V94/02810 [1994] RRTA 1357 (28 June 1994)

Transcription

1 V94/02810 [1994] RRTA 1357 (28 June 1994) REFUGEE REVIEW TRIBUNAL DECISION AND REASONS FOR DECISION RRT Reference : V94/02810 Tribunal : John A. Gibson Date : 28 June 1994 Place : MELBOURNE Decision [1] : Application for a protection visa remitted pursuant to paragraph 415(2)(c) of the Migration Act 1958 ("the Act") for reconsideration with a direction that the criterion requiring the applicant to be a non-citizen in Australia to whom Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967, is satisfied. DECISION UNDER REVIEW AND APPLICATION This is an application lodged on 10 November 1994 for review of a decision made on 25 October 1994 refusing to grant a protection visa. The jurisdiction of the Tribunal arises by virtue of - (i) sub-s 414 (1) of the Act which requires the Tribunal to review an "RRT-reviewable decision" where a valid application is made under s 412; (ii) sub-s 411(1), which defines, in para (c), an "RRT-reviewable decision" to include a decision to refuse to grant a protection visa; and (iii) s 412, which prescribes the criteria for a valid application. I am satisfied that the jurisdictional requirements listed under paras. (i) to (iii) supra exist in this matter. BACKGROUND The applicant is a young man in his mid-twenties whose home is in Vukovar in the Eastern Slavonia region of Croatia now occupied by Serbian forces. It is within the Serb occupied area known as UNPA (United Nations Protected Area) East, part of the self-styled Serb Republic of Krajina. He is of mixed race parentage having a Serb father of the Orthodox faith and a Slovak mother who is a Roman Catholic. He was a university student at the xxxxxx University of xxxxxx, but for some time before his departure he was unable to travel there to attend lectures because he was a non- Croatian.

2 He fled from Vukovar in August 1991 and lived in with Slovak refugees in a town in Vojvodina for nearly two months and was registered with the Red Cross at xxxx xxxxxxxx. He arrived in Australia on a tourist visa in September 1991 and made an application for refugee status in February Country of reference I accept the proposition put by the applicant ( which I set out below ) as to the problematic status of Eastern Slavonia as regards its future re-integration into Croatia and the apparent determination of the Krajina Serbs to retain control of the area. This in no way affects the de jure status of the region as part of the Republic of Croatia. It is a completely false assumption to make that because the applicant prior to coming to Australia had lived and worked in Serbia for approximately one and a half months he had thereby availed himself of his rights as a Yugoslav national in Serbia. On any view of the facts the applicant was living as a refugee in Serbia having fled that part of the Republic of Croatia in which he used to live. At no time prior to the disintegration of the former Yugoslavia could it said that the applicant was a national of Serbia and Montenegro so he is not a citizen of the (present) Federal Republic of Yugoslavia (FRY). It seems that it would not be possible for the applicant to even become a citizen of FRY. A representative of the Canadian Embassy in Belgrade indicated that it is not possible for ethnic Serbs born outside Serbia or Montenegro to obtain citizenship from the Federal Republic of Yugoslavia (22 Apr. 1994). He indicated that since the break-up of Yugoslavia, most republics have enacted new citizenship laws (ibid). In the Federal Republic of Yugoslavia, the successor state of the former Yugoslavia, the citizenship law of the former Yugoslavia is still applicable (ibid.). The Canadian representative stated that individuals may apply to obtain citizenship, but their file usually remains inactive (ibid.).( Immigration and Refugee Board (IRBD), Ottawa, Canada, YUG17255.E, 21 April 1994) It is wrong to proceed on any basis other than that he is a citizen of the Republic of Croatia or that country is his country of former habitual residence. On any view it is Croatia which is the country of reference so far as this application is concerned. THE LAW On 1 September 1994 the Migration Reform Act 1992 (MRA), by amendment to the Act, introduced a visa known as a protection visa for people who seek protection as refugees: see s.36 of the Act. This visa replaces the visas and entry permits previously granted for that purpose. Section 39 of the MRA provides, in effect, that refugee related applications not finally determined before that date are to be dealt with as if they were applications for a protection visa. Accordingly, for the purposes of this review the Tribunal regards an applicant's primary application as an application for a protection visa.

3 The prescribed criteria for the grant of a protection visa are set out in Part 866 of Schedule 2 of the Migration Regulations (the Regulations): see s.31(3) of the Act and r.2.03 of the Regulations. It is a criterion for the grant of a protection visa that at the time of application the applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and either makes specific claims under the Convention or claims to be a member of the family unit of a person who is also an applicant and has made such claims: cl of Schedule 2 of the Regulations. It is also a criterion for the grant of a protection visa that at the time of decision the Minister is satisfied the applicant is a person to whom Australia has protection obligations under the Refugees Convention: cl of Schedule 2 of the Regulations. The remaining criteria for the grant of a protection visa are, generally speaking, that the applicant has undergone certain medical examinations and that the grant of the visa is in the public and the national interest: cl of Schedule 2 of the Regulations. "Refugees Convention" is defined by cl of Schedule 2 of the Regulations to mean the 1951 Convention relating to the Status of Refugees (the Convention) as amended by the 1967 Protocol relating to the Status of Refugees (the Protocol). As a party to both these international instruments, Australia has protection obligations to persons who are refugees as therein defined. The central issue for determination in this matter is whether or not the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Convention and the Protocol. Refugee defined In terms of Article 1 A(2) of the Convention and Protocol, Australia has protection obligations to 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

4 to such fear, is unwilling to return to it." (The five specified grounds are compendiously referred to as Convention reasons). Outside the country of nationality. First, the definition includes only those persons who are outside their country of nationality or, where the applicant is a stateless person, country of former habitual residence. The applicant in this case meets that requirement being outside his country of nationality. Well-founded fear. Secondly, an applicant must have a "well-founded fear" of being persecuted. The term "well-founded fear" was the subject of comment in Chan Yee Kin v. The Minister for Immigration and Ethnic Affairs(1989) 169 CLR 379 (Chan's case). It was observed that the term contains both a subjective and an objective requirement. "Fear" concerns the applicant's state of mind, but this term is qualified by the adjectival expression "well-founded" which requires a sufficient foundation for that fear (see per Dawson J at p396 ). The Court in Chan's case held that a fear of persecution is well-founded if there "is a real chance that the refugee will be persecuted if he returns to his country of nationality" (per Mason CJ at p389 and p398, per Toohey J at p407, and per McHugh J at p429). It was observed that the expression " 'a real chance'... clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring..." (at p389) and though it "does not weigh the prospects of persecution...it discounts what is remote or insubstantial" (p407); "a far fetched possibility must be excluded" (at p429). Therefore, a real chance of persecution occurring may exist "notwithstanding that there is less than a 50 per cent chance of persecution occurring" (at p389). "... an applicant for Refugee Status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted, (at p 429). The Full Federal Court (see MILGEA v Che Guang Xiang, unreported, 12 August 1994, No. WAG61 of 1994, Jenkinson, Spender, Lee JJ in a joint judgment, at p ) has recently stated: " According to the principles expounded in Chan the determination of whether the fear of being persecuted is well-founded will depend on whether there is a "real chance" that the refugee will be persecuted upon return to the country of nationality. A "real chance" that persecution may occur includes the reasonable possibility of such an occurrence but not a remote possibility which, properly, may be ignored. It is not necessary to show that it is probable that persecution will occur." The question of how far into the future it is proper to look when examining the question of whether an applicant's fear is "well-founded" were he or she to return to their country of origin is answered in the judgment of the Full Federal Court ( Black CJ, Lockhart and Sheppard JJ ) in the case of MILGEA and Paterson v Mok, 127 ALR 223. Sheppard J, with whom the other members of the Court agreed, said:

5 "I do not read into the evidence any question which puts the matter in the way it should have been put, namely as a matter to be considered in relation to the immediately foreseeable future." Persecution. Thirdly, an applicant must fear "persecution" or more accurately "being persecuted". The term "persecuted" is not defined by the Convention or Protocol. Not every threat of harm to a person or interference with his or her rights constitutes "being persecuted". The Court in Chan's case spoke of "some serious punishment or penalty or some significant detriment or disadvantage" if the applicant returns to his or her country of nationality (per Mason CJ at p. 388). Likewise, it stated that the "notion of persecution involves selective harassment" whether "directed against a person as an individual" or "because he or she is a member of a group which is the subject of systematic harassment", although the applicant need not be the victim of a series of acts as a single act of oppression may suffice (at p ) "...Harm or the threat of harm as a part of a course of selective harassment of a person, whether individually or as a member of a group subjected to such harassment by reason of membership of the group amounts to persecution if done for a Convention reason (at p.388)." In Periannan Murugasu v. Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 1987), Wilcox J said: The word "persecuted" suggests a course of systematic conduct aimed at an individual or at a group of people. It is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances. I agree with counsel for the applicant that it is not essential to the notion of persecution that the persecution be directed against the applicant as an individual. In a case where a community is being systematically harassed to such a degree that the word persecution is apt, then I see no reason why an individual member of that community may not have a wellfounded fear of persecution. The threat need not be the product of any policy of the Government of the persons country of nationality. It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution (at p430). The harm threatened may be less than loss of life or liberty and includes, in appropriate cases, measures "'in disregard' of human dignity" or serious violations of core or fundamental human rights "...persecution...has historically taken many forms of social, political and economic discrimination. Hence the denial of access to employment, to the professions and to education or the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society such as freedom of speech, assembly, worship or movement may constitute persecution if imposed for a Convention reason. "(at p.430-1) It appears from these passages that the High Court's view is that in some cases, infringement of social, political and economic rights will constitute persecution in Convention terms, while in other cases it will not. The Court did not set out any

6 guidelines by which the point such infringements become persecution could be determined other than the reference by Mason CJ to "some serious punishment or penalty or some significant detriment or disadvantage". In Minister for Immigration, Local Government and Ethnic Affairs v. Che Guang Xiang, the Full Federal Court said : Denial of fundamental rights or freedoms, or imposition of disadvantage by executive act, interrogation or detention for the purpose of intimidating the expression of political opinion will constitute persecution... Later on they stated: To establish whether there was a real, as opposed to a fanciful, chance that Che would be subject to harassment, detention, interrogation, discrimination or be marked for disadvantage in future employment opportunities by reason of expression of political dissent, it was necessary to look at the totality of Che's circumstances. Insofar as the first passage states that denial of fundamental rights and certain acts of a State done for the purpose of intimidation will, rather than may, constitute persecution, it may appear to go beyond what the High Court stated in Chan. However, the Federal Court was, of course, bound by Chan; furthermore, it expressly cited Chan as authority for its decision; it did not claim to be extending or questioning the concept of persecution enunciated in Chan; and it did not refer to any jurisprudence or policy considerations which might suggest that it was reconsidering the concept of persecution and intending it to apply to infringements of social, economic and political rights whatever the circumstances. If it was intending to disagree with Chan one would expect the Court to have stated this. I am therefore persuaded that the Federal Court in Che was not, after all, intending to modify or extend the concept of persecution endorsed by the High Court, but was simply restating the Chan test. The reference in Che to situations of denial of fundamental rights or freedoms, imposition of disadvantage by executive act, interrogation or detention for the purpose of intimidation, harassment, detention, discrimination and marking for future employment disadvantage must be read as a reference to such circumstances which satisfy the criteria set out by Mason CJ in Chan of amounting to a serious punishment or penalty or a significant detriment or disadvantage. Where these criteria are satisfied, then, there is persecution; but where they are not, there is no persecution. Date for determination of Refugee Status. Whether or not a person is a refugee for the purposes of the legislation is to be determined upon the facts existing at the time the decision is to be made. (see Chan, supra; Che, supra, at p.14) In the case of Mok, supra at p. 57, it was said that the court [in Chan] decided that the time at which the status of refugee was required to be held was at the time the determination was made.

7 In this regard, however, it is proper to look at past events and, in the absence of evidence of change of circumstances, to treat those events as continuing up to the time of determination ( see Chan, supra ). In some circumstances, a person who would have satisfied the definition before the change may no longer be eligible. In the case of Lek v MILGEA 117 ALR 455 (at pp ), Wilcox J. rejected a contention that Chan decided that the relevant date for considering [ an application for refugee status ] was the date of application, rather than the date of determination. His Honour did, however note the " High Court's emphasis [in Chan] upon the necessity to pay attention to the factors that gave rise to an applicant's departure from his/her country of nationality" (at p. 462 ). He stated that the correct methodology was to separate out " two logically distinct questions: whether the applicant had a continuing subjective fear of persecution on a Convention ground at the date of determination and whether that fear was objectively founded. [ The approach taken by the Department] addressed the second question by taking as the starting point the position as at the date of departure and asking whether the available evidence establishes that the position has since changed, so that the fear is no longer well founded even though subjectively continuing. In regard to the latter inquiry, and because of the practical problems noted by the High Court, there is in substance an onus of proof on those who assert that relevant changes have occurred" ( at p.463 ). These comments are entirely consistent with the observation of Mason CJ. in Chan that: "in the absence of facts indicating a material change in the state of affairs in the country of nationality, an applicant should not be compelled to provide justification for his continuing to possess a fear which he has established was well-founded at the time when he left his country of nationality" ( at p. 391). CLAIMS & EVIDENCE Personal statement-june 1992 "I arrived from Vukovar (Eastern Croatia) in September of last year. The town of Vukovar has been besieged by war for months on end, and this resulted in the destruction of my, and my family's, home. In fact the entire city. This is why I am seeking refugee status in Australia. I originally came to Australia as a tourist, [in September 1991], but as the war in my Motherland (the ex. Yugoslavia, now Croatia) escalated, I was forced to seek refugee status, here, in Australia in [February 1992]....Upon my return to Yugoslavia, airport officials would see that I was from Vukovar, confiscate my passport to stop me leaving the country, and send me to war.

8 My parents' application...were granted permanent residence. They have since moved to Australia to live with xxxxxxxx. Currently I have absolutely no-one to return to in Croatia or Yugoslavia. Therefore I cannot return to Vukovar, or Yugoslavia, because I fear that I will have to go to court regarding the fact that I have not participated in the war. Besides that, I have nowhere to live, and no-one to live with, in my home country. This will destroy any chances that I may have had, of continuing my studies, getting a job, and above all, leading a normal life." Letters of support from a State and a Federal Member of Parliament were lodged. Refugee application The applicant said that if he were to return he would be mobilised and forced to fight which he does not want to do. In addition, in the aftermath of the war life would be harder than ever, because of the deep hatreds provoked by the war. He would not be able to freely move about Croatia as his number plates would show he was from a Serbian controlled region. There was interference by Croat civilians with the ability to attend church by congregating in front of it and preventing the passage of church-goers. They were unable to celebrate Serbian national days because the Croatians considered this as traitorous behaviour. His family were forced to tolerate verbal abuse which had been sanctioned by the Croatian dominated police force. Members of the local Croatian Democratic Party(HDZ) marked the Croatian emblem on the street side of their house to make it known it was a Serb house. In seeking to go to university by car he faced the risk of having his car confiscated by Croatians at barricades in the predominantly Croat towns through which he passed. Instead be took the bus but on the first journey it was stopped by national guardsmen who told him and others that Serbs could not go through and sent them back on foot. The applicant tried and failed once more. Accompanying statement The applicant's reasons for his reluctance to return to Croatia are related to the current war, its consequences and the eventual peace which is impossible for a long time. In May 1990 the HDZ came to power. In Vukovar where there was a large majority of inhabitants who were Serbian the HDZ did not win. The majority of votes were achieved by the "Party for Democratic Change". This led to the government in Zagreb cutting economic support to the municipality. The Vukovar police station was relocated fully into Croatian hands in the nearby Croatian town of Vinkovci. He lived his entire life in a section of Vukovar called xxxxxxxxx, an area which xxxxcroatian to the point where there were only one or two house in each street inhabited by Serbians. All his friends were Croatians. Then all of a sudden he was

9 ostracised by the Croatians he had known and his family became isolated from people they had always been friendly with. From that time there were incidents such as stone throwing, breaking of windows, writing of Croatian symbols on and shooting at their house and telephone threats. He was no longer able to travel daily from his home to xxxxxx as he could not travel through "Croatian areas" due to barricades set in place controlled by local Croats. His girlfriend who was Croatian was able to freely continue her studies at the same university. Additionally, all exits from Vukovar without a certificate were prohibited ( a measure decreed by the armed Croatian civilian forces and members of HDZ). Serbs, particularly young males like him, were unable to obtain this certificate. He tried three times unsuccessfully to obtain it. The applicant was told by the person issuing them, whom he knew, that he was wasting his time as he would not get one. That person also told the applicant that in about two to three days he would be advised as to what part of xxxxxxxxx he would be required to defend as part of the Croatian war effort. At this stage he realised that it was unsafe to be spending nights at home so each night he slept at the house of an elderly Croatian, who remained a friend of the family, as he believed that no Croatian civilian forces or Guardsmen would come to his house as he was a Croat and elderly. Parallel to these developments, in all workplaces and law enforcement bodies, such as courts and councils, Serbs were replaced by Croatians. Openly there followed daily deliveries of weapons to xxxxxxxxx (as the Croatian stronghold) to a park close to the applicant's home, which were then distributed to the Croatian people. From that time on every night was full of detonations of bombs and shootings in the streets. Within a day or two they would learn whose restaurant or cafe had been blown away. The owners were invariably Serbian. After days of shooting at the front of their house the applicant helped his parents to move to a room facing the backyard. Then, after bombs were directed at Serbian inhabited houses including theirs, they moved with his grandfather into the cellar. On the fourth night in the cellar three grenades hit an apartment in the backyard where his grandfather had lived. Another hit a wall close to the cellar. The applicant's grandfather went out to find his home destroyed. His father was badly injured by shrapnel when he too went outside. Nearly a week later the applicant late at night managed to reach the shore of the Danube where with two women and their children he crossed over the river to the Serbian territory, from where he travelled to reach relatives in xxxxxxxx. His parents made a similar escape and his father was treated for his wounds in a hospital in xxxxxxxx. The applicant has been told by his parents that military police had been looking for him on two occasions in order that he join the war.

10 After three months of fighting, Vukovar fell to the Yugoslav National Army (JNA). His parents went to the city to find that their home had been completely demolished with no prospect of it being repaired. The applicant explained that there was an enormous difference between Yugoslavia and a country like Australia where one's religion, race or colour are not factors determining one's destiny. Interview-October 1994 The applicant said that the area he came from was not recognised as being part of Serbia although it was under Serb control. The applicant claims that if he was to return to Serbia he would be forced to return to Vukovar and would be forced to join the army. There is nothing there for him now as his home was destroyed during the fighting and his parents are now permanent residents of Australia. He explained that there was a difference between those people who fought in the Serb forces from the beginning of the conflict in 1991 and those who joined towards the end. He agreed with the proposition that something would happen to him because he was not there at the beginning of the war to join the army. He would be asked where he was at the beginning of the war, what he did and why he came back. The applicant claims that if he was to return to Serbia he would be court martialled because he did not want to take a weapon at the beginning of the war. He did not respond to two call up notices (because he was in Australia). These were served on his parents while they were apparently living near xxxxxxxx before they were granted permanent residence in this country. Those Serbs who had left Vukovar were expected to go back and fight on the border with Croatia. He said that he couldn't take up a weapon against Croats as all his friends in the area where he grew up were Croats. Also he could not take up a weapon against Serbs as his father is a Serb. It was a really difficult situation to decide on which side he had to fight. They lived so many years together in peace and everything was good. The applicant was concerned about desertion because he did not want 'to take a gun'. He was told several times that he must participate in the war against his fellow countrymen meaning the Serbians. The Croats said that he had to join their army. Because he was a truck driver in his regular army service he was told that he had to do this again if something happened. On the basis of information from relatives, he said that no one had rebuilt the town because they could not be sure it would remain under Serb control. There is always shooting near the town of Vukovar and the nearby town of Vinkovci which is just fifteen kilometres away and is the border between Croats and Serbs. The Serbian authorities want to send ethnic Serbs back to Vukovar, despite the fact it is destroyed, so as to re-populate it and increase the chance of it staying in Serbian

11 hands. There are now only 5000 people compared with a pre-war population of inhabitants. If they did not want to go back they would be sent to Bosnia. The applicant claims that if he was to return he would be forced to "fight in the front line" in Vukovar or in Bosnia. He mentioned the case of Serbs from Vukovar who had been forced to fight with the Bosnian Serb army although they were from Vukovar. He fears being put in the front line of action in Vukovar, by either the Serbs or the Croats. He is afraid that he will treated as similar to Croats because he did not want to help Serbia. This is because of his parents' mixed marriage, his father is Serb (Orthodox) and his mother Slovak (Catholic). He does not know on which side he should go. Only persons whose both parents are Serb can be married in Vukovar at the present time. This is a ruling of the Serbian authorities. The applicant claims that if he was to return he would not be able to practice his religion (the applicant has joined the xxxxxxxx church since coming to Australia). Applicant's letter-october 1994 If there was a war against another country he would accept the obligation to go to war. But where there is a civil war as in Former Yugoslavia in that situation one cannot apply an obligation to serve. If there was an obligation on Croatians to fight for Yugoslavia ( by implication against its enemies) there would be millions of deserters since they do not want to fight for Yugoslavia's interests. Submission-February 1995 The discussion in Hathaway's book ( at pp ) concerning the nature of those human rights which come within a States basic duty of protection was quoted from. In accordance with the inalienable and basic individual rights espoused in the preceding passage it is apparent that the applicant is an individual who deserves protection as a refugee. The Handbook On Procedures and Criteria For Determining Refugee Status (Geneva, 1992), at para 105 states: Once a stateless person has been determined a refugee in relation to 'the country of his former habitual residence', any further change of country of habitual residence will not affect his refugee status." In August 1991 the applicant was recognised as a refugee by the Red Cross. Documentary evidence was lodged in the form of certified translations of a Personal Identity Card issued by the Red Cross atxxxxxxxxxx and a certificate stating that he was recorded there as refugee from Vukovar. As a citizen of the of the former Yugoslavia, which no longer exists, the applicant is technically stateless.

12 Further, because of his ethnic and geographical origins he has no right to citizenship in the independent states which was established following the disintegration of the former Yugoslavia. The primary 'Decision Record' correctly states, the applicant's country of birth was Yugoslavia (1.1 Personal Particulars). This was, the former Yugoslavia. The Department case officer has then found that the applicant citizenship is "As for country of birth". This is not possible. the applicant's country of birth, the SFRY no longer exists. the applicant, should therefore have been assessed as a stateless refugee. However, the Department instead assessed his application against the Federal Republic of Yugoslavia (FRY), which the case officer refers to as 'Yugoslavia'. Subsequently, the case officer then states, "his claims relating to Croatia are therefore irrelevant"(3. Summary of Claims). Such factual errors and incorrect findings indicate a failure by the case officer to understand fundamental aspects of the complex issues pertaining to refugee claims from the Former Yugoslavia. The applicant was born in the city of Vukovar in the Former Yugoslav Republic of Croatia, and lived in Vukovar. This is evident in his passport, a passport from the Socialist Federal Republic of Yugoslavia (SFRY). His parents are of mixed ethnic background. His father, who was born in the Vojvodina region of the former Republic of Serbia, is of Serbian ethnicity. His mother, who was also born in Serbia, is of Slovakian ethnicity. His father resided in the former Republic of Croatia from the age of eleven, his mother from the age of fifteen. His parents are now permanent residents in Australia, having been granted a xxxxxxxxxxxxxxx xxxxxxxx, in the xxxxxxx xxxxxxxxxx xxxxxxxx xx xxxxxxxxxxxxxxxxx of the Former Yugoslavia. The applicant was a national of the Republic of Croatia and a citizen of Yugoslavia, the SFRY. He is not a citizen of the present FRY. The case officer, however, repeatedly referred to the applicant as a citizen of FRY. The applicant, while probably not having a house to return to, is a Yugoslav citizen and as such is afforded the protection of the Yugoslav/Serb authorities and has the ability to travel to and settle in another part of Serbia or Montenegro. According to the information it would not be possible for the applicant to even become a citizen of FRY... The applicant did reside temporarily in the Republic of Serbia after being displaced from his home. The case officer refers to this period in FRY;... prior to coming to Australia he had lived and worked in Serbia for approximately 1 and a half months indicating that he has already availed himself of his rights as a Yugoslav national in Serbia. The applicant has indicated that he lived and worked in Serbia during the time that the war was at its height. There is no indication that he suffered any adverse reactions, discrimination or persecution at this most unsettled period of time in Serbia. In arriving at this finding the case officer has made unacceptable errors. The applicant is not a Yugoslav national. He was a national of the former Republic of Croatia. In

13 July 1991 the applicant successfully completed the second year of his xxxxxxxxx degree at the University of xxxxxxxx. In August 1991, the applicant fled to Serbia to escape from the siege of Vukovar. He fled because he was a victim of ethnic cleansing in a city where he had lived his entire life. He fled because he and his family had been singled out for persecution by the ethnic Croatian residents of Vukovar. Their lives were threatened, their home desecrated by racist graffiti, shot at and bombed. His father was seriously wounded by a grenade attack when he moved out of their makeshift bomb shelter (a rear bedroom) because he believed that the applicant's grandfather had been wounded in their backyard. The applicant escaped from Vukovar in a boat along the Danube River. He fled to his elderly grandmother's home in the village of xxxxxxx in the Vojvodina, about xxxxxxxxxxx kilometres from the city of Vukovar. In August 1991 the applicant registered with the xxxxxxxxx branch of the Red Cross at xxxxxxxxxxx as a displaced refugee from Vukovar. As a registered refugee with the Red Cross, the applicant was issued with a personal identity card giving him access to public health and transport until he departs the region. On xx xxxxxx 1991, the applicant was issued with a visa to travel to Australia. On xxxxxxxxxx the applicant arrived in Australia. It took the applicant approximately a month and a half to arrange his departure from the former Yugoslavia. During this period he was a displaced refugee from Vukovar where he had suffered the brutal persecution of ethnic cleansing. As a refugee, his life was extremely difficult. It was not a fulfilling or acceptable life as indicated by the Department. On 21 November 1991 the battle for Vukovar ended. The Serbian victors permitted some women to visit their former homes. the applicant's mother, found their home utterly destroyed by bombs and fire, as was the rest of the former city. In considering issues relating to the possibilities of relocation in the independent states of the former Yugoslavia it is important that the Tribunal accepts the following UN Paragraph 104 A stateless person may have more than one country of former habitual residence, and he may have a fear of persecution in relation to more than one of them. The definition does not require that he satisfies the criteria in relation to them all. (UN Handbook) The applicant has no legal right to return to FRY. If though, as the Department has indicated, he did return to this foreign country of FRY, he would be persecuted. He was a national of the former Republic of Croatia and is of Slovakian ethnicity. As a resident of the area of Vojvodina, which is infamous for the mistreatment of its ethnic minorities, the applicant will be unable to avoid persecution. This persecution is based on his experiences prior to departing Serbia and the continued abuse of his grandmother and other relatives of the region. The applicant would become a victim of the Serbian efforts to establish a nation identified by race and religion. The result has been an effort to create a state with political and geographic boundaries that encompass populations homogenous in their national/religious backgrounds. This has led to the application of 'ethnic cleansing', similar to that suffered previously to the applicant in Vukovar. In Vojvodina this cleansing has been intense. It has encompassed forced dislocations, appropriations of

14 homes, verbal abuse, physical brutality, and discrimination. In Vojvodina the day to day struggles of the ethnic minorities is beyond the power of the state to control; at times the State even instigates or actively colludes with such activities. In Vojvodina the Slovak community is particularly vulnerable to persecution. The community represents only three percent of the population of Vojvodina. As a relatively small minority, the Slovaks do not attract the degree of attention of other larger minority groups in the media or from international organisations. It therefore does not receive the same degree of support or international protection as other larger minorities. The Slovaks may not be a prime target of hostile Serbian media reporting. However they are still subjected to the same persecution through ethnic cleansing as other larger minorities. The reasons for cleansing other larger ethnic minorities, such as the Croats and the Hungarians are the same as those faced by the Slovaks. A report from the Australian Embassy in Belgrade states that the Slovaks are not politically prominent, and therefore not subject to serious discrimination. (Cable BG61224, Balkans Conflict: Refugee Applications, 31/12/1993). As such a small community the Slovaks could not attain a significant political prominence. However, a low political profile is no protection from ethnic cleansing, which is based on ethnicity, not political prominence. In Vojvodina the Slovaks are considered by ethnic Serb nationalists as a threat to 'Greater Serbia'. The applicant's claims of persecution as a former Croatian national and an ethnic Slovakian from Vojvodina are supported by considerable evidence. Serbian paramilitary groups, with the apparent blessing of local, provincial and republican governments, continued to terrorise and forcibly displace Croats, Hungarians, Slovaks and others in Vojvodina,... (Helsinki Watch, 'Yugoslavia' Human Rights Watch World Report 1994, p.255)..serbian refugees, with the active assistance of the regime and extreme nationalist paramilitary groups, terrorised non-serbs and children of mixed marriage in a systematic campaign to drive them from their homes. The refugees then occupied the abandoned dwellings. Human Rights Watch/Helsinki Watch has documented cases in which armed civilians and paramilitary forces expelled Croats, Hungarians, Slovaks and others from many villages and towns in Vojvodina,.. Helsinki Watch, Abuses continue in the Former Yugoslavia:Serbia, Montenegro and Bosnia Hercegovina May 1994, p.5) Serbian paramilitaries, with the apparent blessing of local, provincial and republican governments have been terrorising and forcibly displacing non-serbs from areas within Serbia. This campaign has been particularly intense in the region of Vojvodina, where Serbian paramilitary forces have expelled Hungarians, Croats, Slovaks and others..." Helsinki Watch Human Rights Abuses of Non-Serbs in Kosovo. Sandzak. and Vojvodina. July 1993, p.5 The applicant has no right of citizenship or even entry to FRY. It is therefore necessary to assess the applicant's claims against his 'country of former habitual residence'.

15 Determining this quite fundamental matter of "the country of former habitual resident" in the Applicant's case is particularly important because of the fact that he originates from and lived all his life in Vukovar, which used to be within the territory of the former Republic of Croatia but which is now within the Serbian-controlled territory claimed by the Serbian "Republic of Krajina" but formally under United Nations protection (in UNPA Sector East). A crucial question therefore arises as to which country should be used as a reference point regarding his claims as to persecution if he were to return: whether it should be as the primary decision-maker assumed - the independent Yugoslav Republic (i.e. areas where the Applicant has never lived, has no relatives or connections) or the disputed self-declared Republic of Krajina area (which is more precisely "the country" of his former habitual residence, if it is a country at all). The fate of Krajina is at the time of writing entirely unsettled and is in a volatile situation. The Krajina Republic's declaration of independence in 1992 has not been recognised internationally, although elections were held there for a Krajina parliament in December 1993 ("Bosnians claim ground gains", The Canberra Times, 14 December 1993, p 6). While a cease-fire between the warring Serb and Croatian forces on the Croatian border of Krajina has been in force for less than twelve months (since early April 1994), it can scarcely be said to have weathered the test of time or to have settled anything at all with regard to the ownership or status of Serbcontrolled territory. On the one hand the Republic of Croatia continues to view the UNPAs as part of its own territory (see "Croatia, Krajina in peace accord", The Australian, 31 March 1994, p. 6); yet the "ethnic cleansing" which has forcibly moved Croatians out of the areas under Serbian control would seem to make any reintegration of these areas into Croatia highly problematic. On the other, Krajina Serbs are determined to stay independent and current fighting in Bosnia seems intent on establishing a "greater Serbia" by means of a Serbian-held corridor linking Serbia proper through Bosnia to the Serbian Krajina areas. These facts would indicate that in any peace negotiations which attempted to settle new border lines in this troubled region there would be strong Serbian resistance to "giving up" Krajina territory (see analytical news reports such as "Mladic's men pursue old dreams of territorial expansion", The Age, 26 April 1994; "Bluff Called", The Economist, April , pp47-8; "NATO fears new Bosnian flashpoint", Sydney Morning Herald, 2 May 1994, P. 12). Presently the strained ceasefire in the Krajina has reached a critical point. On the 31 March 1995 the Croatian President, Franjo Tudjman,[indicated that he] will expel the UN forces from the Krajina. This is reinforced by the Croatian Prime Minister, Nikica Valentic: What the United Nations is doing in Croatia is maintaining the status quo, actually providing aid to the Serbs through giving oil and food to them. Under such circumstances, we cannot agree to a renewal of the mandate. ( The Age 13/01/95) The FRY government has clearly indicated that it is prepared to go to war to protect the interests of Serbs in the Krajina. We take Tudjman's threats seriously and if the Krajina Serbs are really threatened, of course we will intervene to help them - we'd have no hesitation.... I hope the Croats

16 don't think that we are more concerned about the blockade than our brothers. The Age 20/01/1995 p.7 The consequences for the applicant are that the main reference point "country of former habitual residence" for his claims is the self-styled Republic of Serbian Krajina. This region is on the verge of erupting into full scale war. In assessing the applicant's country of former habitual residence it would not be reasonable to expect him to relocate to the area under the control of the independent Republic of Croatia. On the one hand, he is not a citizen of the independent Croatia and currently has no formal status there he is simply a displaced person of Croatian background from the Krajina area. On the other, even though freedom of movement and freedom to choose a place of residence is theoretically allowed in independent Croatia, in practical terms the country is absolutely awash with over half a million displaced persons like the applicant himself, is on a wartime footing and is labouring under huge internal difficulties and disruptions. People cannot simply relocate in such circumstances: the normal source and structures of accommodation, employment, financial support simply do not exist. The applicant would be a displaced person in a refugee camp. The circumstances of those in such refugee camps need to be taken into account. Displaced or relocating people without locally resident relatives to rely on currently seeking refuge in Croatia live generally under extremely harsh and insecure conditions, billeted in refugee camps set up in unsuitable official buildings, dependent on foreign aid or family remittances (e.g. UN Special Rapporteur's sixth periodic report on the Situation of Human Rights in the Territory of the Former Yugoslavia, February 1994, para 100: "The number of refugees and displaced persons has created serious humanitarian problems and constitutes a major burden for the social system of the [Croatian] State. The humanitarian situation in Croatia remains difficult because of inadequate housing, as well as lack of food, fuel and hygienic materials. During the last mission of the Special Rapporteur to Croatia, he visited refugee centres and discovered that the living conditions...were very difficult"). The applicant has strong grounds for refugee status on the basis of his fear of persecution for being a 'deserter' and a 'draft evader'. He is in the desperate situation of being a deserter from military service from both the independent Republic of Croatia and the FRY. Yet, he is not a citizen, nor a former habitual resident of either country. On two occasions in Vukovar, whilst in the midst of being ethnically cleansed, he was called over the radio by his oppressors to serve their military forces. Since residing in Australia, he has been issued with two 'callup' notices from the FRY Army, which were received by relatives in the Vojvodina. First, it is a gross injustice to conscript a registered refugee, who has sought political asylum in a country to serve into a nation's military. In assessing this application we request that the United Nations Convention with regard to deserters and persons avoiding military service be considered and paragraph 168 of the Handbook. Hathaway states:...there is a range of military service which is simply never permissible, in that it violates basic international standards. This includes military action intended to violate

17 basic human rights, ventures in breach of the Geneva Convention standards for the conduct of war, and non-defensive incursions into foreign territory. Where an individual refugees to perform military service which offends fundamental standards of this sort, 'punishment of desertion or draft evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution'. J. Hathaway The Law of Refugee Status pp In one sentence the primary decision maker has concluded that "there is no evidence to indicate that any action at all will be taken against the applicant" and that "any action is unlikely to amount to more than a jail sentence."... [The applicant] holds grave fears of mistreatment in a Serbian prison if it is found that he is a deserter, is from Croatia and is of Slovak ethnicity. Detention for the applicant would be persecution. The UN Handbook at Paragraph 168 recognises prosecution for desertion as persecution in circumstances such as the applicant's. Therefore, a jail sentence will be persecutory. The UN Handbook elaborates on persecution for deserters and draft-evaders in paragraph There is considerable evidence to support the applicant's fear of being severely punished because of his race-slovakian, religion-catholic, nationality-croatian (formerly), membership of a particular social group-displaced refugee group, political opinion- democratic. There is considerable evidence of punishment being imposed disproportionately on deserters and draft evaders from FRY. In practice, a disproportionate number of those who have been prosecuted for refusing service in the military have been members of certain ethnic and religious groups, in particular Muslims, Slovaks and Hungarians. (UN Special Rapporteur, Mr Tadeusz Masowiecki, Sixth Periodic Report on the Situation of Human Rights in the Territory of the Former Yugoslavia' 21/02/1994 p.23) Members of ethnic minorities were badly treated in the armed forces where they were viewed with suspicion and often outright hostility. (US Department of States 'Country Reports on Human Rights' Serbia/Montenegro 1993) Within the province of Vojvodina, which remains part of the FRY, conscription has been a controversial issue for the Hungarian minority. While reports differ, Hungarian representatives have charged the government with recruiting disproportionately large numbers from their community to compensate for the shortfall in conscripts from republics that have left the federation. A leading member of the Democratic Community of Vojvodina Hungarians has recently revealed information, reportedly provides by the Yugoslav presidency, which indicates that Hungarian recruits account for 16 percent of the YPA (Yugoslav People's Army) although the Hungarian minority represents only three percent of the FRY's population. (Research Directorate of the Documentation, Information and Research Branch of the Immigration and Refugee Board Croatia and the Federal Republic of Yugoslavia (FRY): Military Service September, 1992 pp. 8-9)

18 Our impression, from evidence available, is that prosecutions for desertion would be much harsher for minority groups in Serbia, such as the Muslims, Albanians, Hungarians, and Croatians or perhaps those of mixed parentage than for those who are perceived to be distinctly Serbian by language and by religion. (DFAT 16/12/1993) Where the applicant has provided clear details as to dangers he would face if forced to return to Vukovar it is incumbent on the decision maker to give this information absolute primacy. Hearing The applicant appeared at the hearing and gave evidence predominantly in English. On a couple of occasions my questions and his response were translated by a Serbian interpreter. The applicant served the first part of his national service in xxxxxx in Macedonia. He was the only person from Vukovar in his intake but there were people from other parts of Croatia and Slovenia. It was the policy that you could not go to the same republic where you lived to do national service. In these six months the applicant did his recruit training and then specialist training as a xxxxx and xxxxxxxxxxx which included mechanical matters. The second six months of service were spent in xxxxx in Serbia. He enlisted in September 1988 after finishing high school He was asked his attitude to military service at that time. He replied that everyone at that age was immature and influenced by society. Everybody did it and it was something which was quite normal. Since then he has developed an objection to war because he knows he has lost a year which can not be regained. He could have spent that year doing something better. However, military service was compulsory; if you did not want to go there was a penalty in the form of prison for between five to ten years. It was also service for Yugoslavia, not for Serbia or Croatia. National service was about defending Yugoslavia from outside attack. All the ethnic groups within Yugoslavia did their national service. The various incidents in 1991 which he mentioned earlier happened to his family because it was identified as Serbian since his father was a Serb. After his escape from Vukovar the applicant lived with some distant relatives in a small village called xxxxxxx which is xxxx Slovak in composition xx kilometres from Vukovar and about the same distance from xxxxxxxx. In the time he was there he took the opportunity to collect documents and an application from so he could come to Australia. He also registered as a refugee with the Red Cross in xxxxxxxx in order to get financial support. His parents arrived in Vojvodina a week after him. Two days after the applicant left for Australia military police from the JNA came during the night to the house where he had been living with his parents in xxxxxxxx. His mother was told that they had obtained the applicant's address from the Red Cross and they wanted to know where he was because he was required to serve in the army. The applicant believes he would have been taken away to fight at the front in Vukovar straight away. Friends and acquaintances from Vukovar who had left before him and were living in different parts of Vojvodina where they had relatives were taken back