1605185 (Refugee)

1605185 (Refugee) [2019] AATA 1565 (29 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1605185
COUNTRY OF REFERENCE:                 Albania
MEMBER:Lilly Mojsin
DATE:29 March 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 29 March 2019 at 5:32pm
CATCHWORDS
REFUGEE – protection visa – Albania – political opinion and involvement – membership of Albanian Democratic Party– threats and beatings – lack of State protection – vote tampering – conflicting information – not a witness of truth – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
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 and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Albania, applied for the visa on 6 May 2014 and the delegate refused to grant the visa on 23 March 2016.
The applicant appeared before the Tribunal on 31 January 2019 and 28 February 2019 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter, in the Albanian and English languages. I note that there were some difficulties with the telephone during the hearing on 31 January 2019, consequently I held a 2^nd hearing.
The applicant was represented in relation to the review by his registered migration [agent].
CRITERIA FOR A PROTECTION VISA
See Annexure A.
CONSIDERATION OF CLAIMS AND EVIDENCE
In his PVA the applicant claims that he is married and has [children]. [A number of] children live at [home].
The applicant is a member of Albanian Democratic Party [DPA] since 1992. He claims he was an official for the DPA and [in] January 2014, he was attacked on the street. He also claims he is an official for DPA in [Town 1]. He is well-known in the area as a member of the DPA. He claims he will not receive the protection of the Albanian government.
In the 2011 when the Socialists won the local election, in [Town 1] there was increasing animosity towards him and he received telephone threats advising him to stop supporting the DPA
After the 2013 Parliamentary elections the telephone threats increased until he was attacked [in] January 2014.
He fears he may be harmed because the Socialist party is now in Government in Albania and the politics in the country are violent. During the last elections “a lot of people were killed”. He believes there is no State protection is available to him because of the political corruption. He fears that he will be killed if he returns to Albania because he is a well-known supporter of the DPA and the current government wishes to “get rid of’ people who do not support them.
The applicant travelled to [Country 1] to visit [family] and he also travelled to Australia in 2013. He returned in Australia in 2014.
The applicant provided the following documents to the Department
·Membership National Association of the Prisoners and the Albanian Political Persecuted Integration [City 1] Branch number [deleted], [dated] February 2014 [Association of Former Victims of Political Persecution] stating degree of persecution [deleted]
·DPA Certificate - applicant was a member of the Commission at the voting centre [Town 1] as a representative of the DPA in the local election year 2011 and at the Parliament elections date 23 June 2013. He is a member of the DPA, since 1992 holder of membership number [deleted] in group section [in Town 1].
·Article on, leader of Democratic party of Albania since 2005
·Article DPA official list of running candidates
·Medical Report dated [in] January 2014 stating that around [a time] applicant in the vicinity of [Building 1] was there, with strong tolls at his face, dramatic injuries, ambulatory care for 9 days of rest
·[Regional] newspaper dated [January] 2014 stating that the applicant was hit by unidentified persons as he was turning back at his house. The event occurred [in] January 2014. The article further states that there are [a number of] residents of [City 1] and other regions who are obliged to abandon their families and Albania due to political beliefs and the absence of order and safety for life.
·Certificate that the applicant has never been condemned
·Applicant’s passport issued [in] 2012 showing the applicant departed [for Country 1 in] May 2012 return [May] 2012, arrived in Australia [in] February 2013 and returned to Albania [in] March 2013.
·Declaration by [name deleted] declares that she is the wife of the applicant. [In] January 2014 at around [time] she heard some knocking on the door of her house, she opened the door and saw two persons who were wearing hoods and a cocked hat. The taller one asked where her husband was and she told them he was not at home. They said they know what he has done and that he would not live for a long time in [City 1] and then they left. She closed the door and went and asked her husband what he had done but he said he did not have any conflict with any other person. In the house at the time was her husband [and a child] and no other person. She also states that 3 nights ago [in] January 2014] someone knocked on the door and when her husband opened the door he did not see anybody but they did not take that into consideration.
·Report by the applicant that on [another day in] January 2014 at about [time] at his home he heard some knocks, went out and saw a man and then he went to sleep. On [date] January 2014 around 23.00 he again heard some knocks at the door of his house, his wife opened the door and she saw two persons who were wearing hoods on their heads and a cocked hat.
·Police report [the next day in] January 2014 by wife regarding incident on [date in] January 2014 and by husband regarding incident on [date in] January when he heard some knocks and saw a man on [date in] January 2014
·Certificate of employment of [from Town 1]
·Family relationships certificate and other birth certificates.
I have listed to a recording of an interview held on 16 April 2015 with the applicant, in the presence of the applicant’s migration [agent]. The interview was conducted with the assistance of an Albanian speaking interpreter.
The applicant said that he has not claimed refugee status in any other country. He visited a friend in [Country 1] for two weeks in May 2012, he was invited by his friend. When put to the applicant that this was inconsistent with the information in his written testimony where he stated he had visited his [family] in [Country 1] in 2012, the applicant responded that his migration agent had filled out his application. The applicant's migration agent confirmed that she had read back to the applicant what had been written in his application before she signed the document. Then the migration added that “maybe” she had not read “that part” to the applicant. She does not know why he said he visited his [family] when he did not. He claimed that his life was in danger and that he may be killed. He claimed that the people who beat him belong to the Socialist Party and are in government now.
Asked what an official of the Democratic Party official does, he said that he is a member who served his party during his life. He was chosen as an Electoral Commission member on the day of the election from 1992-2014 and his role was to “count votes”. He worked at the Party office in [Location 1] and lived in [City 1]. When the election was held they would take them different places. Asked what else he did for the party he said that for 2 years he was an inspector [for Town 1].
In 2012 he was responsible for checking around the Municipality like a security man so that somebody did not steal things. He also was involved in many demonstrations against Socialist Party when they came to power, in 1998 and in 2005. Asked to explain what he meant by being “well-known in the area” he said that he protected the rights of people against Socialists. When asked how he did this he claimed to have fought Socialist corruption and always told the truth. He claimed that this is why the Socialists hated him. He claimed it was because he spoke to the Commission about the Socialist Party stealing votes meant for the DPA and putting them in the box for the Socialist Party.
The applicant was asked to describe the voting ballot and he said that it names on it and that there were to be ticks in order of preference. He was asked how putting ballot papers meant for the DPA in the box for the Socialist Party would make a difference to the vote. The applicant described the voting papers as having ticks next to the name. Asked what difference it would make to put the ballots in the Socialist box, he said when they put them into a box they cannot open the box again. He said he did not want to sign and they are stealing the votes.
The applicant was asked to discuss the DPA’s political philosophy and he said they were for capitalism. He said the DPA did not like the Socialist Party and that is why they fought against them. The applicant said the DPA have a constitution and it was about freedom for people. The people who run the party are respected people. The applicant was asked to provide the motto adopted by the DPA in the 2011 elections and he said it was “with us everyone is going to win”. Asked if the DPA went into the election as a solo party, he said there were others, about 6 or 7 other parties with them. He was asked to provide the collective name for the Party and he said it was the Right Coalition.
The applicant claimed he joined the DPA because the Communist party was in power for over 50 years and they were not liked. He said it was a family tradition because they killed his grandfather in 1946. It was put to him that the DPA did not exist in 1946 and he responded that as a family they never liked the Socialist Party. They wanted Albania to join the EU.
It was put to the applicant that according to his written testimony in the [years] he has been a member of the DPA he has only experienced one incidence of violence. He responded that he had no problems when won the first election in [City 1] and they (the threats) started when the Socialist Party won in [City 1] in 2013 Parliamentary elections. He was asked about the 2011 local elections and he claimed that the DPA won.
He was working for the Municipality [Town 1] for 2 years under a Socialist Party Lord Mayor and he claimed that even though the Mayor was a Socialist Party member they knew him very well and gave him the job because he was the right person. It was put to him that if this was the case why was he receiving threatening phone calls in 2011 and he claimed that it was because some members threatened him because they didn’t like him in the job because he was from a different party. The applicant did not report the phone calls to the police for fear of reprisals.
Asked why he did not relocate to another part of Albania he stated that it is a small country and it would have been impossible.
Put to him that he had travelled to [Country 1] and Australia and returned and it suggested he did not have subjective fear of persecution. He said that they started threatening him after September 2013 Parliamentary elections because he saw the theft of the votes and he signed the papers. Asked if he was paid to count the votes, he said he was paid. After that he didn’t work for any party and he got private jobs.
The threatening phone calls began after September 2013 when he reported the theft of the votes. He said he not remember the number of calls he received and said it may have been 5, 6, or 7. He told the truth about how they steal a vote and what they did during counting the votes, they wanted revenge against him. He did not go to the police when he was first bashed as he did not want them to do something to him. First time he was bashed was [in early] January [then mid] January 2014 they came to his place [late] at night. The first time he was bashed was in front of [Building 1]. He reported the attack to the police. Only one reporter came, his friend, who wrote a report. He went to hospital. He does not have the report from the police only from the hospital. His wife told him that people had been to look for him. He made a report to the police.
It was put to the applicant that the news article he submitted with his application stated that he was beaten by “unidentified persons”. Asked to provide further details about his claimed assault by Socialist Party members he said he was first beaten [in early] January 2014. Asked why this was not included in his written testimony he claimed that it was in the newspaper article. Even though the article says he did not identify his attackers he told the police who they were. Asked why the names of his attackers were not included in the police report, he said they feared for the safety of their families. It was put that perhaps the police did nothing for him because they did not have any names to pursue. In response he said he told the police they were from their party.
The next time he was beaten was [in mid] January 2014 [early] in the morning. He reported this to the police. It was put to the applicant that his police report evidence was dated [earlier in] January 2014 and he then said he did not report the incident to the police but he had a hospital report in his evidence.
The applicant was asked why he had not sought protection whilst in Australia in 2013 and he stated that he never thought to do that because he had a “normal” life at the time.
It was put to the applicant that the EU considered the Albanian police provide an acceptable level of protection to its citizens and he was asked if he agreed. In response he stated that it was not true. Asked why he came to Australia when he could have fled to any of the EU countries which are closer to Albania, he claimed that he “chose” Australia because he thought he would get better protection and wanted to be far away. It was put that all EU countries would protect him, he disagreed.
It was put to the applicant that he chose Australia because he could work here and he agreed. He was asked how his family were surviving without him and he claimed that he had savings and now he was sending them money.
Tribunal hearing 31 January 2019
The applicant told the Tribunal that his family in Albania comprise [a number of] children, [some] married and [and some] at home with his wife. He lived in [Town 1] which is suburb of [City 1]. He has lived there for [years] and he owns his own home which he moved to when he was 22 years of age. The house was sold by the government to his [family] and is unencumbered. His wife works now as he is far away and she is worried. She recently started [working]. After their son was born in [year] she stopped working. At the time the applicant worked for the [government]. He stopped working for the [government] in [1989] . He then worked for a [company] until 2012. He worked at the election and got a job with a private [company] [in Town 1]. He stopped working with that company at the end of 2012.
Asked why he came to Australia he said that he was involved in a political party and asked for political protection. Since 1992 he was a member of the DPA which is against the Communist party. He joined the DPA when the communist system changed in 1992.
Asked if anything happened to him because of his membership of DPA between 1992 and 2011 elections he said he did not have any big problems.
I asked the applicant if there had been any problems for his membership of the DPA after the 2011 elections. He said that after 2011 when local election problems happened and there was a change from DPA to the Socialist party, there was a small problem at the 2011 election, when they were trying to steal the votes and he was counting the votes they were not happy. Nothing happened to him then, there was only disagreement. Now and then he had received telephone calls.
In regard to the 2013 elections he said was counting the votes. He said that “we opened the box and we pick up the votes on a table and one by one and show to the other people”. Asked who employed him, he said that it was the party and the secretary of the party. He was in a particular polling booth, [Town 1 a] suburb of [City 1]. He was there all day during the election. He arrived at centre for voting at 7am. Asked what he did all day when he was there, he said he was standing there and giving out election forms. The forms were for people to mark the form and put into the voting box. His political party gave him the job to do that. He was paid [by the political party]. After 7pm they started to count the vote. Asked who else was counting he said that it was members of the other party and all other parties. All people inside this voting centre were members of different parties.
Asked where the government employees were in the Voting Centre he said that only the Commissioners for each party were inside and the police were outside. Asked who the Commissioners were, he said that they were from different parties who had their own people. No government representatives where there when the votes were counted. They did not have the right to be in the centres. He was at the number [deleted] voting centre. He was a Commissioner during that voting day for the party and had a right to hand out the polling papers and count the ballots. Asked how he knew if a person was eligible to vote, he said everyone was allowed to vote, they had lists with the names and passport of the people.
Asked where he got the list from with the names of the people eligible, he said that it was the births and deaths office. The list was brought to the Commission and they gave it to people. Asked if he was handing out papers to voters as a DPA supporter what were socialist party supporters doing. He said that he has the right to give the forms and one had the right to check id and one checked the list. They were not DPA but from different parties but had to show the papers to others. His paper was the one for people to fill out with a tick or x. People put the vote when they finished voting into separate boxes that were hidden.
After the voting finished the votes were counted in the same centre. Asked which people were in the centre when the votes were counted he said that there were many parties in there. Asked what time the counting of the votes finished, the applicant said that it took a long time and they closed the building. There were guards and they continued for 3 days and he with some others were the only people to go in and continue. When they finished counting the results, in the middle of counting a problem started. A member of the Socialist party did not show him the vote so he was not abiding by the rules and showing the form. There was an argument. He told this person that he is not obeying rules and that he will not sign the election paper. This man stood up and made trouble and he did not put the form where it belonged. The applicant did not sign the process of vote and the police came in. He left and did not go back.
Asked who he reported the incident to, he said that it was to the leader of his party in the district. The leader said he has done well he was protecting his own party.
Asked if he knew who the person was in the voting centre that he had the altercation with, he said that he knew his face, it was [Mr A].

[In] December 2013 the applicant was having coffee around [time deleted] and after leaving he was stopped, hit with iron weapons. He does not know who attacked him.
Asked between the day of vote counting and the day he was attacked if anything happened, he said it was with the phones. He was called and they said “where are you going now and I said I have the right to my action”. Asked how many times he received these calls he said he cannot remember. It was 2 or 3 calls.
It was put to the applicant that a certificate he had provided stating that he was a member of the voting centre number [deleted] at [Town 1] for the Parliamentary election June 2013 it was not centre [number deleted]. He responded that may be a mistake, it has happened, the problem may be in 2011.
It was put to the applicant that the Central Election Commission accepted and adjudicated on three complaints which included the [City 1] District. Only the RP Republican party complained about the result in the [City 1] District and the Central Election Commission initiated a recount of all [ballot] boxes from the district. The recount revealed minor discrepancies in the results but did not change the allocation of seats. Therefore, it was implausible that he would be assaulted some months after the election. He responded “I am not the person who caused trouble he came in here for what happened”.
Put that an OSCE report dated 10 October 2013 found that the 23 June 2013 elections were competitive with active citizen participation throughout the campaign and genuine respect for fundamental freedoms. The election was marred by the death of a DPA supporter in [Town 2]. Whilst there were flaws in the process it did not suggest that there were any late reports about voting fraud.
It was put to the applicant that the economy of Albania is bad and that people work for low wages and often have difficulty obtaining work. This means that many Albanians work all over Europe and over the years it has been a large part of the economy for people to send money back to Albania in order to support their families. He did not agree, he said that he had a normal life and a good wage.
Asked what he fears about returning to Albania he said that he feared that he would be killed because of his political involvement. Put there is no evidence available that merely being a person who is a member of a political party suggests that he will be harmed. He said that there is a lot of killings. It was put that he can report to police, there is a functioning legal system. He said there is no protection and a lot of killings. It was put that the report about his assault, stated that he was injured by unknown people. He said that it was because he did not have problems with anyone else and he mentioned the person he had the problem with, he did not have problems with anyone else.
It was put to the applicant that if he feared for his life he could have gone to an EU country including Greece. He said he was afraid and there are killing in those countries. He was afraid to be in Europe. It is further away here in Australia.
It was put to the applicant that there is a functioning police and judicial system and whilst there are instances of corruption and police abuse, there is an ombudsman, the government has internal mechanisms to investigate and punish police abuse and corruption. He did not agree.
In regard to the newspaper articles provided to the Tribunal, it was put that these articles do not suggest that all DPA members are harmed for their political opinion. He said that they are articles regarding genuine discontent and that the man killed in [City 1] was a mafia style killing.
The Tribunal invited the applicant to a 2^nd hearing with a different interpreter.
Tribunal hearing 28 February 2019
Discussing the applicant’s membership card of DPA the applicant said it was his job as a member of the electoral commission to count votes. He worked at the party office in [Town 1]. It was where the conflict started.
Put that at the previous Tribunal hearing he said that he was in a particular polling booth in the district of [Town 1], number [deleted] voting centre and he was standing there and giving out election forms so that people marked the form and put it into the voting box. He agreed.
He said that after 7.00pm they started to count the vote with all the people inside the voting centre. He said that the voting continued there for three days. He said that the ‘voting closed and then we started to count the votes but I did not sign the votes when they were invalid’.
A member of the Socialist party did not show him a vote, there was an argument, and he told the Socialist party representative that he will not sign the election paper and he did not sign it. The police came in and he left. He did not sign the documents because he realised it was not right and he does not know what happened after that. He reported the incident to his party leader. The name of the person with whom he had the altercation was [Mr A]. At the voting there was this incident and because he noticed there was corruption this started the arguments.
Asked if this altercation happened on the night of the election. He responded that this happened during the process of counting the votes that night around 10 or 11pm. This occurred on night of the election at the no [deleted] [Town 1] voting centre where he had been assisting all day. As far as he remembers maybe he is confused with the no [deleted] voting centre, it could have been [another number]. After he left that evening, he went to see the leader of the party the next day.
After seeing his leader the first time he received any threats was the moment he refused to sign the documents, as counting had stopped and the threats started. They say ‘you must sign and you can go anywhere’. Put that this was not a threat but a conversation. He responded it is threatening as the counting did not go ahead and after that he was beaten up. He was beaten up about 6 months after the Socialists came to power. Put that previously he said he was beaten in January. He responded it was [in] December 2013 at about [time deleted]. He said it was in front of [Building 1]. He said that on [date] December 2013 at about [time deleted] he was having coffee. Asked again when it happened, he said he was having coffee with friends.
Put information from the Albanian Electoral Commission regarding procedures for counting the vote indicated that votes were taken to a counting centre and not counted at the voting centre. I put that the Election Code states that ballot boxes with the ballot papers and the box with the voting materials are sent to the ballot counting centre after the vote. Delivery is performed with a motor vehicle in which are seated the members and the secretary of the voting commission centre as well as a police officer. At the counting centre the receiving team consists of two CEAZ [Commissions of Electoral Administrative Zones] members with different political affiliations who receive the ballot boxes. The votes are counted by the counting team members and if there are discrepancies these are notified immediately. Article 24 provides that any political party and candidate has the right to complain against any decisions made during the vote count within three days of the announcement of the decision.
The applicant responded that the counting happens in the centre a lot of delivering occurs because of corruption and he is here because of these political problems.
I put to the applicant that this information is inconsistent with his evidence given previously. I drew to the applicant’s attention that it was my view that he was not telling the truth in regard to counting the votes at the 2013 election and therefore it was my view that he was not assaulted or harmed after the 2013 elections for his political opinion and that the declaration made by his wife was also untrue. I also put that the Police report dated [in] January 2014 made by his wife regarding an incident on [date] January 2014 and by the applicant regarding an incident on [date] January was also untrue. I put that he came to Australia to work. He said that he would not have come and he stayed away for 5 years. He had a good life and worked there and it was stable there. I put that he returned to Albania despite receiving threatening phone calls. He said in [Country 1] he went because he had an invitation.
I drew to the applicant’s attention that the newspaper article that he produced did not suggest that he was assaulted for reasons of his political opinion and that it is easy to fabricate newspaper articles or to even pay for false articles to be printed.
I put to the applicant that [the regional newspaper] is not listed as an Albanian newspaper. [Website deleted] and a search on the internet [deleted] indicates that it is an unknown host. He disagreed it is easy to fabricate documents. He said the newspaper exists and he has phone number of person and the article is real and true.
I put to the applicant that it is easy to falsify documents in Albania. The applicant did not agree. He said that he was involved in many demonstrations against the Socialist party in 1998 and 2005. There were telephone threats in 2011 because some members did not like him in the job as he was from a different party. I put he travelled to [Country 1] and Australia and returned.
I asked the applicant about a document Membership National Association of the Prisoners and the Albanian Political Persecuted Integration [City 1] Branch number [deleted], dated [February] 2014 [Association of Former Victims of Political Persecution]. He responded he has checked documents on internet. I put that the document has no relevance to his claims. He said that it says “we have been persecuted during communism”.
I put to the applicant that the working group of the UN has commended the Albanian government’s positive steps regarding the enforced disappearances and the brutality of the fall in the Communist regime and whilst Albania had yet to deal adequately with the human rights violations there is no evidence that members of this group suffer harm in Albania now. He said that it is the same party. It is not like there is a big change. “We support the Democratic Party and against the Socialist party and they do not like us and are not nice to us”.
I put to the applicant Albanian police provide an acceptable level of protection to its citizens. He disagreed. He said he did not get police protection and that is why he had to leave.
When put that he could have gone to any EU country closer to Albania he said there are a lot of Albanians in Europe and it is not safe to stay there.
The applicant provided post hearing submissions. The applicant provided a number of newspaper articles from [a regional newspaper], none of which were translated but show the newspapers internet address. Some newspapers were from 2001, 2007, 2008, 2011, 2018. The applicant does not suggest that any of those newspaper articles refer to him or have any relevance to his claims.
The applicant also provided a number of newspaper articles in English. I have read those articles.
The applicant also produced statements from:
·[Name deleted] who states that he was aware of the beatings on the applicant [in] January 2014 by unknown persons
·[Name deleted] that in 2013-14 he worked [at] a police station in [City 1] and that the applicant’s wife was threatened by 2 unknown persons who told her that her husband would not live for long
·Police report confirming the applicant’s wife statement about intruders coming to their home [in] January 2014
·Authentication dated [in] October 2018 by DPA that applicant has been a member since 1992 and the in 2013 he had conflicts in [Town 1], near the voting centre, with [political opponents who continued after the election with threats by forcing him to leave the country
A statement produced post-hearing dated [in] February 2019 by [Mr B] states that he was informed about the applicant being hit on the face [in early] January 2014. He states that he learned that the pressures against this citizen were made by political exponents. He also states that these happen because of the continuous conflicts between the two main political forces in the country, the Socialist Party which is in power since 2013 and the Democratic Party which aims to return in the country’s power. These conflicts bring many times violence and destabilizing acts which are mostly accompanied with the abandonment of the country. In 2019, there is a lack of security, high unemployment, the criminal gangs which make the law in cities of [City 1], and there is no hope and faith for the future. Cases of dismissals, pressures, threats to life and hit because of the political persuasions are noted almost every day in Albania, mainly in cities as [City 1 and others].
The applicant’s advisor further stated:
In the first Hearing on 31 January, 2019 the Member referred to a document on the file in words to this effect:
“The reason I am having difficulty is because there is a document in the file that indicates you were not in the Number [number deleted] voting centre – that document, which has been provided by you, says you were at [another numbered] Voting Centre at [Town 1] … Do you have any comment?”
The applicant was not shown this document and he was visibly non-plussed. Since that Hearing I have been unable to locate any such document on the files.
The applicant would request, as a matter of urgency, a copy of the document to which the Member was referring at that time – this extract appears between 1:55:30 and 1:59:00 on my version of the recording.
The Second Hearing held on 28 February, 2019:
In this Hearing also the Member referred to a document or documents which were not shown to the Applicant who attempted to guess which document(s) were being referred to:
“… Well sir, you have also provided a document – a membership of the National (inaudible) … Persecuted ... Prisoners and Albanian Integration ...”
APPLICANT (A): “I will check some documents on the internet – things happening in Albania…”
MEMBER(M): “I don’t understand the relevancy of the documents to the Tribunal.”
A: “Is it the document that says we have been persecuted during Communism?
M: “No – the document merely states the document – membership card – your name, date of birth – says place of residence [City 1], that’s about all – Membership card – that document sir.”
[It is noted that the Member did turn the file towards the applicant at that time but he was not given a clear view of it and his advisor could only guess as to which document / card was being referenced.]
A: That’s basically saying he was persecuted during Communist time – persecuted under Communism.
M: Sir, when were you born?
A: In village [Location 1]
The Applicant would like a copy of the document / Membership card to which the Member was referring at this time.
The Tribunal sent to the applicant’s advisor the Department documents sought
·Membership National Association of the Prisoners and the Albanian Political Persecuted Integration [City 1] Branch number [deleted], [dated] February 2014 [Association of Former Victims of Political Persecution][1]
·DPA Certificate[2] stating the applicant was a member of the Commission at the voting centre number [number deleted] in [Town 1] as a representative of the DPA in the local election year 2011 and at the Parliament elections date 23 June 2013. He is a member of the DPA, since 1992 holder of membership number [number deleted] in group section [Town 1].
[1] File [number deleted].
[2] [File number] Folio 9
The applicant’s advisor also stated:
The Tribunal Member also voiced her belief that the Applicant was not telling the truth in relation to his presence at the polling booth on the night of the June, 2013 election:
“ To conclude sir, you were not counting voted in the polling booth on the night of the election and you could not have had an altercation with the Socialist Party over vote counting and nobody needed to threaten or beat and harm you in the 2013 election….”
The Tribunal Member stated that her source for the conduct of elections was the Albanian Electoral Code Article 94 and she based her comments in relation to the applicant on that source.
It is noted that in both Hearings of the Tribunal the applicant became distressed to the point of tears when accused of fabricating documents and telling untruths.
The applicant maintains that he has told the truth about his role and involvement in the 2013 elections and that the source – Article 94 – is from a code expressed on paper only and does not reflect the reality of what was happening on the ground in Albania from the start of democratic elections until the date on which the applicant left Albania. The current electoral / Parliamentary crisis in Albania at the moment is reflective of and a culmination of years of electoral and election unrest and corruption. The applicant has already provided some media articles reflecting this unrest and in particular the fraud and unrest – the corruption – experienced in the relevant 2011 and, in particular, 2013 elections which catapulted him into conflict at the local political level because of his refusal to sign off on the ballot because he considered it to be corrupted by the cheating he saw happening on his watch.
The applicant reiterates that his account of the voting method is a truthful account. It is unfortunate that the tight deadline has meant that the applicant cannot provide testimony from others as to how voting that year proceeded in the [Town 1] area but in any event he is uncertain as to what evidence of the reality the Tribunal Member would be prepared to accept given that so far it seems she has dismissed all documentary evidence and individual testimonies provided by the applicant.
The accompanying media articles give some evidence of the extent of violence and corruption over the years in elections in Albania.
The accompanying article “Deadly Shooting overshadows Albania election” dated 23/06/2013, is particularly relevant as is the one entitled “Vote-Buying ‘Rampant’ Ahead of Albania Poll”, dated June 10, 2013
The applicant’s advisor will be overseas, as previously noted to the Tribunal, from this coming Saturday (March 16 and not formally back in her office until 2 April, 2019 (she has a Tribunal matter in Adelaide on 2 April). Should the Tribunal require any further comment and / or is able to give the applicant more time to comment further, then an extension of time to 14 April, 2019 is requested.
There are people in Australia who could be approached to give evidence to the Tribunal but this would require another Hearing and the Tribunal has stated clearly that a decision will be made after 5.00pm today.
The Applicant is a witness of truth.
The applicant’s advisor also provided a Publication ‘Observations of Parliamentary Elections in Albania 2017 Document 14392’.
REASONS AND FINDINGS
On the basis of copies of identity documents in the Department file, including an Albanian passport, I accept that the applicant is a national of Albania and is not a national or citizen of any other country. Therefore I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Albania is the applicant's “receiving country” for the purposes of s.36(2)(aa).
The applicant’s adviser has claimed that in both Tribunal Hearings the applicant became distressed to the point of tears when accused of fabricating documents and telling untruths. I accept that when the Tribunal has to put evidence to an applicant evidence that is inconsistent and that suggests that the applicant is not a witness of truth applicants are not happy and react in different ways. I observed the applicant during the course of the hearing and I do not accept that the applicant became distressed to the point of tears. The applicant did not at any time state that he was distressed or that he needed to stop the hearing. Neither did the applicant’s adviser. I have considered whether the applicant lacked competency during the hearing. The applicant answered questions without hesitation. The applicant has not provided any medical evidence to suggest that he lacked competency. I am of the view that had the applicant being distressed to the point of tears at either hearing the applicant’s adviser would have made a submission to the Tribunal at that time.

I accept that there may be errors, omissions or misunderstandings that cannot be automatically attributed to an applicant's credibility or the applicant not being truthful. I am mindful of AAT guidelines on the assessment of credibility. I am also mindful that in the process of asking further questions and commenting on those questions during the process of assessing an applicant’s claims may mean that it is feasible an applicant will provide new information when he is asked to respond to or provide more details. I am also mindful that there can be interpreting errors, cultural differences and plausible explanations for inconsistencies other than deliberate falsehoods. I am also mindful that applicants who suffer from nervousness, anxiety, depression and or post-traumatic stress disorder may have difficulty remembering all recounting aspects of their claims. In particular they may block out or neglect to mention upsetting or traumatic experiences. I am also mindful that just because one part of an applicant’s claim is exaggerated does not mean that the entirety of the claim is dishonest.
By way of background[3] after Enver Hoxha's death in 1985 his chosen successor, Ramiz Alia, gradually opened up Albania both diplomatically and economically from an isolationist policy. In 1990, following student demonstrations, the formation of alternative political parties was allowed for the first time. The Albanian Democratic Party (DPA) was the first to emerge and was quickly followed by several other parties. Significant progress towards democratisation was made, leading to multi-party elections in March 1991. The Communists managed to hold on to power but a third of the parliamentary seats went to the DPA. The People's Assembly approved an interim basic law in April 1991. Short-lived governments introduced initial democratic reforms throughout 1991. Demonstrations continued, and in June 1991 the Communists were forced to include the DPA in a coalition government. In March 1992, new elections were held in which the DPA, led by Dr Sali Berisha, won an overwhelming victory, signalling the final collapse of communism. The DPA began a more deliberate program of market economic and democratic reform. In the years that followed, Albania enjoyed a period of economic growth in which democratic changes were introduced, civic institutions were created and laws on human and minority rights were passed. However, by the mid-90s the DPA led by Sali Berisha started to adopt increasingly non-democratic and even authoritarian policies.
[3] >
The DPA became the leading party in the governing coalition following the 2005 parliamentary elections. Prior to 2013, Albania , a member of NATO, had yet to hold an election deemed free and fair by international monitors in more than two decades since its transition to democracy from the Stalinist rule of late dictator Enver Hoxha. Polarization between the two mainstream political parties, concerns about lapses in Albanian democracy and the slow pace of reform have stalled the country's quest to join the EU. Albania remains prone to violence and instability. Despite a highly polarized political atmosphere, elections had been mainly peaceful and political violence had usually, but not always, been avoided[4].
[4]
The OSCE reports that the 2013 election[5] was generally peaceful and conducted in an orderly manner, although, a fatal incident in [Town 2] negatively impacted the start of the elections. This incident has been reported extensively in the media and the applicant has provided articles that reference the incident. The OSCE report states that a significant number of voting centres opened with delays, mainly due to a lack of organization. Instances of group/family voting and inconsistent implementation of some procedures impacted the overall assessment of voting negatively. Closing procedures and ballot box intake at ballot counting centres (BCCs) were assessed in more positive terms. Counting was delayed in many BCCs due to disorganization, including the late appointment of counting officials, and obstruction by certain counting officials proposed by the governing party. Once counting proceeded, it was generally orderly, albeit slow, and was assessed positively. The presence of citizen and party observers throughout election day generally enhanced transparency, although in some cases, partisan observers were seen directing or interfering in the voting or counting processes. The Central Election Commission began uploading preliminary results on the morning after the elections though it approved most district results past legal deadlines. The CEC received some 40 complaints challenging the results in a number of districts, most claiming that political opponents misappropriated votes during counting.
[5] OSCHE Report on 2013 Albanian elections
I give the applicant the benefit of the doubt and accept that that he was a member of the DPA. I also accept that he was injured December 2013 or January 2014, he was hospitalised and subsequently unknown persons came to his home and threatened him [in] January 2014 and came back 2^nd time.
I do not accept that the applicant is a witness of truth.
The applicant’s explanation of how votes were counted during the 2013 election at the conclusion of voting is inconsistent with the independent evidence. The applicant said that at the 2013 elections he was counting the votes, “we opened the box and we pick up the votes on a table and one by one and show to the other people”. He was in a particular polling booth, district of [Town 1], suburb of [City 1]. He was there all day during the election. He said that he had been at the polling booth all day and after 7pm they started to count the vote with members of the other party and all other parties. At the 2^nd hearing he confirmed that the votes were counted in the same centre that the vote was taken. A member of the Socialist party did not show him a vote, there was an argument, and he told the Socialist party representative that he will not sign the election paper and he did not sign it, the police came in and he left. This happened during the process of counting the votes on the night of the election around 10 or 11 o’clock.
The independent evidence before me, the Albanian Electoral Code [see annexure B] article 114 states that the ballots papers are sealed at voting centres and the ballot box/es with the ballot papers and the box with voting materials are delivered to the Ballot Counting Centre [BCC] as early as possible, but no later than 3 hours from the closing of the polls in the voting centre. Their delivery is performed with a motor vehicle, in which are seated the members and the secretary of the VCC, as well as a police officer, who is charged with guaranteeing the accompaniment and the integrity of the ballot box/es with the ballot papers and of the box with voting materials. Article 94 states that the Counting Centres are usually in Gymnasiums. The OSCE report states:
Counting was delayed in many BCCs due to disorganization, including the late appointment of counting officials, and obstruction by certain counting officials proposed by the governing party. Once counting proceeded, it was generally orderly, albeit slow, and was assessed positively.
A report[6] from USAID, provided by the applicant, states that on 23 June 2013, 53.5% of Albanian citizens exercised their right to vote. Voting generally was peaceful and observers assessed voting and counting procedures positively. In a post hearing submission the applicant claimed that he told the truth about his role and involvement in the 2013 elections and that the source – Article 94 – is from a code expressed on paper only and does not reflect the reality of what was happening on the ground in Albania from the start of democratic elections until the date on which he left Albania.
[6]
As I prefer to rely on OSCE reports as to how voting was conducted during the 2013 election. This is because the OSCE[7] is the world’s largest regional security organization. Albania is a member. The OSCE opines that it helps its participating States build democratic institutions; hold genuine and transparent democratic elections; ensure respect for human rights, media freedom, the rights of persons belonging to national minorities and the rule of law, and promote tolerance and non-discrimination.
[7] >
I note that the Electoral Code was approved by the Albanian Parliament being Law no. 10 019, dated 29.12.2008[8]. The National Democratic Institute [NDI] completed a Pre-Election Mission in 2013 to Albania[9]. That delegation was to assess in an impartial manner election preparations for the June 23, 2013 parliamentary elections; review the overall political environment shaping the election cycle; examine particular factors favoring or hindering a democratic expression of the will of the people; and offer recommendations to enhance the credibility of the election process.
[8]
[9]
The NDI[10] in its Albania Election Watch Volume 1, May 22, 2013 stated that Albania holds national elections for the 140-member unicameral People’s Assembly every four years using a closed list, regional proportional representation system. The country is divided into 12 electoral districts, and the number of parliamentary seats (between 4 and 32) in each is proportional to the citizens in that area. The Ministry of Interior maintains the National Civil Status Register, which produces a list of eligible voters. The final number of voters is 3,270,936. The elections are administered by a three tiered election administration consisting of the seven-member Central Election Commission (CEC), 89 Commissions of Electoral Administration Zones (CEAZs), and 5,506 Voting Center Commissions (VCCs), each serving between 200 and 1,000 voters. An amended electoral code, passed in July 2012 with broad support from the two main parties, provides for a stronger legal framework for the upcoming 2013 parliamentary elections.
[10]
The OSCE reported extensively on the 2013 elections in Albania. It is an independent report. The OSCE/ODIHR[11] assessed the electoral process for compliance with OSCE commitments, other international standards for democratic elections, as well as national legislation. For election day observation, the OSCE/ODIHR EOM joined efforts with observer delegations from the OSCE Parliamentary Assembly (OSCE PA) and the Parliamentary Assembly of the Council of Europe (PACE).
[11]
I rely on the OSCE report for an explanation of how the 2013 Albanian elections were conducted. The OSCE, monitored the election and has stated in its report released on 10 October 2013[12], that the Electoral Code, which was extensively amended in July 2012, improved the electoral framework overall at the 2013 election and generally provided a sound basis for the conduct of democratic elections. I rely on the OSCE report as reliable and independent evidence. I have found no independent evidence to suggest that the Electoral Code a code is a code that is expressed on paper only. I am of the view that some mention would have been made in independent sources, such as the UK Home Office or National Democratic Institute or USAid that the Albanian Election Code is a code expressed on paper only.
[12]
I also note that the applicant provided an article to the Tribunal by Refworld[13] Doc. 14392 Election observation report. That report relevantly states:
The Electoral Code was drafted by a bipartisan committee and gives the two largest political parties (currently the DP and the SP) significant responsibilities at every step of the electoral process, including election administration. As the joint opinion indicates, as a result, the code “is overly detailed and includes many checks and balances that can result in challenges in administering elections, as well as possible obstruction of the electoral process by representatives of the two largest parties”
In Albania, counting does not take place in the polling stations, but in 90 ballot counting centres (BCCs) corresponding to the 90 electoral administration zones. This specific feature is one of the consequences of the general lack of trust between the various players, including within individual political groupings.
Vote counting in dedicated centres is a feature specific to Albania.
[13]
After the 2^nd Tribunal hearing the applicant was given an additional 14 days to provide further information. I have considered whether the applicant’s advisers request for more time as she claims the tight deadline [ie 14 days to provide additional submissions], has meant that the applicant cannot provide testimony from others as to how voting that year proceeded in the [Town 1] area. She further states that in any event “he is uncertain as to what evidence of the reality the Tribunal Member would be prepared to accept given that so far it seems she has dismissed all documentary evidence and individual testimonies provided by the applicant”.
As explained to the applicant’s adviser at the 2^nd Tribunal hearing, the evidence regarding vote counting procedures was crucial to the applicant’s credibility. The applicant had time after the 2^nd Tribunal hearing to provide any additional evidence regarding that aspect of his claim. Despite the claimed time limitations, I note that the applicant was able to obtain a number of edition of the [regional] newspaper. He has provided an article from Refworld[14] that supports the information provided by the OSCE. Therefore I do not propose to provide additional time for the applicant to provide testimony from others as to how voting that year proceeded in the [Town 1] area.
[14]
The applicant specifically refers to a media article “Deadly Shooting Overshadows Albania Election” dated 23/06/2013 and stated that this article and an article regarding vote buying gives some evidence of the extent of violence and corruption over the years in elections in Albania. I accept that there has been violence and corruption in Albania in elections. I also accept that a backdrop of mutual accusations of vote-buying and pressure on voters lasted throughout polling day, incidents were reported by the media. The shooting in the article referred to was also referred to in the OSCE report. The OSCE does not suggest that it occurred elsewhere other than in [Town 2] which is some [number] kilometres from [City 1] and about [number] minutes drive away from the applicant’s town.
As for an article “Vote-Buying ‘Rampant’ Ahead of Albania Poll”, dated June 10, 2013, I prefer to rely on the OSCE report[15] that postdates this newspaper article and indicated the presence of citizen and party observers throughout election day generally enhanced transparency, although in some cases, partisan observers were seen directing or interfering in the voting or counting processes. Therefore whilst I accept that there was corruption and interference in the election I am satisfied that evidence from independent sources[16] reported that the 2013 elections were held in accordance with international standards, bringing new stability to the politics and economy of the country. Election results were announced the following day without significant contestation, particularly due to the wide margin of difference between the two main blocks. Confrontation that was expected in the streets as well as the courts did not materialize as it had in previous elections. Albania’s electoral process rating improves from 4.25 to 4.00.
[15]
[16]
I note that the OSCE report stated that the 23 June 2013 elections were competitive with active citizen participation throughout the campaign and genuine respect for fundamental freedoms.
USAID further reported that
on June 25, with 98 percent of the ballot boxes counted, the outcome was clear—the opposition’s resounding victory was imminent. However, acceptance of the results by the CEC was not. Throughout this process, it was ALBERT [computer program] that provided multiple checks and verifications, making fraud much more difficult. “The behind-the-scenes IT assistance the United States provided was absolutely critical to the success of the electoral process,” said Conny McCormack, head of the Organization for Security and Cooperation in Europe’s Election Observation Mission. “It was an ambitious program with an extremely tight time frame and a million moving parts, but it was perfectly executed. This had a huge impact on the acceptance of results and the Central Elections Commission now has a solid system for future elections.”
The opening session of Albania’s Parliament on Sept. 9, 2013, was the first time in the country’s brief democratic history that no party boycotted the session. Building on this success, USAID has continued to work with the CEC to ensure that ALBERT is ready for use in upcoming local elections.
In light of the OSCE report, and the reports detailed above, I reject the applicant’s claims that the Electoral Code did not reflect the reality of what was happening on the ground at the 2013 elections. I am satisfied that the Albanian election was conducted in accordance with the Albanian Electoral Code and that voting was completed on the night at special Voter Counting Centres and not at the ballot voting centres. Therefore the applicant was not counting election ballots at the 2013 elections and it follows that he did not have an altercation with a Socialist Party member or any other person over the ballot during the count that night. It follows that I do not accept that the Socialist party have sought to and continue to seek to harm him. I do not accept the applicant received threatening telephone calls for his political opinion after the 2013 election or that he was assaulted, threatened or harmed for his political opinion when he resided in Albania. I do not accept that applicant is a witness of truth. I am satisfied that he has created his claims of being harmed by Socialist Party members in order to obtain the visa sought.
I have considered a document provided to the Tribunal, Authentication by DPA [dated] October 2018 that claims that the applicant had conflicts in [Town 1], near the voting centre, with political opponents. As the applicant claims that the conflict he had was inside the voting centre where he had been all day and not near the voting centre I place no weight on this document.

100. I have considered a DPA certificate provided to the Department. The applicant told the Tribunal that he worked at the number [number deleted] voting centre whereas a DPA certificate he had provided to the Department stated that the applicant was a “member of the Commission at the voting centre number [number deleted] in [Town 1] as a representative of the DPA in the local election year 2011 and at the Parliament elections dated 23 June 2013”. When put to the applicant that he was not working during the elections at voting centre [number deleted] he said that it must have been a mistake and it was the 2011 elections. As the applicant’s evidence is not consistent with the DPA certificate I place no weight on the DPA certificate as evidence that the applicant worked at the voting centre at the 2013 elections.

101. I put to the applicant that fraudulent documents are easily obtained in Albania. The applicant did not agree. According to an article in Balkan Insight[17], Albanian Police Bust Forgery Workshop, police sequestered 16 high-end printing and offset machines that were used to produce fake documents. As this DPA document contradicts the applicant’s evidence I place no weight on this document. As I do not accept that the applicant is a witness of truth and as the applicant has given conflicting information as to which election day voting centre he worked at in 2013, I do not accept that the applicant worked at any voting centre on the day of the election. As I do not accept the applicant is a witness of truth I do not accept that he worked at the 2011 election in any capacity. It follows that I do not accept that he also received telephone calls after the 2011 or 2013 elections.
[17] Balkan Insight, Albanian Police Bust Forgery Workshop, 20 September 2013,
102. The applicant produced to the Department a document, Membership of National Association of the Prisoners and the Albanian Political Persecuted Integration [City 1] Branch number [number deleted], [dated] February 2014 [Association of Former Victims of Political Persecution]. Giving the applicant the benefit of the doubt I accept he belongs to this organisation. Asked for the relevance of this certificate to his claims the applicant said that “we have been persecuted during communism”. I accept that during the Communist regime many families lost family members and the applicant lost his grandfather in 1946. The Working Group[18] of the UN on Enforced or Involuntary Disappearances has commended the Albanian Government for a number of positive steps aimed to address gross violations of human rights, including enforced disappearances which occurred under the communist regime. The independent evidence before me indicates that Albania is yet to deal adequately with the gross human rights violations committed between 1944 and 1991, when thousands of victims suffered from imprisonment, torture, internal exile, executions and enforced disappearances. The independent evidence before me does not suggest that family members whose grandfathers were killed or harmed by the Communist regime or those family members who are members of the DPA are persecuted or harmed by the Albanian government. I am of the view that were it the situation it would be known to independent sources such as Amnesty International or the UK Home Office or US State Department.
[18]
103. The applicant has claimed that he received threatening telephone calls after the 2011 elections and that as a member of a group of persons who were harmed during the former Communist regime and who continue to suffer harm from the Socialist Party. The applicant left Albania for Australia in February 2013 and returned to Albania in March 2013.He also went to [Country 1] in May 2012 and returned to Albania a week later because he was invited. I am satisfied that the applicant’s return to Albania on 2 occasions, indicates a lack of a subjective fear of persecution. I therefore do not accept that the applicant received threatening telephone calls for his political opinion after the 2011 election.
104. Further, I note that one person in [Town 2] was killed over a dispute during the day of 2013 election. I note the applicant has provided a large number of articles that reference fraud and corrupt conduct prior to and during a number of elections including the 2017 election. According to Refworld [19]
[19]
In its previous reports, the Parliamentary Assembly has been very critical of and deeply concerned about the politicisation of the electoral administration. The very significant influence exerted by the political parties on an electoral administration which should be institutionally independent was one of the main problems observed in these elections. The Assembly delegation observed and identified a number of irregularities and shortcomings throughout the electoral process in Albania, including during the counting of votes. Albania therefore needs to improve its electoral legal framework, as well as certain electoral practices, taking into consideration the lessons of the elections, in order to increase citizens’ confidence in democratic elections. This work should be accomplished in close co-operation with the Venice Commission and in the framework of the Parliamentary Assembly’s monitoring procedure. The Assembly remains at the disposal of the parliament and other relevant authorities of Albania for actions of co-operation in the electoral field.

105. The applicant provided an article in the [newspaper] that he was assaulted. His wife has provided a declaration. I have given the applicant the benefit of the doubt and accept that he was assaulted, as claimed, the article does not suggest that he was assaulted for reasons of his political opinion. A letter from the Editor of this newspaper, [Mr B], provided to the Tribunal after the 2^nd hearing, stated that the applicant was hit on the face [in] January 2014. [Mr B] states that he learned that the pressures against this citizen were made by political exponents. I note that the applicant has provided this statement in response to the Tribunal putting to him, at hearing, that the newspaper report did not indicate his attack was caused by his political opinion. As [Mr B] does not indicate when he learned that the attack was politically motivated or how he learned that the attack on the applicant was politically motivated and as he did not state in his article that the applicant was injured for political reasons, I place no weight on [Mr B’s] statement as evidence that the applicant was injured [in] January 2014 for a political reason.
106. As the applicant was not involved in vote counting I do not accept that in December 2013/January 2014, some months after the election, that the applicant was attacked and harmed him for his political opinion or that threatening calls were made against him for reasons of his political opinion. I also find that persons who came to his home after this incident of harm, reported in the [regional] newspaper, and who threatened him, did not do so for his political opinion.
107. The applicant has provided a number of articles, after the 2^nd Tribunal hearing, that report on:
·2005 - Two die in Albania poll violence[20]
[20]
·2009- Socialist Party supporters launched protest to demand the government either recount the vote in a controversial June 28 election or hold another[21].
[21]
·2011 - Prosecutors in Lezha indicted eight poll commissioners for rigging the elections in the commune of Dajc on May 8, 2011[22]
[22]
·2011 Albanian opposition urges snap election as protestors rally outside parliament[23], Laws Alone Can’t Improve Albania Polls [24], Blow to Democracy, Election Fraud, Corruption and Political Violence in Albania[25]
[23]
[24]
[25]
·2013 - an incident in [Town 2] when a Socialist party member was killed and a DPA member amongst others was wounded[26], 2013 voters being offered money, goods and services in exchange for their votes in the June 23 parliamentary elections[27],
[26]
[27]
· 2017 - alleged vote-buying by the ruling Socialists, claiming that the party secured its comfortable victory in the 2017 elections through collaboration with criminals[28], Albania opposition protests for free elections and end to corruption[29]
[28]
[29]

108. I accept that the articles outlined above indicate that at Albanian elections there have been incidents of violence, killing, corruption and vote rigging during elections since Albania removed Communism. I accept that as stated by USAID[30] Albania has a troubled history with electoral conflict, and the 2013 election was considered an important test for Albania’s democratic development. With a history of corruption scandals and alleged voting fraud, the country looked to technological assistance to avoid the problems of the past. In the two years leading up to the elections, the country experienced multiple anti-government street protests (one resulting in the death of four protestors), while there were few signs that Albania’s political class could conduct free and fair parliamentary elections.
[30]
109. I also accept as outlined in ‘Freedom in the World 2018 – Albania’[31], that Albania has a record of competitive elections, though political parties are highly polarized and often focused on leading personalities. Corruption and organized crime remain serious problems despite recent government efforts to address them, and the intermingling of powerful business, political, and media interests inhibits the development of truly independent news outlets. USAID report provided by the applicant stated:
[31] June 25, with 98 percent of the ballot boxes counted, the outcome was clear—the opposition’s resounding victory was imminent. However, acceptance of the results by the CEC was not. Throughout this process, it was ALBERT that provided multiple checks and verifications, making fraud much more difficult.

110. The OSCE report, and USAID report, do not suggest that any voters or Democratic Party members or supporters from [City 1] or its suburbs were harmed for their political opinion after the 2013 election or for voting irregularities. I am of the view that were it the situation some mention would have been made in the OSCE reports on Albanian elections.
111. On the evidence before me, I find that the applicant did not suffer Convention related harm in Albania, prior to his departure. I am satisfied the applicant came to Australia in order to work.
112. I am required to assess if the applicant has a real chance of suffering Convention related harm on his return to Albania now or within a reasonably foreseeable future.
113. [Mr B] states that attacks happen because of the continuous conflicts between the two main political forces in the country, the Socialist Party, in power since 2013, and the Democratic Party that aims to return. These conflicts bring many violence and destabilizing acts which are mostly accompanied with the abandonment of the country. Further, in 2019 there is a lack of security, high unemployment, the criminal gangs that make the law in cities such as [City 1], and there is no hope and faith for the future. Cases of dismissals, pressures, threats to life because of the political persuasions are noted almost every day in Albania, mainly in cities as [City 1 and others]. I place little weight on [Mr B’s] statement regarding the situation in Albania because he does not provide any information regarding his background and expertise, nor does he detail how he obtained his information. I prefer to rely on independent sources such as US State Department reports, Amnesty International, OSCE, UK Home Office and Freedom House who report extensively on the situation in Albania.
114. According to the US State Department Human Rights Report 2017[32] civilian authorities generally maintained effective control over police, the Guard of the Republic, the armed forces, and the SIS, although officials periodically used state resources for personal gain and members of the security forces committed abuses. Police did not always enforce the law equitably. Personal associations, political or criminal connections, poor infrastructure, lack of equipment, or inadequate supervision often influenced law enforcement. Poor leadership and a lack of diversity in the workforce contributed to continued corruption and unprofessional behaviour. Authorities continued to made efforts to address these problems by renovating police facilities, upgrading vehicles, and publicly highlighting anticorruption measures. The Service for Internal Affairs and Complaints received 3,811 telephone complaints via the anticorruption “green line” through July 31. The majority of the complaints involved “inaction of police officers,” “unjust fine/ticket,” or “violation of standard operating procedures.” The office filed 43 administrative violations, recommending 57 police officers for disciplinary proceedings.
[32]
115. I accept that the applicant is a member of the DPA and Membership of National Association of the Prisoners and the Albanian Political Persecuted Integration. I do not accept that there is a real chance the applicant will be killed on his return to Albania for his political opinion or any other Convention related reason. I have found no evidence to suggest that members of the DPA or the National Association of the Prisoners and the Albanian Political Persecuted Integration suffer harm for their membership of those organisations. I accept that there are mafia style killings in Albania and in [City 1]. I accept that there has been a number of shoot outs, one at the 2005 election in Lushnje[33] and another in 2013 in [Town 2]. The OSCE report regarding 2013 elections stated:
[33] Article Two Die in Albanian Election Shooting - AAT file 1605185 folio
The campaign environment was peaceful overall, with only a few isolated incidents of violence.

116. I do not accept that the applicant he will be killed if he returns to Albania for his political opinion. The applicant has claimed that the current government [Socialist] wishes to “get rid of people who do not support them’’. I have found no independent reports to suggest that the Socialist government wishes to harm or to get rid of DPA supporters or those who do not support them.
117. Therefore I find remote the chance that the applicant will suffer harm for his political opinion or membership of the DPA and Membership of National Association of the Prisoners and the Albanian Political Persecuted Integration on his return to Albania.
118. There is a functioning legal system and police service and whilst there are instances of corruption and police abuse, there is an Ombudsman, the government has internal mechanisms to investigate and punish police abuse and corruption. Further there is no evidence before the Tribunal to suggest that members of the DPA or the National Association of the Prisoners and the Albanian Political Persecuted Integration suffer harm in Albania and/or do not receive the protection of their government.
119. I have considered the claims of the applicant individually and cumulatively. For the above reasons, I find that the applicant faced no serious harm in the past for a Convention related reason and I am not satisfied the applicant faces a real chance of serious harm upon return to Albania for a Convention related reason in the reasonably foreseeable future. I am satisfied that the applicant does not have a profile that would cause him to be of any interest to the authorities or to the mafia.
120. I am not satisfied the applicant has a well-founded fear of persecution for any Convention reason now, or in the reasonably foreseeable future if he returns to Albania.
121. I am required to assess if there is real risk that the applicant will suffer significant harm on his return to Albania now or within a reasonably foreseeable future.
122. I accept that the independent evidence before me indicates that despite recent investment from abroad, Albania remains one of the poorest countries in Europe, and unemployment stands at 16%. Agriculture is the biggest sector of the Albanian economy, employing around 58% of the workforce. The applicant owns his own home, unencumbered, in Albania. When put that people work for low wages and often have difficulty obtaining work, that many Albanians work all over Europe and over the years it has been a large part of the economy for people to send money back to Albania in order to support their families, the applicant did not agree, he said that he had a normal life and a good wage.
123. I accept that there have been student demonstrations in Albania and allegations of corruption at the highest levels of government.
124. I have given the applicant the benefit of the doubt and accept that he was attacked in December 2013/January 2014 and was threatened by unknown persons who came to his home prior to his departure for Australia. There is an ombudsman, the government has internal mechanisms to investigate and punish police abuse and corruption. I am satisfied that there is a functioning legal system and police service. I find that state protection is available to the applicant and I find that the risk of significant harm to the applicant is less than a real one.
125. I accept that recently there have been mafia style killings of a number of people in [City 1]. A report from Albanian news indicates that the police commenced investigations immediately[4]. A report in Tirana Times [5]
[4]
[5]
Albanian police launched an important operation in [City 1] with the help of special forces, for the detection and capturing of the criminal groups suspected to have authored some of the criminal events that have occurred in the North’s capital over the last three months, shaking its order and security.

126. I accept that the applicant’s family are supporters/members of the DPA. I do not accept that there is a real risk the applicant will be harmed or substantially harmed on his return to Albania.
127. In light of the applicant’s circumstances, as discussed above, I do not accept 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 would suffer significant harm in terms of s.36(2)(aa) of the Act. I am not satisfied that there is a real risk that the applicant would be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subject to cruel or inhuman treatment or punishment or to degrading treatment or punishment.
128. Having considered these circumstances, singularly and cumulatively, I am not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Albania, there would be a real risk that he would suffer harm which would amount to significant harm.
129. 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.

130. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
131. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Lilly Mojsin
Member

Annexure A
132. 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.
133. 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).
134. 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.

135. 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’).
136. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Annexure B
According to the Electoral Code of Republic of Albania[34]:
[34]
Article 6.1
Any political party or candidate that is proposed by the voters and is registered with the CEC as an electoral subject has the right to appoint one observer to the CEAZ, the VCC and to each table of the Ballot Counting Centre after the registration of the candidate/s for the respective electoral zone, or after the submission of a multi-name list.
Article 7.1
While performing their duties, observers have the following rights:
a) to observe without hindrance all aspects of the preparation and conduct of elections and all the phases of the electoral process;
b) to submit written comments to the election commissions for every kind of irregularity that they notice;
c) to look at or examine the documentation or materials of the electoral process; ç) other rights provided for in this Code or in secondary legislation issued for its implementation

Article 14.1
The Assembly of Albania elects the CEC members
Article 28 Establishment of the Commissions of Electoral Administration Zones
1. The decision to establish a Commission of an Electoral Administration Zone (CEAZ) is taken by the CEC no later than 90 days before Election Day.
2. The political parties propose their respective candidacies for CEAZ members no later than 15 days before the deadline provided for in point 1 of this article.
Article 36
Voting Center Commissions (VCCs) are composed of a chair, a deputy and up to five additional members, all nominated by the same seven political parties represented on LGECs. The secretary of the VCC is appointed by the LGEC and serves as a non-voting member. Political parties and independent candidates not represented in the commissions, but registered with the CEC, may designate a non-voting member to election commissions at all levels, with the right to monitor and participate in meetings.
Article 40
Duties of the VCC 1. VCCs are set up and function for every kind of election. 2. Members of the VCC are responsible for the conduct of elections in the voting centre, by performing the duties provided for in this Code and secondary legislation enacted on the basis of and pursuant to this Code.
Article 94
The Ballot Counting Centre is designated in large rooms or in gymnasiums. The Ballot Counting Centres are placed at the disposal of the CEAZs no later than 10 days prior to the election date. A CEC arranges work tables for each Counting Team, ensuring that they have sufficient space for conducting the vote counting process. The work tables are arranged in such a way that they are visible for the CEAZ members and observers, candidates or media representatives, The observers remain in front of the Counting Teams at a short distance from the work tables, or, if the technology in accordance with point 4 of this article is used, in front of the screen. The observers must not have physical contact with the voting materials
Article 95
The Counting Teams are composed of four members. A Counting Team counts not fewer than 5 voting centres and not more than 10 voting centres.
Article 103
The ballot papers are stamped on their reverse with the stamp of the VCC and that of the VCC Chair.
Article 105
After entering the voting centre:
a) the voter states the name and presents to the VCC one of the following official valid identity documents bearing biometric data:
i) identity card; or ii) passport;

b) one of the members, assigned by a decision of the VCC, upon the voter’ presentation at the VCC and before the voter is given the ballot paper, checks the voter on both hands to determine whether or not he/she has been marked with special ink. If the voter has been marked, the member immediately informs the other members of the VCC, who shall immediately verify it. The name and surname of that voter is recorded in the VCC Meeting Record Book and he/she shall not be given the ballot paper;
c) after verifying that the data about the identity of the voter correspond to those on the voter list and that the voter is the same as the person on the identity document, the Chair records the type and serial number of the identity document on the voter list and draws a line through the name of the voter on this list; the voter signs the voter list next to his/her name;
d) the ballot paper is stamped on its reverse side with the stamp of the VCC and the stamp of the VCC Chair. When the ECS is decided to be used, according to this Code, the ballot paper is stamped only with the VCC stamp; dh) one of the members of the VCC, assigned by its decision, marks the left hand of the voter with a special ink, visible with a naked eye and indelible for at least 24 hours, in order to avoid voting more than once, and after that the voter is given the ballot paper. If the voter refuses to be marked with the special ink, he/she shall not be given the ballot paper and his/her identity is recorded in the VCC Meeting Record Book.
Article 110
Only the following persons may stay in a voting centre:
a) the members and the secretary of the VCC;
b) voters who are carrying out the voting procedures until they are completed; and
c) accredited Albanian and foreign election observers
Article 112
The decision for the closing of the polls and the exact time of closing are recorded in the VCC Meeting Record Book. Afterwards, only the members and secretary of the VCC, as well as the accredited Albanian and/or foreign observers and accredited representatives of the media, may remain in the voting centre.
Article 113
After making the decision to close the polls, the Chair, together with the members of the VCC, perform the following actions according to this order:
1. The Chair, under the observation of all members of the VCC: * Amended by Law no. 74/2012, dated 19 July 2012.
a) records the number of the voters who have voted, according to their signatures on the voter list, as well as on the special register, in accordance with article 57 of this Code;
b) states the figure aloud to the other members of the VCC and the observers that are present;
c) invites them to verify the figure stated by him/her; and orders the secretary of the VCC to record the number of persons who have voted in the voting centre, according to letter “a” of this point, in the Records of the Closing of the Polls and in the VCC Meeting Records Book. In case of an objection to the figure, the claims shall be written in the records. The VCC secretary writes the claim in the Records of the Closing of the Polls and in the VCC Meeting Records Book.

2. The Chair, under the observation of all VCC members, reflects the full number of ballot papers of that voting centre in the Records of the Closing of the Polls and in the VCC Meeting Records Book, based on the data that have accompanied the receipt of the ballot papers from the CEAZ.
3. The Chair, under the observation of all members of the VCC, starts the count of unused ballot papers and, at the end of the count, informs the members of the VCC of this number. When requested by a member of the VCC or any of the observers, the Chair is obliged to restart the count of unused ballot papers. Upon completion of the count, unused ballot papers are enclosed within the envelope marked as “UNUSED BALLOT PAPERS”. The number of unused ballot papers is reflected in the Records of the Closing of the Polls and in the VCC Meeting Records Book.
4. The Chair, under the observation of all members of the VCC, counts the spoiled ballot papers that are found in the envelope for “SPOILED BALLOT PAPERS”. The number of spoiled ballot papers is reflected in the Records of the Closing of the Polls and the VCC Meeting Records Book. If an observer has objections, they are recorded immediately in the Meeting Records Book or submitted by the observer in writing. The written objections are administered by the secretary and are enclosed inside the box of electoral materials together with the rest of the documentation for that voting centre.
5. At the conclusion of the actions envisaged in points 1 to 4 of this article, the following are enclosed inside in the box of election materials:
a) the envelope marked as “UNUSED BALLOT PAPERS”;
b) the envelope marked as “SPOILED BALLOT PAPERS”;
c) the voter list, including the special register, in accordance with article 57 of this Code; ç) original copies of VCC decisions and the unused templates for VCC decisions;
d) the stamp of the VCC; dh) the stamp of the VCC Chair;
e) seals with the unused security codes; and
f) the VCC Meeting Records Book.

6. The numbers of the security codes to seal the ballot box and the elections material box are first written down in the Records of the Closing of the Polls and in the VCC Meeting Records Book. After all the data are recorded in the Record of the Closing of the Polls, the exact time of closing the records is noted. The original of the Records of the Closing of the Polls is placed in the ballot box which is sealed immediately with the last security code, whereas its copy is placed in the box of electoral materials, which is then sealed with the respective security codes. Copies of the Records of the Closing of the Polls are given to members of the VCC and to observers of the parliamentary parties.
7. When the seal with the security codes is damaged during the closing of the ballot box, it shall be replaced by one of the spare seals. The number of the security code of the damaged seal is written down in the Records of the Closing of the Polls and in the VCC Meeting Records Book. 63 62 5. Once order is restored in the voting centre, the VCC requests the State Police to leave the voting centre and takes measures to immediately resume voting. This fact is reflected in the records for resuming the voting.
Article 114
Immediately after the completion of the actions specified in article 113 of this Code, the ballot boxes with the ballot papers and the box with voting materials are sent to the Ballot Counting Centre, designated in accordance with article 94 of this Code. Other materials used during the voting process are submitted to the CEAZ within the deadlines and in the manner specified by the CEC.
2. The ballot box/es with the ballot papers and the box with voting materials are delivered to the Ballot Counting Centre as early as possible, but no later than 3 hours from the closing of the polls in the voting centre. Their delivery is performed with a motor vehicle, in which are seated the members and the secretary of the VCC, as well as a police officer, who is charged with guaranteeing the accompaniment and the integrity of the ballot box/es with the ballot papers and of the box with voting materials. The CEC authorizes the CEAZ, while also providing it with the necessary funds, for ensuring the transportation by motor vehicle of the ballot boxes with the ballot papers and the box with voting materials.
Article 115
The CEAZ assigns one or more receiving teams to receive the ballot box/es with the ballot papers and the box/es with voting materials. The receiving teams consist of two CEAZ members with different political affiliations, proposed respectively by the Chair and Deputy Chair of the CEAZ.
Article 116
The CEAZ shall make a decision to start the counting of votes only after having received all boxes with the ballot papers and boxes of voting materials from all the voting centres under its jurisdiction. The Counting Team members take from the stack of ballot boxes, one after the other and in ascending order of the ordinal numbers of the voting centres, the ballot boxes with the ballots of only one voting centre and place them by the table of the respective Counting Team, The stacked ballot papers are counted by the First Counter, who, at the conclusion of the count, declares the figure to the Counting Team members and the observers of electoral subjects. The declared figure is checked against the figure on the voter turnout that is written down in the Records of the Closing of the Polls. If the figures do not match or if requested by any of the Counting Team members, the First Counter shall recount the ballot papers. If the verification reveals discrepancies, then the Counting Team or any of the observers of the electoral subjects who identifies the discrepancies, notify immediately
Article 121
Only the members and secretary of the CEAZ, the members of the Counting Teams, the candidates, observers of the electoral subjects, other accredited observers, accredited media representatives, and the technical personnel authorized by the CEC for the maintenance of the camera system, are to be present during the vote counting process at the Vote Counting Centre.
Article 124
Any political party, whether or not a member of a coalition, and a candidate proposed by the voters have the right to complain to the CEC against CEAZ decisions which affect their legal interests, within three days from the announcement of the decision.
Article 127
Administrative complaints are deposited at the headquarters of the CEC. The CEC creates and keeps a special register for the registration of administrative complaints.

[2019] AATA 1565

29 March 2019

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