2008507 (Refugee)

2008507 (Refugee) [2023] AATA 3319 (25 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Catherine Follett
CASE NUMBER:  2008507
COUNTRY OF REFERENCE:                   Albania
MEMBER:Mark O'Loughlin
DATE:25 July 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 July 2023 at 12:23pm

CATCHWORDS
REFUGEE – protection visa – Albania – political opinion – grandfather imprisoned and family persecuted for anti-government statements and interned – as election observer for opposition party, applicant reported irregularities by government party to EU observers – threatened by intelligence services – kidnapped, beaten and tortured – arrived on false passport issued by third country – genuine passport provided later – inconsistent claims and evidence – no evidence of ongoing persecution of family – brief, informal complaint to EU observers and no evidence of effect on vote counting – country information – no information that people making complaints were threatened or harmed – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36(2)(a), (aa), 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

On 13 May 2020, under s 65 of the Migration Act 1958 (Cth) (the Act), a delegate of the Minister for Home Affairs decided to refuse to grant the applicant a protection visa. The applicant has applied to the Tribunal for review of that decision.
The applicant applied for the visa on 11 July 2016. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant has been mistreated or harmed by Albanian authorities because of his political beliefs or that he faces mistreatment or harm if he returns to Albania.
The applicant, having been invited to do so pursuant to the Act, appeared before the Tribunal on 18 January and 16 February 2023 to give evidence and present arguments.
The applicant was represented for the purposes of this application and his representative attended the hearing.
The Tribunal was assisted by an interpreter in the Albanian language.
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 must satisfy s36(2)(a), the “refugee criterion” or s36(2)(aa), the “complementary protection” criterion.
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.
BACKGROUND AND IDENTITY
The applicant came to Australia using false [Country 1] documents in the name [Alias].
He arrived in Australia [in] April 2016 and made his way to Adelaide as had been agreed with the supplier of his false [Country 1] passport. He claims that in Adelaide he returned the [Country 1] passport to the forger’s representative. He says the false documents cost 10,000 euros.
The Tribunal has had regard to various identity documents provided by the applicant, including an Albanian passport in his name.
The Tribunal is satisfied that the applicant’s name is [the applicant], that he was born on [Date] in [Village 1] in northern Albania, that he is a citizen of Albania, and that the [Country 1] passport he used to enter Australia was false.
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 in an attachment to his visa application. The attachment is dated 8 July 2016, the same date as his protection visa application. He amended the statement in 2020.
The applicant says he left Albania because his life was at risk. He says the risk came from people in power in Albania.
He says his family had been persecuted by the communist government since his grandfather had been imprisoned for 10 years for speaking against a confiscation of land by the government.
He says the rest of his family were interned and his father was not allowed to go to university.
He says in 2013 he was involved with the Socialist Party for Integration (“LSI”) and the campaign of their local representative, [Mr A].
The applicant was disappointed by the party’s performance after the successful campaign and complained to [Mr A]. He was threatened by [Mr A]’s brother who beat him and threatened him with prison, “like his grandfather”.
He then decided to become a member of the Legality Party (“PLL”), which he says promotes Kingdom in Albania. It was in coalition with the Democratic Party (“PD”), who appointed the applicant as observer for the local elections in June 2015 in [City].
He says that on election day he observed many irregularities on the part of the LSI party, which he reported to the EU member of the observation team.
The next day he got a threatening telephone call from intelligence services who said he would end up in prison or dead for making the report to the EU representative.
He was scared and asked friends from the PD and the PLL what he should do but they said they could not help.
He stayed at home for a month but continued to get threatening calls and texts. This is inconsistent with the applicant’s later evidence which was the telephone and text threats all occurred on one day.
[In] November 2015 (after he had been back at work for about 4 months) he was kidnapped on his way home from work. He was taken by intelligence services to an abandoned warehouse where he was beaten and tortured. He was accused of having worked against the government when he reported the irregularities on election day.
He claims that the threats included a statement that he had caused the speaker’s wife to lose and the government to lose millions of euros in funding.
He said that after two days he was taken home in the black van and told to leave Albania and Europe and not to return, or he will be killed.
He says that while he had been in captivity his father had been warned not to report him missing.
He says he was covered in red marks from the beatings and a local doctor came and treated his wounds.
He says he spoke to family in [Country 2] and [Country 1] about getting out of Albania. He went to [Country 2] in December 2015 but could not find a way out, so he returned to Albania. In January 2016 a cousin in [Country 1] contacted him to say he could help.
He says he seeks political asylum in Australia because his life is at risk by the Albanian government and its agencies. He cannot relocate to any other part of Albania because he has been warned by the current regime to leave the country.
He claims to have suffered tremendous trauma, and psychological and physical torture by government agents.
Submissions 4 February 2020
The applicant’s representative made submissions dated 4 February 2020. Importantly at paragraphs 11 and 12 it is clear the applicant fears persecution by the Albanian Government related to his reporting of election irregularities in the local elections of June 2015.
It is central to the applicant’s claims to be a refugee or to be owed complementary protection that he was threatened by political opponents during and after the 2015 elections and that he was kidnapped by persons representing the Albanian authorities [in] November 2015.
The applicant further asserts that his reporting of these vote counting irregularities had a clear influence on the outcome of the 2015 local elections.
Departmental Interview
The applicant was interviewed by a departmental delegate on 17 March 2020.
The interview was generally consistent with the claims made in the PVA, with some additional information.
The applicant said that he had cost the LSI about two thousand votes when he changed allegiances to the PLL. He said the loss of those votes caused a reduction in EU funding, which the LSI had been used to misappropriating.
He believed the LSI and the PSS were worried that he would continue to be influential if he stayed in Europe and that he may become a troublesome opponent.
He said that his complaint to the EU Observer was informal, and made orally while the delegation was moving along a corridor, but that they did say they would go and observe with him.
The applicant did not know how many complaints the EU observers got on the day. He did not speak to the EU observers again.
He did not complain to the electoral commission because he had already been threatened and was too scared.
He said that he stayed home for a month but that was not a problem from his employer’s point of view because he had already taken eight weeks off work.
When asked generally whether he had anything to add to the claims he had made in his written statement he said he did not and that his claims arise from his involvement in the elections.
Submissions 17 April 2020
The applicant’s representative made submissions dated 17 April 2020 after the interview with the Department.
Those submissions refer to the applicant’s concern that Albanian authorities will see him as a threat “…if his overall role in the 2015 elections is similar to many other observers and candidates.”[1]
[1] Global Migration and Education Solutions submissions 17 April 2020 paragraph 4.
The submissions suggest at paragraph 6 that the examples given in various items of country information show how the Albanian Government and their agents threaten or harm those who act contrary to their interests.
As a general matter the Tribunal is satisfied that there are examples of such behaviour. A relevant consideration is whether the Tribunal is satisfied that the applicant has or is likely to draw the government’s attention in this way.
Statutory Declaration 11 January 2023
The applicant provided a further statement in the form of a statutory declaration dated 11 January 2023.
The declaration provides some background information about Albania, including details of a system of registration of addresses of residents.
The declaration also provides further detail of the applicant’s alleged kidnapping [in] November 2015, and the annexure “PP2” provides detail of the area from which he claims to have been kidnapped.
The applicant says he believes there were 5 or 6 men involved in his kidnapping and that they used slang that made them sound like members of special forces of some kind. He says he had the impression that they had kidnapped people before.
He says he was held for 3 nights and 2 days. For that whole time he was tied to a chair and at one stage he was whipped, leaving scars. Annexure “PP3” shows those scars.
The applicant says his brother in law’s brother married a politician’s niece. That politician was called [Mr B] and his brother was murdered, though no one was charged. The politician himself was arrested in 2018 and prosecuted though the charges were not proven. His assets were valued at 40 million Euros.
The applicant says this story shows why all of Albania is unsafe for him. The Tribunal is not satisfied that it does.
The statement also refers to evidence of political corruption in Albania and annexure “PP4” is a selection of news reports about violence and murders associated with politics, elections, and football in Albania.
The first article in PP 4 is dated 1 April 2021 and reports that charges against [Mr B] apparently relating to some sort of criminal offence were withdrawn. It does not suggest vulnerability on the part of Albanian people in general.
The second article is a headline from 2017 that says [Mr B]’s brother was killed. It does not say why and does not obviously support any of the applicant’s claims.
The third article is dated 22 April 2021 and does say that a politician was killed in a clash between supporters of rival parties in the leadup to an election. The Tribunal has considered the article and, although it does show that there had been a violent political clash, the Tribunal is not satisfied that it demonstrates or suggests the applicant would be at risk if he returned to Albania.
The fourth article is dated Monday 19 April 2021 and relates to the shooting of a person in the electoral office of the Democratic Party in an Albanian city. The article describes the attacker’s motives as “weak” but does not say what they are. The Tribunal is not satisfied the article is relevant to the applicant’s claims.
The fifth and sixth articles, both dated 24 January 2022, relate to apparent tensions between some football administrators and the mayor of Tirana. The Tribunal is not satisfied it is relevant to the applicant’s claims.
The seventh article also relates to tensions between the Tirana Football Association and the mayor and seeks to associate an explosion at the home of the Albanian Football Association president to those tensions. No one was hurt. The article does not appear to be relevant to this application.
The eighth article is dated 6 December 2022. It says that the leader of the Democratic Party was punched in an anti-government protest. The Tribunal is not satisfied that the matter is relevant to the application.
The ninth article is dated 24 January 2022 and relates to the tensions between the Mayor of Tirana and the Albanian Football Federation. The Tribunal is not satisfied that it is relevant to this application.
At paragraph 39 of the statutory declaration the applicant asks the Tribunal to accept that the articles show that Albanian people are very vulnerable to being attacked and especially being murdered due to political differences. The Tribunal is not satisfied that the articles do establish those propositions. Having said that, the Tribunal is satisfied that there is sometimes an element of violence associated with politics in Albania.
Evidence before the Tribunal-18 January 2023
The applicant gave evidence on 18 January 2023 which continued on 16 February 2023. An interpreter was available, and the Tribunal is satisfied that the applicant was able to communicate with the Tribunal clearly.
The applicant said he is satisfied that his statement of 8 July 2016 is accurate. Although his English was not very good at that time, his first representative who prepared the statement spoke Albanian.
The applicant has had two further agents who have prepared submissions on his behalf.
He gave evidence he had considered the submissions made on his behalf by his agent on 4 February 2020 and is satisfied that they are accurate.
He confirmed that he was [Age] years old and had lived in Albania all his life. He had studied [Subjects] then started work for a company that [produced a product].
He started working in January 2015, having graduated in October 2014.
He said he first became involved with politics in 2013 and repeated that he first worked with the LSI through [Mr A]. He worked on a campaign for an election in June 2013. He would explain the program to people and encourage them to vote for the party.
The applicant said the authorities in Albania blamed him for the loss of an election and that he knows for a fact that if he returns, he will be killed. He said that the same leaders have been in power for 30 years.
He said that after the election the party formed a local government in [City] in September, but they appointed people with criminal records and people who did not have proper qualifications.
He said he went to [Mr A], who was by then the mayor, but after being placated initially he arranged a further meeting at which he was threatened by [Mr A] and his brother [Mr C].
He told them that he had brought many votes to the party through his friends and family, but they told him to shut up.
Ultimately he argued with [Mr C] who hit him and threatened to put him in gaol “like his grandfather”.
At the end of 2014, disillusioned with socialism, he joined the PLL, the Party of the Legality Movement.
The PLL made him a candidate for the 2015 council elections, and he believes he got about 1000 votes or more. He could not say how he concluded that he had brought that many votes to the party other than that he believes he had support.
In any event, neither he nor the PLL candidate who was ahead of him on the ballot was successful.
The applicant told the Tribunal that as well as being a candidate he was appointed an observer for the elections. He said he was appointed by the Democratic Party of Albania, the PD, which was a major party and with which the PLL and other parties were in coalition.
The Tribunal has regard to a translation of a list from the Democratic Party of Albania dated 24 June 2015 that shows the party requested that the applicant be appointed an observer.
He said there were other official observers present in each room of the vote counting facility. He said there were also unofficial supporters of the various parties who were present but were behind cordons because they were not official observers.
The applicant said he observed that votes that had been cast in favour of his party were being counted in favour of the LSI and the PS. He claimed that votes that had been cast for mayor were also counted in favour of the wrong candidate.
He said when he saw that he complained to the counters, but that one of the other observers told him to be quiet and that the counters knew what they were doing.
He did not believe that the other PD observer with him made any complaint about the counting. He believes that observer did see the irregularity but did not assert himself. He complained, but not forcefully enough.
There was no evidence that the applicant’s complaints had any effect on the vote counting.
The Tribunal asked whether there was a procedure for making a formal complaint, given that he was an official observer.
The applicant said there was, but he did not make a formal complaint. He said there was no point because the complaints go to the government, and they never work.
The applicant said that he instead went outside the room into the hallway where he saw a delegation of four European Union observers, who he approached. He said he told them what was happening and told them which room he had been in.
He said they told him to go back and keep observing and that they would come and investigate.
He said he went back and stayed for a few more hours, until about 9.00 or 10.00 pm.
He did not see or speak to the EU observers again and assumes they left without following up what he had told them.
He said while he stayed in the counting room he continued to complain about the irregularities.
He said the observer who had told him to be quiet did not remonstrate with him again, nor did anyone else. He is not even sure if the other observer stayed in the room.
He said the counting probably went for three or four days but he did not return after the first day because he was too scared. The Tribunal observes that if the applicant’s complaints did have any effect, that would have been restricted to the first day of counting.

100. He said the day after he had observed the count, he got a telephone call saying he had done the wrong thing by reporting to the EU observers. He believes the call was from the Intelligence service and was intended as a threat.
101. The applicant said the counting went for another two or three days, but he did not return because he was scared.
102. The applicant said he did not follow the results of the election, so he does not know whether his complaint had any impact on the vote counting.
Submissions 15 February 2023
103. Between the first and second hearings the applicant’s representative made further submissions and provided documents relating to the Albanian elections of 2015, 2017, 2019, and 2021.
104. They also provided information about data leaks from and cyber attacks on computer systems operated by the Albanian government. The Tribunal is not satisfied that this information is relevant to the application.
105. The Tribunal’s attention was directed to reports from the Office for Democratic Institutions and Human Rights relating to the local elections of June 2015 and 2019 and the parliamentary elections of June 2017 and April 2021.
106. The submissions state that the reports “…state quite clearly that individuals either do not have the right to lodge complaints, or when they can, there is inconsistency and irregularity in their treatment when complaints are lodged.”
107. The applicant was an official observer for one of the major parties, not an “individual” as contemplated by that submission.
108. The Tribunal observes that the reports relating to the elections of 2017, 2019 and 2021 are not apparently relevant to the application.
109. In respect of the report relating to the relevant election of June 2015, the submissions refer to items at pages 2, 19 – 25, and 27 of the report.
110. The Tribunal notes that in the penultimate paragraph of page 2 of the report, as part of the executive summary, it is observed that there was no effective electoral dispute resolution process in the election and that the way complaints were dealt with often left stakeholders without effective redress.
111. The report goes on to say, “Although political parties raised numerous allegations of campaign violations, few complaints were filed in this regard.”
112. The Tribunal accepts that the complaints process was not seen as effective and was not much supported. There is no suggestion in the report that complaints (either formal or informal) gave rise to repercussions such as those described by the applicant.
113. In particular, there is no suggestion in the report that complaints had any impact on the way votes were counted or that persons making complaints were threatened or harmed.
114. The submissions also suggest that references to intimidation of voters at the election support the applicant’s claims[2]. The Tribunal does not accept that submission. The applicant does not claim to have been threatened when voting. To the extent that the report suggests a generally flawed election process, it does not relate to the applicant’s claims and does not appear to support the application.
[2] Submissions 15 February page 2
Resumed Hearing 16 February 2023
115. At the resumed hearing the applicant was asked to describe the telephone call he received the day after he had attended to count votes.
116. He said the caller identified himself as being from the Secret Service and said his protest had been wrong and he would finish either dead or in prison because of it.
117. He said he got other threats by telephone call and text. He said the party which had been in power had lost the mayoral contest and the threats seemed to suggest that they blamed him for that.
118. He said he got a second call later the same day and a couple of texts later that afternoon.
119. He said they blamed him because of the complaints and because he had moved from LSI and taken votes with him.
120. He said he did not make any complaint about the threats because the party could not protect him, and the government would not because it was the government that had made the threats in the first place.
121. The applicant said the next contact he had with the intelligence service was when he was kidnapped about 5 months later, [in] November 2015.
122. He had not been politically active in the time since the election because there were no elections or other political activity.
123. He said he had been scared by the threats anyway and had not thought about further involvement with the party.
124. The applicant could not identify anything that may have precipitated his kidnapping [in] November 2015.
125. He said about 4 weeks after the election he had returned to work as [Occupation] at the [company] where he had been since January 2015. He said he worked 7 days a week, usually from 8.00 to 5.00 but sometimes longer. He said the hours were long, but the pay was good, so it was worth it.
126. He said that he was walking to the bus stop which was about 10 minutes away. As he went under a bridge a van drove up and a hood was put over his head. He was put into the back of the van.
127. He said the van had come towards him around a curve. He saw it but not for long enough to avoid it. 2 people grabbed him, and he believes there were others in the van, though he could not say how many.
128. It was in the evening after work, not daylight but not yet night either.
129. The van drove for 15 or 20 minutes to an abandoned warehouse. The applicant said he is not sure of the exact location, but it must have been the other side of [City] because he did not hear dogs which he would expect to have if there had been neighbours.
130. He was taken out of the van and tied to a chair where he was left for the night. He could hear his kidnappers talking but they did not speak to him. They did not discuss any specific matters, nor did they discuss him.
131. The next day they started hitting him and saying things like “we lost the election because of you” and “we lost a lot of money from the EU because of you.”
132. He could not see anything because they did not remove the hood.
133. He believes he must have been in an abandoned warehouse because there was no other noise and there were no neighbours dogs.
134. They said they had come in the name of the LSI and of [Ms D] (who had been the losing mayoral candidate). The applicant said he could tell that the kidnappers were from a government agency because they had deep voices.
135. He said before they started talking, they had beaten him. They had used their fists to hit him in the face through the hood.
136. He said he was bound to the chair with what felt like flat rope or straps and that his arms were bound to the arms of the chair. The chair did not move so it may have been set in concrete.
137. He was not sure how long the beating lasted. He said he was not concentrating on that because he assumed he was to be killed.
138. He said the beating stopped and they seemed to leave but returned later and repeated the beating and the threats related to the loss of the election.
139. He said they referred to him having been told not to go against them and by this he believes they meant the beating he got in 2013 and his complaint about the election in 2014.
140. The applicant said he did not tell the kidnappers that he had withdrawn a little from politics. He said the threats related to what had already happened and there did not seem to be much point in talking about the future.
141. He said that in any event there was no point in talking to the kidnappers. He said they don’t want to hear from you. They want to either communicate their own message or kill you and there is nothing you can do.
142. He said the beating stopped eventually but restarted later when he was taken out of the chair. He said he was kicked and whipped with a strong, hard rope.
143. He said he had been wearing a wind jacket, not a thick one. In the statutory declaration of 1 January 2023, he said he had been wearing a “long puffer jacket” that came to about the top of his thighs[3].
[3] Applicant’s statutory declaration 11 January 2023 at par. 23.
144. He sustained lacerations to his face from the beating. He indicated some scars on his [Body part 1].
145. He said he had also been whipped a few times while on his knees. Then he was put in the van and driven to outside his house. He said the kidnappers said something along the lines of “this is your last chance, you have to leave Albania and Europe and never come back.”
146. He said they removed the hood just before they dropped him off but that he did not see them.
147. His father had been warned they were coming and was very worried. He did not want to take the applicant to a hospital because of the connection with the government so he took him to a small local medical centre.
148. He said he was treated for facial injuries, scars, and bleeding. The doctor treated the bleeding and gave him first aid.
149. He agreed that the attendance at the medical centre was about 40 or 45 minutes after he had been whipped by his kidnappers.
150. He said that the whipping was enough to leave [scars] on his [Body part 2].
151. He said he does not know whether the wounds from the whipping were still bleeding at the time he went to the clinic. He said he did not have the wounds on his [Body part 2] tended to because he was not worried about them.
152. The Tribunal put to the applicant that if he had been whipped so recently and the whipping was hard enough to leave scars even through a jacket, it seems odd that he would not have sought treatment for those wounds at the same time he sought treatment for his facial wounds.
153. The applicant replied he had not been worried about the injuries from the whipping. The Tribunal finds his explanation for not seeking treatment for the whipping injuries is unconvincing. The Tribunal is not satisfied that the applicant was whipped as he says.
154. The Tribunal observed that the 5-month break between the election and the kidnapping is a long time to leave things without making any contact. The applicant replied that that is just the way they do things in Albania.
155. He said they told him they would kill him if he didn’t leave Albania and Europe. He said he believes he will be killed if he returns.
156. The Tribunal asked why they didn’t kill him when they had him in their control. The applicant said he does not know.
157. He said no more threats were made and as far as he knows they have not threatened his family since.
158. The applicant told the Tribunal he did not return to work and in December 2015 he went to see his sister in [Country 2] to find a way to leave Albania. His brother-in-law arranged false [Country 1] documents and he eventually made his way to Australia arriving in mid-April 2016.
159. The applicant said it was not open to him to stay in [Country 1] using the false documents because the kidnappers had told him to leave Europe. He was worried that they would be able to find him in [Country 1] because of their criminal convictions.
160. When asked if he believes there are any Albanian criminals in Australia, he said he does not believe there are criminal groups of any sort in Australia.
161. He said he would not feel safe in Europe or in Albania because they would believe he has returned to engage in politics, and they will get him.
Further Submissions and Country Information 3 March 2023
162. On 3 March 2023 the applicant’s representative provided support for evidence the applicant had given about the use of violence against Albanian citizens particularly in relation to elections.
163. The Tribunal has considered the various items of information referred to in those submissions.
164. The Tribunal is satisfied that there are instances of threats of violence used to influence votes in Albanian elections.
165. The Tribunal is further satisfied that criminal organisations have been active in the Albanian electoral process.
166. The Tribunal is satisfied that the applicant can demonstrate that there has been vote buying, violence and the intermingling of politicians and the criminal element in Albania.
FINDINGS
167. The Tribunal has had regard to the evidence and to the various documents referred to and is satisfied:
a)That the applicant was a member of the PLL from [Date][4].
b)That in June 2015 the applicant was an official observer for local election [Number] on behalf of the PD – the Democratic Party of Albania[5].
c)That the applicant’s grandfather had his property confiscated for refusing to enter the agricultural cooperative in [Year][6].
d)That [in] November 2015 the applicant was diagnosed with “VLC frontal region sinust” and treated at the medical centre, [Village 3][7].
e)That corruption has been a reported feature of Albanian politics and in particular that Albanian authorities have been known to use threats against political opponents[8].
f)That Albanian authorities have attempted to secure a favourable outcome in elections by placing improper pressure on voters[9].
g)That the applicant was employed as [Occupation] with [Employer] from [January] until [November] 2015[10].
h)That the applicant was at work on [Date] November 2015, despite it being a Sunday.
i)That the applicant’s father was admitted to hospital [in] February 2014 with a heart condition[11].
j)That the applicant has several [scars] across his [Body part 2][12]
[4] Legality Movement Party Membership booklet and translation.
[5] Certified translation Democratic Party of Albania, request the replacement of observer [Mr E] wth [the applicant] dated [June] 2015.
[6] Certified translation of certification by Mayor of [Village 2] dated 15 July 2016.
[7] Certified translation of “unrefundable prescription” dated [November] 2015.
[8] Various items of country information supplied by the applicant with submissions of 14 February 2020.
[9] Submissions 4 Feb 2020 paragraphs 35 and following.
[10] Certified translation, “Certification”, [F]15.11.2016.
[11] Certified translation, “Case History Discharge” [Hospital], Tirana.
[12] Annexure “PP3” to the applicant’s statutory declaration of 11 January 2023.

168. The Tribunal has regard to the applicant’s evidence that;
a)on the day he was acting as observer during the vote counting, he made an oral complaint about perceived irregularities with the count.
b)was remonstrated with once by an observer from the other major party.
c)He continued to complain about perceived irregularities but was not remonstrated with again.
d)He complained to EU observers who said they would join him to observe the irregularities of which he complained.
e)The EU observers did not do as they said they would.
f)He does not know whether his complaints had any effect on the outcome of the vote.
g)He did not attend the following days of the vote count.

169. The Tribunal is not satisfied that the applicant’s complaints on the day of the election had any impact on the outcome of the election.
170. The Tribunal is not satisfied that the applicant’s complaints on the day of the election were raised beyond an informal level or that they drew the attention of the government.
171. The Tribunal has regard to the applicant’s evidence that;
a)He was called and sent text messages the day after he attended the vote count and was told his actions had cost the PS votes and money.
b)The caller or callers claimed to be from the Albanian intelligence services.
c)Their threats on that day did not suggest he should leave Albania and Europe.
d)The telephone threats occurred over the course of about one day.
e)There were no further messages for about five months.

172. The Tribunal is not satisfied that the applicant did receive such calls and text messages as he claims. The Tribunal is not satisfied that the applicant’s complaints had any discernible effect on the election and is not satisfied that the applicant was made the target of any threat by the Albanian intelligence services.
173. The Tribunal finds it implausible that the threats to the applicant would have lasted one day then stopped for five months as the applicant says they did. The applicant’s response that “That is just the way they do things over there” was unconvincing.
174. With regard to the applicant’s claim that he was kidnapped [in] November 2015 and held for 2 days, the Tribunal has regard to;
a)The applicant’s evidence that there was no event such as an upcoming election that may have precipitated a kidnapping.
b)That there was no apparent reason why the Albanian intelligence services would have waited for five months after the election before kidnapping him.
c)The applicant’s evidence that he had not been politically active in the intervening five months.
d)The applicant’s evidence that, as part of the beating he suffered, he was whipped with a round, hard rope so vigorously that his [Body part 2] was lacerated through his jacket but that he did not seek medical treatment for these injuries despite attending a clinic within 45 minutes of the whipping.
e)The evidence demonstrating that the applicant did have facial injuries [in] November 2015[13].
f)The applicant’s evidence that it was not for five months after the election that the Albanian intelligence service first directed him to leave the country and Europe, despite them having contacted and threatened him at the time of the election.
g)The finding already made that the applicant’s complaints did not bear on the outcome of the election.
[13] Translated document “unrefundable prescription” dated 18/11/2015 provided by the applicant.

175. On balance, the Tribunal is not satisfied that the applicant was kidnapped by the Albanian intelligence service and beaten and whipped as he claims.
176. The Tribunal is not satisfied that the applicant was told by his kidnappers to leave Albania and Europe under threat of further harm or death as he claims.
177. The Tribunal is not satisfied that the applicant faces being harmed or killed by the Albanian intelligence service or anyone else if he returns to Albania.
178. The Tribunal is not satisfied that the applicant has suffered tremendous trauma and psychological and physical torture by government agents as he claims.
179. The Tribunal notes that although the applicant’s grandfather was persecuted by the communist government which fell in 1992, there is no evidence of ongoing persecution of the applicant’s family and the Tribunal is not satisfied that there was relevant persecution of the applicant’s family at the time of the applicant leaving Albania.
S36(a) - REFUGEE CRITERION
180. 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”.
181. 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.
182. The Tribunal has had regard to the applicant’s identity documents and is satisfied that the applicant is of Albanian nationality. Further, the Tribunal is satisfied that the applicant is outside Albania.
183. 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).
184. 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:

a)The applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (“refugee reasons”).
b)There is a real chance the applicant would be persecuted for one or more of those reasons, and
c)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.

186. Broadly, the applicant’s claims arise from his fear of the Albanian authorities due to his political activities particularly in relation to the Local Government Elections of 2015.
187. For the purposes of considering the claim, and without making a finding, the Tribunal is prepared to accept that for the applicant may satisfy s5J(1)(a) because he fears persecution as a member of a particular social group, which might be “people suspected by the Albanian authorities of having attempted to expose improper vote-counting”.
188. The Tribunal therefore proceeds to consider the next prerequisite for a “well-founded fear of persecution” which is the requirement in s5J(1)(b) that, if the applicant returns to Albania, there is a real chance he would be persecuted for one or more of the refugee reasons.
189. The Tribunal will first consider what is meant by “persecution”.
190. The term is not defined in the Act, but s5J(4)(b) specifies that persecution must involve serious harm to the person and s5J(4)(c) specifies that persecution must involve systematic and discriminatory conduct.
191. Further, the meaning of “persecution” in the Refugee Convention has been judicially considered.
192. 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.”[14]
[14] Applicant A v MIEA (1997) 190 CLR 225 at 258

193. In Chan v MIEA, McHugh J said:
“The notion of persecution involves selective harassment…”

194. The applicant said in his evidence that he was kidnapped (he believes by the Albanian secret service), detained with a bag over his head, beaten and abused and accused of having caused them the loss of the mayoral election and compromised the result of the council election.
195. The applicant says that his captors explicitly stated that his complaints to the EU observers had caused these problems.
196. The Tribunal is not satisfied that the applicant made any complaint to EU observers at the 2015 elections. If he did, even on his own evidence they did not apparently act on his complaint.
197. The Tribunal is not satisfied that the applicant was kidnapped in November 2015.
198. The Tribunal is not satisfied that the applicant was beaten, whipped, or threatened as he claims.
199. The applicant also said he believes that by moving from the PS to the PLL, he cost the PS more than 1000 votes. This is no more than speculation by the applicant who also gave evidence that he did not follow the results of the election.
200. The Tribunal is not satisfied that the applicant’s change of political party or his candidacy for the PLL made a discernible difference to the election results.
201. The Tribunal is not satisfied that the applicant faces a real chance of relevant persecution in Albania by reason of his political opinions or because of his actions during the 2015 elections.
202. Therefore, the Tribunal is not satisfied that the applicant has a “well-founded fear of persecution” in Albania as contemplated by s5J(1)(b) of the Act.
Conclusion re Refugee Criterion
203. 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’).

205. 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.
206. The Act provides a definition of “significant harm” at s36(2A) and some exclusions at (2B).
207. 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.

208. The applicant’s evidence suggests he fears harm of the types described in parts (a), (c), (d) and (e) of S36(2A). The applicant does not come within s36(2A) (b) as there is no suggestion or evidence that the death penalty will be carried out on him.
209. The Tribunal is not satisfied that the applicant has been threatened or harmed in the past as he claims. The Tribunal is not satisfied that his actions in the past have brought him to the attention of the Albanian authorities, the Albanian secret service, or any other persons who would inflict relevant harm on the applicant.
210. Therefore the Tribunal is not satisfied the applicant faces a real risk of harm of any of the types described in S36(2A) (a), (c), (d) or (e).
Conclusion re Complementary Protection Criterion
211. The Tribunal is not satisfied that, as a necessary and foreseeable consequence of being removed to Albania, the applicant faces a real risk that he will suffer significant harm.
212. The applicant does not come within S36(2)(aa).
Conclusions
213. 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) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.

216. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
217. 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 3319

25 July 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction