2303844 (Refugee) - [2023] AATA 2419

2303844 (Refugee) [2023] AATA 2419 (29 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Rayan Hazim
CASE NUMBER:  2303844
COUNTRY OF REFERENCE:                   Albania
MEMBER:Alison Murphy
DATE:29 May 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 29 May 2023 at 10:19am
CATCHWORDS
REFUGEE – protection visa – Albania – member of particular social group – homosexual man – fear of harm from members of extended family – arrived on false passport acquired in third country – original documents provided but cannot be verified – identity and citizenship accepted – period as unlawful non-citizen, criminal charges and immigration detention – application for bridging visa in progress after remittal by tribunal – relationships in third country and Australia – unable to register relationship without proof of identity – partner arrested at the same time and no contact allowed by bail conditions – no connections in home country other than extended family after living in third country – country information – formal support for rights limited especially in conservative regional areas – discrimination, honour attacks and killings – effective protection and relocation not available – passport expired and no right to enter country where parents are living or other Schengen area countries – right to enter does not include right to reside in any case – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), 5H(1)(a), 5J(1)(a), (c), (2), (3), (4), 36(2)(a), (3), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant S395 of 2002 v MIMA (2003) 216 CLR 473
MIMAC v SZRHU [2013] FCAFC 91
SZQRM v MIAC [2013] FCCA 772
V856/00A v MIMA (2001) 114 FCR 408
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 March 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Albania, applied for the visa on 21 December 2022. The delegate refused to grant the visa on the basis that the applicant is now owed protection by Australia.
The applicant appeared before the Tribunal on 24 May 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Albanian (Gheg) and English languages.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading 2303844 (Refugee)

Details

AGLC: 2303844 (Refugee) [2023] AATA 2419
Case: [2023] AATA 2419
Decision Date: 29 May 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of an Albanian national seeking a protection visa. The applicant arrived in Australia using a false passport and claimed to fear harm in Albania due to his identity as a homosexual man and potential retribution from his extended family. The AAT was required to determine whether the applicant met the criteria for a protection visa, either under the refugee provisions or complementary protection grounds.

The central legal issues before the Tribunal were whether the applicant was a person to whom Australia owed protection obligations. This involved assessing the applicant's identity and citizenship, and then evaluating his claims of a well-founded fear of persecution or significant harm in Albania. Specifically, the Tribunal had to consider if the applicant was a refugee due to a well-founded fear of persecution for reasons of membership of a particular social group, or if he faced a real risk of significant harm as a consequence of being removed from Australia. The Tribunal also had to consider whether the applicant had a right to enter and reside in any other country, which would exclude Australia's protection obligations under section 36(3) of the Migration Act 1958 (Cth).

The Tribunal found that while the applicant's Albanian identity documents could not be verified, his detailed knowledge of Albania, his language proficiency, and his consistent statements, supported by evidence from friends and his partner, established his identity as an Albanian national. The Tribunal noted that Albania, particularly in conservative regional areas, offered limited formal support for LGBTQ+ rights, and that honour attacks and killings were a concern. The Tribunal also considered that the applicant's expired passport meant he had no right to enter Schengen area countries, and that even if he did, such entry did not confer a right to work, thus not excluding Australia's protection obligations. Consequently, the Tribunal remitted the matter for reconsideration, directing that the applicant satisfied section 36(2)(a) of the Migration Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

As recorded in the delegate’s decision, the applicant gave detailed and apparently spontaneous information about Albania in his departmental interview and at hearing. He speaks the Gheg dialect of the Albanian language, spoken in northern Albania.[1] He has produced copies of apparently genuine Albanian identity documents and is known to his friends and partner as an Albanian national named [the applicant]. For all of these reasons the Tribunal finds the applicant is an Albanian citizen and has assessed his claims against Albania as his country of nationality and the receiving country.[1] Albanian Dialects | Robert Elsie (albanianlanguage.net)The applicant’s personal background While the delegate accepted the applicant was an Albanian national born [in] the Republic of Albania, the fact the applicant travelled to Australia using a passport in another identity meant he did not accept that he was necessarily [the applicant] born on [Date]. The Tribunal acknowledges that the Albanian identity documents presented by the applicant cannot be examined or verified and his identity is not beyond doubt. For the following reasons, and in the absence of any contrary information, the Tribunal accepts that [the applicant] is his correct identity:·The applicant’s Albanian passport and other identity documents appear genuine and provide detailed information about his identity and family composition that is in all respects consistent with the applicant’s statements. Those documents record his place of birth as [Village] in the Republic of Albania;·His place of birth and domicile recorded in those documents is also consistent with the language he speaks, being the Gheg dialect of the Albanian language;·The applicant is known to his friends and partner in Australia as an Albanian national by the name of [the applicant] and some of those people are themselves part of the Albanian community in Australia;·Prior to being arrested and detained in immigration detention, the applicant and his partner [Mr A] sought to register their relationship with Victoria’s Registry of Births, Deaths and Marriages using details consistent with the applicant’s Albanian identity;·The applicant has provided a plausible explanation as to how he entered Australia under the identity of a [Nationality] citizen by the name of [Alias] and he has been accepted by the Department to be an Albanian national [Village]. The applicant attended primary and middle school in [Town]. He moved to [Country] with his family in 2006 when he was aged approximately [Age]. At hearing he gave evidence that his father worked in the [Work sector] in [Country]. He joined his father in [Country] in 2006 on a family reunion visa and his mother and brother followed about a year later. He lived in [Country] lawfully with his family under his genuine Albanian identity, working as [an Occupation]. The applicant purchased a [Nationality] passport issued under the name of [Alias] in January 2013. He entered Australia by air using that passport on [in] February 2013 as the holder of an Electronic Travel Authority issued to [Alias]. The applicant said he chose Australia because it was as far away from his family as it was possible to get.

Evidence

Evidence Before The Court

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. The Tribunal notes that there is no country information assessment prepared by the Department of Foreign Affairs and Trade for the applicant’s country of nationality, Albania. CONSIDERATION OF Claims and evidence The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be remitted to the Department for reconsideration.Country of nationality The delegate’s decision indicates that the applicant travelled to Australia on a [Nationality] passport issued to [Alias] and that passport is currently in the custody of Victoria Police. The applicant states that the details on that passport do not represent his correct identity, rather it was a bogus document that he used to depart [Country] and enter Australia. The applicant asserts that his correct identity is [the applicant] and that he is an Albanian national born on [Date] in [Albania]. He has provided the Department with copies of the biodata page of his Albanian passport; his Albanian family certificate and his Albanian birth certificate. The delegate’s decision records that while he had no reason to believe that the Albanian documents are bogus, the originals are not available for verification or examination and for that reason the delegate gave them no weight as to evidence of the applicant’s identity. Rather the delegate placed weight on the detailed information provided by the applicant at interview about his place of birth, school, soccer field and church, his language abilities and appropriate cultural references and accepted that he was an Albanian national born in [in] the Republic of Albania. At hearing the applicant gave evidence that he purchased the [Nationality] passport for [Amount] from a marketplace in [Country] two weeks before he travelled to Australia and he has no idea whether [Alias] is a real person or not. He obtained the Australian visa at the same time he purchased his flight to Australia without difficulty. The Department’s website confirms that holders of [Nationality] passports are eligible for an Electronic Travel Authority of the kind granted to [Alias] five days before the applicant’s arrival in Australia. As recorded in the delegate’s decision, the applicant gave detailed and apparently spontaneous information about Albania in his departmental interview and at hearing. He speaks the Gheg dialect of the Albanian language, spoken in northern Albania.[1] He has produced copies of apparently genuine Albanian identity documents and is known to his friends and partner as an Albanian national named [the applicant]. For all of these reasons the Tribunal finds the applicant is an Albanian citizen and has assessed his claims against Albania as his country of nationality and the receiving country.[1] Albanian Dialects | Robert Elsie (albanianlanguage.net)The applicant’s personal background

Decision

Reasons for decision

While Albania is not a member of the European Union (EU), Albanian citizens are entitled to enter Europe’s Schengen zone without a visa or any prior authorisation for short trips on the condition that the traveller has a valid biometric passport.[21] From 2024 Albanian nationals will also be expected to obtain an European Travel Information and Authorisation System (ETIAS) prior to entry.[22] The Albanian passport held by the applicant expired in 2020 and is no longer valid and cannot be used to enter the EU.[21] Schengen visa info, Who Needs and Who Doesn’t Need a Schengen Visa to Travel to Europe? ETIAS Requirements for Albanian Citizens - SchengenVisaInfo.comFurther the right to which s 36(3) refers is not just the right to enter, but also a right to reside. While a temporary right to reside will suffice to satisfy the legislative criteria, the Federal Circuit Court of Australia has held that a right to reside should confer privileges ordinarily associated with residency. One of the rights considered relevant in this assessment was the right to work; the court in that case also considered it relevant that the country extending the temporary right to enter and reside (in that case the UK) referred to it as the ‘right of residence’.[23] [23] SZQRM v MIAC [2013] FCCA 772 at [114]–[117] upheld in SZQRM v MIBP [2013] FCA 1297.The EU’s website containing information for Albanian citizens wishing to enter Europe makes clear that neither the current system of entry as the holder of a valid biometric Albanian passport nor the anticipated new system of entry as the holder of an ETIAS confers a right to work in Europe. Rather the visa free entry allows short-term stays for tourism, leisure, business and medical purposes and any non-EU citizen wishing work in Europe has to get a work permit from the immigration authorities of the specific European country they want to work in.[24][24] Working in Europe - How to get an EU Visa / Work Permit (schengenvisainfo.com); ETIAS Requirements for Albanian Citizens - SchengenVisaInfo.comIn these circumstances the applicant is not excluded from Australia’s protection obligations by the operation of s 36(3). DECISIONThe Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.Alison MurphyMemberAttachment - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs. The Tribunal notes that there is no country information assessment prepared by the Department of Foreign Affairs and Trade for the applicant’s country of nationality, Albania. CONSIDERATION OF Claims and evidence The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be remitted to the Department for reconsideration.Country of nationality The delegate’s decision indicates that the applicant travelled to Australia on a [Nationality] passport issued to [Alias] and that passport is currently in the custody of Victoria Police. The applicant states that the details on that passport do not represent his correct identity, rather it was a bogus document that he used to depart [Country] and enter Australia. The applicant asserts that his correct identity is [the applicant] and that he is an Albanian national born on [Date] in [Albania]. He has provided the Department with copies of the biodata page of his Albanian passport; his Albanian family certificate and his Albanian birth certificate. The delegate’s decision records that while he had no reason to believe that the Albanian documents are bogus, the originals are not available for verification or examination and for that reason the delegate gave them no weight as to evidence of the applicant’s identity. Rather the delegate placed weight on the detailed information provided by the applicant at interview about his place of birth, school, soccer field and church, his language abilities and appropriate cultural references and accepted that he was an Albanian national born in [in] the Republic of Albania. At hearing the applicant gave evidence that he purchased the [Nationality] passport for [Amount] from a marketplace in [Country] two weeks before he travelled to Australia and he has no idea whether [Alias] is a real person or not. He obtained the Australian visa at the same time he purchased his flight to Australia without difficulty. The Department’s website confirms that holders of [Nationality] passports are eligible for an Electronic Travel Authority of the kind granted to [Alias] five days before the applicant’s arrival in Australia.