2106871 (Refugee)

2106871 (Refugee) [2024] AATA 3044 (18 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Daniel Fernando Moya
CASE NUMBER:  2106871
COUNTRY OF REFERENCE:                   Albania
MEMBER:Kate Millar
DATE:18 January 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 January 2024 at 8:40am
CATCHWORDS
REFUGEE – protection visa – Albania – family dispute over mining permits – threats of harm by relatives – high levels of corruption in mining industry and country – inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

[The applicant] is a citizen of Albania, who came to Australia by boat, landing on the Territories of Ashmore and Cartier Island [in] March 2013.
[The applicant] first lodged an application for a protection visa on 21 November 2016. At that time, this was thought to be an invalid application, however following the decisions in DBB16 v MIBP (2018) 260 FCR 447, and MICMSMA v CBW20 [2021] FCAFC 63 this is now valid and is a current application before the Department.
[The applicant] again applied for a protection visa on 21 October 2020, claiming to fear harm because of a land dispute if he returned to Albania. This is the application that is the subject of this review. On 29 April 2021, a delegate of the Minister for Home Affairs on 29 April 2021 refused to grant the visa under s 65 of the Migration Act 1958 (Cth) (the Act), and [the applicant] applied for a review of this decision.
[The applicant] appeared before the Tribunal on 11 October 2023 to give evidence and present arguments. He was represented in relation to the review. [The applicant]’s wife attended as a support person.
BACKGROUND
[The applicant] was born in [Village 1], which is near [Town 1] in the Dober region of Albania. His parents still live in the same location. He has one sister who lives in [Country 1], and one who lives in [Country 2]. At the time of the hearing, his mother was visiting his sister in [Country 2] to obtain medical treatment for high blood pressure and a heart condition. [The applicant] has an uncle who also lives in [Town 1] at a different property to his father and also has cousins in Albania, some of whom are in [Town 1]. He has a cousin on his mother’s side in Australia.
[The applicant] did a [Occupation 1] course when he was 15 or 16 and completed year 12 when he was 17 years old in [Town 1]. After finishing high school, he worked in Albania and in [Country 3], where his uncle lives. He worked in [Country 3] and in [Town 1] as a [Occupation 1] and helped his family around the town.
Since he has been in Australia, [the applicant] has worked as a [Occupation 2], working for an employer for 4–5 years before starting his own business.
His mother applied for a tourist visa to travel to Australia in 2017, however her application was refused.
[In] February 2023, [the applicant] married [Ms A] in Australia. [Ms A] is a citizen of Vietnam who holds a Subclass 190 (Skilled) visa and is a permanent resident of Australia.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c).
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.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. 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.
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, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS
Entry interview
In his entry interview [the applicant] claimed he left Albania because of a conflict with his family because of the land. He said the other side of the family wanted to take the land and put pressure on his father. The first threat was made 12 February 2013 when [Mr B] threatened his father over the land. [Mr B] said the land was his because of a new law, and that he had new papers for the land.
On 27 February 2013 his father went to the police to tell them what happened, but the police didn’t write anything down and threatened to kill him. On the same day, 10 people came to his house and threatened his father. [The applicant] stayed in Albania for one day and then he left.
[The applicant] said the other reason he left Albania was because of economic problems as he is young and wants to build a better life for himself. If he works in Albania, he can only earn enough for 2 litres of milk and some bread. He said he wants to learn perfect English, do [Occupation 1] and build a new life.
[The applicant] said if he returned to Albania, he won’t have a job or a life, and he will not be happy. In Albania if you do one small mistake you lose your life. In Australia he will be able to work.
There is a note on the entry interview stating the interpreter who did not interpret in the first person caused confusion, and that it was difficult to hear the interpreter.
2016 application
In his application for protection dated 4 November 2016, [The applicant] claims:
I had to leave Albania because I had a conflict with [Mr B]’s family and his sons due to a land dispute. The land is ours and we had papers for the land through generation but with the new government, [Mr B] through his political influence got some new papers claiming that the land belonged to him and his family. There were two incidents, the first one happened on 12^th of February 2013. On 27^th of February 2013, my father went to the police station to tell them what happened, the police did not take any notice and ignored my father. On the same day, my father went to the police station, but [Mr B]’s son [Mr C] and 10 of his family members came to my house and threatened me and my family on the basis that why did we report the first incident to the police. After discussing the issue with my father, a fight about the land dispute was and it is still today and will continue to be so because the land is very rich in mineral resources called [Mineral 1] and there is money to be made and people in [Town 1] have got killed because of that. I felt threatened because [Mr B]’s family is big and has political influence in the area and knows the police, so it looks he has government connections because the police informed him about our report.
In response to the question of what will happen to him if he returns, [the applicant] states he is afraid for his life. He claims people are getting killed in [Town 1] because the land has [Mineral 1] and there is no law and order, with the Chief of Police having to resign because he was threatened by a Mafia-linked family. He claims the government is corrupt and when his father reported the matter to police, they took no action and instead told [Mr B] and his son [Mr C] about the complaint. He states:
The evidence shows I reported the incident to the police and in return was threatened and a gun pointed at me and my father. Next time I might be dead …
[The applicant] said he experienced psychological harm while in Albania because [Mr B]’s family threatened to kill him and his father.
In response to questions about seeking help from police, [the applicant] states:
Yes we went to the police station of my city to lodge a formal complains (sic) that [Mr B] and his family was threatening us and wants to take our land by force … what we got in return on the same day, [Mr B]’s son coming to our house with 10 men to threatened (sic) us why we reported him and his father to the police. They pointed guns at us and told us to lease or else we will be killed. My father told me son, you are young and have a life and future ahead of you so please leave and go as far as possible.
He also wrote:
The evidence shows I reported the incident to the police and in returned I was threatened and pointed a gun at me and my father. Next time I might be dead.
He claims he fears the police because they are working with criminals who want to take the land.
2020 application
[The applicant] provide a statutory declaration containing claims in his 2020 application. In summary, this states:
·     He was born in [Town 1], Diber, Albania and was raised Muslim.
·     [Town 1] has approximately [number] people and is best known as a mining town which creates big profits which has led to corruption. Normal people live in poverty.
·     In [Town 1] there are at least [number] private companies involved in the mining industry. People involved with these companies include corrupt politicians, members of parliament and criminal groups.
·     His father worked in the mines for 20 years. His family are normal working people and do not have the potential to become well connected, powerful people.
·     The problem started when [Mr B], [Mr D] and [Mr C] came to their family home. [Mr B] and [Mr D’s] families are powerful in [Town 1] as a well-known criminal gang with links to politicians and members of government.
·     Sometime in the middle of December 2012 they came to the front of the property to speak to his father about the land. There were 6 or 7 of them, but there may have been more. They said to his father he had a choice to move somewhere else, and there was no point arguing as they have the papers. His father said he would not move because the land has been in the family for three generations.
·     It is common for powerful criminal families to come to a property and claim they own the land. They pressure landowners to sign new papers. The people who came wanted his father to sign paperwork to replace the forged documents they had.
·     The men said to his father “you make your choice and if you make the wrong choice you will lose your family”. They pointed in [the applicant]’s direction and said “you will not even see his body again”.
·     Some days after [the applicant] travelled to Dorrus and stayed with his aunt for 2–3 days. He returned to [Town 1] for one day and went to [Town 2], Diber (his home village) to renew his passport, then returned to live with his aunt and other relatives in Tirana and waited for his passport to arrive. He stayed with his aunt another few weeks before going to his uncle’s house in [Country 1].
·     He was in [Country 1] when the second incident occurred on 27 February 2013. He wasn’t there when it occurred, however the first migration agent wrote in his application that he was there.
Claims made at the hearing
At the hearing, [the applicant] claimed that he left Albania because of problems with a group of criminals who wanted to take the land for mineral use. He is not sure of the date now, but there were threats to him and to his family.
This started in November 2013, when people came and blocked the front of the house. They tried to kill his father and threatened him with weapons like knives and guns. The first time this happened he was inside the house because his mother didn’t want him to go outside. There were 10–15 people. He recognised [Mr B] and his two sons [Mr C] and [Mr E], as well as [Mr B]’s younger brother [Mr D].
He saw them confront his father. [Mr C] tried to hit his mother and drag his father inside. His father was hit on the left hand by [Mr C]. [The applicant] and his parents went back inside.
The group outside made marks where they wanted to start digging. They made threats about what they would do to the family if they came outside. This included a threat to kill [the applicant] and destroy the family.
The next day he had to leave. He went to his aunt’s house in Dures approximately 3 hours away by private taxi when it was nearly dark. In Dures he stayed inside and waited for the situation to get calmer. He stayed there 2–3 days and then left for [Country 1].
His father stayed inside the house while the other people were around the house. His father then made a police report by going to the police station. The second incident occurred after he had left for [Country 1] and his father had made the police report. The same group of people wanted his father to sign papers for the land. Ten people came to the house.
After that, it kept getting worse as they were getting closer to the house and would scream abuse to his father that they were going to get his son [the applicant], and that they knew where he was. He could not stay long with his uncle in [Country 1] and wanted to go somewhere far away so they could not reach him.
His father has continued to live in [Town 1] in the same property. It is dangerous for him to go into the city or around the town. His father gets threats every day and lives in fear.
His father is currently living in the property on his own as his mother is in [Country 2]. His father gets what he needs himself or his brother brings it to him. He is very careful not to stay out late or walk by himself but does leave the property to go shopping. His was able to get a passport and is planning to leave but has nowhere to go.
[The applicant] fears everyone in [Town 1], not just [Mr B]. He doesn’t know exactly what will happen and says they may take a hand or a leg. He cannot live in Tirana, which is an hour away, or Shkoder, which is 2 hours away as the country is too small.
While the information he provided shows the right to minerals under the land can be sold separately to the use of the surface of the land, his family cannot sell the rights to any [Mineral 1] under his family land. He and his father will not give up the land because they do not have the courage to do so. His father cannot sell it to anyone else as others prefer to take it by force. On being asked why his father did not sell the rights to mine the land, he said his father does not want to do so. His father has an Albanian pension of 200 Lek per month.
Regardless of what happens with his father, because [the applicant] or his mother will inherit the property on the death of his father, [the applicant] said he will be killed if he returns to Albania.
DOCUMENTS PROVIDED
In addition to identity documents establishing his name, date of birth, place of birth and nationality, [the applicant] provided the following articles:
·     Kronholm, A, 4 June 2014 “In photos: Murder, Misery and Children in Albania’s Mining Industry”
·     Article dated 4 April 2014 “Scandal, Murder suspect was set free
·     Article [September] 2013 [about the miners of Town 1]
·     Article dated [January] 2012 [about a knife crime in Town 1]
·     Statement Minister of Energy and Industry, Damian Gjiknuri, dated 2 September (no year) “the mining sector back on the tracks of law”
·     Erebara G (18 May 2015) “Three killed in gun battle in Centre of Tirana”
·     Likmeta, B. (28 July 2011) “Albania Miners’ Strike enters day three”
·     Taylor, A (2020) “Transparency international: Albania is Europe’s Most Corrupt Country, Falls 23 Places in Three Years”
·     Council of Europe (2020) “Fifth Evaluation Round Evaluation Report Albania”
·     [A 2017 scholarly article on the environmental impact of Mineral 1 mining] in [Town 1 area, Albania]
·     Bourassa et al (2014) “Global Overview” from document entitled “Mining in 28 jurisdictions worldwide”
·     United Kingdom Home Office (2020) “Country Policy and Information Note Albania: Blood Feuds”
An untranslated article was also provided.
[The applicant]’s representative provided a further submission before the hearing containing hyperlinks to articles. The Practice Direction requires copies to be included rather than hyperlinks to articles, and he was asked to provide any sources that had not previously been provided. In particular, the submissions cited an article from [2016] [about deaths in Town 1‘s Mineral 1 industry] from [Publication 1] which was provided after the hearing.
Also provided was a land acquisition deed showing [the applicant]’s father as the owner of land in the district of [Town 1] and [Village 1], a copy of his father’s passport which was issued [2020], [the applicant]’s marriage certificate, and a statement from his wife about the relationship together with other documents in support of the relationship. It was clarified there are no claims that relate to this relationship, and these documents were provided to provide information on his general circumstances.
[The applicant] further provided:
·     Valero J. (2022) “The Western Balkan Organised Crime at European Union: The Albanian Mafia – does it pose a real threat”? European Foreign Law Enforcement No.22
·     Bourke L & Lioumi, I. (4 November 2018) “Albanian contract killer could have killed Sydney gangster in Athens” The Sydney Morning Herald
·     Translation of a transcript from YouTube.
Of the articles and information provided by [the applicant], several refer to the conditions of miners in Albania and in [Town 1], and do not assist me in assessing [the applicant]’s claims. It is not claimed that [the applicant] faces harm in Albania due to a blood feud.
There are accounts of the murder of [Mineral 1] businessmen in [Town 1], and that the alleged murderer was not arrested for these crimes, but instead was himself murdered on his release from prison. It is suggested he was not charged prior to his release due to his connections with police and the Court, a claim that was rejected by the Courts. From this information, it can be concluded that there are allegations of corruption and that businessmen involved in the [Mineral 1] industry have been murdered in [Town 1] and Tirana.

[Publication 2] states that “Murders related to gang wars happens often in Albania, mostly related to drug trafficking but also with natural resources exploitation. [Town 1] [Mineral 1] mine complex is currently divided among dozens of small companies whose owners use guns to clarify disputes”. It notes that Albania has one of the highest homicide rates in Europe. Together with the general information in mining in Albania this article shows there are disputes about licences, particularly as there were errors in the licences and some mining permits overlap or do not have external access.
The [Publication 1] article from 2016 reports the same murders as [Publication 2] but also reports this was the result of a clash of criminal groups for controlling [Mineral 1] galleries in [Town 1]. This article reports that there are [more than one hundred] usage permits (for exploration and exploitation of [Mineral 1]), with [a similar number of] operating licences in [Town 1] District. It is reported dozens of licences have recently been revoked as there were overlapping galleries or parcels because of mistaken co-ordinates, and that some parcels had no access. It is reported 20 overlapping permits have been fully or partially revoked. An anonymous police officer reports that conflicts in the area are caused by overlapping permits, and individuals suspected of serious crimes have taken control of some key galleries in the [Town 1] mine with the support of politicians. This article details clashes between families and the names of individuals involved in the clashes. It reports criminal groups clashing with each other, and the use of strong locals as bodyguards for firms operating in the area. It details associations between politicians and local officials and the mines and goes on to state injuries and accidents in mines have been covered up by officials. The clashes are between [Mineral 1] business owners and between family clans. While several families and individuals were named, none have the [family name of the applicant].
There is a record of a murder of a 21-year-old and the injury of another with a knife in [Town 1], with no other account of the suggested reasons for the murder or background provided in this article.
From this information, I accept that [Town 1] District has [Mineral 1] deposits and [Mineral 1] businesses, and mines operate in the area. I accept that there are clashes between criminal gangs and between particular families, and that a cause of these clashes is overlapping permits. I accept that strong locals are used as bodyguards for businesses operating in the area. These clashes have led to the several businessmen associated with the [Mineral 1] business being murdered and others injured. I accept that there are politicians and local officials with links to the [Mineral 1] companies.
There are several reports that Albania is Europe’s most corrupt country, and I accept this is the case.
Section 424AA material
As the entry interview and the previous application did not form part of this application, the following information was provided to [the applicant] under s 424AA of the Act at the hearing:
(1)At the entry interview it is recorded that he wanted to come to Australia in 2010, and at that time he heard that Australia was a beautiful place, but he could not come in 2010 because he didn’t have the money. He said he didn’t know how to do it or what to do, he wasn’t too old then and didn’t know what to do. This is different to his account at the hearing that he had never considered, intended, planned or desired to come to Australia, he just wanted to leave because he feared for his life.
(2)In the application in 2016 he states “on 27 Feb 2013, my father went to police station to tell them what happened, the police did not take any notice and ignored my father. On the same day, my father my father went to the police station [Mr B]’s son [Mr C] and 10 of his family members came to my house and threatened me and my family on the basis that why did they report the first incident to the police” . This claim indicates [the applicant] was in Albania at this time, but by this time he had left Albania.
In the application in 2016 he said “the evidence shows that I reported the incident to the police and in return I was threatened and pointed a gun at me and my father”. This was not consistent with his account at the hearing that he was inside the house at the time they came and what he saw at that time.
(3)In his 2020 application his statutory declaration at paragraph 9 is the first time he mentioned that in the middle of December 2012 he was first approached. In the entry interview and 2013 application it was claimed to be February 2013.
In response [the applicant] said he has [cousins] in Australia, but when the incident happened, he did not have it in mind to come to Australia.
[The applicant] said he cannot remember exact dates or exact moments, and it is a long time to remember everything. On being asked why he would not recall such a significant event or when this occurred, [the applicant] said that because of his travel to Australia and 10 years delay. He says he has not changed anything from his first interview, and he may not remember dates and times. He said he has changed lawyers and maybe the lawyer changed it. He did not use an interpreter when he spoke to his lawyers, and they had misunderstood.
CREDIBILITY
[The applicant]’s original claims were made in an entry interview held approximately 10 years ago. It is not expected his account would remain unchanged, or that the passage of time or his potential distress at recounting these events would not affect his memory. In considering his credibility, I have taken into account the Tribunal’s Guidelines on Vulnerable Persons as urged by his representative, and in particular that people who have experienced traumatic events may have vivid memories of some events and amnesia about others and may not be able to present a chronologically intact account.
[The applicant]’s father has continued to live in Albania in the same property for the last 10 years. It is inconsistent to suggest both that his father will be killed to access the land without consequences, and that his father has continued, 10 years later, to live in the same property. His father leaves the property to obtain supplies and has been able to apply for and obtain a passport.
[The applicant] was advised that this was a central concern in this matter. His answers contained both that his father was willing to take that risk to remain in the property if [the applicant] was safe, and that the criminal gangs could pay to have someone killed and that no-one would know what happened to them. His claimed fear of criminal gangs who can arrange to have a person killed without consequences and his parents’ ability to live in the property are difficult to reconcile. He could not provide a convincing explanation.
[The applicant]’s account differs between his entry interview, the 2016 application, the 2020 application and at the hearing. I have focussed on the sequence of events more than specific dates, as the events are now a considerable period in the past and, if true, experiencing these events could lead to trauma.
On being asked to comment on the differences in his account over time, [the applicant] said he has been living in Australia for 10 years and was seeing a lawyer. He said his appearance before the Tribunal is his first experience ever presenting himself before a government person, that he has been stressed for 10 years, and may have mixed up the dates.
[The applicant] has changed his account of events when it was apparent that the claimed threats after his father reported the matter to police occurred after he had left Albania, and he could not have been present or threatened at this time. This is evident from his passport. I do not accept his explanation that his previous migration agent stated he was present at this time when he was not. The wording used in the application is very specific and starts “I was threatened” and “I reported this to the police”. I do not accept his migration agent would fabricate details or fail to clarify aspects of his claim that are central to [the applicant] seeking protection in Australia. [The applicant] states he did not use an interpreter when speaking with his lawyer, however I do not accept an interpreter would not be obtained by a representative if this was required because the details of his claims are central in a protection visa application.
I did not find [the applicant] to be a credible witness in this matter.
FINDINGS ON CLAIMS
It is accepted on the information provided by [the applicant] that [Town 1] and its surrounds have [Mineral 1] deposits, and there are reports of criminal activity and police corruption in the area. I accept that people who are described as [Mineral 1] businessmen have been killed or injured. I accept Albania has high levels of corruption.
The articles that refer to Mafia activity in Albania refer to the killing of people, including in [Town 1] and Tirana. While there are reports contained in the material provided to the Tribunal of disputes about land due to [Mineral 1] deposits, none of these reports refer to the [applicant’s] family. The articles do not support circumstances where [the applicant]’s father could remain in a property unharmed and manage in the community for a period of 10 years when he is wanted by a group able to act with impunity, and who have killed other people, particularly if they are well armed as claimed. While I accept there are disputes between families and between people operating the parcels of land with mining permits, I do not accept [the applicant] or his family are affected by this conflict.
I do not accept that [the applicant] or his father were threatened or that [Mr B] or his family are trying to take possession of his father’s land, or that they are trying to get his father to sign documents to give them the land. This is because his father has continued to live at the same property for 10 years after these threats without harm. According to [the applicant]’s claims, his father was told he had to leave, but has not done so. [The applicant] has been inconsistent in his account of what has occurred. His father has not left and has been able to undertake tasks to allow him to remain in the home alone such as shopping for food and obtaining his passport. [The applicant]’s mother has been able to travel. I do not accept that his father does not leave as he has nowhere to go because both [the applicant] and his mother have stayed with relatives in Albania and outside Albania.
As I do not accept that [the applicant] or his father were threatened, I do not accept [the applicant] is at risk of harm from [Mr B], [Mr B]’s sons or brother, or from criminal gangs if he returns to Albania. I do not accept his father has been the subject of continuous threats or that he is fearful of leaving his home, or that he has been pressured to sign documents to transfer all or part of the land.
[The applicant] was able to leave the property at the time of the threats and returned to the area to obtain a passport without incident before leaving Albania. This does not support his claims that he will be killed or lose a hand or a leg.
[The applicant] claimed that he would not risk travelling to Australia by boat if he did not suffer fear. His desire for a better life and better economic opportunities, as stated in his entry interview, also explains his willingness to travel to Australia by boat.
Even if any threats occurred, which I do not accept, I do not consider [the applicant] would be harmed as both his parents have been able to manage in a small community for a period of 10 years after he left Albania.
I do not find [the applicant]’s claims to be credible, and do not accept his claims that he was threated or would be threatened or harmed if he returns to Albania. I do not accept his claims that [Mr B] came to his property or that others came to the property, that they threatened his father or anyone else in his family, that this was reported to the police, or that his father was threatened again after this was reported to the police. As a result, I do not accept [the applicant] would suffer harm if he returns to Albania.
CONCLUSION
To meet the requirements in s 36(2)(a) to be a refugee, a person must meet the definition of refugee in s 5H of the Act. This includes that the person has a well-founded fear of persecution (s 5H(1)(a) of the Act).
The circumstances in which a person will have a well-founded fear of persecution are set out in s 5J of the Act. To have a well-founded fear of persecution, the persecution must involve serious harm to the person (s 5J(4)(b) of the Act).
As I do not accept that [the applicant] is at risk of harm if he returned to Albania, I am not satisfied that there is a real chance of him suffering serious harm. As a result, he does not meet the requirement to have a well-founded fear of persecution and does not meet the definition of refugee in s 5J of the Act. Therefore, he does not meet s 36(2)(a) of the Act.
Turning to s 36(2)(aa) of the Act, I am also not satisfied that there is a real risk [the applicant] will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia.
There is no suggestion [the applicant] meets s 36(2)(c) of the Act.
As [the applicant] does not meet any of the requirements in s 36(2) of the Act, he does not meet the requirements for a protection visa and the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Kate Millar
Senior 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.
…

[2024] AATA 3044

18 January 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Remedies

Statutory Construction