Milosevska v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant is a citizen of the former Yuglosav Republic of Macedonia. She arrived in Australia on 20 June 1997 and on 26 February 1998 lodged an application for a protection visa. She brings an application to review the decision of the Refugee Review Tribunal dated 15 April 1999, affirming the decision of the delegate not to grant a protection visa. The Tribunal determined that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention, as amended by the Protocol relating to the Status of Refugees (see subs 5(1) and subs 36(2) Migration Act 1958). Article 1A(2) of the Convention defines a refugee as any person who: "… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." 2 The applicant was born in Macedonia in 1972. She is an ethnic Macedonian of orthodox Christian faith. She commenced to live with a Muslim Albanian man when she was 16 and he later became her husband. She joined him in Denmark, where he was a resident, when she was 18. Her husband was at that time married to another woman and had done so in order to stay in Denmark. The applicant later married him, after the birth of their son. The applicant returned to Macedonia to apply for a divorce and it would appear from the reasons of the Tribunal, that at some point during this time she lived with her parents. She says however that she was rejected by the community for having married a Muslim. Her husband came to Macedonia, kidnapped her son and returned to Denmark with him. The applicant says that the police did nothing, despite her complaints. She later obtained a divorce and custody of her son through the Macedonian courts, but the Danish authorities would not enforce the order. 3 The applicant said that she believes her husband now lives in Macedonia and that she fears returning there as he will kill her. He has threatened to kill her on a number of occasions. She does not believe the police would help her. If she were to return to Macedonia she says that she could not live with either with the Macedonian or Albanian communities. Her neighbours will not talk to her because she was married to an Albanian and they would call her a "whore". She points also to the conflict between Macedonians and Albanians as relevant to the risk to her. 4 The Tribunal had independent evidence in the nature of a country report on human rights practices in Macedonia for 1997, from the US Department of State. It confirmed the existence of a parliamentary democracy, although it reports complaints from minority groups about their ability to secure effective representation and bias against them. It said that the government generally respects the human rights of its citizens; the judiciary is generally independent, although the courts may be inefficient and slow. The municipal police forces are responsible to the Ministry of the Interior. Freedom of speech and opposition by political groups are tolerated without reprisal. It is reported however that "violence and discrimination amongst women remain problems" and that "violence against women, especially in the family setting, is common". It points to the patriarchal nature of both the Muslim and Christian communities, the lack of representation and advancement for women, and that there is not equal opportunity for some parts of the female ethnic Albanian community for employment and education, due principally to traditional or religious constraints. 5 The Tribunal concluded that the claim to the status of refugee based upon threats from her ex-husband and the failure of the police to assist her did not amount to persecution. It accepted the difficulties existed and her fears as genuine, but considered that it was a personal matter between two individuals and not one giving rise to international protection obligations. The Tribunal found no independent evidence to support the applicant's claim, inferentially, that she might be treated differently by the police because she had been married to a Muslim. She had had recourse to the legal system and encountered no discrimination from it. The difficulty of enforcement of the custody order was, in the Tribunal's view, a matter of international law and did not relate to any alleged persecution in Macedonia. 6 Whilst the Tribunal accepted that there are, and could be, clashes between ethnic Albanian and Macedonian groups it had no independent evidence to suggest that the Macedonian government would not protect its citizens or that it allowed any such attacks to go unpunished. Even if the Macedonian state could not guarantee the absolute protection of its citizens from harm, it was committed to do so and had the means available. There was no independent evidence to suggest that the applicant would not have effective protection on her return to Macedonia in the reasonably foreseeable future. 7 In relation to the treatment by her neighbours and her lack of acceptance by the Macedonian or Albanian community, the Tribunal did not accept that being called names was amounted to persecution. It pointed out that upon her return to Macedonia from Denmark she lived with her parents and there was no claim that anything happened to her. It was therefore not accepted that were she returned to Macedonia, there was a real chance of either community harassing her to such an extent that it would amount to persecution. There was no independent evidence to suggest that as an ethnic Macedonian divorced from a Muslim she would not obtain the assistance of the Macedonian police force or obtain redress with respect to any wrong-doing by her husband from the courts.