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

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).
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.
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.
Albanians can travel into Europe…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1621400 (Refugee)

Details

AGLC: 1621400 (Refugee) [2018] AATA 664
Case: [2018] AATA 664
Decision Date: 1 March 2018

CaseChat Overview and Summary

This matter concerned protection visa applications made by a family unit, with the first named applicant alleging fear of revenge from her father due to a violation of tradition, and the fourth named applicant claiming threats related to his involvement in local and national elections. The Federal Circuit Court was required to determine whether these applicants, and their children, faced a real chance of significant harm if returned to Albania, thereby qualifying for protection under Australian law.

The court was tasked with assessing the credibility and weight of the evidence presented, including letters of support from family members and an association member, and a "dob-in-letter" from the Department of Immigration. Crucially, the court had to consider whether the alleged fears of harm, stemming from a personal vendetta for the first applicant and a political vendetta for the fourth applicant, constituted a real risk of significant harm, and whether these risks, when considered cumulatively with the risks to the children, met the threshold for protection.

In its reasoning, the court applied the principle that to establish a real chance of harm, the totality of circumstances must be examined. The court found that while corporal punishment might occur in Albania, it was not condoned by the state and had seen a substantial reduction in acceptance. Therefore, the risk of corporal punishment to the children was not considered a real chance of serious harm. Regarding the adult applicants, the court found that the risks of significant harm from their respective personal and political vendettas did not overlap or increase cumulatively. Consequently, the court concluded that neither the first nor the fourth named applicant faced a real risk of significant harm as a necessary and foreseeable consequence of returning to Albania.

The Tribunal affirmed the decision under review, meaning the protection visa applications were refused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 EVIDENCESummary of claims 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Evidence and findings of fact 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. 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.

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Evidence and findings of fact 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. 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. 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. 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

Ratio Decidendi

Legal Principle Established

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 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]. 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. 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. 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.