1621400 (Refugee)

[2018] AATA 664

1621400 (Refugee) [2018] AATA 664 (1 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1621400

COUNTRY OF REFERENCE:                  Albania

MEMBER:Denis Dragovic

DATE:1 March 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 01 March 2018 at 2:10pm

CATCHWORDS
Refugee – Protection visa – Albania – Federal Circuit Court – Social group – Member of husband’s family – First named applicant – Fear of revenge by extended family – Fear of a blood feud – Fourth name applicant – Member of the Democratic Christian Party – Involved in local and national elections

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 36, 48A, 65, 91R, 91S
Migration Regulations 1994, r 1.12, Schedule 2

CASES
AMA15 v MIBP [2015] FCA 1424
MILGEA v Che Guang Xiang (Unreported, Federal Court of Australia, Jenkinson, Spender and Lee JJ, 12 August 1994)
SZGIZ v MIAC (2013) 212 FCR 235

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicants, who claim to be citizens of Albania, applied for the visas [in] February 2014 and the delegate refused to grant the visas [in] March 2015. The Tribunal viewed copies of the first (the wife) and fourth (the husband) named applicants’ Albanian passports. The Tribunal accepts that these two applicants are citizens of Albania and will assess their claims against Albania as the country of reference for the purposes of s.5H(1)(a) and receiving country for Complementary Protection purposes. The two children, the second named being born [in] and the third named [in date], were both born in Australia.

3. At the hearing the Tribunal enquired as to the children’s nationality. The parents appeared to presume that they were Australian for the reason of being born in Australia. They also presumed that they were ineligible for Albanian citizenship and had not undertaken any measures to legalise them under Albanian law. I put to them the Law on Albanian Citizenship, article 7, which states under the heading of acquisition of citizenship by birth: ‘Everyone born of at least one parent with Albanian citizenship shall acquire Albanian citizenship automatically’. I put to them that it appeared that it would be a matter of processing documents to acquire citizenship as it is acquired automatically through them. No further submissions were made on this matter. Based upon the Law on Albanian Citizenship I find that the country of reference and receiving country for the second and third named applicants is Albania.  

4. Albanians can travel into Europe and remain for a period of up to three months in every six months. This right does not extend to a right to work and settle. As such I find that the applicants cannot avail themselves of a right to enter and reside in a third country.

   Application history

5. The first named applicant first applied for a protection visa [in] February 2011 as a secondary applicant to her husband, but having completed a form 866C: ‘Application for an applicant who wishes to submit their own claims to be a refugee’. The applicant wrote in response to the question, ‘why did you leave that country?’

   [T]he political enemies of my husband were threatening to kill him and the threats were directed at him in [Country 1] in the lead up to the proposed EU opening of the borders to Albanians. As his wife I am also under threat of kidnapping or violence because I am the chink in his armour, they can use me to get at him if they cannot find him. So I was forced to flee also.

6. [In] August 2011 a delegate of the Minister refused the application for a visa. On 22 March 2012 the Tribunal affirmed the delegate’s decision having specifically considered whether the current applicant, as she then claimed, would face a real chance of serious harm as a member of a particular social group (member of her husband’s family).

7. Following the passing into law of the Migration Amendment (Complementary Protection) Act 2011 (Cth) the first named applicant applied for a protection visa in February 2014. A delegate of the Minister refused the applicant [in] March 2015. The applicant appealed this decision to the Tribunal which subsequently affirmed the delegate’s decision on the 14 September 2016. The applicant appealed this decision to the Federal Circuit Court. The case was remitted by consent originally for the reason:

   The Tribunal committed a jurisdictional error by failing to consider the First Applicant’s claims under s 36(2)(a) of the Migration Act 1958 (Cth), in circumstances where the First Applicant’s claims were not assessed against s 36(2)(a) in her earlier Protection visa application. As outlined in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235, it was open to the First Applicant to seek to satisfy either s 36(2)(a), (aa) or (c) in her present Protection visa application, being the criteria against which she had not previously been assessed. However, the Tribunals consideration of the First Applicant’s claims has resulted in findings being made only against s 36(2)(aa), (b) and (c) and therefore the Tribunal fell into jurisdictional error.

8. The Tribunal questioned the reason for remittal as s.48A of the Act places a bar on a further application which duplicates an earlier unsuccessful application for a protection visa. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of under specific circumstances only considering claims in relation to the complementary protection criterion in s.36(2)(aa). As a result, under Rule 16.05(2)(f) of the Federal Circuit Court Rules 2001 the reason was subsequently varied to:

   The Tribunal denied the applicant procedural fairness and that this constituted a jurisdictional error, of the kind found in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183, in circumstances where:

   a. A delegate of the first respondent issued a notification pursuant to s.438(1)(b) of the Migration Act 1958 (Cth) [in] March 2016 and the existence of the notification was not disclosed to the applicant in the course of the review by the Tribunal; and

   b. At least some of the documents subject of the notification were relevant, or potentially relevant, to the issues arising on the review by the Tribunal.

9. Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a).

10. For this reason the decision reconsiders the case following the remittal to the Tribunal of the February 2014 application. For the first and fourth named applicants it considers claims under s.32(2)(aa), (b) and (c). For the second and third named applicants this decision considers claims under the entirety of s.36(2).

11. The applicants appeared before the Tribunal on 27 September 2017, 11 December 2017 and 2 February 2018 to give evidence and present arguments. The first hearing was held in person within the Tribunal’s [premises]. The subsequent hearings were held by video with the applicants in the Tribunal’s [premises] and the Member in the Tribunal’s premises in [another city]. Issues arose with the quality of video transmission during the second hearing. Due to these issues the hearing was adjourned and completed in its third occurrence.

12. The Tribunal also received oral evidence from [the] mother of the first named applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Albanian and English languages.

13. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearings.

    RELEVANT LAW

14. 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.

    Refugee criterion

15. 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).

16. 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.

17. 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.

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

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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

25. 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’).

26. ‘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.

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

    Section 499 Ministerial Direction

28. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Member of the same family unit

29. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a spouse and child who has not turned 18 years of age. I find that the second, third and fourth named applicants are members of the family unit of the first named applicant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Summary of claims

30. The first named applicant claims to have introduced a young man working on her mother’s vineyards to a cousin. This introduction subsequently led to an illicit relationship which was discovered by her father who instead wanted her to marry another man. The cousin subsequently committed suicide and the father blames the first named applicant for this death and has pursued her since. The fourth named applicant was a member of a political party and worked as [Occupation 1] at the 2009 elections. He claims to have been threatened for his role in those elections. Both the first and fourth named applicants fear harm arising from each other’s claims. The children fear reprisals arising from their parent’s dilemma.

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

    Evidence and findings of fact

32. Letters of support were received by the Tribunal from:

    a.[The] applicant’s sister submitted a letter dated [in] July 2016: She describes the events following the death of [Ms A] and how she learned of [Mr B’s] anger and him blaming the applicant. She noted the importance of tradition including arranged marriages and how the applicant’s actions had violated this tradition.

    b.[The] applicant’s mother submitted an undated letter: She describes the moment [Mr B] came to her house following the death of his daughter. Present at the time were [the applicant’s mother], [the applicant’s sister], [the mother]’s mother-in-law and her brother-in-law along with his wife. She states that [Mr B] has the intent to punish the applicant according to the Kanun. She also submitted a letter clarifying her evidence provided at the third hearing along with a photo of the front of her house.

    c.[A] member of the [Catholic] Association in which the applicant is also involved: He writes of the role Kanun law plays in Albanian society.

33. The Tribunal was provided with a ‘dob-in-letter’ by the Department of Immigration [in] March 2016. Accompanying the letter was a s.438 certificate which I found to be a valid certificate. Considering the information was provided in confidence I conveyed to the applicant a summary of the relevant section, specifically, that the applicant is claimed to have travelled back to [Country 1] on several occasions. The fourth named applicant responded that since he had come to Australia he has not left. I asked whether he was facing or had faced any court cases. It was explained that the case was dismissed in favour of the fourth named applicant. He explained that the case he faced was that he held firearms, and, in addition, claims related to a house. In a post-hearing submission the judgement was provided to the Tribunal. The judgement found the fourth named applicant not guilty of all charges. As the dob-in-letter was not accurate in the facts, which were proven through the provision of the court judgement, I place no weight upon the dob-in-letter as a whole and do not consider further any of the other statements made.

1. The applicant completed twelve years of schooling before marrying at the age of [age]. She claimed that she remained in Albania for approximately one year following her marriage [in] September 2008, living in Tirana with her husband and in [another location] with her husband’s family. In June 2009 Albania had parliamentary elections. During this period, as her husband was involved in politics, she stayed with her mother throughout June in their [village]. I accept these claimed movements as fact.

2. The applicant’s husband grew up in [in a location]. When he was [age] years of age he departed for [Country 1] because his brothers were small and he wanted to provide for his family. In [Country 1] he did a variety of jobs, including working in [different occupations]. He returned permanently in 2008 when he was [age] and married the first named applicant. I accept this as fact.

   Findings of fact related to claims arising from the fourth named applicant

3. The fourth named applicant, the husband, gave evidence regarding his political involvement stating that he was a member of a small party called the Democratic Christian Party. In the village where he lives the majority of the population was Muslim. They wanted to eliminate his party which caused frictions during Muslim religious days. He claimed that he joined the party in 2006 as he saw it as a party that he believed would change things including the level of corruption in the country. So he volunteered during the commune elections in 2007 and later in the 2009 elections for parliament. I accept this evidence as fact.

4. Problems arose in the 2009 elections. He was [Occupation 1] for the elections in the town of [Village 1]. He claims that he and other [Occupation 1 personnel] were expelled from the election centre because officials wanted to ‘steal’ votes. He provided a news recording of the incident which was translated by the interpreter in the third hearing. Initially, the husband stated that although there were four parties running in that area only he and other representatives of his party were expelled. Subsequently, he claimed that he was the only one representing his party. Furthermore, it is apparent from the video that other [Occupation 1 personnel] were expelled and not just him. While the differences in evidence are in sharp contrast with each other the details are not material to this case and as such I do not pursue further. I accept that he was expelled from the polling station and accept the video evidence that others were as well.

5. [Details deleted]. I enquired as to why the video he had provided focused upon the Democratic Christian Party and whether it was produced by them to which he responded that the television station had done so because they were the party that had lodged the complaint.

6. After the June 2009 elections he didn’t do anything for the party as he claims he lost hope and trust. I accept that he didn’t continue with his involvement in politics.

7. He fears returning because he claims to have received threats during that period. He mentioned the circumstances of Aleks Keka, the leader of the Democratic Christian Party, who was killed by a car bomb just before the election. Country information confirms that he was killed ten days before the election, though there are questions over whether it was politically motivated or drug related.[1] I put this to him and he responded that it was politically motivated, and any other claims are false accusations. He also said that he was told that he would face the same outcome if he didn’t leave the country. He claimed that he was careful by checking his car to see if they had placed a bomb under it and careful where he would park. Through this period he never found anything suspicious. Those threatening him were [name deleted], who he claimed was a [staff] of [a politician]; [the senior officer] of Police in [Village 1] and another named [person]. They threatened him separately, not collectively, and through other people, not directly. [The senior officer of police] was the only one who conveyed a threat directly, he said to him face-to-face that if he doesn’t leave then they’ll get rid of him. He claims that he was threatened around ten times prior to the elections. Before that he received threats but they intensified after Aleks’ death leading into the election. I accept that he was threatened based upon the consistency of his claims, the evidence presented and country information supporting such claims during the elections.

   [1] Balkan Insight, “Albania Police: Dead Politician Was Drug Dealer” 18 June 2009, >

   The husband fears that the risk posed to him no longer arises from the politics but it has become a personal animosity between those with whom he had crossed paths. For this reason he claims that the threats continued even after he left Albania.

8. The husband travelled to [Country 1] in September 2009. He claimed that while in [Country 1] he heard of threats being made against him and that people were asking about his whereabouts. Specifically, some of the friends he had in the Christian Democratic Party told him that others had voiced threats against him and that these people wanted to kill him. I accept that some of the people who had made threats against him during the election continued to speak threateningly about him in the immediate period after the election.

9. The husband returned to Albania from [Country 1] on three occasions. He claimed that no-one knew that he had returned. He said that he was worried about people in his village, and not influential people in the government who may have access to immigration checks. I put to him that he claimed to be worried about the [staff] of [a politician] who held an influential position. He responded that the [staff] lived in Shkoder and that he was a gangster, he wasn’t employed officially, he was the tough guy. He said that nothing happened to him because he maintained a low profile entering Albania and continued to take precautions including not going out during the day so they didn’t know that he had come back. I also accept that the husband took precautions during his return trips to Albania.

10. The husband has not been involved in any political activity in Australia and upon being asked whether he would be involved in political activity were he to return he responded that he would not. I accept both statements as fact.

11. I asked whether other members of the Christian Democratic Party were harmed after the 2009 elections, to which he responded that they had not been and that the party had been dissolved. I accept this as fact.

    Findings of fact related to claims arising from the first named applicant

12. In addition to fearing return based upon her husband’s circumstances, the first named applicant, the wife, explained that her fear is also based upon an incident that occurred at the time her husband was involved in the 2009 elections. She was staying with her mother at a time when they had workers working on their vineyards. A female cousin of the wife’s, [Ms A], was also staying with them. The wife claimed that one of the workers, [Mr C], approached her showing an interest in [Ms A]. The wife thinking that they would be a well suited couple, despite [Ms A] being [a minor], decided to speak on behalf of [Mr C] to her cousin. Following this the two started talking to each other. The wife asked [Ms A] not to tell anyone ‘because I knew of the dangers this would cause’.[2] The wife subsequently learned that the relationship had progressed and that they had slept together.

    [2] Statutory declaration [in] February 2014.

13. In September 2011 the wife claims that she was told by her mother that [Ms A] had been married to another boy, which surprised the wife as she knew about the relationship with [Mr C]. The wife claims that [in] July 2012 [Ms A] committed suicide. She provided a copy of an [article] about this (file [number] folio 91). She claimed that three days after the funeral her mother called and was told that [Ms A’s] family had come to their house and were blaming her for the death. [Ms A’s] father, [Mr B], had threatened the wife’s mother by saying, ‘you will feel the pain as we are feeling it now’ and ‘my daughter is dead but your daughter will go the same way’. The wife interpreted the first quote to mean that they were threatening to kill her so that her mother would feel the same pain they felt. Her mother also learned that [Mr B] had been told earlier of the relationship by his daughter and that he had beaten her so badly that she remained in bed for between one and two weeks. She was also told that [Ms A] tried to escape her arranged marriage three times by fleeing back to her family but they kept sending her back. I accept that [Ms A] committed suicide, that her family blamed the wife for having made the introductions and that threats made to the wife’s mother occurred as claimed by the applicants.

14. The wife stated that her mother had twice been harmed by [Mr B]. The first time was at her house where he grabbed her arm forcefully three days after the funeral with the first named applicant’s sister, grandmother, paternal uncle and his wife present and the second time, around the date of the first anniversary of her death, he pushed her to the ground. I accept that this occurred as claimed.

15. The mother gave evidence. She stated that the last time she heard from him was mid-July 2017 when he came with his ‘usual’ anger. While standing outside he said that he knew everything about the first named applicant and voiced expletives threatening her daughter. I asked whether the mother was ever confronted by [Mr B] outside of the safety of her home to which she said that she hadn’t been but she doesn’t go out much. I accept that he shouted abuse in mid-2017 and that she wasn’t confronted outside of her home.

16. The mother said that she never went to the police following the harm [Mr B] had perpetrated against her or the threats he was making because she is a widow and thinks that she would be looked down upon. I asked why she would be worried about how others saw her when she claimed to fear for her own safety. She also claimed never to have discussed it with her brother-in-law because he was angry at what the wife had done and so she just kept her head down. I asked if anyone from her family had reached out to try to settle the dispute, to which she said that they hadn’t. I accept that the wife’s mother had never gone to the police for the reasons described and that she hadn’t discussed it with her brother-in-law also for the reasons described, nor that anyone had tried to settle the dispute.

17. The wife said that [Mr B] wanted to ensure that no one else would find out about the story and so he wanted to end anyone who knew. I put to her that this was not consistent as she had claimed that he had told the wife’s mother. The wife prevaricated so I explained again noting she had said earlier how important it was that no-one knew about [Ms A] losing her virginity. She responded that [Mr B] told her mother because he wanted her to know. I find it doubtful that [Mr B] would be telling the story of his daughter losing her virginity to others but giving the wife the benefit of the doubt, I accept that [Mr B] had explained to the wife’s mother why he was threatening the wife.

18. The wife hasn’t received any direct threats from [Mr B]. The latest engagement between the wife’s mother and [Mr B] was July 2017 when he said to her, ‘I know everything about your daughter’ including that she has a son. The wife fears that her youngest son would be targeted for revenge. I accept that this conversation occurred.

    Relevant country information regarding the Kanun

19. The Kanun is the historical customary law of parts of Albania.

    The most common version of customary law among the Albanians is the Kanun of Lek Dukagjin. The Albanian Gegs inhabiting the territories north of the Shkumbin River had lived for long centuries in large clans observing the code of the Kanun – a primitive constitution regulating not only their community life, but also their private lives. The norms were passed on from generation to generation by an oral tradition and were decreed by the council of elders. It is considered that the Code was rationalised by despot Lek III Dukagjin (1410 – 1481). This code was compiled throughout the centuries chiefly by adding new norms. It was […] published as late as 1933. The text was systematised into 12 sections – “The Church”, “The Family”, “Marriage”, “The House, Cattle, and Property”, “Work”, “Loans”, “Pledge”, “Honour”, “Damages”, “The Kanun against Harm”, “The Kanun of Judgement”, “Exemption and Exceptions”.[3]

    The Code does not allow the murdering of women or children.[4]

    References to Kanun law are misleading bearing little relation to modern Albania. […] Blood feud was stamped out during the regime of the dictator Enver Hoxha, when penalties for feuding families were harsh. But the collapse of the regime in the early 1990s, and the law enforcement vacuum left in remote areas of the north by the absence of a functioning state, left space for revenge killings to reassert themselves. But modern revenge killings appear to bear little resemblance to the codified, almost ceremonial aspects of “Kanun” based blood feud.[5]

    [3] International Centre for Minority Studies and Intercultural Relations (IMIR), The Kanun in present-day Albania, Kosovo, and Montenegro, 2004 referenced in United Kingdom: Home Office, Country Information and Guidance - Albania: Blood feuds, June 2014.

    [4] Ibid.

    [5] A Foreign and Commonwealth Office (FCO) letter from the British Embassy Tirana, dated 17 February 2016 referenced in United Kingdom: Home Office, Country Information and Guidance - Albania: Blood feuds, June 2014.

    Considerations – Husband’s political profile

20. The husband was involved in a local election in 2007 and a national election in June 2009. It was through the latter vote that he was threatened and his fears of return arose. As  [Occupation 1] for the Democratic Christian Party he was threatened repeatedly in the lead up to the 2009 election by various influential people but neither was he harmed nor did he discover a failed attempt to harm him. His party gained less than 1% of the vote. He remained in Albania for three months and then he went to [Country 1]. At this time his wife, the first named applicant, was at her mother’s home.

21. The husband said that despite the events occurring nearly ten years ago and his party having lost the elections the risk he faces isn’t about politics anymore but that it has taken on a personal nature and that because of the Albanian concept of Kanun it has become a blood feud. The question before the Tribunal is whether there is a blood feud or any other type of lingering animosity or vendetta that could amount to a real chance of serious harm to the children or a real risk of significant harm to all of the applicants.

22. That the husband did not face any harm during the three months following the election is strongly indicative that he won’t face any harm was he to return nine years later. No evidence was found nor made available by the applicants suggesting that other members of the Christian Democratic Party in Shkoder were harmed after the 2009 elections. As presented, the applicant’s evidence described an intense period of threats prior to the election with a reduction after the election. I find that this is indicative but not conclusive of a focus by his opponents upon the outcome of the elections (it could also be for the reason that he was no longer in his home town). No threats have been received since the applicant left [Country 1] in December 2010. When these aspects are brought together I find that the husband is highly unlikely to be pursued by his former political opponents due to the passage of time of nearly ten years since the elections if he was to return to Albania. As such I find that the first and fourth applicants face a remote risk of significant harm for the reason of the husband’s past political activities and the second and third face a remote chance of serious harm and a remote risk of significant harm.

    Considerations – Revenge for the death of [Ms A]

23. The first named applicant fears [Mr B] based in part upon his propensity towards violence. She described him as being someone who was violent to the women in his family and that even his children are violent including one son killing his wife. I put to her that if he was operating outside of the Kanun, is a violent man and is willing to risk everything to seek revenge why hadn’t he done anything for eight years against her mother who was responsible for bringing [Mr C] to the farm and allowing [Ms A] to go with the wife to serve the workers. All that had happened to her was that she was held tightly and pushed to the ground. The wife responded that she was directly responsible for the relationship and not the other members of her family.

24. I asked why the wife thought [Mr B] didn’t harm her brother-in-law who was living with her for at least three years since the death of [Ms A] to which she first responded that blood feuds are taken on by a brother or father and as she doesn’t have either he is focused on her. I put to her that if the rules of the Kanun are being followed then violence against females is not permitted. She responded that he said that he wants to harm her daughter and knows about her son and that [Mr B’s] pursuit is driven by both the Kanun and his own pain.

25. At an earlier stage of the application process the wife’s representative through a submission had written that the wife’s sister had not been targeted because she is married and so any attack on her would begin another blood feud with her husband’s family. I asked the wife why he wouldn’t be worried about starting a blood feud with her husband’s family. She responded that he wants to take direct revenge against her and doesn’t care. I again reiterated that her representative had said earlier that he didn’t want to start a blood feud which implies that he does care. She responded that only he knows why he would not take revenge against her sister.

26. I asked the first named applicant why she thought that [Mr B] hadn’t waited until her mother had left her house and then to put pressure on her to tell him where she was. She responded that maybe [Mr B] was trying to gather information in other ways elsewhere. I put to her that it seems strange that he is so desperate to find out where she was but he doesn’t do the obvious thing to wait outside her mother’s house and physically force her to give the information. She responded that he must have found another way as he said that he knew everything of [applicant’s mother]. I find this reasoning unconvincing. The first named applicant had claimed that [Mr B] had told her that he had once gone to [Country 1] and looked for [the applicant’s mother] but couldn’t find her. That he would go to [Country 1] to seek out information on her daughter but not take the obvious route of physically confronting her mother who lived in a neighbouring village to him I find to be implausible.

27. In considering the circumstances I first turn my mind to whether [Mr B] believes to be operating within the Kanun. If he were operating within the Kanun it would explain why the wife’s mother was not harmed—she is a woman—but that would also indicate that the wife would not be harmed and she would not have a reason to fear harm, nor would she have been pursued. This goes contrary to the applicant’s claims. Considering country information indicates that the Kanun is no longer adhered to, and having accepted that [Mr B] has made threats against the wife, I agree with the wife and find that her view of [Mr B] acting outside of the Kanun to be the correct interpretation.

28. As someone who is acting outside of the Kanun I now consider whether the wife faces a real risk of significant harm. In this circumstance the past behaviour of [Mr B] is indicative of the future actions he may take against the wife. I do not accept the wife’s argument that [Mr B] has for the past eight years channelled his anger only at the wife and not allowed any desire for retribution to be exacted on her mother, especially as the mother has described his wrath as being driven by pain. It is difficult to identify a substantially higher level of responsibility for the illicit relationship lying with the wife who was turning [age] at the time, and the mother who was the person ultimately responsible for the workforce. It has been argued that the relationship between [Ms A] and [Mr C] would not have occurred were it not for the wife and as such [Mr B] is focused upon the actions of the wife alone. While it is true that without the wife’s actions the relationship would not have occurred it is also true that without the mother allowing [Ms A] and the wife, two young women of which one was only recently married, to go to the fields or facilitating an environment where [Mr C] could meet alone with [Ms A] makes her equally culpable.

1. I note that through the eight years since the suicide [Mr B] has not attacked the wife’s mother when she leaves her house, attempted to enter her house or, in those previous occasions when he did assault her, he did not do so with intent to cause serious harm. Considering that the extent of [Mr B’s] harm against the wife’s mother has to date involved being pushed to the ground, held tightly on the arm and having threats shouted to her from the street, and that [Mr B] has continued as recently as June 2017 to shout abuse at the mother I find that the wife would face equal types of harm from [Mr B] was she to return but I find that this would not amount to significant harm.

2. I have also considered whether the wife faces risks as a target of revenge against the mother whom he has been unable to harm. Specifically, [Mr B] said that he wants the wife’s mother to ‘feel the pain as we are feeling it now’ along with, ‘my daughter is dead but your daughter will go the same way’. I find that this iteration does not meet the real risk test, for the reason that the mother has been accessible to [Mr B] on at least two occasions and he did not attempt to harm her in a way that would cause her greater harm than what he did, which I found to not amount to significant harm (for example, he did not bring a gun to any confrontation). I do not accept that [Mr B] would not cause serious harm to someone who is equally responsible for his daughter’s suicide, but instead wait for nearly a decade to harm the daughter so as to harm the mother by making her feel ‘the pain as we are feeling it’. As such I find that the wife faces a remote risk of significant harm as a necessary and foreseeable consequence of returning to Albania.

3. I have also considered the circumstances of the husband. There have been no claims that the husband would face harm separate to the wife. At no stage was evidence presented that the extended family of the wife were threatened despite being present when [Mr B] was enraged. For this reason I find that the husband faces a remote risk of significant harm as a necessary and foreseeable consequence of returning to Albania.

   Claims of the children

4. The children, a young girl and a young boy, are claimed to face harm for reasons arising from their parents’ fears. In addition to such harm I have identified other possible risks that arise from the evidence.

5. I have considered the risks the children face emanating from the husband’s political profile and found that they face a remote chance of serious harm and a remote risk of significant harm.

6. In considering any potential harm arising from the situation in which the wife finds herself in, I note that I have concluded that [Mr B] is not pursuing his vendetta as a part of the traditional Kanun laws. This fact is important to distinguish, for the reason that it sheds light on whether [Mr B] is acting within the bounds of customary law. I found earlier that he is not and as such customary law does not apply. In such a case there is no reason to consider that the wife’s children will for some reason face a greater level of harm than the wife herself, and in particular the son who the parents have claimed will be a target because he is male. As I have found that the wife does not face a real risk of significant harm for the reason of her facilitation of a relationship between [Ms A] and [Mr C], I find that her children do not face a real chance of serious harm or a real risk of significant harm for the same reason.

7. I have also considered if on the face of the evidence available, whether the children face other harm. The Department’s PAM 3 document references a UN Human Rights committee that stated corporal punishment is a breach when it includes ‘excessive chastisement ordered as punishment for a crime or as an educative or disciplinary measure’. Furthermore, guidance in PAM 3 states that laws allowing corporal punishment in schools ‘in itself would not normally indicate that the particular individual is at risk of being disciplined at school in a manner sufficiently severe to constitute cruel, inhuman or degrading treatment or punishment’. To determine whether the children face such treatment or punishment I began by reviewing country information.

8. Country information states that:

   Corporal punishment is explicitly prohibited in schools in article 36(2) of the Fundamental Normative Provision, based on Law No. 7952 “For the Pre-University Educational System” 1995, which states: “The individuality and human dignity of the pre-school child and pupil is respected. It is protected from physical and psychological violence, discrimination and isolation. In kindergarten and schools, it is categorically prohibited to have children made subject to corporal punishment or hazing.” Article 21 of the Law on the Protection of the Rights of the Child 2010 also applies (see under “Home”).[6]

   [6] Global Initiative to End All Corporal Punishment of Children, Country Report for Albania: Legality of corporal punishment (July 2017)

9. When this information was put to the parents of the children they responded that corporal punishment is used despite the laws. In reviewing evidence on this I find that the situation is as follows: while in some instances corporal punishment does occur it is not condoned by the state and since the early 2000s it has been a priority of organisations such as UNICEF[7] and Save the Children[8] to educate teachers to stop using such disciplinary measures. Research undertaken by these institutions shows a substantial reduction in the incidence of teachers accepting corporal punishment as being in the best interest of the child.[9] As such, I find that while there is a chance and a risk that the children will face corporal punishment it is not such that it amounts to a real chance or a real risk.

   [7] UNICEF, Violence against children, Global Initiative to End All Corporal Punishment of Children, Country Report for Albania: Legality of corporal punishment (July 2017) Ibid, ‘Prevalence/attitudinal research for Albania in the last 10 years’.

   Cumulative considerations

10. In MILGEA v Che Guang Xiang the Court required that to establish a real chance it is necessary to look at the totality of circumstances.[10] I now turn my mind to considering the cumulative impact upon the applicants’ profile in relation to Refugee Convention grounds as well as those of Complementary Protection as appropriate.

    [10] Unreported, Federal Court of Australia, Jenkinson, Spender and Lee JJ, 12 August 1994 at [17].

11. For the first named applicant I have considered the situation of her being both the spouse of a man who faces a remote risk of serious harm for reasons of a political vendetta as well as herself facing a remote risk of significant harm for reasons of a personal vendetta. I find that the two do not overlap and that the risk of significant harm does not increase. As such I find that the applicant does not face a real risk of significant harm as a necessary and foreseeable consequence of returning to Albania.

12. I have also considered the circumstances of the fourth named applicant who faces a remote risk of significant harm for a political vendetta along with a remote risk of significant harm for being the spouse of the first named applicant. I find that the two do not overlap, that the risk of significant harm does not increase and as such I find that the applicant does not face a real risk of significant harm as a necessary and foreseeable consequence of returning to Albania.

13. I have also considered the circumstances of the children. I find that their likelihood of facing serious or significant harm through corporal publishment is mutually exclusive from the risks they face emanating from their parent’s situations. I find that the three do not overlap and as such the chance of serious harm in the reasonably foreseeable future does not amount to a real chance and the risk of significant harm as a necessary and foreseeable consequence of returning to Albania does not amount to a real risk.

14. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion relevant to each set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criteria set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

15. The Tribunal affirms the decision not to grant the applicants protection visas.

    Denis Dragovic
    Senior Member