1921490 (Refugee)

1921490 (Refugee) [2023] AATA 3206 (12 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Kristiana Ducaj (MARN: 1688519)
CASE NUMBER:  1921490
COUNTRY OF REFERENCE:                   Albania
MEMBER:Mark O'Loughlin
DATE:12 July 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 July 2023 at 3:40pm

CATCHWORDS
REFUGEE – protection visa – Albania – particular social group – targets of Albanian organised criminals – employer’s criminal activities – credibility concerns – conviction for drug trafficking in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
Chan v MIEA (1989) 169 CLR 379
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 July 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Albania, applied for the visa on 16 November 2015. The delegate refused to grant the visa on the basis that the applicant had the right to enter and reside in any of the Schengen countries, and he had not availed himself of that right. The delegate found that the applicant was not therefore owed protection by reason of the operation of S 36(3) of the Act and did not make a finding about whether the applicant meets the Refugee criteria in s 36(2)(a) or the Complementary Protection criteria in S36(2)(aa) of the Act.
The applicant was invited to appear before the Tribunal to give evidence and present arguments on 29 November 2022.
On 9 November 2022 the Tribunal received an email advising that the applicant had appointed a new representative and seeking a postponement of that hearing.
The matter was postponed to 24 January 2023.
On 19 January 2023 the Tribunal received another email from the applicant’s representatives indicating they had just been advised that the applicant had a pending criminal matter and further that they were waiting for a copy of the applicant’s interview with the Department of Home Affairs.
The representatives asked for a further postponement of the hearing to accommodate those matters. They did not indicate how long they required.
The applicant has advised the Tribunal that he has entered a plea of guilty to, and is to be sentenced for, the following offences in South Australia:
i.Trafficking in a Controlled Drug (cannabis) [in] March 2021 at [Suburb 1].
ii.Trafficking in a Large Commercial Quantity of cannabis [in] March 2021 at [Suburb 1].
iii.Possess Prescribed Equipment [in] March 2021 at [Suburb 1].
The lawyer in the criminal proceedings has provided a note saying the applicant will probably be sentenced to a term of imprisonment for his admitted role in the offences.
Given that the Tribunal hearing had already been delayed and further that it was not clear how sentencing for criminal charges in a South Australian court would bear on the application, the Tribunal decided to proceed with the hearing. On 20 January 2023 the Tribunal wrote to the representative advising that the hearing on 24 January would proceed.
The Tribunal further advised that, in addition to the issues considered by the delegate, the Tribunal would consider the question of risk or chance of harm faced by the applicant as it relates to protection obligations under S36(2)(a) and (aa), which had not been considered by the delegate[1].
[1] Delegate’s decision 10 July 2019 page 10, last 2 paragraphs on that page.
The applicant appeared before the Tribunal on 24 January and 2 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 applicant was represented in relation to the review. The representative attended the Tribunal hearings.
There was no complaint by or on behalf of the applicant that he had suffered any prejudice in the hearing by reason of not having access to the departmental interview or for any other reason.
CRITERIA FOR A PROTECTION VISA
The relevant 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 must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c) of the Act.
There are definitions of some terms in s36 and in s5 of the Act. The relevant parts of those provisions are attached.
S36(2)(b) and (c) relate only to persons claiming to be members of the same family unit as someone in respect of whom Australia has protection obligations. The applicant does not claim to be such a person and there is no evidence that he is.
The Tribunal finds that the applicant does not satisfy s36(2)(b) or (c).
Therefore, to succeed, the applicant will need to satisfy s36(2)(a), the “refugee criterion” or s36(2)(aa), the “complementary protection” criterion.
Preliminary – Identity, Nationality and Criminal Convictions
The applicant entered Australia on a false Italian passport in the name [Alias 1].
He has since provided a copy of an Albanian passport in his name. That passport expired [in] 2022.
Having regard to the Albanian passport, the Tribunal is satisfied that the applicant’s name is [the applicant].
The Tribunal is satisfied that the applicant is a citizen of Albania and was a resident of Italy when he came to Australia.
The Tribunal has had regard to documentation that suggests his entitlement to reside in Italy has now expired.
The Tribunal is satisfied that the applicant is a non-citizen in Australia.
The Tribunal will therefore consider whether Australia has protection obligations to the applicant under s. 36(2)(a) or (aa).
Mandatory considerations
In accordance with Ministerial Direction No.84 made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Claims
The applicant first set out his claims and evidence in a statement he signed on 21 May 2015 and attached to his PVA. The Tribunal summarises the statement as follows:
i.While living in Albania, the applicant worked for [Mr A] who owned a [Business 1] and a [factory].
ii.The applicant worked as a [Occupation 1] for the businesses in 1998 and 1999.
iii.His employer was also involved in illegal activity such as prostitution, money laundering and “business exhaustion”, by which the applicant appears to mean demanding “protection” money from local businesses.
iv.His employer received many death threats.
v.The applicant himself was threatened by the families of girls who had been forced into prostitution.
vi.After a year he left the job with [Mr A].
vii.The applicant was scared because criminal gangs would come to the business and cause property damage. They would also assault the applicant and injure him.
viii.He had received beatings and suffered a broken nose and broken ribs but was too scared to go to hospital, because he believed the criminal gangs would search for him if he did and kill him.
ix.The gangs had said they would kill him if he went to the police or to a hospital.
x.He left Albania in 2001 and went to Italy.
xi.He did return to Albania to visit family in 2011, 2012, 2013, and 2015.
xii.His life was threatened by [Mr B] in 2013 and he presumes [Mr B] killed [Mr A].
xiii.4 members and associates of [Mr A’s] family had been killed in the period 1998 – 1999.
xiv.[Mr A] and the applicant were Christians but some of the gangs from the villages where the girls were kidnapped were Muslim.
xv.The applicant had also been involved with the Socialist Party of Albania, and his employer had been involved in political corruption including vote buying and tax evasion. This also prompted the [Mr B] family to attack them.
xvi.[Mr B] knew about the applicant’s employer being involved in prostitution and the taking of Muslim girls from town without their parents’ permission.
xvii.Muslim men would retaliate by, for example, attacking the [factory] and [businesses] owned by [Mr A], causing those businesses to go bankrupt.
xviii.The applicant went to Italy and was granted a stay visa which had to be renewed every few months.
xix.He returned to Albania in 2012 and visited [Mr A]. It was the last time he saw [Mr A] who died in 2013.
xx.The applicant said [Mr A] told him there had been an attack on the [factory] which had been damaged and 3 people were killed.
xxi.The applicant was told that people were looking for him because he had been the caretaker of [Mr A’s] business and finances and [Mr A] had trusted him.
xxii.[Mr A] was killed in early 2013 and 30 people were arrested but there were no convictions due to a lack of evidence.The applicant knows this was the [Mr B] family and they were seeking payback for [Mr A]’s wrongdoing. He had also heard that the [Mr B] had killed other members of [Mr A]’s family.
xxiii.He returned to Italy.
xxiv.He heard from contacts in Albania that the [Mr B] family were looking for the [Occupation 1] (the applicant) and that they wanted money from him. He heard that the [Mr B] family abducted one of his friends and forced him to tell them where he had gone.
xxv.One night in 2014 (while he was living in Italy) he was awoken by a loud noise. He heard people screaming and crying and he hid in a cupboard.
xxvi.He could hear people searching and speaking Albanian and was sure they were looking for him.
xxvii.They did not find him and left after causing some damage. He was too scared to go to hospital despite having problems managing an attack related to the stress and his diabetes.
xxviii.After that obtained a fake Italian passport. He knew he had to go somewhere far away such as Australia because they would not be able to find him here.
xxix.He went back to Albania to make a last visit to his family in 2015 and stayed with them for 5 days undercover.
xxx.He claims he seeks refuge in Australia due to his fear of persecution for his religion and political involvement.
xxxi.His home country cannot protect him as no one can stop [Mr B].
xxxii.Albanian authorities could not protect the members of [Mr A]’s family and they cannot protect the applicant.
The applicant gave an interview to the Department on 12 March 2019.
That interview was generally consistent with the written statement summarised above with the following relevant differences and additions:
i.The applicant told the departmental representative he was not aware of [Mr A]’s criminal activities during the time he was working for [Mr A]. He did know [Mr A] was not paying tax.
ii.He denied that [Mr A] was involved with taking girls from villages.
iii.He did not remember having claimed that gangs came to his work and threatened him when he was in Albania. He did not believe that had happened.
iv.He was never assaulted when working for [Mr A].
v.He left the job with [Mr A] because he did not like being pressured to prepare false reports and documents.
vi.He left Albania because he wanted to distance himself from the job rather than because he feared criminals in Albania.
vii.[Mr A] may have been associated with prostitution but he was not sure.
viii.He did get indirect threats but from people within the business to force him to do things with [his work].
ix.There were tensions between Christians and Muslims in the part of Albania where he lived and worked and he believes a Muslim was involved in the murder of [Mr A].
x.He had no problems in Italy before 2014 save for a period in 2011 when he was under house arrest having been charged with trafficking in cocaine. Those charges were dropped.
xi.In July 2014 he started to get threats from Albania. He was told to watch out.
xii.He was told the [Mr B] family were looking for him.
xiii.He understood they wanted him because of a financial matter after his former boss had been killed.
xiv.He believes his old boss had closed the business in about 2005 but despite the gap in time between then and 2014 he was still worried because he had been known to have been in charge of parts of the business. The Tribunal observes that that had not been since about 2000.
xv.He was also worried that it had been made known that in 2013 he had said the murders that year related to financial competition.
xvi.He believes the people who came looking for him in Italy in 2014 were the same people, the [Mr B] family and their associates.
xvii.His reason for thinking they were the same people was because there were no other issues in his life that would provoke a break in like that.
xviii.He believed that even though he had not been associated with [Mr A] for 14 years it was possible that some issues had been revived after [Mr A]’s murder in 2013.
xix.He left Italy and went to [Country 1] about 2 months after the break in.
xx.If he returns to Albania he will be harmed by the [Mr B] family.
xxi.The Albanian police will not protect him because they would be involved.
xxii.There are no other reasons he fears returning to Albania.
Evidence before the Tribunal
The applicant appeared before the Tribunal to give evidence on 24 January 2023.
At that hearing he said he was not aware of the contents of the statement of 21 May 2015 that is summarised above.
The applicant said his previous representative prepared it and she did not speak Albanian so communication between them was hampered.
After a break in the hearing the applicant’s new representative said she had taken instructions on the contents of the statement of 21 May 2015. She advised that the statement was all the words of the previous representatives with some alterations.
On direct enquiry from the Tribunal the applicant said he would prefer to work through his claims in oral evidence rather than rely on the statement of 21 May 2015.
The Tribunal observed that some of the matters he had referred to in the oral evidence he had already given was similar to the statement and it seemed that the previous agent had had at least some insight into the applicant’s story.
The Tribunal elected to proceed with the applicant’s evidence to extract the claims from him orally.
The applicant’s evidence took longer than had been anticipated and the matter had to be adjourned to 2 April 2023 to be concluded.
At the resumed hearing the applicant indicated that the only change he wanted to make to the 21 May 2015 statement was that he had not worked with one of the four persons named as having been killed by the [Mr B] family. The amendment does not appear to be material.
The applicant’s relevant testimony is summarised;
i.He was born and raised in Shkoder in Northern Albania but studied in Tirana for about 4 years before returning to Shkoder.
ii.He found work at the end of 1997 with a company that made [specified product]. His work was [Occupation 1].
iii.One of the owners, [Mr A], also had a [Business 1] and hotel. The applicant [worked] for [Mr A]’s businesses.
iv.The applicant effectively managed the [Business 1] so that took most of his time even though it was a smaller business than the [factory].
v.The co-owners of the [factory] were a mix of Albanian and Italian people.
vi.The applicant was not comfortable in the work environment. The people at the [Business 1] had criminal records and often carried guns.
vii.The applicant said most of those people are no longer alive. The Tribunal asked him how he knows that. He said [Mr A] is not alive. He also said [Mr A]’s cousins were killed when the applicant was still in Albania in about 2000.
viii.He said the work environment was hostile and sometimes the hostility was directed at him, though usually at the [Business 1] staff.
ix.He said [Mr A] was engaged in a range of activities, both legal and illegal.
x.He said he had only been physically attacked once but that the people in the [Business 1] were always dissatisfied with him and criticised him.
xi.He continued working at the [Business 1] for 6 months then did [work] for the [factory] where he helped another [Occupation 1].
xii.The applicant was not sure of the exact time he worked for [Mr A] but thought that it was from about 1998 until he left Albania in 2000. He said he remembers seeing in the new year in Italy in 2001 so he had left by the end of 2000.
xiii.The applicant said even after he changed to doing [work] at the [factory] he generally worked from the [Business 1] and only went to the factory a couple of times a month.
xiv.He said many of the people at the [factory] were the same as the people at the [Business 1] and the environment was not much better.
xv.He said there were threats from people close to [Mr A]. He does not know what their relationship with [Mr A] was.
xvi.He does not know if they were criminals.
xvii.He stopped working for [Mr A] in about September or October 1999. He then said he stopped that work 2 or 3 months before he left Albania (which would have been September or October 2000).
xviii.He left because he was worried because people were being killed quite often. He believed the deaths were generally shootings by what he called “organised people”.
xix.He said there were few police and that the ones there were were under the influence of the criminals.
xx.He also believes there was some prostitution.
xxi.He said he understands that it is a bit the same today but that 20 years ago it was much worse.
xxii.He said [Mr A] also demanded protection money from local businesses.
xxiii.The applicant believed that it would not be enough to leave [Mr A]’s employment because he was known to be familiar with the business. He believed he had to leave Albania as well.
xxiv.He said he is a Christian and that [Mr A] professed to be a Christian as well.
xxv.He denied that there was any problem with Muslim families or with Muslim girls being forced into prostitution. He denied having made that statement although the Tribunal notes that it clearly appears in the PVA claims which the applicant had just adopted.
xxvi.He said there were religious problems in Albania but that his problems were about money not religion.
xxvii.He said he first went to Italy on a 3 month tourist visa with a 3 month extension.
xxviii.There were other Albanians in Florence where he went. He lived with his brother and did a range of unskilled jobs there.
xxix.By about 2011 he had a job as a babysitter with an Albanian family. He said the parents were working and needed someone to care for their child.
xxx.He said he had an apartment on the floor below the family. He generally shared the apartment with his sister or brother.
xxxi.He did not have any other jobs when he worked for the family.
xxxii.The applicant said he does not want to return to Albania because he understands there are still problems there with criminal gangs jostling for control of the city.
xxxiii.He said [Mr A] was killed in about 2013. He believes it was the “organised people” who killed him.
xxxiv.He explained that essentially means [Mr B] and his father [Mr C].
xxxv.The applicant said the [Mr B] family were Muslims but repeated that the problem was not a religious one.
xxxvi.The Tribunal observed that although the applicant claimed to be scared of returning to live in Albania, he had made several visits. He said he could go back for visits as long as he was discreet.
xxxvii.The Tribunal asked the applicant why he used a false passport to come to Australia. He said it was because he had been told it was the fastest way to leave and that he wanted to get away quickly because he was frightened after the attack on his apartment.
xxxviii.The Tribunal noted that on his application form (at page 19) when he came to Australia he had criminal charges pending against him in Italy for drug trafficking and “third party associate”.
xxxix.He said he had been found not guilty of those charges and the case had been closed for 2 years at the time of the Tribunal hearing.
xl.At the second hearing on 2 April 2023 the applicant said he believes his life would be in danger in Albania.
xli.He said [Mr B] is a powerful criminal and is one of the people who killed [Mr A].
xlii.He said the [Mr B] family are important members of a criminal group.
xliii.He said he had not met any of them personally, but he had received threats on his third visit to Albania in 2013.
xliv.When asked about the threats the applicant said everyone in those businesses knows the [Mr B] and [Mr A] families.
xlv.The Tribunal again asked him to describe the threats. He said the families were enemies and that they had this business.
xlvi.The Tribunal again asked the applicant about the threats. He said he had been told to pay attention because the people who killed [Mr A] might kill him too.
xlvii.The Tribunal asked who had told him this. He replied common people, people who knew him and had worked with [Mr B]’s father.
xlviii.He said they were not really threats but a friendly warning. They did not come from the [Mr B] family.
xlix.The Tribunal put to the applicant that it was not therefore correct to say he had had death threats. The applicant said they were not direct threats but advice from acquaintances that he should be careful.
l.The applicant said he had stopped working for [Mr A] in about 2000 and spent about 6 months in Albania before he moved to Italy. He said mostly his time in Italy was peaceful but in 2013 the threats started.
li.He said at that time the conflict between [Mr A] and [Mr B] was at its height, and he believes [Mr B] was interested in him because he had been familiar with [Mr A]’s business about 12 years earlier (in about 2000).
lii.He said they later came to his apartment in Italy and broke his door down,
liii.At that time, he did not know who they were because they had their faces covered and he did not see them anyway because they did not stay long.
liv.He said they were frightened off by the security alarm.
lv.He said he believes it was the [Mr B] gang because they were the only people who were interested in him. He had no other problems in Italy.
lvi.He said it was not just an ordinary break in, as burglars would have waited until he was not at home.
lvii.He repeated that he had never been in any other sort of trouble in Italy.
lviii.The Tribunal observed that he had been charged with drug trafficking in Italy.
lix.He agreed but said he was not involved in that crime.
lx.The Tribunal noted that but asked whether the fact that he was charged with the crime might have been enough to associate him with it in the minds of others.
lxi.The applicant said he didn’t think so because he had no reason to have been involved and he was not worried about that.
lxii.The Tribunal asked whether he knew why the police had charged him. He said he understands it was because one of the people involved had visited him briefly one Sunday.
lxiii.The Tribunal put to him that if he had been suspected by the police that may have been enough to give rise to suspicions amongst criminals. In that case they may have been broken into his home in search of drugs or money.
lxiv.The applicant dismissed that as speculation because he had not been involved in the drug trafficking.
lxv.The Tribunal advised that it was considering reasons people may have broken into his home in Italy and noted that his association with [Mr A] had been well over a decade earlier, making that an unlikely motivation for them.
lxvi.The applicant reasoned that the people involved in the drug trafficking would not have sent anyone because they knew he was not involved.
lxvii.He said the intruders had said “Quick, let’s see where he is” in Albanian. He said Albanian criminal groups were active in Italy after the removal of visa requirements in about 2011.
lxviii.The Tribunal accepts there is an active Albanian criminal presence outside Albania including in Italy and Australia.
lxix.The applicant therefore believes that the intruders were Albanian.
lxx.He said he avoided them by hiding in a closet.
lxxi.After the invasion he was very concerned about his safety. He said another person employed by [Mr A] in Albania was killed at about the same time.
lxxii.He said the break in was in about March 2014 and he came to Australia in February 2015, about 9 or 10 months later.
lxxiii.He did not go to the Italian police because he was too scared and did not believe they would help anyway as they were not supportive of the Albanian community.
lxxiv.He claimed that despite his fear about being sought by Albanian criminals he returned to Albania for a few days to see his father.
lxxv.The Tribunal observed that the statement of 21 May 2015 suggests that the applicant has a well-founded fear of persecution by reason of his religion and political involvement.
lxxvi.The applicant denied that either of these founds his fear of persecution. He said the reason he can’t return to Albania is his fear of the [Mr B] family. He believes they think he knows where some money is.
lxxvii.He believes this because he cannot think of another reason they would be after him.
lxxviii.The Tribunal asked the applicant why he came to Australia on false documents. He said he felt threatened and it was the quickest way to leave Italy.
lxxix.The Tribunal noted that he remained in Italy for about 9 months after the attack.
lxxx.The applicant then said it was no more than 5 or 6 months. The Tribunal noted he had given evidence that the break in had been in Spring and asked whether he wanted to change that.
lxxxi.He said the break in may have been in Summer, but that he did not stay in Italy for more than 5 or 6 months.
lxxxii.The Tribunal asked him how much time he saved by acquiring false documents to come to Australia. He said he had heard from people that it might have taken a year or two without the false documents.
lxxxiii.He said he was not sure but that is what he had heard.
lxxxiv.The Tribunal asked about the charges in Australia to which he had pleaded guilty.
lxxxv.The applicant said there are some others who have also been accused.
lxxxvi.He said that one of the co-accused is Albanian.
lxxxvii.He could not say whether the crime was committed as part of the activity of a criminal gang, but he said that a dangerous person is involved.
lxxxviii.The Tribunal asked the applicant whether he could see why his involvement in this crime may throw doubt on his claim to have come to Australia to avoid Albanian criminals. The applicant said it is the Tribunal’s right to hold such doubts.
lxxxix.He said he accepts he had made a mistake but wants an opportunity and has co-operated with the authorities.
xc.He said he does not believe the Albanian criminal he was involved with here is associated with the [Mr B] family, although they may know each other.
xci.The Tribunal put to the applicant that the most important questions to be decided were whether he was threatened in Albania or in Italy as he says and whether he could return to Italy or Albania and stay there safely or whether he would be at risk from Albanian criminals.
xcii.The applicant said he had nothing to add to the evidence he had given.
xciii.He was advised that any further information he presented before the Tribunal makes its decision would be considered.

Between the first and second hearings the applicant’s representative sent the Tribunal further information about the applicant’s residency status in Italy, the proposed introduction of the European Travel Information and Authorisation System (ETIAS) and some country information about Albanian criminal groups[2].
S36(a) - REFUGEE CRITERION
[2] Albanian Criminal Groups, Springer Science + Business Media, New York 19 October 2015, excerpt from Zhilla and Lamallari Open Society Foundation for Albania, Tirana 2015, prepared by Klaus von Lampe.
Relevant Law
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. This is called the “refugee criterion”.
S5H(1)(a) defines “refugee” as a person who has a nationality and is outside the country of their nationality and who, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country.
The Tribunal is satisfied that the applicant is of Albanian nationality. Further, the Tribunal is satisfied that the applicant is outside Albania.
The Tribunal must therefore consider whether the applicant has a well-founded fear of persecution in Albania, which is the next part of the definition of “refugee” at 5H(1)(a).
S5J defines “well-founded fear of persecution”. S5J(1)(a)(b) and (c) establish prerequisites that must be satisfied to come within the definition. They provide respectively that the applicant will come within the definition if:
i.The applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (“refugee reasons”).
ii.There is a real chance the applicant would be persecuted for one or more of those reasons, and
iii.The real chance of persecution relates to all areas of Albania.
Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
Claims – not made or not pursued
In the statement of 21 May 2015 attached to the PVA, the applicant includes claims that he fears persecution due to his religion and his political involvement.
In his evidence to the Tribunal, he said he does not remember having made that statement. Further, he asserted that he does not fear persecution on those grounds.
On the basis of that testimony, the Tribunal finds that the applicant does not claim to fear relevant persecution or harm due to his religion or political involvement.
In that statement the applicant also claimed to fear persecution or harm due to threats from the families of girls taken away for prostitution by his employer, [Mr A] and that it was these threats that prompted him to leave the job with [Mr A].
In his evidence to the Tribunal, he denied that this was the case.
On the basis of his testimony the Tribunal finds that the applicant does not claim to fear relevant persecution or harm from the families of girls taken for prostitution.
Summary of Claims Maintained
The applicant says he got a job working for an Albanian, [Mr A], in about 1999. The Tribunal accepts this. He says [Mr A] was involved in a mix of legal and illegal activities. The Tribunal accepts this.
He claims that, although he was not directly involved in [Mr A]’s criminal enterprises, he did work as [Occupation 1]. The Tribunal accepts this claim.
He claims that Albanian criminals (probably the [Mr B] family) wrongly believe that he knows where [Mr A] has hidden money and they believe he can lead them to it. The Tribunal does not accept that the applicant is a target of Albanian criminals for this or any other reason.
He claims that he left [Mr A]’s employment and later, in about 2000, moved to Italy. The Tribunal accepts this.
He claims that visited Albania several times after he moved to Italy but that he did not return to Albania to live. The Tribunal accepts this claim.
He says that he lived in Italy until March 2015 when he came to Australia. The Tribunal accepts this.
He says that towards the end of the time in Italy he received threats from organised crime members or the [Mr B] family in Albania. The Tribunal does not accept this.
He claims that during the Italian spring or summer of 2014, Albanian criminals broke into his home in Florence, looking for him to locate [Mr A]’s money. The Tribunal is not satisfied that any such break in was committed by members of an Albanian organised crime gang or that the intruders were interested in [Mr A]’s money.
He claims that he faces persecution at the hands of Albanian organised crime if he returns to Albania, particularly from associates of the [Mr B] family. The Tribunal does not accept that he fears Albanian organised crime in general or the [Mr B] family in particular.
Assessment of the Applicant’s Credibility and Findings
The Tribunal finds the applicant’s oral testimony and his written evidence were not consistent in important areas.
The Tribunal is not satisfied that it was fear of the activities of Albanian criminals that drove him to leave Albania as he claimed.
His statement, which he adopted, said he was attacked and injured several times while working for [Mr A]. His oral testimony was that he was punched once or possibly twice in that time.
The applicant’s oral testimony to the Tribunal was that he left the job with [Mr A] because he felt uncomfortable.
The Tribunal prefers the applicant’s oral testimony in this regard.
He said he spent further time in Albania after he resigned. His evidence as to how long he spent in Albania varied. He said in his oral evidence that he resigned in 1998 and went to Italy in about December 2000, meaning he stayed in Albania for a year or two. He then gave estimates of 12 months and 9 months before insisting he only stayed in Albania for 5 or 6 months after he resigned.
The applicant appeared to be adjusting his evidence to support his claim that he believed he was in danger in Albania and was trying to leave urgently.
The Tribunal is not satisfied the applicant believed he was under any threat in Albania after he resigned and is not satisfied he was motivated to leave Albania because of any threats or feeling that he was in danger.
The Tribunal has regard to the applicant’s evidence that he had ongoing informal contact with [Mr A] while he was in Italy.
The Tribunal observes that he visited Albania several times in the period between 2011 and coming to Australia.
The Tribunal is not satisfied by the applicant’s evidence there were threats made against him by Albanian criminals while he was living in Italy. When tested the applicant said that no threats came from the criminals themselves, but he got “friendly advice” from acquaintances to the effect that he should be careful.
The Tribunal is not satisfied that the applicant believed there to be any ongoing threat from Albanian criminals in the time he lived in Italy.
The Tribunal notes the applicant’s evidence that he has not been involved with the business of [Mr A] since the year 2000, over 2 decades ago.
The Tribunal has regard to country information provided by the applicant[3] and is satisfied that Albanian criminals were active in Italy in 2014.
[3] Ibid
If the applicant was attacked by an Albanian gang in Italy in 2014 the Tribunal is not satisfied that the attack was because of his perceived links with Albanian organised crime 14 or 15 years earlier.
The Tribunal finds the applicant’s evidence that the [Mr B] family believe he would still know where [Mr A]’s money is hidden after this time is speculative and unconvincing.
The Tribunal observes that the alleged attack in Italy was an isolated incident. There had been no other such incidents in the 15 years the applicant was in Italy.
Although the applicant characterises the attack as an “organised” attack this is not consistent with his evidence that the attackers set off an alarm, fled as soon as that happened and did not return despite the applicant remaining in Italy for some time.
Further, the Tribunal is satisfied that there are other cogent explanations for the one-off incident, such as that the applicant was, at or around that time, suspected of involvement in drug trafficking.
Further, the Tribunal is not satisfied that the applicant’s behaviour since he came to Australia is consistent with a fear of Albanian criminals. In particular the Tribunal has regard to his conviction for drug trafficking with, amongst others, an Albanian criminal (who the applicant cannot exclude as being known to the [Mr B] family).
Consideration
The applicant’s claims arise from his stated fear of persecution at the hands of an Albanian organised crime family, the [Mr B] family, and their associates.
The applicant does not claim to fear persecution for reasons of race, religion, nationality, or political opinion. Therefore, for him to come within S5J(1)(a), the Tribunal must be satisfied that he fears being persecuted for the reason of his membership of a particular social group.
The Tribunal is satisfied that “targets of Albanian organised criminals” might be a relevant particular social group of which the applicant claims to be a member.
The applicant’s evidence was that he worked for about two years for [Mr A]. He said [Mr A] was involved in crime but the applicant was not. He does not claim to have been threatened by [Mr A]. The Tribunal accepts this evidence.
The applicant said he became uncomfortable because of his employer’s criminal activities and the work environment which became threatening.
He claimed to have been physically assaulted by others. The Tribunal is not satisfied that this was an ongoing source of fear to the applicant, or that it prompted him to leave Albania.
The Tribunal must decide whether the applicant claims to fear “persecution” come with the definition of a “well-founded fear of persecution’ in s 5J of the Act. If they do not the applicant does not meet the definition of “refugee” in s 5H and is not, therefore, a person to whom Australia has protection obligations as contemplated by s 36(2)(a).
The term is not defined in the Act, but s5J(4) provides some guidance.
Further, the meaning of “persecution” in the Refugee Convention has been judicially considered.
The Tribunal has regard to the decision of Justice McHugh in Applicant A v Minister for Immigration and Ethic Affairs:
“Persecution for a Convention reason may take an infinite variety of forms from death or torture to the deprivation of opportunities to compete on equal terms with other members of the relevant society. Whether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct. It depends on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group.”[4]
[4] Applicant A v MIEA (1997) 190 CLR 225 at 258
In Chan v MIEA, McHugh J said:
“The notion of persecution involves selective harassment…”
The Tribunal is not satisfied that the applicant left Albania under threat from Albanian organised crime.
The Tribunal is not satisfied that the break in the applicant describes as occurring at his flat in Italy about 14 years after he left Albania is linked to the [Mr B] family or to any other Albanian organised criminals.
The Tribunal has found that the reasons the applicant gives for believing the [Mr B] family were a risk to him in 2014 are speculative and not sustained on the evidence.
The Tribunal is not satisfied that the applicant faces a real chance of persecution by Albanian organised criminals, in particular the [Mr B] family, as he claims.

100. The Tribunal is not satisfied that the applicant meets S5J(1)(b) and he does not, therefore, meet the definition of “refugee” .
Conclusion re Refugee Criterion
101. The applicant does not meet the definition of “refugee” in 5H(1) and does not come within S36(2)(a).
S36(aa) - COMPLEMENTARY PROTECTION CRITERION

Although the applicant has been found not to meet the refugee criterion in s 36(2)(a), he may nevertheless be entitled to the grant of the visa if he meets s 36(2)(aa) (‘the complementary protection criterion’).

103. To meet S36(2)(aa) of the Act the applicant must be a person to whom Australia has protection obligations because, as a necessary and foreseeable consequence of him being removed to Albania there is a real risk that he will suffer significant harm.
104. The Act provides a definition of “significant harm” at s36(2A) and some exclusions at (2B).
105. S36(2A) provides as follows:
(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)    the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)    the non‑citizen will be subjected to degrading treatment or punishment.

106. S5(1) defines “cruel or inhuman treatment or punishment” as follows:
Cruel or inhuman treatment or punishment means an act or omission by which:
(a)   severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)   that is not inconsistent with Article 7 or the Covenant; or
(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

107. S5(1) defines “degrading treatment or punishment as follows:
Degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

108. The applicant has claimed that he will suffer relevant significant harm as a necessary and foreseeable consequence of being removed to Albania.
109. The only harm he claims he will suffer is at the hands of Albanian criminals, specifically the [Mr B] family.
110. The Tribunal has considered the risk of him suffering such harm in considering the refugee criterion and has found that the applicant’s claims are not sustained.
111. For the same reasons the Tribunal is not satisfied that the applicant meets S36(2)(aa).
Conclusions
112. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
The Tribunal has found that the applicant does not satisfy 36(2)(b) or (c) because he is not a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.

115. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
116. The Tribunal affirms the decision not to grant the applicant a protection visa.
Mark O’Loughlin
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 3206

12 July 2023

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