1511698 (Refugee)

[2017] AATA 1010

1511698 (Refugee) [2017] AATA 1010 (1 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1511698

COUNTRY OF REFERENCE:                  Albania

MEMBER:Saxon Rice

DATE:1 June 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 01 June 2017 at 9:43am

CATCHWORDS

Refugee – Protection visa – Albania – Political – General civil unrest – Perceived wealth – Lived in western country – No police protection

LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

BZADA v MIC and RRT [2013] FCA 1062

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 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 [in] February 2014 and the delegate refused to grant the visa [in] July 2015.

3. This is therefore, a review of that decision.

4. The applicant was invited to appear before the Tribunal on 30 May 2017 to give evidence and present arguments however, she did not appear. 

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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).

8. 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.

9. 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’).

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –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.

    CLAIMS AND EVIDENCE

    Background

11. When lodging the application to the Department, the applicant stated that she was born in [town], Albania. She stated on the application form that she speaks, reads and writes English, Greek and Albanian. She indicated that her religion was Muslim and she identified as ethnic Albanian.

12. The applicant outlined that she completed [number] years of school in Albania before travelling to Australia to complete [number] years of education at [an] Institute in [city]. The applicant stated that she worked as a [occupation] for almost three years in Albania.

13. The applicant holds an Albanian passport issued in 2009. According to details provided in her protection visa application, the applicant first arrived in Australia on a [temporary] visa in November 2007 and she stated that she had not previously travelled to any other countries prior to coming to Australia.

    Claims

14. The applicant’s claims, as set out in her protection visa application, can be summarised as follows:

    ·The applicant left Albania because she feared for her life due to the civil war in Albania.

    ·The applicant claims that during the 1997 civil unrest, her [sibling] was shot in the [body] by a stray bullet and her father was almost shot in the head in the street.

    ·The applicant claims that Albania is an unsafe country and people kill for survival.

    ·The applicant claims she will be killed for her perceived wealth for having lived in a Western country since 2007.

    ·The applicant claims that the police are under-resourced and cannot protect her.

    Evidence

15. The evidence before the Tribunal includes the following relevant material:

    ·The completed protection visa form, lodged [in] February 2014, including a number of internet news articles and reports regarding crime and safety in Albania and an undated, unsworn statement from the applicant’s parents regarding poverty and crime in Albania.

    ·Audio recording of the applicant’s interview with the department dated [in] July 2015.

    ·A photocopy of the applicant’s Albanian passport.

    ·The delegate’s protection visa assessment record (‘delegate’s decision record’) [in] July 2015.

    ·The applicant’s online application for review [in] August 2015, which included a copy of the delegate’s decision record.

16. [In] August 2016, the applicant’s authorised representative lodged the applicant’s review application with the Tribunal. No additional evidence in support of her claims for protection was provided to the Tribunal.

17. [In] April 2017, the Tribunal wrote to the applicant authorised representative advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing to be held on 30 May 2017. The letter advised that if she did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice or taking further action to enable her to appear before the Tribunal. The letter was sent to the applicant’s authorised representative, by email, at the address provided in her application for review.

18. The Tribunal notes that on 29 May 2017, a person on behalf of the applicant’s authorised representative advised the Tribunal via telephone that the representative would not be attending the Tribunal hearing the following day as they had been unable to make contact with the applicant for instructions and/or payment of fees. The representative from [an agency] then emailed the Tribunal to advise formally in writing that they were withdrawing their representation because they “have been unable to obtain strict instructions from the applicant, and have not received any payment of our fees for representation”. The Tribunal also notes that the email correspondence from [agency] attached a ‘MR10 Withdrawal of application for migration or refugee review – MR Division’ form signed by the applicant’s authorised representative for the purpose of withdrawing the applicant’s review application. However, the Tribunal does not accept the applicant’s authorised representative’s withdrawal is a valid withdrawal of the applicant’s review application on the basis that the representative stated that they had been unable to obtain strict instructions from the applicant and the necessary form has not been signed by the review applicant.

19. [In] May 2017, the Tribunal advised the applicant’s authorised representative that it did not accept her withdrawal of the applicant’s review application as valid as outlined above and while it noted that she was seeking to withdraw as the applicant’s representative, the Tribunal considers her to remain the authorised recipient until it receives confirmation of withdrawal of the authorised representative from the applicant.

20. The Tribunal also notes that no contact details for the applicant were provided to the Tribunal when lodging her application for review, other than the details of her authorised representative.

21. In these circumstances, and pursuant to s426A of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal.

22. Accordingly, this matter has been determined on the evidence available to the Tribunal.

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The applicant claims and the Tribunal is satisfied on the basis of the personal details provided, that she is an Albanian national. Albania is therefore the receiving country for the purpose of assessing the applicant’s claim for protection.

24. The issues in this review are whether the applicant has a well-founded fear of being persecuted as defined in Article 1 of the Convention and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Albania, there is a real risk she will suffer significant harm.

25. The Tribunal notes that the fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.

26. The Tribunal also notes that the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:

    As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.

27. The applicant’s written claims in her application were brief and very general and relate to instability in Albania during the 1997 civil unrest and her fear that she will be killed for her perceived wealth having lived in a Western country since 2007.

28. The applicant also claims that Albania is an unsafe country and the police are under-resourced and cannot protect her.

29. As she did not avail herself of the opportunity to attend the hearing to provide further information, and in the circumstances set out above at [21], the Tribunal has decided the review on the information before it. Had the applicant attended the hearing, it would have asked the applicant further detail about her claims and it would have been an opportunity for the applicant to address the various gaps in her claims and provide further information and details.

30. Among the claims on which the Tribunal has insufficient evidence before it are the following:

    ·Details of the applicant’s situation in Albania prior to coming to Australia, including details of the situation the applicant would return to and whether she has previously experienced any harm.

    ·Whether Albanians returning from Western countries are targeted in Albania and why she believes the police cannot protect her.

    ·Information in relation to the applicant’s fear of returning to Albania; whether she continues to fear returning to Albania and whether she faces a real chance of serious harm or a real risk of significant harm if she does so.

31. The Tribunal has had regard to Department of Foreign Affairs and Trade (DFAT) and other country information for Albania to the extent that it is relevant to this review. However, on the limited available material, the Tribunal is not satisfied that the applicant will be targeted upon return to Albania for having lived in a Western country since 2007 and being perceived to be wealthy; that the police would be unable or unwilling to protect her; that she has experienced any harm amounting to serious or significant harm; that she continues to fear the harm claimed; or that there is a real chance the applicant will suffer serious or significant harm in the foreseeable future if she returns to Albania.

32. In sum, the Tribunal is unable to be satisfied that the applicant has ever experienced harm in Albania or will be targeted upon return to Albania for having lived in a Western country since 2007 and being perceived to be wealthy, by criminals or anyone else. The applicant has not claimed to fear harm from any other source, and no other claims are apparent on the information before the Tribunal.

    CONCLUSIONS

33. For the reasons given above, 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).

34. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

35. 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

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

    Saxon Rice
    Member