1506667 (Refugee)

[2018] AATA 5414

1506667 (Refugee) [2018] AATA 5414 (22 November 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1506667

COUNTRY OF REFERENCE:                  Albania

MEMBER:Peter Vlahos

DATE:22 November 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 22 November 2018 at 10:10am

CATCHWORDS
REFUGEE – protection visa – Albania – particular social group – persons involved in a blood feud caused by political or religious differences – no current threats – claims not supported by country information – conflicting evidence – decision under review affirmed

PRACTICE AND PROCEDURE – Federal Court dismissal – further protection visa application – failure to submit requested evidence

LEGISLATION
Migration Act 1958 (Cth), ss 35, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

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 dependant.

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 Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Albania, applied for the visa on 7 November 2013 and the delegate refused to grant the visa on 17 April 2015.

3. The applicant appeared before the Tribunal on 8 November 2018 to give evidence and present arguments. The applicant provided no new submissions making additional claims nor did he provide details of any witnesses he wished the Tribunal to hear and to take evidence from.

4. The applicant was represented by legal representative or registered migration agent at the hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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, the applicant 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.

6. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly 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.

8. 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 a protection 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 the applicant 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’).

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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.

10. The issue in this case is whether Australia has protection obligations in respect to the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of nationality and identity

11. Based on copies of the applicant’s passport, which was provided to the Department of Immigration and Border Protection[1] (the ‘Department’) and to the Tribunal at the hearing, the applicant’s oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Republic of Albania and his claims have been assessed against that country in relation to ss.36(2)(a) and 36(2)(aa) of the Migration Act.

    [1] Department of Immigration and Border Protection File no.[number] Folio no. [77]

12. On the basis of the above-mentioned evidence, the Tribunal further accepts the applicant’s identity as claimed being that of a national of Albania.

13. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to material referred in the delegate’s decision. The applicant provided a copy of the departmental record of decision to the Tribunal with the review application.

    The applicant’s background and migration history

14. The applicant is [an age] year old Albanian man who claims to have been born in [Village 1] just outside [Town 1], Albania. The applicant applied for a [student] visa on 1 September 2008. This visa was refused on 26 November 2008 because the applicant was found to have submitted fraudulent documents in support of his application. The applicant subsequently applied for a further student visa on 7 April 2009 which was granted and the applicant arrived in Australia on [date] July 2009 as the holder of a [student] visa.

15. This visa ceased when the applicant lodged a Protection visa on 30 June 2010.

16. The applicant’s first Protection visa was refused on 22 August 2011. The applicant then applied for review of that decision through this Tribunal’s predecessor, the Refugee Review Tribunal (RRT). The RRT affirmed the refusal on 13 March 2012. The applicant then applied for judicial review which again resulted in the refusal decision being upheld on 19 June 2013.

17. On 16 July 2013, the applicant applied for Ministerial Intervention, this was refused on 18 July 2013. The applicant remained unlawfully in Australia from 17 July 2013 until 9 August 2013. The applicant again applied for Ministerial Intervention on 9 October 2013, which was refused on 18 February 2014.

18. Due to the Federal Court decision of SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71, the applicant was deemed able to make another further Protection visa application, which was lodged on 6 November 2013.

    The applicant’s claims for protection

19. The applicant’s claims can be summarised as follows:

    §Before the applicant left Albania to come to Australia, one of his cousins was shot by a member of [Family A]. This was due to a political and religious dispute.

    §His family is now involved in a blood feud with [Family A] in Albania.

    §He claims that blood feud has not abated with time and has continued down generations.

    §He fears that he will be killed by members of [Family A] as a result of this blood feud if he is to be returned to Albania.

20. The Tribunal read to the applicant the applicant’s claims for protection as he had submitted to the Department as the basis for his claim for a Protection visa and asked the applicant was there any other claims he would like the Tribunal to consider in this review hearing. The applicant stated that he had no other claims to make except for those already submitted.

    EVIDENCE AT THE HEARING HELD ON 8 November 2018

    Background

21. The applicant stated that he was born in a small village named [Village 1] which is situated outside the main city of [Town 1]. He also told the Tribunal that his parents (mother and father) are still living in the village but his brother is currently in [Australian City 1] and in immigration detention because he has ‘…issues with his visa…’

22. The applicant stated that his father is [age] years of age but in bad health and his mother is [age] years of age. He also told the Tribunal that his parents have not encountered any issues with other persons attempting to do harm to them.

23. The applicant told the Tribunal that he had completed a Bachelor [degree] from [Town 1] University in 2007.

    When did the applicant arrive in [City 1]?

24. The applicant stated that he arrived in Australia on [date] August 2009 in [City 1], after having lived for a period of time in [City 2, Australia].

    Is the applicant currently employed?

25. The applicant told the Tribunal that he is not currently working. He is currently receiving assistance from friends and is ‘…living with his cousin…’

    On what visa subclass did the applicant arrive in Australia?

26. The applicant stated that he arrived in Australia on a student visa. It was the applicant’s intention to ‘…study [specified field]…’ and completed his [course] in June 2010. After his studies were completed, the applicant told the Tribunal that he worked for a period of time as a ‘…[occupation]…’ and then applied for a Protection visa in 2010.

    Why did the applicant apply for a Protection visa?

27. The applicant said that he feared that he would ‘threatened…’ and ‘harassed…’ if he was to return to Albania.

    What was the reason or reasons for the applicant’s fears?

28. Albania, according to the applicant’s explanation to the Tribunal was ‘…then…’ a difficult place for ‘…religious freedom…’ He was targeted by the ‘…[Family A]…’ who were ‘…very strong …’

29. The ‘…problem…’ according to the applicant that he faced in Albania was caused by the applicant’s cousin who had some arguments with members of [Family A]. The applicant’s cousin and the applicant and his family being applicant’s family being ‘Roman Catholics’ and [Family A] being ‘Muslims…’

30. According to the applicant, an argument erupted between his cousin and a member of [Family A] ‘…at school…’ and ‘…his cousin was shot…’ However, even though the cousin had been shot, he survived his injuries.

    Had anything happened to any family member following the incident between the applicant’s cousin and members of [Family A]?

31. The applicant told the Tribunal that nothing had happened since the first incident. There had been no reprisals against the remaining family members in Albania in his absence. These disputes according to the applicant did not involve ‘old people…’ like what had remained and was currently living in his village but the ‘…young…’ members of the families and the young (according to the applicant) had left the village. The applicant’s cousin had left Albania and was now ‘…living in [another country]…’ with other members of his family.

    Was the feud political or religious?

32. The applicant told the Tribunal that ‘…no one knows the feud’s real cause…or whether it is religious or political…’ The applicant went on to tell the Tribunal that in his opinion, the feud had not ‘…really gone away…’ even though his father and other persons living in the village linked to the applicant’s family had not been harmed.

    Why was the applicant fearful of returning to Albania?

33. The applicant said that he could not tell the Tribunal how he would be affected if he was to return to Albania and if he lived in [Town 2] or [Town 3] and not in his village or [Town 1]. The applicant went on to say that there ‘…were threats made against him while in Australia in 2010-2012…’ These threats were relayed to his parents – telling them that the applicant and his cousin and the applicant’s brother should not return to Albania.

34. The applicant confirmed for the Tribunal that no family member still living in Albania had suffered any threats or harm since 2012.

35. The applicant then made a reference to an ‘incident happening… in [Town 1]…a month ago and in [Town 3]’ that was feud-related and was asked by the Tribunal if he could submit the press reports about these incidents to the Tribunal. The applicant told the Tribunal he would provide this evidence to the Tribunal by email.

    Can the applicant explain in detail when this feud between him, his brother and cousin and [Family A] begin?

36. The applicant told the Tribunal that at the time the incident occurred all concerned were ‘…just kids…’ The applicant also told the Tribunal that the local police did not intervene.

    What was the applicant’s opinion of the situation currently in Albania?

37. The applicant said that it was his opinion that ‘…Albania was getting better…’ By this comment, the applicant told the Tribunal that ‘…people [in Albania] are better off…’ Also, the issue of law and order and the combat of criminals (according to the applicant) was ‘…getting better now…’ The applicant said that if he was to return to Albania he would ‘feel concerned …’ and ‘…feel alright…’

38. Again, the applicant was reminded by the Tribunal that his evidence was that no attack had occurred since the applicant’s father was warned in 2012. The applicant explained to the Tribunal that if an attack was to occur it would occur on younger members of the family not on the elderly.

    If the applicant returned to Albania would members of [Family A] find him?

39. The applicant said that he would live ‘somewhere else…’ He even would consider ‘…not returning to Albania…’ if he was sent back to Albania. The applicant went on to tell the Tribunal that if he returned to Albania he would have to ‘…find a job…’ and ‘…he might be perfectly fine in any place other than [Town 1]…possibly in [Town 3]…’

40. The applicant was of the opinion that ‘…he could not tell the Tribunal with any certainty what would happen if he chose to return to the city of [Town 1]…’ He told the Tribunal ‘…I could live there and nothing would happen …I do not know…’ However, the applicant expressed little confidence that the police would provide protection to him if he requested their intervention if he fell victim to a feud-inspired attack.

    Concluding comments by the applicant to the Tribunal

41. The applicant told the Tribunal that in 2013, he had married an Australian citizen but has no children. The applicant was requested by the Tribunal to provide a copy of the marriage certificate and proof of his wife’s Australian citizenship. The applicant was provided with seven days to submit further evidence and documents concerning his wife’s citizenship and proof of his marriage to Australian citizen.

42. It is noted by the Tribunal that an opportunity was provided to the applicant to provide copies of documents as proof of his (1) marriage to an Australian citizen and (2) his wife’s  Australian citizenship [refer to paragraph (35)].  He was provided with a period of seven days from the date of the hearing to submit these documents. As at the writing of this decision, the applicant had submitted no copies of documents to the Tribunal as were requested.

    COUNTRY INFORMATION – ALBANIA – BLOOD FEUDS

43. In considering the issue of blood feuds in Albania, the Tribunal accessed country information which indicated that blood feuds are rare and on the decrease in Albania. The Tribuanl noted the UK Home Office country information and guidance from 204 and in particular version 3.0 of October 2018, which suggests that the Albanian government has made significant efforts to combat the issue of blood feuds, in the form of legislative, organisational and operational measures. Also, the report states that it is unlikely a person would be able to establish a need for international protection as result of a blood feud and only if the reach and influence of the opposing clan involved is extensive.[2]  

    [2] “Country Information and Guidance- Albania: Blood feuds” UK Home Office, October 2018.

44. After carrying out research and field visits, the British Embassy in [Town 3] wrote in February 2016:[3]

    ‘Given this range of Embassy sources and external [sources], it is possible to judge that Blood Feud in Albania is extremely limited in both numbers of actual cases and in geographic allocation… Field visits by embassy and FCO staff have established through interviews with police, prosecutors, NGOs and religious organisations that the scale of “blood feud” is very limited by comparison with the misleading reports produced in support of asylum claims in the UK and elsewhere. A recent 2015 OSCE [Organisation for Security and Cooperation in Europe] report drew similar conclusions: that the scale of the issue was very limited.’

    [3] Letter from British Embassy, Tirana, to COIS, 17 February 2016,

45. The British Embassy further noted that blood feuds are ‘…largely restricted to remote pockets in the mountain north of the country…’[4]

    [4] Letter from British Embassy, Tirana, to COIS, 17 February 2016

46. The British Embassy also stated:[5]

    ‘Statistics about the numbers of people affected by blood feud vary greatly. At one end of the scale are certain NGO’s with vested interests in inflated numbers, who claim that more than 1000 families are affected. At the other end, local units of the State Police tend to estimate the lowest numbers. Most interlocutors, including from the NGO groups interviewed, suggested that the figures of local prosecutors were likely to be the most accurate. These figures are toward the lower end of the spectrum, slightly higher than police records, but much lower than some of the more outlandish NGO estimates. Prosecutors, we were told, have the most accurate numbers because any judgement issued by an Albanian court can be verified through the Prosecutor General. Regional prosecutors have access to this information. Indeed, the prosecutor for the Shkodra district offered to share such data with UK agencies through an MoU which would allow for requests to be processed in a manner consistent with Data protection laws. All interlocutors suggested that the incidence of blood feud is declining.’

    [5] Ibid

47. The United States Department of State’s Country Report on Human Rights Practices for 2017 (USSD HR Report 2017) stated, ‘Alleged incidents of societal killings, including both “blood-feud” and revenge killings, occurred during the year, but as of August authorities had reported only one case of a blood-feud killing.’[6]

    [6] USSD HR Report 2017, Section 6, 20 April 2018:

48. The Cedoca report 2017 stated:[7]

    ‘An OSCE-representative stated that blood feud remains an issue in Albania: “As long as one family member remains, some people might keep doing it. And there are still victims seeking justice. The thing is not fading away here.” However, all of Cedoca’s interlocutors agree that the number of people affected by blood feud is gradually decreasing. The Albanian State Police stated that, according to their current registers, 60 families in total are suffering from blood feud (nearly all in the north). These families altogether count 143 individuals, including 40 children.

    ‘At the Regional Police Directorate in Shkodër it was stated that in 2016 there were 68 confined families registered in the Shkodër region: Shkodër municipality (61 confined families), Vau i Dejës municipality (3 confined families), Malësi e Madhe municipality (4 confined families), Fushë-Arrëz and Pukë municipalities (0 confined families). The representative at the police directorate remarked that “some of these 68 families have gone abroad or have moved inside Albania”.

    ‘Still, according to the representative at the Regional Police Directorate in Shkodër, there are another 122 families who are in blood feud but not confined in the Shkodër region. He claimed that these families move freely. Shkodër municipality counts 74 families, Vau i Dejës municipality count 20 families, Malësi e Madhe municipality 28 families and Fushë-Arrëz and Pukë municipalities have none. Still, according to the representative at the Shkodër Regional Police Directorate, there are currently 15 children who are not attending school because of blood feud. He also remarked that there are 13 families who reconciled in 2015-2016. ‘Nearly all of Cedoca’s non-governmental contacts referred to police statistics when asked about the number of people currently involved in a blood feud. Rasim Gjoka’s AFCR does not count more than 50-55 families (121 persons) affected by blood feud. His information is based on the work of his network of mediators who are in contact with the local police and public institutions in the Shkodër region.

    ‘According to Rasim Gjoka, there are also improvements regarding school attendance […]. A few years ago there were “not more than 100 children who did not go to school because of blood feud, even though the media reported figures exceeding 2000. Currently the number is reduced to 20-22 children who are not going to school because of blood feud.” […] ‘At the Prosecutor’s Office, the statistics on families who suffer from blood feud are based on a field study from 2013-2014. During this field study, officers from the Prosecutor’s Office visited 200 families in the district of Shkodër who were known to be in a conflict for a murder case after the 1990s. Out of these 200 families, 25 families agreed to report to the authorities. Those 25 families consist of 30 persons and are confined.
    ‘[…] Apart from the figures published by the Committee of Nationwide Reconciliation (CNR) in 2016, which are significantly higher than all other figures, all other records show that the phenomenon is gradually decreasing.

    The Ombudsman said he trusts official figures rather than NGOs’ or people’s general opinion. Alfred Koçobashi argued that “figures are very low compared to some NGO figures” because those NGO’s “try to increase this number to gain money for their activities”.’

    State protection

    The law

    [7] Cedoca, COI Focus, Section 4.1, 29 June 2017: type="1">

49. The Albania Penal Code states under Article 78/a that murder committed due to blood feud shall be punished by not less than 30 years or life imprisonment.

50. Pursuant to Article 83a, serious threat of retaliation or blood revenge, against a person for him to be locked up at home, shall be punished by three years’ imprisonment. Under Article 83b, inciting other persons to retaliation or blood revenge, when it does not constitute other criminal offence, shall be punished by up to three years imprisonment.[8]

    Police initiatives

    [8] Criminal Code of the Republic of Albania: >

    The Cedoca report 2017 stated, ‘Interventions by the authorities (police and Prosecutor’s Office) have become another possible characteristic of contemporary blood feuds.[9]

    [9] Cedoca, COI Focus, Section 3.7, 29 June 2017

51. The Cedoca report 2017 further noted:[10]

    ‘The Vice-Minister of Internal Affairs declared to Cedoca that – generally speaking – the authorities are nowadays closely monitoring the known cases of contemporary blood feuds and that the phenomenon is largely under control. “Since 2013 it is not an issue anymore. People feel safer. If the police receive a request for protection, they deal with it.”

    ‘[…] The General Director from the Albanian State Police claimed that the police have made a lot of efforts to end the blood feud phenomenon since the National Action Plan no. 1277 (dd. 24/10/2012) “On the prevention, tracking and fighting criminal acts of murder motivated by blood feuds”. He claimed that nowadays “each officer knows what to do”. He explained that a good cooperation has been established between the police and several other organizations (the Prosecutor’s Office, the municipalities, Ministry of Education, Ministry of Social Affairs, etc.) and that this cooperation facilitates quick interventions and arrests.

    ‘The representative from the Shkodër Regional Police Directorate referred to the National Action Plan 419 (which is the updated version of National Action Plan no. 1277) against blood feuds. He highlighted that nowadays different police structures (local police, intelligence officers, wider police structures) are permanently collecting and updating all relevant information with regard to known blood feuds in their area: “We are updating our information all the time now.” The same source in Shkodër explained that a network has been set up that comprises stakeholders from outside the police forces (religious leaders, community leaders, actors from local governments, social services, etc.) with whom there is a constant exchange of information. He particularly stressed that lines of communication have been established as well between the police forces and the blood feud affected families themselves: “All the affected families presently know their neighbourhood police officers. They have their phone numbers and they have the general emergency numbers. The affected families understand now that the support coming from the
    police is safer for them.”      

    ‘The representative at the Shkodër Regional Police Directorate explained in more detail that his police officers are supervising the situation of the 68 confined families in the whole region of Shkodër by “contacting them, patrolling regularly and supervising their houses”. He stated that “local field officers are ordered to approach them regularly and to stay in contact with them.” He also claimed that his officers try to “mitigate, mediate and soothe down” those blood feud affected families who are not living in confinement.’

    [10] Ibid

52. The Cedoca report 2017 further stated:[11]

    ‘Apart from controlling and monitoring, the police also claimed to actively contribute to the prosecution of citizens who are involved in blood feuds. Both police sources claimed that as soon as there are serious indications of an imminent crime (e.g. a threat) or that a crime was committed, these elements are transferred to the Prosecutor’s Office for investigation and prevention.

    ‘Lastly, both police sources explained their strategies to prevent new blood feuds. “When a murder has occurred, the damaged families are immediately monitored proactively in order to prevent that a blood feud will develop. The dynamics of a case are supervised now. We are trying to collect as much information as possible in order to identify elements that indicate the preparation of a revenge killing.”’

    The Police - effectiveness

    [11] Cedoca, COI Focus, Section 5.1, 29 June 2017

53. The Cedoca report 2017 also noted conversations with interlocutors who commented on police effectiveness:[12]

    ‘During its fact-finding mission, Cedoca met two experts who expressed strong doubt that the police is capable of controlling, monitoring, preventing and prosecuting the contemporary blood feud phenomenon: Operazione Colomba and Elsa Ballauri. Although they agreed that the police is accessible nowadays and that the police is “at least” hearing the citizens and that they are taking complaints now, they stressed that there are still very important issues of negligence and ineffectiveness at the heart of the police forces. They claimed that the police could do their investigation work much better. “Sometimes the suspects in a contemporary blood feud case are arrested immediately after an incident but what follows is a deficient investigation and the suspects are released again.”

    ‘However, multiple other non-governmental sources confirmed that the police forces have renewed and strengthened their attention to the phenomenon of contemporary blood feuds and have also acknowledged its effectiveness and impact on the decrease of the phenomenon:

    ‘The local representative of the national ombudsman declared that in the past blood feud cases were not investigated at all. They were considered normal. But, according to this source: “the presence of the law has very much advanced nowadays. In the last 5-6 years the law and order were re-established. Closed cases have been re-opened and potential blood feud cases are treated with particular attention, even in the remote areas. If something happens, the police will intervene nowadays. Police is eager to solve issues, to resolve disputes. If a dispute arises, the police will act for sure. The police will start a process of investigation and arrest those who pose a threat. They will not leave it like that. There is less space for taking the law in their own hands or for thinking of impunity. Even people in remote areas tend to go to the police station now or denounce to the prosecution office instead of taking the law into their own hands.” […] An appeal court judge in Shkodër confirmed that nowadays the police have the data of all the families that are involved in a blood feud. She explained that when a murder has been identified as a potential blood feud case, the police will search for family members who could be involved.

    ‘The mayor of Fushë-Arrëz confirmed that the police is present and that they will intervene whenever they are called: “People don’t have to protect themselves anymore since the police is there now.” He gave the example of a funeral in the beginning of 2017. After the last survivor of a blood feud affected family who resided in the village had died, his children were able to come from abroad to attend the funeral thanks to close police protection. The mayor also stated that the local police is now trying to collect all possible information and data in order to know every person in his municipality who might be affected by blood feuds and threats. But the mayor also pointed at some very concrete shortcomings that are still jeopardizing effective police protection: “The infrastructure and logistics of the police in my commune remain deficient. Sometimes I even have to lend them my private car.” He ALSO also indicated that the salaries of the police officers are too low to guarantee maximum efficiency. Nevertheless, there is some improvement: “the salaries have risen and the police are more mixed. Police officers are brought in from other places as well. This way they are not too closely connected when something happens.”

    ‘Mentor Kikia confirmed that the police forces have identified all the families who are in a blood feud (“Government and police know the cases of isolated persons now.”) and he agreed that it is possible now for citizens to reach the police for protection: “Each affected family has a list of phone numbers in case a problem becomes urgent. They can always call. The police will come and intervene, even if a family lives far away.” Kikia also acknowledged that there is a real improvement in the registration of complaints, but he warned that a complaint is sometimes too vague for the police to react swiftly. He also explained that nowadays a police officer should have the courage not to register a complaint or to ignore received information in cases where the public uses the media because they feel that their requests and complaints are not answered. He agreed that the blood feud phenomenon has decreased since the state and the police are more powerful. He concluded that “you cannot be ‘in blood feud’ anymore like that. You want safety and you will reach for the police nowadays. When someone is a target, it is in his interest to have it registered.” Liljana Luani confirmed that the police directorate has the right data now and she repeatedly declared that the local police department is always ready to help her and her mission. Other sources like professor Gjuraj, the OSCE representatives, Luigj Mila and Rasim Gjoka have unanimously declared that the functioning of the police forces is not problematic anymore even if improvements should be made in efficiency. They all confirmed that the police forces try to identify all the blood feud cases; that they are more professional now in registering complaints and information and that they will try to intervene when the life of citizens is threatened because of a blood feud…’

    [12] Ibid

    FINDINGS AND REASONS

54. First, the applicant’s claim was that a ‘blood feud’ arose because of his cousin was ‘shot’ by members belonging to [Family A]. This happened when all of those involved (including the applicant) were at still very young and at school. The applicant’s cousin, who was the victim survived. What followed was a situation where both sides over the years (according to the applicant) attempted to take revenge on each other. However the applicant provided no examples to the Tribunal of instances where attempts were made to injure or kill the applicant, his cousin or other members of his family. These alleged threats caused the applicant’s cousin to flee Albania and in time, the applicant and his brother came to Australia. The Tribunal does not accept the applicant’s claim that a blood feud existed between his family and [Family A] as credible. The Tribunal noted that the applicant’s evidence about the alleged ‘blood feud’ was lacking in substance and detail. The applicant was asked to explain why this blood feud arose in the first place. The Tribunal was told that the dispute was between two families – the applicant’s family being ‘Roman Catholic’ and the assailants being ‘Moslems’. When asked by the Tribunal to explain what caused this dispute, the applicant’s response to the Tribunal’s question was to provide a vague response stating that it was a dispute that was both ‘political and religious.’ No other detail was forthcoming from the applicant in order to clarify what he meant.

55. Second, the applicant claims that the ‘blood feud’ had not abated with the passage of time and has continued for ‘generations’ and because of its non-abatement he had a well-founded fear of being persecuted by [Family A] members if he returned to Albania. The Tribunal does not find the applicant’s claim of fear of persecution as credible. From what the applicant told the Tribunal, the applicant remained in the same area where his village was situated and later went on to complete his studies for a Bachelor’s [degree] at [University]. In that considerable period of time not one member of his family was intimidated, harassed, threatened or killed. Indeed, if a blood feud had ‘not abated’ as the applicant claimed, why was no direct assault made upon the applicant while he remained in Albania and not in strict confinement?  Moreover, while absent from his village and in Australia, the applicant claims claims that his parents were given a warning to be passed on to the applicant and his brother in 2010-2012 not to return to Albania because his life and his brother’s would be in the balance. Again, a curious warning given to members of a family supposedly involved in a ‘blood feud’ which had ‘not abated’ for ‘generations’ – a warning communicated to the applicant eight or six years ago. The Tribunal does not find or accept the applicant’s explanation of a ‘blood feud’ existing and not having ‘abated’ as truthful and considers it as having been proffered by him in evidence before the Tribunal as an embellishment of the truth.

56. Reference should be made here, to the country guidance case of EH,[13] where the UK Upper Tribunal found that whilst there remained a number of active blood feuds in Albania, they were few  and declining in numbers (see paragraph [74 (a) of the Tribunal’s decision]. The Upper Tribunal in EH also set out the following factors which need to be considered when determining if an active blood feud existed (see paragraph [74 (f)]):

    i.The history of the alleged feud, including the notoriety of the original killings, the numbers killed, and the degree of commitment by the aggressor clan toward the prosecution of the feud;

    ii.The length of time since the last death and the relationship of the last person killed to the person;

    iii.The ability of members of the aggressor clan to locate the person if returned to another part of Albania;  and

    iv.The past and likely future attitude of the police and other authorities towards the feud and the protection of the person claiming to be at risk, including any past attempts to seek prosecution members of the aggressor clan, or to seek protection from the Albanian authorities.

    [13] [2012]UKUT 00348 (IAC)

57. The Upper Tribunal in EH found that in order to establish that there is an active blood feud affecting the person, he or she must establish the following (see paragraph 74(g)):

    i.His or her profile as a potential target of the feud identified and which family carried out the most recent killing ; and

    ii.Whether the person has been, or other members of his/her family have been, or a currently, in self-confinement within Albania.

58. The Upper Tribunal in EH found that where there is an active feud affecting an individual and self-confinement is the only option, that person will normally qualify for refugee status (see paragraph 74(e)).

59. In comparing the applicant’s situation as he has presented it to the Tribunal in his evidence, the Tribunal does not find that the applicant’s situation comes close to the factors which the Upper Tribunal determined as appropriate for a person to be deemed with refugee status as a result of an ‘on-going blood feud’. The Tribunal notes that the applicant was not an actual on-going target. He was not located and threatened nor was any member of his family so targeted and threatened. He lived in Albania for a considerable period of time (completing his studies at University) not in confinement, but out in the open and his family continued to live openly and at peace in their village. Therefore, the Tribunal finds that the applicant’s did not have a well-founded fear of persecution at the hands of members of [Family A] if he was to be returned to Albania because of an on-going ‘blood feud’ as he claimed.

60. Based on the evidence and information available to it, the Tribunal does not accept that there is a real chance that the applicant will attract the adverse attention of any persons on the basis of any on-going blood feud or because of his relationship with his cousin or any other member of his family in Albania or currently overseas due to their involvement in any blood feud or ongoing dispute with the [Family A] as claimed. Having regard to the country information referred to above, regarding ‘blood feuds’ in Albania and the attitude of the authorities towards such feuds and the guidance decision of the UK Upper Tribunal in EH  which defined the pre-conditions of when a ‘blood feud’ is held to exist, the Tribunal does not accept that there is a real chance that the applicant will be persecuted for reasons of his membership of a particular social group constituted by persons involved in a blood feud for reasons of politics and religion, if he was to return to his village now or in the reasonably foreseeable future and live with his parents as he had done so prior to leaving for Australia.

61. Having considered the totality of the evidence before it, the Tribunal finds that the applicant has no well-founded fear of persecution for reasons of membership of particular social group (persons involved in blood feud caused by political or religious differences) or any other reason mentioned in the Convention.

62. For the reasons given above, the Tribunal finds that there is no real chance that the applicant will face persecution for any Convention reasons including a blood feud caused by religious or political belief if he returned to Albania now or in the reasonably foreseeable future. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant does not satisfy the criterion set out in s.36 (2)(a) of the Migration Act 1958.

63. Having concluded that the applicant does not meet the refugees criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative complementary protection criterion in section 36(2)(aa) of the Act and with particular reference to s.36(2B) (b) of the Act. Having regard to the country advice from UK Home Office concerning the frequency of ‘blood feuds’ in Albania and the ‘steps taken by the Albanian state’ and ‘police’ that in recent years have attempted to police the occurrence of such disputes and to bring to justice those involved in such blood feuds, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Albania, there is a real risk that he will suffer significant harm as a member of a particular family that is involved for political and religious reasons in a ‘blood feud’ with members of another family in Albania. Having regard to the findings of fact above, the Tribunal does not accept that the applicant’s cousin or the applicant himself would attract the adverse interest of members of a rival family because of a dispute that happened in school between the applicant’s cousin and members of a rival family nor that this feud was caused by political and religious differences between rivals. The Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Albania there is a real risk that he will suffer significant harm because of his involvement with his cousin in a blood feud with members of a rival family caused by differences in their political and religious beliefs. Therefore, the Tribunal finds that the applicant is not a person in respect to whom Australia has protection obligations under s.36(2)(aa) of the Act.

64. For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) or (aa) for protection visa.

65. 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

1. The Tribunal affirms the decision not to grant the applicant a Protection visa.

   Peter Vlahos
   Member