for pensioners. One reason that seniors are targeted is that it hard for people over 60 to get bank loans.

    It is challenging for criminal justice institutions to prove loan sharking, because victims seldom file criminal charges due to embarrassment and fear. Even when institutions initiate criminal proceedings, it is not easy to prove loan sharking because the deals are usually prepared and made behind closed doors. There are no witnesses or evidence of financial transactions. Prosecutors generally learn about loan sharking when investigating other serious crimes, such as extortion, kidnapping, murder or rape.

    We talk with Milan Stefanović, executive director of the Centre for Civil Society Development PROTECTA, which is a civil society organization from Nis. PROTECTA has been active for more than 20 years in its community to identify social problems and guide young people to positive social action. Stefanović explains their motives to fight loan sharking, the different forms of loan sharking in Nis and Serbia and what happens to the victims, as well as what the organization is doing to address these issues.

    What is loan sharking?

    It is a social problem that destroys entire families and causes economic, social and psychological damage to the victims, their family and friends. It is not just a crime. Individuals borrow money from loan sharks to solve a minor problem, hoping to return money easily and quickly and believe that the interest rate will not be too high. But loan sharks have an interest in loans not being paid back quickly: the longer they wait, the more they earn, and they may even confiscate the victim’s property. At the start, loan sharks are usually kind and act as allies who want to help. But they soon show their true colours. They become predators and, as such, want to make as much profit as possible. What starts out as a minor problem can ruin someone’s life.

    What motivated PROTECTA to fight loan sharking?

    First, a close friend fell victim to a loan shark. In just a few months, he lost his job and his family. In the end, he fled from Serbia. Then, at a conference, I heard how civil society organizations in Bulgaria, Romania and Italy are fighting loan sharking. Given the modest experience of civil society in Serbia, we decided that PROTECTA could be a civil society pioneer in the fight against loan sharking.

    How widespread is loan sharking in Nis?

    There is no accurate data. It is difficult to calculate because loan sharking, like corruption, takes place in private. The victims and their families are often ashamed and hide that they even borrowed money. However, last year I began asking people if they knew anyone who had borrowed money from loan sharks. Unfortunately, everyone knew of a victim. For me, that was enough to conclude that the problem is widespread. And the problem may get worse because of the pandemic. This type of crime always flourishes in times of crisis. People lose their jobs, especially in the service industries. Chances to travel abroad and find temporary work are limited – all of this leads to borrowing money from loan sharks.

    Is loan sharking more present in Nis than in other parts of Serbia?

    The problem exists in poor communities, such as the south of Serbia, because poverty creates a need for loan sharking. It is also a problem in places where there is an active property market. People who are building a house or seeking to rent an apartment are more likely to take money from loan sharks. It is important to note that some national minorities, especially Roma, borrow quickly and easily from loan sharks. After borrowing, they often get involved in criminal activities for loan sharks to pay off the debt. They even go abroad to steal.

    What is the profile of people who borrow money from loan sharks?

    There are generally three groups – business people, drug users and people on the margins of society. Business people in the construction business are sometimes looking for fast and easy money. There was a case in Nis where the company’s owner committed suicide because he could not repay the debt. Drug users are vulnerable if they need money to pay for gambling debts or to buy drugs. People on the margins of society are vulnerable if they need to borrow money to buy medicine, send family members for treatment or pay for electricity.

    Why do people turn to loan sharks instead of banks?

    In some cases, people have already taken out a loan from a bank or are not creditworthy. In other cases, people are self-confident and believe that borrowing money from loan sharks can enable them to make a quick profit. They think they will repay the debt quickly, but don’t realize how rapidly the debt will increase because of high interest rates. There are also cases where people sell their property, take money from loan sharks and invest in building construction. But because of the pandemic or lack of a building permit, construction stopped for several months and the debt increased. In the end, the property speculation failed, and they ended up with an economic loss rather than a profit.

    On average, how much money do people borrow from loan sharks, and what is the interest rate?

    In Serbia, people usually borrow between €1 000 and €10 000, while business people tend to borrow from €100 000 to half a million euros. Debt can grow up to ten times.

    When the debt is not repaid on time, what happens?

    Most often, loan sharks confiscate the victim’s property. Apartments, shops and cars – victims are sometimes surprised since they have not read the fine print before signing the contracts. Loan sharks are well connected with lawyers and notaries, so the arrangements are proper and certified. In that way, the entire property of the debtor is legally taken. That said, there is also extortion or violence. The media usually report on such cases.

    Why do debtors seldom press charges against loan sharks?

    Mainly because of fear. They do not feel enough support or protection from the state institutions if they decide to report loan sharks. Indeed, they think the situation will worsen. They usually report it only when they fear physical violence.

    Who are the loan sharks? How do people who need money contact them?

    Police claim that, in the 1990s, loan sharks were people from the criminal underworld or returnees from the war who secured their loans using intimidation and violence. Today, the situation is different. Loan sharks are individuals who have money and want to make even more, and quickly. They are often known to the police, but not because of serious crimes. The rule from the 1990s that loan sharks had direct ties to organized crime no longer always applies. There are also examples where ordinary people who are not known to the police lend money. People often find loan sharks based on a recommendation or information from a neighbour, a cafe owner or a betting shop. It is easy to get information on who is loaning money because loan sharks do not only advertise their services by putting fliers in mailboxes, but they also advertise in the media.

    Would you say loan sharks work as an organized group?

    Loan sharks generally work as solo players. One or two operate in each part of the city. It seems they have divided up the territory, but that is not enough proof that they are organized. You could say that they are organized in the sense that they have a good overview of the local situation. Instead of waiting for clients, there have been cases where loan sharks have intentionally targeted people who have houses, apartments and shops in good locations in order to trap them into debt and confiscate their assets at a later stage.

    …

1. While the Tribunal accepts the observations made by the interviewee in the GIAOC Article, they must be treated with some caution as they are anecdotal in nature, and the validity of the methodology employed by the interviewee in the gathering of his information and as the basis for his observations is not apparent on the face of the article. 

2. The Tribunal notes that the interviewee in the GIAOC Article observes that moneylending or loansharking in Serbia is “widespread” and that his organisation has received requests for help from “all over the country”.  Under the heading “When the debt is not repaid on time, what happens?”, the interviewee notes specifically:

   Most often, loan sharks confiscate the victim’s property. Apartments, shops and cars – victims are sometimes surprised since they have not read the fine print before signing the contracts. Loan sharks are well connected with lawyers and notaries, so the arrangements are proper and certified. In that way, the entire property of the debtor is legally taken. That said, there is also extortion or violence. The media usually report on such cases.

3. When considered as a whole, the overall theme of the GIAOC Article is the intentional creation of “debt-traps” by moneylenders and the use of legal, if inequitable, or unconscionable, processes to “confiscate” a debtor’s property in satisfaction of the debt.  While the commentator notes that “…there is also extortion or violence”, this is not emphasised as the primary object of the exercise of debt entrapment, nor as the principal method of enforcement of loan agreements.  Rather, it appears as an ancillary phenomenon to the primary goal of debt entrapment and the pursuit of the legal “confiscation” of property to the financial benefit of the moneylenders. Given this, the Tribunal assesses the risk of violence at the hands of moneylenders in Serbia to be remote or speculative.

   The applicant’s fear

4. By his own evidence the applicant’s fear of violence at the hands of moneylenders in Serbia is based in part upon what he described in oral evidence as “stories” he has heard, or upon what he has heard or read on Facebook.  The applicant himself, in oral evidence, speculated upon the veracity of these “stories”.[16] Overall, the Tribunal can place no weight upon such vague and unattributed sources.

   [16] “These are stories, is it true or not?”, para [13.hh] above.

5. The applicant claims in writing and in oral evidence that he was twice visited and threatened with violence and death by agents of moneylenders.  There is no corroborating evidence of these encounters and, in contrast to his core claims, the Tribunal found this aspect of the applicant’s oral evidence to be vague and generic, and to lack the spontaneity of natural recollection. 

6. Further, assessing the veracity of the applicant’s evidence of the encounters against the country information raises two significant concerns for the Tribunal:

   a.Firstly, although the applicant identified the specific moneylenders from whom he borrowed as being named “[Group 1]”, the country information does not support a conclusion that “[Group 1]” are a “criminal group” as described by the applicant; specifically, the country information does not suggest that “[Group 1]” has any connection with criminality, moneylending, “loansharking”, or violence. The applicant could not point to any examples of “[Group 1]” dealing with a bad debt, and none appear in any country information reviewed by the Tribunal. 

   b.Secondly, as analysed above, the Tribunal has not been directed to, nor has it found of its own research, any country information to suggest that violence or killing by moneylenders in Serbia is other than a remote or speculative risk.

7. The conjunctive effect of these concerns is that, in addition to there being no corroborative evidence of the applicant having experienced violence or having received threats of violence or death from moneylenders, there is no country information before the Tribunal from which it can conclude that the threats as described by the applicant occurred, even as a possibility.

8. Accordingly, the Tribunal rejects the applicant’s evidence that he was threatened with violence and death by agents of moneylenders.

9. Having considered all of the evidence and the country information the Tribunal finds that the risk of the applicant suffering serious or significant harm from moneylenders should he return to Serbia now or in the reasonably foreseeable future is no more than speculative at most and falls well below the level of a real chance of serious harm or a real risk of significant harm by a significant margin.

   Analysis: Catholicism in Serbia

10. The Tribunal accepts the applicant’s evidence that he is of the Catholic faith.

11. The Tribunal notes that the recent history of the Balkans region between approximately 1991 and 2001 included periods of significant sectarian, racial and nationality-based violence, including open warfare.[17]

    [17] See para [27] above; and generally: United Nations International Criminal Tribunal for the former Yugoslavia, <>

    In respect of the current situation regarding sectarianism in Serbia, in the Executive Summary of its 2022 Report on International Religious Freedom: Serbia, the USDOS notes:[18]

    The constitution guarantees freedom of belief and religion, including the right to change one’s religion; forbids the establishment of a state religion; guarantees equality for all religious groups; and prohibits incitement of religious hatred.

    Leaders of the country’s two Muslim organizations continued to say that due to an ongoing dispute between their organizations, neither could represent the entire Muslim community when dealing with the government, which created difficulties in coordinating property restitution claims and selecting instructors for religion courses in public schools. A legal challenge regarding the registration of one of the Muslim organizations by the other organization remained unresolved. In July, the Federation of Jewish Communities elected Aleksandar Albahari as its new president. The Ministry of Justice, however, was unable to proceed with registering Albahari as the legal representative of the federation because of an ongoing legal case pertaining to the 2018 election of Igor Ginzberg as the federation’s president. The government continued to return heirless and unclaimed properties seized during the Holocaust and to restitute religious properties confiscated in 1945 or later to religious groups, although the process remained slow. The government continued to develop a Holocaust memorial center that includes Staro Sajmiste and Topovske Supe, the sites of World War II-era concentration camps in Belgrade. Representatives of several religious groups said the government continued to favor the Serbian Orthodox Church (SOC) over other religious groups, noting the government granted funds to complete an Orthodox cathedral but did not make similar grants to other religious groups.

    In June, the SOC recognized the autocephaly of the Macedonian Orthodox Church – Ohrid Archbishopric, resolving a longstanding impasse between the two churches. Jewish community leaders reported no specific antisemitic incidents during the year; in July, however, an open-air exhibition in Novi Sad that was focused on Holocaust remembrance was vandalized. Antisemitic literature continued to be available online from informal sellers. Smaller religious groups, mainly Protestant and considered “nontraditional” by the government, again stated they encountered continued public distrust and misunderstanding. They said that some websites, traditional media, and members of the public often branded small religious groups as “sects,” a term with a strong negative connotation in Serbian.

    U.S. embassy officials engaged with a variety of government ministries and offices to advocate for religious freedom and tolerance, continued interfaith dialogue, and the protection of religious sites throughout the country. The embassy continued to encourage the accurate presentation of history at the planned Holocaust memorial center in Belgrade and emphasized the importance of continued restitution of Holocaust-era heirless and unclaimed Jewish property. Embassy officials met with representatives from a wide range of religious groups, including the SOC, Roman Catholic Church, Islamic communities, Jewish community, Jehovah’s Witnesses, and Christian Baptist Church, to discuss issues of religious freedom and tolerance, the religious groups’ engagement with the government and one another, and property restitution.

    [18] See: <>

    The USDOS continues:

    The U.S. government estimates the total population at 6.7 million (midyear 2022).  According to the 2011 census (the most recent data available), approximately 85 percent of the population is Orthodox Christian, 5 percent Roman Catholic, 3 percent Sunni Muslim, and 1 percent Protestant.  The remaining 6 percent includes other Christians, Jews, Buddhists, members of the International Society of Krishna Consciousness, Jehovah’s Witnesses, members of other religious groups, agnostics, atheists, and individuals without a declared religious affiliation.  The vast majority of the population that identifies as Orthodox Christian are members of the Serbian Orthodox Church, a category not specifically listed in the census.  Adherents of the Macedonian, Montenegrin, Romanian, and other Orthodox churches are included in the numbers of “Orthodox Christians” or in the “other Christian” category, depending on how they self-identify.

    Roman Catholics are predominantly ethnic Hungarians and Croats residing in Vojvodina Province in the country’s north.  Muslims include Bosniaks (Slavic Muslims) in the southwest Sandzak region, ethnic Albanians in the south, and some Roma located throughout the country.

    …

    The law grants special treatment to seven religious groups the government defines as “traditional.” These are the SOC, Roman Catholic Church, Slovak Evangelical Church, Reformed Christian Church, Evangelical Christian Church, Jewish community, and Islamic community.

    [Tribunal’s emphasis.]

12. Although the USDOS report notes some incidents in respect of the Jewish and Muslim communities in Serbia during the reporting period, there is no mention of persecution or harm directed against Catholics.  Overall, the USDOS notes that in 2022:[19]

    Religious groups reported a decrease in violent incidents compared to the previous year.

    [19] Ibid.

13. A recent news report from the Catholic New Agency notes a visit by senior Catholic Archbishop Paul Gallagher to Serbia in 2021:[20]

    [20] Catholic News Agency, “Vatican archbishop ‘ultimately very optimistic’ about Catholic-Serbian Orthodox relations”, 1 December 2021.

    The Vatican’s “foreign minister” has said that he is “ultimately very optimistic” about relations between Catholics and Serbian Orthodox Christians.

    Archbishop Paul Gallagher made the remark during a visit to Serbia, a landlocked southeastern European country with a population of almost 7 million, around 85% of whom are Orthodox Christians.

    The Vatican’s Secretary for Relations with States met with Porfirije, the patriarch of the Serbian Orthodox Church, on Nov. 23.

    “That obviously is a good sign and we believe that there is a dialog that needs to go on and needs to go forward,” he told Ivan Tašev in an interview published on Nov. 25 in the Croatian Catholic weekly Glas Koncila (“Voice of the Council”).

    “There is a history that needs to be challenged and confronted and I’m ultimately very optimistic. We view very positively the signs and the comments of the new patriarch and also I can say that the Holy Father has great respect and esteem for him and considers him already a brother within the universal Christian Church.”

    Porfirije was elected leader of the Serbian Orthodox Church, an autocephalous Eastern Orthodox Church, in February during an assembly of bishops in the Serbian capital, Belgrade.

    In an interview after his election, he raised concerns about the canonization cause of Bl. Aloysius Stepinac, who is considered a hero by Catholics in neighboring Croatia.

    Gallagher, who also visited Russia earlier this month, told Glas Koncila: “I think obviously there is a path to take, and that is the path of reconciliation. We need to obviously look at the shared history of the region.”

    “We need to reinforce our identity above all as Christians and interpret history, the present, and the future in the light of the will of Christ. That is the thing that really matters.”

    The 67-year-old English archbishop added: “There are a lot of other things such as wounds, there is contested history, and there are many other problems. In the end, what matters for the disciples of Christ is to do His will.”

    No pope has visited Serbia, but Porfirije’s election raised hopes in Rome that Pope Francis might one day be invited to the country, where approximately 5% of the population is Catholic.

    During a visit to Serbia in 2018, Cardinal Pietro Parolin, the Vatican Secretary of State, said that a papal visit could only take place “under the right conditions and when everyone agrees.”

14. No country information reviewed by the Tribunal suggests that Catholics in Serbia face a real chance of serious harm, or a real risk of significant harm.  Rather the country information suggests a slow, but steady and deliberate improvement in relations between the majority Serbian Orthodox Church, and the Catholic Church.

15. The applicant claims to fear returning to Serbia on account of his Catholic religion for being “not welcome”, “denied” and/or “abused” by members of the public.  The Tribunal is not satisfied from this evidence, or from the country information, that the applicant faces any real chance of discrimination amounting to serious harm now or in the reasonably foreseeable future. The Tribunal is not satisfied that any discrimination the applicant may face amounts to a real risk of harm of the scope or gravity envisaged in the definitions of torture and cruel, inhuman, or degrading treatment or punishment.

    Analysis: fear of compulsory military service

16. The applicant’s evidence to the Tribunal is that he completed compulsory military service in Serbia at age 21 but that he fears being conscripted into the military again, claiming that he remains of military age until the age of “55 or 60.

17. Country information informs the Tribunal that compulsory military service was abolished in Serbia in 2011, however there are recent “fresh proposals” for its reintroduction.[21]  There is no suggestion in these reports, however, that the applicant would be required to perform military service again, or that he is or would be within the target age range for such service.

    [21] Manojlovic, M and Heil A, “Serbia's Vucic Weighs A Return To Military Conscription, Stirring Anger To His Left And Right”, RadioFreeEurope, 11 January 2024.

18. The applicant stated in evidence that “the situation in Kosovo of concern for him”, and in his written claims for protection the applicant states:

    There is a great possibility of war between Kosovo and Serbia...

19. Generally available country information does not, however, support this conclusion.

20. A review of country information, including the USDOS Report, and information published by the “United Nations Mission in Kosovo”,[22] does not suggest that any civil or international military conflict is likely to affect Kosovo, or Serbia, or to engage the Serbian military, now or in the reasonably foreseeable future.

    [22] See: <>

    The Tribunal considers the applicant’s claims in this regard to be speculative and without a basis in fact; the Tribunal finds that there is no real chance or real risk that the applicant will face serious or significant harm in Serbia on this account should be return there now, or in the reasonably foreseeable future.

    Analysis: challenges of returning to Serbia

21. The applicant stated his concern that as a returnee from a Western country he would be perceived as wealthy, or as having access to resources, and that it would be “very hard for him” to find work as nepotism is rife in Serbia, or that he lacked “connections”.

22. The Tribunal has not been directed to, nor has it found of its own research, any country information to suggest that there is a real chance or real risk that the applicant will face serious or significant harm in Serbia as a perceived wealthy returnee, or as a returnee from a Western country.  The Tribunal rejects the applicant’s claims in this regard as mere speculation.

23. In respect of the challenges of finding work in Serbia, the Tribunal accepts that the applicant does not wish to return there for this reason.  However, the applicant made no claim that this circumstance would result from one or more than one of the five reasons enumerated in s.5J(1)(a) namely race, religion, nationality, political opinion, or membership of a particular social group.[23]   

    [23] In respect of the latter category in respect of unpaid debts, see: ZAFC v MIMIA [2003] FMCA 380, at [17] to [18]; agreed on appeal: SZAFC v MIMIA [2003] FCA 1405.

24. Without a link between one of the characteristics of an individual enumerated in s.5J(1)(a) and the persecution they fear, a nexus between the persecution of that individual and the Act is simply not established.  Put differently, to fall within the ambit of s.5J(1)(a) of the Act, the harm feared must be for one or more than one of the five reasons, which are race, religion, nationality, political opinion, or membership of a particular social group. None of these reasons apply to the applicant’s claim as to the challenge of finding work. 

25. In its most recent overview of Serbia’s economy published on 21 December 2023, the International Monetary Fund (IMF) reports that: ^[24]

    Despite a challenging global environment, economic activity is recovering and the labor market is resilient. Growth is expected to reach about 2½ percent in 2023, increasing to 3¼ percent in 2024 as domestic demand recovers. Inflation is declining, falling to 8 percent yoy at end-November 2023. Inflation is expected to return to within the National Bank of Serbia’s (NBS) target range by end-2024 assuming continued tight policies. Despite some ad-hoc spending measures, fiscal consolidation continues as agreed under the SBA. The current account deficit has narrowed significantly, foreign direct investment (FDI) remains robust, and gross international reserves have increased during the year (EUR 24.16 billion at end-November 2023) and stand near all-time highs. Financial stability has been maintained.

    The 2024 budget envisages a fiscal deficit of 2.2 percent of GDP, consistent with an ongoing tight policy stance and with a view toward reducing the deficit further to 1.5 percent of GDP in 2025 in adherence with the fiscal rule. Public sector wages and pensions will also be increased in line with the fiscal rule. The budget maintains high capital spending to meet sizeable infrastructure needs and does not envisage liquidity support to energy state-owned enterprises (SOEs) barring any large negative shocks. Reflecting these conservative policies, public debt in percent of GDP remains on a downward path.

    The program is on track. All quantitative performance criteria and indicative targets were met, and structural reform momentum has been maintained. Following three rounds of energy tariff increases under the program, the finances of the energy SOEs have improved, and fiscal risks have moderated. Advancing the structural reform agenda centered on energy sector and SOE governance will help address Serbia’s remaining vulnerabilities and support long-term growth.

    [24] See: <>

    In view of this country information the Tribunal is not persuaded that the applicant would be subjected to significant economic hardship in Serbia that threatens his capacity to subsist there.  The Tribunal notes in particular the IMF’s expectation that the Serbian economy will grow by “about” 2½ percent in 2023, increasing to 3¼ percent in 2024, and that the labour market is “resilient”.

1. The Tribunal finds that the applicant does not have a well-founded fear of persecution in Serbia based upon a claim of economic hardship or an inability to find work.

   Complementary protection

2. The Tribunal accepts the applicant has concerns about being able to find work if he returns to Serbia.  The Tribunal also accepts that he may face some difficulty in doing so at least initially, particularly if he is compelled by legal process to repay his debt.  However, save for the claims made in respect of moneylenders, which have been rejected for the reasons stated above, the applicant did not suggest that any person or group will seek to harm him for any reason relating to solely his economic situation.  There is no evidence before the Tribunal that he has ever been prevented from obtaining work in Serbia. 

3. Accordingly, the Tribunal finds that any economic hardship the applicant might experience if removed to Serbia would not amount to significant harm for the purposes of the Act, because the harm would not be as a result of any deliberate act or omission of any group or person done with the intention of causing him to suffer significant harm.

   Analysis: other claims

   Mixed Serbian-Croatian ethnicity

4. The applicant did not raise his mixed Serbian-Croatian ethnicity as a basis for his fear of returning to Serbia.

5. The Tribunal has not been directed to, nor has it found of its own research, any country information to suggest that there is a real chance or real risk that the applicant will face serious or significant harm in Serbia as a Serbian citizen of mixed Serbian-Croatian ethnicity should he return to Serbia now, or in the reasonably foreseeable future.

   Conviction of sexual offences

6. The applicant did not raise his Australian criminal convictions as a basis for his fear of returning to Serbia.

7. In respect of his convictions, the applicant notes from the Psychologist’s Report that:

   … [The applicant][‘s] offending relates to him taking a photo of his daughter who was aged [age] years at the time. At time the photograph was taken the daughter was wearing a pair of fish net leg stockings and lying on her back with her legs spread exposing herself. The recording was located on a [camera] which showed the victim’s panties being removed to one side exposing the vagina. The fingers of the accused can be seen touching the outside of the vagina.

   3.2 Child pornography images were located by police on [the applicant’s] laptop. These images depicted prepubescent girls in sexual poses, with legs apart and vaginas exposed. There were also images of prepubescent girls being penetrated, sucking an adult male’s penis and a cartoon figure of a girl being annually penetrated with a finger.

   3.3 It is noted that [the applicant] received [term] imprisonment which was wholly suspended and a [term] probation order after serving [term] in custody on remand.

8. There is no evidence before the Tribunal that the applicant’s convictions are, or would become, known by anyone in Serbia beyond his immediate family.

9. In respect of the response of the Government of Serbia to the issue of convictions for child exploitation and paedophilia, country information informs the Tribunal that:

   Belgrade daily Politika said on Monday that there are 371 registered pedophiles in Serbia, 92 more than a year earlier.

   Convicted pedophiles [in Serbia] are registered under the so-called Marija’s law (officially the Law on Special Measures to Prevent Gender Freedom Crimes Against Minors) which was adopted in 2013. The law was named after eight-year-old Marija Jovanovic who was killed by a convicted pedophile in June 2010. The registry was set up in 2015.[25]

   [25] Politika, N1, “Daily says 371 registered pedophiles in Serbia, grieving father says many more”, 12 October 2020; <>

   In a response to a questionnaire of the UN Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography, the Government of Serbia explained the law in the following terms:

   According to the Law on Special Measures for the Prevention of Crime against Sexual Freedom Involving Minors adopted in 2013, the statute of limitations no longer applies to sexual acts against children, and this is also prescribed under Article 108 of the Criminal Code (2013). After its adoption by the Serbian Assembly, the legislator has become an ally in the rehabilitation of a child victim of sexual violence. The law allows trials of sexual offence cases if the victim of sexual abuse in childhood has the mental power and social capacity to participate in criminal proceedings on as equal basis as possible. Serbia thus became a country that recognises that a child’s sexual trauma has no expiration date, that it leaves long-lasting effects in life and that it requires an option of being tried in a court of law at the moment when a victim of abuse feels able to participate in it. The law applies to those who have committed the following offences involving minors: rape, sexual intercourse with a defenceless person, sexual intercourse with a child, sexual abuse of power, illigal sexual activities, procuring and facilitating sexual intercourse, acting as a go-between in prostitution, showing, obtaining and owning pornographic material and exploitation of a minor in pornography, persuading a minor to witness sexual activity, abusing the Internet or other means of communication to violate the sexual autonomy of a minor. Special measures are prescribed against perpetrators of these crimes and special records of these offenders are kept.

   Where an educational institution suspects sexual violence, it must inform the MI and cooperate with health and social care institutions. Where the victim of sexual offence is a child, special care is taken that he/she is interviewed by a female police officer (specialised in sexual offences), and since the issue is sensitive it is approached with particular subtlety, adhering to the principles of protection of privacy, the best interest of the child and legality. The Catalogue of Accredited Teacher, Trainer and Technical Assistant Training Programmes contains programmes on the prevention of sexual abuse. The Ministry of education is carrying out the Safe Childhood programme (all primary schools are included) in cooperation with the MI and one of the topics is child trafficking, sexual violence and exploitation.

   Street Children is an action aimed at organising systematic protection of children living and working in the street, launched in July 2014. Special teams comprised of the representatives of the Ministry of the interior, health care and educational institutions and social care centres were established in the centres for social care with the aim to protect these children. So far, 115 teams have been established. Preparations for the establishment of these teams are in progress in 35 local self-governments. From July 2014 to 25 December 2014 these teams took care and organised comprehensive and continuous protection of 60 street children. This action is very important from the aspect of social and family protection because street children are one of the most vulnerable groups of children, at the greatest risk of being exploited in human trafficking or illegal child labour. The action will continue in 2015 and the plan is to create special programmes and build capacity for better protection of these children. Under the programme, children spend 6-9 months in institutions (as some children have behavioural problems) and then enter the formal protection system in an attempt to prevent them to return to the streets. Under the programme, the Ministry of social care has so far employed 20 family assistants who work with the street children and their families in four cities.[26]

   [26]<>

   There is no evidence before the Tribunal to suggest that the applicant would be affected by this law should he return to Serbia now, or in the reasonably foreseeable future, or, if he was, that its enforcement would amount to serious or significant harm.

   Conclusions:

10. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as contained in his application and as discussed in the hearing, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if he returns to Serbia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Serbia.  Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act. 

    Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm

11. The Tribunal has considered the applicant’s claims under complementary protection. 

12. The Tribunal is satisfied there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment.  It is also not satisfied that there is a real risk he will suffer arbitrary deprivation of his life or the death penalty.  The Tribunal finds no grounds that suggest the applicant will be subject to significant harm for any reason if he returns to Serbia.  Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.

    Conclusion: Refugee Criterion

13. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group).  His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.

    Conclusion: Complementary Protection

14. Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Serbia that there is a real risk that he will suffer significant harm.

    Overall conclusion:

15. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

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

17. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

18. The Tribunal affirms the decision not to grant the applicant a protection visa.

    RECOMMENDATION FOR MINISTERIAL INTERVENTION

19. Under s.417 of the Act the Minister may substitute a more favourable decision if it is in the public interest to do so.  The Minister’s Guidelines indicate the matters that should be brought to their attention.[27]  In particular it refers to:

    Cases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers:

    ·strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.[28]

    The applicant’s children’s circumstances

    [27] PAM3: Act - Ministerial powers - Minister’s guidelines on ministerial powers (s351, s417 and s501J)

20. The applicant’s evidence is that he 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.

21. The Tribunal has read and had regard to the Forensic Psychologist’s Report of [Psychologist A]; under the heading “Reason for Referral” the report states:

    1.1 This letter is to advise that [the applicant] self-referred under the mental care health plan to my clinic for treatment related to indecent treatment of a child under 12 years and possessing child exploitation material.

    1.2 The writer specialises in providing treatment to victims and perpetrators of violence and sexual offences.

    1.3 He advised he had completed [term] imprisonment for the above-mentioned offences and is currently on a probation order. He advised that due to his offences his visa has been revoked and he may be deported to his country of birth, Serbia. He advised he is appealing the decision to revoke his visa.

    1.4 [The applicant] was accompanied by his second wife on several occasions during treatment interviews.

22. The report particularises the applicant’s offences in the following terms:

    3.1The writer has viewed the indictment, schedule of facts and international criminal history. check. [sic] [The applicant] offending relates to him taking a photo of his daughter who was aged [age] years at the time. At time the photograph was taken the daughter was wearing a pair of fish net leg stockings and lying on her back with her legs spread exposing herself. The recording was located on a [camera] which showed the victim’s panties being removed to one side exposing the vagina. The fingers of the accused can be seen touching the outside of the vagina.

    3.2 Child pornography images were located by police on [the applicant’s] laptop. These images depicted prepubescent girls in sexual poses, with legs apart and vaginas exposed. There were also images of prepubescent girls being penetrated, sucking an adult male’s penis and a cartoon figure of a girl being annually penetrated with a finger.

    3.3 It is noted that [the applicant] received [term] imprisonment which was wholly suspended and a [term] probation order after serving [term] in custody on remand.

100.   The report continues:

4.1 It is noted that due to [the applicant’s] culture his spoken English was not good and at times he had difficulty expressing himself and interpreting the writer’s questions. Nevertheless, with being patient, [the applicant] was able to state that he accepted full responsibility for his offences. He was able to explain that the time of his offending he had been consuming alcohol to excess and had been stressed due the separation with his wife and poor finances and difficulties with meeting his mortgagee repayments. He noted at that time of his life he was also [using a prohibited substance].

4.2 [The applicant] displayed regret for his offences and says he has not used [this prohibited substance] since the time of his arrest, and he has curtailed his consumption of alcohol and only occasionally consumes alcohol.

…

5.1 [The applicant] advised that he met his new partner, [Partner A] after he was released from prison. He noted [Partner A] is [age] years and migrated to Australia with her family from [Country 2] many years ago. The writer notes that [Partner A] speaks. good English and was able to assist the writer at times when there was difficulty understanding [the applicant].

5.2 [Partner A] has recently given birth to a [child], now aged about [age]. Due to the nature of [the applicant] offences, Child Safety required that [Partner A] live separately to [the applicant]. [Partner A] is currently residing with her [parents] in Melbourne. She advised the writer by phone that she intends to remain supportive of [the applicant] and intends to remain in a relationship with him as she loves him. She also expressed confidence that [the applicant] will not re-offend. She indicated she is prepared to undertake courses to ensure she is able to protect her [child] from any harm.

6. Current Situation

6.1 [The applicant] currently resides in [City 1] and continues to work as a self-employed [occupation 1]. He states he has had no contact with his first wife or children since his arrest and does not know where they reside. He reports being in good physical health and as noted he no longer uses [the prohibited substance] and only consumes alcohol occasionally. He reported being depressed about being forced to separate from [Partner A] and his [child] and his potential to be deported to Serbia.

6.2 He noted he has no family or contacts in Serbia and no prospects of employment. He says all of his new partner’s family reside in Australia and as noted his parents and brother live in [Country 1].

6.3 He says he earns about $1000.00 per week after tax and desires to remain in Australia so he can be with [Partner A] and his [child]. He indicated that he would like to continue seeing the writer.

7. Psychological Treatment Progress

7.1 The writer has provided treatment to [the applicant] across 8 sessions between January and March 2021. [Partner A] attended several sessions on the request of the writer to assess her ability to provide support to assist [the applicant] from committing further offences and protecting her [child] from potential harm.

7.2 [Partner A] impressed as a strong assertive woman who was fully aware of [the applicant’s] sexual offences. She impressed as being loving and supportive towards [the applicant] and a person who would always place the welfare of her [child] above her partner’s needs.

7.3. The focus of treatment revolved around assessing if [the applicant] had an underlying entrenched sexual deviancy and providing treatment to address the factors associated with his offences as well as developing sexual offence relapse prevention strategies.

7.3 During treatment sessions the writer utilised a sexual offending workbook: Who Am I and Why Am I in Treatment (Longo, Bays & Sawyer, 2014).

7.4 In the context of treatment, the writer utilised acceptance and commitment therapy (ACT) as a way of dealing with problems as well as cognitive behaviour therapy and the Good Lives and Self-Regulation Models to Sex Offender Treatment (Yates, Prescott, & Ward, 2010). Additionally, there was a focus on assisting [the applicant] on recognising emotional states, fantasies, and thoughts in relation to viewing CEM. Between Sessions [the applicant] was required to complete assigned workbook tasks.

7.5 It is noted due to his poor speaking and written English skills he had difficulty with written assignments, but he did his best. The material he presented indicated he displayed an understanding of his risk situations and how to prevent relapse. The course of treatment included:

ØAssessment of deviance arousal patterns.

ØIdentifying risk factors.

ØRecognising the offending cycle.

ØUnderstanding how past, present, and future factors may contribute to offending.

ØThe impact on victims.

ØRecognising that computer images involve are real people and victims of abuse.

ØUnderstanding the link between deviant fantasies, fantasy escalation and viewing child pornography.

ØUnderstanding theories of child sexual abuse.

ØAntecedents of child sexual abuse and most effective treatment and problematic internet use.

ØModel for understanding internet sexual offending.

ØDeveloping empathy for victim of child sex abuse.

ØAlternatives to managing risk factors such loneliness, boredom, depression, and sexual arousal.

ØIssues related to collecting and hoarding images.

ØIssues related to emotional avoidance.

ØManaging depression.

ØDeveloping a model for change- preventing relapse.

ØStages of recovery; and

ØThe Good Lives Model for living a healthy and positive lifestyle.

7.6 Throughout the treatment sessions, [the applicant] was very cooperative and engaging. He completed tasks as required. A relapse prevention plan was developed. The relapse prevention plan included allowing his partner full access to his electronic devices and taking steps that would ensure he could not access all types of pornography including legal pornography.

7.7 In respect to strategies to prevent further sexual offending [the applicant] has covered all the relevant material based on best practice evidence.

101.   The Statutory Declaration made by [Partner A] provides materially as follows (corrected for grammar and spelling):

I am writing this declaration in support of my partner [the applicant’s name] whose permanent residency is considered for cancellation based on character grounds due to serious criminal charges he has served time for in the past. I would like you to please understand that if [the applicant] is deported you will be breaking up a family and taking a father away from his child,.who is a future Australian Citizen.

I am aware of all of [the applicant’s] previous criminal history and convictions for child pornography and indecent treatment of a child, as well as drug related charges. I know that our past shapes who we are in the present and future and in [the applicant’s] life his past and his ownership of this past have allowed for him and opportunity to change. He has been able to change who is he is as a person and create for himself a [better life].

[The applicant’s] time served in prison was spent. in reflection and ownership of his actions. It al­ lowed him to reconnect spiritually with his faith and also served as rehabilitation for his alcohol addiction that he may not have been as lucky to have had otherwise. We are both grateful for his withdrawal and abstinence from alcohol. Without this, [the applicant] and I may have never met and been given this chance in life we now have together.

[The applicant] and I met and fell in love not long after his release from prison last year in August 20'19when I was in [that state] on holiday. I then moved to [that state], from Melbourne, so we could be together, and we have been living together since September2019. We secured our first lease together and announced I was pregnant with our first child in [specified year]. Although [the applicant] has yet to meet my family, and I his family in person due to COVID-19 border and travel restrictions, we speak frequently via video and phone. My family have great admiration and respect for him and are overjoyed with the birth of our child [Child A].

On the advice of Child Safety, [the applicant] and I are currently living separately until reports are made available from his treating1psychologists about his risk of reoffending. I am a full time mother and the sole carer of our [Child A], born on [date]:

[The applicant] feels just as blessed as I with the newest member of our family. The court order stating he is only allowed supervised visitation has negatively impact us both greatly during such a joyous time. He has secured full time work to help with our financial security and is always sure we are both financially stable by sending us money often as well as small gifts and essentials for [Child A] knowing that it is hard for me to travel with her at such young age.

Apart from completing his Sex Offender treatment prog1ram with psychologist [Psychologist A] he is also enrolling into voluntary parenting related programs he has been suggested to through Mens Health Line and similar free services. He believes this will be useful for both self improvement- as a father, protector and our family's provider- and to pro­ vide me with me with parent specific support when the three of us are reunited.

Tribunal’s task

102.   The threshold for referral to the minister for “possible consideration” of the exercise of his powers, and the Tribunal’s sole task to determine in this context, is whether there exist ‘strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen’.

103.   Although uncorroborated, the evidence before the Tribunal is that the applicant’s children are Australian citizens.

104.   The Tribunal notes the contents of the material set out above; the Tribunal further notes that it does not have any direct evidence of the applicant’s current relationship with his children.

105.   Policy guidelines instruct that, per Australia’s obligations under the Convention on the Rights of the Child, where a decision involves the interests of a child, the best interests of the child ‘must be treated as a primary consideration’.[29]

[29] See also: Article 3, Convention on the Rights of the Child.

106.   Determining the ‘best interests’ of the applicant’s children in the current circumstances is a complex question, and the evidence before the Tribunal is inadequate to that task.  In any event the Tribunal is not a decision-maker of competent jurisdiction to make such a determination. 

107.   Prima facie, however, from the Statutory Declaration and the Forensic Psychologist’s Report, the Tribunal infers that a court of competent jurisdiction has in the past ordered that the applicant have “supervised visitation” with (at least) his youngest [child].  It may be taken that, in so ordering, the court treated the best interests of (at least) the applicant’s youngest [child] as a primary consideration. 

108.   The Tribunal notes also that the applicant has developed, to the satisfaction of [Psychologist A], “strategies to prevent further sexual offending”. 

109.   Whether either of these situations persist, in particular whether the interests of (at least) the applicant’s youngest [child] are still best served by his renewed, ongoing supervised visitation, is unknown to the Tribunal and outside of its jurisdiction to discover or decide.  However, the Tribunal is of the view that such a determination should be made.

110.   It follows that, in respect of the Tribunal’s task, and treating the bests interests of the applicant’s children as a primary consideration, the Tribunal is of the view that the whole of the applicant’s and the applicant’s children’s current circumstances should be assessed in the context of the Minister’s Guidelines, namely the risk of serious, ongoing, and irreversible harm and continuing hardship to Australian citizens, specifically his children.

111.   The Tribunal therefore refers the applicant’s case for the Minister’s consideration on this basis.

Damian Creedon
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…