2320275 (Refugee)
[2025] ARTA 1983
•12 September 2025
2320275 (REFUGEE) [2025] ARTA 1983 (12 SEPTEMBER 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2320275
Tribunal:General Member M Brereton
Date:12 September 2025
Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
· s 36(2)(aa) of the Migration Act.
Statement made on 12 September 2025 at 1:22pm
CATCHWORDS
REFUGEE – protection visa – Albania – applied after period as unlawful non-citizen – married Australian citizen of another country background – application for partner visa invalid – father arranged marriage in home country to pay gambling debts – fear of harm from her father and family and their criminal associates – wife’s health and treatment – Australian citizen child – no right to citizenship or residence in wife’s background country – complementary protection – country information – customary law – blood feuds exploited by criminal groups – corruption and local alliances reduce access to protection – relocation – no work history in home country and limited possibility of re-establishing life without contact with parents – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(aa), (2A), (2B)(a), (b), (3), 65
Migration Regulations 1994 (Cth), Schedule 2Any 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
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 November 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 national of Albania, arrived in Australia as the holder of visitor visa in 2017. He applied for the protection visa on 5 November 2019. The delegate had significant concerns with the delay in lodgement, inconsistent statements, and the credibility of the claims. The delegate considered the application was not a credible application for protection but rather an “application of last resort” and refused to grant the visa.
The applicant appeared before the Tribunal on 20 August 2025, to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife [Ms A] and his sister [Ms B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Albanian (Tosk) and English languages.
The applicant was represented in relation to the review.
BACKGROUND
The applicant is a [Age]-year-old man from [a town ] in Albania. He applied for a student visa in 2013 while offshore. That application was refused in 2014. The applicant applied for a second student visa in 2014. That application was refused in 2015. The applicant then applied for and was granted a visitor visa. He entered Australia [in] July 2015 and departed [in] October 2015.
The applicant applied for and was granted a further visitor visa and arrived in Australia [in] November 2017. On 23 January 2018, the visitor visa expired, and the applicant became an unlawful non-citizen.
The applicant married [Ms A], an Australian citizen, [in] July 2019. On 14 October 2019, he lodged an application for a partner visa. That application was deemed invalid because the applicant could not apply for the visa while in Australia (condition 8503).[1] The applicant made four requests to waive condition 8503 between October 2019 and July 2023. Each request for waiver was refused.
[1] Condition 8503 prevents visa holders from applying for another substantive visa (excluding Protection Visas) while in Australia.
The applicant lodged the protection visa application on 5 November 2019.
Evidence before the Department
The application for the protection visa claims that the applicant will face harm or death from the family of a girl he was obligated to marry. He claims:
If I return to Albania I honestly believe that as I have refused to marry [Ms C] and I am now married to [wife] my life will be ended in a blood revenge killing by [Ms C]’s father, relatives or criminal associates. My father entered into an arrangement without my knowledge to repay his gambling debts to [Mr D]. While I was in Australia in December 2017 my father called me and told me to return immediately to Albania as he had arranged a marriage for me and I needed to uphold his promise and marry [Ms C]. I was astounded that my father had made this commitment without my knowledge. I did not know [Ms C] but when my father explained more about her father I knew that he was a gangster, he always carried a gun and I knew that he had killed a person who had owed him money previously. I was very upset with my father and refused to marry [Ms C]. I was very concerned with my welfare and asked my father to contact the police and the court in Tirane to see if I could be granted any protection
I believe that if I return to Albania I will be killed. [Mr D], his relatives and his gang members will be waiting for me when I arrive in Albania. I have refused to marry his daughter and therefore he considers that I have insulted his family and wants revenge for my refusal to comply with his demands.
My father has told me that he has contacted the police where we live as he knows them personally and they have said until I return to Albania or I am killed or harmed by [Mr D] or his family and associates they cannot take any action. My father contacted a register lawyer in Tirane who works in the government law courts and asked if the government could protect me and she has advised that nothing can be done until I am killed or physically harmed.
Albania is a very small country and if I relocate from my city to any other place it will only take a day before people will find out where I am.
Request for further information
On 2 August 2023, the Department wrote to the applicant pursuant to s 56 of the Act. The delegate’s decision notes:
The s56 invitation advised the applicant that their statement of claims lacked substantiating details such as dates and locations, and supporting documentation, with regards to their claims relating to [Mr D], and that no further evidence to support their claims had been provided. This correspondence also advised the applicant that, in order to be satisfied that their claims for protection were genuine, they were invited to provide more information about what happened in Albania, including dates, and locations of events.
In addition, the applicant was also invited to provide an explanation regarding:
• The significant delay in lodging his PV application in Australia.
• The lack of supporting evidence to support the existence of [Mr D].
• The absence of any repercussions experienced by his father resulting from the debt and breaching the arranged marriage agreement
This correspondence also advised the applicant that, if they could not provide copies of documents or details of their claims as they were invited to provide, they should provide a detailed explanation of why they could not provide these documents and details, and of the efforts they made to obtain these documents
Response to s 56 request
On 28 August 2023, the applicant responded to the s 56 request. He provided a statement as follows:
I, [the applicant] am an Albanian Citizen residing in Australia illegally as I fear for my life if I have to return to Albania. I arrived in Australia on a tourist visa in November 2017 for a visit with my sister [Ms B] for two months. In December 2017 my father telephoned from Albania stating that his friend [Mr F] had come to his home and demanded that I marry his daughter. I was not aware that my father had made a betrothal promise on my behalf and I did not agree to this marriage. My father is a gambler and he owed [Mr D] a lot of money some of which he had used to pay for my education. I was very upset as [Mr D] is a violent person with contacts to the criminal gangs and he carries a gun and had killed a man and threatened many others. I asked my father to go to the police on my behalf, but he had done this and the police had advised him that only after a crime has been committed could they act. My father also contacted a relative who is a lawyer in the government court in Tirane and asked her for assistance but she also advised that only after I return to Albania and ram hurt or killed will any police or government agency take action.
I told my father that l would not come back to be killed for something that was not my fault. I spoke with my sister and she was very upset as she feared for my life and the lives of our parents and she had paid $15,000 bond to have me visit for three months. She did not have any other money to send to Albania and the debt was more than $15,000 it was $50,000. She told me that by breeching my visa she would lose the bond and even worse she would not be able to have our parents visit her in Australia.
My sister's husband was also very upset and said that he would not be taking my sister and their children to Albania because he was worried that they could be killed by the man that was threatening me as revenge for my not marrying his daughter, or his children could be held for ransom. l decided to stay in Australia for my own safety, although I worried for my parents.
I first met my wife [Ms A] at her family business on 24 January 2018 when I went to purchase lunch with my sister [Ms B]. We kept in contact by telephone and [Ms A] would often come and visit me at my lodgings or I would visit [Ms A] at the shop every week. Our feelings were getting stronger for each other and so I decided to explain that I loved her but I had problems with my visa in Australia and that I was very concerned that I would be killed ifl returned to Albania. [Ms A] understood as our culture was similar and could sympathise with my problems. [Ms A] fell pregnant and we were both overjoyed and [Ms A]’s parents were so excited about a grandchild. Unfortunately, we miscarried the child and we were all very upset. I spoke with [Ms A]’s parents about my visa situation and asked to marry [Ms A]. I moved in with [Ms A] in her family home in June 2019 and we married [in July] 2019.
We have discussed going to Albania together to apply for a spouse visa but I am concerned not only for my wellbeing but also for the wellbeing of my wife as [Mr D] has threatened my life and l worry what he would do to my wife if she enters Albania. We are both very stressed about my situation in Australia and Albania as l do not have criminal record in any country and l have always complied with the law.
I have completed studies in [Subject] in Albania so I know full well that people in Albania do not have the same protection as a person in Australia. The government changes every two years and each regime is full of corruption and convicted criminals serving life sentences for murder are released after 2 years with the payment to the new government. I do not associate with any Albanians in Australia except my sister as l fear that [Mr D] could send people to assault or kill me in Australia if he finds out where l live. l live in fear every day.
The applicant provided identity documents, a marriage certificate, and two letters from a naturopath attesting to the applicant’s marriage and his anxiety and depression.
The interview
The applicant was not invited to attend an interview.
Summary of the delegate’s decision
The delegate had concerns about aspects of the claimed timeline of claims. The delegate found that the applicant’s evidence of when the fear arose (2017 or 2019) was inconsistent and contradictory. The delegate was concerned that the applicant had not applied for the protection visa until 2019. The delegate found the applicant’s interactions to be “confused, vague and contradicting which undermines his overall credibility.” The delegate found that the limited options available to the applicant to remain in Australia are indicative that he lodged the protection application as a “last resort”.
The delegate found:
Overall, I find the applicant’s explanation does not alleviate my concerns surrounding his delay in lodgement. The applicant written statements provided in his initial PV statements of claims and responses contains implausible accounts and various discrepancies of the specific timeframe in which he no longer felt safe to return to Albania. Having considered the issues noted above in this decision record, I do not accept that the applicant was motivated to lodge the current PV application for the reasons provided. I find the applicant’s delay in lodging this PV application was not due to fear of returning to Albania, but rather evidently as a visa of last resort.
The delegate did not consider the applicant’s substantive claims and found that he did not satisfy the criteria for the grant of the visa.
Evidence before the Tribunal
Pre-hearing submissions
On 14 August 2025, the applicant, through his agent, provided a pre-hearing submission and further documents to the Tribunal. This included a witness statement from his sister, proof of marital status, proof of home purchase, education documents, medical information in respect of his wife, a birth notification for their [child], country information about blood feuds in Albania, and media reports relating to police corruption and other matters in Albania.
On 18 August 2025, the applicant provided further pre-hearing documents including a statutory declaration from a former neighbour in Albania confirming that they know the applicant’s family and are aware that [Mr D] and his family live in the same town.
The hearing
The applicant attended an in person hearing before the Tribunal on 20 August 2025. His wife and sister also attended and gave evidence. The submissions and evidence are considered below.
Post-hearing submissions
The Tribunal invited the applicant to provide post-hearing submissions by 5 September 2025. On 28 August 2025, the applicant provided a statutory declaration dated 27 August 2025 and a covering letter from his representative.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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, 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
The issue in this case is the applicant’s fear of harm arising from a family honour breach. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Identity
The applicant claims to be a citizen of Albania. He has provided identity documents in support of this claim. He told the Tribunal that he does not have a right to enter or reside in any other country. The Tribunal accepts the applicant’s claims in relation to his identity and origin and finds that he is an Albanian citizen, and that Albania is the receiving country and country of reference for the purposes of this review.
The applicant claims to have married an Australian citizen. He has provided a copy of a marriage certificate confirming a marriage according to Islamic rites, and a copy of the biodata page of an Australian passport for his wife. The applicant has also provided a photograph of a newborn patient ticket identifying the applicant and his wife as the parents of a child born on [Month, Year]. The Tribunal accepts this evidence and finds that the applicant is married to an Australian citizen, and they are the parents of a child, born in Australia, in [Year].
Claim
The applicant claims that his father is a gambler who ran up debts with a known criminal, [Mr D]. While the applicant was in Australia, and without his knowledge, his father made an arrangement with [Mr D] that the applicant would return to Albania and marry [Mr D]’s daughter, [Ms C]. The applicant did not agree to this arrangement and subsequently married an Australian citizen. The applicant believes that [Mr D] views this as a slight on [Mr D]’s family honour and that [Mr D] will harm the applicant in revenge if the applicant returns to Albania. The situation is complicated further because [Mr D]’s daughter has reportedly committed suicide because of the slight and this has increased the risk of, and potential level of, harm.
As noted above, the applicant has a history of making visa applications offshore and while in Australia. His entries to Australia have both been made on valid visitor visas. He departed Australia before the expiry of his first visitor visa, but he remained in Australia following the expiry of his second visitor visa. He remained in Australia unlawfully for 22 months before applying for a partner visa. He applied for the protection visa after that partner visa was refused. At the hearing the Tribunal put to the applicant that this might lead the Tribunal to the view that he applied for the protection visa because it was the only visa he could apply for, rather than because of a real fear of harm. The applicant asked for time to respond to this question and the Tribunal agreed.
On 28 August 2025, the applicant provided a further statutory declaration dated 27 August 2025. This declaration states:
I have never worked in Albania. I was a full time student when I travelled to Australia. My [relative] who is a lawyer in Albania has refused to provide any written advice about the assistance that the current Albanian government can provide me and my family if I return to live in Albania as this may affect her standing and her employment with the current government.
I do not have any financial resources to support myself and my family in Tirane Albania. My parents do not have the financial resources to assist me and my family to reside in Tirane. Other people who are been the subject of the Blood Feud live isolated, confined to their home and the wife works to support them and the family. My wife cannot speak Albanian and she would not have permission to work in Albania as she is not an Albanian citizen.
Tirane is only 3 hours away from [Town] and my parents and sister could visit but they will not visit us as they know that they would be followed by a member of the [D] family and will discover that I had returned to Albania.
My wife has medical problems resulting from a [medical condition 1] and needs ongoing medication and medical care to ensure that she can maintain her health. My wife has had [miscarriages] and we would like another child in the future. There is no medical insurance or government funded medical services in Albania so my wife's life will be at risk if she requires medical treatment and medicine for her existing health issues or future pregnancies. My infant [child] also an Australian Citizen will also be at risk if [s/he] requires medical treatment in the future due to the lack of adequate medical facilities and the cost of treatment in Albania.
When we apply to travel to Albania, my wife and [child] would only be granted a three month stay in Albania. There is a cost associated with renewing the visa as they must leave the country and to be granted a further three months stay in Albania. I believe that that I would be killed before my wife had to consider applying for another 3 months stay in Albania.
Member, you asked about the possibility of me and my family living in [Country] and applying for a Partner visa from [Country]. My wife's parents are [Nationality] but my wife and [child] do not have any right to [Nationality] Citizenship. We would all have to apply for resident visas to live in [Country] and give me the right to work to support my family. This would not be possible as I have no previous work history in Albania or [Country]. I do not have the financial capacity to set up a residence in [Country] and support my family and myself.
[Town] is located an hour from the [Country] border and the [D family] can easily travel to [Country] to locate me. There is nowhere in Albania where I can live safely with my family. Albania is a small country with one airport and people at the airport inform other family members and friends as soon as someone arrives from Australia. Even if I did not inform anyone in Albania that I was returning to Albania with my family, within a week everyone in [Town] would know that I was in Tirane. I believe that I would not survive even a month trying to live in Albania as I would be located and killed.
Many people in Albania have left the villages seeking employment in Tirane so some of the [D family] from [Town] and the north of Albania are living in Tirane and they can find me easily and exact retribution on me by killing me for the dishonour I have brought to the [D family] and my wife and child could be injured in an attack on me.
…
I have tried to source substantiated information about the [D family] and their criminal activities in [Town] and other parts of Albania. Everyone who has been approached has stated that their lives would be at risk if they provided any information as they are living in Albania and they fear the risk of retribution from the [D family] and since the arrest of [Mr E], people are concerned that by providing information they be accused of being involved in the criminal activities of both the [D family] and the [Occupation 1 role 1].
I have been a victim of Blood Feud since 2017 and I am grateful that I am still alive and have my family. This is because I have been living isolating myself in Australia and I am seeking the protection of the Australian Government to allow me to live out my life with my family safely in Australia.
As much as I acknowledge that I am an Albanian and would love to return to my country of birth and care for my parents as it is my duty as the only son I know that there is no place in Albania where I can live safely with my family as I know that I will be killed as soon as the [D family] find my address.
Please grant me and my family the right to live our lives in safety in Australia.
Does the applicant satisfy the refugee criterion for protection?
The applicant claims to fear harm because he refused to marry [Ms C] and has brought dishonour to the [D] family. He does not claim to fear harm because of his race, religion, nationality, or political opinion. He does not claim to be a member of a particular social group in Albania. The Tribunal has considered information relating to blood feuds below and for the reasons given there, is not satisfied that the applicant is a member of a particular social group, being a male member of a family facing harm because of a blood feud. There is no other information before the Tribunal indicating that he may be a member of any particular social group. The Tribunal finds that the applicant does not claim to fear harm for one or more of the reasons set out in s 5J(1)(a) of the Act. The Tribunal finds that he does not have a well-founded fear of persecution for any reason or combination of reasons, should he return to Albania.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). A non-citizen may satisfy this criterion if they are:
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.
Subsection 36(2A) defines significant harm as being that:
· the non-citizen will be arbitrarily deprived of his or her life; or
· the death penalty will be carried out on the non-citizen; or
· the non-citizen will be subjected to torture; or
· the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
· the non-citizen will be subjected to degrading treatment or punishment.
The applicant fears that he will face harm because he has dishonoured [Mr D] and his family. The applicant refers to this as a ‘blood feud’ arising from ‘kanun’. The Tribunal has heard evidence from the applicant and his sister, and has seen a statutory declaration from a neighbour in [Town].
The delegate was concerned that the applicant’s visa history was indicative that he had applied for protection as a ‘visa of last resort’ rather than a real fear of harm. The applicant responded to this at hearing and in his post-hearing response. The Tribunal has considered the applicant’s oral evidence and other supporting evidence carefully. The Tribunal has formed the view that the applicant has been a witness of truth in relation to what he believes has occurred in Albania. He claims, and it is at least plausible that he did not apply for protection at first because he believed that he had other options available. The Tribunal does not doubt the applicant’s credibility and considers that any doubts that may exist in relation to the applicant’s visa history should, in these particular circumstances, not carry great weight. The Tribunal does not draw any adverse inference as to the applicant’s credibility or his claims because of his visa history.
The Tribunal accepts that the applicant’s father told him that he and [Mr D] entered into an agreement that the applicant will marry [Ms C]. The Tribunal accepts that the applicant refused to do so and believes that [Mr D] saw this as a slight on his family honour. The Tribunal also accepts that this fear has been exacerbated by the applicant’s subsequent marriage in Australia.
Country information - The Kanun
This Tribunal has considered in previous matters involving the so-called customary law of Northern Albania (Kanun). In those matters it has noted that country information indicates that:
The Kanun of Lek Dukagjini as the customary law of Northern Albania is the most unique aspect of this Albanian part of society. This Kanun sets up the rules, upon which the culture is based, focusing on the concepts of honor, like hospitality and besa, and the topmost of the society, is Family. This ancient legal code defines the Albanian character, even today. It prevented assimilation throughout history and continues to do so. The Kanun of Leke Dukagjini is the most distinguishing feature of the Albanian culture. The preservation of customary law was one of the most important elements in helping the Albanian people to maintain their individuality under Ottoman domination. The Code of Lek Dukagjini is the body of “customary law" under which Albanians, particularly the northern clans, have conducted their lives.[2]
[2] Arben Cara and Mimoza Margjeka, ‘Kanun of Leke Dukagjini Customary Law of Northern Albania’, in European Scientific Journal, Volume 11, Number 28, October 2015, pp 174 – 186.
The study referenced above examines in part the role of Kanun and its impact on Albanian families. It notes that Albanian society is based on the extended family, family structure is extremely important, and it is strongly patriarchal. Children who are raised under Kanun are raised with the understanding that the father’s word is law. The study goes on to explain that in more recent times, this customary law has also become “a point of reference permitting to justify individual acts of violence” and aspects of this (which the authors call pseudo traditionalism) have made a reappearance after the end of the communist regime. In other words, the pure Kanun has been distorted and is now often used as an excuse for family violence, personal vendettas, revenge, or similar actions.
The Tribunal has considered a recent report from the United Kingdom Home Office (UKHO) about blood feuds in Albania. This report notes:
Blood feuds continue to occur – although it is not clear how many of these are existing or new feuds – with the phenomenon stemming from Kanun (customary) law. They are most prevalent in the northern areas of Albania, in particular Shkodra (Shkodër), Lezha, Kukes and Diber.[3]
[3] United Kingdom Home Office (UKHO 2024), 'Country Policy and Information Note Albania: Blood Feuds', 3 July 2024, at 3.1.2, >
The Tribunal has also noted the following observation of the effect of Kanun on women in Albania:
Under the Kanun, women were considered property whose role in life is to produce children. Women had very few rights (they could not vote, inherit property, hold certain jobs, smoke, etc.) and are described in the Kanun as a sack that men have to endure while she lives under his home.
Fathers had the right to sell daughters in marriage. The father of a bride would give the groom a wedding gift of a bullet wrapped in straw, giving the younger man permission to kill his daughter if she disobeyed him. An older teacher once told me her husband was a drunk and abusive. She slept on the couch for years to avoid his beatings. When I asked why she never left, she told me he would kill her and that the police wouldn’t do anything about it.
Even today, many girls and young women in northern villages are forced into marriages especially if they don’t have the opportunity to go to university. A friend who worked in a high school in Diber had 14-year-olds in her class who were already married because their fathers did not want to have to keep supporting them.[4]
[4] Robin Holleran, ‘The Kanun is about much more than just blood feuds’, 3 January 2021, in Exit News blog >Turning to the present matter, the applicant and his sister both gave evidence to the Tribunal that [Mr D] and the [D] family are originally from Northern Albania. There is nothing in the material before the Tribunal that contradicts, or casts doubt on that belief. The Tribunal accepts that the [D] family is originally from Northern Albania. Based on the information cited above it is not implausible that [Mr D] and his relatives consider family honour as a matter of Kanun. The Tribunal also notes the information above that fathers have the right to sell daughters in marriage and that many girls and young women are forced into marriage. It is plausible, and the Tribunal accepts, that [Mr D] wanted to arrange a marriage for his daughter [Ms C].
The Tribunal asked the applicant and his sister what advantage [Mr D] would see in an arranged marriage with the applicant. Both said that the applicant was studying [subject] and would be seen as someone who is educated and able to provide a good living and social position. The applicant’s sister also commented that [Mr D] is involved in various illegal activities, and it would be to his advantage to have [an occupation 2] in the family. These are both plausible reasons for [Mr D] wanting to marry his daughter to the applicant. They are also plausible reasons why [Mr D] may see the refusal as a slight on personal and family honour.
The applicant’s sister told the Tribunal that [Ms C] has not been seen in the village for a long time and the local community believe that she has taken her own life because of the marriage refusal. There is no other evidence corroborating [Ms C]’s situation but even if she has not taken her own life, the Tribunal is satisfied that [Mr D] may still be angry about the slight to his and his family’s honour.
The Tribunal has considered all the above carefully and has come to the view that in these particular circumstances, there is more than a remote chance that [Mr D] sees the refusal as a slight on personal and family honour. Given [Mr D]’s geographic background, the Tribunal finds that there is more than a remote chance that this may trigger a response that, even if not pure Kanun, is informed by the principles and practices of Kanun. The Tribunal finds that there is a real risk that the applicant will face harm from [Mr D] and/or the [D] family because of the marriage refusal.
The information before the Tribunal indicates that there can be a range of consequences to an honour slight in Albania. This can include killing. Some of the reports cited above go on to state that the incidences of blood feud killing where another, uninvolved, (emphasis added) male member of a family may be killed as part of the feud, have declined sharply. In the present matter, the agreement was made by the applicant’s father; however, the applicant is the person who has, in [Mr D]’s view, brought the shame to the family. The Tribunal considers that this places the applicant at a particular risk of more significant consequences as an individual target at the hands of the [D] family.
As to whether this situation constitutes a blood feud or something else, the Tribunal notes the following:
In Albania, a blood feud is called gjakmarrja, which means “blood-taking” or “blood feud”. Revenge or vendetta, on the other hand, is called hakmarrja. The latter is the obligation to “take life to right an earlier wrong, to salvage honour”. The terms are used interchangeably and sometimes can be confusing, as in both cases the killing is made to restore justice and honour. The key difference, however, is that blood feud is a protracted series of family-based revenge killings that can last for generations, whereas a vendetta is retaliation for a killing – a tit-for-tat killing. The lines are blurred when a vendetta conducted for the sake of a family member triggers a blood feud.[5]
[5] Global Initiative, ‘Blood feuds in Albania exploited by criminal groups’, 11 December 2021, quote in UKHO 2024 at 8.1.2.
The Tribunal finds that the circumstances facing the applicant are not a blood feud in the sense that it is referred to and defined in country information about Albania. The applicant does not face harm because he is a male member of a family in a blood feud. However, he does face harm because of a personal profile and irrespective of how one classifies the threat (e.g. an honour killing, revenge, vendetta, or something else), the applicant faces a real risk of harm that may include murder, significant violence, or other treatment or punishment that could be considered cruel and inhuman, or degrading, treatment or punishment, as contemplated by the Act. This treatment will be inflicted on the applicant intentionally. The Tribunal finds that this is significant harm as contemplated by the Act.
Section 36(2B) provides:
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.
Protection
The Tribunal has considered whether the applicant can obtain protection from the authorities such that there will not be a real risk he will suffer significant harm. The applicant has provided evidence that [Town] is a small town where everyone knows everyone else. He told the Tribunal that the authorities will generally not get involved in family honour disputes. The applicant and his sister also spoke of corruption and the influence that [Mr D] has in the area.
UKHO information reports that both the police force and the justice system are functioning. Whilst there have been incidents of corruption and misconduct by authorities, law enforcement agencies are generally effective in maintaining security, combating crime and protecting citizens. Judicial independence is constitutionally guaranteed but can be undermined by executive influence, backlogs and limited resources. However, UKHO also notes that while this is true of the larger cities in Albania, corruption continues to be a widespread problem away from these cities. In 2023, several cases were publicised showing how local law enforcement can be intimidated and infiltrated. There were cases of victims being refused assistance because of the profile of the alleged attacker. In the Albania 2024 Report, covering the period 15 June 2023 to 1 September 2024, the EC stated that ‘The state police remain highly vulnerable to corruption, and accountability remains weak, despite some anti-corruption efforts.[6]
[6] UKHO, ‘Country Policy and Information Note Albania: Actors of Protection’, Version 3.0, February 2025.
UKHO’s report into blood feuds also notes that the Albanian government has adopted an action plan on the prevention and fight against criminal acts committed for motives of blood feud and vengeance.[7] Despite this approach, the information indicates that results are better in cities rather than smaller towns. UKHO also received comments from in country sources that:
‘As the justice reform analysis showed there is a low public trust towards law enforcement, so even though the country is undergoing a major reform, to try and fix the justice system, I don’t think the public trust will grow in the immediate future.
‘… people know in small communities if the police or the judges take money under the table, and whether they live by the same negative social norms dominant in that community, and won’t help women and girls. This, for instance creates a lack of trust, whether in the case of [gender-based violence/domestic violence] GBV/DV or blood feud, or any issue, for that matter.’[8]
‘… blood feuds are kept alive by …, lack of power in the justice system and lack of law being implemented. Even if in a public case …, the guy can be out after a short sentence, so imagine how long they might be punished for other cases that are not so public. Short sentences are due to corruption …’[9]
‘Technically yes, no one is denied protection, however how effective is protection? Can people go out freely, can police guarantee such a thing? For example, for families it is not necessary for them to go abroad, they can stay in Albania, but the police do not help them to relocate and this is why there is such a high number leaving, the police could help them relocate however they do not feel safe.’[10]
[7] UKHO 2024, at 10.1.
[8] UKHO 2024 at 10.2.2.
[9] UKHO 2024 at 10.2.15.
[10] UKHO 2024 at 10.2.17.
The applicant and his sister have provided evidence that the family knew a local [occupation 1] ([Mr E]) in the town. This is supported by the statement from the former neighbour in [Town]. The applicant has also provided a media report dated [July] 2024 and certified translation.[11] This reports that [Mr E] (who was then working in another town) has been arrested by anti-corruption police on suspicion of being connected to serious criminal events. The article reports that [Mr E] had been arrested previously in October 2013 when he was caught accepting money to [do a job task corruptly]. The article notes that he had “managed’ to return to the [occupation 1 employer]. The operation that caught [Mr E] in 2024 also led to the detention of [an occupation 3] and [an occupation 4].
[11] [News source, Title, Date].
The evidence and information cited above raises questions in the Tribunal’s mind over the willingness and/or effectiveness of the local police in [Town] to protect the applicant, particularly where the perpetrator is an alleged well-known organised criminal who it is claimed has been able to operate with some impunity in the past. The media report in relation to [Mr E] supports the other country information about corruption outside the major cities. The Tribunal has also located other open-source information that confirms [Mr E]’s investigation in 2013, when he was the [occupation 1 role 2] in [Town]. He was arrested in a [location] while taking money from a person asking to [do a job task corruptly].[12]
[12] [Website], 2013, [Title, URL]
The question the Tribunal must answer is whether the applicant can access protection in [Town] that will reduce the risk of harm to the level of no risk. The Tribunal finds that the availability and level of protection he will be able to access in [Town] is potentially limited by corruption and local alliances and is at least questionable. The Tribunal is not satisfied that it will be sufficient to reduce the risk of harm to the level of no risk. The Tribunal finds that the applicant will not be able to obtain relevant protection in [Town].
Relocation
The Tribunal has considered whether the applicant can relocate to another part of Albania where he could avoid the risk of harm. The applicant was visibly upset when discussing the potential of return to Albania. He said that his parents remain in [Town], but he will not be able to live there himself because [Mr D] and his family are in that area. The Tribunal asked whether he could live in another city such as Tirane, where his parents could visit him. He said that his parents would not be likely to come and visit because they will be scared of being followed or intercepted by [Mr D]. He said that he and [Ms A] will have to live in Albania alone because of his circumstances.
The Tribunal put to the applicant that he has studied [subject] in Albania and asked whether he could obtain work in that field. He said that he has finished the Bachelor level degree but to become a practising [occupation 1] he will need to do a Masters level degree. He told the Tribunal that he has never worked in Albania and has no work experience or history there to draw on.
[Ms A] gave evidence to the Tribunal that she is an Australian citizen of [Nationality] heritage. She does not speak Albanian and has never been to Albania. Her parents live in Australia, and she has no family in Albania other than her in-laws. She has not lived in [Country] or worked there and does not have a [Nationality] passport or the right to enter and reside there. She told the Tribunal that she has two serious health issues. She said that she has problems with her reproductive health and has suffered [miscarriages] prior to the recent birth of their [child]. She has also been diagnosed with a [medical condition 1] and is currently on medication for [medical condition 2] and [medical condition 3]’s, which can be triggered and/or exacerbated by the [medical condition 1]. She has provided the Tribunal with copies of death certificates relating to the [miscarriages]. [Ms A] told the Tribunal that she does not want her family to be split apart. She does not know what she will do if the applicant has to return to Albania, but she thinks that she and her child will probably go with him. She is concerned about what this may mean for her medical condition and medications. She is also distressed because it will mean separation from her parents. The Tribunal asked if she has a good relationship with the applicant’s parents. She said that she does.
The Tribunal accepts that the family will face significant challenges if they have to return to Albania. The Tribunal accepts that the applicant will face challenges finding work and supporting his family. He will not be able to rely on [Ms A] given that she does not speak Albanian, has never lived there, and has no knowledge of Albanian life. The Tribunal accepts that the applicant and his parents fear that [Mr D] may locate him if they visit each other and that this means the applicant will be in effect separated from his parents. The applicant will be separated from his sister and her family who are in Australia. He will also be separated from the support and comfort provided by his in-laws here. The Tribunal accepts that the applicant and [Ms A] will also need to deal with a newborn, as well as with [Ms A]’s medical conditions and treatment, in a situation where she does not speak the language and is not able to access her parents or other family assistance. The alternative is that the applicant returns to Albania alone and is separated from his wife and his newborn child. This may be only temporary as the applicant may be able to apply for a visa from Albania, although it is not certain whether he would be successful in doing so or how long the process may take. The Tribunal has considered this matter carefully and puts great weight on [Ms A]’s medical condition, the very young age of the child, and the applicant’s distress at the prospect of being the cause of the separation of, and disruption to, his family and not being here to support them. Having regard to all these factors, the Tribunal finds that it is not reasonable for the applicant to relocate to another part of Albania. The Tribunal is satisfied that s 36(2B)(a) does not apply.
Risk faced by population generally
The Tribunal is satisfied that the risk of harm facing the applicant arises from his personal profile and involvement with [Mr D] and the [D] family. It is a risk faced by the applicant personally and not one faced by the population of the country generally. The Tribunal is satisfied that s 36(2B)(c) does not apply.
Conclusion
Having regard to all the evidence and findings above, the Tribunal is satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Having regard to the information above, the Tribunal also finds that that the applicant does not have a right to enter and reside in any third country. The Tribunal finds that s 36(3) does not apply.
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(aa) of the Migration Act.
Date(s) of hearing: 20 August 2025
Representative: Ms Merushe Asim (MARN: 0107440)
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.
…
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