1723852 (Refugee) - [2020] AATA 2159

1723852 (Refugee) [2020] AATA 2159 (3 June 2020)
Corrigendum
DIVISION:Migration & Refugee Division
CASE NUMBER:  1723852
COUNTRY OF REFERENCE:                   Albania
MEMBER:Deputy President Jan Redfern
DATE OF DECISION:  3 June 2020
DATE CORRIGENDUM
SIGNED:14 July 2020
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:
1.In paragraph 2 the date, “9 November 2011” should be replaced with “30 March 2012”; and
2.In footnote 2, “(Judge White)” should be replaced with “(White J)”.

Jan Redfern PSM
Deputy President

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1723852
COUNTRY OF REFERENCE:                   Albania
MEMBER:Deputy President Jan Redfern
DATE:3 June 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 3 June 2020 at 1:40 PM
CATCHWORDS:
REFUGEE – Protection (Class XA) (Subclass 866) visa – Albania – application for protection on the grounds of an abusive relationship with an ex-partner – applicant claimed to fear harm from ex-partner on return – claim that State would not provide protection – member of a particular social group – applicants claims found not to be credible – applicant found to not be a person in respect of whom Australia has protection obligations under s.36 of the Migration Act 1958 (Cth) – decision under review affirmed.
PRACTICE AND PROCEDURE – original decision of previous tribunal upheld on judicial review – case subsequently remitted for reconsideration after leave to appeal – existence of s.438 non-disclosure certificates not previously disclosed to the applicant – information included in the decision under review – invitation to attend directions hearing – prior to directions hearing applicant conceded that she is not a person in respect of whom Australia has protection obligations under s.36 of the Migration Act1958 (Cth) – basis for concession not provided – request for decision on the papers – obligation of tribunal to make findings on claims made by the applicant – invitation to comment or respond to adverse information and provide further information under ss.424A and 424(2) of the Migration Act 1958 (Cth).
CASES:

BZADJ v Minister for Immigration and Border Protection [2017] FCA 853
BZADJ v Minister for Immigration and Border Protection [2013] FCCA 1493
Minister for Immigration and Border Protection v Singh [2016] FCAFC 183
MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081

LEGISLATION:
Migration Act 1958 (Cth), ss.5AAA, 65, 36(2)(a), 36(2)(aa), 36(2)(b), 36(2)(c),48A, 351, 417, 424A, 424(2), 438
Migration Amendment (Complementary Protection) Act 2011 (Cth)
Migration Amendment (Protection and Other Measures) Act 2015 (Cth)
Migration Regulations 1994 (Cth), Schedule 2
SECONDARY MATERIALS:

Department of Home Affairs, Procedural Advice Manual 3 (PAM3) ‘Refugee and Humanitarian - Complementary Protection Guidelines’
Department of Home Affairs, Procedural Advice Manual 3 (PAM3) ‘Refugee and Humanitarian - Refugee Law Guidelines’
Minister for Immigration and Border Protection (Cth), Ministerial Direction No.84 - Consideration of Protection Visa Applications, 24 June 2019
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)
Protocol Relating to the Status of Refugees, opened for signature 31 January 1967 (entered into force 4 October 1967)

STATEMENT OF DECISION AND REASONS

This is an application for review of a decision made by a delegate of then Minister for Immigration and Citizenship on 24 February 2012 to refuse to grant the applicant a Protection (Class XA) (Subclass 866) visa under s.65 of the Migration Act 1958 (‘the Act’).
The applicant, who is a citizen of Albania, applied to the former Refugee Review Tribunal (‘RRT’) for review of that decision on 9 November 2011. On 11 October 2012, the RRT affirmed the decision. The applicant sought judicial review of that decision before the Federal Circuit Court, which dismissed the application.[1] The applicant subsequently appealed to the Federal Court of Australia. By consent, the Federal Court ordered that the decision of 11 October 2012 be set aside and the matter be remitted to the Tribunal to be determined according to law.[2]
[1] BZADJ v Minister for Immigration and Border Protection [2013] FCCA 1493 (Judge Burnett).
[2] BZADJ v Minister for Immigration and Border Protection [2017] FCA 853 (Judge White)
The applicant, who was represented in relation to the review before this Tribunal by a registered migration agent, concedes that she does not meet the requirements for a protection visa and requests that the review proceed on the papers. She does not seek to withdraw her application and, as such, the Tribunal is obliged to conduct the review.
For the reasons that follow, the Tribunal is satisfied that the applicant’s concession is appropriate but not for the reasons proffered by the applicant. The applicant accepts she will not face harm if she returns to Albania now, although she does not resile from the original claims. I am not satisfied about the veracity of those claims and therefore affirm the decision under review, being the refusal to grant a Protection (Class XA) (Subclass 866) visa.
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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
As a result of amendments introduced by the Migration Amendment (Complementary Protection) Act 2011 (Cth), if a person is found not to meet the refugee criterion in s.36(2)(a), that person may nevertheless meet the criteria for the grant of a protection visa on the basis of the complementary protection criterion. Section 36(2)(aa), which commenced on 24 March 2012, provides that a non-citizen in Australia will meet the criterion for a protection visa if 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.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
In this case, because the delegate made the decision prior to the commencement of the complementary protection provisions, the decision under review only considered whether Australia had protection obligations under the Refugees Convention. Because this review is being undertaken after the commencement of the complementary protection provisions and the application was not finally determined at that time, the applicant’s claims for protection must also be considered under that basis.[3]
[3] Section 36(2)(aa) applied to applications not finally determined as at 25 March being the date proclaimed: s 2; sch 1, item 12, also refer to s.5(9) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.84,[4] made under s.499 of the Act, the Tribunal is required to take account of Procedural Advice Manual 3 (PAM3) ‘Refugee and Humanitarian - Complementary Protection Guideline’s and Procedural Advice Manual 3 (PAM3) ‘Refugee and Humanitarian - Refugee Law Guidelines’ and any country information assessment 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.
[4] Minister for Immigration and Border Protection (Cth), Ministerial Direction No.84 - Consideration of Protection Visa Applications, 24 June 2019.
BACKGROUND
This case has a long and extensive history which is useful to set out in some detail.
The visa applicant applied for a Partner (Provisional) (Class UF) (Subclass 309) visa in May 2004. The application was sponsored by an Australian citizen, [name removed], whom the applicant purportedly married in February 2004. That application was refused by a delegate of the Department of Immigration and Multicultural and Indigenous Affairs (now the Department of Home Affairs) on the basis that the applicant was not in a genuine relationship with her sponsor and therefore did not satisfy the prescribed criteria for the visa, being cl.309.211(2) of the Regulations.
On 17 August 2005, the former Migration and Refugee Tribunal (‘MRT’) set aside the refusal decision and remitted the matter to the Department for reconsideration with a direction that the visa applicant met the criteria for a Subclass 309 visa. The applicant arrived in Australia on 8 November 2005 as the holder of a Subclass 309 visa. Since that time the applicant has not departed Australia.
In May 2004, the applicant applied for a Partner (Permanent) (Class BC) (Subclass 100), which was refused by a delegate of the Department on the basis that the applicant was not in a genuine spousal relationship within the meaning of r.1.15A as required by cl.100.221 of Schedule 2 to the Regulations. The applicant sought review of the decision by the MRT. On 30 March 2009, the MRT affirmed that decision.[5]
[5] 0801633 [2009] MRTA 473 (30 March 2009) (Senior Member Raif).
Following the expiry of the applicant’s bridging visa on 27 April 2009, the applicant unlawfully resided in Australia until she was detained as an unlawful non-citizen in October 2009. The applicant was subsequently granted a further bridging visa.
On 2 November 2009, the applicant lodged a request for Ministerial Intervention under s.351 of the Act. The Minister declined to consider the exercise of his power under s.351 to substitute a more favourable decision and the applicant was notified of this by letter dated 19 September 2011.
On 9 November 2011, the applicant lodged an application for a Protection (Class XA) (Subclass 866) visa and an associated application for a further bridging visa, which was granted.[6]
[6] The delegate records the application was lodged on 31 October 2011, but the application is date stamped 9 November 2011. Nothing turns on this.
In summary, the applicant claimed that before coming to Australia, she had been in a long-term relationship with a man called [name removed] and had been subjected to domestic violence. She claimed to fear further harm at the hands of that individual if she returned to Albania; that the Albanian authorities would not protect her because Albanian women are expected to stay in one relationship throughout their lives irrespective of the manner in which they are treated by their partner; and because domestic violence in Albania is tolerated. She stated in her application that she moved to Australia to be reunited with her ex-partner in November 2005. She also stated that [Person A] was her de-facto partner. There is no reference to [Australian citizen sponsor], and it is noted that the applicant has a sister in Australia, [name of applicant’s sister],[7] and a brother still in Albania.
[7] Note, the applicant’s sister’s name has been spelt [spelling 1] and [spelling 2]. Throughout this decision the Tribunal will adopt the spelling [‘spelling 2’].
The applicant was invited to attend an interview with a delegate of the Minister, which she did not attend.
The delegate therefore reviewed the application for a protection visa based on the material provided by the applicant and material in related Department files. The delegate set out the migration history for the applicant, noting the applicant entered Australia on a spouse visa, sponsored by [name removed]. The delegate noted that in May 2006 the Department received allegations that the applicant’s sister, who arrived in Australia on a refugee visa in 1991, had entered into a contrived marriage with her brother-in-law, [Person A]. In 2002 [Person A] applied for a subclass 309 visa with his three children as dependants. He was, sponsored by [the applicant’s sister]. It is recorded in the delegate’s decision that at the interview for his spouse visa, [Person A] claimed to have met his sponsor 20 years earlier, they re-met in 1996 and started an affair while he was still married to his then wife, [Person B], who subsequently died. It is further recorded that [Person A] and [the applicant’s sister] were married in 2001. He entered Australia with his three children in March 2004 and they acquired citizenship by conferral on 20 September 2006. The applicant also entered Australia on a spousal visa with [name removed] as her sponsor, but the permanent visa was refused in September 2008. As already noted, at the time the applicant made her application for a protection visa in 2011, the applicant identified [Person A] as her de-facto partner.
The delegate referred to the application for Ministerial Intervention and information that was apparently obtained as part of the process of considering the applicant’s request for Intervention. It is recorded in the delegate’s decision that the Department requested senior officers attend the civil registry in [city name removed] in Albania (where the applicant had previously resided) to verify the death certificate of [Person B]. It is recorded in the delegate’s decision that on 7 March 2011 it was reported by [city name removed] registry officials that the entry on the register related to another person, not [Person B], and that the certificate was bogus. The registry also provided details from the electronic register that [Person A] was married to the applicant, although no date was recorded on the register, and that they had three children. The name and date of birth of each of the children was recorded on the register.
It is noted in the delegate’s decision that the applicant was invited by letter dated 20 July 2011 to comment on the information that the death certificate for [Person B] was confirmed as bogus and that the [city] register contained entries to the effect that [Person A] and the applicant were married and that they had three children born in [year], [year] and [year]. It is also recorded that on 6 September 2011, the applicant’s representative provided a statement from [Person A] claiming that he was never married to the applicant, a statement from the applicant claiming that she has never been married to [Person A] and a statement from [name removed], the oldest daughter of [Person A], claiming that her biological mother and father were [Person B] and [Person A].
The Tribunal was provided with a Department file referenced in the delegate’s decision which appeared to relate to the request for Ministerial Intervention. This file included statutory declarations from the applicant, [Person A] and two of [Person A’s] children sworn in 2010. The statutory declarations were to the effect that the applicant and [Person A] had been living together since September 2008 and that they had lived together happily as a family since this time. There was also copies in the Department file of documents provided by the applicant, apparently in support of her request for Ministerial Intervention, firstly, of a document purporting to be a certificate issued from the Mayor of the [city name removed] Municipality dated 16 June 2010 to the effect that [Person A’s] family comprised his wife [Person B] and his three children born in [year], [year] and [year], and, secondly, a document said to be a death certificate for [Person B] dated 16 June 2010 recording that she died on [day] [month] 1997. The file also includes a copy of the letter dated 20 July 2011 referred to in the decision of the delegate and the letter from the applicant’s representative dated 6 September 2011 providing a signed declaration (not a statutory declaration) from the applicant denying that she was or had been married to [Person A]. The applicant also stated that the three children listed in the letter were not her biological children, these children were the children of her partner and his deceased wife, she met [Person A] in the middle of 2007 and had never met him before and that the birth certificate (presumably this is intended to refer to the death certificate) of [Person B] was real. In addition, the applicant’s representative provided signed declarations from [Person A] and the oldest daughter in similar terms. In addition, the oldest daughter said that the [Person B] was her mother and her death was “not a fraud, its real”. It is evident that these were the statements referred to by the delegate in the decision dated 24 February 2012.
The delegate noted that, notwithstanding this response, she was satisfied that the applicant was legally married to and living with [Person A] at a time that she is claimed to have been in an abusive relationship with [claimed ex-partner]. The delegate stated that she did not accept that applicant was ever in a relationship with [claimed ex-partner] in Albania.
It is also clear from the delegate’s reasons for decision that the delegate considered the claims raised a contention that the applicant feared harm by reason of her membership of a particular social group, being ‘women in Albania’. The delegate did not accept that ‘women in Albania’ constituted a particular social group for the purposes of the definition of a refugee under the Convention. Notwithstanding this, the delegate also went on to make findings about the applicant’s credibility, relying on the information obtained by the Department from [city name removed]. The delegate did not accept the applicant’s claims that she had fled violence from her husband in Albania and that she was a victim of domestic violence. The delegate found that the applicant was not a witness of truth. Ultimately, the delegate found there was no Refugees Convention nexus to the harm feared because it was not accepted that ‘women in Albania’ was a particular social group. The delegate noted that it was unnecessary to assess whether the harm feared by the applicant amounted to a well-founded fear of persecution. Accordingly, the delegate was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention and refused to grant the visa.
The applicant applied to the RRT for review of that decision. She lodged a copy of the decision of the delegate with the application.[8] On review, the applicant raised a further claim that she feared harm from her own family owing to the embarrassment she had caused to them by reason of her former relationship.
[8] This was confirmed during the hearing before the RRT and from a review of the Tribunal file.

The case was listed for hearing on 22 June 2012. The applicant gave evidence and presented arguments to a Tribunal Member of the RRT. In that hearing the Tribunal member put adverse information to the applicant and subsequently wrote the applicant under ss.424A and 424(2) of the Act, inviting the applicant to comment on the adverse information. The letter from the Tribunal dated 24 August 2012 set out details of the applicant’s migration history, details of the alleged contrived marriage between [Person A] and the applicant’s sister, information to the effect that the death certificate for [Person B] was bogus and an allegation from the Department that these matters were “part of an elaborate chain migration scheme by [the applicant’s] sister to procure residence for [the applicant] and [her] family using multiple identity and relationship fraud”.
The following further particulars were raised with the applicant by the Tribunal in its letter dated 24 August 2012:
(1) The applicant resided in Australia for 6 years before making a claim for protection on 9 November 2011, which undermined the credibility of her claims for protection;
(2) Evidence obtained by Departmental officers in [city] showed that the applicant had been married in Albania to [Person A] and that they had three children together, in the period that the applicant claims she was in another abusive relationship; and
(3) The applicants claim that she was in a long-term de facto relationship with another man in Albania was inconsistent with her evidence that she was married to [Person A], which also contradicts the foundations of her claimed fear of harm in Albania.
It is relevant to note, for completeness because this later became an issue in the appeal before the Federal Court, that this information was contained in documents provided by the Department to the Tribunal that were the subject of non-disclosure certificates issued under s 438 of the Act. Section 438 of the Act provides that if the Minister has certified the disclosure of any matter contained in a document or information would be contrary to the public interest contained in the certificate, the matter contained in the document or information should not be disclosed. If the Tribunal is given a document or information that falls within s.438 the Tribunal may have regard to any matter in the document or information and if it sees appropriate, may disclose the information contained in the document to the applicant.
At the time, the Tribunal did not disclose the certificates or the existence of the certificates, but certain information contained in the certificates was discussed with the applicant at the hearing and was disclosed by the Tribunal in its letter of 24 August 2012.
The Tribunal was clear about its concerns and in its letter the Tribunal set out why this information was adverse in the following terms:
This information is relevant because it may lead the Tribunal to find that the death certificate you provided was fraudulent; that you were married to [Person A] and not in a de facto relationship with him as claimed; and that this was part of a scheme by your sister to fraudulently procure residence for you and your family in a Australia. Further, this may discredit you as a witness before the Tribunal and the Tribunal would not accept any material particular of your evidence concerning your claim to fear harm in Albania. Accordingly, this may lead the Tribunal to find that your claimed fear of harm is not genuine and that you do not have a well-founded fear of persecution for a Convention reason now or in the reasonably foreseeable future and that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of you being removed from Australia to Albania, there is a real risk that you will suffer significant harm. If the Tribunal so finds, this would be the reason, or part of the reason, for affirming the decision under review to grant you a Protection Class (XA) visa.
Further, this information is also relevant because your marriage to [Person A] in Albania contradicts the foundations of your claimed fear of harm in Albania. If you were married to [Person A], you could not have been involved in an abusive de facto relationship of 10 years duration with [claimed ex-partner]. The Tribunal may find that your claimed fear of harm is not genuine and that you do not have a well-founded fear of persecution for a Convention reason now or in the reasonably foreseeable future and that there are not 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 or she will suffer significant harm. If the Tribunal so finds, this would be the reason, or part of the reason, for affirming the decision under review to grant you a Protection Class (XA) visa.
….
The Tribunal received a statutory declaration from the applicant dated 4 October 2012 in response to its letter. The applicant stated that she had never been married to [Person A], his three children were with his deceased wife and that she was in a relationship with [claimed ex-partner] in Albania 10 years ago but their relationship was not public because she feared she would “get killed for embarrassing my family”. The applicant declared that the only person who knew about her relationship was her best friend.
On 11 October 2012, the RRT considered the applicant’s claims under both ss.36(2)(a) and 36(2)(aa) of the Act. The Tribunal found that the applicant did not have a well-founded fear of persecution for a Refugees Convention reason. In reaching this conclusion, the RRT found that the applicant had not been in a violent and abusive de facto relationship; there was no such de facto relationship with an abusive man in Albania and the Tribunal was not satisfied the applicant had escaped such a relationship at [74]. The RRT made strong adverse findings as to the applicant’s credit. Having concluded that the applicant did not meet the refugee criterion in s.36(2)(a) the RRT considered the complementary protection criterion and found that it did not have substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Albania there was a real risk that she would suffer significant harm. The Tribunal affirmed the decision under review.
The applicant sought judicial review of the Tribunal’s decision. That application was dismissed by the Federal Circuit Court on 2 October 2013 as it found the applicant did not demonstrate any jurisdictional error concerning the basis for her alleged fear of persecution.[9] On 15 February 2017, the applicant applied for an extension of time to appeal to the Federal Court. The applicant provided a draft notice of appeal containing four grounds of appeal all relating to non-disclosure certificates issued by the Department. The applicant’s proposed grounds of appeal were as follows:[10]
1. The non-disclosure certificates issued pursuant to s.438 constituted a denial of procedural fairness;
2.    The first and third certificates were invalid in that the claim of public interest lacked a proper foundation, with the RRT should not have acted on them;
3.    If the third certificate was valid, the RRT’s decision not to disclose the documents relevant to the certificate was legally unreasonable; and
4.    If the third certificate was valid, the RRT committed jurisdictional error by failing to give the applicant clear particulars of the information contained in the documents to which the certificate related.
[9] BZADJ v Minister for Immigration and Border Protection [2013] FCCA 1493 (Judge Burnett).
[10] BZADJ v Minister for Immigration and Border Protection [2017] FCA 853 [16]
The appeal was based on the newly established authority in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 (‘MZAFZ’) and Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 (‘Singh’). In MZAFZ, Justice Beach found that there was jurisdictional error arising from the Tribunal not disclosing the existence of an invalid non-disclosure certificate to the applicant. In Singh, the Full Court of the Federal Court considered they were bound by MZAFZ and found that the Tribunal had denied procedural fairness to the applicant as the existence of a non- disclosure certificate had not been disclosed to the applicant and the Tribunal was required to inform the applicant of its existence.
Three of the non-disclosure certificates were issued on 24 February 2012 and one on 2 August 2012. At the time these certificates were issued and the RRT made its decision, the authority in Singh and MZAFZ had not been established. As such, the presiding member did not disclose the certificates to the applicant.
On 28 July 2017 the Federal Court granted leave to the applicant to commence an appeal and, while noting the applicant’s evidence was “curiously silent on the topic”, proceeded on the basis that the former Tribunal did not disclose to the applicant either the existence of the non-disclosure certificates or the information to which they referred.[11]
[11] Ibid [19].
On 26 September 2017, the Federal Court made orders by consent that the decision of 11 October 2012 be set aside and the matter be remitted to the Tribunal to be determined according to law. The basis for the remittal was recorded as a denial of procedural fairness of the kind found in Singh and MZAFZ because a delegate of the Minister had issued four certificates under s.438 of the Act, the existence of the certificates was not disclosed to the applicant and the documents subject to the certificates were relevant, or potentially relevant, to the issues arising on the review to the Tribunal.
The matter was constituted for reconsideration in 2019 and by letter dated 5 July 2019 the applicant was invited to attend a directions hearing before the Tribunal (differently constituted). In response to that invitation, the applicant, through her representative by letter dated 11 July 2019, conceded that her fears did not satisfy the requirements under s.36 of the Act and advised that she intended to pursue Ministerial Intervention under s.417 of the Act. The applicant requested that her application be refused on this basis. In making this request, the applicant’s representative indicated that the applicant understood that her protection visa application would be refused and considered finally determined and that her ability to re-agitate her protection claims barred under s.48A of the Act. The applicant also waived her right to a hearing and consented to the Tribunal making a decision on the papers.[12]
[12] Refer s.425(2)(b) of the Act.
Having reviewed the decision of the Federal Court made on 28 July 2017 and the consent orders made on 26 September 2017, I was concerned to ensure that the applicant was afforded procedural fairness and on 15 October 2019 caused a letter to be sent to the applicant and her representative providing the applicant with copies of the non-disclosure certificates, inviting the applicant to comment on the validity of the five non-disclosure certificates, providing preliminary views about the validity of the certificates and advising the applicant that information which was in the documents subject to the certificates that was relevant or potentially relevant to the review was disclosed in the letter of the Tribunal dated 24 February 2012 and in the decision of delegate. The applicant was invited to provide any further response and was invited to provide a written statement setting out the particulars of the basis on which she now conceded she did not meet the criteria for protection. The letter set out the reasoning for the Tribunal’s preliminary view about the validity of the various certificates. In summary, the preliminary view was that two of the certificates were invalid on their face but nonetheless contained information that the Tribunal considered would be “non-disclosable” within the meaning of s.5 of the Act. The applicant was also advised that, to the extent the information contained in the documents subject to the certificates was relevant or potentially relevant to the issues arising on review, the effect of the information had been disclosed in the adverse information letter of the previous Tribunal dated 24 August 2012 and in the decision of the delegate.
Relevantly, the applicant was advised as follows:
Unless your application for review is withdrawn, the Tribunal is obliged to consider the claims made. Your claims for protection, as recorded in the decision of the delegate dated 24 February 2012, are as follows:
·     You were in an abusive relationship with [claimed ex-partner] for 10 years and were continually subjected to domestic violence. You subsequently left [claimed ex-partner] and went into hiding;
·     You met and married [name removed], who sponsored your application for a Subclass 309 (spouse) visa.
·     If you return to Albania, [claimed ex-partner] will kill you.
·     You have not been in contact with anyone in Albania. It is a conservative community and people will tell [claimed ex-partner] if you return.
The applicant provided the Tribunal with a statutory declaration sworn 21 October 2019 to the following effect:
I, [name removed] of [address removed], make the following declaration under the Statutory Declarations Act 1959:
1.     This statement is provided in response to the invitation to comment issued by the Administrative Appeals Tribunal on 15 October 2019.
2.     This statement has been produced with the assistance of a community interpreter and I confirm I understand its contents.
Validity of non-disclosure certificates
3.     I confirm that the issue of the non-disclosure certificates has been explained to me.
4.     I confirm that I do not wish to challenge the validity of the non-disclosure certificates. As set out below, I concede that I do not meet the requirements for the Protection visa.
Protection claims
5.     I confirm that I concede that my claims for protection do not satisfy the requirements for the Protection visa. I confirm I understand that once the Tribunal refuses my application, my protections claims will be finally determined, and I will likely be barred from raise these claims again.
6.     The reason I concede that I do not meet the requirements is because it is been over ten years since I lived in Albania, and there is no sign that I am still in danger there. I also understand that I would need to provide that I am unsafe in all areas of Albania, and I accept that I can avoid issues by living in a different area of Albania.
7.     I instead wish to seek ministerial intervention. This is because I have lived in Australia so long and have such strong attachments here. In contrast, I have no attachments or ties to Albania. I also understand that because of my visa history I would face many difficulties in trying to return to Australia to visit in the future which would make it incredibly tough for me.
8. I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 11 of the Statutory Declarations Act 1959, and I believe that the statements in this declaration are true in every particular.
The applicant was advised by letter of the Tribunal dated 1 May 2020 that the Tribunal intended to finalise this matter and was invited to provide any further submissions that they would like the Tribunal to consider. To date, no further submissions have been provided.
CONSIDERATION OF CLAIMS AND EVIDENCE
I have reviewed the evidence which includes the application for protection, the Department file which includes the decision of the delegate dated 24 February 2012, the documents referred to by the delegate in the decision, the application for Ministerial Intervention which was rejected by decision dated 19 September 2011 (including the statutory declarations and documents provided to the Department in response to the request to respond or comment on adverse information) and the response provided by the applicant being her statutory declaration dated 4 October 2012. I have also listened to the audio recording of the hearing before the former RRT.
The applicant’s claim for protection was refused by the delegate on the basis that there was no Refugees Convention nexus, namely the delegate was not satisfied that ‘women in Albania’ was a particular social group for the purposes of the Convention. I am not bound by this finding and must consider the matter afresh. In my view, identifying this particular social group so broadly may not have been the most appropriate approach in the circumstances of this case. Another alternative would have been to identify the particular social group as ‘women in Albania who are subject to domestic violence’. Whether this is a particular social group or whether ‘women in Albania’ would constitute a particular social group for the purposes of the Refugees Convention would depend on relevant country information in relation to these matters. However, I have not reviewed the country information to assess this issue and make no findings about this but rather have determined the matter on the basis of whether I accept the applicant’s claims that she was the subject of domestic violence and, as such, meets the criteria in either ss.36(2)(a) or (aa) of the Act.
The applicant concedes that she does not meet the criteria because it has been over 10 years since she lived in Albania and there is no sign that she would still be in danger there. Notwithstanding this concession, in the absence of the applicant withdrawing the application for review, it remains active and, accordingly, I must discharge my statutory obligation to conduct the review. In order to do this, I must decide whether Australia has protection obligations to the applicant to make a decision on the review based on the evidence before me.
I have considered the applicant’s claims, the evidence provided by her, and the information contained on the Department file and I am not satisfied about the credibility of these claims.
In her evidence to the presiding member in the hearing before the former RRT, the applicant said that she feared harm if she returned to Albania because she had spent 11 years with an abusive boyfriend, from 1991 until 2002. He was an alcoholic and he would beat her. When she left him, she lived in the village and went into hiding until she came to Australia. When asked why she was not harmed while she was living in the village after she had left her abusive former partner, the applicant said that she had the protection of her family and that her father was in a high position. Her ex-partner was not allowed to the house. The applicant said that she first met her ex-partner, [name removed], when she was at school, but they did not start going out until she was about 26 or 27 years old. Given the applicant was born in [year], this would have been from about [year] or [year]. When asked why she still feared returning to Albania so long after the relationship ended, the applicant said that her former partner would still wish to harm her as this was part of his personality. The applicant said that she had not spoken to [claimed ex-partner] since leaving Albania, but she believed he was still alive because a friend had told her that he had got married. When asked whether she believed [claimed ex-partner] would still seek to harm her if she returned to Albania because he was now married, the applicant said she was sure that he would. She again said that this was his personality. She would be concerned to return because none of her family lived in Albania, they had all moved to Italy.
During the hearing the presiding member noted that the delegate had made findings in relation to her credibility and had rejected her claim that she had been in relationship with abusive man in Albania. The presiding member noted that he had similar concerns then proceeded to recount a number of the matters set out in the decision of the delegate dated 24 February 2012 about the applicant’s history, the allegations received by the Department that the applicant’s sister had entered into a contrived marriage with her brother-in-law, who was in fact the husband of the applicant, and the information obtained by the Department that the death certificate for [Person B] was bogus and that the records revealed that [Person A] and the applicant were married and had three children. The presiding member advised the applicant that he had summonsed documents from the Department that were apparently not included in the Department file and that he was likely to send an invitation to the applicant seeking comment under s.424A of the Act in respect of any additional adverse information that may come to light as a result of the summons. In the meantime, the presiding member gave the applicant the option to respond to this adverse information or to wait until he had provided a detailed letter outlining his concerns. The applicant’s representative, after taking instructions from the applicant, requested that the Tribunal proceed with the latter course. The applicant therefore declined to provide respond to the matters noted by the presiding member.

The Tribunal received documents in response to the summons and these documents primarily related to investigations undertaken by the Department arising out of the request for Ministerial Intervention. The key findings set out in those documents were the subject of the letter from the Department to the applicant dated 20 July 2011, to which the applicant responded by letter dated 6 September 2011. The response included statements, one from the applicant, one from [Person A] and three statements from the children of [Person A] together with documents that purported to be certificates issues by authorities in Albania. The content of those statements has been summarised above.
As noted, the Tribunal sent an invitation to the applicant to respond to adverse information dated 24 August 2012. The information included the allegation about the contrived marriage between [Person A] and the applicant’s sister, the allegation that the death certificate for [Person B] was bogus and the information from the [city name] registry that [Person A] and the applicant were married and had three children together.
The only response provided by the applicant was a statutory declaration of 4 October 2012, although it had been noted during the hearing that the presiding member would also have regard to the statements provided in response to the letter dated 20 July 2011 setting out adverse information to similar effect.
The allegations made that the applicant and [Person A] are married and that they had been married for a considerable time raises serious concerns about the credibility of the claims made by the applicant in these proceedings. The allegations are supported by the findings recorded in a Department investigation which refers to information obtained from the [city name] civil registry in Albania. While this information is hearsay and the Tribunal was not provided with source documents or statements from the registry officials, I give this evidence considerable weight. The information provided by the Department sets out the details of the circumstances in which the investigations commenced, the request to the [city name] civil registry and the outcome of that request. On the face of it, the information said to have been obtained from the registry appears to be probative. In addition, there is other information that tends to corroborate this evidence. Relevantly, there are inconsistencies and deficits in relation to the information provided by the applicant in response to the request for comment on the adverse information. For instance, the purported certificate provided by the Mayor of the [city name] Municipality is dated 16 June 2010 and purportedly records [Person A’s] family to comprise his three children together with his wife [Person B]. However, according to a further certificate provided by the applicant, [Person B] died on [day] [month]1997. It is difficult to understand why the first certificate, which is in the present tense, referred to [Person B] without noting that she was deceased. It is the latter certificate that is said by Department officials to be bogus. The allegations raised by the Department that the applicant and [Person A] were married, that the applicant was the mother of his children and that the relationship between [Person A] and the applicant’s sister was contrived were significant and serious allegations. Notwithstanding this, there was no statement provided by [the applicant’s sister] about these matters nor did the children or [Person A] refer to [Person B] in their statements.
Because the applicant declined to participate in the interview with the delegate, did not provide comments on the adverse information in the previous hearing and did not attend a hearing in this matter, none of this evidence could be tested. As the untested evidence goes to a critical issue, it must be examined very carefully. The evidence is self-serving both for the applicant and for [Person A]. It contains little detail about [Person B] and none of the parties who provided the statutory declarations in 2010 or declarations in 2011 were available to give evidence at the first hearing. While it is the case that the presiding member did not raise the adverse information prior to the hearing, the allegations of the Department were contained in the decision of the delegate in considerable detail and formed the basis for the finding by the delegate that the applicant’s claims were not credible. The decision of the delegate record was served with the application. It must have been apparent to the applicant or the applicant’s representative that this was likely to be an issue in the proceedings, yet the applicant did not provide this evidence in support of her claims of the hearing. As such, this evidence remains untested and, given the evidence to the contrary, which has not been satisfactorily explained, carries little weight.
I also note that the evidence in the applicant’s statutory declaration of 4 October 2012, responding to the adverse information in the letter of 24 August 2012, was not only unconvincingly brief given the seriousness of the adverse information, but it was inconsistent with the evidence that she gave in the hearing. At the hearing the applicant gave evidence to the effect that after she left [claimed ex-partner] she was provided with protection by her family. The thrust of her evidence was that her family, including her father who was important in the village, were assisting her while she was in hiding in the village. This is inconsistent with the evidence in a statutory declaration that her relationship with [claimed ex-partner] was not public and that her family did not know about this. It would also seem implausible that a de-facto relationship with [claimed ex-partner] for 11 years would remain secret, particularly from the applicant’s family. At the hearing, the applicant was also questioned about how she could remain in a de-facto relationship with [claimed ex-partner] for such a long time and she said that her family were not happy about this but she did not marry [claimed ex-partner] because she was concerned about his drinking and abuse. This evidence is inconsistent with the evidence that she gave only four months later in her statutory declaration of 4 October 2012.
Under s.5AAA the Act, it is the responsibility of the person claiming protection “to provide sufficient evidence to establish the claim”. The applicant has not provided sufficient evidence to establish her claim nor to counter the allegations contained in the adverse information. The applicant does not appear to now press her application for protection and concedes that she would not face harm in Albania from her former partner because of the extended period that has now passed. This was not the applicant’s view when she gave evidence in the hearing before the Tribunal in June 2012. That is now nearly eight years ago and one can accept that the applicant may have now changed her view. However, based on evidence about the applicant’s claims, the adverse information, the failure of the applicant to adequately respond to the allegations and other material that appears to corroborate the findings of the Department, including inconsistencies in her evidence, I am not satisfied about the credibility of the applicant’s claims.
I am therefore not satisfied that the applicant has a well-founded fear of persecution if she returns to Albania and this is the case regardless of whether I accept that her fear has a Refugees Convention nexus on the basis that she is a member of a particular social group. I do not accept that she has a well-founded fear, not because I do not accept the nexus and not because I accept her concession to no longer have such a fear. I am not satisfied that the applicant has a well-founded fear because I do not accept her claims about being in relationship for an extended period with an abusive ex-partner. Even if it could be accepted that the applicant was in an abusive relationship that ended in 2002, the applicant’s evidence is now that she does not fear harm in returning to Albania because of the time that has passed. Given the applicant’s own evidence that this relationship ended nearly 18 years ago and that the alleged ex-partner has remarried, I would not be satisfied that there is a real risk of serious or significant harm as claimed by the applicant in any event.
CONCLUSION
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, I have considered the complementary protection grounds set out in s.36(2)(aa) of the Act. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act because I am not satisfied about her claims of being in a relationship for an extended period with an abusive ex-partner. I am therefore not satisfied that she would be exposed to any harm from an ex-partner if she returned to Albania.
There is no suggestion that the applicant satisfies s.36(2) of the Act 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) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) (Subclass 866) visa.
Jan Redfern PSM
Deputy President