1820580 (Refugee)

1820580 (Refugee) [2023] AATA 3553 (6 October 2023)
CORRIGENDUM
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs MARION ROSE LE (MARN: 9256617)
CASE NUMBER:  1820580
COUNTRY OF REFERENCE:                   Albania
MEMBER:Mark O'Loughlin
DATE OF DECISION:  6 October 2023
DATE CORRIGENDUM
SIGNED:2 November 2023
PLACE OF DECISION:  Adelaide
AMENDMENT:  The following corrections are made to the decision:

Paragraph 248 states: “the applicants face a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to India”.
This should state: “the applicants face a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Albania”.
Mark O'Loughlin
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs MARION ROSE LE (MARN: 9256617)
CASE NUMBER:  1820580
COUNTRY OF REFERENCE:                   Albania
MEMBER:Mark O'Loughlin
DATE:6 October 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 06 October 2023 at 2:09pm

CATCHWORDS
REFUGEE – protection visa – Albania – particular social group – women – fear of family violence – refusal to return to her family – fear of honour killing – homophobic threats – return visit to Albania – blood feuds – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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 dependants.
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 Home Affairs to refuse to grant the applicants Protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first and second applicants who claim to be citizens of Albania, applied for the visas on 1 April 2014. The third applicant, an infant and the daughter of the first and second applicants, seeks a protection visa on the basis that she is a member of the same family unit as her parents.
The delegate refused to grant the visas on 12 July 2018.
The first and second applicants appeared before the Tribunal on 13 April 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Albanian and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
CONSIDERATION OF CLAIMS AND EVIDEN
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).
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 to the extent that they are relevant to the decision under consideration.
The issue in this case is whether, based on what is accepted of the claims made by the applicant or arising on the evidence, the applicant is a person to whom Australia has protection obligations.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The first and second applicants came to Australia from [Country 1] where they were living as permanent residents.
They arrived together [in] March 2014.
They came to Australia using false [Country 1] passports in the names of [aliases].
The first applicant had lived in [Country 1] since early 2010 and the second applicant had lived there since March 1998.
The first and second applicants say they married in Albania in 2006, and that theirs was a traditional marriage organised by a marriage broker.
Consideration of Claims and Evidence
First Applicant’s Claims and Evidence
PVA
The first applicant, [named], set out her claims in her answers to questions 42 to 49 of her Protection Visa Application, signed on 20 March 2014.
In her answer to question 43 she says she left [Country 1] because her father and brother were threatening to kill her because she defied her father’s direction that she leave her husband and return to live with her family.
She says her husband had admitted to her that he had had a single sexual encounter with another man.
She said she had been shocked and upset when she was told about this encounter, and she packed his bags and told him to leave.
She rang her mother in Albania to discuss it and her father and brother found out what had happened. They were both very, very upset.
They told her to come home. The problem started when she disobeyed.
In her answer to question 44 she says both her father and brother had told her on the telephone that they would kill her unless she returned home.
She says she had been engaged to her husband since she was [age] and was very happy with him aside from this one incident.
She says after a week of him begging forgiveness she forgave him. She told her parents and her brother that she chose to stay with him.
They were very angry and said if she did not divorce him they would come to [Country 1] and kill her. She says they see this as a matter of honour and she has lived in fear of them since. She says the psychological and emotional pressure is unbearable.
In her answer to question 45 she says she fears she will be killed if she returns to Albania.
She says her father is definitely prepared to kill her.
She says if he does there will be enormous pressure on her husband who will be expected to avenge her, in addition to having to bear his own guilt and grief.
She says they both live in fear of them coming to find her and her husband.
She says they are not safe in [Country 1] or anywhere in Europe because it is so easy for Albanians to travel in Europe. She says they cannot return to Albania.
In her answer to question 46 she says her father and brother have threatened to kill her to satisfy their honour. She says her husband will then avenge her and her family will respond and it will develop into an extensive blood feud.
In her answer to question 48 she says the [Country 1] authorities would not offer her protection if she went to them because she is not a national of [Country 1].
She says there is an underlying culture in [Country 1] and Albania that family matters should be dealt with by the family. The police will not take them seriously as they would in Australia.
She says in Albania domestic violence is common and the police do not interfere.
She says she is not safe in [Country 1] and certainly cannot return to Albania.
She says the psychological abuse to which she had been subjected in the months before she signed the application amounts to torture.
She says she just wants to be safe and that it would be better for her to kill herself than return and be killed by her father who believes in a metaphorical sense she has killed him.
Pre Interview Submissions 2014
In submissions to the Department dated 29 March 2014 the first applicant’s situation is summarised as being that she is a member of the particular social group of women and girls threatened with death by their families to preserve the (so-called) Honour of the family.
The submissions also say she is being persecuted because of the perception by her family that she condones homosexuality and is living with a homosexual man who is her husband in direct defiance of her father and brother and the perceived norms and values of Albanian society and the ancient kanun.
Departmental Interview 19 June 2018
The first applicant also participated in an interview with a representative of the Department on 19 June 2018.
In that interview she said she was born in [City 1] in Northern Albania (the Tribunal observes that [City 1] appears to be about [distance from] Shkoder) and had moved to Shkoder to live with her husband’s family after she got married in 2006.
She had moved from Albania to [Country 1] in about 2010 to reunite with her husband who had been living there since he was about [age].
At the time of the interview her father, [named] and her mother [named] were still alive and living in [City 1], but she was no longer in contact with them. She said she had not spoken to them since about October 2016.
She said she had [specified family members] and had not spoken to them for the same period of time.
She said her husband had lived in [Country 1] for some time and when she moved there to be with him, his parents moved to [Country 1] as well.
She said she could not return because her father and brother would attack and hurt her unless she divorced her husband and left him.
She said that was because her husband had an affair with a transexual person at the end of September 2012.
She said her father grabbed the phone from her mother when they were discussing it and threatened to shoot her. She said that was in the first week of October 2012.
She also said her brother also said that if her father didn’t kill her, he would.
She said that was the only time her father and brother had threatened her.
She said she is too scared to return to Albania because of the threat and believes they would come for her in [Country 1] as well.
The representative noted that she had returned to Albania in 2013 and had not been harmed. She said she only went back with her husband to get her Albanian passport.
She said the Albanian authorities could not protect her because women are killed every day. She also said she could not go to another part of Albania because of the fear she has now.
Testimony to the Tribunal
The applicant told the Tribunal that she was born in Albania and had been living in the north of [Country 1] near [a named city] before she came to Australia.
She said Albania is a country of about 3 million people and [Country 1] has a population of about 60 million.
She said her husband is [number] years older than she is.
She said before she got married she lived with her parents, [and family] in Albania before she got married.
She said she had not spoken to any of those people since 2012.
She said her husband had gone out one night and had a lot to drink. He had sex with a transgender person and later told her what he had done.
She was so cross with him she threw him out of the house. He called her every day and after a week she relented and let him return.
During the time he was not living with her she spoke to her mother on the telephone about the situation. Her father heard what she said and told her she had to leave her husband because they could not accept what he had done, it was shameful and against their religion.
Her brother was there with her parents too and said that if their father did not kill her, he would.
That conversation was at the beginning of October 2012.
She said her father called her back but she did not return his calls because it was too painful.
She believed her father and brother both threatened her in 3 or 4 other phone calls. Her husband heard some of them, as they were after she and he had reconciled.
She said her father had never killed anyone but he is very aggressive.
She said he is very patriarchal, and it was shameful for him if his own child does not listen to his rules.
She said her brother follows her father. He has never killed anyone, but she did not know whether he had threatened to do so.
The Tribunal asked the applicant whether there is any evidence that her father or brother would carry out their threats.
She said her father mistreats his wife, her mother, and she has seen him hitting her often.
She said she believes her brother would kill her because the woman needs to listen to the man and do what he says.
She believes he would kill her for that idea and noted that an Albanian man, Petrit Lekaj, had killed for that idea in Adelaide 2 years ago.
The Tribunal asked if she could avoid the problem by returning to [Country 1] instead of Albania but she said it is easy for her father and brother to come to [Country 1] on their Albanian passports so going to [Country 1] would not help.
The applicant said she fears returning to Albania and [Country 1] because she fears being killed and she needs to protect her 3 children.
She advised the Tribunal that she had a daughter, [named], who was born in Australia on [date] and who is the third applicant. She says she has two more [children] who were born on [specified dates].
She said she hoped that things would become “more soft” with her family after the children were born but there had been no communication with her family since October 2012.
She has not communicated with them but believes her family would know about the girls through [a relative] who lives in Albania.
The applicant was asked about the possible development of a blood feud.
She said if she was with her husband when her family kill her, they may kill him as well. If that happened his family would seek revenge and a blood feud would result.
She said that is how it works.
The Tribunal asked if the applicant could avoid her family in Albania given that there are 3 million people living there and that her family are in the North.
She did not believe she would be secure there. She believed her family would still find her and kill her.
She says women in Albania are not protected which she knows from watching television.
She said she did not believe she would be safe in Tirana because her family could pay criminals to find her.
She told the Tribunal that her permanent residency in [Country 1] has lapsed but she would not even try to return there because she does not feel safe.
The Tribunal observed that, at 60 million people, [Country 1] is a much bigger country than Albania. She said that does not help and she would not be safe anywhere in [Country 1].
She said there are Albanians all over [Country 1] and it would not be possible to avoid them despite the large population.
The Tribunal advised that it has had regard to country information that says blood feuds are not as serious a problem in Albania as they used to be. She denied that.
She said they are against the law but that no one follows that law.
She agreed that she had been threatened 4 or 5 times in October 2012 and had not been threatened since.
She told the Tribunal that she had stayed in [Country 1] for over a year after the threats. She did not know if her father and brother had come to [Country 1] in that time.
She agreed that she had said it was very easy for Albanians to go to [Country 1].
The Tribunal asked the applicant to expand on her evidence about her father’s violence towards her mother. She said he had thrown things at her. The Tribunal observed that that was a long way from murder. The applicant said she believes her father would be capable of violence against her mother and it is for that reason that she avoids speaking to her.
Second Applicant’s Claims and Evidence
PVA
The second applicant, [named], signed his Protection Visa Application on 20 March 2014 and lodged it on 3 April 2014, as did the first applicant.
In the PVA he says in his answer to question 43 he left Albania and [Country 1] because his father-in-law and brother in law threatened to kill his wife because she stayed with him in defiance of her father’s order.
He says that over several months they suffered “incredible psychosocial abuse” from direct threats made to his wife by telephone.
He says after the calls ceased, they felt even more unsafe and terrified. They feared members of her family may have come to [Country 1] to look for them.

100. He said his wife threatened suicide, so they decided to seek protection in Australia.
101. Question 44 asks whether the applicant suffered harm in [Country 1] and Albania. He says he did and cites the threats referred to in his answer to question 43. He clarifies that his wife’s father and brother demanded his wife leave him because of a homosexual encounter he had had.
102. He says that on at least one occasion his wife’s brother shouted into the telephone that he would find her and kill her himself if their father did not do so.
103. He says living with the belief they were at risk from his wife’s family was mentally and psychologically torturous for both of them.
104. Question 45 asks what the applicant fears may happen to him if he returns.
105. He says he fears his wife will be killed by her father or brother (or both of them).
106. He says in that event he will be expected by his family to avenge his honour and kill her brother. Then a member of her family will be expected to kill him and a serious blood feud will be created involving many people.
107. He says he does not want revenge but if he does not seek it some other family member will probably do it on his behalf and on behalf of his extended family.
108. He says there is also a possibility, though it has not been the subject of a threat, that they will kill him as well as his wife.
109. Question 46 asks who will harm him if he returns. He says his father-in-law and brother in law.
110. Question 47 asks why he thinks he will be harmed if he goes back. He repeats his claims about his wife being thought to have dishonoured her family.
111. He expands on the events of September 2012 that provoked his in-laws’ anger. He said he had a single homosexual encounter when drunk. He felt he had to tell his wife about it. She was extremely upset and told him to leave.
112. He says she contacted her family in Albania. They were very upset and her father told her to leave [Country 1] immediately and return to Albania. Eventually he and his wife reconciled but her father and brother rang her constantly.
113. Question 48 asks whether the authorities of Albania or [Country 1] can and will protect him if he returns. He says Albanians living in [Country 1] are frequently killed and the perpetrators rarely brought to justice.

114. He says authorities are reluctant to involve themselves. He also believes his in laws may kill his wife and quicky escape back across the Albanian border where it would be very difficult to bring them to trial.
115. He says in that event it will be his “right and honour” to avenge his wife but he may be charged with her murder. He does not explain why that would be and the Tribunal does not accept this claim.
116. He asserts there is no protection for either his wife of him in Albania or [Country 1] and they have no right of protection or justice.
117. He also says Albanians are not generally liked by [Country 1 citizens].
118. The claims are generally reflected in a statement by the second applicant dated 20 March 2014 lodged at the same time as the PVA.
Departmental Interview 19 June 2018
119. [The second applicant] was party to the same interview as his wife on 19 June 2018.
120. He said they had used false passports to come to Australia because their first application to come to Australia had been refused.
121. He said he organised the false documents in Albania in about December 2013 and returned in about January or February of 2014 to collect them.
122. He said he had travelled to other European countries in his work as [an occupation 1].
123. He said he had not applied for [a Country 1] passport because the process takes so long. At the time of the interview he said he was a permanent resident of [Country 1].
124. He said he married the first applicant [in] December 2006 in Albania.
125. He said he is still in contact with his family in Albania and [Country 1] but there is no contact with his wife’s family.
126. He described the homosexual encounter in [Country 1] at the end of September 2012. His description is essentially consistent with that in the PVA save the addition that the other man “looked like a female”.
127. He said he told his wife two days later and that she packed his clothes and threw him out of the house.
128. He said she also rang her family and told them what he had done.
129. When they found out they pushed her to separate from him. He said they did not do much to him but put a lot of pressure on his wife.
130. He said there was no physical attack but lots of swearing and threats on the telephone.
131. He said those threats took place over about two or three months.
132. He said they did not report the incident to the [Country 1] police because of their shame.
133. He said he cannot return to [Country 1] because any Albanian can move around [Country 1] easily and they would be vulnerable in [Country 1] or [another European country].
134. The interviewer noted that the applicant and his wife had returned to Albania without harm befalling them. The applicant said they were careful not to let anyone know their moves.
135. He said there is no protection from Albanian authorities which will always fail and that they had not reported the incident because it is shameful.
136. On being asked if they could relocate to a part of Albania where they are not known, he said it may be possible but it is not a stable country economically or politically and you cannot hide yourself or live elsewhere.
Evidence to the Tribunal
137. The applicant told the Tribunal applied for a protection visa because his wife had been threatened by her father.
138. He said the threats were made over the phone. He was not there for all of the conversations and they were not on a speaker phone but he could hear his father in law yelling. He said he thinks he heard about half of one of the conversations which he then said was put onto a speaker.
139. The applicant described his sexual encounter at the end of September 2012 in terms that were consistent in all important details with the other versions.
140. He said he was away from his home for about a week and when he returned he found out about the threats that had been made by his wife’s father and brother.
141. He said the calls went to his wife’s mobile phone and he was not sure how long they continued.
142. He could not comment on his wife’s evidence that there were 3 or 4 calls.
143. He said he had heard his father in law yelling and threatening to kill her if she did not leave the applicant.
144. His wife told him about the threats by her brother, he did not hear them himself. The Tribunal asked whether he had filled in the PVA (which purports to quote the applicant’s brother in law at the answer to question 44).
145. The applicant said his English was not good enough to complete the form so the representative had done that for him.
146. The applicant deferred to his wife’s evidence about when the threatening calls stopped.
147. He said he knows his father in law and would never have thought he would go as far as he has.
148. The Tribunal explained that it needed to decide whether his father in law would carry out the threats. The applicant said it is not possible to know someone’s thoughts but people react badly in Albania and are homophobic.
149. He said they had never threatened to kill him.
150. He said he believes his father-in-law or brother-in-law could kill his wife. He believes this because he thinks his father-in-law is aggressive and has a bad opinion of gay people.
151. He said the left [Country 1] in March 2014 and agreed that meant they had stayed in [Country 1] for about a year and 4 months after the threats had finished.
152. He said they did return to Albania during this time, to get the false passports they needed. When they went to Albania they stayed hidden to avoid his wife’s family.
153. He was not sure if his wife had returned to Albania with him on either of his visits.
154. He said his [Country 1] visa has expired, but in any event he does not want to return to [Country 1].
155. He says he fears harm because of the way he will react if his wife is killed.
156. He says it is difficult to know what he would do but he could not stay without doing anything. He said they have the Kanun (the customary law observed in parts of Northern Albania).
157. He said it was less likely he would seek vengeance because now he has three children.
158. When asked to comment on how serious he thought the threats were, he said they are directed at his wife and not at him directly.
159. The applicant said he there was no contact from his in-laws after October 2012. He said they did not feel safe in [Country 1] because it would be easy for his in-laws to go there.
160. He agreed they did not do so in the period of nearly a year and a half between the threats and the applicants leaving [Country 1].
161. He said they would have left earlier but it took time to make their arrangements.
162. He said that in that year and a half they did not know if they were safe.
163. He said he believes [Country 1] has a population of a little over 60 million. He agreed that it would have been possible to move to another part of [Country 1] to avoid his wife’s family but only if he stayed hidden.
164. He said even in a big city such as Rome, or a more distant place in the south he would need to remain hidden.
165. He said it would be possible to find them anywhere in [Country 1] or worldwide.
166. He said he did not know if his wife’s family had ever actively looked for him or his wife.
167. The Tribunal noted that there are suggestions that blood feuds are less common in Albania than they used to be[1]. The applicant agreed, but said they do still exist.
[1] UK Home Office: Report of a fact-finding mission Albania, blood feuds January 2023 page 24 last paragraph and page 28.
168. The applicant concluded his evidence by saying that the Albanian government does not do much to help victims of domestic violence.
Combined Statement of both applicants
169. After the hearing the Tribunal was sent a statement prepared by both the first and second applicants dated 7 March 2023.
170. The statement is in the nature of a plea to the Tribunal but does not add to the evidence or the claims already presented.
Country Information
171. The applicant has provided extensive country information to the Tribunal. Where relevant submissions have been made and the country information referred to, such information is cited in these reasons.
172. The applicant’s representative made submissions on 29 March 2014 and attached what the representative described as “Forty one pages ov various articles regarding Albanian blood feuds and the historical Kanun – most recent dated December 10 2013”.
173. The submissions did not refer to the information further nor indicate what use the Tribunal should make of that information.
174. The applicant’s representative has provided further country information with other submissions and the use made of that information is set out in these reasons.
175. The Tribunal has considered the country information in a general way where it is relevant and in particular in making a finding about the existence of blood feuds.
Submissions
176. At the conclusion of the Tribunal hearing the applicants were given a week to consider the country information referred to by the Tribunal being UK Home Office: Report of a fact-finding mission Albania, blood feuds January 2023 and comment on it.
177. The applicant’s representative made four sets of further submissions and provided extensive further country information.
178. The first submission was in an email dated 1 May 2023 and generally related to the births of the three children and the loss of [Country 1] permanent residency by the first and second applicant. The Tribunal is satisfied that the first and second applicants have lost their permanent residency in [Country 1].
179. The second submission was a further email, dated 2 May 2023 attaching various items of country information to which the applicant’s representative proposed to refer.
180. The third submission, dated 8 May 2023, refers to Honour Killings and resultant blood feuds in Albania.
181. The submissions note that those determining protection claims often ask whether blood feuds are still prevalent in Albania or whether they are spurious claims made by Albanians to support protection visa applications[2].
[2] Post Hearing Submissions Marion Le Consultancy 8 May 2023, page 2 paragraph 6.
182. The submissions note discussion of blood feuds in country information, in particular a UK Home Office report of February 2020. The Tribunal accepts that vendetta killings and honour killings have been known in Albania, particularly in the north.
183. The submissions go on to discuss the country information about blood feuds to which the Tribunal had referred in the hearing[3].
[3] UK Home Office: Report of a fact-finding mission Albania, blood feuds January 2023.
184. At page 3 the submissions refer to a statement by a Justice for Children specialist from UNICEF who suggested there has been a revival of blood feuds in the last 30 years. The Tribunal acknowledges that the witness referred to does suggest that but notes that the general proposition that blood feuds are declining is also supported in that report, for example at the pages referred to above. The Tribunal also observes that the second applicant agreed that blood feuds are declining.
185. The thrust of the submissions, and the country information to which they refer, is that blood feuds exist in Albania, particularly in the north in places such as Shkoder.
186. The Tribunal accepts that blood feuds do exist to some extent. In using the term “blood feud” the Tribunal broadly understands it to refer to one family killing a member of another family in vengeance for a perceived or actual wrong, which tends to give rise to an ongoing feud between the families.
187. If the Tribunal was not satisfied that there is any such thing as a blood feud, the applicants’ claims about the risk of becoming embroiled in one would be easily answered.
188. As the Tribunal is satisfied that blood feuds do exist, the question it must ask itself is “are the applicants involved in one or likely to be involved in one if they return to Albania?”
189. The country information provided on the topic is not generally helpful in answering that question.
190. The submissions also address the matter of the killing of a girl by her Albanian father in Adelaide in 2020. The Tribunal accepts that this happened and that the killing appears to have been precipitated by the father’s objection to his daughter’s drug use and disobedience to him.
191. The applicants seem to suggest that the fact of this killing supports the likelihood that the first applicant’s father will kill her if she returns to Albania.
192. The link is not strong and there is little detail about the killer’s motivation or background. The Tribunal is not satisfied that that crime provides a basis to draw any conclusion other than the general one that sometimes fathers kill their children in fits of rage. It does not assist the Tribunal in making its decision in this matter.
193. At page 5 under item 7 the submissions discuss domestic violence in Albania. The applicants suggest that because the first applicant’s father had been violent towards his wife it is more likely that he will kill the first applicant.
194. This submission relies on the Tribunal finding that the first applicant is at risk of being killed by her father or brother.
195. At page 6 under item 8 the submissions address “societal pressure” to which the first and second applicants had referred.
196. The submissions speculate that there would be pressure on the second applicant to avenge the killing of the first applicant if that happens.
197. At page 7 at item 9 the submissions assert that if the first applicant is killed her children will be persecuted by reason of their gender and will suffer shame in North Albania if their father does not avenge their mother. The Tribunal is not satisfied that the country information supplied supports that assertion.
198. At page 8 of the submissions, in item 10 the possibility of relocation is discussed. The discussion generally relates to relocation to avoid a blood feud.
199. The submissions suggest that the Tribunal told the first applicant that it accepts she cannot return to Albania. In fact, in the course of asking whether the applicant could be located by her family if she went to Albania, the Tribunal suggested that in fact she would be more likely to try to return to [Country 1]. She did not dispute that but said she would not feel safe there either.
200. The Tribunal has had regard to the country information provided by the applicant and accepts that violence against women is a noted problem in Albania, that blood feuds do exist to some extent in Albania (particularly in the north), and that there is relatively free travel between Albania and [Country 1].
Summary of Claims
201. The first applicant claims she faces being killed by her family (her father and brother) if she returns to Albania. The first applicant suggests that her killing would be a reflection of the prevalence of domestic violence in Albania and may be an “honour killing” and may lead to a “blood feud”.
202. The first and second applicants claimed that they had been subjected to psychological or psychosocial torture in the form of the threats.
203. The second applicant does not claim that he was directly threatened by the first applicant’s family but claims that if the threats against her are carried out he will be obliged to avenge her and be drawn into a blood feud which could result in him being killed.
204. He also claims that if he is with his wife when she is killed, he may also be killed.
205. The third applicant claims she will be persecuted in Albania because, if her parents are killed, as an orphan in Albania she will be exposed to harm at the hands of unscrupulous third parties.
Analysis and findings
206. The first applicant claims that she disobeyed her father’s order to return to her family home in Albania in September 2012.
207. The first and second applicants say and her father and her brother threatened to kill her.
208. The threats were made 3 or 4 times over the course of about a month and ceased in October 2012.
209. The threats were made over the telephone in calls between the first applicant, who was in [Country 1] and her family in Albania.
210. The applicant stopped taking calls from her family in October 2012.
211. She has not spoken to her family since then but believes her father and brother made the threats seriously and still mean to kill her. She says she believes this because she believes her father to be a man with a violent temper.
212. The first and second applicants remained in [Country 1] for about a year and a half after the threats started.
213. They say, and the Tribunal accepts, that travel between Albania and [Country 1] was relatively unrestricted in that time.
214. There is no evidence the first applicant’s family came from Albania to [Country 1] during the year and a half after the threats started.
215. There is no evidence that any attempt was made to act on the threats.
216. There is no evidence that the threats have been repeated since October 2012.
217. The Tribunal is not satisfied that any threats the first applicant’s father and brother made against her in October 2012 are now likely to be acted upon, if they ever were.
218. The Tribunal is not, therefore, satisfied that the first applicant will be killed or harmed by her family as she claims to fear.
219. Therefore, the Tribunal is not satisfied that the second applicant will be drawn into a blood feud.
220. As the Tribunal is not satisfied that the first applicant will be killed or harmed by her family if she returns to Albania, the Tribunal is not satisfied that the second applicant may be killed or injured in an attack on the first applicant.
221. The Tribunal is not satisfied the third applicant will be made an orphan and rendered vulnerable as has been claimed on her behalf.
222. There is no evidence that the first or second applicant has suffered a psychological condition by reason of the threats and the Tribunal is not satisfied that they have suffered any psychological condition.
Refugee Criterion
223. For the purposes of the definition of “refugee” in the Convention, the Tribunal is satisfied that the first applicant is outside the country of her nationality, being Albania.
224. The Tribunal must therefore consider whether she satisfies the other parts of the definition of “refugee”.
225. The first applicant asserts she has a well-founded fear of being persecuted for reasons of membership of a particular social group being “women and girls threatened with death by their families to preserve the (so-called) Honour of the family.”[4]
[4] Submissions 29 March 2014 pge 4.
226. The first applicant must satisfy the Tribunal that she actually holds such a fear and also that the fear is “well-founded” which requires assessment of whether the fist applicant’s fear is justified.
227. In considering that question the Tribunal asks itself whether there is a “real chance” that the first applicant will be persecuted in the way she fears. That suggests a substantial rather than a remote chance but need not be a chance of 50% or more and indeed may be substantially below that as long as it is real rather than remote.
228. The Tribunal accepts that being killed by her family would be “persecution” for the purposes of the definition of “refugee”.
229. The Tribunal is not satisfied that the first applicant faces relevant harm or persecution at the hands of her father and brother if she returns to Albania. If the applicant did face relevant harm in the past, the Tribunal is not satisfied that there has been a real chance of such harm since October 2012.
230. The Tribunal is not satisfied that the applicant faces a chance of the harm she fears in the reasonably foreseeable future if she returns to Albania.

231. The Tribunal is not satisfied that the first applicant’s fear of her father and brother’s persecution of her is a “well-founded fear” for the purposes of the convention.
232. The first applicant’s claims to fear harm all stem from her fear of her father and brother because of their threats to kill her.
233. Her claimed fears that she or her children may be embroiled in a blood feud or that she will be involved in domestic violence all fall away without the threats from her father and brother.
234. Because the Tribunal is not satisfied that her fears are well founded fears as contemplated by the Convention, the Tribunal is not satisfied that the applicant is a refugee.
235. Similarly, the second applicant’s fears all stem from his fear of the threats his wife’s family made against her.
236. The Tribunal is not satisfied the second applicant is a refugee.
237. There is a suggestion that the third applicant faces a real chance of harm for the purposes of the refugee criterion.
238. The Tribunal observes that the harm alleged generally stems from the same threats and the Tribunal finds that any fear of harm for that reason is not well founded.
239. The Tribunal is not satisfied that the third applicant is a refugee.
240. The Tribunal finds that the applicants do not satisfy the refugee criterion in s36(2)(a).
Complementary Protection
241. Being satisfied the applicants are not persons to whom Australia has protection obligations because they are refugees, the Tribunal now considers whether the applicants satisfy the criterion in s36(2)(aa), the “Complementary Protection” criterion.
242. That criterion is satisfied if an applicant is a person in respect of whom there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Albania, there is a real risk they will suffer significant harm.
243. In MIAC v SZQRB [2013] FCAFC 33, the full Federal Court of Australia held that the test in considering whether a non-citizen faces a “real risk” of significant harm for the purposes of s.36(2)(aa) establishes the same threshold as the “real chance” test in s.36(2)(a) in relation to a well-founded fear of persecution[5].
244. The Tribunal has found that the applicants do not face a real chance of persecution by reason of the threats from the first applicant’s father and brother.
245. “Significant Harm” is defined in s36(2A) which is attached to this decision. The definition specifies arbitrary deprivation of life, the execution of the death penalty, torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment.
246. The first and second applicant have claimed that the threats are “torturous”. The Tribunal is not satisfied that the threats are “torture” having regard to the definition of that term in s 5(1) of the Act.
247. The Tribunal is satisfied that the applicants do not face a real risk of significant harm as a necessary and foreseeable consequence being returned to Albania.
248. The Tribunal has had regard to all the evidence before it and is not satisfied there are substantial grounds for believing the applicants face a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to India.
249. The Tribunal is not satisfied that the applicants satisfy the complementary protection criterion.
[5] Paragraphs 245 and 246,
CONCLUSION

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

251. The Tribunal affirms the decision not to grant the applicants Protection visas.
Mark O'Loughlin
Member

[2023] AATA 3553

6 October 2023

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