1711920 (Refugee)

1711920 (Refugee) [2019] AATA 6817 (9 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1711920
COUNTRY OF REFERENCE:                   Albania
MEMBER:C. Packer
DATE:9 October 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision to refuse to grant the applicant a Temporary Protection (Class XD) visa.
Statement made on 09 October 2019 at 1:44pm

CATCHWORDS

REFUGEE – protection visa – Albania – Federal Circuit court remittal – complementary protection – fear of loan sharks – murder of the applicant’s father – blood feuds – multiple claimed identities – fear of killing – state protection – inconsistent evidence – credibility issues – decision under review set aside and substituted

LEGISLATION

Migration Act 1958 (Cth), ss 36, 45AA, 48A, 91WA, 424A, 438, 441A, 441C
Migration Regulations 1994 (Cth), r 2.08F; Schedule 2

CASES

BGM16 v Minister for MIBP [2017] FCAFC 72
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

The issue in this case is whether the applicant is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.
The applicant is a man aged [age], born in Albania and a citizen of Albania.
The applicant last arrived in Australia [in] March 2003, on a UD976 visa, using a Greek passport and in a different name.
On 14 May 2003 the applicant, using the alias [Alias 1] born [DOB 1], applied for a Protection (Class XA) visa.
On 9 February 2004 the delegate refused the application.
On 17 March 2004 the applicant applied for review of the delegate’s decision.
On 27 July 2004 the Tribunal (differently constituted) affirmed the delegate’s decision.
The applicant sought a review of the first Tribunal’s decision from the Federal Court of Australia, and on 24 March 2005 the Court affirmed the Tribunal decision.
From 24 March 2012 a new alternate criteria for the grant of Protection visas was introduced by the Migration Amendment (Complementary Protection) Act 2011, so that a person may meet the criteria for a Protection visa where there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that she or he will suffer significant harm.
The applicant again applied for a Protection (Class XA) visa. The Department records that a legible copy of his application was received on 3 October 2013. This application was accepted as valid by a delegate of the Minister, and assessed as an application for a Protection (Class XA) visa. On 9 July 2014 the applicant attended an interview with a delegate.
On 12 January 2015 the delegate refused the application for a Protection (Class XA) visa.
However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa.
On 29 January 2015 the applicant applied for review of the delegate’s decision.
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 held that the operation of the statutory bar in s.48A was confined to a further application which duplicated the same essential criterion for the grant of the visa as in the earlier unsuccessful application. That is, it did not prevent a non-citizen who had made a valid application on the basis of the refugee criterion in s.36(2)(a) from making a further application on the basis of the complementary protection criterion in s.36(2)(aa) or the family membership criteria in ss.36(2)(b) or (c) while he or she remained in the migration zone.
Applying the reasoning in SZGIZ v MIAC (2013) 212 FCR 235, the Tribunal finds that it does not have power to consider the Refugee Convention criterion in s.36(2)(a), and has proceeded on the basis that it can only consider the applicant’s claims under the complementary protection criterion contained in s.36(2)(aa). The Tribunal must also assess the applicant’s claims against 36(2)(b) and 36(2)(c) of the Act, which make provision for non-citizens who are members of the same family unit of a person to whom Australia has protection obligations.
On 21 July 2015 and 6 August 2015 the applicant attended a Tribunal hearing with the second Tribunal (differently constituted). On 18 August 2015 the second Tribunal affirmed the decision of the delegate to refuse the visa.
The applicant sought a review of the second Tribunal’s decision from the Federal Circuit Court of Australia and on 29 May 2017 the Court ordered by consent that the Tribunal decision of 18 August 2015 be quashed and the application for review be re-determined according to law. This was on the basis that the second Tribunal misconstrued s.91WA(1)(a) as applying to circumstances where a bogus identity document was not provided in connection with the Protection visa application, which is inconsistent with the Full Federal Court judgement in BGM16 v Minister for MIBP [2017] FCAFC 72.
On 2 August 2019 the applicant attended a hearing.
The applicant’s narrative is centred on a debt he claims to owe to a pair of loan sharks in Albania. He claims to have borrowed a large sum in December 1996 to buy a truck and operate [a specified] business, but when the truck and goods were stolen in March 1997, he eventually had to flee from the moneylenders to Greece and then Australia. However, my great concerns with significant elements of the applicant’s narrative and evidence, and my great concerns with his truthfulness, lead me to disbelieve the story in its entirety. My assessment follows.
The applicant’s address for correspondence
When on 29 January 2015 the applicant applied for review of the delegate’s decision, he was in detention. When the matter was remitted by the FCCA in May 2017, the Tribunal contacted his authorised representative at the time and was provided a residential address (address 1). However, a Tribunal officer made a data entry mistake when entering address 1 on the Tribunal’s Casemate system (address 1E). The Tribunal officer also attempted unsuccessfully to contact the applicant by telephone. The Tribunal officer noted that the applicant had provided a new residential address to the Department (address 2) and accordingly sent correspondence to the incorrect address (address 1E) as well as address 2. The Tribunal’s letter attached a Change of Contact Details form, however, no reply was received by the Tribunal, and the Tribunal’s letter to address 1E was not returned to sender.
The Tribunal next scheduled a hearing on 26 June 2019, however, due to the data error the Tribunal sent the hearing invitation to the incorrect address (address 1E). When the applicant did not appear at the scheduled hearing, the Tribunal discovered the data entry error. Accordingly, the Tribunal sought to confirm with the applicant his new contact details, by sending an email on 4 July 2019 to his last notified email address (email address 3). In a phone call on 10 July 2019 the applicant’s friend confirmed the applicant had received the Tribunal’s email sent to email address 3.
The applicant subsequently faxed and mailed a completed Change of Contact Details form to the Tribunal that gave residential address 2 and his email address 3. He is unrepresented. On 12 July 2019 a Tribunal officer contacted the applicant by telephone and he confirmed the Tribunal could send correspondence to his email address 3. The Tribunal officer advised him that the Tribunal would set his notification method as email with email address 3 already provided by him in writing and already used to send him documents.
The Tribunal is permitted to send the applicant documents by email, and to the last email address “provided to the Tribunal” by him in connection with the review, whether in writing or by phone. Section 441A(5)(d) of the Migration Act provides:
(d) the last fax number, email address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review;
On 16 July 2019 the Tribunal invited the applicant to attend a hearing scheduled for 2 August 2019, and the invitation was sent to email address 3. On 1 August 2019 the friend phoned the Tribunal and confirmed the applicant had received the hearing invite. On 2 August 2019 the applicant attended a hearing. At the hearing the Tribunal discussed information with the applicant and advised that- as the information would, subject to his comments/response be the reason/part of the reason for affirming the decision under review- after the hearing the Tribunal would send him a letter inviting him to comment on or respond to information.
The Tribunal’s letter sent pursuant to s.424A dated 28 August 2019 was sent to email address 3, and the letter advised his written comments or response should be received by the Tribunal by 11 September 2019. The applicant is taken to have received the letter at the end of the day on which the letter was transmitted: s.441C(5). However, no response was received.
Then on 23 September 2019 the Tribunal received the applicant’s email (sent from email address 3) that sought further time to respond:
I’m writhing this you email to ask for an extension for the respond I am supposed to give regarding my case by the 11th Sep. The reason I haven’t responded is because just today I managed to get access to my emai (after I called the department to ask if they can send me a letter to apply for extension of my Medicare, coincidentally) they informed me a letter was send to me by email. On my last form I asked my corespondence to come through mail, not email. In the same time my phone broke and just today I aploaded the app again to check my email. So my question is can I have an extension to reply to the letter I received by you?
However, as the foregoing discussion shows, the applicant’s last completed Change of Contact Details form to the Tribunal gave residential address 2 and his email address 3, and on the phone on 12 July 2019 he confirmed the Tribunal could send correspondence to his email address 3 as his notification method, and this satisfies s. 441A(5)(d).
On 24 September 2019 the Tribunal granted the applicant an extension of time of 14 days to 8 October 2019 to provide comments or response. However, no response has been received by the Tribunal. The Tribunal notes the Tribunal’s letters of 28 August 2019 and 24 September 2019 were sent to the applicant’s notified address (email address 3), and that he had access to his email address as he had sighted the letter of 28 August 2019. The applicant has now had time since 28 August 2019 to respond to the Tribunal’s letter pursuant to s.424A. After careful consideration the Tribunal has decided to proceed to decision without taking further steps to obtain the applicant’s comments or response.
CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS
Background
The applicant’s protection visa application lodged on 3 October 2013 provided some basic background information. The applicant stated that he was born and raised in Albania. He speaks Albanian and Greek, and is a Catholic. He is married but separated in Albania. He stated he had previous addresses in Greece and Albania but did not list them. He did not provide information about his education or employment and stated his occupation was [Occupation 1]. He did not provide information about any convictions, charges, investigations or crimes committed, and stated ‘n/a’.
At the delegate’s interview on 9 July 2014, conducted in Albanian, the applicant stated his wife divorced him in 2013. He has a son born in [year] and a daughter born in [year]. His father died in 2000 from unknown causes, and the [specified family members] all reside in [a named] province.
At my hearing on 2 August 2019 the applicant said he had a girlfriend named [Ms A], and they did not live together. She was an observer at the hearing. He stated his former wife and two children reside in Albania. He has had no contact with the son for a year, but has had recent contact with the daughter including by [social media]. His mother and brother [Mr B] live together in the village in [Village 1]. In Australia the applicant has a sister [named], a brother [Mr C] (his birthname had [a different first name]), a brother [Mr D, with a different surname] (he had the same father but chose to use that surname). He stated he financially supported himself with difficulties: he received assistance from his sister and brother and his girlfriend. He said he has worked at times and his tax file number was just issued; he has been sick and has done light cleaning; he used to [be employed as an Occupation 1] but does much less of that. He does not receive Centrelink payments but is on Medicare.
The applicant’s protection visa application showed travel to Greece and residence there illegally.
Country information[1] shows Albania is bordered by Montenegro and Kosovo to the north, the Republic of Macedonia to the east and Greece to the southeast, with Italy across the Mediterranean to the west. Albania is a parliamentary republic composed of 12 counties (qarku). A report[2] estimates Albania’s population in May 2019 to be about 2.93 million.
[1] UK Home Office Country Policy and Information Note Albania, July 2017, [ Worldometers, [ of claims
In the application received on 3 October 2013 the applicant claimed in handwritten notes:
·He did not wish to return to Albania ‘Because I was in fear of my life after my father was shot to death’.
·‘I was beaten my father’s assassins.’
·‘The code of Kunan means I will be killed.’
·‘The family that murder my father have a blood feud against me.’
·‘In Albania the code of Kunan is a big problem and more so in the [Village 1] area that I am from. I will provide evidence of this fact.’
·‘The Albanian police do not get involved with the code of Kanun.’ (typed)
Then in a statement provided on 4 July 2014 the applicant claimed to fear harm in Albania from two brothers because of a debt he owed them. His key claims as summarised are:
·In 1996 in Albania he borrowed [Amount 1] lek from the [Family 1] brothers, with a five year term and 10%pa interest. He wanted to use the money to develop a business purchasing [specified products]- and so he purchased a truck.
·In 1997 rebel bands near [Town 1] robbed him of the truck and goods he was transporting.
·He was unable to pay the [Family 1] brothers the annual interest, and so the brothers searched for him throughout Albania and threatened the applicant’s parents. The parents told the [Family 1] brothers not to come to the family home asking about the applicant and his debt.
·In late 1999 he went to live and work in Greece. In November 2002 two men with guns asked after him and so he decided to flee to Australia using a false Greek passport.
·Family members have told him that the [Family 1] brothers have never stopped looking for him.
·In 2013 he was told two unidentified men beat his adult son and forced the son to tell them the applicant’s location. The son reported the assault to the police.
·A few months later four men beat the applicant’s [brother] and asked for the applicant. The brother now wants revenge against the [Family 1] brothers.
The delegate’s decision shows that at the delegate’s interview on 9 July 2014:
·He stated the claims in the application about a blood feud were incorrect.
·In December 1996 in Albania he borrowed [Amount 1] lek from the [Family 1] brothers to start [a specified] business. After three or four months he was able to pay in advance the first year’s interest. Then his truck and goods had been stolen by a rebel band on [a day in] March 1997. He informed the [Family 1] brothers of this in March 1997 after which they threatened to kill him.
·He moved to Korce in February 1998 as he believed he would not be able to pay the interest next due in December 1998. In December 1999 he then moved to Athens and worked illegally.
·The parents were threatened by the [Family 1] brothers until his father informed the brothers they had no funds. The father died in 2000 but he does not know the circumstances of the death as he was not in Albania at the time. He speculated the father might have been killed due to the applicant’s debt.
·He could not give specific dates or details about the 2013 assaults against his son and brother because he was only told by his brother in Australia at the end of 2013.
At my hearing on 2 August 2019 he claimed:
·In 1995 in Albania he borrowed [Amount 2] lek from two men, [Mr E] and that man’s cousin [Mr F] (he was not sure what surname [Mr F] had). There had been no contract- they just wrote something by hand and there was no formal record of the arrangement as there was no office or computer at the time. He was to pay 10%pa interest and the loan was over five years.
·In 1996 he paid the first year of interest that he said had been [Amount 3] lek.
·In 1997 when he was on the road outside [Town 1], rebels stole the truck, his goods and money. After this he did nothing other than try to find ways to pay the debt, and the cousins threatened him.
·He lived in [Village 2] continuously and had never lived elsewhere and when he departed Albania for Greece he departed from [Village 2].
·He was in Greece for 2-3 years and did any work available such as in transport.
·He left Greece as the police were looking out to deport Albanians, and once two men asked his friend (he and the friend were [working]) about the applicant and the friend warned him.
·He gave money to a Greek to get a Greek passport.
·8-10 years ago his son and brother had been assaulted and tortured and asked the applicant’s location. He had been in contact with the brother in Albania then but was not in contact now.
Evidence
The evidence before the Tribunal includes the following material (not all is listed):
·the applicant’s Protection visa application form lodged on 3 October 2013, which includes handwritten reasons for seeking protection in Australia
·Albanian passport page
·the Protection visa decision record (‘delegate’s decision’) dated 12 January 2015, which is the subject of this review
·the application for review
·the Department’s file [number] that concerns his first protection application as [Alias 1]
·the RRT decision on 1 July 2004 (the Tribunal file [number] has been destroyed)
·other information/material as referred to in this decision, including two articles about the applicant’s brother in [Newspaper 1] [in] 2013 (copies handed to the applicant at my hearing)
The applicant appeared before the Tribunal to give evidence and present arguments, on 2 August 2019. The hearing was conducted with the assistance of an accredited interpreter in the Albanian and English languages. The applicant stated he understood the interpreter, and during the hearing he did not tell me he had any difficulties with the interpretation.

At the start of the hearing I asked whether he was well and able to talk about his story, and he stated he was. [Ms A] sat in the hearing as a support person and at the end of the hearing indicated the applicant was an honest man who had memory issues. During the hearing the applicant a few times stated he could not remember details of a past occurrence or the date of a past event but at the end of the hearing stated he may have mental health concerns and sometimes his memory is not good. I indicated he would have time after the hearing to provide any information he wished about his mental health problems. Nonetheless, during the hearing he appeared to fully understand questions and he gave generally short answers and explanations, and if he did not remember something he said so. I assess that he was competent to give evidence and had a full opportunity to put forward his story and arguments. I have taken his claimed poor memory into account when assessing his evidence.
The Department attached two notifications under s.438(1) of the Act, and copies were handed to the applicant at hearing. The first certificate[3] stated that information on file [number] affects the personal privacy of another individual and/or information given by a third party whose identity cannot be disclosed, and that the Tribunal should not disclose it to relevant parties. The certificate referred to folios 5, 6, 15, 16 and 25 of the Department’s file. I advised the applicant of the existence of the certificate, and my satisfaction that the certificate was not validly issued. I advised him that: folios 5-6 and 25 merely mentioned officers’ names on official documents in correspondence with his former solicitors; folios 15-16 was information sent by his former solicitor to the Department to show a couple had been financially supporting him. I pointed out that none of the information was relevant to my consideration of his application.
[3] Placed on Tribunal file [number] at folio 138
The second certificate stated that information on file [number] at folios 45-47 is not relevant to the visa decision and should be removed, but if considered relevant, affects the personal privacy of another individual. I advised the applicant of the existence of the certificate, and my satisfaction that the certificate was validly issued as it concerned a Greek national and his personal details. However, I noted that it concerned the claimed theft of a Greek passport in Greece- a passport that the applicant travelled to Australia on, and I may give weight to this in assessing his credibility. The applicant responded that he had no comments as he had no proof. I handed him copies of both certificates and he did not comment on their validity.
As the foregoing discussion shows, after the hearing the Tribunal sent a letter pursuant to s.424A dated 28 August 2019. However, no response was received. Then on 23 September 2019 the applicant asked for additional time to respond. On 24 September 2019 the Tribunal granted the applicant an extension of time of 14 days to 8 October 2019 to provide comments or response. However, no response has been received by the Tribunal. After careful consideration the Tribunal has decided to proceed to decision without taking further steps to obtain the applicant’s comments or response.
Assessment of claims: credibility
His identity
The applicant claims to be [Applicant Name, which includes Surname 1], born [DOB 2], and a national of Albania. On 3 October 2013 he applied for a Protection visa, and he provided an Albanian passport issued [in] 2002 with this identity. However, he has used a number of aliases in Australia and the aliases known to the Department and Tribunal are:
·[Alias 2], born [DOB 3], Greece. [In] March 2003 he entered Australia by air as the holder of an ETA 976 visa on a Greek passport, which he says was a false passport.
·[Alias 1], born [DOB 1], [from Country 1]. He provided a [Country 1] driver licence in this name. On 14 May 2003 using this identity he applied for a Protection visa. He next had a review at the RRT and then a Federal Court of Australia application.
·[Alias 3], born [DOB 4]
·[Alias 4], born [DOB 1]
·[Applicant Name], born [DOB 1]. On 14 October 2013 he applied to the MRT for review of a delegate’s decision refusing him a Bridging E visa.[4]
[4] MRT file [number]
At hearing I discussed the range of known identities he has had in Australia, as well as the newspaper articles[5] about a brother (in [Newspaper 1] [in] 2013) that show the brother had appeared at [an Australian] Court and admitted a number of false identities, and the brother told the Court his birth name had been [Mr G, which includes a different surname, Surname 2] and that in Albania in December 2002 he had legally changed his name to [Mr C, which uses Surname 1].
[5] Provided by the Department to the MRT
The applicant stated his brother now named [Mr C] had been born [only with a different first name]. But as I pointed out, if the brother had told the truth to the Court in October 2013, then the brother’s surname was originally [Surname 2], and this would strongly suggest the applicant’s surname was also [Surname 2] or at least not [Surname 1]. He responded his name at birth was [Applicant Name, with Surname 1], his Albanian passport was genuine; his family’s surname had been [Surname 1] for generations and this was the truth.
The information above was again put to him in the Tribunal’s letter sent pursuant to s.424A dated 28 August 2019, however, no response has been received.
Having considered the material before the Tribunal including the applicant’s ostensibly easy use of many identities, his use of false and fraudulent documents (provided to the Department and Tribunal), his evidence at the hearing, his response to the Tribunal’s letter, and the newspaper reports concerning the brother’s claim to a Court that the brother’s surname was changed to [Surname 1], I am not satisfied the applicant has the identity he claims. As I discuss later in this decision, I do not find him to be a witness of truth, and I consider he has given and will give any information that will secure a favourable migration outcome. Based on all of the material before the Tribunal, I have considered but give no weight to the identity documents and Albanian passport page he has provided.
Nonetheless, all the available evidence, including the applicant’s oral evidence in the Albanian language and his familiarity with Albania, supports his claim to be an Albania national. Albania is therefore the receiving country when assessing his claims against the complementary protection grounds.
His health and mental health
In Australia the applicant has received treatment for [a medical condition] and he may have continuing health issues. He also claims mental health issues. But as discussed with him at hearing, country information[6] shows Albania has a universal health system albeit under-resourced, while private practice is limited to a small niche market sector. The Albanian law guarantees equal access to healthcare for all citizens. Public healthcare in Albania is the major provider of health services, health promotion, prevention, diagnosis and treatments for the population of Albania. Albania’s National Health Strategy 2016–2020 implemented to strengthen a person-centred health system. The Government of Albania plans to invest in patient health care to better address population health needs, including needs related to noncommunicable diseases.
[6] Pacific Prime Insurance website 2019, [ WHO European report, Primary health care in Albania: rapid assessment, 2018, [>
In light of country information I find the applicant will be able to seek and get public medical services in Albania for his health and mental health conditions. I do not accept that his medical conditions will lead him to face a real risk of significant harm in Albania on return.
His narrative and credibility as a witness
As discussed with him at hearing, and in the Tribunal’s letter sent pursuant to s.424A dated 28 August 2019, the applicant’s narrative has changed significantly over time. In his application of 14 May 2003 the applicant, using a false identity, claimed that he came from a gypsy family in [Country 1] and he was an only child; his father died in 1994 and his mother died in 1982. The first Tribunal’s decision shows that at the Tribunal hearing on 28 June 2004 he gave detailed evidence about his identity and narrative and his representative made detailed submissions, and after the Tribunal affirmed the delegate’s decision he then sought the Federal Court of Australia’s review. At my hearing he stated all of those claims had been false. In sum, the applicant’s past use of a false identity and his past false claims and evidence raise strong concerns with his evidence and his credibility as a witness.
In the application received on 3 October 2013 he claimed to fear harm in Albania because of a blood feud (the Code of Kanun[7]) against his family. He stated his father had been murdered, and he had then been beaten by the father’s assassins. However, at the delegate’s interview on 9 July 2014 (and at my hearing) he stated the claims in the application about a blood feud were incorrect. At the delegate’s interview he next centred his claims on a private debt he owes to two brothers in Albania. He stated he did not know the circumstances of the father’s death as he was not in Albania at the time although he speculated the father might have been killed due to the applicant’s debt. The information above was again put to him in the Tribunal’s letter sent pursuant to s.424A dated 28 August 2019. In sum, the applicant’s changeable narrative and claims, including in the application of 3 October 2013, raise strong credibility concerns with his narrative and evidence and his credibility as a witness.
[7] Widely available country information shows the Kanun is a set of traditional Albanian laws, primarily oral and only in the 20th century published in writing. Some of the most controversial rules of the Kanun (in particular book 10 section 3) specify how murder is supposed to be handled, which often in the past and sometimes still now led to blood feuds that last until all the men of the two involved families are killed.
As discussed at hearing, his changeable past evidence about his relationships and living circumstances in Australia add to my concerns that he is not a credible witness. At various times: he indicated no other relationships and said he had no stable address and was unable to provide previous addresses (Department’s compliance/detention interview[8] on 12 September 2013); his community support if released would be his brother or sister and a male friend interstate, and he indicated no other relationships (Department’s compliance interview[9] on 13 September 2013); he has a girlfriend named [Ms H] and they had lived together for a year (MRT decision[10] on 22 October 2013); [Ms H] is his partner and they were in a ‘partner relation’ (the applicant’s response to a hearing invitation[11] on 2 June 2015); [Ms H] is his partner and they had lived together from December 2012 to when he was detained in March 2013, ie at most four months (AAT Bridging visa decision[12] on 30 November 2016). The information above was again put to him in the Tribunal’s letter sent pursuant to s.424A dated 28 August 2019. In sum, when first detained and interviewed by the Department in September 2013 he made no mention at all of cohabiting in a partner relationship, but he made this claim when he applied to the Tribunal to be released from detention on a Bridging E visa. His changeable claims and evidence concerning whether he had a partner with whom he lived, leads me to find he will provide any information that he considers will assist him to gain a favourable migration outcome. His past changeable evidence about his relationships and living circumstances in Australia, raise strong concerns with his evidence and his credibility as a witness.
His debt in Albania
[8] Contained in AAT file [number]
[9] Contained in AAT file [number]
[10] MRT file [number]
[11] Contained on AAT file [number]
[12] AAT file [number]
In the applicant’s statement of 4 July 2014 - and he gave further details at the delegate’s interview on 9 July 2014 - his narrative centred on a private debt he owes in Albania. However, elements of his narrative changed at hearing on 2 August 2019. He claimed to the delegate that in December 1996 he borrowed [Amount 1] lek from the [Family 1] brothers. But at hearing he stated: he borrowed the money in 1995; he borrowed [a larger amount, Amount 2] lek; and the moneylenders had been cousins named [Mr E] and [Mr F] (he was not sure what surname [Mr F] had). At hearing I confirmed with him his evidence about the amount borrowed and the names of the moneylenders, and when I discussed his changeable evidence he responded that we call them brothers but when he borrowed the money they said they were cousins. This information was discussed at hearing and again put to him in the Tribunal’s letter sent pursuant to s.424A dated 28 August 2019.
In sum, the applicant claims to have memory problems and I acknowledge that a person’s account of past events and dates can change in some details when recounted over time. Nonetheless, at hearing the applicant ostensibly confidently stated and then confirmed the details of the claimed money borrowing. In particular, the amount of money borrowed is an important element in his story and the difference between borrowing [Amount 1] or [Amount 2] lek is a significant change in detail. As well, the identity of the moneylenders would ostensibly have been particularly memorable, and the change from them being the [Family 1] brothers to the cousins [Mr E] and [Mr F] is also a significant change in detail, and his explanation that they told him they were in fact cousins does not explain why he did not refer to them as cousins in his statement and at the delegate’s interview. His changeable evidence about this central element of his narrative raises credibility concerns with his narrative and evidence.
In addition, he claimed to the delegate at interview that he fled from the moneylenders to Korce in February 1998 as he believed he would not be able to pay the interest next due in December 1998, and his daughter was born there, and in December 1999 he then moved to Athens. But at hearing he stated that he lived in the village [Village 2] continuously and had never lived elsewhere and when he departed Albania for Greece he departed from [Village 2]. This information was discussed at hearing and again put to him in the Tribunal’s letter sent pursuant to s.424A dated 28 August 2019. Similarly, I acknowledge the applicant’s claimed memory problems, but nonetheless consider that whether he left his village to hide within Albania, and where his daughter had been born, and where he departed Albania from when he fled would have been particularly memorable. His changeable narrative about his last year of residence in Albania is significant and raises credibility concerns with his narrative and evidence.
Additionally, I have credibility concerns with other elements of his claim. As discussed at hearing, it is improbable that the applicant was offered [Amount 1] or [Amount 2] lek as a loan in Albania in December 1996 for the following reasons:
·It would have been an enormous amount for any Albanian to borrow in 1996. Country information[13] shows that in December 1996 the exchange rate averaged 102 lek = $US1. A loan of [Amount 1] lek would have amounted to about $US[amount]. A loan of [Amount 2] lek would have amounted to about $US[amount]. But in 1996 the Albanian gross average annual wage had been low ($US992 at current exchange rate of 108.6 lek = $US1).[14] The debt without security would have been many times the Albanian gross average annual wage.
·On top of the large sum borrowed, the 10% interest accruing each year would have added $US[amount] ([Amount 1] lek) or $US[amount] ([Amount 2] lek). This annual interest debt would have been many times the Albanian gross average annual wage.
·In the application the applicant stated his occupation before he came to Australia had been “[Occupation 1]”. At the delegate’s interview[15] he described being employed in various short term positions while living in Albania before his [business]. At hearing he described living in the village until he departed Albania. In sum, his claimed employment history in the village up to 1996 when he was age [age] does not support his claim to have attracted a spectacularly large loan for a speculative business.
·In his claims he stated he offered no security for the loan, and there had been no formal documentation.
[13] Historical exchange rate, Bank of Albania, Exchange rate 1996, [ UNECE statistical database, Gross Average Monthly Wages by Country and Year, Albania 1996, $US82.7 (at current exchange rates) per month, [ ; Exchange rate in Albania in August 2019, [ This information was discussed at hearing and again put to him in the Tribunal’s letter sent pursuant to s.424A dated 28 August 2019
In sum, in light of the applicant’s claimed personal and poor employment profile in 1996 in a village in Albania, together with the claimed lack of legal formality or evidence of the loan and interest payments, his claim that he was given an undocumented loan that would have been enormous for an average worker in Albania at the time and for a speculative business, is not convincing. As well, as discussed at hearing, at the time there had been significant unrest in Albania with the economy severely deteriorating. Country information[16] shows that there had been mass protests following the collapse of criminally linked high-risk investment schemes in November and December 1996, in which large sections of the population lost their life savings. It is difficult to accept such an enormous sum with onerous interest repayments would have been offered to the applicant given the unstable security and economic conditions by the end of 1996 throughout the country.
[16] Human Rights Watch, Human Rights Watch World Report 1998 - Albania, 1 January 1998, [
Other elements of his narrative and evidence raise credibility concerns. At the delegate’s interview[17] on 9 July 2014 he stated the father died in 2000 but he did not know the circumstances of the death as he was not in Albania at the time, and he speculated the father might have been killed due to the applicant’s debt. At hearing he stated that even now he does not know what happened to the father. But when I examined his evidence he stated the father had died in hospital and his family told him the father died of natural causes. When I queried why he doubted what his family had told him he merely explained he questioned this as the moneylenders had asked the father to pay the debt. However, his explanation does not explain why the family would not have told him the father had been murdered if in fact that had been the cause of the father’s death. I find unconvincing the applicant’s speculation that the father’s death is linked to the applicant’s debt.
[17] This information was discussed at hearing and again put to him in the Tribunal’s letter sent pursuant to s.424A dated 28 August 2019

As well, the applicant’s claims about the assaults against his brother and son in Albania are unconvincing. At the delegate’s interview[18] on 9 July 2014 he said the assaults had occurred the year before but he was only told by his brother in Australia at the end of 2013. At hearing he stated the assaults occurred about eight to ten years ago and he was told by his brother with whom he was in touch then but is not now. However, in his narrative he fled Albania in 1999 in fear of the moneylenders, and they approached the father for money before the father’s death in 2000. The applicant’s claim that about 13 years later- that happened to be around the time he was detained by the Department in 2013- his brother and son had been approached and assaulted by the moneylenders who were searching for the applicant, is beyond coincidence. When I queried why the moneylenders had waited so long to approach the brother and son, the applicant’s response that that is how the system works in Albania, is unconvincing.
[18] This information was discussed at hearing and again put to him in the Tribunal’s letter sent pursuant to s.424A dated 28 August 2019
Conclusion
Having considered the claims and evidence I find that the applicant is an Albania national. He is a mature man [age] years old. He does not have a current Albanian passport, but as discussed at hearing, as an Albanian national he would be able to get a travel document to travel to Albania. He would not have any difficulties returning and entering Albania, and then in travelling to his village, and he has family in Albania albeit he says he is estranged from them. As discussed at hearing, as shown by country information about Albania, I find he would return to a democratic country with the rule of law.[19]
[19] UK Home Office Country Policy and Information Note Albania, July 2017
In sum, taking all of my foregoing concerns together, I find unconvincing and do not accept his claim that in Albania he entered into a loan with loan sharks/moneylenders for a very large sum. I do not accept any part of his narrative that flows from that claim: that he was unable to pay the debt; he fled Albania in fear of the moneylenders; the moneylenders approached or threatened the father and other family; the moneylenders or their agents searched for the applicant in Greece; the moneylenders searched for the applicant and in 2013 assaulted the brother and son.
I do not accept the claims he has disavowed/abandoned: He did not wish to return to Albania ‘Because I was in fear of my life after my father was shot to death’; ‘I was beaten my father’s assassins.’; ‘The code of Kunan means I will be killed.’; ‘The family that murder my father have a blood feud against me.’
I do not accept either that the applicant departed Albania so as to escape feared harm (such as threats, intimidation, physical or other harm) from moneylenders there or any other agents, or that he now fears to return to Albania for the reasons he has given. I find the applicant is not a credible witness and that he has concocted his claims for the purposes of seeking Australia’s protection. I do not accept there is a real risk he will face significant harm in Albania.
As well, as I stated in my foregoing discussion, in light of country information I find the applicant will be able to seek and get public medical services in Albania for his health and mental health conditions. I do not accept that his medical conditions will lead him to face a real risk of significant harm in Albania on return. He has a girlfriend in Australia but I do not accept a separation from her would amount to significant harm as defined in s.36(2A). I do not accept there is a real risk he will face significant harm in Albania for the reasons he has claimed, or for any reasons.
Complementary protection
I considered whether on the evidence before me, there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Albania, there is a real risk that he will suffer significant harm. For the reasons set out above, I have not accepted there to be a real risk that the applicant will suffer significant harm if he returns to Albania. I do not accept there to be a real risk that the applicant will suffer significant harm from anyone as a necessary and foreseeable consequence of the applicant being removed from Australia to Albania.
Overall Conclusion
Having concluded that the Tribunal has no power to consider the applicant’s claims against the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal sets aside the decision under review and substitutes a decision to refuse to grant the applicant a Temporary Protection (Class XD) visa.

C. Packer
Member

ATTACHMENT A – RELEVANT LAW

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.

Complementary protection

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’).

‘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.

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

In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken 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 relevant 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.

[2019] AATA 6817

9 October 2019

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction