2109837 (Refugee)

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 have been remitted by the Courts for reconsideration to the Tribunal on two occasions. This is the further reconsideration of the applications that were lodged on 28 February 2014.
The applicants appeared before the Tribunal on 31 August 2022 and 15 September 2022 to give evidence and present arguments. They were represented in relation to the review. The Tribunal also received oral evidence from [the first named applicant]’s mother, [Mrs B], and her sister, [Ms C]. The Tribunal hearing was conducted with the assistance of an interpreter in the Albanian and English languages.
APPLICATION HISTORY
The application has been before this Tribunal on three previous occasions. The history of the proceeding three matters is set out in the decision of the Tribunal dated 1 March 2018, and the Tribunal accepts and adopts this history:
[The first named applicant] first applied for a protection visa [in] February 2011 as a secondary applicant to her husband, but having completed a form 866C: ‘Application for an applicant who wishes to submit their own claims to be a refugee’. The applicant wrote in response to the question, ‘why did you leave that country?’
a. [T]he political enemies of my husband were threatening to kill him and the threats were directed at him in [Country 1] in the lead up to the proposed EU opening of the borders to Albanians. As his wife I am also under threat of kidnapping or violence because I am the chink in his armour, they can use me to get at him if they cannot find him. So I was forced to flee also.
[In] August 2011 a delegate of the Minister refused the application for a visa. On 22 March 2012 the Tribunal affirmed the delegate’s decision having specifically considered whether the current applicant, as she then claimed, would face a real chance of serious harm as a member of a particular social group (member of her husband’s family).
Following the passing into law of the Migration Amendment (Complementary Protection) Act 2011 (Cth) the first named applicant applied for a protection visa in February 2014. A delegate of the Minister refused the applicant [in] March 2015. The applicant appealed this decision to the Tribunal which subsequently affirmed the delegate’s decision on the 14 September 2016. The applicant appealed this decision to the Federal Circuit Court. The case was remitted by consent originally for the reason:
b. The Tribunal committed a jurisdictional error by failing to consider the First Applicant’s claims under s 36(2)(a) of the Migration Act 1958 (Cth), in circumstances where the First Applicant’s claims were not assessed against s 36(2)(a) in her earlier Protection visa application. As outlined in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235, it was open to the First Applicant to seek to satisfy either s 36(2)(a), (aa) or (c) in her present Protection visa application, being the criteria against which she had not previously been assessed. However, the Tribunals consideration of the First Applicant’s claims has resulted in findings being made only against s 36(2)(aa), (b) and (c) and therefore the Tribunal fell into jurisdictional error.
The Tribunal questioned the reason for remittal as s.48A of the Act places a bar on a further application which duplicates an earlier unsuccessful application for a protection visa. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of under specific circumstances only considering claims in relation to the complementary protection criterion in s.36(2)(aa). As a result, under Rule 16.05(2)(f) of the Federal Circuit Court Rules 2001 the reason was subsequently varied to:
c. The Tribunal denied the applicant procedural fairness and that this constituted a jurisdictional error, of the kind found in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183, in circumstances where:
a. A delegate of the first respondent issued a notification pursuant to s.438(1)(b) of the Migration Act 1958 (Cth) [in] March 2016 and the existence of the notification was not disclosed to the applicant in the course of the review by the Tribunal; and
b. At least some of the documents subject of the notification were relevant, or potentially relevant, to the issues arising on the review by the Tribunal.
Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a).
For this reason the decision reconsiders the case following the remittal to the Tribunal of the February 2014 application. For the first and fourth named applicants it considers claims under s.32(2)(aa), (b) and (c). For the second and third named applicants this decision considers claims under the entirety of s.36(2).
On this reconsideration, the previous Tribunal found that none of the applicants was a person in respect of whom Australia has protection obligations. The previous Tribunal explained the information that was the subject of the certificate issued under s 438 of the Act was incorrect and could not be relied on, and I also consider this information irrelevant to the issues before me.
The applicants sought review of the decision of the previous Tribunal in the Federal Circuit Court which affirmed the decision. [In] 2021, the Federal Court set aside the decision and remitted it for reconsideration. This is the reconsideration of this matter.
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
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). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
The claims of [the fourth named applicant] and [the first named applicant] have been considered under s 36(2)(a) of the Act, and the decision that they do not meet s 36(2)(a) of the Act has been affirmed by the Federal Court. Their claim will not be considered again under s36 (2)(a), however the claims of their children can be considered under this criterion.
Refugee criterion
Section 36(2)(a) as it was at the date of the application 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
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 a protection 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 the applicant 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’).
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

Under s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
Member of the same family unit
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.
In her statutory declaration dated 2 August 2016, [the first named applicant] adds that:
·     Her children [the third named applicant] and [the second named applicant] do not hold Albanian passports and are unable to obtain a passport without visiting Albania. She states it is her understanding they are therefore unable to enter Schengen zone countries without a visa.
·     Her mother feared she would be aggravating the situation by reporting it to police.
·     [Ms E]’s father suffered a mental health episode following the death of his daughter.
·     At the time [Ms E]’s father came to her mother’s house, her mother was living with her brother and his wife, her sister and her grandmother.
·     The revenge sought by [Ms E]’s family does not fall within traditional rules of blood feuds, but the Kanun law and blood feuds are being used to justify any revenge and murder in Albania.
·     She and her husband entered Australia using false Italian passports as they believed it was the only way to escape the persecution they were facing.
In her statutory declaration dated 9 May 2017, [the first named applicant] adds:
·     Her mother and sister have not been actively targeted by [Mr H] because [Mr H] does not have any issues with them.
·     Her mother now only lives with her grandmother and has no male protection as [the first named applicant]’s uncle (her mother’s brother) has moved to [Country 3]. It is tradition for gates to be left open, but her mother now closes and locks her gates and when [Mr H] yells outside she does not respond.
·     [Mr H] keeps asking her mother where [the first named applicant] is, and she assumes he does not know she is in Australia.
·     On the first-year anniversary of [Ms E]’s death he said he searched [Country 3] for her but did not say where he searched or how long her searched.
·     [The fourth named applicant]’s mother and brother live in [Country 3] and have not said they have been approached.
·     Her uncles are very angry with her, but she does not think they would assist [Mr H] to find her. She has some relatives living in various places around Albania. Her mother is in contact with those on her side of the family, but they are not aware of the situation, and they have not said [Mr H] has been asking questions about her.
·     The suggestion she could go to another area in Albania is ridiculous. If it were easy to hide in Albania people would not lock themselves in their houses for many years because of blood feuds.
In his original application [the fourth named applicant] claimed to fear harm because of his involvement in Albanian politics. He claimed he has been threatened by members and officials of the Democratic Party of Sali Berisha, including by [Mr J], the Chief of Police at [Village 1] and who is linked to [Mr K], the Chairman of the Commune of [Village 1].
At hearing, [the first named applicant] said:
·     [Mr H] lives in [Location 5] which is half an hour from where her mother lives.
·     She does not know if he had held political office or has political power.
·     She thinks it is very easy to give money to the police, and [Mr H] will be ready for her when she returns.
·     [Mr H] is a very angry and aggressive person towards everyone in his family. He has no mercy for anyone including his children.
·     [Mr H] has five children, three boys and two girls. His sons are similar to him because they have learned to be angry, and they are strong men. His sons have never approached her mother. She said they live in the same place as [Mr H], but she does not know much.
·     [Mr H] and his sons, and anyone in his family wants to take revenge on her. She said one of his threats was that he and his son “can’t wait” for [the first named applicant] to come home. She said he especially mentioned his other sons. His eldest son [Mr I] is an angry person.
·     Albania is very small and if she returns to Albania the government would know and [Mr H] and his family will pay someone in the police to know.
·     She now owns a [business]. In the past she has worked as a [Occupation 1] and she intends to return to [Occupation 1] work now her youngest child is older.
[The fourth named applicant]
[The fourth named applicant] suffered serious injuries in a motor vehicle accident in March 2019, including a head injury. He claims he was the passenger in a motor vehicle which lost control and collided with trees. The driver died in the accident. [The fourth named applicant]’s injuries included a head injury and fractures to his spine and ribs. According to his statement of claim for damages he has ongoing symptoms including those of an acquired brain injury, pain and restriction of movement in his spine, left hip, left foot and right foot, ongoing paraplegia with difficulty walking and depression and anxiety.
The Tribunal asked [the first named applicant] about [the fourth named applicant]’s ability to give evidence. [The first named applicant] said that [the fourth named applicant] has memory problems and is in a lot of pain. He takes strong medication such as Endone which makes him sleepy. She said while he can walk now, his walking is limited. He was training to be a driver and can drive a car but could not get a truck licence because of his injuries. She said he cannot sit or walk for very long due to back pain and has not worked since the accident.
[The fourth named applicant] told the Tribunal he and his family cannot return to Albania because of his involvement in the political group, and secondly because of the problem created by his wife. He said any political involvement is not a big deal now, but he is concerned about his children because of [Mr H] and his wife’s cousin. He said he can take a risk and return to the country, but his children cannot return.
On being asked what his concerns were for the children, he said the people involved with [Mr H] will kill his children. He said his wife’s cousins would kill his children. He could not remember the names of her cousins but said he had taken Endone and was struggling with his memory. [The fourth named applicant] said his daughters would also be at risk because someone has killed someone else’s daughter and they will come and search for his children.
[The fourth named applicant] said he does not know how the Lifetime Support Scheme works and was not aware that it would meet his medical expenses regardless of where he is living.
[Mrs B]
[Mrs B] provided two statements. In her first undated statement she states (in summary) that three days after [Ms E]’s funeral [Mr H] came to her house. He was angry and aggressive and said “I will make you feel the same pain we are having now”. He told her about [Ms E] and said he blamed [the first named applicant] for her death. He said that in June 2009 on the insistence of [the first named applicant], [Ms E] stayed at her house and that [the first named applicant] enabled the relationship between [Mr F] and [Ms E] which ws a violation of family honour. [Mrs B] states [Mr H] engaged [Ms E] to [Mr G], but she told him she loved [Mr F] who is Muslim. [Mr H] violated [Ms E] and decided to celebrate her engagement and marriage for two months with the man chosen by him because she was a minor. [Ms E] left her husband three times, but [Mr H] sent her back. Even today [Mrs B] is threatened by [Mr H] who is telling her he will punish her according to the Kanun law and they have been informed [the first named applicant] has a son, and their North area executed Kanun law.
In her second undated statement, [Mrs B] states [Mr H] came to her house in 2017 and she heard [Mr H] say in a loud and angry voice that now he knows everything about [the first named applicant] and her family, and he described the revenge he would take against her nephew [the second named applicant].
[Mrs B] told the Tribunal she has a brother in [Country 4] and a brother who lives in [Location 6] and [Location 7] in Shkoder. Her brothers have children who live [Location 8] in Shkoder.
[Mrs B] lives with her mother-in-law. She said her brother helps with shopping for food and clothes. She has employees who run the farm and employs up to 10 people depending on the season. If she needs assistance with her health, she sees a doctor in Shkoder but if she needs help with her heart or requires surgery she goes to Tirana.
[Mrs B] told the Tribunal [the first named applicant] cannot return to Albania because of revenge issues due to [Ms E]’s suicide. [Mr H] came to her house three days after [Ms E]’s funeral, grabbed her arm and had a very scary attitude. [Mrs B] said [Mr H] was violent towards [Ms E], and threatened [the first named applicant] and her family. He came to her house and was banging at the front door and expressing himself in a frightening way towards her daughter and her daughter’s family. She has felt threatened since this time.
[Mr H] returned on the one-year anniversary of [Ms E]’s death.
She said the last time [Mr H] came to the house was before COVID, around two years ago. She said she did not know why it stopped, but because of COVID restrictions people are staying indoors most of the time.
[Mrs B] advised [Mr H] is older than her. He does not have a position in government or in the police, and he has worked on farms and in agriculture. She said his sons have never come and threatened her, but that they are very hot-headed like [Mr H].
[Mrs B] said [the first named applicant] could not live in Tirana or anywhere in Europe because all she can expect is revenge. She said [the fourth named applicant] has concerns because of some involvement in politics.
[Mrs B] said all of [the first named applicant]’s family are at risk, especially [the second named applicant]. She said if [the first named applicant]’s family are harmed this may cause a feud with [the fourth named applicant]’s family.
[Mrs B] said that if [the first named applicant] returns to Albania, her uncle, [Mrs B]’s brother, will be unable to protect her as he has his own family and he cannot help.
[Ms C]
[Ms C] also gave evidence and had previously provided a statement dated 13 July 2016. [Ms C] lives in [Country 2] but returns to Albania nearly every year. She last returned to Albania in August 2022.
She said it had been a while since she had seen [Mr H], but he is very aggressive and hot-headed. Before [Ms E] died it has been several years since she had seen [Mr H] as they do not have a close relationship. She could not recall much before [Ms E] died. She could not recall [Mr H] visiting their home.
She said she had been present when [Mr H] made threats against her sister. Her mother became ill because of the threats and consistent fear. She said that [Mr H] said to her mother that he will follow Kanun law of Lek Dukagjini and will make sure she feels the pain he is going through.
Her mother has received other threats, but she was not there for those threats.
[Ms C] said she was not aware of anyone other than [Mr H] threatening [the first named applicant] or her family. She said it is just him, and they are all scared of him because he is a very angry man. She said her mother keeps her door closed because she is frightened of him. Every time she sees him, he says he will take revenge.
On being asked about the frequency of the threats, she said it was very frequent before COVID, but she was not aware of any threats after COVID. She has not seen [Mr H] or any his family members when visiting Albania. She said when she visits her mother she is scared to stay too long. She has never been physically harmed by [Mr H] or anyone in his family but is frightened by the threats which has scared them. Then only physical contact was when he grabbed her mother by her arms.
The family has not told the police about the threats because it is very hard for them to speak to the authorities about this issue because they haven’t had the self-esteem to do that because for them it is shameful to talk to the police. The authorities are corrupt, and no-one can make them feel safe even if they talk to the authorities.
[Ms C] did not think her uncles in Albania could provide protection, at least for this issue, and did not think [the fourth named applicant]’s family could assist because some members of his family are not in Albania.
DOCUMENTS

In the course of this matter, the applicants have provided various documents. A complete list of the documents provided is included as Annexure A to this decision.
The Tribunal provided references to country information in the context of questions being asked about [the fourth named applicant]’s need for health care, relocation, state protection and the claimed revenge sought by [Mr H], and provided the applicant further time to comment on these documents:
·     US International Trade Administration Healthcare Technical Resource Guide for Albania.[2]
·     US Department of State 2021 Country Reports on Human Rights Practices: Albania[3]
·     United Kingdom Upper Tribunal EH (blood feuds) Albania CG.[4]
[2] Healthcare Resource Guide – Albania (trade.gov)
[3] Albania – United States Department of State.
[4] [2012] UKUT 00348 (IAC) (October 2012).
It was submitted that at the time the response was prepared, the reports from the UK Home Office had been removed for review, and in these circumstances, no weight should be placed on the Home Office reports.
After the hearing, new country information and policy reports on Albania were published by the United Kingdom Home Office. A copy of the following reports was provided to the applicants, who were asked to comment on the application of these reports to (a) the ability of the applicants to obtain protection from the authorities in Albania such that there would not be a real risk of significant harm, (b) whether it is reasonable for the applicants to relocate to Tirana, (c) whether in Tirana there would be no real risk that the applicants would suffer significant harm, and (d) the availability of healthcare of the type required by [the fourth named applicant]. The reports were:
·     Country Policy and Information Note Albania: Actors of Protection December 2022[5]
·     Country Policy and Information Note Albania: Blood Feuds January 2023[6]
·     Country Policy and Information Note Albania: Medical and healthcare provision November 2022.[7]
[5] Country policy and information note: actors of protection, Albania, December 2022 (accessible) - GOV.UK ( Country policy and information note: blood feuds, Albania, January 2023 (accessible) - GOV.UK ( ALB CIN Medical and healthcare (publishing.service.gov.uk)
A further submission was provided on 8 March 2023.
INFORMATION PROVIDED BY THE TRIBUNAL UNDER S 424A AND S 424AA OF THE ACT
Information was provided to the applicants under s 424A of the Act at the hearing. This information was that the Tribunal in 2012, when considering his refugee claims, found that [the fourth named applicant] was not a credible witness in relation to his claims to fear harm due to his political activity.
Information was also provided to the applicant under s 424A regarding evidence given by [Mrs B] that:
At the hearing on 22 August 2016, [Mrs B] gave evidence that: [Mr H]’s wife’s family lives nearby and he comes to her village often because his wife’s family lives nearby.
At the hearing on 15 September 2022 [Mrs B] gave evidence that:
·There have been no threats from [Mr H] since before COVID; and
·[Mr H] does not have connections with police or other authorities and has always worked on farms or in agriculture.
·No-one other than [Mr H] has made threats.
·[Mr H]’s sons have not made any threats.
·[Mr H] is older than [Mrs B].
The applicants were advised this information was relevant to whether there is a real chance of serious harm or real risk of significant harm from [Mr H] or his sons if the applicants return to Albania. It is also relevant to whether, if there were any real chance of significant harm, there would be no real risk of significant harm if the applicants were to relocate to Tirana.
In response, it was submitted that the absence of recent threat is not a reasonable basis on which to find [Mr H] no longer wishes to harm [the first named applicant] where he has not rescinded his threat, there have previously been long gaps between threats, and [Mr H] is aware [the first named applicant] and her family are in Australia. It is submitted the lack of connections to authorities does not affect his profile as a particularly brutal man living in rural Albania where he lives according to old-fashioned traditions including views on women, this will mean he is accustomed to a level of endemic corruption and impunity that has existed in Albania, and his beliefs in blaming [the first named applicant] will attract sympathy with like-minded members of the community. It is submitted he will therefore seek out corrupt or sympathetic police officers or authorities and know how and where to seek this out through his connections in the rural/traditional community.
It is submitted it has not been claimed [Mr H] would harm [the first named applicant] through a physical assault and given the mode of [Ms E]’s death it is clear he has access to firearms.
The submission relies on the previous submissions on relocation to Tirana and on State protection. A further article[8] was provided on three injuries and three deaths by a man released from prison because of a previous relationship or due to revenge, and it was submitted that [the first named applicant] and her family refuse to accept there is effective police protection and this is to the extent that they have been unwilling to approach the police despite [Mr H]’s threats.
[8] Tirana Times “Albania fumes over violence after man kills three women, wounds three more in targeted spree” 2 March 2023.
The submissions acknowledge that given the UK Home Office report on healthcare, Tirana is [the fourth named applicant]’s ‘only hope’ for health care for his ongoing conditions.
FINDINGS OF FACT
Before assessing the claims for protection, it is necessary to consider the findings of facts made about each member of the family so that an assessment can be made of the cumulative circumstances of the applicants.
[THE FIRST NAMED APPLICANT]
The Tribunal accepts that [the first named applicant] introduced [Ms E] to [Mr F], that [Ms E] and [Mr F] formed a relationship, that [Ms E] was required to marry another person, and that [Ms E] died by suicide.
The article regarding the death of [Ms E] reports she died by shooting herself with a shotgun, and the Tribunal accepts that firearms are available in that community, albeit that the gun reportedly involved in [Ms E]’s death belonged to her father-in-law and not to her father.
The Tribunal accepts that [Mr H] beat [Ms E] and is, as described in submissions, a brutal man who holds traditional values.
The Tribunal accepts that [Mr H] said to [the first named applicant]’s mother that she would feel the same pain as him, and that he may have yelled threats to her mother when passing by in the time since [Ms E]’s funeral in 2012 until approximately two years ago. It accepts he grabbed [Mrs B] by the arm. The Tribunal finds that in the past he has taken the opportunity when visiting the area to yell threats outside [Mrs B]’s home. It regards these threats as opportunistic and transitory.
The Tribunal finds it is no more than speculation that [the first named applicant] would be harmed by [Mr H]’s sons. At highest, [the first named applicant] says that [Mr H] told her mother that he and his sons cannot wait for her to return. [Mrs B] told the Tribunal [Mr H]’s sons have not been to her house to make threats, and that no-one other than [Mr H] has made threats against [the first named applicant] or her family. There is no other evidence that [Mr H]’s sons pose a risk to [the first named applicant] or any members of her family. While the Tribunal accepts that in the framework of traditional laws [the first named applicant] may subjectively fear [Mr H]’s sons, it is no more than speculation that there is a risk to her or any of her family members from [Mr H]’s sons.
On the basis of [Mrs B]’s oral evidence, the Tribunal finds that there have been no threats for over two years, that [Mr H] is a man who is older than her, and that he does not have any connections with police or authorities. It further finds in accordance with her evidence that he has always worked in farming or agriculture.
It was submitted that the absence of any recent threats was not a reasonable basis to find [Mr H] no longer wishes to harm [the first named applicant] in circumstances where he has not expressly rescinded his threat, there have previously been long gaps between threats and [Mr H] is aware [the first named applicant] and her family unit are in Australia. It is submitted the absence of threats only indicates there is a stalemate while [the first named applicant] remains in Australia.
The Tribunal finds [the first named applicant] fears harm from an older man who has not threatened her mother for over two years. He does not have a position of authority or connections with the police. The Tribunal accepts that if [the first named applicant] were living with her mother, or if he was to come across her in their hometown, there may be a low but real risk that he would take the opportunity to berate her, or to plan revenge. Given his reported previous actions in beating [Ms E], there is a small but real risk of him inflicting significant harm in terms of physical injury. There are no reports that he has firearms, but the Tribunal accepts firearms are available in the community and there is a small but real risk he would use a firearm.
[THE FOURTH NAMED APPLICANT]
[The fourth named applicant] originally claimed to fear harm because of his involvement in a political party. He has stated in the course of this matter that he was involved in a local election in 2007 and a national election in 2009 as a scrutineer for the Democratic Christian Party and was threatened in the lead up to the election but was not harmed. He remained in Albania for three months before going to [Country 3].
In his first application for a protection visa, these claims have been found to not be credible, and the finding that he does not fear harm because of his political opinion was upheld by the Federal Court.
Information from the Tribunal’s decision in 2012 was provided to the applicants under s 424A of the Act. This information was that [the fourth named applicant] was not a credible witness. In response it was stated that as the factual basis of his claim was accepted in a previous hearing of this application, but the Tribunal ultimately found he did not have a well-founded fear of harm given the time that had passed and the lack of threats, there is no reason to defer to the findings as part of the previous application.
[The fourth named applicant] has not been in Albania for approximately 13 years. His claims to fear harm from others due to his political opinion were not pressed at hearing other than in the submission that the reasons they left [Country 3] remained correct. The Federal Court affirmed the decision that [the fourth named applicant] did not meet the requirements for a protection visa.[9] The current hearing is a continuation of the previous hearings of this application, and the Tribunal may form its own view as to [the fourth named applicant]’s credibility.
[9] [Case citation redacted].
However, since this time [the fourth named applicant] has suffered a head injury and this combined with the medication he takes affects his memory.
Ultimately little turns on his credibility in this matter, as even if the Tribunal were to accept that he is a credible witness, due to the passage of time and as this claim was not pressed the Tribunal finds he would not suffer harm because of any political activities if he were to return to Albania. For the reasons given below, the Tribunal has not considered the application of s.91WA of the Act.
People who have been injured in a motor vehicle accident and who have suffered moderate or severe brain injury or a spinal cord injury are eligible for the Lifetime Support Scheme,[10] which funds ‘necessary or reasonable’ treatment, care and support regardless of where the person is living. It was submitted [the fourth named applicant] would not be able to relocate in Albania because he requires treatment from specialist medical practitioners and relocation must consider effective access to suitable treatment.
[10] Lifetime support | Lifetime support.
The Tribunal provided information to the applicants on medical treatment in Albania, and in further submissions it was stated that [the fourth named applicant]’s only hope for getting the treatment he requires is if he were to relocate to Tirana.
[The fourth named applicant] lodged a claim in the District Court [in] March 2022 for over $2M in compensation against the compulsory third party insurer as a result of the injuries he suffered in a motor vehicle accident in which he was not the driver of the car. He has been unable to work since this accident. He has claimed non-economic loss, economic loss, loss of future earning capacity, costs for past and future domestic services. [The first named applicant] claims loss of consortium. While it is claimed, without supporting evidence, that this action has stalled due to issues with the identity of the driver and issues of contributory negligence the Tribunal must consider what is likely in the reasonably foreseeable future if he were to return to Albania, and it finds it is likely that [the fourth named applicant] will receive some form of compensation for his injuries and on the resolution of his claim the family will have access to some level of financial support.
The Tribunal rejects claims that [the fourth named applicant] fears harm due to his political activities. It finds [the fourth named applicant] has a need for medical care that will require him to live in Tirana, that the costs for the medical care required because of his injuries will be met for his lifetime.
[THE THIRD NAMED APPLICANT]
[The third named applicant] is an Australian citizen, and it is conceded she does not meet the requirements for a protection visa as she is not a non-citizen.
[THE SECOND NAMED APPLICANT]
At the hearing, [the first named applicant] claimed that according to Kanun law [Mr H] cannot take revenge on her female children, so the next target would be [the second named applicant]. She said if he cannot get her, [Mr H] will get her son. She said she was the target originally as she does not have any brothers and her father died when she was six years old, and according to the rules of Kanun law, there are no males in the family. She said this is in the written laws of the Kanun that the male descendent is the target. On being asked why she thought Kanun law applied, she said if there is a male relative the revenge will not be taken on the females.

100. There is a disjuncture between the current submissions and the oral evidence of the parties. In past submissions in 2014 and 2016, it was submitted that [Mr H]’s threats were part of a blood feud. Following remittal by the Court in later submissions it said that the applicants do not claim there is a blood feud, however [the first named applicant], [Mrs B] and [Ms C] all talk about revenge within the framework of Kanun law. It is submitted this does not fall within the traditional concept of a blood feud, but is an interpretation of traditional law.
101. The Tribunal found the evidence regarding any threats against [the second named applicant] vague and unconvincing. [Mrs B] is the only person reported to have heard these threats. Other family members state they fear for [the second named applicant]’s safety.
102. The applicants state that they do not claim this is a traditional blood feud, however the only way in which [the second named applicant] would be targeted is if a blood feud has been initiated by [Mr H]. This imports the traditional element of a blood feud in targeting the next male relative in circumstances where an individual female has been targeted which is inconsistent with the traditional concept of a blood feud, and the Tribunal rejects the claim that [the second named applicant] would be targeted by [Mr H] because of a blood feud.
103. It is submitted that what is feared is the irrationality of [Mr H] and his lust for revenge. While [the first named applicant] may subjectively fear for [the second named applicant]’s safety given the culture of the area, the Tribunal is not satisfied that threats have been made against [the second named applicant] or that he would be at risk from [Mr H] or his family if he returned to Albania.
104. It is also claimed that [the second named applicant] would not be able to obtain a passport to allow him to enter Schengen zone countries unless he returns to Albania. Current information on the Schengen zone indicates citizens of Albania can enter other Schengen zone countries for a maximum of 90 days within a 180-day period.[11] The Tribunal does not consider this is the same as an ability to enter and reside in a third country. It was not suggested [the second named applicant] would be unable to obtain Albanian citizenship if he were to return to Albania.
[11] ETIAS Requirements for Albanian Citizens - SchengenVisaInfo.com
ASSESSMENT OF FACTS
REVENGE KILLING IN ALBANIA
105. The Tribunal was referred by [the applicant]’s representative to the report of the Office of the Commissioner General for Refugees and Stateless Persons dated 29 June 2017 Blood Feuds in contemporary Albania: Characterisation, Prevalence and Responses by the State (Cedoca Report).
106. This report describes the Kanun law as follows (footnotes omitted):
According to general reports, a centrally enforced justice system was virtually absent in Albania throughout the whole Ottoman period (from 1385 till 1912). This was especially the case in the remote and mountainous northern parts of the country where - for more than 500 years - clans and tribes were able to keep and develop their own identity, autonomy and traditional way of life. They regulated their communal life (social and cultural issues) with so-called customary law
The principles and structural elements (the regulations) of Albanian customary law are traditionally referred to as the Kanun. Different communities and regions, and sometimes villages in Albania, all had their own orally transmitted Kanun. Originally, it was “a set of rules observed in particular and rather small communities and enforced by a council of elders”. A nobleman by the name of Lekë Dukagjini codified the regulations of the Kanun for the first time in the 15th and the Kanun of Lekë Dukagjini eventually gained a wide area of influence and became the best known. But even after this codification other Kanuns were being used as well. According to the Albanian Institute for Public Affairs (AIPA), the Kanun has never been a single, unitary legal code.
General reports all underline that “the Kanun” regulated the most essential aspects of social conduct within Albanian local communities: family, marriage, the rights of religious institutions, private property, credits and donations, work, claim for damages, justice, the role of the elderly, etc. And, importantly for this COI Focus, the Kanun also regulated the resolution of conflicts and disputes either through violence (gjakmarrja) or through mediation (besa). The Kanun could be described as the penal law code, the civil law code and public law code all in one same code. Or, as a report by Operazione Colombia concluded: “The Kanun tradition represented the only form of social and legal control, given the absence of alternative normative systems” the principles and structures of Albanian customary law are traditionally referred to as the Kanun.

107. It is acknowledged in submissions that the applicants and their witnesses have directly and indirectly referred to blood feuds under Kanun law in attempting to explain their claims. It is submitted that the harm feared by [the first named applicant] and her family is not linked to a traditional blood feud, but form part of a contemporary blurring of traditional Kanun law and revenge. It is submitted Northern Albania is increasingly justifying any form of criminal revenge and murder in these customary practices. The submissions state:

At its core, this is a matter involving a brutal and violent man who seeks to justify his violence in custom and tradition and who wants to kill [the first named applicant] on the basis that he believes she is responsible for his daughter’s suicide … Given that all parties have grown up in Northern Albania, the facts that the Applicants and their witnesses may have sought to invoke the blood feud framework is entirely consistent with his report [the Cedoca Report], and so there is no reasonable basis to find the application are seeking to embellish their claims or to consider the claim as unplausible simply by noting the incompatibility with the traditional blood feud framework.

108. This is a retreat from submissions made in 2014 and 2016 which state the persecutors have resolved to pursue a blood feud beyond Northern Albania, that blood feud murder cases are increasing and that relies on blood feuds to explain why the family cannot relocate within Albania.
109. This retreat can be understood by reference to country information cited in previous decisions, and most recently in the UK Home Office Report on blood feuds in Albania that in general a person fearing an active blood feud is not likely to be at risk of persecution or serious harm,[12] that blood feuds in general affect the male blood lines of opposing families rather than individual targets, and that women and girls are unlikely to be the direct target of a blood feud.[13] This information means it is unlikely that the individual targeting of a female falls within the concept of a blood feud, and that [Mr H]’s actions in individually targeting [the first named applicant] do not fall within the framework of a blood feud, but rather individual revenge.
[12] At [2.4.1].
[13] At [2.4.3].
110. The Tribunal acknowledges the submission that [the first named applicant] fears [Mr H] given his threats he had made to her mother that she will feel the same pain as he feels. It accepts that these threats occurred in the context of a society that has been governed by traditional (Kanun) laws. It accepts that it is mere speculation as to what motivates [Mr H] to make threats against [the first named applicant] to [Mrs B], and that reference to blood feuds does not explain [Mr H] seeking revenge on [the first named applicant].
111. Even if it did accept there was an element of a blood feud, the UK Home Office reports that relocation is possible within Albania, depending on the reach of the pursuing clan. This is also consistent with the findings of the Upper Tribunal in EH.[14] The Tribunal considers this information on relocation can be applied where an individual, rather than a clan, seeks revenge.
[14] Paragraph 70 of EH states:
Internal relocation will be effective to protect an appellant only where the risk does not extend beyond the appellant’s local area and he is unlikely to be traced in the rest of Albania by the aggressor clan. A crucial factor in establishing whether internal relocation is a real possibility is the geographical and political reach of the aggressor clan: where that clan has government connections, locally or more widely, the requirement to transfer civil registration to a new area, as set out at 2.4.4 above, would appear to obviate the possibility of ‘disappearing’ in another part of the country, and would be likely to drive the male members of a victim clan to self-confinement in the home area as an alternative. Whether internal relocation is reasonable in any particular appeal will always be a question of fact for the fact-finding Tribunal.
112. As noted later in the submissions “There is no way that can know how [Mr H] will act or explain his previous actions, and given it is the irrationally and blind lust for revenge that is feared by [the first named applicant]], attempting to rationalise nor understand his conduct and what ‘rules’ he may follow is inherently futile.”
113. There are no specific threats that [Mr H] has made that he will seek out corrupt police officers to deny the [applicants’] family receiving adequate state protection or the ability to relocate, or that he will know how and when to seek this out through his connections in the rural/traditional community. This claim is inconsistent with country information that the ability to relocate where a clan is pursuing a person depends on the geographical and political reach of the aggressor. [The first named applicant] and [Mrs B] both state [Mr H] does not hold a position in the community and does not have connections with police or other authorities and has always worked on farms or in agriculture. He has not approached [the fourth named applicant]’s family in [Country 3] and has not shown an ability or willingness to travel to achieve his reported aim to take revenge for the death of [Ms E]. The Tribunal finds [Mr H]’s geographic and political reach at best extends to his local area, and that he will not travel outside this area to locate [the first named applicant].
[The second named applicant]
114. A family is capable of constituting a particular social group within the meaning of the Convention. However, this is subject to s 91S of the Act, which provides that the following matters must be disregarded in determining whether a person has a well-founded fear of being persecuted for reasons of membership of a particular social group that consists of the person’s family:
(a)any fear of persecution, or any persecution, that any other family member has experienced, where the fear or persecution is not for one of the Convention reasons; and
(b)any fear of persecution, or any persecution, that the applicant or any other family member has 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 (a) above had never existed.

115. Therefore, a person who is pursued only because he or she is a relative of a person targeted for a non-Convention reason will not have a well-founded fear of persecution under Australian law, and [the second named applicant] does not meet the requirements in the Act to be a refugee.
116. The Tribunal found the alleged threats against [the second named applicant] vague and unconvincing. It is inconsistent with country information that [Mr H] would take a non-traditional approach to revenge against [the fourth named applicant], by individually targeting a female, but then take a traditional approach by targeting a male member of the family. The Tribunal rejects the claim that [the second named applicant] is at risk of harm from [Mr H] or anyone else in Albania and finds that there is no real risk of significant harm to [the second named applicant] if he returns to Albania.
RELOCATION
117. Under s 36(2B) of the Act, 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 it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk of significant harm.
118. In written submissions dated 27 February 2014, 16 June 2014 and 26 August 2016 it was claimed that relocation is not possible in Albania and refers to 1217750 [2013] RRTA 82 (29 January 2013) in which the Tribunal found Albania is a geographically small country and there is no adequate state protection. In 1217750 the Tribunal found that blood feuds do not abate with time but continue down generations and cross international borders. The Tribunal found that at least one person had been murdered in the UK in recent years by an Albanian who travelled from Albania to carry out a killing in accordance with a blood feud. This submission refers to the 2013 UK Home Office Report, including a quote stating internal relocation may provide sufficient protection depending on the reach, influence and commitment to the prosecution of the feud by the aggressor clan.
119. It was submitted that “the [applicants’] family has previously sought refuge in [Country 3] where they were discovered”. The 2016 submission refers to the Overseas Security Council’s 2014 Crime and Safety Report on Albania and quotes a section that states that after being repelled by armed gags during a raid on a marijuana plantation, the area of Lazarat in Gjirokaster District has largely been left alone by law enforcement and drug traffickers are known to patrol the roads. It is submitted this is indicative of the lack of adequate state protection outside of northern Albania and the lack of police protection cannot be localised only to this area. It is submitted that if people were able to relocate in Albania to escape blood feuds they would do so and that the European Parliament had found “many thousands of people continue to be affected by a blood feud.
120. [The first named applicant]’s statutory declaration of 9 May 2017 states that the suggestion she could relocate to Albania is ridiculous.
121. [The first named applicant] was asked where she would return to if she were to return to Albania, and she said a cave, or to hide because she cannot return. On being asked if she could return to Tirana, she said it doesn’t matter if it is Tirana or Shkoder because it is the same everywhere. In this case, [the first named applicant] and [the fourth named applicant] have said they lived in Tirana after they married and both worked in a [factory]. Tirana is the capital of Albania and the central place at which medical services for [the fourth named applicant] are available.
122. [The first named applicant] said the medical services in Albania are poor, and she doubts they can provide the services he needs. [The first named applicant] was referred the US International Trade Administration Healthcare Technical Resource Guide for Albania.[15] This states there are 13 private hospitals, as well as dozens of private multi-disciplinary diagnostic clinics that offer a full range of medical services. The probability of having the services [the fourth named applicant] requires is greater in the capital Tirana than elsewhere in Albania.
[15] Healthcare Resource Guide - Albania (trade.gov)
123. [The first named applicant] is capable of working and has worked in Australia and in Albania. They have three children, and it is claimed she is unable to work or has a limited work capacity due to the need to care for her children. Since [the fourth named applicant]’s injury, [the first named applicant] gave evidence that she has worked as a [Occupation 1] and currently owns a [business]. She said she will soon resume [Occupation 1] work following the recent birth of their youngest child. The Tribunal finds she has a capacity to work, and to operate a business including after [the fourth named applicant] was injured.
124. It was submitted that this type of work could not be maintained while the family is in hiding or living in a regional town that does not have a population to support these activities. [The first named applicant] was asked by the Tribunal where she could live if she returned to Albania, and if she could relocate to Tirana where she and [the fourth named applicant] have previously lived and worked. It was not suggested that the family return to live in a regional town. The Tribunal has considered below the risk to [the first named applicant], [the second named applicant] or any of the other applicants if the family were to relocate to Tirana in looking at whether they would need to be in hiding if they returned to Albania.
125. While it will no doubt be difficult for [the first named applicant], the Tribunal considers it reasonable that the family relocates to Tirana.
126. Turning then to whether there would not be a real risk of significant harm if the family were to relocate to Tirana, [the first named applicant] fears harm from [Mr H], or that he will harm [the second named applicant]. The Tribunal does not consider there is a real risk from [Mr H]’s sons for the reasons given above. It does not accept there is any risk of harm to [the second named applicant].
127. [Mr H] must be willing and able to find [the first named applicant] to cause them harm. The applicants claim that police and authorities in Albania are corrupt, and he will locate them.
128. The US Department of State in its 2021 Country Reports on Human Rights Practices: Albania[16] states:
[16] Albania – United States Department of State.
The law provides criminal penalties for corruption by public officials and prohibits individuals with criminal convictions from serving as mayors, parliamentarians, or in government or state positions, but the government did not implement the law effectively. Corruption was pervasive in all branches of government, and officials frequently engaged in corrupt practices with impunity. Through September, the Special Prosecution Office against Corruption and Organized Crime (SPAK) announced that it had opened investigations and brought charges against several public officials, including former ministers, mayors, sitting judges and prosecutors, former and sitting judges of the Constitutional Court’s Vetting Appeal’s Chamber, former judges of the Supreme Court, and officials in the executive branch. As of September, one judge, two prosecutors, one mayor, and the former procurement director at the Ministry of Interior were indicted on abuse of office or corruption charges.
…
Police corruption remained a problem. Through August the SIAC received 1,155 complaints which were within the jurisdiction of the service and entered them into the SIAC Case Management System. Most of the complaints alleged a failure to act, violation of standard operating procedures, abuse of office, arbitrary action, police bias, unfair fines, and passive corruption. SIAC referred to the prosecution 149 cases involving 215 officials. The Office of the Ombudsman also processed complaints against police officers, mainly concerning problems with arrests and detentions.
Police did not always enforce the law equitably. Personal associations, political or criminal connections, deficient infrastructure, lack of equipment, and inadequate supervision often influenced law enforcement. Authorities continued to address these problems by renovating police facilities, upgrading vehicles, and publicly highlighting anticorruption measures. The government established a system for vetting security officials and, as of November 2019, had completed vetting 32 high-level police and SIAC leaders.

129. [The first named applicant] was referred to the decision of the United Kingdom Upper Tribunal in EH (blood feuds) Albania CG.[17] While as discussed above this matter does not involve a blood feud, the Tribunal considers the information in this report useful when considering relocation in circumstances where a non-state actor may seek to harm an applicant. This decision remarks on internal relocation at [69]– [70]. It commences with remarks on the small size of Albania’s population, just over 3 million with a land mass of about 10,000 square miles. Internal migrants must transfer their civil registration to their new community of residence to receive government services and must prove they are legally domiciled through property ownership, a property rental agree or utility bills. It states that:
… Internal relocation will be effective to protect an appellant only where the risk does not extend beyond the appellant’s local area and he is unlikely to be traced in the rest of Albania by the aggressor clan. A crucial factor in establishing whether internal relocation is a real possibility is the geographical and political reach of the aggressor clan: where that clan has government connections, locally or more widely, the requirement to transfer civil registration to a new area… would appear to obviate the possibility of “disappearing” in another part of the country, and would be likely to drive the male members of a victim clan to self-confinement in the home area as an alternative. Whether internal relocation is reasonable… will always be a question of fact for the fact-finding…[18]

130. The application of EH was reconsidered in January 2023 by the UK Home Office in Country Policy and Information Note: blood feuds, Albania.[19] This report notes the small size of Albania and the populations:
Albania is roughly 28,000sqkm, a little larger than Wales, with a population estimated to be between 2.8million and just over 3million. The population of Tirana differs across a number of sources, ranging from just under 500,000218 to over 900,000 across the 24 administrative units of the capital.[20]
[17] [2012] UKUT 00348 (IAC).
[18] At [70].
[19] Country policy and information note: blood feuds, Albania, January 2023 (accessible) – GOV.UK ( At [12.1.1].

131. The UK Home Office reports that people who are part of a blood feud do not feel safe if they relocate. One source stated people relocate from Shkoder to Tirana or from city to city in Shkoder but only a few cases.[21]
[21] At [12.1.12].
132. Both the US Department of State 2021 Human Rights Report and the UK Home Office report on Actors of Protection state that police corruption is a problem in Albania.
133. It is submitted police corruption will result in [Mr H] being able to locate [the first named applicant] and her family. It is submitted he is a particularly brutal man living in rural Albania where he lives according to old-fashioned traditions including views about women, that as a result he is accustomed to a level of endemic corruption and impunity that has existed in Albania and particularly rural Albania, for decades.
134. It is claimed his circumstances and [the first named applicant]’s involvement in issues that led to [Ms E]’s death have and will continue to attract sympathy from other like-minded members of the community who believe [the first named applicant]’s conduct to be an affront to the customs and traditions of their area, and his profile is therefore consistent with a person who will seek out corrupt police officers and authorities so as to prevent the [applicants’] family from seeking adequate protection and he will not expect repercussions for his violent actions.
135. [The first named applicant] and her mother [Mrs B] have said [Mr H] does not have connections with the police or with other authorities. [Mrs B] said he has working in farming and agriculture all his life. He is older than [Mrs B] and has not made threats in over two years since the advent of COVID.
136. [The first named applicant] said in oral evidence she has seen the news, and if you give people money, they can kill anyone. She states Albania is a very small country and if she returns the government will know, and it is very easy to pay someone such as a policeman. She said killing people in Albania is common, people can be given money and they will kill you.
137. It is submitted the family will not be able to live discreetly as the children will need to attend school and [the fourth named applicant] will need to access medical care. The Tribunal notes that as reported in EH, the family will have to transfer their civil registration to a new area.
138. None of those who gave evidence said [Mr H] has connections with local police or authorities, and there was no reference to specific “like-minded person” who it is said may be able to access information on [The first named applicant] or her family members. The Tribunal considers that in the absence of government connections as suggested in EH the prospects of [Mr H] locating the family are limited.
139. The Tribunal is not satisfied there is a real risk from anyone other than [Mr H] and does not accept that his sons will seek out [the first named applicant] or her family or harm her or her family. [Mr H] is reported to have said that he sought the family in [Country 3], however [the first named applicant] said [the fourth named applicant]’s family in [Country 3] have not been approached by [Mr H]. The Tribunal considers the prospects of [Mr H] travelling to locate [the first named applicant] or her family members is remote.

140. As one person acting alone, with no established propensity to travel to pursue [the first named applicant], over two years since he last issued a threat, and with no connection with police or with any other authorities, the risk that [Mr H] would locate and harm [the first named applicant] or anyone else in her family moves from the low but real risk she faces in returning to Shkoder to a remote or fanciful risk in Tirana.
141. The Tribunal finds that it is reasonable for the family to relocate to Tirana and that there would not be a real risk that [the first named applicant] or any of her family members will suffer significant harm.
Travel documents
142. The first Albanian embassy in Australia opened on 20 November 2020.[22]
[22] OFFICIAL OPENING OF THE FIRST ALBANIAN EMBASSY IN AUSTRALIA | Albanian Embassy in Australia (ambasadat.gov.al)
143. Article 7 of the Law of Albanian Citizenship (Law No. 8389, 6 September 1998)[23] provides that a child acquires Albanian citizenship by birth if both parents are Albanian nationals. Both of the children’s parents are Albanian nationals, and the children have Albanian citizenship.
[23] Law on Albanian Citizenship, Law No. 8389, 6 September 1998, available at: Under Article 3 of the Law of Albanian Citizenship, an Albanian citizen can also be a citizen of another country, and [the third named applicant] can be a dual citizen.
145. It was submitted that the children would have to return to Albania to obtain an Albanian passport in order to travel to Schengen Zone countries which would place [the second named applicant] at risk of harm, however as the Tribunal has found that there is no real chance or real risk of harm to [the second named applicant], and no real risk of significant harm to any of the applicants in Tirana, it is unnecessary to consider this further.
APPLICATION OF THE LEGISLATION
146. As [the fourth named applicant] and [the first named applicant] have previously had their claims to be a refugee considered and they were found not to be refugees, any further consideration of this issue is barred by s 48A of the Act.[24] It follows that they do not meet s 36(2)(a) of the Act.
147. For the reasons given above, the Tribunal is not satisfied [the second named applicant] meets the definition of a refugee in s 5H of the Act, and he does not meet s 36(2)(a). The Tribunal is not satisfied there is a real risk of significant harm to [the second named applicant] if he returns to Albania, and [the second named applicant] does not meet s 36(2)(aa) of the Act. [The third named applicant] is an Australian citizen and does not meet the criteria for a protection visa in s 36(2)(a) or s 36(2)(aa).
148. The Tribunal does not accept there is a real risk of serious harm to any of the applicants due to [the fourth named applicant]’s political activities.
149. The Tribunal has found that there is a low but real risk, in that it is not remote or fanciful, of harm by [Mr H] if [the first named applicant] returns to Shkoder. The harm she fears is that [Mr H] will kill her, which is clearly a significant harm as contemplated by s 36(2A) of the Act.
150. However, under s 36(2B) of the Act, there is taken not to be a real risk of significant harm if it would be reasonable for the applicants to relocate to an area of the country where there would not be a real risk they will suffer significant harm.
151. The Tribunal has found that it is reasonable for the applicants to relocate to Tirana, and that there is no real risk of significant harm if they were to relocate to Tirana. It follows there is taken not to be a real risk of significant harm as a foreseeable consequence of being removed from Australia. It follows that the applicants do not meet s 36(2)(a) of the Act.
152. As none of the applicants meet the requirements in s 36(2)(a) or 36(2)(aa), it follows that they are also unable to satisfy any of the criteria set out in s 36(2)(b) or (c).
153. As none of the applicants satisfy the criteria for a protection visa, they cannot be granted the visa.
[24] AMA15 v MIBP [2015] FCA 1424.
APPLICATION OF SECTION 91WA OF THE ACT

Under s 65(1) of the Act, the Minister (or the Tribunal on review) must refuse to grant a visa if the grant is prevented by s 91WA. Section 91WA(1) requires the Minister to refuse to grant a protection visa to an applicant who provides a ‘bogus document’ as evidence of their identity, nationality or citizenship, or has destroyed or disposed, or caused the destruction or disposal of, documentary evidence of their identity, nationality or citizenship. However, that requirement will not apply if the applicant has a reasonable explanation for the provision, destruction or disposal, and either provides relevant documentary evidence or has taken reasonable steps to provide such evidence: s 91WA(2).

155. [The first named applicant] and [the fourth named applicant] arrived in Australia on false Italian passports, and s 91WA will apply unless they have a reasonable explanation for the provision of these documents. The applicants maintain that despite their claims for fearing persecution due to [the fourth named applicant]’s political opinion being rejected, and the decision to refuse them a protection visa being affirmed by the Federal Court, they have a reasonable explanation for providing bogus documents. This was to flee persecution due to [the fourth named applicant]’s political opinion.
156. However, given the protracted nature of this matter, the Tribunal considered it preferable to address the substantive claims of the applicants, and given the Tribunal’s findings on the claims for protection, it is unnecessary to reach a conclusion on the application of s 91WA.
REQUEST FOR REFERRAL TO THE MINISTER UNDER SECTION 417 OF THE ACT
157. The applicants have requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
158. It is submitted the applicants should be referred to the Minster because there are compelling circumstances that it is not recognised would lead to serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or Australian family unit. It is submitted these compelling circumstances are (in summary):
·     The harm to the children from permanent relocation overseas while they speak limited Albanian. The family will effectively be barred from returning to Australia as they are departing as BVE holders. Even after this bar expires the family have poor prospects of being able to return as they will be unable to meet the criteria for a visa.
·     The family have a strong distrust and subjective fear of the authorities in Albania, even if they are found not to have a well-founded fear of harm. This subjective fear will lead to trauma and mental health issues for [the first and fourth named applicant] which will have an impact on their children.
·     [The fourth named applicant]’s medical care will be compromised by returning to Albania and his ability to pursue his claim for compensation for the injuries he suffered will be hampered.
·     The family have now lived in Australia for over 10 years. While they have been able to establish themselves in Australia, it will be hard to establish themselves in Albania due to [the fourth named applicant]’s health issues and inability to work, [the first named applicant]’s caring responsibilities and her need to earn an income.

159. The family have lived in Australia for a lengthy period of time, have three children born in Australia, one of whom is an Australian citizen. [The fourth named applicant] has suffered serious injuries in a motor vehicle accident in Australia.
160. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy, ‘Minister’s guidelines on ministerial powers (s 351, s 417, and s 501J)’ but has decided not to refer the matter. The applicants may make a request directly to the Minister.
DECISION
161. The Tribunal affirms the decision not to grant the applicants protection visas.
Kate Millar
Senior Member

ANNEXURE A

3 August 2016	Pre-hearing submission by representative
2 August 2016	Statutory declaration by [the first named applicant]
13 July 2016	Statement by [Ms C]
Undated	Statement by [Mrs B] (translation and original)
Undated	Support letter by [name] and [name] of Mother Teresa Albanian Catholic Association
26 August 2016	Post-hearing submission by representative
[date] August 2016	Case record for [Mrs B] from Regional Hospital Shkoder (original and translation)
21 December 2016	Correspondence from representative regarding judicial review outcome
13 October 2016	[Court file number] notice of filing and hearing
12 October 2016	Application to the Federal Circuit Court of Australia
9 May 2017	Statutory declaration by [the first named applicant]
8 May 2017	Pre-hearing submission by representative
29 September 2017	[The fourth named applicant] Certificate of Record – Magistrates Court of South Australia
4 October 2017	Scan of [the fourth named applicant’s Country 3 residence permit]
10 October 2017	Post-hearing submission by representative
Video file provided by representative
9 February 2017	Post-hearing submission by representative (date appears to be typographical error as the submission refers to hearing held on 2 February 2018)
Undated	Statement by [Mrs B] (original and translation)
Undated	3 photographs of a locked gate
26 May 2022	Notice of visa granted to a child under section 78 of the Migration Act 1958 regarding [Child A]
[date]	[Child A] birth certificate
15 July 2022	424 response – representative submission
31 May 2018	[File number] Federal Court of Australia Appeal Book filed by respondent
[date] 2021	[Case citation redacted]
[date]	[Child A] birth certificate
26 May 2022	Notice of visa granted to a child under section 78 of the Migration Act 1958 regarding [Child A]
6 November 2021	Letter from Department of Home Affairs to [the first named applicant] regarding approval of Australian citizenship for [the third named applicant]
Undated	List of all family members
23 August 2022	Supplementary representative submission
23 March 2022	Sealed District Court claim filed 23 March 2022
1 October 2020	Lifetime Support Information Release regarding [the fourth named applicant]
Undated	US Department of State ‘Albania 2021 Human Rights Report’
22 August 2022	Support letter from [a priest] of [specified] Catholic Community
22 September 2022	Post-hearing representative submission
30 August 2022	Screenshot of UK Home Office – ‘All Albania country policy and information notes have been removed for review’
Undated	How to apply for a Laissez Passer online
8 March 2023	Representative submission in response to Tribunal’s 424(2)/424A invitation
2 March 2023	Tirana Times article ‘Albania fumes over violence after man kills three women, wounds three more in targeted spree’
2 March 2023	[The third named applicant] Australian passport (expires [in] 2027)
6 November 2021	Letter from Department of Home Affairs to [the first named applicant] regarding approval of Australian citizenship for [the third named applicant]
August 2022, February 2023	Emails between representative Mitchell Simmons and [named law firm] regarding [the fourth named applicant]’s compensation claim

[2023] AATA 2324

21 March 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

Jurisdiction