FEDERAL COURT OF AUSTRALIA

Milosevska v Minister for Immigration & Multicultural Affairs [1999] FCA 1414

MIGRATION - refugee status - degree and type of treatment which warrants protection - persecution distinguished from risk of domestic violence and community harassment - state responsibility for alleged persecution considered

Migration Act 1958 s 5(1); 36(2)

Applicant & Anor  v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 Refd

Minister for Immigration and Multicultural Affairs v Ndege [1999] FCA 783 Refd 

Islam v Secretary of State for the Home Department [1999] 2 WLR 1015 Refd

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Refd

Thiyagarajah v Minister for Immigration and Multicultural Affairs  (1997) 143 ALR 118, (1997) 73 FCR 176 Approved

MLADENKA MILOSEVSKA v THE MINISTER OF IMMIGRATION AND MULTICULTURAL AFFAIRS

N 409 of 1999

KIEFEL J

15 OCTOBER 1999

BRISBANE (Heard in Sydney)

THE COURT ORDERS THAT:

1.         The application for review is dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

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.

1.         Threats by the husband as Persecution

8                     The threats by the applicant’s husband do not amount to persecution for a convention reason.  They are properly viewed, as the Tribunal held, as threats of harm made to an individual arising from their personal relationship with another person.  It arises out of their conflict and not “because of race, religion, nationality, political opinion or membership of a social group”, the latter being the Convention reasons (and see Applicant & Anor v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 258-9;  and Minister for Immigration and Multicultural Affairs v Ndege [1999] FCA 783, pars 42-44).  Domestic abuse of women does not itself provide refugee status:  see Islam v Secretary of State of the Home Department [1999] 2 WLR 1015, 1018.  The applicant’s claim to be a “woman at risk” and so to qualify do not properly arise in the case of an application for a protection visa Class AZ subclass 866.  It may arise with respect to an application for another visa (Refugee and Humanitarian (Migrant)(Class BA), subclass 204).  Even so, the criteria for such a visa refer to the danger of victimisation, harassment or serious abuse because of a woman’s sex, not because of conflicts in a personal relationship.

2.         Non-acceptance or harassment by the community

9                     The essential difficulty for the applicant was that the conduct which had been addressed to her by members of her community was in the nature of name-calling.  That would not qualify as persecution which, generally speaking, requires there to be inflicted some suffering or harm:  see Chan Ye Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 430-31.  The Tribunal used the applicant’s past experience, when she lived among the community and with her parents, as a strong indicator that it was not likely that she would be subjected to harm amounting to persecution in the future, an approach properly open to it.

3.         State Protection

10                  The aspect of the Tribunal’s reasons to which this enquiry is relevant is its consideration of the applicant’s concerns about conflict between Albanian and Macedonian groups.  In this respect the applicant might be seen to belong to a social group to whom action was directed.  The Tribunal did not determine whether it was likely that the applicant would be exposed to harm from an Albanian group, and what form it might take.  Rather it appears to have assumed the continuance of some such conduct, but determined that the applicant could rely upon protection from the authorities.  The concept of a refugee is based, in part, upon there being no protection by the State available to the person.

11                  The Tribunal’s finding that protection was available to the applicant was one upon which it had evidence.  Insofar as it also concluded that protection does not require an absolute guarantee from harm, the Tribunal reflected the view expressed by Emmett J in Thiyagarajah v Minister for Immigration and Multicultural Affairs  (1997) 143 ALR 118, 121 and I respectfully agree with it.  No error is shown in this approach.

Conclusion

12                  The application for review must be dismissed with costs.

Associate:

Dated:              15 October 1999