Hasani v Minister for Immigration & Multicultural Affairs

the applicant's claims and the Tribunal's decision 2 The applicant's claims to refugee status are summarised and its findings are set out at pp 4-14 of its reasons for decision dated 9 November 1999. I set out below some edited portions of those pages. The editing comprises certain deletions. The deletions include about five pages of extracts from country information reports. "CLAIMS AND EVIDENCE The applicant's claims are set out in written submissions to the Department, an interview with an officer of the Department, written submissions to the Tribunal and oral evidence given to the Tribunal on Friday, 15 October 1999. . . . The applicant is a twenty eight year old man of Albanian ethnicity from Peje (also known as Pec) in Kosovo. He claims that he fled his home town on 5 May 1999 as a result of the ethnic cleansing that was occurring and was being led by the Serb forces. He claims that he fled to Albania. From there he eventually made his way to Italy and then to Australia via South Africa. He used an Italian passport that was fraudulent. The applicant claimed that his father joined the Kosovo Liberation Army (KLA). He does not know of his whereabouts. He claimed that his father has been killed but his father's body has never been recovered. The applicant himself however did not join the KLA and believes this will cause him problems if he returns. He also believes that whoever killed his father could kill him. On 5 May 1999 he claims that he could not find his family but gathered with some friends and left for the town of Decan on the border. When he arrived in Albania he lived in a big camp. He heard that his whole village had been destroyed by the Serb forces. He does not know where the rest of his family is. He looked for them when he was in the camp in Albania but was not successful in locating them. The applicant eventually made his way to Australia. He has a cousin here who provided a letter stating that the applicant is from the part of the family that resided in Kosovo. His cousin comes from Albania. In response to information that 800,000 people had returned to Kosovo the applicant stated that he had no family there and his house had been destroyed. He stated that he cannot imagine life back there. He stated that no one can prevent the killings. People are seeking revenge. The applicant provided articles about objections by Albanians to Russians being involved in the peace keeping force and about anti-Russian protests. In relation to country information that the Russians in the peace keeping force are not siding with the Serbs, the applicant stated that in history the Russians and Serbs are brothers. This is why the Albanians were protesting about the Russians. The applicant's adviser made submissions at the hearing. He submitted that the Tribunal needed to consider the fluidity of the situation and the real danger on the ground. This included considering difficulties that KFOR had in providing protection and the hundreds of years of animosity between the Russian troops and Albanians. After the hearing the adviser provided a written submission on 2 November 1999. It repeats the applicant's claims in relation to his Albanian ethnicity and his father's membership of the KLA. It submits that the applicant also fears persecution from the KLA for reasons of an imputed political opinion because he failed to become an active member. It also submits that the peacekeeping forces are unable to provide protection for the applicant. The submission includes a medical report from Mr Paul Skerritt, Psychiatrist. It states that the applicant is suffering from Post Traumatic Stress Disorder or from a common mixture of anxiety and depressive symptoms. The submission also provides press reports about a peacekeeper being killed, a call from the UN High Commissioner for Human Rights of 4 August 1999 calling for an end to violence, two reports of further violence and a report of a Bulgarian UN employee being shot. FINDINGS AND REASONS The Tribunal accepts that the applicant is an Albanian from Kosovo. It accepts that he departed in May 1999 in the context of the upheaval that occurred at that time. It accepts that his father was involved in the Kosovo Liberation Army, has disappeared and may have been killed. It also accepts that the applicant was separated from his family at the time of his departure. However the Tribunal is required to assess the applicant's claim to refugee status at the time the decision is made (Minister for Immigration and Ethnic Affairs v Singh (1997) 142 ALR 191) and since the applicant's departure there has been significant change in the situation in the area from which he comes. In addition to the country information provided by the applicant and his adviser about the current situation in Kosovo, the Tribunal considers the following country information about the current situation relevant. On 25 June 1999 Reuters Business Briefing produced the following article entitled NATO's Commander In Kosovo Urges Serbs To Stay: [Article not reproduced] In relation to Albanians returning to Kosovo, UNHCR provided the following information on 4 August 1999 in a document called Kosovo emeregency update as at 4/8/99: [Document not reproduced] On 16 August 1999 Reuters Business Briefing made the following comments about the Serb exodus in an article by Philip Smucker in Pristina headed UN chief threatens KLA over Serb exodus: [Article not reproduced] In relation to the applicant's claims about the Russian troops in his area, Reuters Business Briefing on 7 September 1999 in an article called Russians shoot three Serb gunmen dead by Kurt Schork states: [Article not reproduced] In an article For embattled Serbs, living with Albanians may mean living apart by Daniel Williams also in Reuters Business Briefing on 18 September 1999 the following appears: [Article not reproduced] The conclusion that can be drawn from this country information is that a large number of Albanians have returned to Kosovo with the assistance of international agencies. It can also be concluded that the Russians are playing their part in the peace keeping force and are not siding with Serbs. It can also be concluded that it is now Serbs and Gypsies who are under siege in this area. As a result of this information the Tribunal does not accept that the applicant is at any risk of persecution on account of his ethnicity from the Russian troops in Kosovo. It is also apparent that there is still considerable violence in Kosovo. The articles submitted by the applicant refer to peacekeepers being killed or injured, calls for an end to violence and an article about Albanians heading through a Serb area and a director of Kosovo Express being kidnapped and released by an Italian peace-keeper. The Tribunal has no doubt that instances of violence will continue. However the evidence above indicates that Albanians have returned on mass to Kosovo and that the peacekeeping force, whether Russian or otherwise, is providing protection. Whilst it is possible to find instances of Albanians being harmed the preponderance of evidence indicates that it is Serbs and Gypsies who are now at risk in Kosovo. The High Commissioner for Human Rights in a statement provided by the applicant's adviser refers to Serbs and Roma continuing to suffer grave violations. In the Tribunal's view, given the presence and size of the peace keeping force and the exodus of Serbs from Kosovo, it is impossible to conclude that the applicant faces a real chance of persecution in Kosovo now as a result of his Albanian ethnicity. The Tribunal also does not accept that he is at any risk of harm because he did not join the Kosovo Liberation Army. His father did and it appears may have lost his life. However the KLA is being disarmed and a role is being sought for it in the new situation. The Tribunal has seen no evidence that the KLA has any interest in pursuing people who may not have joined whether out of fear of being killed, being opposed to its methods or for any other reason. The Tribunal is therefore satisfied that the applicant does not face a real chance of persecution because he did not join the KLA or because of any imputed political opinion of support for the Serbians. The Tribunal also does not accept that whoever killed the applicant's father will come after the applicant seeking retribution. There is no real evidence as to how the applicant's father died, let alone whether he is dead or not. If he died during fighting between the Serb forces and the KLA, even if he was well known to the Serbs, the Tribunal would consider it most unlikely that they would know who it was that they killed or that this would lead to the applicant being targeted. If he was killed in some other way by Serbs then again there is no evidence that such people would be after the applicant for revenge. As stated above a UN peace keeping force is now present in Kosovo. It is also apparent that large numbers of Serbs have left Kosovo. Whilst the Tribunal accepts that the situation on the ground is fluid, ninety percent of the Albanian population has returned and Serbs and Gypsies are the ones who at present are facing problems. The Tribunal is satisfied that the peace keeping force will remain in Albania for some considerable time to come and at least until it is safe for them to leave without the prospect of Albanians facing renewed threats of persecution from the Serb authorities in Belgrade. In these circumstances the Tribunal is satisfied that there is no real chance that the applicant will face persecution because of his father's involvement in the KLA, his failure to be involved or for any other reason. The Tribunal is satisfied that there is no real chance that the applicant will face persecution because of his ethnicity, his religion, any political or imputed political opinion or for any other Convention reason. As far as the applicant's claim that he will be the target of spontaneous revenge killings by Serbs, again the Tribunal notes that a large part of the Serbian population has left, large numbers of Albanians have returned since a peace keeping force arrived and Serbs have become the target of violence. As a result the Tribunal does not accept that there is any real chance that the applicant will become the target of revenge from Serbs in general. The Tribunal accepts the contents of the medical report. It is conceivable that the applicant may have problems with depression and anxiety as a result of his experiences in May 1999 in Kosovo. However nothing in the report affects the Tribunal's view that the situation that exists now in Kosovo is entirely different from that in May 1999. There are no doubt many thousands of Albanians from Kosovo who are experiencing similar symptoms. However whilst the report backs up the applicant's claims that he was traumatised in May 1999 when he left Kosovo, the Tribunal is satisfied that there is no real chance he will face persecution for a Convention reason should he now return there. Taking all of the applicant's claims into account both individually and cumulatively the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason." 3 From the above it can be seen that the Tribunal accepted that the applicant was an Albanian from Kosovo and that he departed in May 1999 during the upheavals which occurred at that time. The Tribunal also accepted that the applicant's father was involved in the Kosovo Liberation Army ("the KLA"), had disappeared and may have been killed and that the applicant was separated from his family at the time of his departure. 4 It then considered the applicant's claim to be at risk of persecution on account of his ethnicity. Specifically, in the light of country information, it rejected his claim that he was at any risk of persecution on account of his Albanian ethnicity from the Russian troops in Kosovo. Furthermore, the Tribunal found that, given the presence and size of the peace-keeping force and the exodus of Serbs from Kosovo, it was impossible to conclude that the applicant faced a real chance of persecution in Kosovo as a result of his Albanian ethnicity. 5 The Tribunal then considered the applicant's claim that he was at risk of harm because he did not join the KLA. The Tribunal referred to the fact that his father had joined that army and appeared to have lost his life. The Tribunal noted that the KLA was being disarmed and a role was being sought for it in the new situation in Kosovo. The Tribunal, for reasons which it gave, stated that it was satisfied that the applicant did not face a real chance of persecution because he did not join the KLA or because of any imputed political opinion of support for the Serbians. 6 Finally, the Tribunal considered the applicant's claim that those who killed his father would "come after him". For the reasons which appear in the last few paragraphs set out above, the Tribunal expressed its satisfaction that there was no real chance of the applicant facing persecution because of his father's involvement in the KLA, his (the applicant's) failure to be involved or for any other reason.

my reasoning 9 I do not think that the evidence discloses any error of law on the Tribunal's part. In its reasons the Tribunal referred to the criteria for a protection visa and to decisions of the High Court of Australia and this Court which explain what constitutes a refugee. It is clear that the Tribunal well understood the task in hand. It can be seen to have understood the "real chance" test and to have applied that test to the facts found by it. 10 The Tribunal made extensive reference to country information. Most of that information was dated within a few months of the Tribunal's decision. Some of that information was older, but the Tribunal understood that its task was to assess the situation as at the date of its decision. It is not true to assert that the Tribunal failed to focus on the applicant's individual circumstances. A fair reading of its reasons shows that it did so. Furthermore, as I have mentioned, the Tribunal accepted virtually all of the applicant's factual claims. There was not the slightest degree of hesitation in the Tribunal's conclusions. In that situation, in my view, it was not obliged to speculate and ask itself "what if I am wrong?" - see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576.

At a glance

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Before

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Judgment (13 paragraphs)

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Legislation Cited (1)

Cases Cited (2)

Cited By (1)