2109837 (Refugee) - [2023] AATA 2324

2109837 (Refugee) [2023] AATA 2324 (21 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Mitchell Simmons
CASE NUMBER:  2109837
COUNTRY OF REFERENCE:                   Albania
MEMBER:Kate Millar
DATE:21 March 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 21 March 2023 at 12:50pm

CATCHWORDS
REFUGEE – protection visa – Albania – Federal Court remittal – revenge killing – Kanun law – blood feud – no government connections – internal relocation – political opinion – involvement in the Christian Democratic Party – bogus document – false passports – Australian citizen child – request for Ministerial referral declined – decision under review affirmed

LEGISLATION
Australian Citizenship Act 2007 (Cth), s 12
Migration Act 1958 (Cth), ss 5H, 36, 48A, 65, 91R, 91S, 91WA, 417
Migration Regulations 1994 (Cth), Schedule 2
CASES
1217750 [2013] RRTA 82
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51

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 first named applicant] and [the fourth named applicant] are citizens of Albania. They arrived in Australia on tourist visas before first applying for a protection visa in 2011. Their applications for a protection visa were refused as they were found not to be refugees. The Tribunal affirmed this decision, and the decision was affirmed by the Federal Court [in] 2014.[1]
[1] [Case citation redacted].
On 28 February 2014, [the first named applicant] and [the fourth named applicant] made further applications for protection visas because their application had not been considered under s 36(2)(aa) of the Migration Act 1958 (the Act). New claims were raised by [the first named applicant] that since they had left Albania her cousin had died by suicide, that her uncle blamed her for her cousin’s death and that he will seek retribution. [The fourth named applicant] claimed he would experience harm for the same reasons articulated in his previous application.
[The first named applicant] and [the fourth named applicant] now have three children who were born in Australia. Their two eldest children, [the third named applicant] and [the second named applicant], also applied for protection visas. Since their application, [the third named applicant] has become an Australian citizen and can no longer meet the criteria for a protection visa. It is claimed on their son [the second named applicant]’s behalf that he will be harmed by [the first named applicant]’s uncle because he is her son. Their youngest child, [Child A], was born after they lodged their visa application and is not the subject of a decision that is before the Tribunal.
A delegate of the Minister refused their applications, and this decision was affirmed by the Tribunal. Their applications…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2109837 (Refugee)

Details

AGLC: 2109837 (Refugee) [2023] AATA 2324
Case: [2023] AATA 2324
Decision Date: 21 March 2023

CaseChat Overview and Summary

This matter concerned an application for review of a decision to refuse a protection visa. The applicants, who arrived in Australia on false passports in December 2010, comprised a married couple and their three Australian-born children. The Federal Court had previously dismissed an application for review of the decision, and the claims of the first and fourth named applicants were to be assessed under s 36(2)(aa), (b), and (c) of the Migration Act 1958 (Cth), while their children's claims were to be assessed against s 36(2)(a), (aa), (b), and (c).

The primary legal issues before the court were whether the applicants had established a well-founded fear of persecution for a Convention reason, specifically political opinion, and whether they could be protected by internal relocation within Albania. The applicants contended that the fourth named applicant's alleged involvement with the Christian Democratic Party placed him at risk of persecution. Additionally, the first named applicant raised a claim based on a blood feud arising from her alleged role in facilitating a relationship between her cousin and a man from a different religious background, which ultimately led to her cousin's suicide and subsequent threats against the applicant and her unborn child.

The court considered the evidence presented, including statutory declarations and country information. It noted that the claims regarding the fourth named applicant's political involvement were not accepted as credible by the Refugee Review Tribunal, and no legal error was found in that decision by the Federal Circuit or Federal Court. Regarding the blood feud claim, the court examined the detailed account provided by the first named applicant concerning her cousin's relationship, subsequent marriage, suicide, and the ensuing threats from the cousin's father and his family. The court acknowledged the traditional customs in northern Albania, including arranged marriages and the concept of blood feuds, as described in the applicant's evidence. However, the court found that the evidence did not establish that the threats made by the cousin's father were of such a nature that they would be carried out by the Albanian authorities or that the authorities would be unable or unwilling to protect the applicants. The court also considered the possibility of internal relocation, but the evidence did not demonstrate that relocation would not be a reasonable option for the applicants.

The court affirmed the decision to refuse the protection visa.

Orders

Orders of the court

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Background

Background to the litigation

As the Federal Court has dismissed the application for review of the decision to refuse a protection visa it is common ground that [the first named applicant] and [the fourth named applicant]’s claims are to be assessed under s 36(2)(aa), (b) and (c) of the Act, and the claims of their children are to be assessed against s 36(2)(a),(aa), (b) and (c). BACKGROUND [The first and fourth named applicants] came to Australia on false Italian passports [in] December 2010 and have now been in Australia for over 12 years. [The first named applicant] was born in [year] and is one of three children. Her father died approximately six years ago, and her mother, [Mrs B], lives in [Location 1], Shkoder in the family home with her mother-in-law, [the first named applicant]’s grandmother. [The first named applicant]’s sister [Ms D] lives in [Country 1], and her sister [Ms C] lives in [Country 2], but visits her mother in Albania regularly. Her mother has two brothers, one of whom lives close to her in Albania, and one of whom lives in [Country 3]. [The first named applicant] has two paternal uncles, one of whom now lives in [Country 4]. Her other uncle lives in [Location 2] in Shkoder together with his children. [The fourth named applicant]’s father is deceased, and his mother lives in [Country 3] with one of his brothers. He has another brother who lives Australia. [The fourth named applicant] has an uncle in Albania who lives in [Location 3]. He has other relatives in Albania, and said he keeps in contact, but said that with the passage of time the relationships have gone ‘a bit cold’. [The fourth named applicant] states he moved back and forth between [Country 3] and Albania in the period 1997 to 2008. [The first and fourth named applicant]’s marriage was arranged, and they married [in] September 2008 in [Location 3], however the marriage was not registered [until] August 2009. After their marriage [the first and fourth named applicants] lived in Tirana for approximately a year. [The fourth named applicant] states he worked for a political party, and both he and [the first named applicant] also worked in a factory producing [products] with his uncle. Their daughter [the third named applicant] was born in Australia on [date]. As she was born in Australia and has been resident in Australia for over 10 years, she qualifies for Australia citizenship under s 12 of the Australian Citizenship Act 2007 and is now an Australian citizen. Their son [the second named applicant] was born in Australia on [date]. [The first named applicant] and [the fourth named applicant]’s third child, a daughter [Child A], was born in Australia on [date]. Both [the first named applicant] and [the fourth named applicant] held a [document] for [Country 3] which is a residence permit for [Country 3], however this permit expired and according to the Department they no longer have a right to live in [Country 3]. [The fourth named applicant] was in a motor vehicle accident in 2019 and suffered serious injuries. His medical costs will be met for his lifetime regardless of where he is living under the Lifetime Support Scheme. He has lodged a claim in the District Court of South Australia seeking over $2,000,000 in compensation as a result of this accident and his injuries. According to his representative this matter has stalled due to issues with contributary negligence and the identity of the driver. [The fourth named applicant]’s representative has not been able to obtain any update to confirm these issues with [the fourth named applicant]’s representative for his compensation claim. RELEVANT LAW

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. 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. There are no DFAT country information reports for Albania. INFORMATION BEFORE THE TRIBUNAL In the statutory declaration accompanying the application dated 19 February 2014, [the first named applicant] claims:· The claims put forward by her husband are truthful and they are very disappointed those claims have not been accepted. They fear persecution in Albania because of her husband’s involvement in the Christian Democratic Party. The claims were not accepted as credible by the Refugee Review Tribunal, and no legal error was found in this decision by the Federal Circuit or the Federal Court. · She was married when she was very young in Shkoder, Albania at [age] years old. The marriage was not registered until 2009.· In June 2009, after the marriage she went to stay at her mother’s home in [Location 1], Shkoder. At the time her cousin [Ms E] was also staying with her mother.· They decided [Ms E] should stay on longer as they were getting along well, and her mother was happy to have her there.· Her mother has a number of vineyards and has workers that come to work on the vineyards. At the time there was a worker called [Mr F] who was undertaking work on the property.· [The first named applicant] and her cousin would take the workers drinks and coffee for their afternoon break. They did this several times and after a few days [Mr F] told [the first named applicant] he was interested in [Ms E] and asked for her name and some more information about her. She told him [Ms E] was her cousin, and she was only 15 years old. He smiled and said he was interested in her and asked [the first named applicant] to talk to her. He said he was serious about her and wanted to marry her.· Because of her good opinion of [Mr F], and as he was respectful to her, she decided to talk to [Ms E]. She encouraged [Ms E] and the day after, [Ms E] and [Mr F] started talking to each other. [The first named applicant] asked [Ms E] not to tell anyone she had introduced them because she knew the danger this would cause. This was because as [Ms E]’s family would not be happy and she didn’t want to cause problems for herself.· Between June and September 2009 there were casual conversations between her and [Ms E] about [Ms E]’s relationship with [Mr F], and she understood the relationship had moved ahead. · In about August 2009 [Ms E] told [the first named applicant] she and [Mr F] had slept together. This was a big deal in Albania as female virtue is highly prized. [Ms E] seemed very happy and other than encouraging [Ms E] not to tell anyone about her involvement, she didn’t think much about it.· After this she went to [Country 3] with her husband.· In September 2011 she was in Australia and called her mother, who told her there had been a wedding party for [Ms E] and a local boy [Mr G] from [Location 4]. She was surprised by this news as she knew about [Ms E]’s relationship with [Mr F].· [In] July 2012 [Ms E] died by suicide, and this was reported in an internet article.· Three days after [Ms E]’s funeral, [the first named applicant]’s mother called her and was crying. Her mother said “what have you done to her, what have you done to us, what have you done to yourself?” Her mother said [Ms E]’s family had come around and said [Ms E]’s death was [the first named applicant]’s fault. · [Ms E]’s father [Mr H] had come around and was yelling and screaming at her mother, pointing his finger at her and saying, “You will feel the pain as we are feeling it now”. She claims this means [Mr H]’s family were threatening to kill her so her mother would feel the same pain. · She says her mother told him to calm down and he then told her that [the first named applicant] had encouraged [Ms E] to be with a Muslim guy and what she had done to the family was terrible.· In Albania it is a terrible shame for a girl to make a choice about who to be with and the family expects to be involved in choosing a partner for a female child. · When the family of [Mr G] came to ask for [Ms E] she said she was in a relationship with [Mr F]. [Mr H] beat [Ms E] so severely she had to spend two weeks in bed. [Ms E] married [Mr G], probably by force. [Mr H] told her she had to marry who her family liked and not who she liked. When [Ms E] was married she left her husband and went back to her family three times. They kept sending her back to her husband, but she just didn’t like him. · In country areas such as Shkoder people live by the old traditions which include arranged marriages and treating females as if they are the property of the males of the family.· [Mr H] and his sons are brutal, even by Albanian standards, and to beat a daughter so severely she had to spend two weeks in bed is very serious. [Mr H]’s eldest son [Mr I] is just as bad. He killed his wife by beating her to death. [Mr H] has three sons.· Her mother is very worried about her and does not want her to go back to Albania. [Mr H] has said to her “My daughter is dead but your daughter will go the same way”. This was very frightening for her and her mother.· Under the code people live by in the north of Albania women’s lives are not worth much and there is no-one else but her to blame for the death of [Ms E]. If she returns to Albania she will be in trouble as she is the only person left for them to take revenge on. Her father is dead, and she does not have any brothers. Her husband could not be targeted because he is from a different family. · She is expecting a son and he will be at risk of being killed in revenge because he is her son.· [Mr H]’s family home is about half an hour’s drive from her family home.