1600398 (Refugee)

[2017] AATA 1379

1600398 (Refugee) [2017] AATA 1379 (9 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1600398

COUNTRY OF REFERENCE:                  Albania

MEMBER:Christopher Smolicz

DATE:9 August 2017

PLACE OF DECISION:  Adelaide

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

Statement made on 09 August 2017 at 1:44pm

CATCHWORDS

Refugee – Protection visa – Albania – Imputed political opinion – Social group – Father’s membership of Christian Democratic Party – Religion – Catholic

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 48A, 91R(2), 424A, 499
Migration Regulations 1994, Schedule 2

CASES

AMA15 v MIBP [2015] FCA 1424
CVJ15 v MIBP [2016] FCCA 2897
MIAC v SQRB [2013] FCAFC 33
MZYPB v MIAC [2012] FMCA 226
SZBQJ v MIAC [2005] FCA 143
SZGIZ v MIAC (2013) 212 FCR 235
SZIGC v MIAC [2007] FCA 1725
VBAO v MIMA (2006) 233 CLR 1

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 appeared before the Tribunal on 19 May 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the [Country 1 language] and English languages. The applicant was represented in relation to the review by his registered migration agent.

   BACKGROUND - EFFECT OF PRIOR APPLICATIONS FOR PROTECTION

3. The applicant claims to be a citizen of Albania. He arrived in Australia [in] April 2010 as a holder of a [temporary] visa traveling on a validly issued Albanian passport. The applicant travelled to Australia with his [father] and his [mother] and his [brother].

4. [In] May 2010 the applicant and his family members applied for protection visas (first protection visa application).

5. The delegate refused to grant the visas [in] August 2011 and the applicants applied to the Refugee Review Tribunal (RRT) to review the delegate’s decision.

6. On 29 February 2012 the RRT (differently constituted) affirmed the Department’s decision.  The applicant has provided the Tribunal with a copy of the RRT decision (the first Tribunal decision).

7. Section 48A of the Act 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.

8. 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).

9. As a result, the applicant was not prevented from making a second application for a protection visa [in] December 2013.[1] The applicant’s parents made a separate application for a protection visa [in] September 2015.[2]

   [1] It was submitted to the Department by the applicant’s previous migration agent that the applicant was not included in his parent’s second protection visa application because he was in a de facto relationship with an Australian citizen at the time and intended to make an application for a Partner visa. The partner visa application was subsequently not accepted by the Department and therefore the applicant applied for a protection visa subject of the current application. (folios 56- 60 DF).  The applicant advised at the second Tribunal hearing that his relationship in Australia has since ended.

   [2] On 16 June 2017 the Tribunal made a decision affirming the Department’s decision refusing to grant [the applicant’s father], [the applicant’s mother] and [the applicant’s brother] protection visas. (AAT case file no. 1600397).

10. The delegate refused the second application [in] December 2015 and the applicant has applied to this Tribunal to review that decision.

    Scope of Tribunal’s review

11. The Tribunal finds that although the applicant’s first protection visa application was only assessed against the refugee criterion the applicant made the claim in his capacity as a member of the family unit of the primary applicants (his mother and father).

12. The Tribunal notes that the applicant did not make claims of his own in the first protection visa application. As a consequence, the Tribunal now needs to consider the applicant’s substantive claim having regard to the refugee criterion and the complementary protection criteria. The Tribunal raised this issue with the applicant and his agent at the hearing.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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.

14. 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).

15. 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.

    Complementary protection criterion

16. 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’).

17. 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

18. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The applicant has not provided any statutory declaration in support of his claims for protection. The applicant’s previous migration agent provided the following evidence to the Department in support of his claims:

    ·     statutory declaration made by [the applicant’s father] ([November] 2011)

    ·     statutory declaration made by [the applicant’s mother] ([November] 2011)

    ·     Report of [a] Psychologist dated [October] 2011

    ·     Copy of the RRT decision dated 29 February 2012 refusing the protection visa application made by the applicant’s parents (RRT case no. 1108876).

    Complementary protection claims

20. The Tribunal notes that at the time he lodged his protection visa application it was submitted that the applicant came within the complementary protection criteria and will suffer significant harm if he his returned to Albania because:

    ·     His mother is unwell from a mental health point of view as a result of [an assault] she suffered in [Country 1] [in] November 2009

    ·     He no longer has any right of residence in [Country 1]

    ·     He will suffer social stigma in Albania as a child of a woman who has been the victim of [an assault]

    ·     He will suffer from barriers to gaining employment and accommodation in Albania as he does not have close relatives in the country and is child of a woman who has been the victim of [an assault].

21. In addition to the matters raised with the Department the issue for the Tribunal to consider is also whether the applicant meets the refugee or complementary protection criteria because:

    ·     He is a Catholic who fears Muslims in Albania 

    ·     His father is a member of the Christian Democratic Party (PDK) and has faced persecution in Albania and [Country 1]

    ·     He fears his family’s enemies will try to harm him in Albania

    ·     He left Albania in about 1998 and has grown up in [Country 1] and Australia and will be unable to secure employment and survive in Albania.

22. The applicant was represented by a different migration agent [at] the second Tribunal hearing. [The migration agent] provided no written submission prior to the hearing.

23. In submissions provided after the hearing on [the migration agent] submitted: “[the applicant] in reality fears persecution on the basis of the political and religious stance that will be attributed to him by those who still remember his father and wish him harm.”

24. Although [the applicant’s parents] did not give evidence at the applicant’s hearing their claims form the foundation of the applicant’s claim that he fears persecution for reason of his membership of a particular social group that consists of family.

25. As stated above the applicant provided a copy of his father’s and mother’s declarations in support of his claims. The applicant’s previous migration agent also provided the Tribunal with a number of character references in support of his parent’s claims. The Tribunal was also provided with documentation and photographs confirming that in [2016] the applicant’s father was [involved with Organisation 1 in Australia].

    Summary of claims made by [the applicant’s father] - statutory declaration dated [November] 2011

26. [The applicant’s father] was born and raised in [City 1]. He went to school until age [and] then worked as [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.

27. 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 [Country 1] 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 [Country 1] he was still involved in the Demo-Christian Party by making donations of [amount] 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 [Country 1] 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 [Country 1].  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 [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 [City 1]. He didn’t go to the police because there was no point.  He worked as [occupation] and was always worried about leaving his wife and children.  They cannot return to [Country 1] because their residence permits expired after being out of the country for more than 12 months.   

    Statutory declaration of [the applicant’s mother] dated [November] 2011 

28. [The applicant’s mother] declared that her family history included male relatives who fought against Communism such that her family was always regarded with suspicion and closely watched for political activity.

29. She had limited education and left school at [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 [Country 1] and she followed with the children in 1998.  They were granted [Country 1] Residence visas in June 1999.  They bought a house in [Country 1] in 2002.  However they were looked down upon because they were Albanian. 

30. Around 2005 the threats started.  They received letters under their door telling them to leave.

31. 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. 

32. She suffered anxiety and panic attacks and was hospitalised in October 2007, December 2008 and June 2009.

33. In June 2009 she was [involved in an incident]. The person [said] to her ‘this is just the beginning’. She reported the incident to the police and they spoke to the other [person], who denied [that the incident had happened]. 

34. [In] November 2009 her car was stopped and she was forced into another [vehicle]. [Details deleted]. 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 [assault] but said she had fallen down stairs. She didn’t report the [assault] to the police.  She has suffered flashbacks and nightmares ever since. They decided they couldn’t stay in [Country 1] anymore and decided to move to Australia. They have lost their permanent residency in [Country 1]. 

35. The Tribunal has also had regard to a report from [the] psychologist, dated [October] 2011.  [The psychologist] undertook a psychological assessment of the [applicant’s mother] [in] October 2011. [Details deleted]. 

    Tribunal hearing

36. The applicant was born on [date] in [City 1], Albania. He declared in his protection visa application that he speaks, reads and writes in Albanian, [Country 1 language] and English. At the hearing he said that he would rate his Albanian language skills as 6 out of 10. He described his religion as Roman Catholic.  

37. He has completed secondary schooling in Australia and wanted to study [but] it was too expensive to continue with his study in Australia. He is currently working as [occupation].

38. The applicant said he left Albania at a young age in about 1998 with his mother and travelled to [Country 1] to be with his father. He has very little recollection of living in Albania. When asked why his parents left Albania the applicant said that he was told that they were being persecuted. When asked to provide further detail the applicant said that his parents did not explain a lot to him and he was unable to provide any further detail at the hearing.

39. The Tribunal asked the applicant if his father was involved in politics. The applicant said he thinks that his father did have some involvement in politics in Albania but he did not know the name of the party and could not provide further detail.  When they lived in [Country 1] he did not take any notice and does not know about his father’s involvement in politics. Since his father has arrived in Australia he has had no involvement in politics.

40. The Tribunal explained to the applicant that one of the claims put forward by his migration agent was that he would face persecution in Albania because of his father’s involvement in the PDK party (imputed political opinion). In response the applicant said that there must have been a reason why his father brought the family to Australia.

41. The applicant said he (the applicant) has no involvement in politics or any other organisation in Australia.

42. The applicant said that he fears going back to Albania because he has nothing there. The applicant said he fears Muslims in Albania. The Tribunal asked the applicant to explain why he feared Muslims in Albania. The applicant said he heard his parents say negative things about the Muslims in Albania. The applicant said that he personally has never had problems with Muslims. The Tribunal asked the applicant if he could elaborate and expand on his evidence. The applicant said that he was [age] years old when he arrived in Australia and he does not know much about the political situation in Albania and could not provide further information.

43. The Tribunal asked the applicant about his religious beliefs. The applicant said he was a Catholic and attended the Albanian Catholic mass in Australia every Sunday. He took part in social events organised by the church and helped with fundraising.

1. The Tribunal referred the applicant to the delegate’s decision where it detailed the first Tribunal’s concerns about the credibility of his father’s and mother’s claim that they feared persecution in Albania. The Tribunal noted that the first Tribunal had had regard to his father’s political profile and found that he was an ordinary member and organiser of the PDK who left Albania in 1996. The first Tribunal did not find it plausible that his father would continue to be pursued until the time he left [Country 1] in 2010 and not to have taken steps earlier to evade or escape persecution.

2. The applicant said when he lived in [Country 1] he would travel back to Albania with his father about once a year. They would stay with his grandparents. He does not recall much but recalls his parents being nervous. The Tribunal asked the applicant about his relatives in Albania. The applicant said that he has [various relatives].

3. The Tribunal asked the applicant to confirm who he fears will cause him harm if he returns to Albania. The applicant said he does not know the names of the people. The Tribunal asked the applicant if he feared the Albanian government. The applicant said he was more afraid of the Muslim people.

4. The Tribunal told the applicant that it needed to ask him questions about a serious assault that had been carried out on his mother in [Country 1] in 2009 which is referred to in the delegate’s decision. The Tribunal noted that the assault is detailed in the delegate’s decision and first Tribunal decision which he provided to the Tribunal. The applicant claimed he had not read the Department’s decision. The Tribunal approached the topic with sensitivity at the hearing and requested that the observers who accompanied him to the hearing leave the hearing room.

5. The Tribunal told the applicant the first Tribunal accepted his mother was assaulted in [Country 1] however the first Tribunal was not satisfied that there was a nexus between the assault and his father’s political opinion. The Tribunal asked the applicant explain how the assault of his mother in [Country 1] was relevant to his claims. The applicant said that Albanians are very vindictive and will do anything to get their revenge. 

6. The Tribunal asked the applicant about his travel documents. The applicant said he had an Albanian passport but it had expired. The Tribunal asked the applicant if he or his father had applied for [a Country 1] passport given the length of time he had been living in [Country 1]. The applicant said he did not have [a Country 1] passport.

   Findings

7. The first issue for the Tribunal to determine is whether the applicant has a well-founded fear of persecution for a convention reason.

8. The Tribunal has considered the applicant’s claims both individually and cumulatively and for the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

9. The Tribunal finds that the applicant travelled to Australia with his family [in] April 2010 on an Albanian passport to visit his [relatives] who are residents in Australia. He was [age] years old at the time.

10. The Tribunal accepts that the applicant is an Albanian national who has resided in [Country 1] with his parents from about 1998 to 2010. There is no evidence before the Tribunal that the applicant is the holder of [a Country 1] passport. The Tribunal has assessed the applicant’s claims against Albania as the receiving country.

11. The Tribunal finds that the applicant’s evidence about his fear of persecution in Albania was vague and lacking in detail. For example, when questioned about his fear of persecution in Albania the applicant stated at the hearing “I trust my parents” and “I came here [Australia] when I was small and I was not aware of a lot of things so still now I don’t know much”. When questioned about his parent’s claims, the applicant responded with words to the effect “My parents did not explain because I was young – they left me in the dark.” When questioned about his father being involved in politics in Albania and [Country 1] the applicant said “…. [I] didn’t take notice of these things”. When asked whether his father’s profile in Albania might cause him problems the applicant replied “I feel that if my father brought us here there must be a reason behind it.” The applicant could not explain why he feared Muslims in Albania and said he had personally not had any problems with Muslims. Despite the vague nature of his evidence, the Tribunal accepts that the applicant gave his evidence in a forthright and unrehearsed manner.

12. The Tribunal finds that the applicant has not claimed that he has experienced any serious harm in Albania for reason of his race, religion, nationality, membership of a particular social group or political opinion. The Tribunal must however assess the applicant’s claims looking to the reasonably foreseeable future. In this regard the Tribunal must assess the risk of harm to the applicant if he were to return to Albania, not whether he has previously been harmed: VBAO v MIMA (2006) 233 CLR 1 at [27].

13. As detailed above, [the migration agent] submitted that the applicant fears persecution on the basis of the political and religious stance that will be attributed to him by those who still remember his father and wish him harm. [the migration agent] submitted the applicant “… would suffer serious harm if he were to be returned to Albanian for although he cannot articulate the reasons for his fear, it is clearly based on the fears of his parents which have been a very real part of their lives, and his, since the day when his father was forced for political and religious reasons to flee Albania.”

14. The submission requires the Tribunal to make findings regarding the profile of the applicant’s parents and their claims for protection. In making its findings the Tribunal has had regard to the statutory declarations of the applicant’s parents. The Tribunal has also had regard to the evidence provided by [the applicant’s father] and [the applicant’s mother] during their protection hearing held [in] May 2017. This information was raised with the applicant in post hearing correspondence using the procedure in s.424A of the Act.

    Anti-communist

15. The Tribunal accepted that [(the applicant’s parents)] come from anti-communist Catholic families and the applicant’s grandparent’s suffered persecution under the communist regime in Albania. The Tribunal finds however that Albania has undergone significant political transformation since the applicant’s family was persecuted by the communist dictatorship in Albania.

16. 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.[3]

    [3] Political Handbook of the World 2015, Albania, p 17

17. 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.[4]

    [4] Political Handbook of the World 2015, Albania, p 19

18. 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).

19. 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.[5]

    [5]  Ibid p22

20. The Tribunal notes that 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.[6]

    [6]  >

    Country information confirms that tens of thousands of Albanians arrived in [Country 1] 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 [Country 1] home office estimates that in [1997] about [number] arrivals in [Country 1] had been recorded since March.[7] In this regard the Tribunal finds that the applicants’ and his family’s migration to [Country 1] needs to be put in the context of the political and economic climate in Albania at the time.

    [7] [Information deleted].

21. The Tribunal also notes that 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] >

    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 applicant’s parents 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 applicant’s grandparents were persecuted by the communist dictatorship in Albania.

22. The Tribunal finds applicant has resided in [Country 1] with his parents from about 1998 to 2010. He has had no involvement in politics in Albania, [Country 1] or Australia. The Tribunal finds that the applicant has not shown or expressed any interest in politics in Albania. 

23. Country information confirms that since the applicant has arrived in Australia in 2010 Albania continues to make positive political reform.

24. Having considered the country information and the applicant’s profile the Tribunal is not satisfied that there is a real chance the applicant would face serious harm in Albania in the foreseeable future because of his anti-communist family background.

    Imputed political opinion - son of PDK member

25. The Tribunal accepted that [the applicant’s father] was an ordinary member and local organiser in the Christian Democratic Party (PDK) in Albania. The Tribunal accepted he joined the party in 1992 because he was a Catholic who could relate to the values of the party. The Tribunal accepted 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 applicant’s father] may have been caught up in protest activity and was assaulted by opposition party groups in the lead up to the elections.

26. The Tribunal finds however that [the applicant’s father]’s involvement in the PDK changed after he travelled to [Country 1] in 1996. [The applicant’s father] gave evidence during his protection 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 [Country 1] was at a local community level such as helping with fundraising and organising local meetings through the Catholic Church.

27. The Tribunal accepted that [the applicant’s father] [was involved with Organisation 1] in Australia in 2016. [The applicant’s father] gave evidence during his protection hearing that the [organisation] was not political. The Tribunal notes that the applicant also gave evidence during the hearing that to his knowledge his father was not involved in politics in Australia.

28. The Tribunal has had regard to the country information and finds the PDK is a very minor political party in Albania. The party has fractured and changed since [the applicant’s father] 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,[9] the evidence does not support a finding that ordinary members and organisers of the PDK, like [the applicant’s father], face serious harm in Albania. In light of the size and influence of the PDK in Albania and applicant’s father’s political profile the Tribunal does not accept that [the applicant’s father]’s political opinion is the essential or significant reason for the persecution the applicant claims he fears in Albania.

    [9] 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

29. In making this finding the the Tribunal has had regard to [the applicant’s father]’s evidence given during his protection hearing and finds his evidence about the threats and assaults he claimed to have experienced in [Country 1] vague and lacking in credibility. In particular the Tribunal finds that during his protection hearing [the applicant’s father] was unable to provide a consistent and coherent account of the alleged assaults. For example, [the applicant’s father] claimed he was physically attacked in [Country 1] 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. During his hearing he claimed he reported the assaults to the police but they took no action. In his declaration he stated “I didn’t ever complain to the [Country 1] police about these events because I knew there was no point.”

30. The Tribunal finds [the applicant’s father]’s evidence given during his protecting hearing that he received regular threatening letters from 2005 to the time he departed [Country 1] in 2010 vague and lacking in credibility. Despite the volume of letters purportedly delivered to [the applicant’s father]’s residence in [Country 1] he made no report to the [Country 1] police. The Tribunal finds [the applicant’s father]’s evidence surprising in light of the fact that he claims he knew who sent the letters. The Tribunal finds [the applicant’s father]’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 [Country 1] in 2010. In conclusion the Tribunal does not accept that [the applicant’s father] was sent threatening letters fortnightly or monthly for five years and took no action and continued to live in the same residence, made no report to the police or tried to relocate his family. The Tribunal does not accept that [the applicant’s father] received any threatening letters in [Country 1] 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 finds it inconsistent that [the applicant’s father] would claim he had to escape persecution in Albania but would travel back to Albania every year with his family.

31. The Tribunal finds these findings are relevant in assessing the applicant’s claims that his father’s enemies will target him if returns to Albania. . The Tribunal finds [the applicant’s father] to be an ordinary member and organiser of the PDK who departed Albania 21 years ago.

32. Specifically, the Tribunal does not accept the applicant’s father was targeted or faced any serious harm in Albania because of his political profile or Catholic religion.

33. In assessing the applicant’s claims the Tribunal has also had regard to the claim that [the applicant’s mother] was the target of a deliberate [incident] and subjected to a targeted violent [assault] in order to get at her husband because of his political opinion and religious activism.

34. The Tribunal accepts that [the applicant’s mother] was involved in [incident] in June 2009. The Tribunal does not accept the [incident] was targeted or for a Convention reason.

35. The Tribunal has also considered the claims made by [the applicant’s mother] that she was subjected to a targeted violent [assault] in November 2009 in order to get at her husband. In her declaration [the applicant’s mother] said that perpetrators said “this is what you deserve” and “this is how you get treated”. [The applicant’s mother] said during her protection hearing that she thought the [incident] and assault were connected and that’s why she assumed it was a targeted attack. The Tribunal finds the evidence in this regard vague and speculative. The Tribunal finds that there is no other evidence to support the claim that it was a targeted attack.

36. The Tribunal finds that the [assault] of [the applicant’s mother] was a random criminal attack carried out in [Country 1] in 2009. The Tribunal finds that the assault was not associated with [the applicant’s father]’s political or religious activity or his or [the applicant’s mother]’s anti-communist family background.

37. The Tribunal finds that no nexus can be drawn between assault and the [incident] involving the applicant’s parents and the applicant’s fear of persecution in Albania.

38. In conclusion, the Tribunal is not satisfied that there is a real chance the applicant would face serious harm in Albania in the foreseeable future because of the political opinions of his family members. The Tribunal finds that the applicant’s fear of persecution due to his imputed political opinion or as a member of his family not well founded.

    Catholics in Albania - fear of Muslims

39. The applicant submitted that he is afraid of “Muslims” if he returns to Albania. He claims “I always heard my parents say negative things about them” and “I was told they were persecuted by them”. He did not expand further on the claims.

40. The Tribunal accepts that the applicant is a practicing Roman Catholic. The Tribunal accepts the applicant’s evidence that he is involved with his parents and brother in the parish in [Australia] where he attends [mass] every Sunday. The Tribunal accepts the applicant helps to collect money and helps out at functions in his church.

41. 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.

42. The Tribunal was provided with country information from 2008 regarding the rise of Islam in Albania.[10] The Tribunal has however placed greater weight on the more recent country information discussed below.

    [10] Islam in Albania; M Vickers, March 2008 Advanced Research and Assessment Group

43. 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’.

1. 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.”

2. 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.

3. 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. [11]

   [11]

   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

   >

   The Tribunal has also had regard to [the applicant’s father]’s recent involvement in [Organisation 1] in Australia. 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.

4. The Tribunal notes that in 2001 the government of Albania named Albania’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.”[12] The Tribunal also notes that the Missionaries of Charity have an office in Tirana, Albania. [13]

   [12] 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: >

   In assessing the applicant’s claims the Tribunal finds that [the applicant’s father] would be able to continue to support the PDK, he will be able to freely practice the Catholic faith, raise funds and continue the work of [Organisation 1] in Albania in the future.

5. The Tribunal does not accept the applicant would be perceived to be “anti-Muslim” or anti-government because his father was active in his local Albanian Catholic community in in [Country 1] raising funds for the construction of a church or because his father [was involved  with Organisation 1] in Australia.

6. The Tribunal has had regard to the country information and is not satisfied that there is a real chance the applicant will face serious harm from Muslims in Albania because he is a Roman Catholic or because of his father’s activity in the Catholic community in Albania, [Country 1] and Australia.

7. The Tribunal also accepts the applicant is a practicing Roman Catholic who regularly attends church and participates in church community activity. The Tribunal accepts the applicant will continue to attend church when he returns to Albania. Having considered the country information and the applicant’s religious belief the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm as a Roman Catholic if he returns to Albania in the foreseeable future. The Tribunal finds that the applicant is free to practice his Catholic faith in Albania without the fear of significant harm. His fear of persecution on grounds of religion is not well-founded.

   Capacity to survive in Albania

8. It was submitted that the applicant does not speak Albanian well and if he was forced to return to Albania he would be vulnerable and without tools to survive in an environment and culture alien to him. The Tribunal accepts the applicant feels anxious about returning to Albania having now lived in Australia for seven years. The Tribunal also acknowledged that initially it may be difficult for him to find work and adjust living in Albania.

9. The Tribunal notes however that serious harm as defined in s.91R(2) includes significant economic hardship that threatens the person’s capacity to subsist, denial of access to basic services, where the denial threatens the person’s capacity to subsist; denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist. A threat to subsistence as referred to in s.91R(2)(d)–(f) must be at a level that challenges the ability of the individual to continue to exist or remain in being.[14] The Tribunal finds however that there is no nexus between the applicant’s fear regarding his to capacity to subsist and the convention grounds. The Tribunal has therefore considered this claim under the complementary protection criteria discussed below.

   [14] ‘Subsistence’ in s.91R(2) denotes ‘the ability to continue to exist or remain in being’ (SZBQJ v MIAC [2005] FCA 143 (Tamberlin J, 28 February 2005) at [11]) such that ‘the level of threat must be such as to challenge the ability of the individual to continue to exist or remain in being’: SZIGC v MIAC [2007] FCA 1725 (Greenwood J, 8 November 2007) at [23]. Furthermore, the hardship must be such that it would actually threaten the applicant’s capacity to subsist: see MZYPB v MIAC [2012] FMCA 226 (Turner FM, 30 March 2012) at [13] where the Court rejected the applicant’s argument that s.91R(2)(d) only required him to demonstrate a threat to his capacity to subsist (in that case because his business as a taxi driver would be diminished by the need to take more circuitous routes so as to avoid Taliban-controlled roads) and not an actual outcome of a reduction in his capacity to subsist..

100. 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).

Complementary protection

101. The Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances. In this regard, the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Albania, there is a real risk he will suffer significant harm.

102. ‘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.

103.   In MIAC v SQRB[15] the Full Federal Court held that a ‘real risk’ test imposes the same test as the ‘real chance’ test applicable to the assessment of ‘well-founded’ fear’ in the Refugee Convention definition. For the reasons set out above the Tribunal does not accept that there is a real risk the applicant will face serious harm because of his family were anti-communist or because of his father’s political opinion and religion.

[15] MIAC v SZQRB [2013] FCAFC 33 (Landeer, Besanko, Gordon, Flick and Jagott JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342]

104.   As stated above the Tribunal has had regard to the country information and finds the PDK is a very minor political party in Albania. The Tribunal finds that the evidence does not support a finding that ordinary members and organisers of the PDK, like [the applicant’s father], will face significant harm in Albania. The Tribunal finds that Roman Catholics are free to practice their faith in Albania and do not face persecution from Muslims. The Tribunal does not accept the applicant’s father had any enemies in Albania or [Country 1] who targeted him and his family. As a consequence the Tribunal does not accept that there is a real risk that the applicant’s father’s enemies will remember his father and wish to harm him for reasons of his religion or political opinion or any other reason if he was to return to Albania.  

105.   It follows that the Tribunal is also not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Albania there is a real risk that he will suffer significant harm because of his parent’s political opinion, religion or his family membership.

Social stigma

106.   As detailed above it was submitted that the applicant would suffer social stigma in Albania because his mother has been the victim of [an assault].

107. 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).

108. ‘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]. 

109. ‘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]. 

110.   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.[16]

[16]        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].

111.   It is unclear who the applicant fears will cause him significant harm because his mother was a victim of [an] assault in [Country 1] in 2009. The applicant claims he had no knowledge of the assault. The assault was not reported to the police. No evidence was provided in support of the submission that the applicant would suffer social stigma in Albania as the child of a woman who has been the victim of [an assault]. No evidence was provided regarding who the applicant fears would intentionally impose such as stigma on the applicant.

112.   As discussed above the Tribunal finds that the [assault] of [the applicant’s mother] was an unforseen random criminal attack carried out in [Country 1] in 2009. The Tribunal finds that the assault was not associated with [the applicant’s father]’s political or religious activity or [the applicant’s mother]’s anti-communist family background. The Tribunal does not accept it was not motivated by revenge.

113.   Looking to the reasonably foreseeable future the Tribunal is not satisfied that there is a real risk the applicant will be subject to cruel or inhuman treatment or punishment or degrading treatment or punishment because his mother was subject to [an] assault in [Country 1] in 2009.

Capacity to survive in Albania

114.   The applicant’s fear that he will be unable to obtain employment and survive in Albania needs to be determined with actual reference to an applicant’s circumstances, and not in the abstract.

115.   The applicant is [age] years old. The Tribunal finds that the applicant is fluent in the [Country 1] language and completed his schooling in the English language in Australia. According to the agent’s submissions he is a talented amateur artist. The Tribunal finds that the applicant has grown up with his Albanian parents and would have some familiarity with Albanian language and culture. The Tribunal notes that in his protection visa application the applicant declared that he speaks, reads and writes in Albanian, [Country 1 language] and English. At the hearing the applicant described his Albanian language skills as 6 out of 10. At the hearing the applicant gave evidence that he still has relatives in Albania. When the applicant was living in [Country 1] he gave evidence that he and his family would visit yearly his relatives in Albania. There is no suggestion that the applicant’s relatives would not be able to provide him with support while he looks for employment and accommodation in Albania.

116.   The Tribunal finds that since arriving in Australia the applicant has completed secondary schooling and works as [occupation] for [a company]. The Tribunal has had regard to his work reference and accepts the applicant is a highly regarded and valued employee who has adjusted well to his working environment in Australia. The Tribunal finds that the applicant’s work experience would provide him with a foundation from which to be able to obtain work in Albania.

117.   No evidence was provided in support of the submission that the applicant will suffer from barriers to gaining employment and accommodation in Albania “as a child of a woman who has been the victim of [an assault].” The Tribunal does not accept on the material before it that a random criminal assault on the applicant’s mother which occurred in [Country 1] in 2009 will impact on his ability to obtain employment or accommodation in Albanian in the foreseeable future.

118.   No evidence was provided that the applicant is suffering from any mental health issues or that the applicant has been assessed by a psychologist or psychiatrist since arriving in Australia. The Tribunal was also not provided with any current reports regarding his mother’s mental health.

119.   Having regard to the applicant’s age, education, cultural background and language skills the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary foreseeable consequence of the applicant being removed from Australia to Albania, there is a real risk he will suffer significant harm because he will be denied the capacity to earn a livelihood, unable to accommodation and survive in Albania.

120.   In conclusion the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Albania, there is a real risk he will suffer significant harm.

121. 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).

122. 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

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

Christopher Smolicz
Member