1618963 (Refugee)

[2022] AATA 4560

1618963 (Refugee) [2022] AATA 4560 (26 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Mr GEORGE VASSILIOU (MARN: 0746634)

CASE NUMBER:  1618963

COUNTRY OF REFERENCE:                   Albania

MEMBERS:Jason Pennell, Senior Member

Tamara Hamilton-Noy, Presiding Member

DATE:26 October 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and

(ii)that the second named and fourth named applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant;

(iii) that the third named applicant is not owed protection as he is not a non-citizen in Australia.

Statement made on 26 October 2022 at 11:09am

CATCHWORDS

REFUGEE – protection visa – Federal Circuit court remittal – Albania – particular social group – women – family violence – rejecting an arranged marriage – fear of honour killing – fraudulent documents – sexual assault – blood feuds – delay in applying for protection – state protection – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 91, 424, 499
Migration Regulations 1994, Schedule 2; r 1.12

CASES

Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76

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 dependants.

STATEMENT OF DECISION AND REASONS

Background

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The second named applicant [named] (the second named applicant) first arrived in Australia [in] November 2000 in the identity of [Alias A] on a spouse visa.  [In] January 2002 he contacted the Department to advise that he had entered on a false passport and that his correct identity is [name]. 

3. The second named applicant applied for protection on 12 January 2001 and this was refused by the Department on 13 December 2001.  The second named applicant appealed this decision to the Refugee Review Tribunal, the Federal Court and the Full Federal Court who remitted the matter to the Refugee Review Tribunal.

4. The second named applicant’s application was again refused by the Refugee Review Tribunal on 17 October 2006 and the second named applicant appealed this decision to the Federal Court which remitted the matter to the Refugee Review Tribunal for reconsideration.  The Minister successfully appealed to the Full Federal Court.

5. The second named applicant departed Australia [in] April 2009.

6. The primary review applicant [named] (the applicant) and the second named applicant arrived in Australia [in] January 2012.  They were granted student visas on 28 March 2012. 

7. On 24 April 2014 the applicant, second named applicant and third named applicant applied for protection.

8. On 9 December 2014 the applicant and second named applicant’s student visas were cancelled.

9. On 24 December 2014, the fourth named applicant was included in the protection visa application.

10. On 28 October 2016, the applicant’s protection visa application was refused by a delegate of the Department.[1] 

    [1] Movement history as set out in delegate’s decision, a copy of which was provided by the applicants to the Tribunal. 

11. The applicants applied to the Administrative Appeals Tribunal on 11 November 2016 for an independent review of the Department’s decision.

    Claims and Evidence

    Evidence before the Department

12. In her written protection application, the applicant stated she was born in Shkoder, Albania and that she lived from [specified year] to 2010 in [Town 1], Shkoder and from 2010 to 2012 in Tirane.  She stated she had travelled in 2011, [number] times to Greece, once to [Country 1] and once to [Country 2].  She stated she had been employed in Albania as [an occupation 1] and as a factory hand.  At the time of the application, the applicant stated that both parents and [specified siblings] were living in Albania, that one sister was living in [Country 2] and that her brother’s whereabouts were unknown. 

13. The applicant provided a written statement in support of her claims, in which she stated that her father is from [Village 1], 30 kilometres from [Town 1] where they lived.  The applicant stated that the laws of Kanun continue to operate in [Village 1], and it is an area where it is difficult to find work and make a living.  The applicant stated that she had to stop her education because education was not considered as important for girls.  After she left school in [year], she worked as [an occupation 1] and worked on the land of families that were better off than them. She then started working in a [factory] and later fled her home in 2010.

14. The applicant stated that her family is Catholic and follows Kanun law.  When she was an infant her parents attended a wedding in [Village 1], during which her father promised her in marriage to a friend’s son, [Mr A]. As she was growing up, people would make comments to her about being promised to [Mr A] and he and his family visited her on occasion. In [year], when she was 15, [Mr A’s] family confirmed the marriage and bought a wedding ring that she was required to wear, which meant she was his promised bride, although she could not legally marry him until she turned 18.  She was told by [Mr A’s] family that they would be married after the family built a house for them.  The applicant also needed to prepare and complete her dowry in this time.

15. The applicant stated that she had come to know over time that [Mr A] had shown low morals and bad character and that he had become a gambler, and would borrow money and not repay it.  She became concerned because she understood that the house being built for her was due to be finished in 2010.  She would ask her mother to speak to her father about the situation, but her father was a heavy drinker and was aggressive and would threaten to cut her throat if she mentioned it again.  Her father beat her many times and, because he understood she was against the marriage, would control her movements.  She was dropped off and picked up from work and would attend visits with her family on weekends and did not have a social life. 

16. The applicant stated that in 2009 she was visiting her aunt with her mother, where she met the second named applicant.  After this, her cousin visited her and said that the second named applicant wanted to meet her.  Shortly after the lunch, her father confronted her and beat her up, saying she was not to talk to other men, as he had found out about her chance meeting with the second named applicant.  She attended a family [function] in 2010 with her family, where the second named applicant was present.  It was a large gathering and she was able to speak to the second named applicant, but was observed by her father and was beaten publicly.  Following this, she and the second named applicant passed messages through her cousin.

17. The applicant stated that [Mr A] returned from working away from the area and [in] August 2010, came to her home while her family was at a funeral and beat and raped her.  She did not report the incident to the police as the police did not do anything in such matters.  She called her cousin, and her cousin and her husband came to the applicant’s home and took her to their house in [Town 2].  She didn’t attend a doctor because she was concerned the doctor would report on the attack and she didn’t want to disclose her location to anyone.  The second named applicant attended the home and the applicant disclosed what had happened and they left that night for Tirana where they lived in hiding and moved around different houses.  She contacted her sister in [Country 3], who told her that her father had been drunk and violent towards her mother and sisters.  Her sister later told her that her father was scared that [Mr A’s] family would kill him and the applicant’s brother.  Later, the applicant’s sister told her that her father had been advised by a friend that he had broken his promise under Kanun law and that [Mr A’s] family would take revenge, as a result of which the applicant’s father vowed to kill her. 

18. The applicant stated that, while they were hiding in Tirana, they were supported by the second named applicant’s brother and had contact with his cousin.  They made an attempt to reconcile with her father in late August 2010 but this was futile because her father swore he would kill her.  In November 2010, they heard about [Organisation 1] and, along with the second named applicant’s brother, met with the chairman of the association.  The chairman advised them to be careful and, after Christmas, contacted the second named applicant’s brother to say that the first attempt had failed.  The chairman went again [in] 2011 without success.  The applicant realised that her family and [Mr A’s] family would not accept reconciliation attempts.  The applicant stated that she and the second named applicant realised they would have to flee Albania.  They did not go to another European country because of the ease in which Albanians could travel through Europe.  At the end of August 2011, she found out she was [pregnant].  They decided to go to Greece and then departed Athens for Australia.  They came on false passports but had no other option.

19. The applicant stated that as a woman who had suffered family violence it was difficult to go to the police, and as a woman from a traditional family which follows Kanun law, it would be impossible for her to escape her fate.  Her father will kill her and [Mr A] and his family will harm her because she caused [Mr A’s] dishonour.  [Mr A] has already attacked her and she fears he will kill her or, if not, kidnap her and sell her for prostitution or organ selling in Europe.  She believes she will be killed by her father, who has already beaten her on a number of occasions.  She fears the second named applicant will be killed by [Mr A] and his family. She does not believe the government or police will be able to help her, the second named applicant or the applicant children.  She believes that her children will be taken from her as she will have no one to protect her if the second named applicant is killed.

20. The second named applicant stated in the written protection application that he was born in [Town 2], Albania and that he is not raising his own claims for protection.

21. The applicant and second named applicant attended a protection interview with a delegate of the Department on 15 February 2016. Following the interview, the second named applicant was sent questions by the Department. 

22. The second named applicant provided the Department a statement on 2 June 2016 which stated that he had not made his own claims for protection in the applicant’s protection application.  He stated that the interpreter in the interview had made many mistakes and that he had answered questions because he felt intimidated and scared and was concerned about the repercussions for the applicant’s application.  He stated that his previous protection application had been determined and he had left Australia legally and returned to Albania.  He stated that the documents he had used were for his protection claims in 2001, that he has not since made any protection claims and that he does not make any claims for protection in his partner’s protection application.  The second named applicant stated that he [has a hearing issue] and this makes it difficult for him to participate in interviews.

23. The second named applicant stated that in his protection application from 2001 to 2004 he ‘provided information some of which in hindsight was incorrect and some of which was provided to me to assist in my case’ and that he regrets that.  He stated that he had not provided documents or information that is ‘false or intentionally false’ in the current application and may have misheard or misunderstood some of the delegate’s questions at the interview in February 2016. 

24. The second named applicant referred to information he had given in the Department interview, which he stated he had misunderstood or incorrectly answered.  As to his previous protection application, he stated that he could not remember the events and details of documents he had provided in his own claims in 2001 and that he has not relied on previous documents to support the applicant’s claims.

25. The second named applicant stated that he had changed his name to [family name] after his father’s death in 2000 to honour his father, that the name was changed legally and that this was commenced in 2007 by proxy.  As to his claim that his brother had died, he stated that at the time of his protection application he had received information his brother had been wounded and that ‘unfortunately’ at interview the translation that was given was that his brother was killed, whereas he had stated that his brother was wounded but not killed.  He acknowledged that the death certificate he had provided to the Department was false but stated that he had believed it should be used as it would enhance his case and he regrets having used it. He stated that he had given another brother’s name to the Department based on his understanding that the brother had also changed his family name to [name].  He stated that he had provided to the Department a birth certificate dated [in] 2016 which states that his name was changed in 2007. 

26. The second named applicant stated that he had used a false passport in the name of [Alias A] to enter Australia in 2000 and that he had indicated that [this alias] was his cousin and later that [this alias] was his brother.  He had used the false passport to save his life and he had acknowledged subsequently that he had used a false passport. 

27. The applicants’ representative also provided to the Department identity documents for the applicant and second named applicant and [Organisation 1 variant] report, the relevant parts of which are discussed further below. 

    Delegate’s decision

28. A delegate of the Department found that the second named applicant had first travelled to Australia on a fraudulent passport in the name of [Alias A variant] and had approached the Department in January 2001 to provide identity documentation in the name he now uses.  The delegate found that the Department had obtained two passports in the second named applicant’s name, issued in 2001 and in 2007 but containing different identification numbers, which were found by the Department to display features consistent with genuine documents. 

29. The delegate found that, when the applicant and second named applicant arrived in Australia in January 2012, they had used false Greek identities and had lodged a protection application in what they claim are their true Albanian identities.  The delegate noted that at an interview in June 2014 about their identities, they had stated they left Albania on Albanian passports in their true identities and that the passports had been sent back to Albania.  The delegate noted that at the delegate’s interview in February 2016, the applicants had brought passports to the interview with them and the second named applicant had said that his mother had sent the passports back to them.  The delegate noted the second named applicant’s different responses as to how many passports he had held, and that he had changed his answers as to how many passports he had held after the delegate noted the differing identification numbers on the passports he had provided to the Department.  The delegate did not accept the 2001 or 2007 passports had been legitimately issued to the second named applicant, although accepted that the applicant could have obtained these while he was in Australia through an acquaintance.  The delegate found that ‘applicant two’s extensive history of using fraudulent documents and false identities to obtain immigration outcomes’ raised concerns for the delegate about his current claimed identity.  The delegate found that he had provided inconsistent information about his places of birth, identification numbers, family composition and whereabouts of family members, although accepted that discrepancies in his family composition arose from reasons other than an attempt to mislead the Department.  The delegate accepted that, for the purposes of the protection assessment, the second named applicant is an Albanian national. 

30. The delegate found that the applicant arrived in Australia on a Greek passport which was found by the Department to be a genuine and unaltered document.  The delegate accepted that, for the purposes of the protection assessment, the applicant is an Albanian national born in Shkoder.   The delegate accepted that the applicant children are the children of the applicant and the second named applicant and found that they are Albanian citizens as they are children born to Albanian parents.

31. The delegate had concerns about the credibility of both the applicant and second named applicant’s information given at the interview and found that these concerns were not alleviated by the applicant’s distress during the interview or the second named applicant’s claims of having hearing difficulties, which the delegate noted had not been raised previously at any stage.  The delegate accepted, from details given in a psychological report, that the applicant was demonstrating symptoms of anxiety and depression but found that it was not independent evidence of her claimed experiences in Albania.  The delegate also accepted, from details given in a social worker report, that she is experiencing symptoms of stress but found that this was not independent evidence of her claimed experiences in Albania.

32. The delegate stated that their concerns about the credibility of the applicants’ claims included: their delay in claiming protection, the second named applicant’s extensive history of providing false or misleading information to the Department, and a range of discrepancies in the applicant’s claims when her written claims were compared to the information she had given the delegate at interview.  The delegate did not accept the applicant was promised in marriage to [Mr A] as a baby, that she was forced to continue with a betrothal after indicating she did not want to marry [Mr A] or that the applicant was raped by [Mr A].  The delegate found that the applicant remained in Albania for 16 months after the claimed rape without further harm.

33. The delegate found that the second named applicant’s written information, that he was not making his own claims for protection, was inconsistent with information he had given at the interview that he continues to fear harm because of conflict with the [named] family in Albania.  The delegate found that the second named applicant had provided a range of fraudulent documents to the Department, including passports issued in 2001 and 2007, a Greek passport issued in 2011, an Albanian birth certificate issued in 2000, a letter dated 14 August 2000 regarding conflict with the [named] family and a death certificate for his brother. The delegate found that the second named applicant has a demonstrated history of providing fraudulent documents to the Department and that he has provided false or misleading information to the Department. 

34. The delegate was prepared to accept the applicant and second named applicant may have met the [Official A] of the [Organisation 1 variant] at his office.  The delegate had regard to country information which indicates the widespread nature of attestation letters and allegations against the [Official A] of the [Organisation 1 variant] regarding his provision of fraudulent letters for remuneration, and found that the [Organisation 1 variant] report provided by the applicants to the Department was not a reliable document. 

1. The delegate found that the second named applicant had made contradictory claims about his family composition, which he had claimed at interview had been caused by mistakes by interpreters during his first protection application.  The delegate did not accept this explained the discrepancies in the second named applicant’s evidence.  The delegate found that the second named applicant had provided a false death certificate relating to his brother to increase his likelihood of being owed protection.  The delegate found that the applicant was deliberately evasive about his criminal history.

2. The delegate found that the applicant may have difficulty obtaining state protection from harm from her father, [Mr A] or [Mr A’s] family and that state protection may be withheld from her as a woman without male protection.  The delegate found that any harm feared by the second named applicant is personal harm and is not Convention-related.  The delegate did not accept the applicant was at risk of harm from [Mr A] or his family, or from her family, and was not satisfied there was a real chance the applicant faces serious harm because of this or for any other reason.  The delegate was not satisfied the applicant or second named applicant face a real risk of significant harm for these reasons or for any other reason. 

   Evidence before the Tribunal

3. This matter has a long history before the Tribunal.  The applicants were first invited to appear before the Tribunal on 27 October 2021, however, a request for an adjournment was granted by the Tribunal on the basis of medical documents provided by the applicants’ representative.  The applicants were then invited to participate in a directions hearing with the Tribunal and participated in the directions hearing on 8 November 2021.  At the directions hearing, the Tribunal requested written submissions and other evidence relevant to the applicants’ claims be provided by the applicants’ representative by 7 December 2021.  The applicants’ representative wrote to the Tribunal in response to this request, stating that they would not be available to correspond with the Tribunal until February 2022.

4. On 13 April 2022, the applicants were invited to attend a hearing at the Tribunal’s Melbourne Registry on 24 May 2022.  Prior to the hearing, the applicants’ representative provided further evidence to the Tribunal, the relevant parts of which are discussed further below.

5. The applicants attended the hearing on 24 May 2022 to give evidence and present arguments.  Their representative was present at the hearing.  The Tribunal was assisted during the hearing by an interpreter in the Albanian and English languages.  During the hearing the Tribunal took evidence from [Teacher A], a teacher from the applicant children’s school, parts of which are referred to further below. 

6. The applicants attended a resumed hearing on 30 June 2022 and their representative was again present at the hearing. The Tribunal was assisted during the hearing by an interpreter in the Albanian and English languages.

7. Following the resumed hearing, the applicants’ representative was given time to provide further information to the Tribunal, the relevant parts of which are discussed further below.

   The relevant law

8. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

   Refugee criterion

9. 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).

10. 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.

11. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

12. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

13. Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

14. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

15. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.

16. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

17. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

18. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

19. 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’).

20. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

21. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

    Mandatory considerations

22. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Member of the same family unit

23. Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include a de facto partner of the family head and children under 18 years of age.

    Consideration of claims and evidence

24. The issue in this case is whether the applicants meet any of the alternative criterion in s 36(2)(a), (aa), (b) or (c), that is, whether they are owed protection as ‘refugees’ or under the complementary protection criterion, or whether they are family members of an individual who meets these criterion. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    The applicant’s country of reference

25. The applicant arrived in Australia [in] January 2012 on a false Greek passport in the name of [Alias B], which was found by the Department to be a genuine document.  She was granted two student visas under this identity.  Subsequently, in her written protection application, made in April 2014, she claimed her true nationality is Albanian.  She provided an Albanian passport to the Department at her interview with the delegate in the name of [the applicant’s name], and a national identity card in the same name.  The Department delegate, in weighing the information before them, accepted the applicant was as claimed and is a citizen of Albania. 

26. The applicant, since that time, has consistently claimed to be a citizen of Albania.  She appeared before the Tribunal and gave evidence with the assistance of an interpreter in the Albanian and English languages.  The Tribunal is similarly prepared to accept that the applicant is an Albanian citizen and has assessed her claims against Albania as her country of nationality.

27. The Tribunal is prepared to accept that the passport the applicant arrived in Australia on has been confiscated by the Department and is no longer available to the applicant.  There is no evidence before the Tribunal that the applicant has another Greek passport that would enable her to return to Greece.  The Tribunal finds that the applicant does not have a right to enter and reside in Greece or another third country. 

    The applicant’s background

28. The applicant told the Tribunal at hearing that she was born in the northern part of Albania, in a village close to the city and that she attended school there.  She stated that her parents have both been living in [Country 2] since 2017 and that the house she grew up in is still owned by her family but that there is no one living there at the moment.  The applicant stated that [one] sister is in Albania, and her other [siblings] are in [Country 2].  She stated that her family are in [Country 2] due to the problem she had and have applied for asylum there.

29. The applicant stated that she has contact with her mother but does not speak to her father, and her contact with her mother is by telephone and is infrequent. 

30. The applicant stated that she was living in Tirana before leaving for Greece and that, prior to that, she had been ‘in and out’ of Greece.  She stated she had been sometimes renting and with her partner’s [relative] between August 2010, when she left home, and December 2011.  She stated that she had also travelled to [named countries] while in hiding and that they had been supported by the second named applicant’s brother in this time.

31. The Tribunal perceived that the applicant gave her evidence about her background in a forthright and plausible manner.  The Tribunal is prepared to accept that the applicant is from Shkoder, northern Albania, that she grew up in northern Albania and that her family members, with the exception of her sister, are residing in [Country 2].  The Tribunal is prepared to accept that the applicant lived in Greece before travelling to Australia and that she has also travelled to [named countries].

32. The Tribunal is prepared to accept that the applicant and the second named applicant are in a long-term de facto relationship and that they have [children], two of whom are listed as applicants before the Tribunal.  The Tribunal makes these findings on the basis that the applicants have consistently represented themselves as a family unit since making the protection application, and on the basis of evidence given on behalf of the applicants by [Teacher A], from the children’s school, who gave evidence of the involvement of both applicants in the children’s school lives.  

    Claims for protection

33. The applicant claims to fear returning to Albania because she was promised in marriage to a son of family friends, [Mr A], who would seek to harm her as she fled before marrying him.  The applicant claims to have been sexually assaulted by [Mr A] and claims that her family have now left Albania for [Country 2] because of the dispute between the families.  The Tribunal notes that the matter has a long history and includes a previous protection application made by the second named applicant.  The credibility of both applicants has been in issue in previous decisions. 

34. The Tribunal is mindful that it is required to adopt a reasonable approach in assessing the applicants’ claims and that ‘if the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt’.[2]  However, the benefit of the doubt should only be given where ‘all available evidence has been obtained and checked and where the examiner is satisfied as to the applicant’s general credibility.  The applicant’s statements must be coherent and plausible and must not run counter to generally known facts’.[3]

    [2] United Nations High Commissioner for Refugees, Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, 2019 at para 196.

    [3] United Nations High Commissioner for Refugees, Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, 2019 at para 204.

35. This approach is supported by comments in numerous judgments and commentary, for example, as noted in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 (per Burchett J), it is necessary to:

    …understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies.  Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

36. Similarly, the Full Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167 that:

    refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.

37. The Tribunal is guided by this commentary and is mindful of difficulties faced by applicants, including nervousness in a Tribunal environment and stress caused by separation from home and family.  The Tribunal is also mindful that the claimed events occurred many years ago.  The tribunal has taken these matters into account, as suggested in the Tribunal’s Guidelines on the Assessment of Credibility, both in the conduct of the hearing and in assessing the evidence of the applicants as a whole. 

38. In addition, the applicant in this matter gave evidence at the hearing that she is taking antidepressant medication prescribed by her GP and has been referred for counselling for mental health concerns.  A psychological report provided to the Tribunal states that the applicant saw [an agency] assessor in 2020 who assessed her as suffering from post-traumatic stress disorder and noted that the applicant had sought clinical psychological support since 2019.  The Tribunal accepts that the applicant’s youngest child was involved in a significant motor vehicle accident at [age] years of age, in 2019, where he sustained moderate brain injury and was treated in hospital for over one month, and that he has required ongoing rehabilitation, occupational therapy and neuropsychology therapy since that time.  Given the medical information before it and the applicant’s presentation at the hearing, the Tribunal has had particular regard to the Tribunal’s Guidelines on Vulnerable Persons in assessing the applicant’s claims. 

39. The Tribunal notes that the delegate’s decision focused largely on the delegate’s credibility concerns around the second named applicant’s history of protection claims and identification documents. The applicants’ representative submitted to the Tribunal that the second named applicant is no longer making his own claims for protection and was unwillingly involved in the Department interview.

40. The Tribunal is mindful that the applicant has raised her own claims for protection which the Tribunal must assess separately to the claims raised by the second named applicant in previous proceedings and which he is no longer asserting as having any basis for being granted protection.  The Tribunal has been mindful, in making a decision in this matter, of the separation of the applicant’s own claims for protection from the past claims made by the second named applicant, which are not related in any way to the applicant’s claims.  In weighing up all of the information before it regarding the applicant’s own claims, the Tribunal makes the following findings.

1. The applicant arrived in Australia on a false Greek passport and continued to represent herself in her Greek identity with the Department for a prolonged period of time in order for the second named applicant to obtain a student visa to remain in Australia.  The applicants registered their first born child under their false Greek identities, with the child’s surname registered in the false Greek surname.  Prior to making the protection application, the applicants provided evidence of their current claimed Albanian identities to the Department.  When asked at the hearing the reasons for the prolonged misrepresentation to the Department, the applicant stated that they had arrived on tourist visas and had applied for a student visa with the intention to ‘remove themselves from Albania because of the risk’ and to be able to hide, and that the second named applicant had obtained a student visa in his false Greek identity and she was able to stay as his partner.  She stated that they had not told the Department their correct identities earlier because they were in hiding and believed that under these names, ‘they’ couldn’t find them.  The applicant stated that they had then disclosed to the Department their Albanian identities some time before the protection application was submitted and they did this because she realised she didn’t feel good about continuing under false names and realised it was best to tell the truth.  The Tribunal has doubts that, after a prolonged period of representing herself as a Greek citizen to Australian authorities, the applicant would make a decision to notify the Department of her correct identity.  The prolonged representation by the applicant of a false identity to Australian authorities causes doubt for the Tribunal about the applicant’s claims.

2. Secondly, the applicants arrived in Australia together in January 2012 and did not claim protection until April 2014.  The Tribunal noted during the hearing that the significant delay in claiming protection caused doubt for the Tribunal about the veracity of the claims raised.  The applicant stated that they felt safe by arriving with Greek names and she was very traumatised and felt it was the best way for them to be safe.  The Tribunal was not persuaded by this explanation and finds that the significant delay in claiming protection causes further doubt for the Tribunal about the applicant’s claimed reasons for having left Albania.

3. However, despite the above concerns, the Tribunal formed the view that the applicant, in giving her evidence at hearing regarding her experiences in Albania, presented as forthright and plausible.  The Tribunal finds that the applicant’s oral evidence to the Tribunal at hearing was consistent with her written claims for protection, was consistent with country information considered by the Tribunal and was given in what the Tribunal considered to be a credible manner. 

4. Because of this, and in spite of the concerns of the Tribunal outlined above, the Tribunal is prepared to accept that the applicant was promised in marriage to the son of another family, [Mr A], that she left Albania against the wishes of her family and [Mr A’s] family after meeting the second named applicant and that she was sexually assaulted by [Mr A] prior to departing Albania. The Tribunal considers it plausible that, if this had occurred, the applicant would not have approached the police to report a rape on the basis of her engagement to [Mr A] and because she was scared about her reputation and that of her family members.  The Tribunal considers it plausible that the applicant would not have attended a doctor for the same reasons.

5. The delegate accepted that the applicant may have met with a representative from the [Organisation 1 variant] in November 2010 and the Tribunal is similarly prepared to accept that this claimed event may have occurred.  Given the Tribunal is prepared to accept this, it is also prepared to accept that the matter of the applicant refusing to marry [Mr A] was not settled between the applicant’s family and [Mr A’s] family before she left Albania and has not been settled at any time since then. 

6. The Tribunal notes that DFAT has not issued a Country Information Report for Albania. DFAT’s Country Brief for Albania states that the country is a small mountainous country on south-Eastern Europe’s Balkan Peninsula with a population of 2.8 million people.  Seventy percent of the population are Muslim, 20 per cent Albanian Orthodox and 10 per cent Roman Catholic.  Albania remains poor by European standards and has high levels of public debt.  In 2012, its unemployment rate officially stood at 13.1 per cent. 

7. The Immigration and Refugee Board of Canada in 2015 noted that blood feuds in Albania trace back centuries to the Canon of Lek Dukagjin, also known as the customary law of Kanun, which originate from northern Albania.  The law dictates that when someone is killed, the victim’s family may take retribution against the person’s killer, or by killing male member of the killer’s extended family.  Families or individuals under threat of a blood feud reportedly isolate themselves in their homes due to fear of retaliation, or to show respect for the victim’s family.  The IRB report notes that statistics on the number of people affected by blood feuds vary widely and that there are ‘deep discrepancies’ in the information about the number of blood feud-related murders.  Media and civil society organisations estimate a much higher number of blood feud victims than that presented in government reports.  The British embassy has reported on corrupt NGOs and local officials inappropriately labelling crimes as blood feuds and are known to issue fake blood feud certificates.[4]

   [4] Immigration and Refugee Board of Canada: Albania, Statistics on blood feuds; state protection and support services available to those affected by blood feuds, including whether individuals have been prosecuted for blood feud-related crimes (2010 – 2015).

8. A 1996 study on customary Kanun law in remote communities of Albania states that Kanun law recognises the following:[5]

   ·The head of family is usually the eldest man, who has full control of the household and who leads the family and preserves its honour. The head of the family controls the men; his wife (the eldest woman, usually), who is under his authority, controls the women and minor children.

   ·A matchmaker arranges the betrothal with the consent of the fathers of both the groom and the bride and without the consent of their children. A man has the right to arrange his own marriage only when he is an orphan, while the brothers or other relatives arrange the marriage for an orphan young woman. The family arranges marriage for a widower, while the widow does it herself. A woman who is abducted or who runs away to marry someone is not adorned as a bride. The person who arranges a betrothal must be a man chosen by the family of the groom. He is financially rewarded and is responsible for all the disagreements of the new couple. If the wife leaves her husband, blood feud arises between the parents of the bride and the matchmaker.

   ·If an engaged woman is revealed to have had a previous relationship or if she leaves with another man, blood feud occurs between the two families. The bride’s parents place a bullet inside her dowry. Her husband has the right to kill her with that bullet without starting a blood feud if she does not preserve her honour or does not preserve the trust of a friend (or guest). If someone beats or kills a man’s wife, the husband transfers the violation of honour to her family, and her parents start the blood feud. An engaged man has the right to leave his fiancée, but he loses the money paid for her; whereas a woman who is engaged does not have the right to leave her fiancée. The husband has the right to give advice, to beat and leave the wife if she does not obey, but he does not have the right to kill her. The Kanun states that the husband is the owner of his gun and his wife.

   [5] ‘A comparative study of the customary laws of mountain communities in Albania and Dagestan’, Professor M Dragovaja, 1996 at pp1-3.

9. The Immigration and Refugee Board of Canada has reported on the prevalence of forced marriages in Albania, particularly in rural areas and in informal settlements, although notes that real figures do not exist because the issue has not been studied.[6]

   [6] Immigration and Refugee Board of Canada, Albania: Forced marriages of women, including those who are already married; state protection and resources provided to women who try to avoid a marriage imposed on them (2010-June 2015).

10. The Tribunal finds that, as the applicant’s father has resided long-term in [Country 2], she does not face a real chance of serious harm from her father, if she returns to Albania now or in the reasonably foreseeable future, because she has disobeyed her family’s arrangements to be married to [Mr A].

11. The Tribunal finds that, if the applicant returns to Albania, she would return to reside in Shkoder, in northern Albania, on the basis that this is the area she grew up in, where her family owns a home which is currently vacant, where her sister is residing, and which is the only area in Albania that she has ties to.  The Tribunal is prepared to accept that, if the applicant returns to Shkoder, she fears that [Mr A] and his family will kill, physically harm or harass her on the basis that she was promised in marriage to him and did not proceed with the arranged marriage.  The Tribunal is satisfied that the harm feared by the applicant at the hands of [Mr A] amounts to serious harm and is systematic and discriminatory and that the reason the applicant fears harm is as a female who has rejected a marriage arrangement between families.  The Tribunal accepts that females who have rejected a marriage arrangement between families under Kanun law are identifiable within Albanian society and are a particular social group within the Convention meaning. 

12. As to whether state protection would be available to the applicant from any harm feared, the Tribunal is mindful that UK’s Upper Tribunal has previously found that, in areas where Kanun law predominates, particularly in northern Albania, the steps taken by the Albanian authorities to improve state protection did not provide sufficiency of protection from Kanun-related blood-feuds.  The UK Home Office has subsequently noted that since that time, some ten years ago, there had been strong grounds to depart from this position and that changes to the question of state protection include: significant reform in preparation for accession to the EU and the achievement of EU candidacy; development of an action plan to address the issue, preventative sentencing developed within the justice system, the successful conviction of a number of prosecution for murder due to blood feud and serious threat in retaliation, an increase in the number of registered cases of murder for blood feud, and the compilation of a database of families affected by blood feud.[7] There have also been changes to the Criminal Code, with amendments providing for lifetime penalties for a blood feud murder.[8]

    [7] UK Home Office, Country Policy and Information Note, Albania: Blood Feuds, September 2022 at 2.5.3 – 2.5.5, at

    [8] European Asylum Support Office, EASO Country of Origin Information Report, Albania Country Focus, November 2016 at p.36.

13. However, the Tribunal also notes that the police force collapsed in 1996 following economic and political disorder, resulting in an almost total loss of law and order and during which time international peacekeeping forces were required to intervene.[9]  Since then, the police force has been rebuilt and restructured.  However, ongoing issues have included police not enforcing the law equally, having political and criminal connections, poor infrastructure, lack of equipment and inadequate supervision, low salaries, continued corruption and unprofessional behaviour and inadequate record keeping.[10]

    [9] European Asylum Support Office, EASO Country of Origin Information Report, Albania Country Focus, November 2016 at p.16.

    [10] European Asylum Support Office, EASO Country of Origin Information Report, Albania Country Focus November 2016 at p.22.

14. Corruption is described as pervasive in all branches of government, particularly in judicial and health care systems.[11]  There are courts at first instance, courts of appeal and a High Court in Albania. Media reports have alleged corruption within the judicial system, including judges and prosecutors taking money, lawyers paying money, poor enforcement of decisions and the slow administration of justice.[12]   As of April 2022, the US Department of State reported that independence of the judiciary remained a significant human rights issue.[13]

    [11] European Asylum Support Office, EASO Country of Origin Information Report, Albania Country Focus November 2016 at p.24.

    [12] EASO Asylum Support Office, EASO Country of Origin Information Report, Albania Country Focus, November 2016, at p..26-27.

    [13] US Department of State, 2021 Country Reports on Human Rights Practices, Albania, 12 April 2022 at

15. During 2021, the government continued with a program to monitor and vet judges and prosecutors and dismiss those with unexplained wealth or ties to organised crime.  As of September 2021, 42 per cent of the judges and prosecutors vetted had failed and been dismissed, 36 per cent had passed and 22 per cent had resigned or retired.[14] Corruption continued to be pervasive in all branches of government, and during 2021 investigations and charges had been brought against former and sitting judges and prosecutors.[15]

    [14] US Department of State, 2021 Country Reports on Human Rights Practices, Albania, 12 April 2022 at US Department of State, 2021 Country Reports on Human Rights Practices, Albania, 12 April 2022 at >

    While the Constitution provides for equal rights for men and women under family law, property law and within the judicial system, in practice, women experience discrimination in many communities based on traditional norms that women are subordinate to men. The state has frequently failed to execute court decisions which affect women in cases of divorce, alimony and reinstatement to employment, and domestic violence laws are reported to be ineffectively enforced.[16].

    [16] European Asylum Support Office, EASO Country of Origin Information Report, Albania Country Focus, November 2016 at p.37-38.

16. While acknowledging the comments in the UK Home Office report and the changes that have been made within the system, the Tribunal is mindful that there are ongoing, and recent, reports of the ineffectiveness of the police, significant corruption and lack of independence concerns relating to the judiciary, and discrimination against women due to cultural norms.  Taking into account the country information about these concerns, as set out above, the Tribunal is not persuaded that the applicant could access effective state protection from the harm feared in Shkoder.

17. The applicant gave evidence to the Tribunal at hearing that she has not worked in Australia and that she is currently caring for [number] children, including her son who was the victim of a significant motor vehicle injury.  The Tribunal accepts from the medical documents provided to it that the applicant’s son was diagnosed with [specified] injuries[…] from the accident. The Tribunal accepts that the applicant’s son continues to suffer from fatigue, sensory sensitivities and challenging behaviours as a result of the accident, that he has required occupational therapy and neuropsychology and that the other family members have required counselling and psychological support. 

18. The Tribunal accepts that the applicant’s other [child] underwent assessment during 2020 following concerns around [mathematics] difficulties and that [they have] been diagnosed with specific learning disorder, dyscalculia and [is likely] to require ongoing intervention to support [learning].

19. The Tribunal accepts that the applicant attended her GP in late 2021 for symptoms of post-traumatic stress disorder and that her GP has noted in correspondence to the Tribunal that the applicant has been suffering symptoms of anxiety and depression since 20 years of age.  The Tribunal accepts that the applicant has been referred for psychological counselling since 2016 and has been treated with antidepressants, prescribed by her GP. 

20. Taking into account all of these matters, the Tribunal finds that it would not be reasonable for the applicant to relocate to another area of Albania outside of Shkoder. 

21. The Tribunal therefore finds that the applicant has a well-founded fear of persecution in Albania and that the essential and significant reason for this is as a female who has defaulted on an arranged marriage. 

    The second named applicant’s country of reference and claims

22. The applicants’ representative has submitted that the second named applicant is not making his own claims for protection.  No claims for protection have been outlined in the protection application in respect of the second named applicant and he did not appear before the Tribunal to give evidence and present arguments. 

23. The Tribunal notes that the second named applicant has raised claims previously before the Department which have been extensively considered.  He has not raised these claims before the Tribunal and, given this, the Tribunal is not satisfied that the second named applicant has a well-founded fear of persecution for any reason or that he is owed complementary protection for any reason. 

    The third named applicant’s claims

24. Following the hearing the Tribunal received a copy of a certificate of Australian citizenship for the third named applicant. 

100. The Tribunal notes that s 36(2) requires that an individual who is owed protection is a ‘non-citizen in Australia’. As the third named applicant is now an Australian citizen, the Tribunal has concluded that the third named applicant is not owed protection under s 36(2) of the Migration Act.

The fourth named applicant’s claims

101.   The Tribunal accepts that the fourth named applicant was born in Australia.

102.   The fourth named applicant has not raised her own claims for protection.  Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.  The Tribunal is not satisfied the fourth named applicant has a well-founded fear of persecution for any reason, if she returns to Albania now or in the reasonably foreseeable future, or that she is owed complementary protection. 

103. The Tribunal is satisfied that the fourth named applicant is the daughter of the applicant and second named applicant. The Tribunal is satisfied that the fourth named applicant is owed protection under s 36(2)(a)(i) of the Migration Act.

Findings of the Tribunal

104. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations. Therefore, the first named applicant satisfies the criterion set out in s 36(2)(a).

105. The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that the second named applicant is the de facto partner of the applicant and the fourth named applicant is the daughter of the applicant and that they are members of the same family unit as the applicant for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(B)(ii) and the remaining criteria for the visa are met.

106.   The Tribunal is not satisfied the third named applicant is a non-citizen in Australia and finds that he is not owed protection.

DECISION

107.   The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and

(ii)that the second named applicant and fourth named applicant satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant; and

(iii)that the third named applicant is not owed protection as he is not a non-citizen in Australia.

Tamara Hamilton-Noy
Presiding Member