1600397 (Refugee)

1600397 (Refugee) [2017] AATA 3138 (16 June 2017)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1600397
COUNTRY OF REFERENCE:                  Albania
MEMBER:Christopher Smolicz
DATE OF DECISION:  16 June 2017
DATE CORRIGENDUM
SIGNED:6 July 2017
PLACE OF DECISION:  Adelaide
AMENDMENT:  The following corrections are made to the decision:

That the phrase “speech in Albania” appearing in the second sentence at paragraph 38 of the decision record should read “speech in Australia”.
Christopher Smolicz
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1600397
COUNTRY OF REFERENCE:                  Albania
MEMBER:Christopher Smolicz
DATE:16 June 2017
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.
Statement made on 16 June 2017 at 12:19pm

CATCHWORDS
Refugee – Protection visa – Albania – Political opinion – Christian Democratic Party of Albania (PDK) involvement – Perceived as “anti-Muslim” – Fears Muslim extremists – Free to practice Catholic faith in Albania – Second named applicant –Gang rape victim – Social stigma – Anti -communist family– Members of the same family unit – Credibility issues – Visits to Albania – Oral evidence differs from statutory declarations – Practice and procedure – Bar on making further protection visa applications – Complementary protection provisions considered – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 48A, 48B, 65, 417, 499
Migration Regulations 1994, r 1.12
CASES
AMA15 v MIBP [2015] FCA 1424
SZGIZ v MIAC (2013) 212 FCR 235
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

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
BACKGROUND - EFFECT OF PRIOR APPLICATIONS FOR PROTECTION
The applicants claim to be a citizen of Albania. They arrived in Australia on 16 April 2010 as holders of a [temporary] visas traveling on validly issued Albanian passports. On 10 May 2010 they applied for a protection visas and the delegate refused to grant the visas on 9 August 2011.
On 29 February 2012 the Department’s decision was affirmed by the Refugee Review Tribunal (differently constituted, and referred to in these reasons as “the first Tribunal”).
The applicants’ subsequently made an application to the Minister pursuant to s.417 of the Act. On 6 July 2012 the applicants were advised that the Minister refused to intervene.
As the applicants have never left Australia since first arriving and have previously been refused a protection visa, the provisions of s.48A of the Act apply. There is no evidence to suggest the Minister has made any determination under s.48B that s.48A does not apply to prevent a further application for a protection visa by the applicants.
Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. However, s.48A does not prevent a person from making a further application for a protection visa on complementary protection grounds where the first application was made and refused before the commencement of the complementary protection provisions on 24 March 2012.
The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a).
As a result, the applicants were not prevented from making a second application for protection visas on 30 September 2015. The delegate refused the application on 16 December 2015 and the applicants have applied to review the delegate’s decision.
The Tribunal must therefore consider the applicants’ claims in the context of the complementary protection provisions.
If the Tribunal is reconstituted following a remittal, the reconstituted Tribunal is not bound by any findings on the review made by the Tribunal as previously constituted. The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination, according to the facts as the Tribunal finds them to be at that time. However, if the reconstituted Tribunal departs from the facts as found by the previous Tribunal it is advisable to explain why in the decision record.[1]
[1] SZFYW v MIAC [2008] FCA 1259 (Flick J, 18 August 2008) at [11]; Haidari v MIAC (2008) 104 ALD 74 at [8].
Complementary protection criterion
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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
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.
Member of the same family unit
Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the first named applicant meets the complementary protection criteria because:
·     He is a member of the Christian Democratic Party of Albania (PDK)
·     He is a Roman Catholic who is actively involved in the church
·     He is the founder of [Albanian Catholic Association 1] in [Australian city 1], [State 1]
·     He fears Muslim extremists in Albania
·     He and his family are anti-communist
It was submitted at the hearing that the second named applicant fears significant harm in Albania because she is a Catholic and her family is anti-communist and because her husband’s enemies will seek to harm her in order to get at her husband (the first named applicant).
It was submitted to the Department by the applicant’s previous migration agent[2] that the second named applicant would face significant harm if she were required to return to Albania because:
·     She was subjected to a gang rape in 2009 which has impacted on her mental health
·     The mental health problems cannot be effectively treated in Albania
·     The family no longer have a right to reside in Italy
·     She (and her family) will be stigmatised because she is a victim of rape
[2] See submissions made by [the previous migration agent] dated 30 September 2013
The third named applicant did not make his own claims for protection and applied as a member of the family unit. [3]
[3] The first and second named applicants’ other son [made] a separate application for a protection visa on 6 December 2013 (DIBP file [number deleted]).
The Tribunal has considered the applicants’ claims both individually and cumulatively and for the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of substantive claims
In support of the current application, the first and second named applicants provided the Department with the same statutory declarations which were provided in support of the first protection visa application which was lodged on10 May 2010. The applicants’ claims are summarised below. The applicants also provided the Tribunal with a copy of the delegate’s decision which details the applicants’ claims, the findings of the first Tribunal and relevant country information.
Statutory declaration of the first named applicant dated 21 November 2011
The applicant was born and raised in [Town 1]. He went to school until [age] and then worked as [an occupation]. His family was always anti-Communist. One day he was going to church with his father and brother when the police tried to stop them. The police put a gun to his father’s chest and told him to go back but his father refused. The police backed off but his father was always under surveillance from the authorities. His father remains a devout Christian. In 1992, after the end of Communism, he joined the Demo-Christian Party [PDK] because it reflected his values. The main parties in Albania are the Socialist Party and the Democratic Party, but he thinks the Democratic Party is really Communist. He was an organiser for the Demo-Christian Party which meant promoting the party and getting people to join and vote in elections. He met his wife in 1992. Her family have a bad reputation in Albania for being opposed to Communism.
He was seen as anti-Muslim because of his membership of the Demo-Christian Party. He was attacked in 1992-1993 before the elections. Three or four people hit him with wooden sticks when he was coming home from a meeting. He knew them to be Muslim neighbours. He moved to Italy in 1996 because of the problems he had with people in Albania. In 1997 people went to his house in Albania looking for him. His wife was frightened by this. Sometimes people shot guns in the air outside their house. When he was in Italy he was still involved in the Demo-Christian Party by making donations of 1,000 euros each election and organising for the party. He continued to travel to Albania for elections and he went back twice a year. It was not as dangerous to go for a short time. In Italy he helped organise masses and had a close relationship with priests. From 2005 he began receiving threatening letters that said ‘if you keep going with this, you will die. Your wife will be a prostitute on the streets’. The letters came once a fortnight until they left Italy. He did not complain to the police because even though he thought he knew who was sending them, they would want proof. He was physically attacked in November 2009 outside a bar by 4 or 5 people. He recognised his attackers. They told him to stop organising meetings for the Church and the Demo-Christian Party or he would be ‘gone’. At the time he was helping to raise money for church building works in [Town 1]. He didn’t go to the police because there was no point. He worked as [an occupation] and was always worried about leaving his wife and children. They cannot return to Italy because their residence permits expired after being out of the country for more than 12 months.
Statutory declaration of the second named applicant dated 21 November 2011
She declared that her family history included male relatives fighting against Communism such that her family was always regarded with suspicion and closely watched for political activity.
She had limited education and left school at [a certain age]. She met her husband in 1992. They are both devout Christians and her husband was an organiser for the Demo-Christian Party. Problems began for members of the Demo-Christian Party in 1993 and her husband began to suffer from random attacks. In 1996 her husband moved to Italy and she followed with the children in 1998. They were granted Italian Residence visas in June 1999. They bought a house in Italy in 2002. However they were looked down upon because they were Albanian.
Around 2005 the threats started. They received letters under their door telling them to leave.
In 2007 a priest and nun came to their house. Muslim Albanians saw this as a political act. The threats increased. Her husband was beaten and told to stop his involvement with the Catholic Church and the Demo-Christian Party.
She suffered anxiety and panic attacks and was hospitalised in October 2007, December 2008 and June 2009.
In June 2009 she was driving when her car was deliberately hit from behind. The person driving said to her ‘this is just the beginning’. She reported the incident to the police and they spoke to the other driver, who denied hitting her deliberately.
On 28 November 2009 her car was stopped and she was forced into another vehicle by 3 men. She was taken to a quieter part of town and raped. She heard them speaking in Italian and Albanian. They said to her ‘this is what you deserve’ and ‘this is how you get treated’. They talked about killing her but decided not to as they believed she wouldn’t go to the police. They said ‘she won’t say anything because of her kids’ which makes her think they knew who she was and was targeted to send a message to her family. When her husband got home she had a panic attack and they went to the hospital. She didn’t tell the doctor about the rape but said she had fallen down stairs. She didn’t report the rape to the police. She has suffered flashbacks and nightmares ever since. They decided they couldn’t stay in Italy anymore and decided to move to Australia. They have lost their permanent residency in Italy.
The Tribunal has also had regard to a report from [a] psychologist, dated 30 October 2011. [The psychologist] undertook a psychological assessment of the second named applicant on 11 October 2011. [The psychologist] observed the applicant to display symptoms of extreme anxiety at the commencement of the interview, and to become distraught to the point of being unable to speak when the issue of her rape was raised. [The psychologist] found the second named applicant’s presentation to be one of the most serious she has encountered in over 20 years of private practice. [The psychologist] assessed her as having severe complex Post-Traumatic Stress Disorder and formed the view the applicant gave an honest account of being raped. [The psychologist] recommended urgent treatment that should include medication and counselling. She expressed concern about the handling of the second named applicant in a Tribunal hearing and in particular recommended she not be asked questions about the rape in the presence of males or several people.
Tribunal hearing
The Tribunal listed the matter for hearing on 4 April 2017. On 31 March 2017 the applicant’s migration agent [advised] she has recently commenced acting for the applicant’s and requested the Tribunal postpone the hearing. The Tribunal agreed to the agent’s requests.
The applicants took part in a hearing before the Tribunal on 18 May 2017 to give evidence and present arguments. The third named applicant did not give evidence at the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Italian and English languages. The applicants were represented in relation to the review by [a migration agent]. [The migration agent] made no pre hearing written submissions. Subsequently on 5 June 2017 [the migration agent] provided written submissions which the Tribunal has addressed below.
At the commencement of the hearing the Tribunal raised with the applicants’ and their agent that it knew ([Father A]) who had provided references and submissions in support of the application. The Tribunal advised the applicants’ that it met [Father A] many years ago and knew him through a family connection. The Tribunal advised the applicant that it raised the matter as an abundance of caution and it was of the view that there was no conflict for the Tribunal to hear the matter. The applicants and agent raised no objections and no application was made for recusal.
Catholic Albanian
The Tribunal questioned the first named applicant about his religious beliefs. [The applicant] said he was Roman Catholic. The applicant said that he was active in the Catholic Albanian community in [City 1, Italy] and helped raise funds for a construction of a local church.
In April 2016 he started [an Albanian Catholic Association 1] in [Australian city 1], [State 1]. He is the President of [Albanian Catholic Association 1]. [The applicant] said that it was non-political organisation. It was a religious, not for profit association aimed at uniting Albanian Catholics and other Catholics who were not Albanian. It was an open organisation and accepted everyone and had about [number] members in Australia.
The Tribunal noted that the applicant commenced the association in 2016 after the second protection visa was refused. The Tribunal asked the applicant if he started the association with the sole purpose of strengthening his claims. The applicant said that [Albanian Catholic Association 1] was a continuation of his religious work in Italy and Albania and was not done for his personal advancement. In relation to the timing of association the applicant said he could not start the association earlier because he did not have any connections in Australia.
The Tribunal discussed the various photographs the applicant provided in support of the application. The applicant said the photos related to a function organised by the [Albanian Catholic Association 1] in relation to [a religious activity] in September 2016. The applicant said that he delivered a speech in Albania and invited politicians and individuals who are associated with the Catholic Church and the Albanian community in Australia. He provided a copy of a speech in support of his evidence.

The Tribunal was also provided with a statement from [Father A] of [a certain Christian order] who is currently based at [a] Parish, in [State 1]. [Father A] is a sociologist from [City 1, Italy] who has published extensively on various Catholic migrant communities around the world. The Tribunal accepts that [Father A] has become acquainted with the [applicant] family since they arrived in Australia and assisted the [the applicant] start up [Albanian Catholic Association 1]. [Father A] and [another priest] were able to confirm that the [applicant] family were part of his parish in [State 1] and were also known to the local parish community in [City 1, Italy]. The applicant also provided evidence from Father [name], a former missionary in Albania, who asked the applicant to assist with fundraising in Italy and helped organise Albanian masses in Italy.
The Tribunal accepts that the applicants are Roman Catholics. The Tribunal accepts that the first named applicant was an active member of the Catholic Church in Albania and in [City 1, Italy] and has continued his activities in Australia. The Tribunal finds the first named applicant’s religious involvement in [Albanian Catholic Association 1] in Australia to be genuine.
Political Opinion
The Tribunal questioned the first named applicant about his political opinion. The applicant said he became a member of the PDK in about 1992. He took part in demonstrations in November 1992 demanding pluralist elections when four people were killed. The applicant said he continued his involvement in the PDK because he was Catholic and the party reflected his values. The applicant said he worked as [an occupation] he was respected in the local community in Albania. He described his role in the PDK as a local branch organiser in [Town 1], North Albania. He was not an elected politician and did not hold political office and only worked as a volunteer. He organised meetings and helped with recruitment of members.
The Tribunal asked the applicant if took part in any election campaign. The applicant said he took part in the 1995 campaign and experienced problems and that’s why he left Albania and moved to Italy.
The applicant said that after 1996 he did not take part in any elections in Albania because it was a dangerous for him to be in Albania. The applicant said when he was in Italy he did his part to help by organising meetings with fellow nationals and took part in fundraising for the party.
The Tribunal noted that political landscape had changed since he left Albania. For example, in 2007 the PDK had split into a number of factions. The applicant said that he was not in a position to explain the changes in politics in Albania. When he joined it was small and they had no majority and tried to assist parties obtain the balance of power. He still upholds the original PDK the other parties have all been brought by the Albanian government.
The Tribunal noted that the current President of Albania (Bujar Nishani) was a former member of the Democratic Party of Albania. The Tribunal asked if he was more positive to the PDK. [The applicant] replied by saying “yes and no” and in theory they should be neutral.
The Tribunal asked [the applicant] on more than one occasion at the hearing if he continued with his political involvement in the PDK since he arrived in Australia. [The applicant] said he had contact with a few friends but was not in the position to support the PDK from Australia because he was very far away. The Tribunal notes that after further questioning the first named applicant provided the same response and confirmed that he has had no involvement in politics since he arrived in Australia. The Tribunal found his answers about his political involvement in Australia to be forthright and unambiguous.
On 5 June 2016, sometime after the hearing, [the migration agent] made written submissions which raised new issues regarding [the applicant]’s political opinion. No declaration was provided from [the applicant] in support of the submissions. [The migration agent] wrote “… [the applicant] is actively involved in political postings on [social media]and most recently writing for local consumption in [Albania].” The Tribunal was referred to translated copies of two articles dated 3 April 2017 and 8 April 2017. The Tribunal has considered the material but finds it surprising that the documents were not provided to the Tribunal prior to the hearing or at hearing given [the applicant]’s political opinion was relevant to his claims.
[The migration agent] submits that the documents were not produced at the time of the hearing because [the applicant] was “demoralised and said afterwards [after the hearing] that he felt the Member had already decided that he was fabricating his claims and intrinsic political and religious beliefs and activities so he did not feel able to tender the articles.” The Tribunal finds [the migration agent]’s submissions surprising and not supported by [the applicant]’s evidence at the hearing. The Tribunal has listened to the hearing recording and found [the applicant]’s presented as a confident and well-spoken witness on this issue. His evidence about his political involvement in Australia was given with confidence and there was no suggesting that he was reluctant to respond to the Tribunal’s questions.
Having considered [the migration agent]’s submissions, the Tribunal has regard to the new information (articles dated 3 April 2017 and 8 April 2017) but places greater weight on [the applicant]’s evidence at the hearing regarding his political involvement in Australia.
Threats
The first named applicant claimed that when he was living in Italy his life was constantly under threat because he was part of the Catholic Church. The applicant said that the Italian immigration laws enabled Albanians to easily travel to Italy at the time and he was threatened because he was a member PDK and organiser and because he was a Catholic. When asked to expand on his evidence the applicant said that he helped raise funds to finish building a church in his home town when he was in Italy. He said that the work was annoying some people and he was threatened and received many threatening letters.
[The applicant] said that he purchased a home in [City 1, Italy] in 2000, he had a good job, was earning a good living, owned a car and life was very comfortable. He thought he would be able to stay in Italy for the rest of his life. [The applicant] said that the problems started in 2005 when some students started returning from the [middle-east]. The people brought with them propaganda and were against his ideology and the climate for Catholics became very dangerous in Albania and the surrounding areas such as Italy, Kosovo and Montenegro. The Tribunal referred the applicant to country information and noted that more recently the Albania’s government is taking action and initiated a crack-down on recruits and imprisoned imams who encourage young Albanian’s to embrace violent jihad.
The Tribunal noted that despite his claims that he was threatened he continued live in Italy for about 14 years. The applicant said he was fortunate that he has not been killed. He said that he was beaten but could not recall the date. He thought it was in 2006. The Tribunal referred the applicant to his declaration and where he claimed he was attacked in November 2009. The Tribunal asked the applicant to explain what happened and when the incident occurred. The applicant said there were two or three episodes. He could not recall the date and said it could have been at any time in 2004, 2005 or 2006. He subsequently said he was assaulted three or four times. The Tribunal told [the applicant] that it was concerned he had changed his evidence from his declaration where he said he was attacked on one occasion in Italy in November 2009. The applicant said that was the last time he was assaulted. The Tribunal again asked the applicant to explain what happened to him on that occasion. The applicant said that his wife was involved in a car accident and the driver threatened her and said in Albanian “this is just to start”. The applicant said that his wife was subsequently raped and this impacted on the whole family.
The Tribunal asked the applicant why he believed the attacks he claims he faced in Italy were not carried out by random criminals and had nothing to do with his political profile. The applicant said he did not have any enemies and the perpetrators spoke Albanian. They told him to remove himself from the PDK and stop organising the building of the church in his home town.
The Tribunal referred [the applicant] to the delegate’s decision and noted that he travelled extensively through Europe while he lived in Italy. The Tribunal asked the applicant why he did not try to seek asylum in a European country such as Germany or France if his life was in danger in Italy or Albania. The applicant said that there would have been someone who could have got him anywhere.
The Tribunal asked the applicant if he has approached the police for help in Italy. The applicant said that he did approach the police but they did not ask anything and did not take down any record. The Tribunal noted that in his declaration he claimed he did not report the threats to the Italian police.
The Tribunal asked the applicant if he reported the threatening letters to the police. The applicant said that he did not. The Tribunal again asked the applicant to explain what he reported to the police. The applicant repeated his earlier evidence that people threatened him and the police did not write anything down.
Credibility concerns
The Tribunal referred the applicant to the following credulity concerns raised by the delegate and the first tribunal which are detailed in the delegate’s decision.
The first Tribunal had concerns an ordinary member and organiser of the PDK who left Albania in 1996 would continue to be threatened up until the time he left Italy in 2010. It found it implausible that the applicants would not have taken steps earlier to evade persecution. The applicant said in response that he has always been a member of the party in one way or another and hoped that one day he would be left alone and people would understand that he is not going to bother them.
The fact that [the applicant] and his family travelled back to Albania on a yearly basis to visit family for holidays was not consistent with his claims that they lived in fear of harm in Albania. The applicant said that he did visit Albania yearly with his family but he stayed in their family homes in the company and protection of his friends. He said it is one thing to visit Albania and it is another thing to live and work there when you can’t hide. His trips were not a holiday but to visit his family.
The first Tribunal did not accept that the applicants would receive regular threatening letters without taking steps to seek protection from the authorities in Italy. The applicant said if he would contact the local authorities he would be threatened with more serious harm. He decided to say at home and hope the things would pass.
The first Tribunal was not satisfied that [the applicant] and his family were persecuted for being anti-communist after they left Albania. The Tribunal noted that both sets of parents remained living in Albania. The applicant said the parents are old and not of interest to anyone. The Tribunal referred the first applicant to country information that when the Communist system fell in Albania the new government initiated laws preventing Communist-era officials from being involved in politics.[4] The first named applicant said that the people were the same. The people’s children are now in power.
[4] Political Handbook of the World 2015, Albania p17 Albanian Politician Killed in Car bomb Explosion, Fox News, June 18, 2009 >
The applicant claims that three months before Aleksander Keka, a PDK leader was killed, he warned him to be careful. The Tribunal referred the applicant to country information and said that it accepted that Aleksander Keka, a PDK leader, was assassinated when his car was blown up in June 2009. The applicant said that Keka was a colleague who worked in a different section of Albania. The Tribunal notes however that Keka was a regional leader of Albania’s opposition PDK party. He was a high profile politician and not an ordinary member of the PDK. The Tribunal also noted that country information states that the motive behind Keka’s murder is unclear and his death may have been carried out by organised criminals because he was involved in illegal activity such as arms smuggling and not because of his political opinion. [5] The applicant said the comments are made by politicians who have power.
Evidence of second named applicant
[5] Political Handbook of the World 2015, Albania p24
The second named applicant produced at the hearing five aerogram letters in the Albanian language which appear to have been posted in the 1950’s from Australia to Albania. The letters have not been translated and were not accompanied by any written submissions. The Tribunal questioned [the applicant] about the relevance of the letters to her claim for protection. [The second named applicant] said that her grandfather escaped from Albania in 1948 and was granted refugee status in Australia. The remainder of her family stayed in Albania and her mother who was about [age] years old at the time was imprisoned in labour camps by the communist authorities for about three years. [The second named applicant] said that her grandfather eventually returned to Europe but it was too dangerous for him to return to Albania and he lived in [another country] where he died in 1972.
The Tribunal asked the second named applicant how her family history was relevant to her fear of persecution. [The second named applicant] said that she was always been persecuted and her persecution is connected to her family’s story and to her husband.
Sexual assault November 2009
The Tribunal told [the second named applicant] that it needed to ask her a number of questions about an incident which occurred in Italy in 2009 which is referred to in her declaration and the report prepared by psychologist [dated] 30 October 2011. The Tribunal advised [the second named applicant] that it has regard to the psychologists report from 2011 and the findings of the first Tribunal and did not need to question her about details of the assault. The Tribunal told [the second named applicant] it accepts that she was a victim of serious sexual assault in Italy in 2009.
The Tribunal explained to [the second named applicant] that the issue before the Tribunal was how the incident was relevant to her fear of harm in Albania. [The second named applicant] said that she is always afraid and lives in fear. If she goes back to see the place where she was assaulted she would be afraid it would happen again.
The Tribunal asked [the second named applicant] if she had any updated reports relevant to her mental health. [The second named applicant] said she did not have any further reports. She is not taking any medication and has not been under the care of a medical practitioner.
The Tribunal asked [the second named applicant] how the sexual assault was linked to her husband’s political profile. [The second named applicant] said that a lot of things happened to her husband. For example, the threatening letters and six months before the assault she was involved in a car accident and the driver told her “this is just the beginning”. [The second named applicant] said it was not a serious car accident but by the time the man came over she was frightened and called an ambulance.
The Tribunal asked [the second named applicant] if she reported the sexual assault to the police. [The second named applicant] said that she did not report the incident because she was scared, ashamed and afraid that she would be judged.
The Tribunal noted that according to her claims her husband took her to the hospital but she did not did not advise the doctor that she has been subject of a sexual assault. [The second named applicant] she was afraid said that she grew up in fear. She still has the mindset, from communist times and fears that if you talk something bad would happen. [The second named applicant] said ‘if people hurt me in Italy who can guarantee that they will not hurt me in Albania’.
The Tribunal noted that the assault occurred in Italy in 2009 and she has now been in Australia for seven years. [The second named applicant] said that life was more peaceful in Australia and she does not want to send her children back to Albania. Her mother and grandmother have died in Albania and she could not go their funeral because she fears returning to Albania. She fears for her children because she does not want the same thing to happen to them.
Findings
The issue for the Tribunal to determine is whether in light of the Tribunal’s factual findings above there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Albania, there is a real risk that they will suffer significant harm.
In assessing the applicants’ claims the Tribunal has also had regard to the current country information relating to human rights, political and religious freedom in Albania from the following sources: Political Handbook of the World 2015, USDOS 2016 Human Rights Report, USDOS International Religious Freedom Report 2015, United Kingdom Home Office Country Information and Guidance Albania, and information prepared by the German Bertelsmann Foundation. Relevant extracts of country information relied upon are annexed to this decision. The Tribunal has also had regard to country information provided by the applicant’s to Department and the Tribunal in support of the application. The Tribunal has also had regard to various media reports and supporting statements and references provided by the applicants’ initial agent in support of their protection visa application located on the Departmental file at annexures 1 to 16.13.[6]
[6] Department’s file CLF2013/24342 Folios 177 to 333
The Tribunal finds the applicants to be citizens of Albania who travelled to Australia on valid Albanian passports. The family have resided in Italy as holders of residence permits (Permesso Di Soggiorno) but claim not to have been granted Italian citizenship.
The Tribunal has assessed their claims against Albania as the receiving country.
The Tribunal finds the first named applicant departed Albania in 1996 and relocated to Italy where he was joined by his wife and children in 1998. The applicants lived in Italy until 2010 when they travelled to Australia on a [temporary] visa to visit the second applicant’s sister in Australia.
Country information confirms that tens of thousands of Albanians arrived in Italy in the 1990’s after the collapse of Albania’s communist dictatorship and the economy. Country information confirms that after March 1997 Albania was on the verge of civil war as a collapse of the ‘pyramid selling’ schemes, which resulted in a mass migration crisis. The Italian home office estimates that in August 1997 about 16,964 arrivals in Italy had been recorded since March.[7] In this regard the Tribunal finds that the applicants’ migration to Italy needs to be put in the context of the political and economic climate in Albania at the time.
Anti-communist
[7] Albanian Migration to Italy: towards differential circularisations? Dr Nick Mai ISET London, Metropolitan University
It has been reported that “twenty percent of the [Albanian] population was a victim of long internal exiles, religious persecutions, and forced-labor camps – targeting “enemies of the people,” such as landowners, disloyal party officials, religious clerics, and clan leaders. The Hoxha [communist] era is further darkened by the political murders and purges of over six thousand people.”[8]
[8] type="1">
The Tribunal finds that after World War II the communists had commenced to take over Albania and thousands of inter war elite were driven into exile and family members were imprisoned in labour camps. The Tribunal accepts that the communist era remained in place until mid-1991.
The Tribunal accepts that the first and second applicants come from anti-communist Catholic families and their families suffered persecution under the communist regime in Albania.
The Tribunal notes however that Albania has undergone significant political transformation since the first and second named applicant’s parents were persecuted by the communist dictatorship in Albania.
As discussed with the applicants at the hearing country information confirms that in 1995 when the Communist dictatorship ended in Albania the new government took action and introduced laws preventing Communist-era officials from being involved in politics.[9]
[9] Ibid p17 Albanian Politician Killed in Car bomb Explosion, Fox News, June 18, 2009 >
Country information confirms that since 1998 Albanian can be described as a “democratic republic” modelled on German and Italian examples in which individual human rights (including religious freedom) are guaranteed, as are those of ethnic minorities. Private property rights are also protected, and emphasis is given to a “market-oriented” economy.[10]
[10] Political Handbook of the World 2015, Albania, p 19
The former Communist Party of Albania (Partia Komuniste e Shqiperise—PKSH), which was launched in November 1941 no longer exists and has been replaced by the Socialist Party of Albania (Partia Socialiste e Shqiperise—PSS).
The Tribunal notes that there are a number of right-wing political alliances in Albania such as the Alliance for Employment, Prosperity and Integration (APMI). In 2005 the AMPI with the support of the Democratic Party of Albania (PDS) received 33 per cent of the proportional vote and secured 18 assembly seats and joined PDS in forming government. This expanded into a rightist “grand alliance” for the February 2007 municipal elections. The alliance included the PDK. In 2009 assembly elections the PDS led the Alliance for changes and secured 46.9 per cent of the national vote and won 70 seats.[11]
[11] Ibid p22
The OSCE Ambassador to Albania made the following comments on marking the 25 years since the fall of communism in Albania: “Albania succeeded in establishing the necessary set of institutions in order to create a basis for further developing a sound, modern, democratic and market-oriented state and society. Moreover, Albania became a member of important international institutions and organisations and is a candidate for membership in the European Union.[12]
[12] >
Looking into the reasonably foreseeable future, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Albania, there is a real risk that they will suffer significant harm because of their actual or imputed anti-communist political opinions and/or because of their anti-communist family background.
Political opinion - Member of the PDK
The Tribunal accepts that the first named applicant was an ordinary member and local organiser in the PDK in Albania. The Tribunal accepts he joined the party in 1992 because he was a Catholic who could relate to the values of the party. In assessing the first named applicant’s political profile the Tribunal accepts that he would have attended meetings and took part in elections before he departed Albania in 1996.The Tribunal accepts that soon after joining the PDK the first named applicant may have been caught up in protest activity and was assaulted by opposition party groups in the lead up to the elections.
The Tribunal has had regard to the various reference letters and declarations regarding his political involvement in Albania and Italy but has placed greater weight on [the applicant]’s evidence at the hearing on this issue. The Tribunal finds that the applicant’s involvement in the PDK changed after he travelled to Italy in 1996. [The applicant] gave clear evidence at the hearing that he did not take part in any election campaigns after 1996. When he travelled back to Albania he would keep a low profile and only stay with his family. The Tribunal finds that his involvement in politics in Italy was at a local community level such helping with fundraising and organising local meetings through the Catholic Church.
The Tribunal find that since the applicant arrived in Australia in 2010 he has had no involvement with the PDK. When the Tribunal questioned the [applicant] about changes to the political landscape since he left Albania, the applicant conceded that he knew little about the current situation of the PDK and has not kept up his involvement in politics since he arrived in Australia. The Tribunal accepts the [applicant] established [Albanian Catholic Association 1] in Australia in 2016, however, the Tribunal also notes that [the applicant] gave evidence at the hearing that the Association was not political. This is confirmed by the Articles of Association (Article 2(4)).
The Tribunal has had regard to the country information detailed in the annexure to this decision and finds that the PDK is a very minor political party in Albania. The party has fractured and changed since the applicant departed Albania. The Tribunal finds that apart from the death of Aleksander Keka, a high profile regional leader of the PDK, which has not been confirmed as a politically motivated assassination,[13] the evidence does not support a finding that ordinary members and organisers of the PDK face significant harm in Albania.
[13] According to a leaked US embassy cable, “Keka was suspected of being involved in the trafficking of arms and narcotics”. US Embassy Tirana 2009, ‘Criminals Making the Laws In Albania’s Parliament’, Wikileaks, 12 August see also Political Handbook of the World 2015 p24
In assessing the applicants’ claims the Tribunal has also had the following concerns with the first named applicant’s claim that he suffered serious harm in Italy and would suffer serious harm if has to return to Albania in the future.
The Tribunal found the first named applicant’s evidence about the threats and assaults in Italy vague and lacking in credibility. For example, at the hearing the applicant was unable to provide a consistent and coherent account of the alleged assaults. He claimed he was physically attacked in Italy but could not recall the date. He thought it was in 2006. He subsequently said it could have been at any time in 2004, 2005 or 2006. He said it was two or three times, then he said he was assaulted three or four times, while in his declaration he claimed he was assaulted once in November 2009. At the hearing he claimed he reported the assaults to the police but they took no action. In his declaration he state “I didn’t ever complain to the Italian police about these events because I knew there was no point.” The Tribunal raised these inconsistencies with the applicant at the hearing.
The Tribunal also found the applicant’s evidence that he and his family received regular threatening letters from 2005 to the time he departed Italy in 2010 vague and lacking in credibility. Despite the volume of letters purportedly delivered to the applicant’s residence in Italy he made no report to the Italian police. The applicant’s evidence seems surprising in light of the fact that he claims he knew who sent the letters. The Tribunal found the applicant’s claim that he did not report the threatening letters because he feared retribution unconvincing in light of the fact that he continued to live in the same location with his family up until he departed Italy in 2010. In conclusion the Tribunal does not accept that the applicant was sent threatening letters fortnightly or monthly for five years and took no action and continued to live in the same residence, did not report to the police or try to relocate his family. The Tribunal does not accept the applicant received any threatening letters in Italy because of his political opinion and or because he was actively involved in the Catholic Church and perceived to be anti-Muslim and/or anti-communist.
The Tribunal also found it inconsistent that the applicant would claim he had to escape persecution in Albania but would travel back to Albania every year with his family. The Tribunal found the first named applicant’s evidence that he was able to avoid persecution in Albania because he had friend and family who assisted him unconvincing and inconsistent with his claims that he was receiving regular and ongoing threats but continued to travel to Albania.
The Tribunal has consider the applicant’s claims that his wife was targeted in a deliberate car accident and subjected to violent sexual assault in order to get at him because of his political opinion and religious activism. In assessing the first and second named applicants’ claims the Tribunal has considered the incidents cumulatively and has not viewed them in isolation. The Tribunal accepts that the second named applicant was involved in a car accident in June 2009, the Tribunal does not however accept the accident was targeted because the other driver spoke Albanian and said “this is just the beginning”. The Tribunal found the applicants’ evidence in this regard vague and speculative.
The Tribunal has also considered the second applicants’ claims she was subjected to a targeted violent sexual assault in November 2009 in order to get at her husband. In her declaration [the second named applicant] said that perpetrators said “this is what you deserve” and “this is how you get treated”. The second named applicant said she thought the car accident and assault were connected and that’s why she assumed it was a targeted attack. There is no other evidence to support the claim that it was a targeted attack. The Tribunal also found the applicants’ evidence in this regard vague and speculative.
The Tribunal has had regard to the 2011 report of [the psychologist] and accepts that an assault did take place. The Tribunal however does not accept the first and second named applicants’ claims that the attack was targeted or in any way associated with the first named applicant’s involvement in the PDK and/or because he was active in his Catholic Albanian community, anti-Muslim and/or because the first and second named applicants came from an anti-communist families.
Having regard to the country information and the first named applicant’s political profile as ordinary member and organiser of the PDK who departed Albania 21 years ago the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the first named applicant being removed from Australia to Albania, there is a real risk that he will suffer significant harm. The Tribunal finds that the applicant is free to continue his involvement in the PDK and in the up-coming elections in Albania.

100. Having regard to the first named applicant’s profile and the findings above, the Tribunal is also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the second and third named applicants as members of the first named applicant’s family being removed from Australia to Albania, there is a real risk that they will suffer significant harm.
Anti- Muslim – Catholics in Albania
101. The Tribunal had regard to country information regarding the treatment of Catholics in Albania detailed below. The Tribunal has also considered country information regarding the rise of Islam in Albania and its impact on the Catholic Albanian community, which includes a 2008 report provided by the applicants.[14]
[14] Islam in Albania; M Vickers, March 2008 Advanced Research and Assessment Group
102. The United States Department of State 2010 Report on Religious Freedoms in Albania reported that ‘there were no reports of societal abuses or discrimination based on religious affiliation, belief, or practice.   No substantial acts of vandalism were reported’.
103. More recently in 2016 the German NGO Bertelsmann Foundation provided the following insight into religious values in Albania:
The Albanian state operates free of religious dogmas. Article 10 of the constitution establishes that the state has no official religion, and guarantees the equality and autonomy of all religious communities. Religious organizations can gain “legal personality” under the 2011 NGO law. In line with a clear separation between public and private spheres, secondary law establishes restrictions on religious activity and prohibits religious education including the use of religious symbols in public institutions. Radical interpretations have found no productive soil in post-atheist Albanian society. Citizens show strong support for the secular system and excising of religion from the public sphere: politics, education and the arts. Religious communities, which regenerated after the fall of communism, tend to maintain a restrained political and public profile. Between 100 and 200 Albanians are believed to have joined the conflict in Syria, but the phenomenon remains confined to a few individuals and has no influence on the formal structure of secularism or the position of the centralized organization governing the Muslim community. [15]
[15]This report is part of the Bertelsmann Stiftung’s Transformation Index (BTI) 2016. It covers the period from 1 February 2013 to 31 January 2015. The BTI assesses the transformation toward democracy and a market economy as well as the quality of political management in 129 countries. More on the BTI at An article appearing in the Washington Post in 2011 reported that about 100 Albanians travelled to the Middle East to join terrorist groups and that there is a rise in Islamic radicalism in Albania. The Tribunal notes however that article also confirms that Albania’s government is taking action and initiated a crack-down on recruits and imprisoned imams who encourage young Albanian’s to embrace violent jihad. Ylli Gurra, the moderate Sunni cleric who presides over a prominent mosque in Tirana states “We [Albania] have always been proud of being a country where you can practice your beliefs as you see fit” and that members of his mosque still prefer the Albanian tradition of embracing the country’s religious diversity, sometimes even joining in the religious celebrations of heir Orthodox and Catholic neighbours.” [16]
[16] In Albania, concerns over the Islamic State’s emergence; The Washington Post | Published: June 11, 2016 pages 5 & 8
105. It was further reported that although Albania has a majority-Muslim population it has a centuries-old tradition of religious tolerance and moderation:
The very idea of radical Islam still sits uneasily in a country that has always worn its religion lightly. …For centuries Albanians were an amicable mix of Sunni Muslims, Orthodox Christians and Roman Catholics, with a significant minority of Bektashis, a moderate Sufi Muslim sect that has its global headquarters in Albania. For nearly 50 years until the collapse of communism in 1990, the country’s Marxist leaders proclaimed Albania to be the world’s first atheist state, officially banning religious observances and persecuting imams and priests. [17]
[17] In Albania, concerns over the Islamic State’s emergence; The Washington Post | Published: June 11, 2016 The Tribunal finds that the first, second and third named applicants are free to practice their Catholic faith in Albania without the fear of significant harm.
107. Looking into the reasonably foreseeable future, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants, being removed from Australia to Albania, there is a real risk that they will suffer significant harm from Muslim extremists or because they are Catholic Albanians or because they will be perceived to be anti-Muslim.
108. The Tribunal has also had regard to the first named applicant’s recent involvement in the [Albanian Catholic Association 1] in Australia. Having considered the applicant’s past involvement in the Catholic Church in Albania and [City 1 in Italy], it is reasonable to accept that the applicant may continue his involvement in the Catholic Church if he was to return to Albania in the reasonably foreseeable future. The Tribunal has had regard to the 2015 Albanian International Religious Freedom Report and notes that the state is neutral in matters of beliefs and recognises the equality and independence of religious groups and guarantees freedom of conscience and relation. For example, the report confirms that religious groups, organisations and foundations in Albania have 125 affiliates associations and foundations managing 103 educational institutions.
109. The Tribunal notes that in 2001 the government of Albania named Albanian’s only international airport (Tirana International Airport Nënë Tereza), after the Albanian Roman Catholic nun and missionary Mother Teresa (Saint Teresa of Calcutta). In relation to the presence of Mother Teresa in Albanian society the Catholic Weekly reports that “sculptures of the famous nun stand at intersections and peer down from churches across the nation of 3 million people. Her photos are taped to storefronts and hotel entrances and can even be spotted inside the windshields of taxis and private cars. 19 October, the day she was beatified in 2003, is a public holiday.”[18] The Tribunal also notes that the Missionaries of Charity have an office in Tirana, Albania. [19]
[18] Albanians ‘proud of Mother Teresa” Catholic Weekly June 4, 2016 The Missionaries of Charity (Latin: Missionariarum a Caritate) is a Roman Catholic (Latin Church) religious congregation established in 1950 by Saint Teresa of Calcutta, better known as Mother Teresa: The Tribunal does not accept the first named applicant would be perceived to be “anti-Muslim” or anti-government because he was active in his local Albanian Catholic community in in Italy raising funds for the construction of a church or because he is the founder of the [Albanian Catholic Association 1] in Australia.
111. The Tribunal finds that the first named applicant will be able to continue to support the PDK, he will be able to freely practice the Catholic faith, raise funds and continue the work [Catholic] associations in Albania in the future.
112. In conclusion having considered the claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the first named applicant being removed from Australia to Albania, there is a real risk that he will suffer significant harm because of his political and/or religious activity in Albania, Italy and Australia.
113. Having found that there is not a real risk the first named applicant will face significant harm in Albania the Tribunal is also not satisfied substantial grounds for believing that, as a necessary and foreseeable consequence of the second and third named applicants, as members of the first named applicant’s family unit, being removed from Australia to Albania, that they will suffer significant harm because of their religious beliefs and/or because of the first named applicant’s religious and political activity in Albania, Italy or Australia.
Second named applicant’s health and sigma associated with sexual assault
114. The second named applicant claims she suffered anxiety and panic attacks and was hospitalised in October 2007, December 2008 and June 2009 in Italy. The records show she was admitted in October 2007 with chest pains, in December 2008 with back pain, in June 2009 following a car accident, and on 28 November 2009 after generalised trembling.
115. The Tribunal has also had regard to the psychological report of [the psychologist] and as detailed above accepts [the second named applicant] was the victim of a sexual assault in November 2009 and was diagnosed with a Complex Posttraumatic Stress Disorder in 2011.
116. The Tribunal questioned the second named applicant about her health and the impact of the assault. [The second named applicant] said she would feel distressed and afraid at the prospect of returning to the place of the assault in Italy. The Tribunal explained to [the second named applicant] that it had to assess her claims against Albania not Italy.
117. The Tribunal has had regard to the 2016 US Department of State Human Rights Report on Albania states:
The constitution and laws prohibit discrimination against persons with physical, sensory, intellectual, and mental disabilities in employment, education, transportation, access to health care, the judicial system, and the provision of other state services. Nevertheless, employers, schools, health-care providers, and providers of other state services at times engaged in discrimination.
…
The ombudsman regularly inspected mental health institutions. Both the admission and release of patients at mental health institutions were problematic due to lack of sufficient financial resources to provide adequate psychiatric evaluations. There was societal discrimination and stigmatization of persons with mental and other forms of disability.
118. Country information confirms that psychiatric medication is available in Albania.[20]
[20] World Health Organisation & Ministry of Health, Albania 2006, WHO-AIMS Report on Mental Health System in Albania, p. 14 < The Tribunal has had regard to a media report provided by the applicants’ agent that discusses the stigma associated with being a female victim of rape and the impact on victims making police reports and giving evidence in Australia.[21] The Tribunal accepts that victims of rape would face the same issues in Albania.
[21] Fewer than one-third of rapes lead to charges, Canberra Times, 20 May 2017
120. The Tribunal must assess the impact of the sexual assault on the [the second named applicant] in the context of her returning to Albania in the future. In considering whether the stigma faced by the applicant in Albania amounts to significant harm as defined in the Act the Tribunal has had regard to the applicant’s personal circumstances.
121. The Tribunal notes that significant harm under s.36(2A) includes circumstances where the non-citizen will be subjected to ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’: s.36(2A)(e).
122. ‘Cruel or inhuman treatment or punishment’ is defined in s.5(1) of the Act as:
an act or omission by which:
(a)        severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)        pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all           the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
            but does not include an act or omission:
(c)        that is not inconsistent with Article 7 of the [ICCPR]; or
(d)        arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the     Articles of the [ICCPR].
123. ‘Degrading treatment or punishment’ is exhaustively defined in s.5(1) of the Act and means:
an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)        that is not inconsistent with Article 7 of the [ICCPR], or
(b)        that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the [ICCPR].
124. This definition derives from the non-refoulement obligation implied under Articles 2 and 7 of the ICCPR and is intended to cover acts or omissions which, when carried out, would violate Article 7 of the ICCPR.[22]
[22]           Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011 at [23]-[24].
125. Like the definitions of torture and cruel or inhuman treatment or punishment, degrading treatment or punishment requires an element of intent – it must be an act or omission which causes and is intended to cause extreme humiliation which is unreasonable.[23]
[23]           The intention element of degrading treatment or punishment was considered in CVJ15 v MIBP [2016] FCCA 2897 (Judge Smith, 7 November 2016), where the Court confirmed that actual intention to cause the relevant humiliation is required: at [22].
126. The Tribunal accepts that it is possible that people in the community in Albania may hear of the attack and that the second named applicant may feel embarrassed and ashamed. The Tribunal also accepts that the role of women in Albanian society has historically been regulated by traditional patriarchal rules and males occupy the dominant position in Albanian society.[24] The Tribunal was not referred to any country information specifically dealing with the stigma faced female victims of rape and or their families in Albania or who would intentionally inflict significant harm on the second named applicant and or her family if she returns to Albania because she was a victim of rape.
[24] Article: Domestic Violence against Albanian Immigrant Women in Greece: Facing Patriarchy: Social Sciences; Margarita Poteyeva and GabrielaWasileski 1 August 2016
127. The Tribunal finds the sexual assault was a random criminal attack carried out in Italy in 2009. As detailed above the Tribunal finds that the assault was not associated with the first named applicants’ political or religious activity or the applicants’ anti-communist family background. [The second named applicant] was not the victim of family violence. The Tribunal finds that [the applicant] has been very supportive of his wife in the past and will continue to support her in the future. [The second named applicant] continues to have the support of the Catholic Church. [The second named applicant] said that she has not seen a psychologists or psychiatrists since 2011. She is not taking any medication. She in not subject to any treatment plan. The Tribunal has not been provided with any updated medical or psychological reports.
128. Having regard to the second named applicant’s personal circumstances the Tribunal is not satisfied that people in her community or anybody in Albania will intend to cause [the second named applicant] extreme humiliation and/or severe pain or suffering, whether physical or mental because she was the victim of a rape.
129. Looking to reasonably foreseeable future, the Tribunal does not accept that if the second named applicant were to return to Albania she will suffer significant harm because of the social stigma associated with being a victim a rape. The Tribunal is also not satisfied that the first named applicant and the third named applicant will suffer significant harm because of the social stigma associated with the rape.
130. The Tribunal also notes that in order to amount to significant harm, claims related to inadequacy of medical treatment would need to be intended to inflict either pain or suffering (for the purposes of the definitions cruel or inhuman treatment or punishment) or to cause extreme humiliation (for the purposes of the definition of degrading treatment or punishment). The country information before the Tribunal suggests that any difficulty in accessing medical treatment for people with a mental or psychological illness in Albania is not intentional but due to lack of resources. The Tribunal does not accept that the level of medical treatment available in Albania will amount to cruel or inhuman treatment or punishment or degrading treatment or punishment.
131. [The second named applicant] said that she is currently working in [a company]. [The applicant] is working as [an occupation] in Australia. The Tribunal has had regard to the various references provided in support of the application and accepts that the applicants are hardworking and valued employees. The Tribunal notes the applicant continue to own a home in [City 1, Italy] which can be sold or rented and provide them with financial security in Albania while they look for work and accommodation. The Tribunal finds that the applicants have family members in Albania who have provided them with support in the past and there is no evidence that they will not be in a position to provide the applicants with support in the future.
132. In the circumstances the Tribunal does not accept that if the second named applicant were to return to Albania in the foreseeable future she will suffer significant harm because she is a victim of a sexual assault who will be denied medical treatment and/or because she will be stigmatised because she is a victim of rape.
Findings on complementary protection
133. Having regard to the evidence before it, the tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, there is a real risk that the applicants will face significant harm.
134. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations under s.36(2)(aa)..
135. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
DECISION
136. The Tribunal affirms the decision not to grant the applicants Protection visas.
Christopher Smolicz
Member

Annexure
Country Information
The Political Handbook of World (2015) provides the following information about the politics and government in Albania:
Constitution and government. A constitution adopted in December 1976 did not significantly alter the system of government introduced three decades earlier. Under its provisions, the former People’s Republic of Albania was redesignated as the Socialist People’s Republic of Albania and the PPS was identified as “the sole directing political power in state and society.” Private property was declared to be abolished, as were the “bases of religious obscurantism”; financial dealings with “capitalist or revisionist monopolies or states” were also outlawed. Under the interim basic law of April 1991, all of these stipulations were abandoned, with the country’s name being foreshortened to “Republicof Albania.”
The constitution that was approved in a national referendum on November 22, 1998, and signed into law by the president on November 28 codified many of the changes implemented in 1991. The new basic law was described as a “Western-style” document modeled most directly on the German and Italian examples. It describes Albania as a “democratic republic” in which individual human rights (including religious freedom) are guaranteed, as are those of ethnic minorities. Private property rights are also protected, and emphasis is given to a “market-oriented” economy. The supreme organ of government is the unicameral People’s Assembly, none of whose members can be nominated by groups representing ethnic minorities. The assembly elects the republic’s president, who is precluded from holding party office and is limited to two 5-year terms. The powers of the president, particularly those regarding the authority to govern by decree in times of emergency, were substantially diluted in the 1998 constitution. Responsibility for day-to-day governmental administration rests with the Council of Ministers, whose head serves as prime minister. The prime minister is appointed by the president, who, upon the proposal of the prime minister, also nominates the Council of Ministers for approval by the assembly. Should the assembly endorse a nonconfidence motion in the Council of Ministers, the president is directed to appoint a new prime minister in an effort to nominate an acceptable council.
…..
Christian Democratic Party of Albania (Partia Demokristiane e Shqiperise—PDK). A member of the 1977 Union for Democracy coalition, the PDK drew support mainly from Shkodër and other northern Catholic towns. It won 1 percent of the vote in the 2001 legislative poll. The then chair of the PDK, Zef BUSHATI, was appointed Albania’s ambassador to the Vatican in 2002 and was succeeded as PDK leader by Nikolle LESI, a well-known editor. The PDK secured two seats in the 2005 assembly who had recently
left the New Democratic Party (PDr). In November 2007 Lesi split with the party and founded the Albanian Christian Democratic Movement, stating his intention to draw from PDK supporters and compete in the 2009 parliamentary elections. For the 2009 legislative elections, the PDK founded the Pole of Freedom (Poli i Lirise—PL), a coalition intended to become a center- right “third force” in domestic politics in opposition to both the PDS and PSS. The PDK was joined by the PDB, as well as several smaller parties: the LZhK, PKons, PRDSh, and PRrL. The PL overall won less than 2 percent of the nationwide vote in the 2009 assembly balloting, with the PDK and LZhK obtaining most of this support. A local PDK party head was assassinated by a bomb attack in June 2009, although it was not confirmed that the attack was politically motivated. In January 2011 members of the PDK took part in the protests against the PDS-led government, indicating a shift to open opposition to the government from a previously more ambiguous position. Leader: Nard NDOKA (Chair).
USDOS ALBANIA 2015 INTERNATIONAL RELIGIOUS FREEDOM REPORT
Religious Demography
The U.S. government estimates the total population at 3.0 million (July 2015 estimate). According to a 2011 census, Sunni Muslims constitute nearly 57 percent of the population, Roman Catholics 10 percent, members of the Autocephalous Orthodox Church of Albania nearly 7 percent, and members of the Bektashi Order (a form of Shia Sufism) 2 percent.
Legal Framework
The constitution stipulates there is no official religion, all religions are equal, and the state has the duty to respect and protect religious coexistence. It declares the state is neutral in questions of belief and recognizes the independence of religious groups. According to the constitution, relations between the state and religious groups are regulated by agreements between these groups and the Council of Ministers and ratified by the assembly.
….
The constitution prohibits religious discrimination and guarantees freedom of conscience, religion, and free expression. It states everyone is free to choose or change their religion or beliefs and to express them individually, collectively, in public, or in private. The constitution also states individuals may not be compelled to participate or excluded from participating in a religious community or its practices, or to make their beliefs or faith public or be prohibited from doing so. It prohibits political parties or other groups from inciting religious hatred.
….
The government has agreements with the Catholic Church, the Sunni Muslim, Orthodox, and Bektashi communities, and the Evangelical Brotherhood of Albania (VUSH), a Protestant umbrella organization. The bilateral agreements serve to codify arrangements pertaining to official recognition, property restitution, direct financial support from the government, and/or tax exemptions.
…..
Public schools are secular, and the law prohibits religious instruction in them. Private schools may offer religious instruction. According to official figures, religious groups, organizations, and foundations have 125 affiliated associations and foundations managing 103 educational institutions.
….
The government continued financial support for the Catholic, Sunni Muslim, Orthodox, and Bektashi communities, according to representatives of these groups. Financial support for these four groups remained the same as the previous year at 109 million lek ($868,250), divided four ways among them, with the Muslim Community receiving a slightly larger share.
…
Through the Interreligious Council of Albania, leaders of the Sunni Muslim, Orthodox, Catholic, Protestant, and Bektashi communities discussed common concerns. Religious leaders frequently attended the celebrations of other religious communities. In January the heads of the Catholic, Muslim, Orthodox, and Bektashi communities participated along with Prime Minister Rama in a march in Paris to honor victims of the Charlie Hebdo terrorist attack. In September all religious communities participated in the annual International Meetings of Prayer for Peace, held in Tirana and sponsored by the Community of St. Egidio, a Catholic group.
The USDOS 2016 Human Rights Report for Albania reported
The Republic of Albania is a parliamentary democracy. The constitution vests legislative authority in the unicameral parliament (the Assembly), which elects both the prime minister and the president. The prime minister heads the government, while the president has limited executive power. In June 2015 the country held local elections for mayors and municipal councils. The Organization for Security and Cooperation in Europe (OSCE) assessed the elections positively overall but observed important procedural irregularities. In 2013 the country held parliamentary elections that the OSCE reported were competitive and respected fundamental freedoms but were conducted in an atmosphere of distrust that tainted the electoral environment….. There were no political prisoners or detainees.
BTI 2016 Albania Country Report
Since the fall of communism, Albania has consolidated a bipolar party system, which reflects the main post-communist divisions in society. The DP, created soon after the sanctioning of pluralism in 1990, has ever since represented the center-right and in a way monopolized the anti-communist movements that brought down the communist regime. Jet as an umbrella party, the DP structures included various dissident but also groups connected to the outgoing communist regime. The reshuffling of the party structures in 2013 has brought in a new class of professionals with little relation to anti-communist or dissident movements. The SP, created in 1991, hails from former communist organization, but has reshuffled itself after the European center-left and features a generation of young leaders coming from the anti-communist movement. The main “third” party, the Socialist Movement for Integration, is a split from SP. In general, smaller parties have difficulties consolidating their position and can enter political life only when allying with one of the two big party families. The regional proportional electoral system adopted since 2008 has reinforcing the traits of a bipolar system and increased the role of party leaders in determining who enters and stays in the system. Electoral volatility has decreased since 2001 and was relatively low in the 2013 elections (17%).
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The 2013 elections were contested by two major political blocs. The ruling DP, led by its historical leader Sali Berisha, and the opposition bloc, a coalition between the Socialist Party (SP) and the Socialist Movement for Integration (SMI), led by Edi Rama. The ruling party promised to continue what it perceived as the major success of its previous two terms, while the opposition promised to bring in a new model of good governance. Electoral turnout was at 53.5%. Election observers noted political polarization, deadlocks in the workings of the electoral commission, missed deadlines as well as political pressure on public employees to attend electoral rallies of the then governing majority. According to the OSCE election observer mission, the Central Election Commission lacked a sound legal justification when it replaced all 89 members of Commissions of Electoral Administration Zones nominated by the second largest opposition party, thereby indicating a political bias in favor of the DP majority. Despite the many organizational odds, it was the rising alertness of foreign observers and consciousness of civil society that enabled a relatively smooth electoral process. The sound victory of the opposition block (58% of votes cast) also reduced the weight of legal appeals, which had been subject to many judicial irregularities in the past. The smooth transfer of power was in itself a historical achievement. Nonetheless, a 2014 report by the European Commission on Albania’s Progress towards EU membership made clear that the country needs to strengthen “the independence of the election administration bodies.”
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During the period under review [1 February 2013 to 31 January 2015], positive steps have been taken regarding social protection; previous delays on pension and disability payments were removed to a large extend. IMF’s advice on restoring the sustainability of public finances and reviewing the country’s welfare system have encouraged broad reform over the pension system with a new legislative amendment approved in July 2014. The new pilot project of social service that provides financial benefit for vulnerable groups electronically, is expected to reduce the abuse of the funds an shows government’s renewed attention to vulnerable group and social welfare in general. However, further administrative capacity building and significant improvement in existing infrastructure is essential to improve a sector ignored through many years of transition.
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Albania has been a signatory to most international agreements and has advanced national legislation ensuring equal opportunity. A law on gender equality is in place. However, progress on ensuring equal opportunities particularly between women and men has shown meager progress. According to Gender Inequality Index 2014, the contribution in the economy of Albania and the representation in public of woman is low. In addition, serious offences and domestic violence against women have surfaced in the period under review. Specific legislation on protecting minority groups is not sufficient and there is much space for improvement of Roma’s situation particularly regarding access to employment, education and health care.

Key Legal Topics

Areas of Law

Immigration
Administrative Law
Statutory Interpretation

Legal Concepts

Judicial Review
Procedural Fairness
Jurisdiction
Standing
Statutory Construction
Appeal

[2017] AATA 3138

16 June 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Appeal