1721917 (Refugee)

1721917 (Refugee) [2021] AATA 5224 (22 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1721917
COUNTRY OF REFERENCE:                   Albania
MEMBER:Paul Windsor
DATE:22 October 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 October 2021 at 4:00 pm
CATCHWORDS
REFUGEE – protection visa – Albania – interfaith relationship – harm from the father or family members of a former girlfriend – abduction by government security intelligence officers – credibility concerns – inconsistent evidence – complementary protection – organised crime in Albania – risk of being killed in crossfire – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 28 August 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Albania, applied for the visa on 31 December 2014.
In his Protection visa application the applicant indicated he was born on [date] in [Town 1], Fier county Albania, is ethnic Albanian, a Muslim and has never married. He indicated he departed Albania legally [in] October 2014 and arrived in Australia [in] November 2014, entering on a sponsored family visitor visa.[1]
[1] See the Departmental file.
In his application, the applicant claimed he came to Australia because, after being threatened by the father of his girlfriend who did not approve of their relationship because he is a Muslim and she is an Orthodox Christian, he was abducted and almost beaten to death by security intelligence officers at the behest of his girlfriend’s father.[2]
[2] See the Departmental file.
The delegate refused to grant the visa, finding that she was not persuaded that the applicant had provided a truthful account of his claimed relationship and the reasons for that relationship ending, and finding that the applicant was not abducted in the circumstances claimed or for the reasons claimed.
The applicant applied to the Tribunal for review of this decision on 15 September 2017. He provided the Tribunal with a copy of the delegate’s decision record.[3]
[3] See the Tribunal file.
The applicant appeared before the Tribunal by video-link on 14 October 2021. [Mr A], a friend of the applicant, appeared as a witness. The hearing was conducted with the assistance of an interpreter in the Albanian and English languages. The applicant was represented by his Registered Migration Agent.
CRITERIA FOR A PROTECTION VISA
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, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s claims for protection, as set out in a statement dated 22 December 2014 included with his protection visa application, are summarised as follows:[4]
[4] See the Departmental file.
·He is a Muslim. He fell in love with an Orthodox girl named [Ms B]. When her family came to know about the relationship her father threatened the applicant to leave [Ms B] because they came from different religious backgrounds.
·[Ms B]’s father is a businessman and influential member of the political party that is currently in power.
·Just before the applicant came to Australia [Ms B]’s father used Security Intelligence Officers to kidnap him. He was held for a few hours in a warehouse and beaten almost to death.
·He was so scared after this incident that he decided he needed to leave Albania and seek protection in Australia.
·While he was in Australia a friend rang and told him that the friend’s car had been burned by one of [Ms B]’s relatives. The applicant decided not to return as this is a sign that if he goes back he will be killed or burned.
·If he returns to Albania the applicant faces persecution and torture by people who are connected to and work for the government of the day. [Ms B]’s father can pay someone to kill him. He was beaten once and is afraid that the next time he might be killed as the agents who beat him were ruthless and protected by the government.
·These events happened because of religion and political influence. [Ms B]’s father did not want them to marry because of their different religious backgrounds.
·It is difficult to move and hide in Albania because it’s a small country and the government has control of everything.
·Europe is dangerous because Albanians move freely without visas and he could be easily found and killed.
The applicant attended an interview with the delegate on 24 July 2017. The delegate indicated in her decision record that the applicant made the following claims/clarifications at the interview with her:
·In Albania he was last living with his parents in [Town 2], Fier. From about 2007/2008 he alternated between living for about 6 months in the capital and 6 months with his parents.
·The name of the girl he was in a relationship with is [Ms B] born on [date]. He met [Ms B] through friends at a coffee shop. They were going out together for about one and a half to two years from 2011. She had her own place in the capital and sometimes they stayed there. They usually saw each other once or twice a week, mostly on the weekends.
·He is still in love with [Ms B] but has not kept in touch with her. She is still single.
·He told his family about his relationship with [Ms B]. His parents met [Ms B] and were happy for him.
·He does not know how [Ms B]’s father found out about their relationship. Her father put pressure on him to leave [Ms B] alone because he did not want [Ms B] to marry a Muslim.
·He does not know whether [Ms B] attended church or what church she attended.
·He was abducted and bashed 2-3, or 4 months before coming to Australia. This was the only time he was ever harmed in Albania.
·Within the first month of his arrival in Australia the applicant’s friend rang him and told the applicant that the applicant’s car had been burnt.
On 27 July 2017 the representative submitted copies of four photographs of the applicant with a women, following a query at the interview if he had any photographs of himself with [Ms B].[5]
[5] See the Departmental file.
The representative made a pre-hearing submission on 9 August 2021. This included a character reference from [Mr A] and various articles regarding Albania.[6]
[6] See the Tribunal file.
Findings and reasons
Identity
On the basis of the copy of his passport submitted to the Department,[7] the Tribunal accepts that the applicant is a citizen of Albania and that his identity is as claimed. The Tribunal accepts that Albania is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[7] See the Departmental file.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Albania, there is a real risk he will suffer significant harm.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
For the reasons set out below the Tribunal found the applicant was not a credible witness and does not accept that he was threatened by the father of a girlfriend or that he was abducted, beaten and threatened by security intelligence officers at the behest of a girlfriend’s father.
Assessment of claims
Evidence from the hearing
At the hearing the applicant indicated that he grew up in [Town 2] in Fier county, Albania. He indicated that his parents still live there. He indicated that he has [number of] brothers, living in Australia, [Country 1] and [Country 2], and [number of] sisters who are married and live independently in Albania. He indicated that when he was in Albania he lived with his parents in [Town 2], which he said is around [number] km and [number] hours’ drive from the Albanian capital, Tirana.
The applicant said he had done a lot of different work in Albania before he came to Australia but indicated that immediately before he came he had his own business (which he described as [specified]) in Tirana. When asked if he was living in Tirana, the applicant said he was living between [Town 2] and Tirana. He indicated he would go to see his parents on weekends but had an apartment in [a] suburb of Tirana, about [number] minutes’ drive from the city centre. When asked, he said he started the business around 6 months before he came to Australia (he departed for Australia [in] October 2014).
The applicant confirmed that his girlfriend’s name was [Ms B]. He said she was around [age] or [age] years old when they met and commented that she was born on [date]. He said they met in 2011. He indicated he thought it was around August because it was summer in Albania at the time. He said they met through common friends when having coffee. He indicated that they liked each other and he got her number from a friend and asked her out on a date. He said it was love at first sight for both of them.
The Tribunal asked the applicant when he last had any contact with [Ms B]. He said it was a couple of years ago. When asked how many years ago, he said more than 4 to 5 years. When asked what they discussed, the applicant said they talked about what they do and how they could meet each other again. He said she asked him when he was coming back to Albania and told him her parents did not want them to be together. When asked what she is doing now, the applicant said she is still living in Tirana where they lived together and is still [working]. He added that when they met she had her own small [business].
The Tribunal asked the applicant how his relationship with [Ms B] developed. He said they started going out often, for coffee or dinner, to the beach or to a club, and enjoyed their time together. He commented that he lived with her some of the time and she lived for 6 months at his place. When queried about this, the applicant confirmed that he was saying they lived with his family in [Town 2] for 6 months and for 6 months at her place in Tirana. He said this was in the first half of 2012. When queried that what he was saying is different to what the delegate had indicated in her decision record he told her at interview, the applicant commented that he was not able to explain properly at the interview because his English was not good. When queried that there was an Albanian interpreter at the interview, he said he preferred to speak English and to only use the interpreter when he had to. He said the interpreter spoke a different dialect because he was from the north or Albania while the applicant is from the south.
The Tribunal asked when they first started living together. The applicant said he can’t remember the date. When asked for an approximate timeframe, he indicated it was about a month after they met. When queried if they lived together from that time onwards, the applicant indicated he was not sure of the times the Tribunal was seeking. He indicated there were times they lived together with his family in [Town 2], times when they lived together in Tirana, and times when he was moving backwards and forwards and they only saw each other occasionally. The Tribunal sought to clarify that he was saying that it was early 2012 when [Ms B] came to live with his family in [Town 2] for approximately six months. He indicated that was correct but he could not say exactly for how long it was. The Tribunal indicated it was just seeking an approximate timeframe. The applicant indicated that after that they lived together in Tirana for around 6 months while he was looking for work. He said when he found work he moved from [Ms B]’s place to live with one of his friends and then saw her once or twice a week.
The Tribunal asked why he didn’t continue living with [Ms B]. The applicant indicated he wanted to leave her more space, and to live in different ways so he could know her more, because they had done too many things so quickly. The Tribunal commented that it seems a bit strange that after living with her for 12 months he then decided they needed more space. The applicant replied that every relationship has its ups and downs and they had been caught up in the moment and extended the relationship quickly but over time you open your eyes more, so he wanted to see where the relationship was after this time and how they would be if they were not together.
When asked, the applicant indicated he is not a practising Muslim and not ‘really religious’, commenting that for him ‘God is one’. He added that he does not have problems with other religions. When asked if [Ms B] was a regular church goer, he said he didn’t see her going much. When asked if he was ever aware of her attending church, he indicated he had not, but said her family do. He added that for her the difference in their religions was not a problem. When asked how his family felt about [Ms B], the applicant said they ‘liked her, loved her’. He indicated that his family do not have problems with interfaith relationships, indicating that some of his siblings are in interfaith relationships and they celebrate Easter and Bairam together.
The applicant indicated that he never met any members of [Ms B]’s family. When asked why that was the case, he indicated he never got the chance. When queried that she did not want him to meet her parents and siblings before they moved in together, he replied, ‘no’. When asked, the applicant indicated that her parents and [number of] sisters live in the village of [Village 1] in [Town 3], which he said is about [number] km from Tirana.

The Tribunal asked the applicant when he first had any communication with [Ms B]’s father. He indicated it was a threat received by phone one year later when he was living in Tirana. Observing that he had indicated the relationship started in around August 2011, the Tribunal asked if it was in August 2012. He indicated it was something like that, a year to a year and a half after they met. When asked how often he received threats the applicant said he couldn’t tell, but added it was often. He indicated that he received threats for 6 months to a year. He confirmed that he never met [Ms B]’s father in person.
The Tribunal asked the applicant what [Ms B]’s father said to him. The applicant indicated he just said to leave [Ms B] alone, commenting that her father did not accept the different religion. The Tribunal asked if the threats escalated when he did not do as her father said. The applicant said they did. When asked how, he said they just became worse. When asked if he was ever threatened that he would be beaten, the applicant said he was, many times, adding that her father told him if he did not leave her, it will be worse.
The Tribunal queried the applicant why [Ms B] was living alone in Tirana. He said he did not know. He commented that she had her own business there. When asked, the applicant indicated her father didn’t know he was living at [Ms B]’s place for six months. He said her father had been there a few times but he was not there when her father came.
The Tribunal asked the applicant what [Ms B]’s reaction was to the threats from her father. He commented that when it started it, because they loved it other, it made them love each other even more. He added that they were threats on the phone and he never realised it would get to ‘such a bad place’. The Tribunal asked if [Ms B] ever spoke to her father to try to get him to accept the relationship. The applicant commented that her father would never change because he did not want to accept the relationship. When asked, the applicant indicated [Ms B] had been in a relationship previously but said he did not know if her father accepted that relationship because he did not ask her about her ex-boyfriend.
The Tribunal asked the applicant what [Ms B]’s father did. The applicant said he was a businessman, adding that he has secret ties to the government and worked together with the government at the same time. When asked, he said he doesn’t remember what her father’s business was. He said [Ms B] told him her father has ties with the government. He said she told him to always be careful because her father is a very powerful person and can use other people to do damage to him. When asked, he said he did not ask her who these people were because he wasn’t scared and he loved her. When asked, the applicant said her father had ties with the Socialist Party, adding that they are still in government and have been for 12 years now. The Tribunal observed that the Socialist Party came to power on 23 June 2013 and before that the Democratic Party had been in power.[8] The applicant said he is not sure when they came to office as he is not really tied in with political parties. The Tribunal commented that for a lot of the time he was in a relationship with [Ms B], the Democratic Party was in power. He commented that when he was beaten it was 2014, not 2012. He said he started getting the phone threats from 2012 onwards.
[8] ‘Nations in Transit 2014, Albania’, Freedom House, 2014, >
The Tribunal asked the applicant when was he was kidnapped in 2014. He said he doesn’t exactly remember but it was about 3-4 months before he came to Australia. Observing that he departed Albania [in] October 2014 the Tribunal commented that would be June or July. The Tribunal added that this would have been a significant and traumatic event but he seems pretty vague about when it occurred, observing that the delegate indicated he told her it was between 2 and 4 months before he came to Australia. He replied that when you have been beaten you can’t remember dates or time exactly. Observing that the delegate’s decision record indicates his sponsored family visitor visa application was made on 23 June 2014, the Tribunal asked if this incident occurred before or after that. He indicated he could not recall.
The Tribunal asked the applicant to tell it about the abduction. He said it was night-time and he was at the coffee shop with friends. He said someone called him outside and he was outside having a smoke and when he woke up he saw he was in a warehouse, tied up on a chair with people around him. He said the warehouse was far away from the city but he doesn’t remember how he got there he just remembers being outside the bar. He said when he woke up he saw a few big blokes threatening him. He said they questioned and tortured him to make him stay away from [Ms B]. He said he was threatened that if he didn’t stay away from her the next time they questioned him it would be even worse or fatal. The Tribunal asked how they tortured him. He said he was hit anyway a person can be hit. When asked what they said to him, the applicant indicated they told him to leave [Ms B] alone and go way from her. He added that they said her father sent them and told him that if he reported them it will be worse. He indicated he was held for a couple of hours and was then dropped somewhere and went home. He said he did not go to hospital because he was scared that, due to his condition, emergency would call the police and he would have to answer their questions. He added that ‘they’ are all tied in with the state. When asked how he knew that, he said they told him. He said they told him to leave her alone; that her father sent them; and not to make a police report. He commented that they were undercover officers. When asked what of, the applicant said he didn’t have a chance to ask them what organisation they were from. He added they were part of the secret services of the state. When asked how he knew that, the applicant replied that is what he thought. When asked how many of them there were, he said he was not exactly sure, there might have been 2, 3 or 4. He added he is trying to forget as it brings back such bad memories.
The Tribunal put to the applicant for comment or response, in accordance with the requirements of s.424AA of the Act, that it had listened to the interview with the delegate, held on 24 July 2017, and there seemed to be some inconsistencies between what he told the delegate about the abduction and what he has told the Tribunal. The Tribunal indicated that, depending on his response or comments, this would be the reason, or part of the reason for the Tribunal affirming the decision under review. The Tribunal explained that the inconsistencies are that, contrary to what he stated at the hearing, he told the delegate a person came to talk to him while he was outside the bar having a cigarette, that this person spoke to him nicely for some time and then he was zapped with an electric zapper and put in the boot of a car. He said he thought there were three people, it was dark and they put him in the car so no-one would see it and took him to a place where he was held for a few hours. When asked how he knew these people were from the government he said they showed him their ID which said they were from SHIK, a government security agency. The Tribunal commented that this information is relevant to the review because, depending on his comments, it may cause the Tribunal to conclude that he was not abducted, and would be the reason or part of the reason for affirming the decision under review. The applicant indicated that he understood why the information was relevant to the review. He indicated he wished to comment immediately and did not need additional time to consider his response. The applicant indicated a lot of time has passed since the incident and he does not remember the details exactly. He said it was fresher four years ago and he gave more details at the interview with the delegate. He added that now he is trying to get on with his life and not think about what happened.
The Tribunal asked the applicant what he did after the incident. He said he walked home. The Tribunal queried what injuries he had. He said there was a lot of bleeding, indicating he still has a scar on his head. He added that he had bruises on his face and body.
The Tribunal asked the applicant what he did until he came to Australia. He said he tried hard not to go out much so as not to expose himself. The Tribunal asked if he stayed in Tirana, He replied that he did not stay much. When asked what he meant, he said he went back to his parents’ home in [Town 2].
Noting the delegate’s comment that he had indicated in his written statement that a friend’s car had been burnt after he came to Australia, but had told her at interview that it was his car that was burnt, the Tribunal asked the applicant whose car it was that was burnt. He said it was a friend’s car that he sometimes used. He said it occurred in the month after he arrived in Australia and his friend rang him and told him what happened. He said it made him really scared and more panicked because it was a sign they still wanted to hurt him more. The Tribunal asked if the car was in Tirana or [Town 2]. He said he did not remember. The Tribunal asked the applicant who his friend said was responsible. He indicated his friend said [Ms B]’s relatives were responsible. When asked how his friend knew that, the applicant said his friend is in Albania so can find out things from talking to people.
The Tribunal asked the applicant what he fears would happen to him if he returned to Albania now, given the passage of time. He replied that maybe the same thing would happen, like the car, or he could be killed in a restaurant. He said it makes him feel unsafe and scared. He added that the same people are still in government, so nothing has changed.
When asked if there was anything else he wished to mention, the applicant said he has a lot of reasons to return to Albania because his parents are still there by themselves. He added that his brothers are scared to live with his parents. He said he has not returned in seven years because of his concerns for his safety, but that is a long time to be away from his family. He commented that lately, in the last few years, strange cars with no number plates had been seen driving around his parents’ house so he is trying to move them to a new location. The applicant also commented that his mother had to have surgery to remove a tumour a few years ago and he was afraid they might do something to the family so he sent her to [Country 1] for the surgery. He indicated he did not think he or his family are safe and because they could see the surname they might do something to his mother.
[Mr A] indicated he has come to know the applicant and his brother over the last seven years and considers the applicant is very family oriented. He said the applicant would return to Albania if he could but has had to choose his safety over his elderly parents. He indicated the applicant is very conscious of his family’s safety, especially if he was to return to Albania. He also indicated that the applicant has made a life for himself in Australia but his unresolved immigration status makes things difficult for him.
In an oral submission at the hearing, the representative commented that while a few things look odd from an Australian perspective the applicant’s circumstances must be considered against the history of Albanian society where the mentality has not changed following the end of 45 years of communist rule 30 years ago. He commented that governments are corrupt and have links with organised crime and noted that more than half a million people had left the country in the last 30 years. He commented that it is a patriarchal society where people are judged by dress, accent and who they associated with, and there is a strong culture of not ‘losing face’. He commented that the long processing time for this matter has resulted in the applicant losing track of details, as well as the applicant trying to forget about his past. The representative asserted that things do happen in Albania as stated in this case even though it may seem odd.
The representative commented that the applicant had mentioned during the hearing that the girl’s father worked for SHIK but that was not translated, the interpreter just referring to a government agency.
The represented also commented that, in relation to the complementary protection criterion, there are a lot of killings by organised crime in Albania and people can be killed in crossfire as well as vendettas. He said people do not forget a grudge even after 20 years and are untouchable if they have connections with the governing power.
Assessment
Noting the four photographs of the applicant with a woman provided to the Department in July 2017, the Tribunal accepts that the applicant had a girlfriend at some time while he was living in Albania. The Tribunal notes that the photographs are not timestamped and there is nothing else that has been provided which provides any context to the photographs, such as a description of where and when they were taken.
The Tribunal does not accept, however, that the father of this women threatened the applicant because it was an interfaith relationship (because he is Muslim and she is an Orthodox Christian), or for any other reason. The Tribunal does not accept that the father of this women arranged for Albanian government security intelligence officers to abduct, beat and threaten the applicant to stay away from this woman. The Tribunal does not accept that after the applicant arrived in Australia, a car he used was burnt by family members or people acting at the behest of this family. The Tribunal also does not accept that strange cars with no number plates have been seen driving around his parents’ house cars in recent years. The Tribunal has reached these conclusions for the following reasons, considered cumulatively.
Firstly, the Tribunal found the applicant’s evidence generally to be vague and uncertain. He often spoke in generalities and in broad time frames. While the Tribunal accepts that the claimed incidents occurred over seven years ago now, the Tribunal expects that the applicant would have a clearer recollection of some of the key details than he showed both at the hearing and at the interview with the delegate. For example, at the interview with the delegate he could not be any more precise regarding when he was abducted by state security agents, badly beaten, and threatened that he would suffer worse if he did not stay away from his claimed girlfriend, than 2-3 or 4 months before he came to Australia. At the hearing he indicated he could not remember when it occurred in 2014, but said it was 3-4 months before he came to Australia. He could not say when it occurred in relation to when his visitor visa application was made (on 23 June 2014). Given this would have been a significant, traumatic and life changing event (if it was the catalyst for him leaving [Ms B] and returning to live with his parents in [Town 2] as claimed, and then seeking protection in Australia), the Tribunal considers he would have had a clearer sense of when it happened (and would likely have noted or be able to recall/reconstruct the exact date).
The applicant also was vague about when and where he lived with [Ms B], and why he decided to live separately after living together for 12 months if the threats had been making their love stronger; when he started receiving phone threats, for how long these continued and what [Ms B]’s father said to him as the threats escalated (he simply said they became worse); how many people were involved in abducting him; and who owned the car that he claims was burnt after he came to Australia and where the car was located when it was burnt (Tirana or [Town 2]).
Second, The applicant’s evidence regarding when he last had contact with [Ms B] was vague, inconsistent and unconvincing. At the hearing, he initially said it was a couple of years ago. When asked how many years ago, he then said more than 4-5 years. At the interview with the delegate held on 24 July 2017, however, he indicated that he had not kept in touch with [Ms B].
Third, apart from the four photographs provided to the delegate, discussed above, the applicant provided no supporting statements or evidence from people who might have had first-hand knowledge of his circumstances, in support of his claims. In the claimed circumstances he might have provided some or all of the following: a statement from [Ms B]; a statement from his parents; a statement from the friend who claims his car was burnt; a statement from a family member or friend who observed his injuries after the claimed abduction and beating; a photograph of the burnt car, a photograph of his injuries.
Fourth, the applicant provided inconsistent evidence regarding his living arrangements. It is clear from the delegate’s decision record that he never indicated to the delegate that he lived with [Ms B] at his parent’s home in [Town 2] (for approximately 6 months), or that he lived with her full time at her residence in Tirana for approximately six months (as claimed at the hearing). At the interview he indicated that [Ms B] had her own place in Tirana and he sometimes stayed there, usually once or twice a week, mostly on the weekends. The Tribunal finds these are significant and material differences, not matters of details or issues that can be put down to interpreting. In relation to interpreting, the Tribunal notes that at both the interview with the delegate and at the hearing, the applicant generally sought to give evidence in English, using the interpreter on occasions, as needed. He did not express concerns regarding the quality of the interpreting.
Fifth, the applicant provided inconsistent evidence regarding the claimed abduction. At the hearing he made no mention of a man having come up to him when he was outside the café smoking, having talked to him nicely and then having been zapped with an electric zapper and put in the boot of a car to be taken to a warehouse. He also made no mention of the claimed abductors showing him their identity cards which indicated they were from SHIK, as he had claimed at the interview with the delegate. Again, the Tribunal finds these are significant and material differences, not matters of details or issues that can be put down to interpreting issues or the passage of time. Having reviewed the record of the hearing, the tribunal does not accept the representative’s comment that the applicant did mention SHIK at the hearing but it was not translated. When questioned about this issue at the hearing, he stated that he didn’t have a chance to ask them where they were from. While he commented that they were part of the secret services of the state, when the Tribunal asked him how he knew that, rather than state they showed him ID which indicated they were from SHIK, he replied that that is what he thought.
Sixth, it seems implausible that [Ms B]’s father/family would suddenly have commenced monitoring the applicant’s parents’ home in [Town 2] in recent years and would present a risk of harm to his sick mother or any other family members, given the passage of time since the applicant departed Albania in October 2014.
Seventh, the applicant’s evidence regarding [Ms B]’s father was unconvincing, revealing a remarkable lack of curiosity regarding what her father did for a living and how he was connected to the Government, and an unwillingness to try to meet with her father/family either at the start of the claimed relationship, to seek his approval, or at any stage when the applicant claimed her father had begun to threaten the applicant, to try to persuade him to accept the relationship. The suggestion that he did not take the phone threats very seriously was also unconvincing in light of the applicant’s comments that [Ms B] warned him that her father is a very powerful person and can use other people to do damage to him. It also seems implausible that her father would not have found out about the applicant earlier if he and [Ms B] were living together for 6 months at his parents’ home in [Town 2] and then for a further six months at [Ms B]’s residence in Tirana.

In reaching these conclusions, the Tribunal accepts that the applicant may have a scar on his head. The Tribunal considers this could be due to any number of causes, including a work accident, and does not accept it is evidence that he was assaulted as claimed.
The Tribunal also accepts that the applicant’s mother may have travelled to [Country 1] a few years ago for surgery to remove a tumour, but does not accept that this was because of concern that she could suffer harm if she was hospitalised in Albania, because [Ms B]’s father or his agents might be able to access her records and, seeing the surname, harm her or family members.
The Tribunal has also considered the written and oral evidence by the applicant’s friend, [Mr A]. The Tribunal accepts that this has been given in good faith, but notes that [Mr A] does not have any first-hand knowledge of the applicant’s circumstances in Albania, and has relied on what the applicant has told him. Given the Tribunal’s findings above, the Tribunal does not accept [Mr A]’s view that the applicant fled Albania as he feared for his life and the welfare of his family because of threats by the father of his girlfriend, who he understands is a powerful man with many connections within the underworld; that the applicant had been threatened that he would be killed and his family would be harmed if he returned to Albania; and that the applicant cannot ever return to Albania because the risk to himself and his family in Albania is still very real.
As the Tribunal does not accept the applicant was ever threatened or harmed by the father or family members of a former girlfriend and/or their agents and/or associates, the Tribunal finds there is not a real chance that the applicant would suffer treatment amounting to persecution involving serious harm from the father or family members of a former girlfriend and/or their agents and/or associates should he return to Albania, now or in the reasonably foreseeable future.
Does the applicant have a well-founded fear of persecution if he returned to Albania?
For the reasons given above, the Tribunal finds there is not a real chance that the applicant would suffer persecution involving serious harm from the father or family members of a former girlfriend and/or their agents and/or associates, including members or supporters of the current government and/or personnel of an Albanian government security agency, and/or members of the underworld, because of his Muslim religion, actual or imputed political opinion, or for one or more of the other reasons mentioned at s.5J(1)(a) of the Act, should he return to Albania, now or in the foreseeable future.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Albania, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[9]
[9] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Albania, there is a real risk that the applicant will suffer significant harm, as set out in s.36(2A), from the father or family members of a former girlfriend and/or their agents and/or associates, including members or supporters of the current government and/or personnel of an Albanian government security agency, and/or members of the underworld, or anyone else.
In reaching this conclusion, the Tribunal has considered the representative’s comments that there are a lot of killings by organised crime in Albania and people can be killed in crossfire as well as vendettas. Having considered the documents submitted by the representative, the Tribunal accepts that organised crime is an issue in Albania, but does not accept that the applicant is a target of organised crime or the focus of a vendetta that puts him at a real risk of suffering significant harm from organised crime should he return to Albania. In relation to the risk of being killed in crossfire, the Tribunal considers that no evidence has been provided that indicates or suggests there is a real risk that this would occur and also finds that any such risk is a risk faced by the population of Albania generally, rather than by the applicant personally, and therefore, as per s.36(2B)(c) of the Act, is not taken to be a real risk that he will suffer significant harm in Albania.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
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 affirms the decision not to grant the applicant a protection visa.
Paul Windsor
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 5224

22 October 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies