2008629 (Refugee)

2008629 (Refugee) [2023] AATA 4437 (9 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Anthony Robinson
CASE NUMBER:  2008629
COUNTRY OF REFERENCE:                   Albania
MEMBER:Mark O'Loughlin
DATE:9 October 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 09 October 2023 at 12:29pm

CATCHWORDS
REFUGEE – protection visa – Albania – fear of harm from neighbour after father’s land/house dispute – neighbour’s gang and political connections, and inaction by police – offer to sell land and threats and assault by neighbour’s son while living in third country – residency in third country ceased – mental health and treatment – availability and standards of treatment and societal attitudes in home country – country information – credibility – delay in applying for protection – possibility of yielding land as family not using it – mental health will improve when land dispute settled – member of family unit – second applicant partner citizen of third country – late claim in own right – mental health – submissions by representative do not address claim – unfavourable inference drawn – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (3), 36(2), (2A), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33
MIBP V WZAPN; WZARV V MIBP (2015) 254 CLR 610

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 May 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first applicant is [the first applicant], who claims to be a citizen of Albania. The second applicant is [the second applicant] who claims to be a citizen of Italy and a member of the family unit of [the first applicant]. They applied for protection visas on 7 June 2016.
The second applicant did not make claims on her own behalf in her application.
The delegate refused to grant the visas because he did not accept the truth of several of the first applicant’s claims. The Delegate was not satisfied that the first applicant-
·Owns land in Albania or has his name on any title deed suggesting that he owns land in Albania.
·Was threatened or assaulted by the son of [Mr A] at his home in Italy.
·Has been involved in a land dispute between his family and another family in Albania.
·Is involved in a blood feud.
The applicants appeared before the Tribunal on 11 January 2023 to give evidence and present arguments. The Tribunal also received oral evidence from a psychologist, [Mr. B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Italian and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
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 to persons claiming to be members of the same family unit as someone in respect of whom Australia has protection obligations. Each applicant has sought to raise claims on their own behalf and each claims to be a member of the same family unit as the other.
To succeed on the basis of their own claims, an applicant will need to satisfy s36(2)(a), the “refugee criterion” or s36(2)(aa), the “complementary protection” criterion.
Relevant Law
S36(a) - REFUGEE CRITERION
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 has had regard to the evidence about nationality the first applicant provided to the department and is satisfied that he is of Abanian nationality. Further, the Tribunal is satisfied that the first applicant is outside Albania.
The Tribunal is satisfied that the second applicant is of Italian nationality and is outside Italy.
The Tribunal must therefore consider whether the first applicant has a well-founded fear of persecution in Albania and the second applicant has a well-founded fear of persecution in Italy 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 an applicant will come within the definition if:
·The applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (“convention reasons”).
·There is a real chance the applicant would be persecuted for one or more of those reasons, and
·The real chance of persecution of each applicant relates to all areas of that applicant’s country of nationality.
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.
S36(2)(aa) COMPLEMENTARY PROTECTION CRITERION
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).
The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84 made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs 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.
The Tribunal has regard to the statements of the applicants and of other witnesses and is satisfied that the first and second applicant are in a relevant defacto relationship and are members of the same family unit for the purposes of this application.
The applicants’ claims and the evidence in support were presented in several forms.
In these reasons reference to “the applicant” means “the first applicant” except where context suggests otherwise.
Protection Visa Application – “PVA”
In the PVA lodged on 7 June 2016, the applicant says in answer to question 88 that he seeks protection in Australia so that he does not have to return to Albania and Italy.
In his answer to question 89 he says he left Albania with his family to go to Italy many years ago because they had a problem with their neighbour, [Mr A].
[Mr A] would not allow the applicant’s father to build a house on the applicant’s family’s land. His father said that the dispute over the land had been going since the applicant’s grandfather was alive and there had been a lot of fights between the families because of it.
His father said it was very dangerous for the family to live in Albania because [Mr A] has a big family with political connections and state protection.
In 2014, when the applicant and his family were living in Italy, one of [Mr A]’s sons came to him to get him to sign a paper to transfer from the applicant to the [A] family.
The applicant suggested discussing the matter with his father who offered to sell the land to the [A] family.
[Mr A]’s son got angry. He pointed a gun at the applicant’s father and at the applicant and threatened them.
He said either the applicant and his father give them the land for free or they would kill them as they now know where the applicant and his father are.
The applicant was very scared and asked his father what they should do.
His father told him to go to Albania and speak to the police. The police told him he should settle the problem with [Mr A].
The applicant returned to Italy and told his partner [the second applicant] that his life is in danger, and he should leave Italy and Europe and go far away to Australia.
In answer to question 89 the applicant says he believes that if he returns to Albania he may get in conflict with the [A] family again.
He says he may be hurt or even killed.
He says if he returns to Italy, he would still be afraid because [Mr A]’s son was able to find where he lived before.
He is afraid because the land in Albania has been in their family for generations and they have title deeds to prove that.
[Mr A] does not have any legal paperwork. He speaks the language of force and gun and has state protection. They have been to the police a few times but the police tell them to solve the problems themselves.
Once when his father started the foundations for a house on the land in Albania, [Mr A] came to them with a Kalashnikov weapon and threatened to kill him. The applicant’s father was scared and decided not to build the house as he would not have been able to use it in the face of this threat.
The applicant says his life is at risk in both Albania and Italy and he feels bad because now his partner, the second applicant, is also at risk.
In answer to question 91 about the harm the applicant experienced, he repeats his statement about [Mr A]’s son finding him in Italy, threatening him and his father with a gun, and punching him.
He says that [Mr A]’s son was scared off by some chance visitors who he thought may have been police, but he said he would return until they gave him their land for free.
The applicant says he was scared to make a statement to the Italian police because if [Mr A]’s son is caught and imprisoned by Italian authorities, that might give rise to a vendetta against his family.
He says that he decided the best thing to do was to go far away, to Australia.
He says he did not seek asylum immediately because he did not want to use the system, so he applied for a student visa. He says that he was ill advised by a migration agent and in the end had no other choice but to apply for a protection visa.
In answer to question 92 about seeking help from the authorities, the applicant says he did approach the Albanian police and asked them to speak to [Mr A]’s family calmly and to ask them to leave them in peace. He says the Albanian police are corrupt.
He also says [Mr A]’s family is large and he is well connected within the government, but the applicant’s family is not.
In answer to question 93 about whether he tried to relocate, the applicant says he moved from Albania to Italy but was found anyway. He says that Albanians can travel freely in Europe so [Mr A]’s family can find him anywhere in the continent.
In answer to question 94 the applicant says he believes he will be hurt or killed by [Mr A]’s son or his relatives. He says they have no logic, and they are insane. He says they are pressuring them to give up their land for free.
In answer to question 95 the applicant says he could not get protection from the Albanian authorities because the police in Albania refused to help and told them to sort the problems out for themselves.
He did not want to risk the repercussions of reporting the [A] family in Italy because of the chance of the vendetta getting worse than it already is.
In answer to question 96 about the possibility of relocating within Albania, the applicant repeated that the family of [A] can find him anywhere. He says they can travel without a visa, and they are a big family with relatives almost all over Europe.
He says that his partner, [the second applicant], has become a victim of this because she has lost her sense of security.
Agent’s Submissions 20 March 2020
One of the applicant’s former agents provided submissions under cover of an email dated 20 March 2020 and addressed to the Department.
The submissions were evidently made in anticipation of a departmental interview.
In the opening paragraph the submissions say
“The overarching point that would be made is that [the first applicant] faces immense political repression in his home country of Albania and has a significant threat of arbitrary deprivation of life, rendering him and his family eligible for protection by the Australian government, both as a refugee and under the complementary protection scheme.”
The submissions say the applicant had to leave Albania and moved to Italy in 1999 because of a land dispute.
The submissions say the land dispute was started by an Albanian neighbour, [Mr A].
The submissions say that the dispute has long historical roots and that the applicant’s grandfather had been threatened by [Mr A]’s family.
They say that [Mr A]’s family is extremely powerful and well connected and that this emboldened [Mr. A] to threaten the applicant’s father with a Kalashnikov and prompting the applicant’s family to move to Italy.
The submissions say that [Mr A] and his family did not stop threatening the applicant even after he had moved to Italy.
They say in 2014 [Mr A]’s son found the applicant in Italy and tried to force the applicant and his father to transfer the land in Albania to [Mr A]’s family without payment.
They say [Mr A]’s son threw a gun at the applicant and his father and said that, as he knew where they lived in Italy, he would kill them if the land was not handed over.
At that point the applicant’s father instructed him to go to Albania and talk to the police but they did not help.
The submissions assert that the Albanian police did not help because [Mr A]’s family are influential and powerful.
They assert that the applicant could have gone to the police (presumably referring to the Italian police) but decided not to in order to reduce the chance of a prolonged, violent dispute.
Further, they say Europe is interconnected and people travel freely without visas and the applicant is vulnerable in Europe.
The submissions also say that about 3 years earlier the applicant’s father had told him by telephone that he had engaged the elder of the village, [Mr C], to talk to [Mr A] to solve the land dispute peacefully, but [Mr A] had refused.
He had also said that [Mr A] had blocked the driveway of their house in the village and used offensive language towards their grandmother to whom he had also communicated threats against the applicant’s family including the threat to kill all the family and get rid of them once and for all.
The submissions say that the applicant belongs to a village in Shkoder in northern Albania, a place that is “distinctively defined” by its conflicts over land. Small disputes are said to lead to blood wars between families and that the applicant is subject to “Kanun” which the applicant describes as a system of customary laws that stipulate death on even the slightest of issues.
The submissions assert that the applicant could stay home forever or die if he does not submit to the demands of [Mr A].
They also say that [Mr A] is a hooligan and gangster with the backing of local and national political elites.
The submissions state that the real chance of persecution relates to all areas of the country and beyond and that the applicant has moved to various places, including Italy, but has been unable to avoid harm.
The submissions say the applicant and his family have been continuously mentally tortured and he is owed protection under the complementary protection provisions.
Departmental Interview and Subsequent Email
On 24 March 2020 the applicant was interviewed by a representative of the Department of Home Affairs.
That interview was apparently conducted by video with the applicant’s former migration agent present. The interview was conducted through an interpreter in the Italian language.
The applicant said that his father had moved to Italy when he was sponsored to go there for work.
He said his father worked there for about 4 or 5 years before he called for his family. The applicant was about [Age] years old when he moved to Italy with his family to join his father.
He said that his parents still live in Italy, in [Location] in [Province], which is in the north of the country.
He said that he lived in Italy with his family and that when he was about [age range] years old he applied for residency for himself.
At the time of the interview he said he had not been advised that his residency in Italy had been cancelled so he assumed it was still current.
The applicant said that before his family had left Albania they had worked on their farm which essentially provided them with food rather than much income.
He said that they farmed their land but that they lived with is Grandmother, who still lives in Albania.
He said that the land outside the village, where the farm was, was owned by his father and himself. He said he could provide a copy of the title that showed that.
He said that the land was on the outskirts of [Village], He could not say how long his family had owned it. He thought perhaps from his grandfather’s time.
His father decided to build a house on that land in about 2007 or 2009. The applicant believed that his father had wanted to build on the land as an investment for the future of the children.
He did not intend to live in it although it gave him that option if he wanted to later on.
The applicant was not sure when his father had last visited the land but thought it was about a year before the applicant had come to Australia. The Tribunal notes that the applicant came to Australia in August 2014 so his father’s last visit to the land in Albania would presumably have been in mid 2013.
The applicant said his family had previously cultivated the land without a problem and that there was no issue with their ownership of it until they put down foundations for the new house.
He said that he came to Australia because he was scared of [Mr A], whose son had come to Italy to get him to sign the papers and punched him and hit him with a gun.
He said that [Mr A] and his family lived 3 or 4 houses away from his grandmother’s house (in Albania) and that [Mr A] also had rural land but that it was not near the applicant’s family farm.
The applicant said [Mr A]’s son found him in Italy by asking around.
He said he did not go to the Italian police because that may have made it worse, and they would just have said it was something for “you Albanians” to work out.
He said that the assault was in the beginning of 2014, some months before he left Italy.
He said that his response was modified by a system called Kanun which meant that the police should not be involved in disputes between families.

Against this, he also said he had complained about the [A] family to the Albanian police who said they would help but who did not do anything.
He said there was no point in going to local politicians because of the [A] family’s influence.

100. The applicant told the interviewer that he could not return to Albania because he would go back to death. He said he fears he will be killed by [Mr A]’s son.
101. He said that he cannot relocate in Albania because if he can be found in Italy he can be found in Albania.
102. At the conclusion of the hearing the interviewer put two matters to the applicant and said he could respond in the interview or, if he preferred, in writing.
103. The first matter was the delay of 2 years between arriving in Australia and seeking a protection visa. The interviewer noted that the applicant had applied for a student visa before he applied for a protection visa and that that suggests he was not fleeing persecution.
104. The second matter was that the applicant has effective protection in Italy and could (at that time) relocate there.
105. These observations were later supported by an email from the department to the applicant’s representative which was sent on the afternoon of the 24 March 2020.
106. That email explained what evidence the delegate was seeking and invited further evidence on some other relevant matters.
107. The Tribunal has had regard to information supplied by the applicant including from an Italian lawyer, and is satisfied that the applicant does not have permanent residency in Italy any more. That is likely to have expired about a year after he came to Australia.
108. The applicant was asked to provide evidence in support of his testimony that he is in a de- facto relationship with the second applicant.
109. The Tribunal has had regard to a range of evidence including witness statements in this regard and is satisfied that the applicants are in a long-term de facto relationship.
110. The applicant was asked to provide evidence explaining why he lived in Australia for about 2 years, waiting for an application for a student visa to be dealt with before he applied for a protection visa.
111. The applicant was also invited to provide evidence in support of his claim that he was beaten by the son of [Mr A] in early 2014 and whether there were any other relevant assaults.
112. The applicant’s representative responded by email on 30 March 2020.
113. In relation to the delay before the applicant applied for a protection visa, he submitted that when he arrived in Australia, he believed that the land dispute would settle down. He says he was advised by a previous migration agent to apply for a student visa but chose to see if the situation settled down first.
114. The submissions say that the applicant’s father told him that the situation was getting worse so the applicant lodged his PVA. The submissions also state that 3 years earlier, after the applicant had lodged his PVA, [Mr A] had threatened his grandmother.
115. In relation to the threat in Italy by [Mr A]’s son, the submissions that he was outside his house in Italy on a weekend morning and was approached by [Mr A’s son] who asked him to sign a letter transferring the land to him.
116. The applicant refused. [Mr A’s son] punched him and asked again.
117. The applicant refused again. [Mr A’s son] showed the gun and hit the applicant with the butt. He pointed the gun at the people in the house to make them be quiet. He then asked the applicant to sign the paper for a third time.
118. A family friend then came, and [Mr A’s son] left but before he did so he said he would come back and kill the applicant.
119. No one in the applicant’s family tried to stop [Mr A’s son] because they were scared when they saw the gun.
120. There have been no more threats in Italy but there have been threats made to the applicant’s grandmother (who lives in Albania).
121. The submissions go on to say that it is not safe for the applicant and the second applicant to return to either Albania or Italy because they do not believe they are safely outside the influence of organised crime in either country.
122. Finally, the submissions state that the only way to resolve the land dispute is through bloodshed which can lead to a blood feud in that part of Albania.
123. The Tribunal notes that at the time of the decision on 15 May 2020 the delegate had also been provided with various further documents including items of country information about the Albanian elections, blood feuds, tensions between Iran and Albania, corruption in Albania and a call for Albania to address corruption within its borders.
124. The applicant also provided letters of support and psychological reports that had been obtained as part of an effort to change conditions on the applicants’ bridging visas.
Submissions to the Tribunal Provided on 4 January 2023
125. The applicant changed representatives in early 2022, after the application for this review had been made.
126. The new representative sent further submissions to the Tribunal under cover of an email of 4 January 2023. The submissions themselves were undated.
127. The submissions state that the applicant wishes to press his previous grounds concerning [Mr A].
128. The submissions set out the applicant’s claims. The Tribunal summarises these submissions as follow:
·The applicant left Albania together with his family, many years ago, and went to Italy because of problems with his neighbour, [Mr A], who did not allow the applicant’s father to build a house on his land despite his father having the title deeds to prove his ownership. The applicant and his family originally came from the village of [Village], Shkoder County, in northern Albania.
·This was an ongoing land dispute since at least his grandfather’s generation which has resulted in a lot of fights between the two families.
·The applicant’s father thought it was too dangerous to live in Albania because the [A] family was a big family with political connections and state protection.
·Whilst he was living in Italy with his family, one of the [A] sons located the applicant in Italy in 2014 and told him to sign a document which would allow transfer of his family’s land in Albania to the [A] family.
·Following a discussion with the applicant’s father, who offered to sell the land to the [A] family, the [A] son became angry and threatened the applicant and his father with a gun, demanding that they hand over the land to his family for free, or be killed.
·The applicant returned to Albania and reported this threat to the police in Albania; however he was told to settle the problem himself with the [A] family.
·The applicant returned to Italy after not receiving any assistance from the Albanian police. After discussing matters further with his de facto partner, as his life was in danger, he decided he should leave Italy and Europe and go far away to Australia.
·He believes that if he returns to Albania, he might be hurt or killed by the [A] family.
·He is afraid that if he returns to Italy the [A] family will again demand their land.
·The [A] family, and in particular, [Mr A], have previously threatened to kill the applicant’s father when he attempted to build on this land. When the applicant’s father was engaged in building the foundations for a new house, [Mr A] came with a Kalashnikov weapon and threatened to kill the applicant’s father if he continued with the building. The applicant’s father was scared and obeyed, stating to the applicant that there was no point building a house where he and his family members might get killed.
·Whether he goes to Albania or Italy he believes his life will be in danger, and his partner [the second applicant] is also in danger by association with him.
·He was ill advised by his former migration agent to apply for a student visa, and he had no choice in the end but to apply for a protection visa.
·He did seek help from the Albanian police however the police are corrupt and as the [A] family is well-connected with politics and has family members working in the government, the family’s interests will be protected.
·When the [A] son found the applicant in Italy he threatened him with a gun. He also assaulted the applicant by punching him with his fists. The applicant did not report the assault or threats to the police in Italy as he feared the [A] family would take revenge on him if the son was arrested and charged in Italy. The applicant feared that that would be sufficient grounds for the [A] family to commence a vendetta against the applicant and his family.
·The Italian police also will not protect him as the Italian government usually does not care about problems amongst Albanians.
·He would not be able to relocate as he has already moved from Albania to Italy and the [A] family had found him. Albanian citizens can travel in Europe without a visa and the [A] family has members all over Europe, so they would be able to find him anywhere in Europe.
·He cannot live his life in fear and his partner [the second applicant] has also become a victim of this and is now afraid to be alone.
·The submissions say the primary applicant faces immense political repression in Albania as well as a significant threat of arbitrary deprivation of life. The applicant has not provided or given evidence about political repression and the Tribunal does not accept that submission.
·The applicant departed Albania in 1999 with his family in order to live in Italy (that is, at the age of [Age]), because of a land dispute that threatened him and his family that was commenced by the neighbour, [Mr A], who wanted to seize the land. The dispute in respect of this land is historical; the applicant’s grandfather was also threatened by the [A] family.
·The applicant’s circumstances and those of his family members are especially dangerous because the [A] family is extremely powerful, has political connections, and enjoys state protection. This has emboldened [Mr A] to take any measures he wishes to enforce his intentions.
·The applicant returned to Albania in 2014 in order to speak to the Albanian police after he and his father were threatened at gunpoint by the son of [Mr A] in Italy, and the applicant was physically assaulted by the man.
·About three years ago, after the applicant came to Australia, the applicant’s father enlisted the help of the [Village] elder to speak to [Mr A] on behalf of [the applicant’s] family, in order to resolve the land dispute. [Mr A] refused to resolve the dispute peacefully. At about the same time [Mr A] blocked the driveway to [the applicant’s] family home in the village of [Village] and offended the applicant’s grandmother, who still lives in [Village], with offensive language. [Mr A] also made threats to the applicant’s grandmother that he would kill all of the applicant’s family to get rid of them once and for all. The applicant’s migration agent argues that the applicant is a member of a particular social group, which he appears to define as the particular social group of Albanian citizens from northern Albania who are subject to customary Kanun ‘law’, and the agent suggests that the applicant could be killed because of his membership in this particular social group.
·The applicant’s migration agent also argues that the applicant could be harmed or killed because of the political opinion of the [A] family, in that politicians in Albania gain their political office through land ownership which they gain by hiring hooligans and gangsters, such as the [A] family. The applicant’s migration agent alleges that [Mr A] is unlawfully usurping land from peaceful, weak, and politically impotent families, such as the applicant’s, on behalf of local and national political elites. This submission is not supported by evidence. The submissions themselves do not have evidentiary status.
·The applicant’s migration agent submits that the applicant will be subjected to significant harm if he returned to Albania, in respect of a complementary protection assessment, because [Mr A] and his son have previously tried to kill the applicant and/or the applicant’s father. The applicant is therefore at risk of arbitrary deprivation of life.
·It was also submitted that the applicant and his family have also been continuously submitted to mental torture.
·[Mr A] is politically influential, is backed by the local government, and the applicant would therefore be unable to obtain protection from the government in Albania.
·The applicant’s previous migration agent cited the reference numbers to four former Refugee Review Tribunal (RRT) decisions dating from 2012 and January 2013 that he indicates are examples of land dispute cases in which the RRT found that the applicants in those cases were owed complementary protection; he did not indicate whether any of those involved Albanian applicants.

Statement 5 January 2023
129. The applicant provided the Tribunal with a statement of 5 January 2023.
130. The statement is about the applicant’s relationship with the second applicant. It is an apparent response to the delegate’s reservations about the genuineness of the relationship, which are set out in the decision of 15 May 2020. The Tribunal is satisfied that the applicant and the second applicant are in a genuine relationship.
Hearing
131. At the hearing on 11 January 2023 the Tribunal asked the applicant’s representative whether the claims set out in the submissions received on 4 January are complete.
132. The Representative said that the claims are as set out but the first applicant’s mental health claims might be re-stated as including the claim that seeking help for a mental health condition is subject to prevention or prohibition for cultural reasons.
133. The applicant told the Tribunal in his evidence that his partner [the second applicant] arranged the tourist visa that he entered Australia on.
134. He said they retained a representative after 3 months when his tourist visa was about to expire.
135. He said the tourist visa was extended and when that was nearing its end, he was advised by the representative to apply for a student visa. He said he discussed his situation with the new representative and told her he needed protection.
136. He said she suggested that he apply for a student visa, although ultimately she did not pursue the application. He said he was not focused on these things. He said he did not complain to the representative or seek reimbursement when he found out she had not done as she had said she would.
137. The Tribunal noted that applying for a student visa does not suggest a need for protection or concern for his own safety. The applicant said he was guided by his former representative.
138. The applicant gave evidence that he was born on [Date] in [Village], Albania. He said he lived there with his father, mother, and sister.
139. His father migrated to Italy in about 1995 and the rest of the family joined him there in 1999 when the applicant was about [Age] years old.
140. He said his father moved to Italy for a better future for his family. He told the Tribunal that everything was better in Italy than in Albania where food was scarce, the economy was poor and there was fighting, crime and corruption which he said still occur.
141. He said the family lived in a house and farmed nearby land. He was not sure how much land there was or how the family came to own it. He thought his Grandfather had probably held it.
142. He said he became a part owner of the land in 2009, when he became partners with his father.
143. He was asked about the document entitled “Certifikat” that he had provided. He explained it shows that he was added to the certificate in 2009 just before he turned [Age], because his father wanted him on there in case something happened.
144. The Tribunal observes that the applicant has not provided a translation of that document and also that the handwriting that records the applicant’s addition as part owner does not match the writing on other parts of the document.
145. The applicant told the Tribunal he and his father thought they would build a holiday house on the land. They had regularly spent holidays in Albania, with his grandmother who had remained in the village, but he had not visited the farm other than when he passed it.
146. He said nothing was happening on the farm and no one was looking after it.
147. He said in about 2011 or 2012 they contacted a company and agreed a price to build a house. The company started to put the foundation in but before that was done, the [A] family came and tried to threaten them.
148. The applicant said he was in Albania at the time. He had taken some time off from his job in Italy to oversee the progress of the work.
149. The applicant was asked whether the untranslated certificate gave the size of the farm. He said it says 360 square metres. He agreed with the Tribunal that that was a very small plot for a farm.
150. He said the other family came and told them they could not build there and that it was their land. They knew that this was [Mr A] and his family. He said it was a small town and they knew him.
151. The applicant said they told the [A] family that they held the title to the land and that they must have made a mistake.
152. The [A] family told them to leave so they did, in order to avoid trouble.
153. The applicant said they left it for a couple of days and went back to oversee the pumping of the concrete.
154. He said that [A] then returned even more upset, this time with a Kalashnikov rifle. He said this was about 4 or 5 days after the earlier argument.
155. The applicant said he was very frightened by the sight of the rifle and he wondered what they had done wrong.
156. He said no one in the village would help them. He said that earlier, people had told him that the [A] family was powerful.
157. He said he was too frightened to stay and that the building company were also scared so they finished pumping the concrete then they left.
158. The applicant said he went back to Albania for a holiday in 2013 and tried to speak to [Mr A]. He said they sent someone to negotiate with him, but he was not prepared to buy the land.
159. He said that they had spoken to the local police after the first confrontation, but they had not done anything. They did not report the second incident with the rifle.
160. The applicant said after the second confrontation he returned to Italy and abandoned plans to do anything with the block. He thought there was no point risking his life.
161. He said he hoped that things would settle down but they did not. In early 2014, when he was living in [Province] in Italy with his parents, he got a call from his maternal grandfather who had heard from people in the town that [Mr A’s son] was going to do something. He said that [Mr A’s son] was looking for the applicant and wanted to come and find him.
162. The applicant said that nothing had happened in the two years since the confrontations in Albania and he does not know why the matter resurfaced.
163. The applicant sent his partner to stay with her family.
164. About 2 weeks later, on a Sunday morning when the rest of his family were at church, the applicant was in the yard tidying up when [Mr A’s son] turned up
165. The applicant had met him once or twice and recognised him.
166. He said [Mr A’s son] pulled up in his driveway and presented him with a paper to sign which he said was to transfer the land.
167. He said [Mr. A’s son] was pointing a pistol at him and said he would shoot him if he did not sign.

168. The applicant refused and [Mr A’s son] hit him twice to the head with the butt of the pistol.
169. Then a car came past and [Mr. A’s son] put the pistol away, apparently not wanting to be seen. He went back to his car and said “Alright this time but next time I will get what I want a different way.”
170. The applicant said he was terrified by this. He decided that the situation was not going to settle down and that it was better to go away. He said his partner, [the second applicant], also wanted to go.
171. The applicant says he believes that if [Mr A’s son] tries once more he will probably kill the applicant.
172. The applicant no longer has any plans to do anything with the land but is not prepared to give it to the [A] family. He said his grandfather probably suffered to get the land and his father too. He said his family used to survive by growing food on the land and he does not want to give it away. He said it is not right or fair.
173. The Tribunal put to the applicant that he might be better off giving the land away. The applicant said there is no reason to do that and he wants to keep the land so he has something to give his children.
174. The Tribunal asked whether it would be possible for the [A] family to threaten him in Australia. The applicant replied that it is possible but he has gone as far away as he can.
175. The Tribunal noted that the applicant’s father’s name is on the title as well as his own and asked whether his father’s signature is also needed to transfer the land. The applicant said he had no doubt that the father won’t sign the papers unless he tells him to.
176. The applicant said he would rather kill himself than give the land to the [A] family.
177. The applicant said he still has family in Albania.
178. He said his Grandmother has been threatened resulting in her changing where she walks.
179. He is not sure about his uncle, who he said does not care much about the issue. He has not asked whether his uncle has been harmed or threatened.
180. He said there had not been other problems between his family and the [A] family, just the issues about the land.
181. The applicant also said that he no longer has the option of returning to Italy as he has lost his status as a permanent resident. He said he understands that the residency lapses after an absence of a year or two.
182. The Tribunal suggested that the applicant would be safer in Italy than in Albania but he said he would not and that the [A] family can go from Albania to Italy without a visa.
183. The applicant then discussed his understanding of the status of his permanent residency in Italy and he said he could not hide from [Mr A] and his family who could easily find him anywhere in that country despite its relatively large population.
184. The applicant gave evidence about his mental health and said he suffers from anger, exhaustion, insomnia and headaches in addition to being terrified every day.
185. He said he saw his GP a few times but felt ashamed and found it expensive so he stopped going. He also said he feels agitated as though he is going to have a heart attack.
186. He said he was given some pills about a month earlier which are sometimes helpful.
187. He said he has had psychological problems for a few years, starting when he heard his grandmother had been threatened.
188. He told the tribunal he is terrified of his situation by which he meant the possibility of having to return to Albania or to Italy.
189. The applicant said he had seen a psychologist. The Tribunal referred to a report from [Mr D], a psychologist, dated 3 February 2019 that the applicant had provided to the Department, and which formed part of the Departmental file provided to the Tribunal.
190. The Tribunal noted that at page 5 of the report the psychologist said he had seen the applicant 9 times. The applicant agreed that that could be right.
191. The applicant’s history of trauma to the psychologist is recorded as having been that in Albania the applicant was subjected to threats that his whole family would be killed if they continued to build on the farmland. The neighbours also demanded that the title be signed to them without payment.
192. The psychologist further records that the applicant was approached in Italy and threatened with an assault rifle about the same land.
193. The psychologist diagnosed the applicant as suffering an adjustment disorder with mixed emotions, Major Depressive disorder and PTSD. He said the PTSD predated the applicant coming to Australia, but that his symptoms had been aggravated and they had expanded to include a major depressive disorder due to his visa status including not having work rights.
194. The psychologist had undertaken a range of treatments which he said had helped and he proposed to continue treating the applicant.
195. The report was evidently prepared in anticipation of an application for work rights, and it suggests that work rights would help the applicant’s mental state.
196. The applicant said he believed that practitioner had had his licence to practice suspended.
197. The Tribunal asked whether the applicant had attended that psychologist after a suicide attempt. The applicant agreed and said he had been walking with [the second applicant] and ran but she grabbed him. He said that had happened many times.
198. He said the first time it happened was when he came to know of the hearing of his visa application.
199. The Tribunal noted that the applicant’s problems appeared to flow from his refusal to give up the land in Albania to the [A] family. The Tribunal observed that given the choice of giving or being killed, it would be sensible to give up the land. The applicant said he could not guarantee his safety even if he did that.
200. The applicant also said he it would be difficult for him to return to Albania with a mental health condition as a man has to be a man and he can’t speak about his problems. He thought treatment would be available, but he could not seek it because of the negative perceptions it would provoke in others.
201. He said that the situation is the same in Italy.
202. The Tribunal observed that the applicant’s evidence was that his father had left Albania to get a better job and that he and the family followed a few years later. However, in the PVA it says he left Albania with his family because of problems with [Mr A] due to his father’s attempts to build a house on their land[1].
[1] [The first applicant] PVA page 20, answer to question 89.
203. The applicant said his previous agent made a mistake.
204. The Tribunal noted that the current representative says the same thing[2]. The applicant insisted that that was not true and that there was no problem with the other family before he and his father wanted to build on the land.
[2] Submissions of Anthony Robinson, undated but provided by email dated 4 January 2023 at page 2 under heading “Summary of Protection Claims”.
205. The applicant said that the suggestion there had been a dispute between the families about the land since his grandfather’s time is “100% wrong”.
206. The Tribunal put to the applicant that the delegate who made the decision had not been satisfied that there is a dispute with the [A] family. The applicant insisted that there is.
207. The Tribunal also put to the applicant that there was doubt about the assault in Italy and asked whether he had any comment on that. The applicant said his evidence is true and there is not much more he can do than repeat his version.
208. He was asked if he had any further comment. He asked for his application to be granted and repeated that he had told the truth. He said he would kill himself if his appeal fails.
Evidence of [the second applicant]
209. [The second applicant] also gave evidence. She did not make claims of her own and her evidence was largely in support of the applicant’s claims.
210. Part of her evidence was to support the applicant’s evidence that he is in an ongoing defacto relationship with her. The Tribunal accepts the evidence of the applicants about this and is satisfied that they have been in a defacto relationship since about 2012.
211. Part of her evidence was related to the contention on behalf of the applicant that his Italian permanent residence has lapsed given the amount of time he has spent in Australia. The Tribunal is satisfied that this is the case.
212. She confirmed that she did not witness the incidents in Italy or Albania involving [Mr A] and his family.
213. She gave evidence that the applicant has trouble expressing his emotions and she thinks he is ashamed of what happened, so he does not talk about it.
214. She also said he has complained to her that he does not know how to handle these things in Albania. She understood he meant the fact that they had to leave.
215. She believes there are many unwritten rules for Albanian men including that they should not show their emotions.
216. She said that Italian culture had similar elements and that if they return to Italy people may make fun of him, but that in any event the Albanian community in Italy is strong and the applicant would face the same situation in Italy as in Albania.
Evidence of [Mr B], Psychologist
217. The applicant called [Mr B], a psychologist, to give evidence. [Mr B] had prepared a report dated 31 December 2022.
218. He said he had been asked to prepare a psychological report about 2 weeks prior to first seeing the applicant on 14 December 2022.
219. He was approached by [the second applicant] and set up a teams meeting with the applicant’s lawyer to discuss some background information about the applicant. He said that information is set out in his report.
220. He said the lawyer also provided some information about stigma in Albania regarding mental health issues.
221. He said he had not been provided with the report of [Mr D] at the time he prepared his report, but he has seen it subsequently.
222. The Tribunal asked [Mr B] if he had assessed the applicant’s truthfulness in providing a history. He said it is important to consider the possibility of malingering, particularly in a matter such as this one where there is the possibility of a significant gain.
223. He said that he considered he could be reasonably confident of his conclusions despite that risk, because a number of symptoms could be independently endorsed.
224. He agreed that if aspects of the history were not correct, he would need to reconsider his conclusions.
225. He also agreed that the main problems with which the applicant presented were the stress of previous trauma and stress arising from the prospect of returning to Albania or Italy.
226. He said he would need to reconsider his conclusion about the applicant suffering PTSD if the history is not accurate, but still believes that the stress relating to the potential deportation may be enough to sustain the remainder of the diagnosis.
227. [Mr B] noted that the applicant had apparently been taking psychotropic medication, but only for a short time when he saw him and thought that the full effect had probably not been shown at the time of their interview on 14 December.
228. He said that at the time he prepared his report the only other mental health treatment he had been told about was an attendance at the emergency department after a suicide attempt.
229. [Mr B] said he had not spoken to the applicant’s GP.
230. He said he had considered a report that was provided to him about the attitude to mental illness in Albania[3] which he said was not peer reviewed but seemed to accord with some of the conclusions of [Mr D], the other psychologist.
[3] Untangling Shame and Mental Health in the Diaspora
231. He agreed that [Mr D] had been more concerned with the applicant’s work rights than with the subject visa.
232. He also agreed that the history of consultations and treatment by the other psychologist was inconsistent with what he had been told by the applicant.
233. In his report [Mr B] records that the applicant told him he had had limited contact with mental health professionals other than a GP.
234. He said that the treatment set out in the other psychologist’s report was inconsistent with his understanding of that history. He also said that the treatment the other psychologist had undertaken reflected the treatment that [Mr B] had recommended for the depression though not for the PTSD.
235. The applicant also told [Mr B] that he had never been diagnosed with a mental health disorder. This was not consistent with [Mr D’s] report.
236. Finally, [Mr B] was asked if he could comment on the applicant’s fears of disparaging treatment or ostracization if he returned to Albania while suffering mental illness. [Mr B] noted that he had said in paragraph 3 on page 8 of his report that the applicant had told him he would not be comfortable discussing his mental health with a doctor or psychiatrist for fear of being bullied.
Other Evidence
237. The Tribunal has had regard to substantial further evidence provided to it by the applicant.
Report [Mr E] 31 August 2022
238. The applicant had also provided a report from another psychologist, [Mr E], dated 31 August 2022. [Mr E] was not called to give evidence. The Tribunal was told that [Mr E] was unable to appear and that for that reason the report from [Mr B] had been sought.
239. The report says at paragraph 8 that [Mr E] was provided with a letter of instruction of 19 May 2022 and a copy of the RRT case file. It is not clear what parts of the file he considered.
240. The Tribunal notes that the report was prepared on the basis of a 90-minute consultation on 16 June 2022. There was no interpreter at that consultation.
241. The applicant told [Mr E] that he was born in Albania and lived there until he was about [Age] years old.
242. The applicant told him that the family eked out a living growing vegetables on an allotment. When he was about [Age] his father had moved to Italy in the hope of earning more money, the family following about five years later.
243. He said he had been subjected to some ostracism and racism in Italy and had left in 2014.
244. The applicant started to suffer from symptoms of depression and anxiety in mid 2014. He said there had been a dispute between the applicant and the son of another family over possession and development of a block of land. The other party struck the applicant with a gun and threatened further violence.
245. He claimed his fear led him to flee Italy for Australia.
246. He told [Mr E] he had not sought treatment as he could not afford it. He also said he has not been prescribed medication. The Tribunal notes that this consultation was after the applicant’s treatment at the hands of [Mr D] but may have been before the applicant was prescribed medication.
247. [Mr E] observed that the applicant described his mood as “depressed”[4]. He described apprehension about the outcome of his visa application.
[4] Report [Mr E] 31 August 2022 paragraph 25
248. At paragraph 28 [Mr E] says the applicant presents with the core features of a depressive disorder. He notes that on the applicant’s account that started in the context of a land dispute with another Albanian family.
249. He said the applicant complains his symptoms have worsened since his Protection Visa application was refused.
250. [Mr E] expresses surprise at the course of the applicant’s symptoms which he describes as “unusual”[5]. He says the symptoms are consistent with a chronic form of relatively mild depression[6].
[5] Ibid paragraph 31 subparagraph 3
[6] Ibid paragraph 31 Subparagraph 4
251. He says if the applicant’s history of having been threatened by the son of another family from Albania is rejected, the most likely precipitating event for the depression would be the rejection of the protection application.
252. [Mr E] was under the impression that the applicant had not had treatment. This was wrong. His consultation with the applicant took place after the 9 consultations with [Mr D].
253. The Tribunal has not had the opportunity to hear testimony from [Mr E].
Country Information
254. The applicant’s representative has provided a substantial amount of country information, particularly in relation to the issue of the treatment of and attitude to mental illness in Albania.
255. The applicant has provided the following country information about this issue to the Tribunal;
·US Department of State Albania 2020 Human Rights Report
·Everything you need to know about human rights in Albania, Amnesty International 2021
·The stigma of mental health in the community: Two young people share their stories – Balkan Hotspot
·Untangling shame and mental health in the diaspora Albana Aruqaj 30 April 2021
·Do Albanian mental health Services Meet Human Rights Standards, Lori-Dano Doctoral thesis December 2018 (to page 72)

Summary of Claims - Applicant
256. The applicant’s claims fall into two broad categories.
257. The first is that there have been tensions between himself and the [A] family arising from his ownership of a plot of land in Albania which will reignite if he returns to Albania or Italy.
258. The second is that the applicant suffers from mental health problems that will be the source of persecution or relevant harm if he returns to Albania or to Italy.
Findings
259. The applicant was not an impressive witness. There were inconsistencies between the written evidence, submissions presented on the applicant’s behalf, and his testimony to the Tribunal.
260. Important inconsistencies were when and why the applicant moved to Italy from Albania, and when the tensions with the [A] family over the land in Albania started.
261. The Tribunal notes that it is not reasonable to require too high a standard of consistency or accuracy in the applicant’s evidence given the reports suggesting he suffers, or has suffered, depression and PTSD.
262. The Tribunal is satisfied that the first applicant no longer has the right to enter and reside in Italy.
Land Dispute
263. The applicant has described a range of threats and intimidatory behaviour from the [A] family since his father tried to develop the plot of land in Albania in about 2013 or 2014.
264. He says these threats have been directed at him as effective owner of the land.
265. The Tribunal makes no finding as to whether the threats and intimidation occurred.
266. The Tribunal observes that the applicant and his family no longer propose to develop the land or re occupy it in any way, because of the threats from the [A] family.
267. The applicant could give no convincing explanation for his unwillingness to yield the land to the [A] family in the circumstances. His evidence in relation to this was simply that “there is no reason to give the land away.”
268. Although the applicant did not say so, the Tribunal can accept that yielding the land to the [A] family might be a blow to the applicant’s pride, but his evidence does not suggest there would be any other ramification.
269. The Tribunal is satisfied that the applicant could avoid further threats or intimidation from the [A] family by yielding the land to them.
270. The Tribunal is satisfied that the land is of no use to the applicant or his family who have abandoned their plans for it and who no longer use it as a “farm”.
Mental Condition
271. The Tribunal notes that [Mr D] appears to relate the applicant’s difficulty in overcoming his Adjustment Disorder with Mixed Emotions, Major Depressive Disorder, and Anxiety Disorder (Post-Traumatic Stress Disorder) to his visa status and his lack of work rights[7].
[7] Report [Mr D] 3 February 2019 p. 6 under heading “Condition – Chronic and Severe”
272. [Mr E]’s report of 31 August 2022 suggests the applicant suffers chronic, relatively mild depressive mood disturbance[8] and that he has not taken medication or participated in medical or psychological counselling or similar therapy[9].

[8] Report [Mr E] 31 August 2022 p.6 at par. 29.
[9] Ibid par. 30.
273. He does not suggest that a lack of work rights is a significant contributor to the applicant’s psychological condition.
274. He says that if the applicant’s account of his condition being precipitated by confrontation with the son of [Mr A] is rejected, the most likely precipitating event would be the rejection of the protection visa application[10].
[10] Ibid P. 7 par 31(5).
275. At the time of the report [Mr E] thought the prognosis was good with medical and/or psychological intervention.
276. The report might be summarised as saying the applicant has a mild depressive condition with a good prognosis if treated.
277. In his report of 31 December 2022, [Mr B] noted the applicant had started a course of psychotropic medication although he understood there had been no diagnosis of a mental health disorder.
278. He assessed the stress of the visa application as being a reasonably significant contributor to the applicant’s ongoing problems.
279. It is apparent that the applicant’s condition was contributed to by the belief that the [A] family “…would locate and torture and kill him if he returned to any country in Europe.”[11]
[11] Report [Mr B] 31 December 2022 p. 5 and 6, paragraph 1 of page 8,
280. Support for the applicant’s fear of ongoing mental health problems generally arise from the assertion that he would be exposed to the stress of ongoing threats from the [A] family if he returns to Albania.
281. The Tribunal is satisfied that the applicant can circumvent those threats by yielding the land.
282. The Tribunal is not satisfied that the applicant would suffer ongoing mental health problems in Albania if the threats and possible blood feud that he says he fears are circumvented in this way.
Refugee Criterion
Land Dispute
283. The Tribunal is satisfied the applicant could avoid harm from the [A] family if he cedes the land that is in dispute to them.
284. The applicant has said he does not wish to do so because there is no reason to.
285. The Tribunal is satisfied that ceding the land to the [A] family and abandoning his opposition to them is a reasonable step to “…modify his behaviour so as to avoid a real chance of persecution...” in Albania, as contemplated by the definition of “well-founded fear of persecution” in s 5J(3) of the Act.
286. The Tribunal is therefore satisfied that the fear arising from the threats made by the [A] family is not “well-founded fear of persecution” for the purposes of the definition of “refugee” in the Act.
Mental Health
287. The Tribunal is not satisfied that the applicant will continue to suffer mental health problems if the dispute with the [A] family is settled.
288. In any event, the Tribunal is not satisfied that the applicant’s mental health condition is sufficiently serious or obvious to provoke relevant persecution in Albania.
289. The Tribunal is not, therefore, satisfied that the fear of returning to Albania as the sufferer of a mental health condition is a “well-founded fear of persecution” for the purposes of the definition of “refugee” in the Act.
Assessment of the first applicant’s status against the refugee criterion
290. The Tribunal has had regard to the evidence and submissions in relation to the first applicant and, having weighed them together is not satisfied that the first applicant is a “refugee” for the purposes of s36 (2)(a).
Complementary Protection Criterion
291. Having found that the applicant is not a person who is a refugee for the purposes of s.36(2)(a) of the Act, the Tribunal must consider the alternative criterion contemplated at s.36(2)(aa) known as the “complementary protection” criterion.
292. That criterion is satisfied if an applicant is a person in respect of whom there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Albania, there is a real risk that he will suffer significant harm.
293. In MIAC v SZQRB [2013] FCAFC 33, the full Federal Court of Australia held that the test in considering whether a non-citizen faces a “real risk” of significant harm for the purposes of s.36(2)(aa) establishes the same threshold as the “real chance” test in s.36(2)(a) in relation to a well-founded fear of persecution[12].
[12] Paragraphs 245 and 246,
294. The Tribunal has found that the applicant does not face a real chance of persecution by reason of any dispute with the [A] family or because of his claimed mental health problems.
295. For the purposes of that finding, the definition of “persecution” requires the Tribunal to consider whether the applicant will suffer “serious harm”[13].
[13] MIBP V WZAPN; WZARV V MIBP (2015) 254 CLR 610 at [71]
296. “Serious harm” for the purposes of that consideration, is a different standard to “significant harm” when considering the test in s.36(2)(aa).
297. “Significant Harm” is defined in s36(2A) which is attached to this decision. The definition specifies arbitrary deprivation of life, the execution of the death penalty, torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment.
298. The Tribunal is satisfied that the applicant does not face a real risk of significant harm as a necessary and foreseeable consequence of him being returned to Albania.
299. The Tribunal has had regard to all the evidence before it and is not satisfied there are substantial grounds for believing the applicant faces a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to India.
Claims by the Second Applicant
300. .After the hearing of this matter, the Tribunal noticed a draft of 3 pages of the first applicant’s Protection Visa Application (“PVA”) attached to a letter of support from [the] member for the Federal seat of [Electorate].
301. That letter is document [Reference] on the departmental file provided to the Tribunal. The letter was received on about 23 July 2019.
302. Those PVA pages include the first applicant’s answers to questions 87 to 96 inclusive of the form. These are the questions that request the first applicant to identify his claims.
303. The answers provided are largely the same as the answers that were contained in the PVA that was lodged with the Department .
304. There is a difference in the answers to question 96 “Do you think you would be able to relocate within that country(s)?”
305. The applicant had indicated in his answer to question 88 that he seeks protection so that he does not have to return to Albania and Italy.
306. In the PVA that he lodged on 16 June 2016, he concludes his answer to question 90 by saying (with reference to his partner, [the second applicant]):
“…she is a target too because she is my partner and everyone knows that.”

307. In the PVA attached to the letter from [the MP] (“the unlodged version”) there is a further statement in the following terms;
“She is scared too to go back. Since she has been living with me a lo of her friends and her family left her alone because they did not like it that she is living with me as an Albanian, her family and friends are racist.”

308. Also, the answers to question 96 on the two forms differs. Question 96 asks whether the applicant would be able to relocate within that country (again, meaning Albania and Italy).
309. The answer in the lodged version refers to the second applicant and finishes:
“She has lost her sense of security, she is afraid to be alone.”

310. The answer in the unlodged version finishes:
“She has lost her sense of security, she is afraid. She has lost her family and friends because they don’t want her to have a relationship with Albanian but rather Italian.”

311. It was not clear to the Tribunal whether the first applicant was aware that there were two versions of the PVA nor was it clear which version the first applicant wanted the Tribunal to consider. It was also not clear whether the second applicant sought to make claims of her own.
312. Further, the first applicant had given evidence that the claims made in the PVA did not reflect his instructions in some regards.
313. The PVA lodged by the second applicant had stated at question 87 that she did not make her own claims for protection and had struck out questions 88 to 96 as not applicable.
314. The Tribunal wrote to the applicants’ representative by email on 31 May 2023 drawing their attention to the unlodged version and noting that the issue of persecution of the second applicant because of her relationship with the first applicant would need to be considered. The possible need for a further hearing if there is further evidence was also raised.
315. By email of 5 July 2023, the representative’s office manager replied with a note saying a psychologist who was preparing a report for the second applicant required a further 28 days to do so.
316. This was the first mention of any such report or of an evidence being brought by the second applicant, who had not made claims on her own behalf.
317. The Tribunal sent the applicants’ representative an email of 12 July 2023 saying that it was not aware a psychologist’s report had been sought. The Tribunal asked why they were getting a report and noting that they had not advised whether the second applicant is now seeking to make claims of her own.
318. By email of that day, 12 July 2023 the representative’s office manager indicated that the second applicant is making her own claims and saying that because the claims have a mental health element, a psychologist’s report is being sought.
319. The Tribunal wrote to the applicants’ representative on the following day, 13 July 2023 asking him to advise what claims the secondary applicant seeks to make so that the Tribunal can decide whether they will need to be dealt with as “new claims” as contemplated by S423A of the Act.
320. On 20 July 2023 the Tribunal sent a further email to the applicants’ representative again asking for the second applicant’s claims to be specified and further for an indication of when the representative says they were made so the Tribunal can decide whether the claims should be dealt with as new claims for the purposes of S423A of the Act.
321. On 28 July 2023 the Tribunal received an email apparently from a paralegal employed by the applicants’ representative.
322. That email said the second applicant seeks a report to support the contention that she was the victim of racial slurs and that the first applicant’s family were racists.
323. It said the second applicant “felt her human rights were violated-she says it was like Romeo and Juliet – a racist culture so much so she felt a serious risk.”
324. It also said the psychologist’s report will reveal a mental health condition.
325. It said that those who suffer from mental health conditions “…are subject to stigmatization and gross humiliation.” It asks that the determination await the receipt of the psychologist’s report.
326. The email attached a document entitled “Case authority for mental health stigmatisation and human rights violations in the matter of … Applicant: Husna BEGUM and Family”. The document comprises summaries of a number of AAT decisions involving mental health claims and is of limited assistance.
327. The email also attaches an article entitled “Albania has a problem with Mental Health, but Help is on the Horizon” apparently from a site called “The Balkanista”, being an article about an Albanian born psychologist who works in America and is trying to establish an organisation to benefit children, families and the elderly in the US and in Albania as well. The relevance of this article is elusive.
328. The final item provided is an article from the Independent entitled “Mental illness in Italy: the disease that dare not speak its name” from 14 September 2021. The submission comprises only the first paragraph of the article and its relevance is unclear. It is of no assistance to the Tribunal.
329. On 28 July 2023 the Tribunal also received a further email from the representative’s office manager attaching two further articles, one about Mental Health in Italy and the other a general paper about the stigma attached to mental health issues in general.
330. On 31 July 2023 the Tribunal sent an email to the applicants’ representative noting he had failed to address the question of the provenance of the unlodged PVA and asking him to do so to enable the Tribunal to determine whether the claim by the second applicant is a new claim.
331. The email said if the second applicant was seeking to make a mental health claim after the delegate’s decision was delivered, she should explain why the Tribunal should not draw an inference unfavourable to the credibility of the claim as contemplated by s 423A of the Act.
332. The Tribunal asked that these issues be addressed by 4 August 2023.
333. On 4 August 2023 the Tribunal received a submission from the applicants’ representative. The submission attaches a report from [Mr B], Psychologist, dated 2 August 2023.
334. It also attached some further information, being a report about blood feuds in Albania[14], a report about mental health care in Italy[15], an article about stigma associated with mental health problems[16] and a report about blood feuds in Albania[17]. Some or all of this information may have been provided to [Mr B] before his report was prepared.
[14] “Albanian Blood Feuds, Another unconvincing Country Policy and Information Note” David Neale, legal researcher, 26 September 2022. This appears to relate to the availability of protection from the Albanian Government to those embroiled in blood feuds and is a critique of a report that was not provided..
[15] “Mental Health in Italy: Systems, Stigma, and Impact of COVID-19” Charley Nyzio, 12 December 2021.
[16] “Stigma, Prejudice and Discrimination Against People with Mental Illness” American Psychiatric Association, undated.
[17] “Country Information and Guidance Albania: Blood Feuds” version 2.0 6 July 2016.
335. The submission does not refer to the documents in other than the most general way
336. The submission does not address the question of the provenance of the unlodged PVA.
337. The submission does not clearly identify what claims the second applicant makes. The thrust appears to be that she has suffered or fears harm because of a blood feud and because of threats of violence made against her.
338. The second applicant has also suggested that she fears harm or persecution in Italy or Albania because of stigmatisation of mental health problems in those countries.
339. The submissions assert that “fairness” requires the Tribunal to deal with these new claims and the evidence that supports them without applying s 423A of the Act.
340. The submissions state that the Tribunal should have regard to the “but for” test. The Tribunal is not satisfied that test has any application in this matter.
341. S 423A of the Act provides as follows:
How Tribunal is to deal with new claims or evidence
(1) This section applies if, in relation to an application for review of a Part 7-reviewable decision (the primary decision ), the applicant:
(a) raises a claim that was not raised before the primary decision was made; or

(b) presents evidence in the application that was not presented before the primary decision was made.

(2) In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.

342. The second applicant did not make any claim on her own behalf when she lodged her Protection Visa Application.
343. The second applicant did not make any claim on her own behalf before the primary decision was made.
344. The second applicant did not make any claim on her own behalf in submissions made in preparation for the Tribunal hearing.
345. The second applicant did not make any claim on her own behalf in her evidence to the Tribunal.
346. The second applicant has not presented any explanation for not raising her claims before the primary decision was made.
347. The Tribunal therefore draws an inference unfavourable to the credibility of the second applicant’s new claim.
348. The Tribunal is not satisfied that the second applicant has suffered or fears harm because of a blood feud or threats of violence made against her.
349. The Tribunal is not satisfied that the second applicant faces harm or persecution because of the stigmatisation of mental health problems in Italy or Albania.
350. Further, the Tribunal observes that the report the second applicant has tendered in support of her new claim is reliant on her assertion that
351. The Tribunal is not satisfied that the second applicant satisfies the refugee criterion.
352. Having drawn an inference unfavourable to the credibility of the second applicant’s claim to have suffered any harm or to fear harm on the basis of her mental health, the Tribunal is not satisfied the applicant satisfies the complementary protection criterion.
Conclusions
353. For the reasons set out, the Tribunal is not satisfied that either applicant satisfies the refugee criterion or the complementary protection criterion.
354. Therefore, neither applicant satisfies the criteria in s 36(2)(a) or (aa) for a protection visa. It follows that they do not satisfy the criteria in s 36(2) (b) or (c).
DECISION
355. The Tribunal affirms the decision not to grant the applicants protection visas.
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 4437

9 October 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction