2202454 (Refugee) - [2024] ARTA 874

2202454 (REFUGEE) [2024] ARTA 874 (28 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2202454

Tribunal:General Member A Verduci
Date:28 October 2024

Place:Melbourne
Decision:The Tribunal affirms the decision under review.

Statement made on 28 October 2024 at 9:10am

CATCHWORDS
REFUGEE – protection visa – Albania – religion – Roman Catholic – physical assault – construction of a church – land dispute – blood feud – third country criminal convictions – state protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 55
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 359, 424, 425, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

The applicant is [an age]-year-old male citizen of Albania. He arrived in Australia [in] March 2017 and applied for a protection visa on 9 June 2017. His protection visa application was refused by a delegate of the Minister for Home Affairs on 15 February 2022 under s 65 of the Migration Act 1958 (Cth) (the Act).
This is a review in relation to that decision.
The commencement of the Administrative Review Tribunal
On 14 October 2024, the AAT was abolished and replaced with the Administrative Review Tribunal (the Tribunal).
If a proceeding was commenced in the AAT but not finalised before 14 October 2024, it must be continued in the Tribunal in a manner that is efficient and fair. Anything done in, or in relation to, the proceeding before the 14 October 2024 continues to have effect after that date. Anything done in, or relation to, the proceeding before 14 October 2024 that was validly done according to the applicable law at the time is taken to be valid under, or to have been done in accordance with, the law as it is now. Anything done in, or in relation to, the proceeding before 14 October 2024 by the AAT is taken, after that time, to have been done by the Tribunal: item 24 of Part 5 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth) (the ART (CTP No.1) Act).
Accordingly, the decision in this proceeding is made by the Administrative Review Tribunal.
Protection visa application
The applicant arrived in Australia [in] March 2017 using a [Country 1] passport issued in somebody else’s names. He applied for a protection visa on 9 June 2017 with the assistance of a registered migration agent. According to the information in his visa application form:
·He is an Albanian citizen who left Albania because of religious persecution.
·He is from a Roman Catholic family and was involved in a dispute with neighbouring Muslims over the construction of a church opposite his family’s home. He was beaten by members of the [Family 1][1] and required stitches to his head.
·The [Family 1] is influential in politics and the police force.
·He didn’t seek help from the police because they are corrupt. He could not relocate within Albania because it is a small and corrupt country.
[1] The spelling ‘[Family 1 variant]’ appears in question 90 of the applicant’s protection visa application. The spelling ‘[Family 1]’ is used elsewhere, including on the first and second page of the applicant’s written submission dated 18 July 2021 and in the delegate’s decision record. I infer this is either a linguistic difference from the Albanian language or a typographical error. I have drawn no adverse inference from this. For consistency, I have adopted the spelling of [Family 1] as it has been most often used, however it refers to one and the same name.
A written submission dated 18 July 2021 was also provided. This submission raised for the first time the applicant’s claim to be in a blood feud with the [Family 2] because they accused the applicant’s brother, [Brother A], of killing a member of their family.
The applicant attended an interview via videolink with a departmental officer on 19 July 2021. His then representative attended that interview.
Supporting evidence includes, but is not limited to:
·Copies of the applicant’s Albanian passport, drivers licence, birth certificate and family certificate;
·A photograph of the biographical page of a [Country 1] passport in somebody else’s name;
·A letter from the chairman of [Village 1] dated 22 May 2017 and English translation;
·A character reference letter for the applicant’s brother, [Brother A], from the head of [Village 1], [Mr A], and village administrator [Mr B], dated 29 January 2021 and English translations;
·A letter from the [Agency 1] regarding [Brother A], dated 10 March 2021 and English translation;
·Copies of documents relating to proceedings involving the applicant in the [Court 1], [Country 2] and English translations; and
·Various country of origin information reports and news articles.
The delegate accepted the applicant’s identity as [the applicant’s name] and his country of citizenship as Albania.
The delegate found that the applicant travelled to Australia on a fraudulent [Country 1] passport and concealed knowledge of his criminal charges in [Country 3] to deceive the Department and to achieve a favourable migration outcome.
The delegate did not accept that the applicant was involved in a dispute with the [Family 1] or that he, or his family, were involved in a blood dispute with the [Family 2]. The delegate found that the applicant had travelled to Australia to avoid facing criminal justice in [Country 3] and did not face a real chance of serious harm, or a real risk of significant harm, in Albania.
Application for review
The applicant applied for a review of the delegate’s decision with the Administrative Appeals Tribunal (the AAT) on 23 February 2022. His application now continues in the Tribunal, and I am satisfied that it has done so in a manner that is efficient and fair.
The applicant appeared before me in person on 9 October 2024 to give evidence and present arguments. I am satisfied that the invitation to appear before me validly issued under s 425 of the Migration Act, as it then was, is valid for the purposes of the hearing of the proceeding, being a Tribunal case event, under the ART Act.
This was a reasonably opportunity to present his case and to make submissions and adduce evidence for the purposes of s 55(1) of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act).
I also received oral evidence from the applicant’s defacto partner, [Partner A], and his brother, [Brother B] partner.
The hearing was conducted with the assistance of an interpreter in the Albanian and English languages.
During the hearing, I gave the applicant a hard copy of a non-disclosure certificate issued under s 438(1)(b) of the Migration Act as it then was. He was invited to review the certificate and to comment on my view that the certificate appeared to be validly issued. He did not wish to make any comments about the certificate’s validity.
I am satisfied that the certificate was validly issued under s 438 of the Migration Act as it then was. Having regard to the ART (CTP No.1) Act, as well s 376 of the Migration Act as it applies now, I am satisfied that the non-disclosure certificate continues to be valid for the purposes of this proceeding.
During the hearing, I also invited the applicant to go give comments or a response to information that would, subject to anything he said, be the reason or a part of the reason for affirming the decision under review. I used the procedures in s 424AA of the Migration Act as it then was. Having regard to the ART (CTP No.1) Act, as well s 359A of the Migration Act as it applies now, I am satisfied that the procedure was complied with and therefore remains validly done. I am also satisfied that this proceeding has continued in a way that is efficient and fair.
Additional evidence given to me during this proceeding including three reference letters and a copy of the English translation of the letter from the [Agency 1] dated 10 March 2021 which was previously provided. This material has been considered.
CRITERIA FOR PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she 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.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
Identity and receiving country
Despite arriving in Australia on a false [Country 1] passport, the applicant has provided sufficient material for me to be satisfied about his identity and country of citizenship. It includes a copy of a passport in his name, an Albanian birth certificate, Albanian driver licence and an Albanian family certificate.
This material leads me to find that the applicant is [the applicant’s name] and that he is a citizen of Albania. Accordingly, Albania is his receiving country for the purposes of the Act.
Credibility, false passport and undisclosed criminal matters
I have significant concerns about the applicant’s credibility and about the reliability of his evidence.
The applicant has either lived in, or travelled through, [several countries including Country 2 and Country 3]. When directly asked why he never sought asylum in any of these countries, he didn’t respond; but at another time, he said that he never applied in [Country 2] because he wasn’t safe there The delegate’s decision records that he previously said that he was unaware he could apply for asylum in Europe. His evidence about his issue is inconsistent and i find that he has not given evidence that is credible or reliable.
He entered Australia in March 2017 using a non-genuine [Country 1] passport. His entry into Australia using this passport is concerning given that he held a genuine Albanian passport at the same time. I am not prepared to accept that it was necessary to use a false passport to enter into Australia because his Albanian passport did not give him a right to travel anywhere except in Europe. It seems more probable that he decided to use a false identity and passport to enter into Australia because he was seeking to hide his true identity from Immigration officials.
The applicant arrived in Australia [in] March 2017 and applied for a protection visa on 2 June 2017. Although claiming to have left Albania because he was fearful for his life, he also says that he travelled to Australia without knowing anything about a protection visa. His evidence to have arrived in Australia and to have gone straight from the airport to a coffee shop where he met other Albanians who offered him work is entirely unreliable and not accepted.
As a part of his protection visa application dated 2 June 2017, the applicant was required to declare ‘details of convictions, charges, investigations or crimes committed’. In response to the questions ‘Have you been found guilty or convicted of a crime or any offence in any country?’, ‘Are you aware you are the subject of a criminal investigation or have criminal charges pending against you?’, and ‘Have you committed a serious crime but have not been charged?’, the applicant answered ‘No’.
The delegate’s decision record, a copy of which the applicant gave to the Tribunal for the purposes of the review, records that he gave the same answer to a similar question he was asked during his departmental interview.
However, there is credible evidence before me that suggests the applicant: is known by the alias [Alias A] is linked to known Albanian organised crime entities, is wanted for murder in another country and has been convicted in absentia by the [named court in] [Country 3] to two years imprisonment for charges relating to drug cultivation and organised theft.
The applicant was invited to comment or respond to this information during the hearing under s 424AA of the Migration Act as it then was. He declined the opportunity to request any additional time and gave me his comments during the hearing.
His comments can be summarised as: I was in [Country 3] during that time, why wasn’t I stopped? My brother [Brother A] was in jail in [Country 3]. I don’t know who [Alias A] is. I have a cousin [Alias A] but he is not allowed to travel. I only have one passport in my name, plus one false passport.
I do not find this to be reliable evidence. As noted by the delegate, his conviction in [Country 3] occurred [in] June 2018. He had already arrived in Australia by that date. Because he was not convicted at the time he was in [Country 3], this is the most probable explanation for why he was not stopped and/or was able to leave. As this conviction occurred after his visa application was lodged, it means that his answer to the particular question about any criminal convictions was accurate at the time it was given.
However, I do not accept that he was unaware of the pending charges, either at the time of making the declaration in his visa application and/or when being interviewed by the delegate.
His comments did not address all the particulars of the information that I gave have him either. He did not question or dispute being linked to Albanian organised crime, and nor did he question or dispute being wanted for murder.
Whilst he did provide evidence in relation to charges and an acquittal in [Country 2], this was only disclosed after he had applied for the visa and ticked ‘No’ to the questions set out above. It is not probable or reliable evidence, and I do not accept, that he completely forgot about these charges when completing his protection visa application in June 2017.
I find that these are all significant issues that weigh heavily against the credibility and reliability of the applicant’s evidence in this proceeding. I find that the better view of this evidence is that the applicant has a multi-national criminal history that he did not want to disclose. This criminal history has led him to enter Australia using a false passport in an effort to generate a favourable migration outcome. It casts significant doubt over the credibility and reliability of all of the applicant’s evidence.
[Family 1] conflict
I am prepared to accept that the applicant and his family are Catholic, and that he lived with them in the village of [Village 1] in [City 1], Albania. His family includes his mother, father [and specified family members]. His documentary evidence supports this.
I do not accept that his family donated vacant land for a church to be built in, or around, 2000. His evidence about this vague and unreliable.
His visa application says that his problem started when ‘in front of my house a Catholic church was built’. This is inconsistent with his oral evidence to me that the church was built on vacant land about 300 metres away from his family’s home.
Despite claiming that the church was built in a predominately Muslim area, and that his Muslim neighbours objected, there were no issues whilst the church was constructed over a two-year period apart from something to do with the carpark. If the [Family 1] are a prominent and influential family with political and judicial connections who were offended by the church being build, I do not accept that it would have been built without incident over the course of a few years.
The land was donated in approximately 2000 and it took about two years for the church to be built. Yet nothing is said to have happened between 2000 and 2010. I am concerned about this period of time where it does not seem that the applicant and/or any members of his family have been targeted for any reasons relating to their religion or the construction of a church.
In 2010, the applicant claims to have been attacked and beaten around the head with a stick. He was sworn at for being a Christian and it followed him having told off some Muslim children two weeks’ earlier who were throwing rocks at the priest’s car at the church. But it is improbable, and I do not accept, that the applicant was targeted in the way he claimed.
It is improbable that the children, or people associated with him, were waiting for him to return home at night after he had been out all day. It is improbable that they knew what time he was returning home by bus or were otherwise prepared to wait until he eventually arrived. It is improbable that his attackers were all wearing masks that covered their faces but that the applicant was still able to recognise them by their voices. It is improbable that he was beaten around the head by five or six people with sticks and that they only fled when a vehicle started approaching. It is improbable that he was taken to hospital by a stranger, that he stayed in hospital for about a week because of his injuries, and that he then decided to leave Albania three days later and without returning to his family’s home. Despite claiming to recognise his attackers and to have been hospitalised for a week, he did not report the incident to the police. I’m not prepared to accept that he avoided reporting it to the police out of fear.
It is improbable that the applicant was targeted by these people because he is Catholic. His family are all Catholic and yet none of them have been approached, threatened or harassed in any way. This is despite it being his parents who are said to have donated the land that led to the church being build in the first place. His mother and father continue to live in the same house in the same village in Albania, and they do so without being harassed or threatened in any way. I am not prepared to accept that his parents are not threatened just because they are now old.
I have considered the certificate given by the chairman of the [Village 1], [Mr C] dated 22 May 2017. Among other things, it identifies [Mr D] and [Mr E] as descendants of the applicant’s attackers and certifies that since December 2010 the applicant has let the area of and cannot return back to his house as a result of the conflict.
It is reasonable to conclude that the chairman of the village, [Mr C], is a relative of the [Mr D] and [Mr E], named in his letter. If the applicant was being threatened by members of the [the named] family, it concerns me that another member of the same family would be giving a certificate of support for him.
Further, or in the alternative, the letters implies that the applicant has been unable to return to his family’s home since December 2010. This is inconsistent with the evidence recorded in the delegate’s decision, whereby the applicant acknowledged returning to his family’s home in [Village 1] in 2014 and 2016. This is before the chairman of the village’s certificate was written, and I find it improbable that the applicant returned on these two occasions without anyone else knowing. The mere fact that he would consider it safe to return on two occasions suggests that he was not fearful of returning, and giving a certificate that implies that he has not returned leads me to question the genuineness of it. I have given the certificate little weight for these reasons.

A character reference dated 29 January 201 has been given for the applicant’s brother, [Brother A], from the head of [Village 1], [Mr A], and the Administrator, [Mr B]. I also give this reference little weight for the following reasons.
The reference says that his [Brother A’s] family is comprised of six members, and that [Brother A] and his family have had no problems or conflicts with other people within or outside of the village community. This cannot be reconciled with the certificate dated 22 May 2017.
The reference is also given by head of the village, [Mr A]. It is also reasonable to assume that [Mr A] is related to the [Family 1; same family name] that the applicant claims to fear. I draw the conclusion that they are related. In those circumstances, it seems surprising that he would provide a reference for [Brother A variant] and his family, attesting to all of them having no problems or conflicts with other people within or outside of the village.
I am not persuaded that only the applicant had problems in the village in 2021 and that other member of his family didn’t. This is difficult to reconcile with the claim that his family donated land for a church to be built, and that this was the catalyst for local Muslims being angry with them. It is also difficult to reconcile with what is said in the reference letter itself. Whilst they are not identified by name, the reference letter relates to the six members of [Brother A’s] family. This includes the applicant. The reference letter cannot be reconciled with applicant’s own evidence.
I accept that the applicant has a scar on his head. There are photographs that objectively demonstrate this. However, I do not accept the applicant’s evidence and narrative of events about it.
I do not accept that the applicant’s family donated vacant land for the construction of a church. I do not accept that the [Family 1], and/or anyone one else, were angry with the applicant and/or his family because of their religion or for any other reason.
I do not accept that in 2010 the applicant was assaulted by a group of five or six masked people because of his religion, or because he had told some Muslim children to stop throwing rocks about two weeks before.
I do not accept that the applicant was hospitalised in the circumstances he has described, or that he decided to leave Albania a few days later because it was not safe for him to remain.
I find that the applicant does not face a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future for any reason related to his religion and/or the [Family 1].
[Family 2] conflict
I do not accept that the applicant, his brother [Brother A] and/or any other members of the applicant’s family are involved in a blood feud with the [Family 2].
The incident involving the applicant’s brother [Brother A] and the [Family 2] is said to have started in 2016. [Brother A] was involved in a road dispute with [Family 2 Member A], and then a few days later [Family 2 Member A] was shot and killed.
Despite [Family 2 Member A] being killed in 2016, the applicant did not raise this claim 18 July 2021. This is five years after [this man] was killed, about four years after the applicant arrived in Australia and applied for a protection visa, and 1 days before the applicant’s interview with the delegate. The delay and timing of this claim being made raises significant concern for me. I do not accept that it is explained by the applicant not knowing the significance of his brother’s feud any earlier, and/or that he only raised it at the time that he did because the issue continued to get worse. Nor do I accept the reasons given to the delegate, which is that the applicant gave these claims to his lawyer in Australia when they first spoke, and/or that the applicant was mentally unwell when he first arrived and could not think straight. These claims are not supported by any objective evidence and I consider that they are not probable or reasonable explanations.
I have a number of other concerns about this claim.
No plausible explanation has been given why [Brother A] would be blamed for [Family 2 Member A’s] murder. Even if they were involved in a road argument, it lacks credibility that this is why [Brother A] was accused or blamed for shooting and killing him a few days later.
It seems implausible that [Brother A] would be arrested and held in remand for two years pending a trial, only to then be acquitted because the evidence showed he was 100 kilometres away at the time [Family 2 Member A] was shot and killed.
If the [Family 2] did blame [Brother A] for [Family 2 Member A’s] death, creating an environment for a blood feud, it does not seem probable that no other member of the applciant’s family would be threatened, targeted or harmed. The applicant’s parents continued living in the [same village] without attracting any adverse attention, and it is improbable that they are only safe because they are in hiding and never leave the house.
The character reference dated 29 January 2021 refers to [Brother A] being charged and acquitted of a criminal offence, but also says that he and his family have had ‘no problems or conflict with other people within or outside of our village community’. This is an internal inconsistency that I am concerned about.
The statement in the reference to [Brother A] and his family having no conflict with others within or outside of the village cannot be reconciled with the applicant’s own evidence that [Brother A] was forced to flee Albania and seek asylum in [Country 4] or that his other brother, [Brother B], was also forced to flee Albania and live in another country.
The available documentary evidence in support of this claim does not overcome my concerns with the reliability of the applicant’s own evidence.
On its face, the letter from the [Agency 1] supports the applicant’s claim.
However, there is credible reporting that only a prosecutor’s office and the courts are authorised to issue certificates relating to a blood feud.[2] It is also reported that unofficial organisations have taken advantage of requests for blood feud attestations, and that Albanians have obtained documents from those institutions falsely claiming they are in a blood feud situation.[3]
[2] Query response on Albania: Attestation letters for blood feuds (2020 – October 2022); Immigration and Refugee Board of Canada, published 22 September 2022 at [1.1] ( and Guidance: Country policy and information note: blood feuds, Albania, July 2024 (accessible) (updated 12 July 2024); UK Home Office (Version 7.0. July 2024) at [1.1.8] ( Query response on Albania: Attestation letters for blood feuds (2020 – October 2022); Immigration and Refugee Board of Canada, published 22 September 2022 at [4] ( and Guidance: Country policy and information note: blood feuds, Albania, July 2024 (accessible) (updated 12 July 2024); UK Home Office (Version 7.0. July 2024) at [1.1.6] (>
One source reports that false attestation letters were often issued fraudulently prior to 2012 but that they are far less commonly supplied now.[4]
[4] Query response on Albania: Attestation letters for blood feuds (2020 – October 2022); Immigration and Refugee Board of Canada, published 22 September 2022 at [4] (>
[Details deleted].[5]
[5] Query response on Albania: Attestation letters for blood feuds (2020 – October 2022); Immigration and Refugee Board of Canada, published 22 September 2022 at [1.1] (>
The Executive Director at the Albanian Foundation for Conflict Resolution of Disputes is quoted as saying: ‘… [the media] are trying to make it more obvious and make it more of an issue than it really is. In 2021 according to state police in Shkodër there was only one BF related homicide, but the media present ten-times more than that, maybe they don’t have correct information or they are labelling murder as a BF, we don’t know. The reason is there is confusion between the revenge murder (which happens all around the world), and also blood feud murders, which are different. There is also the reconciliation association who have increased the number of blood feud cases even though they are not the real ones.’[6]
[6] Guidance: Country policy and information note: blood feuds, Albania, July 2024 (accessible) (updated 12 July 2024); UK Home Office (Version 7.0. July 2024) at [9.1.6] (>
In a letter dated 12 June 2014, the British Embassy in Tirana also said: ‘The visit confirmed a generally declining trend in the incidence of genuine blood feud in Albania. Modern blood feud is very limited, and few cases can really be defined as such, many either being fraudulently invented cases, or simply cases of common criminality and revenge. Conversations with almost all interlocutors highlighted that reference to blood feud “certificates” either produced by [non-government agencies] or by local officials was largely pointless. Other embassies in Tirana take the same view.’[7]
[7] Country Policy and Information Note: Albania: Blood feuds (Version 4.0, February 2020) in Annex B to the Note (CPIN Template - January 2020https://>
The strength and credibility of this information, taken together with my concerns about the reliability of the applicant’s own evidence, leads me to place little weight on the letter from the [Agency 1].
The applicant’s evidence is generally supported by copies of online news articles. However, the U.K. Home Office has also quoted a letter dated February 2016 from the British Embassy in Tirana, which says:
·‘Vested interests and criminality play a key role in inflating the sense of the scale of the phenomenon [of blood feuds]. The Albanian press, hungry for sensation, report murders as blood feud, even in cases of straightforward gangland murders. Some local journalists have reportedly accepted money to report a murder as blood feud in order that family members might then use the invented blood feud in an asylum bid. Others have simply invented a story, without a dispute having taken place, for the benefit of two families’ immigration plans. Corrupt and rapacious NGOs and local officials also blur definitions. Fake “blood feud” certificates are easily available for a price from both NGOs and local officials. This was highlighted in a media sting against a well known head of an NGO who is referred to in UK operational guidance. He was filmed accepting cash in exchange for support for a fake blood feud claim. When an embassy delegation visited northern Albania to investigate the extent of blood feud, the prominent individual declined to meet, but continues to represent UK Albanian asylum claimants in a self declared “expert witness” role’ (emphasis added).[8]
[8] Country Policy and Information Note: Albania: Blood feuds (Version 4.0, February 2020) at [2.1.6], [4.9.2] and Annex. B and C to the Note (>
The strength and credibility of this information, taken together with my concerns about the reliability of the applicant’s own evidence, leads me to place little weight on online news reports that purport to be about the applicant’s brother, [Brother A] and/or [Family 2 Member A].
I do not find the applicant’s evidence about a blood feud involving his brother credible or reliable.
I do not accept that the applicant’s brother was charged and later acquitted of murdering [Family 2 Member A]. I do not accept that [Family 2] have blamed the applicant’s brother for [this] death. I do not accept that the applicant’s mother and father have been in isolation or in hiding in order to avoid being harmed by the [Family 2].
I find that the applicant does not face a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future for any reason relates to his brother [Brother A] and/or members of the [Family 2].
The applicant’s witness
Before reaching the conclusions above, I have reflected on the oral evidence of the applicant’s defacto partner, [Partner A], and the applicant’s brother, [Brother B] partner. I have also reflected on the written character references provided.
I accept that their written and oral evidence is broadly consistent with the applicant’s own claims. The written reference by [another person] can be described as a character or professional reference.
During the hearing, [Partner A] raised some concerns regarding the quality and/or accuracy of the interpreting being provided. She then apologised at the conclusion of the hearing and stated that she did not mean to question the interpreter’s professionalism. The evidence available to me does not support a conclusion that there were any material errors in the interpretation provided during the hearing. I am satisfied that there was a real, genuine and meaningful opportunity for the applicant to present his case, make submissions and to adduce evidence.
Whilst I have given their evidence and statements some weight, they do not overcome the significant concerns I have expressed above about the credibility, reliability and probability of the applicant’s own evidence.
Summary and conclusion
I find that the applicant does not face a real chance of serious harm, or a real risk of significant harm, in Albania now or in the reasonably foreseeable future.
I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa) of the Act.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa, and I find that he does not.
Accordingly, the applicant does not satisfy the criterion in s 36(2) of the Act.
DECISION
The Tribunal affirms the decision under review.
Hearing date(s):       9 October 2024
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…