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 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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs. 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
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.
In May 2013 he was granted a student visa under [Alias]’s identity, valid until July 2014. He applied for a further student visa which was refused because his [Nationality] passport had expired and he could not prove his identity.
The applicant remained unlawfully in Australia until he was arrested by police on 6 December 2022 and charged with several criminal offences. He was released on bail the following day at which time he was taken into immigration detention. He applied for a bridging visa on 19 December 2022 that was refused by the Department. On 6 January 2023 this Tribunal (differently constituted) remitted the refusal of the bridging visa back to the Department with the direction that he met certain Schedule 2 criteria. As at the time of the Tribunal’s decision, the applicant remained in immigration detention. Correspondence on the departmental file indicates that his matter is still being assessed against the character requirements for the grant of the visa.
The Tribunal accepts the above matters to be true.
Claims for protection
The applicant claims a well-founded fear of persecution if returned to Albania for reasons of his membership of the particular social group of homosexual men in Albania. His claims are set out in a statutory declaration made 15 December 2022 and he gave further evidence about those matters at the Departmental interview and Tribunal hearing.
The delegate accepted that the applicant is a gay man as claimed and the Tribunal concurs with that assessment. In doing so the Tribunal has had regard to the following matters:
·The applicant has given credible and consistent evidence as to his sexuality, being that he became aware that he was homosexual around the age of 15 but never expressed this to his family or friends in Albania because he was scared of his family’s reaction;
·He comes from a traditional Albanian family in the north of Albania and he believes they would be devastated if they knew about his sexuality. At hearing the applicant gave evidence that they would sooner accept his death, or their own deaths, than any open expression of his sexuality;
·The applicant had his first relationship with a man called [Mr B] while working as [an Occupation] in [Country]. When in public they pretended to be just friends, but occasionally they secretly went away for weekends or out to clubs. His family could not even comprehend that their child might be gay. They never suspected he was in a sexual relationship with [Mr B] and he lived in fear that they would find out. He has stayed in regular contact with his family during the time he has been in Australia but they know nothing about his life with [Mr A]. They want him to return to [Country] to marry and ask why he doesn’t post photos of girls on Facebook;
·In the four years leading up to his arrest in December 2022 the applicant was in a long-term relationship with an Australian man of Albanian heritage called [Mr A]. Several of the applicant’s close friends have provided evidence to the Department and the Tribunal in the context of both the current review and the related application for a bridging visa about the genuineness of that relationship (see the statutory declarations of [Mr C], [two named persons] and [Mr F]). Each of those people attest to their knowledge of the applicant and [Mr A] as a committed, long-term couple;
·[Mr F] and [Mr C] gave oral evidence to the Tribunal who heard the applicant’s bridging visa application review in January 2023. That Tribunal recorded in its decision that it was impressed by their evidence and accepted the applicant had strong links to these families and were willing to provide the applicant with both financial and emotional support and to pay a security of $15,000 to ensure his compliance with the conditions of a bridging visa while his protection visa application was being finalised;
·The applicant and [Mr A] lodged an application to register their relationship with Victoria’s Registry of Births, Deaths and Marriages in September 2022 and copies of that application have been provided to the Department. At hearing the applicant gave evidence that the Registry required him to prove his identity before the relationship was registered and he was unable to do so because his passport had expired. The Tribunal notes the timing of that application, which occurred prior to the applicant’s arrest and detention, and accepts it was not manufactured for the purposes of the protection claim;
·The applicant’s partner [Mr A] was arrested at the same time as the applicant and the applicant has not been able to speak to him since their arrest. The applicant’s representative advised that they are co-accused and it is a condition of [Mr A]’s bail that there be no contact between [Mr A] and the applicant while the criminal proceedings are ongoing. At hearing the applicant stated that he did not know how [Mr A] now felt about their relationship or whether their relationship was ongoing, that he very much wanted to speak about this to [Mr A] about these matters but he was not allowed to at present. The Tribunal accepts this to be why [Mr A] has not given evidence about his relationship with the applicant in this proceeding.
In view of the evidence, the Tribunal accepts the applicant is a gay man as claimed and that he has lived openly as such in Australia.
Fear of harm on return
The delegate’s decision
The delegate accepted the applicant to be gay, but did not accept he faced a real chance of persecution in Albania for reasons of his sexuality. In reaching that conclusion, the delegate referred to a range of country information indicating that members of the LGBTQI+ community continue to experience discrimination in Albania but that the situation had improved in recent years and the Albanian authorities were generally willing and prepared to provide protection to members of the LGBTQI+ community. The delegate concluded there was not a real chance the applicant would be seriously harmed by the state if returned.
The delegate went on to consider the applicant’s risk of harm from his family, citing country information indicating that while Kanun customary laws are still practised in some parts of Albania, it no longer predominates in the manner it once did. While the delegate accepted that the applicant’s father may exclude him from the family because of his sexuality, the delegate did not accept the applicant would be physically harmed by his father or other relatives for that reason. In making that assessment the delegate noted the applicant’s father now lives in [Country].
Country information
The Tribunal has had regard to the country information cited by the delegate as well as that provided by the applicant and other material located by the Tribunal. In general that country information tends to indicate that the situation for the LGBTQI+ community in Albania has improved in recent years, with some legal protections established and the Albanian authorities reported to work with the LGBTQI+ community with the aim of reducing intolerance and improving the protection of rights and quality of services.[2]
[2] Council of Europe, ‘National Action Plan for LGBTI People 2021-2027’ pages 9–10, December 2021.
Despite the law and the government’s formal support for rights, public officials reportedly still make homophobic statements and hate speech and discriminatory language from politicians continues to be a problem. It is reported that members of the LGBTQI+ community have difficulties accessing the justice system, with the only way to ensure action and protection by police being to go to the station accompanied by a member of one of the LGBTQI NGOs.[3]
[3] ILGA-Europe and ERA, ‘LGBTI Enlargement Review 2020’, page 9, 15 February 2021.
In December 2022, the UK Home Office assessed that in general, the available information does not establish that LGBTQI+ persons face a risk of persecution or serious harm from the state.[4] It also concluded that while some LGBTQI+ persons face harassment, discrimination, violence and exclusion from non-state actors, in general, this is not sufficiently serious by its nature and/or repetition, or by an accumulation of various measures, to amount to persecution or serious harm.[5] The UK Home Office Country Guidance canvasses a wide range of country information that is generally consistent with the other material before the Tribunal. Overall the Tribunal considers that the weight of country information indicates that while the LGBTQI+ community continues to experience frequent discrimination and harassment in Albania, it will not always rise to the level of persecution.
[4] UK Home Office Guidance: Country Policy and Information note: sexual orientation and gender identity and expression, Albania December 2022.
[5] UK Home Office Guidance: Country Policy and Information note: sexual orientation and gender identity and expression, Albania December 2022 at 2.4.15; 2.4.11.

However that same country information also establishes that for some members of the LGBTQI+ community in Albania, the feared harm may well rise to the level of serious harm. As noted by the delegate in the decision record, the applicant’s fear of harm is not primarily from agents of the state, but rather from members of his own family. In particular the country information draws a distinction between the situation in the Albanian capital of Tirana and that of the northern highlands from where the applicant originates, an area which has historically been governed by Kanun of Lek Dukagjini (Kanun law).
Consistently with the applicant’s evidence about his own family and experience, country information indicates that Albania is a patriarchal, conservative society in which homophobic attitudes still exist, particularly in rural areas such as the applicant’s home area. Rigid gender stereotypes and cultural expectations mean that men and women are expected to conform to inflexible ideas of masculinity and femininity in their behaviour and appearance and deviations from these gender stereotypes are strongly discouraged and considered by some to be morally wrong.[6]
[6] UNDP 2017 Being LGBTI in Eastern Europe: Progress, Drawbacks, Recommendations at [B/591].
The Kanun of Lek Dukagjini (Kanun) is a centuries old code of behaviour regulating both individual and collective behaviour and have ‘forged existential principles among the northern Albanians, determining all the dispositions and the essential values in the organisation of tribal life.’ It is reported that nowadays, although the Kanun is illegal, ‘its conservative principles, including blood revenge and distorted private justice, are still influential in northern Albania.’[7]
[7] Mirjona Sadiku A Tradition of Honor, Hospitality and Blood Feuds: Exploring the Kanun Customary Law in Contemporary Albania.
Honour is a key element of Kanun law and northern Gheg society and when dishonour occurs, it can be restored only through the death of the offender:
Honour is much more important than life itself and every human relation has at its basis a sense of it. . . The man whose honour has been soiled must cleanse it. Until he has done so he is degraded in the eyes of all as outcast from his fellows, treated contemptuously at all gatherings . . . an offense to honour is not paid for with property but by the spilling of blood or by a magnaminous pardon.[8]
[8] Ibid.
The concept of honour in Kanun law also applies in the collective sphere, with the family honour having to be maintained as purely as possible through generations:
. . . every dishonourable act against one individual was considered an offense for the whole family.[9]
[9] Ibid.
In some communities, particularly those in the mountainous areas of Northern Albania, Kanun law is considered a way to restore honour or compensate for a violation.[10]
Real chance of future harm
[10] ‘Country policy and information note: blood feuds, Albania, January 2023’, UK Home Office, 26 January 2023, 20230127141653.
The applicant’s immediate family are currently resident in [Country], but his mother is from a large and well-known traditional Catholic family who originated from the highlands of [Albania]. His mother has four brothers, two of whom live in the applicant’s home village, one of whom lives in Tirana and the fourth in [Location]. The applicant is most fearful of harm from his father and maternal uncles. His family in [Country] freely return to visit extended family in Albania, as evidenced by the applicant’s own travel history as set out in the visa application.
For the following reasons the Tribunal considers that in the particular circumstances of the applicant, there is a real chance he will be subjected to serious harm by his extended family members in Albania.
The applicant gave compelling evidence as to his family’s views on family honour, shame and sexuality that are consistent with country information about the conservative values held by rural communities in northern Albania. In particular:
·His family is from the northern highlands of Albania and subscribes to the tenets of Kanun law, which values honour and face above all other things. To lose face is shameful and a person who brings shame on his family will face violent reprisals;
·When the applicant’s mother married his father, his maternal grandfather gave the applicant’s father a bullet. Under Kanun law, his father was permitted to shoot his mother with her own father’s bullet if she dishonoured the family by being with another man. The passing of the bullet by the father to the son-in-law was a statement that such a shooting would not start a blood feud between the families;
·When the applicant was young and still living in Albania, one of his mother’s cousins shot and killed his own daughter and her boyfriend because they were having a sexual relationship before marriage. He was arrested and jailed for their murders by the Albanian authorities but served a sentence of only a few years. The other men in the family approved of the murders, believing they were necessary to restore the family’s honour and demonstrated that the cousin would not allow the family to be shamed. The bodies of the daughter and her boyfriend were not permitted to be buried in the church cemetery;
·Another uncle’s daughter was married to a man who wished to divorce her. The applicant’s uncles got together and discussed shooting the husband to save face because of the shame that divorce brings on the wider family. The matter was resolved by the husband agreeing to remain married to his wife;
·The applicant gave evidence that no one in his family would ever openly discuss homosexuality, considering it offensive, dishonourable and shameful. He said that if his family were to learn of his sexuality it would be like an earthquake and his parents would rather accept their own deaths than learn that about him;
·When asked how he knew what their reaction would be if it had never been discussed, he described an incident about 10 years ago when one of the contestants had come out as gay on the Albanian version of Big Brother. The contestant was from the town of Lezhe, about [Distance] km from the applicant’s hometown. The applicant watched the show with his father, who commented that if he had a gay son he would kill him with his bare hands. The residents of Lezhe staged protests against the airing of the episodes, proclaiming that they did not have gay residents and that the contestant should not return to Lezhe. Consistently with the applicant’s evidence, the delegate references country information indicating that the residents of Lezhe protested against Big Brother airing episodes with a gay contestant.
The Tribunal accepts the applicant’s family hold deeply conservative views about family, sexuality and honour. In view of the negative views about homosexuality that are prevalent throughout Albania, the Tribunal accepts that should his family learn of his sexuality they will consider that to be a deep affront to the family’s honour. Importantly the applicant’s home area is not in the capital of Tirana, but the highlands in northern Albania. The UK Upper Tribunal decision referred to in the UK’s Country Information Guidance and cited by the delegate specifically notes that:
Particular care must be exercised when assessing the risk of violence and the lack of sufficiency of protection for openly gay men whose home area is outside Tirana, given the evidence of openly gay men from outside of Tirana encountering risk as a result of their sexuality . . . [11]
[11] BF (Tirana – gay men) Albania CG [2019] UKUT 00093 (IAC).
In the applicant’s particular circumstances, the Tribunal accepts that if he were to return to his home area [and] live openly as a member of the LGBTQI+ community, there is a real chance he will be subjected to serious harm by members of his extended family. That harm may include but is not limited to a threat to his life; significant physical harassment and/ or significant physical ill‑treatment and he meets the criterion set out in s 5J(1)(b).
In considering whether the harm feared by the applicant extends to all areas of Albania, it is relevant that Albania is a relatively small country with a population of between 2.8 and 3 million people and Tirana, the capital, has less than half a million people. The distance from the applicant’s home in the north of the country to the central capital of Tirana is approximately 100 km. The applicant has not lived in Albania since he left as a child in 2006 and has no connections or supports outside of his extended family. Some of the applicant’s extended family members live in Tirana itself, including one of the applicant’s maternal uncles. For these reasons the Tribunal considers that the applicant’s extended family would be able to locate and harm the applicant in the capital of Tirana and throughout Albania and the real chance of persecution relates to all areas of Albania. It follows the applicant meets the criterion set out in s 5J(1)(c).
Is the harm feared for one of the reasons set out in s 5J(1)(a)?
It is well established that membership of the LGBTQI+ community in a given country can constitute a particular social group.[12] Having accepted that the applicant is a gay man, the Tribunal accepts that if returned to Albania he will do so as a member of the particular social group comprising the LGBTQI+ community in that country. Therefore he meets the criterion set out in s 5J(1)(a).
Effective protection measures
[12] Applicant S395 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473.
A person will not have a well-founded fear of persecution if effective protection against the persecution could be provided by the state. Section 5LA provides that effective protection measures from the relevant state are taken to be available if the person can access the protection; the protection is durable; and the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
The delegate referred to country information indicating that Kanun law still exists but no longer predominates in Albania, which has established a functioning system of law and order since the 1990s. In February 2016, the British Embassy in Tirana reported that references to Kanun law and blood feuds in modern Albania are misleading and that the rate of ‘blood feud’ is very limited by comparison with misleading reports produced in support of asylum claims in the UK and elsewhere.[13] The information referred to in the delegate’s decision relates specifically to blood feuds and indicates that while blood feuds stemming from Kanun law continue to occur throughout Albania, they are relatively few and declining. They generally affect the male blood lines of opposing families rather than individual targets and arise in very different circumstances than those that exist here.[14] In this case the applicant fears harm from his own family members for reasons of his sexuality and there is no evidence that he would be targeted in a blood feud.
[13] ‘Albania: CI170621160550302 – Arranged marriages – Forced marriages – Kanun law – Blood Feuds – State Protection – Personal Revenge and Vendettas – Southern Albania’, Country of Origin Information Services Section (COISS), p.2, 06 July 2017, CR8DFDCEA218 as cited in the delegate’s decision.
[14] Ibid.
As set out above, it is clear that the Albanian state has taken steps to protect its LGBTQI+ community in recent years. The UK Home Office Country Guidance for Albania reports that it has a functioning police force, laws, systems and avenues of redress in place for LGBQTI+ persons, particularly in the capital of Tirana. However it also reports that most LGBTQI+ people have difficulty accessing the justice system and that police and prosecutors at times fail to respond to attacks on LGBTQI+ people.[15]
[15] UK Home Office Guidance: Country Policy and Information note: sexual orientation and gender identity and expression, Albania December 2022 at 4.9.
Other sources indicate that while LGBTQI+ groups have some legal safeguards protecting them from discrimination, they continue to suffer from high rates of discrimination and abuse from society at large, including members of their own families.[16] The US Department of State observed in 2021 that corruption was pervasive in all branches of government in Albania, including the police, and that as of November 2021 125 judges and prosecutors had been dismissed after undergoing vetting for unexplained wealth, ties to organised crime and professional competence while 48 others had resigned rather than undergo vetting.[17]
[16] Ahmed Shaheed, UN Special Rapporteur on freedom of religion or belief Preliminary Findings of Country Visit to Albania 17 May 2017.
[17] USSD, HR Report 2021; Albania (Section 4), 12 April 2022.
In this case the Tribunal accepts that the applicant’s extended male family members will be motivated to harm him if he lives openly as a gay man, driven by concepts of family honour and shame. It is notable that the applicant’s mother’s cousin was prosecuted and jailed for killing his daughter and her boyfriend in an honour killing, but retained the support of the applicant’s uncles who believed that nothing less was necessary to restore honour to the family. Similarly the applicant’s uncles were prepared to kill the husband of one of the women in the family to prevent the shame of divorce, despite the prospect of prosecution under Albania’s criminal laws. In these circumstances, the Tribunal is not satisfied that state protection is accessible to the applicant and he is not excluded from having a well-founded fear of persecution by the operation of s 5J(2).
The applicant cannot be required to modify his behaviour to alter or conceal his sexual orientation. Therefore the applicant cannot be required to live discreetly, or end or hide his relationships with men, so as to avoid the feared persecution pursuant to s 5J(3).
The Tribunal finds the applicant’s membership of the particular social group comprising the LGBTQI+ community in Albania is the essential and significant reason for the harm feared, that it involves serious harm and that it involves systematic and discriminatory conduct. Therefore the applicant meets the criterion set out in s 5J(4).
For these reasons the Tribunal accepts that the applicant has a well-founded fear of persecution for reasons of his membership of the particular social group comprising the LGBTQI+ community in Albania if he returns to that country, now or in the reasonably foreseeable future. It follows that he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Right to enter and reside in a third country
Even where an applicant is found to be a person in respect of whom Australia has protection obligations, they will not be eligible for a protection visa if they have a right to enter and reside in another country where protection is available to them.
Section 36(3) of the Act has the effect that Australia is taken not to have protection obligations to non-citizens who have not taken all possible steps to avail themselves of a right to enter and reside in a country apart from Australia. There are exceptions to this qualification which operate where a person has a well-founded fear of being persecuted or faces a real risk of significant harm in that country, or has a well-founded fear of refoulement from that country to a place where they face such treatment.[18]
[18] Sections 36(4)–(5A).
The Full Federal Court has held that the term ‘right’ should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.[19] The right must be presently existing and not a potential right. There must not be any existing prohibition or law contrary to its exercise.[20]
[Country]
[19] MIMAC v SZRHU [2013] FCAFC 91.
[20] V856/00A v MIMA (2001) 114 FCR 408.
Immediately before the applicant’s arrival in Australia in January 2013 he was living lawfully in [Country] as the holder of a visa granted to him as his father’s family member. The Tribunal accepts that after 10 years’ absence from [Country] his visa has expired and the applicant has no current right to enter and reside in that country. The [Nationality] passport used by the applicant to travel to Australia is a bogus document that does not bestow [Nationality] citizenship on the applicant.
European Union
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.com
Further 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.com
In these circumstances the applicant is not excluded from Australia’s protection obligations by the operation of s 36(3).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Alison Murphy
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

ETIAS Requirements for Albanian Citizens - SchengenVisaInfo.com