2414969 (Refugee)

[2024] AATA 4347

2414969 (Refugee) [2024] AATA 4347 (19 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Nazim El-Bardouh

CASE NUMBER:  2414969

COUNTRY OF REFERENCE:                   Albania

MEMBER:Alison Murphy

DATE:19 August 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 August 2024 at 11:40am

CATCHWORDS
REFUGEE – protection visa – Albania – previous unsuccessful protection visa application – further applications, visas and travel under different identities with fake passports – refused entry and detained – fear of harm from family of young woman who died in accident with applicant’s car – attempted reconciliation by parish priest – families continue to live in same area and no threat or harm to any other family member – woman’s brother’s criminal history – country information – number of blood feuds low and declining – revenge crimes – real chance of harm – reasonable state protection available – late claim of fear of harm by ex-girlfriend’s brothers – unfavourable inference – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J, 5L, 5LA, 36(2)(a), (aa), (2A), (2B)(b), 65, 89, 423A, 438
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33
MIMA v Respondents S152/2003 (2004) 222 CLR 1

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 May 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Albania, applied for the visa on 30 April 2024. The delegate refused to grant the visa on the basis that the applicant did not engage Australia’s protection obligations.

3. The applicant appeared before the Tribunal on 18 July 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Father A] by video from [Village 1], Albania. The Tribunal hearing was conducted with the assistance of an interpreter in the Albanian and English languages.

4. At the commencement of the hearing the Tribunal was advised by the applicant’s representative that the applicant’s brother, [Mr B] and wife [Ms C] were present at the Tribunal premises, although they were not present in the hearing room during the applicant’s evidence due to the private nature of the hearing. While the Tribunal indicated that it was happy to hear evidence from them if asked to do so, they were not called to give evidence as witnesses.

5. The applicant was represented in relation to the review and the representative attended the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

6. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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.

7. 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.

8. 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).

9. 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.

10. 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

11. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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 affirmed.

    Non-disclosure certificates

13. The Tribunal has before it the departmental file relating to the refusal of the applicant’s protection visa. The delegate has placed restrictions on some of the material given to the Tribunal by the Department under s 438 of the Act.

14. Certificates dated 25 June 2024 and 8 July 2024 record that disclosure of the certificated folios would be contrary to the public interest because it may disclose information of a confidential nature relating to operational measures and risk management where the release of such information should not be public knowledge as it may impact the effective operation of the Department. A certificate dated 16 July 2024 states that disclosure of the certificated folios would be contrary to the public interest because it was given to the Department in confidence and contains information not known to the applicant or the applicant’s representative.

15. Where a certificate is issued under s 438, the Tribunal may, if it thinks appropriate after having regard to any advice given to it by the Secretary, disclose the material to the applicant or another person.

16. Copies of the certificates were provided to the applicant’s legal representatives prior to the hearing. In submissions dated 17 July 2024 the applicant’s representative requested the Tribunal exercise its discretion to disclose the certificated information to the applicant as a matter of procedural fairness, noting that it was likely to be adverse to the applicant. At hearing the applicant’s representative confirmed that he did not suggest the certificates were invalid, rather that the information should nonetheless be disclosed.

17. At hearing I advised the applicant and his representative that the gist of the certificated information related to the Department’s investigations into the applicant’s identity and the Department’s belief that the applicant had applied for and been granted visitor visas to Australia under several different identities and that he had attempted to enter Australia using apparently bogus passports issued under assumed identities. I noted that this information was disclosed in the delegate’s decision and was consistent with the statements in the applicant’s statutory declaration to the effect that he had tried to travel to Australia in December 2023 and February 2024 on fake [Country 1] passports. The applicant agreed that was the case.

18. I have considered the certificates and the information set out above. I have decided not to exercise my discretion to further disclose any of the documents or information covered by those certificates to the applicant or his representative considering that information relates to matters which are known to the applicant and not in dispute in these proceedings. I am satisfied that the gist of the protected information, in so far as it is relevant to the applicant’s protection claims, has been disclosed to the applicant in the delegate’s decision and by the information provided at hearing.

    IDENTITY

19. The delegate’s decision records that the applicant has used a number of different identities in his interactions with the Australian authorities.

20. He first arrived in Australia by boat in May 2013, identifying himself as an Albanian national named [Alias 1]. He lodged an application for a protection visa which was unsuccessful and he left Australia on [in] February 2021. The delegate’s decision records that he used three other names at various points during his time in Australia, being [Alias 2], [Alias 3] and [Alias 4].

21. It is not in dispute that in 2023 and 2024, the applicant applied for and was granted visitor visas to enter Australia under three further identities.

22. The first visitor visa was granted under the identity of [Alias 5], who purported to be a [Country 1] national. In his statutory declaration and at hearing the applicant advised that he departed Albania for Australia using this passport in around December 2023, but that he was turned around in [Country 2]. The Department’s movement records indicate that no person purporting to be [Alias 5] entered Australia.

23. The second visitor visa was granted under the identity of [Alias 6], who also purported to be a [Country 1] national. The applicant arrived in Australia on [date] January 2024 using that passport but was refused entry and was removed on [date] January 2024. At hearing the applicant told me that during the period between [date] January 2024 and [date] January 2024 he was detained in an airport hotel accompanied by Serco guards before being removed from Australia.

24. The third visitor visa was granted under the identity of [Alias 7], who purported to be [a Country 3] national. The applicant arrived in Australia using that passport [in] April 2024 and was refused entry. He was detained under s 189 of the Act and was in immigration detention at the time of the Tribunal hearing.

25. The applicant asserts that his true identity is the one he provided when he entered Australia in May 2013, being [Alias 1] born [Date] (albeit he has since legally changed his name to [the applicant], which is the surname of his wife). For the following reasons the Tribunal accepts that to be true:

    ·There is no dispute that the other identities used by the applicant to enter Australia and during the time he resided in Australia are not genuine. The applicant acknowledges this and each of the three passports he used to enter Australia (being the [Country 1] passports in the names of [Alias 5], [Alias 6] and the [Country 3] passport in the name of [Alias 7] were identified as bogus by the Department;

    ·The applicant’s claimed Albanian identity is consistent with the identity he provided when he first entered Australia in 2013. He has provided a current Albanian driver’s licence issued to him in 2021 (prior to the name change upon his marriage in October 2022) and a current Albanian passport. He has also provided an Albanian birth certificate and an Albanian marriage certificate. The marriage certificate records the applicant’s name as [the applicant] born [Date] and that his surname before marriage was [Alias 1 Surname];

    ·The Tribunal heard oral evidence by video from [Father A], the Catholic priest from the applicant’s home village of [Village 1]. [Father A] gave evidence that the applicant’s family was well-known to him as members of his congregation and that he had known the applicant for many years. [Father A] provided the Tribunal with a copy of his own Albanian passport and the Tribunal accepts his evidence in this regard;

    ·The Department has accepted the applicant’s identity to be [the applicant] born [Date], formerly known as [Alias 1]. Consistently with the applicant’s own evidence, departmental records indicate that the applicant was returned to Albania in February 2021 on a laissez-passer issued by the Albanian Embassy in Canberra. Nothing in the materials available to the Tribunal suggests that there are current concerns about the applicant’s true identity.

    COUNTRY OF NATIONALITY

26. For the reasons set out above, the Tribunal has accepted the applicant is an Albanian national. It has assessed his claims against Albania as his country of nationality and the receiving country.

    The applicant’s personal background

27. The applicant was raised in the village of [Village 1] near the town of [Town] in north-western Albania. At hearing he confirmed that he completed high school in [Year] and commenced a university course in [subject] in [Year] which he did not complete.

28. The applicant’s stated family composition is consistent with the documents he has produced. He names his parents as [Mr D] and [Ms E] and his father’s name is recorded on his birth certificate and marriage certificate. He states that he has two brothers, [Mr F] and [Mr B], currently resident in [Country 4] and Australia respectively. He states he married his wife [Ms C] on [date] October 2022 and he took his wife’s surname from their marriage and this is consistent with the marriage certificate provided. At hearing the applicant gave evidence that his wife and brother were on bridging visas in Australia.

29. As noted above, the applicant first arrived in Australia by boat aged [Age] in 2013 and did not depart until February 2021. At hearing he gave evidence that he returned directly to his parents’ home in [Village 1] and that he remained living there until his return to Australia in April 2024 apart from periods spent in his wife’s village of [Village 2] approximately 20 minutes from his own village between their marriage in October 2022 and his wife’s departure from Albania in November 2023. Following his wife’s departure he returned to live full time at his parents’ home in [Village 1].

30. On 22 September 2023, the applicant was granted a visitor visa under the identity of [Alias 5], a [Country 1] national. He gave evidence that he departed Albania for Australia using this passport in around December 2023, but he was turned around in [Country 2] and did not manage to reach Australia.

31. On [date] January 2024, the applicant arrived in Australia using a passport issued in the identity of [Alias 6], a [Country 1] national. He gave evidence he was refused entry, detained at the airport and removed from Australia on [date] January 2024.

32. [In] April 2024, the applicant arrived in Australia on [a Country 3] passport issued in the identity of [Alias 7], [a Country 3] national. The applicant was refused immigration clearance and detained and at the time of the Tribunal hearing the applicant remained in immigration detention.

33. The Tribunal accepts each of the above matters to be true.

    The applicant’s claims for protection

34. The applicant claims that if returned to Albania, he faces harm constituting serious harm and significant harm from the family of [Ms G], a young woman who died when the applicant’s vehicle collided with the vehicle in which she was travelling in April 2021. In particular the applicant claims to fear harm from [Ms G]’s brother, [Mr G], whom the applicant claims is involved in crime and has connections with corrupt government officials and police.

    Fatal motor vehicle accident in April 2021

35. In support of his claim to have been involved in a fatal motor vehicle accident in April 2021, the applicant has produced legal documents and media reports concerning the accident. The delegate accepted that the applicant was involved in a fatal accident which claimed the life of [Ms G] [in] April 2021.

36. The Tribunal notes a number of gaps in the documentary evidence provided by the applicant. For example the translated media reports identify the deceased woman as [Ms G], but only identify the other driver by the initials [Initials]. The reports indicate that [Ms G] was seriously injured, but do not mention her death. The applicant states that [Ms G] died a few days after the accident and that the media in Albania commonly identify suspects by their initials rather than reporting their full names.

37. The legal documents indicate that the applicant served a period of imprisonment on suspicion of ‘Violation of Traffic Rules’ from [April] 2024 until [June] 2024, when he was released on house arrest. However none of the legal documents produced to the Tribunal refer to a fatal accident or identify the victim, nor do they indicate the exact offences the applicant was charged with or whether he was later convicted of any offence. At hearing the applicant gave evidence that he was convicted of traffic offences at some point after being released from prison but he did not know the exact date or details of the offences. He stated that he was released from house arrest approximately two to three months after being released from prison and faced no other sanctions in relation to the accident.

38. Despite the gaps in the documentary evidence, the Tribunal accepts the applicant’s account of the accident and his arrest and detention to be true. In particular the applicant’s oral evidence about circumstances, timing and location of the accident is consistent with the media reports of the accident. As well the legal documents indicate that he was taken into custody on the reported date of the accident on suspicion of traffic violations. Further, the Tribunal accepts [Father A]’s evidence that the families of both the applicant and [Ms G] were well known to him as members of his congregation at the [Catholic church] in [Village 1].

39. The applicant claims that following the accident, he and his family attempted to reconcile with the family of [Ms G] through [Father A], but that the family refused to see them or accept their apologies. [Father A] gave evidence that the aftermath of the accident was devastating for both families and he personally contacted [Ms G]’s family on several occasions to offer pastoral care and to offer to facilitate a reconciliation with the applicant’s family.

40. Consistently with the applicant’s own evidence, [Father A]’s evidence was that [Ms G]’s family refused to accept those approaches, telling him that they did not wish to see anyone from the applicant’s family and they could not forgive the applicant for [Ms G]’s death. The applicant’s own parents stopped attending the village church in [Village 1] to avoid [Ms G]’s family and began attending a different church outside the village. The Tribunal accepts [Father A]’s evidence about his interactions with the two families.

1. On the evidence before it, the Tribunal accepts the following matters:

   ·[In] April 2021, the applicant was driving near [Town] when he was involved in an accident with another vehicle driven by [Ms G] and her [mother]. [Her mother] was not seriously injured but [Ms G] later died from her injuries;

   ·The applicant called the ambulance and the police who attended the site of the accident. The police took the applicant into custody and transferred him to the police station where he was detained and presented to a court three days later. The applicant was remanded in custody until [June] 2021, when he was released under house arrest for approximately two to three months. At some time during his period under house arrest he was convicted of traffic violations. After his release from house arrest in or about September 2021, the applicant was not subject to any sanctions or penalties in relation to the accident;

   ·Following the accident, the applicant’s family asked [Father A], as the spiritual leader of the local Catholic church attended by both families, to facilitate a reconciliation between the applicant’s family and the [G] family. [Father A] contacted [Ms G]’s family on several occasions in an attempt to do so, but was consistently told that they did not wish to see anyone from the applicant’s family and they could not forgive the applicant for [Ms G]’s death;

   ·Following his marriage in October 2022, the applicant moved in with his wife’s family in the nearby village of [Village 2]. His wife’s family were unhappy with the situation and pressured his wife to end the marriage. The applicant’s wife left Albania in November 2023, following which the applicant returned to live with his parents in [Village 1].

   Existence of a blood feud

2. The applicant claims that as a result of [Ms G]’s death, he is now the target of a blood feud by the [G] family and in particular her brother, [Mr G]. There being no DFAT report for Albania, the Tribunal has had regard to the UK Home Office’s 2024 Country Policy and Information Note: blood feuds, Albania July which indicates that blood feuds stem from Kanun customary law and involve members of one family killing members of another family in retaliatory acts of vengeance carried out according to an ancient code of honour and behaviour.[1]

   [1] UK Home Office Country Policy and Information Note: Blood Feuds, Albania, July 2024 at 8.1

3. In 2012, the UK’s Upper Tribunal held that the number of blood feuds in Albania was few and declining. The UK Home Office reports that available evidence indicates that this decline has continued in the 10 plus years since and only a very small minority of people are linked to blood feuds, mostly in the north and particularly in Shkoder and Diber.[2] It indicates that blood feuds continue to occur, most often in the northern areas of Albania, but the number of blood feuds is absolutely and relatively low and continuing to decline. It reports that blood feuds generally affect the male blood lines of opposing families, rather than individual targets.[3]

   [2] EH (Blood Feuds) Albania CG [2012] UKUT 00348 (IAC) (October 2012)

   [3] Ibid at 3.1.2 – 3.1.3

4. As discussed with the applicant at hearing, blood feuds must be distinguished from other crimes including other revenge crimes. The UK Home Office reports that some revenge murders are portrayed as blood feud killings when this may not be the case, and criminals at times use the term to justify their crimes. Reasons for a blood feud are said to include property and land disputes, including violation of property; human trafficking; ‘honour’ (to family or those killed); debt; kidnapping; rape and murder.[4]

   [4] Ibid 8.2.1

5. In assessing whether an active blood feud exists, the UK Upper Tribunal has held that a decision maker must consider:

   (i) the history of the alleged feud, including the notoriety of the original killings, the numbers killed, and the degree of commitment by the aggressor clan toward the prosecution of the feud;

   (ii) the length of time since the last death and the relationship of the last person killed to the person;

   (iii) the ability of members of the aggressor clan to locate the person if returned to another part of Albania; and

   (iv) the past and likely future attitude of the police and other authorities towards the feud and the protection of the family of the person claiming to be at risk, including any past attempts to seek prosecution of members of the aggressor clan, or to seek protection from the Albanian authorities.[5]

   [5] EH (blood feuds) Albania CG [2012] UKUT 00348 (IAC) as cited in UK Home Office’s Country Policy and Information Note: Blood Feuds, Albania, July 2024 at 3.18

6. At hearing I referred the applicant to the above information and noted that it did not appear that the events he described constituted a blood feud, given that the only death had occurred as the result of a motor accident and there is no suggestion the [G] family have threatened or harmed any other member of the applicant’s family. The applicant stated that blood feuds do not necessarily have a time frame in which someone from another family will be killed and that last year there was a case where someone was shot after 29 years and two other people were killed after that.

7. [Father A] gave evidence that he considered the current situation to be a blood feud. He said the fact the [G] family had not forgiven the applicant meant they were holding something within themselves and even though they hadn’t done anything concrete they may take future actions. When I discussed with [Father A] that not all crimes or even all revenge crimes constitute blood feuds, he said that while [Ms G]’s death was an accident and the applicant did not intend to kill anyone, in Albania people still abide by the law of Kanun and the feeling of revenge is still present in people’s minds. He considered that mentality meant that an accidental death where the family were of a mind to take revenge was a blood feud.

8. Post-hearing submissions refer to the UK Home Office report as demonstrating that blood feuds continue to occur in the applicant’s home region of [Town] in the north of [Albania].[6]

   [6] UK Home Office Country Policy and Information Note: Blood Feuds, Albania, July 2024 at 8.1

9. The Tribunal accepts that blood feuds continue to occur, most often in the northern areas of Albania including the applicant’s home area of [Town]. However contrary to the post-hearing submissions, the UK Home Office report does not indicate that the incidence of blood feuds has increased since 2017, rather that report canvasses a range of government and NGO sources which give differing estimates of the numbers of families affected. The most recent figures cited are by an NGO in 2018 which reports 591 families affected throughout Albania in 2018 ([deleted]) and the Albanian state police which reports 75 families affected nationally as of July 2021.

10. Other sources cited by the UK Home Office report indicate that it is only possible to estimate the number of affected families. Rasim Gjoka, the Executive Director at the Albanian Foundation for Conflict Resolution of Disputes, commented in 2022 that it is difficult to know how many blood feuds are currently in existence, but overall they are seeing a decreasing trend. He suggested that the inflation in the number of blood feuds portrayed in the media compared to official police statistics may be explained by confusion between revenge murders, which he notes occur all around the world, and blood feud murders.[7] Overall the UK Home Office assesses that the number of blood feuds in Albania is absolutely and relatively low and continuing to decline.[8]

    [7] Ibid at 9.114 – 9.116

    [8] Ibid at 3.1.4

11. In response to a discussion of these issues at hearing, further submissions were lodged post-hearing in which the Tribunal was referred to the UK Home Office’s December 2022 Report of a Fact Finding Mission – Blood Feuds as authority for the proposition that following amendments to the law in 2013 which provided for harsher punishments for blood feud crimes, lawyers representing individuals involved in those crimes reclassified blood feud related killings as simple homicides to avoid the harsher penalties and therefore statistics inaccurately indicate a reduction in blood feud crimes which remain prevalent.[9] That report states that it met with 14 discrete sources consisting of 23 people, one of whom made the comments referred to. The Report of a Fact Finding Mission – Blood Feuds is extensively referenced in the UK Home Office’s July 2024 Country Policy and Information Note: blood feuds, Albania and the Tribunal is satisfied that the views of that individual were duly considered in the overall assessment.

    [9] Home Office, ‘Report of a FFM - BF, December 2022’, December 2022

12. The Tribunal has considered the evidence of the applicant and [Father A] as well as the available country information but the Tribunal does not accept that the dispute between the applicant and his family and the [G] family constitutes a blood feud. In making that assessment the Tribunal notes that [Ms G]’s death was the result of a motor vehicle accident which occurred more than three years ago. Since then both the applicant’s family and the [G] family have continued to live in the same village of [Village 1].

13. Country information cited above indicates blood feuds generally affect the male blood lines of opposing families rather than individual targets, but it is not suggested that any member of the [G] family have threatened or harmed any member of the applicant’s immediate or extended family during the years since [Ms G]’s death. [Father A] describes the situation between the two families as ‘uncomfortable’ and ‘strained’, resulting in the applicant’s family seeking solace and support from a different church. At no point in his oral or documentary evidence to the Department or the Tribunal did [Father A] suggest that any member of the [G] family had made threats against the applicant or his family members during his interactions with them.

14. While the Tribunal accepts that the [G] family are angry and distressed about the death of [Ms G] and have refused to forgive the applicant or reconcile with his family, the Tribunal does not accept that the applicant is the target of an active blood feud declared by the [G] family as claimed. Rather the Tribunal considers that any retaliatory harm that [Mr G] or his associates may seek to inflict on the applicant would be by way of a revenge crime as distinct from a blood feud.

    Risk of harm from the [G] family

15. Notwithstanding its conclusion that the applicant is not the subject of an active blood feud, the Tribunal has considered his claims that if he is returned to Albania, he faces harm from [Mr G] or his associates or other members of the [G] family because of the applicant’s role in [Ms G]’s death.

16. In particular the applicant claims that after he was released from prison to house arrest in June 2021, he noticed unregistered cars driving past his parents’ house and had several interactions with people he believed to be [Ms G]’s brother, [Mr G] or persons associated with him and received warnings from two friends that [Mr G] was still angry about the accident. In particular he claims that:

    ·On two occasions he saw a strange car with tinted windows and no number plates parked outside his parents’ house with a firearm pointed out the window. On each occasion the applicant remained inside his parents’ house and the car left after driving up and down outside the house a few times. The first occasion this happened was while the applicant was under house arrest (during the period June to approximately September 2021) and the second time was at the end of 2021, just before New Year’s Eve;

    ·In September or October 2023, the applicant was driving his wife to work in [Town] when he saw [Mr G] and three other people in a vehicle. They tried to force the applicant to stop his vehicle and get out, but he kept driving and returned home;

    ·Two of the applicant’s friends warned him that [Mr G] remained angry about the accident, including a friend who owns a [business 1] and another friend who owns a [business 2 and 3].

17. The applicant has produced a written judgment of the Court of the Judicial District [Town] dated [December] 2012. That judgment concerns a criminal case in respect of [Mr G] and a number of co-accused. Relevantly the judgment records that [Mr G] was convicted of the criminal offences of armed robbery and the illegal possession of weapons for which he was sentenced to a combined period of 10 years’ imprisonment, reduced to 6 years and 8 months on the application of sentencing principles and commencing 4 February 2012.

18. The applicant claims that [Mr G] served only part of the time to which he was sentenced, suggesting that he probably bribed his way out of jail. The Tribunal does not accept that assertion, considering it merely speculative. None of the legal documents submitted to the Department suggest that [Mr G] was released early and had he served his full term he would have been eligible for release in approximately October 2018, prior to the applicant’s return to Albania and the accident that claimed the life of his sister. On the evidence before it the Tribunal accepts only that [Mr G] was jailed in February 2012 for 6 years and 8 months for the crimes set out in the judgment provided.

19. The Tribunal has had regard to the oral and documentary evidence of the applicant and the witness [Father A] as well as the statutory declaration of [Mr H], who is stated to be the head of the village of [Village 2], being the home of the applicant’s wife’s family. [Mr H] states that after moving to that village, the applicant sought his assistance to intervene with the [G] family for reconciliation but that the family, and particularly [Mr G], have refused under any circumstances to forgive the applicant and has vowed to abide by the laws of the Kanun.

20. The Tribunal has also had regard to the statutory declaration of [Mr I] who states that after becoming friends with the applicant while he was living in Australia, he visited the applicant in Albania in [Village 1] in 2022 and [Village 2] in 2023. He states that on both occasions they did not go out because the applicant was scared and paranoid about leaving the house, fearing that he would be harmed by the family of the girl who died in the car accident.

21. The delegate did not accept that the applicant was of any adverse interest to the victim’s family or brother, [Mr G]. In reaching that conclusion the delegate noted that the applicant was not harmed by [Mr G] during the three years he remained in Albania following the accident and considered his claims that he was threatened were not credible.

22. The Tribunal has some doubts that the applicant faces a real chance of harm from [Mr G], given that he appears to have had only three interactions with [Mr G] or his associates after the accident and two of those incidents occurred more than two years prior to his departure from Albania. As noted in the delegate’s decision, the applicant remained living in or near his parents’ home for three years after the accident before arriving in Australia in April 2024. At hearing the applicant confirmed that he remained living in his parents’ home in [Village 1] until his marriage in about October 2022, after which he spent most of his time at his wife’s home 20 minutes away in [Village 2]. He said that after his wife left Albania for Australia in November 2023, he returned to his parents’ home in [Village 1]. In these circumstances it might be expected that his whereabouts would be known to the [G] family who also live in [Village 1].

23. As well, [Father A] provided oral and documentary evidence to the Department and the Tribunal. In his statutory declaration he talks about the unsuccessful attempts by the community to reconcile the families and the [G] family’s unwillingness to forgive the applicant, describing the situation as ‘uncomfortable’ and ‘strained’. In his oral evidence he described both the [G] family and the applicant’s family as ‘good families’. He stated that he had first gone to speak with the [G] family three days after the accident and that he had later gone on several further occasions to speak to the [G] family to propose reconciliation and forgiveness, most recently three months ago. [Father A] stated that the [G] family had consistently responded to his advances by telling him it was impossible for them to forgive the applicant, but he did not suggest in his written or oral evidence that any member of the [G] family had made threats to harm the applicant or his family in those conversations.

24. However [Father A] did give evidence that he believes the applicant’s safety is at risk. In view of all of the evidence before the Tribunal, including the serious outcome of the motor vehicle accident which led to the death of the young woman and the threatening incidents that occurred in 2021 and 2023, the Tribunal does not discount as remote the possibility that [Mr G] or his associates would seek to harm the applicant if he returns to his home near [Town], nor that the harm if it occurred could rise to the level of serious harm. Therefore the Tribunal accepts that the applicant faces a real chance of serious harm if he returns to [Town] now or in the reasonably foreseeable future.

    Reason for harm

25. The applicant’s representative initially submitted that the reason for the feared harm was the applicant’s membership of the particular social group ‘Individuals Targeted by Blood Feuds and Familial Revenge in Albania.’ At hearing I discussed with the applicant my doubts that the conflict between the families constituted a blood feud as well as the requirement in s 5L that the characteristic shared by each member of a particular social group cannot be the fear of persecution (s 5L(d)). I also discussed with the applicant that his fear of harm from [Mr G] did not appear to be for reasons of his race, religion, nationality, membership of a particular social group or political opinion as required by s 5J(1)(a) and for that reason may not constitute persecution for the purposes of the refugee assessment.

26. In post-hearing submissions, it was submitted that the applicant faced harm for reasons of his membership of a particular social group defined by the characteristics of having caused an accidental death and being subsequently targeted for retribution. It was submitted that this group is distinguishable from the broader community by the act of causing an accidental death, an immutable characteristic that is fundamental to an individual’s identity. However it appears to the Tribunal that particular social group is also defined by a fear of persecution, being those targeted for retribution.

27. The Tribunal accepts that there may some other formulation of the particular social group that is capable of meeting the requirements of s 5L, such as persons from the north of Albania whose actions are known to have caused the death of another person. For the purposes of this assessment, the Tribunal accepts that the essential and significant reason for the harm feared by the applicant is his membership of such a group.

    State protection

28. Section 5J(2) provides that a person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country. It is not in dispute that the applicant did not seek protection from the Albanian authorities. He states he did not do so because they are corrupt and he feels there is no reason to do so, rather his aim was always to reconcile with the [G] family so that he could live his life freely.

29. It is not suggested in this case that any non-State actor or organisation, including an international organisation, controls Albania or a substantial part of its territory for the purposes of s 5LA(1)(a)(ii). Rather at issue is whether effective state protection could be provided to the applicant by the Albanian state and whether the Albanian state is willing and able to offer such protection to the applicant (s 5LA(1)).

1. The State is not required to guarantee the safety of its citizens from harm caused by non-state agents. The High Court has observed that ‘no country can guarantee that its citizens will at all times and in all circumstances, be safe from violence’. Justice Kirby stated that:

   The Convention does not require or imply the elimination of all risks of harm . . . It posits a reasonable level of protection, not a perfect one.[10]

   [10] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26]; [117]

2. Section 5LA(2) provides that the State will be taken to be able to offer such protection where a 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.

3. The High Court’s judgment in S152/2003 also makes clear that the fact that the authorities in an applicant’s country may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not necessarily justify unwillingness to seek their protection.

4. As discussed with the applicant at hearing, country information indicates that in general the Albanian state is willing and able to offer effective protection to persons affected by criminal activities, including persons affected by blood feuds.

5. In 2022, the UK Home Office reported that the Albanian government has taken reasonable steps to prevent persecution by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution and that system is accessible to people resident in Albania:

   ·State police are responsible for internal security. While there are some reports of abuse, wrongdoing or insufficiency, this is not indicative of a police system which is unwilling or unable to offer protection. The government has introduced measures to combat corruption in the police;

   ·There is a functioning judicial system, with the European Commission assessing that good progress had been made in justice reform. Due process guarantees are appropriate, with the right to a fair and public trial without delay and the presumption of innocence until proven guilty, amongst others, and the government generally respects these rights. Free legal aid is available and the witness protection programme is functioning satisfactorily.[11]

   [11] UK Home Office Guidance: Actors of Protection, Albania December 2022

6. Notwithstanding its conclusion that the applicant is not the target of a blood feud, the Tribunal considers it appropriate to consider available country information about the level of protection available to citizens of Albania in that regard because of the similarities between revenge crimes and blood feuds. In relation to blood feuds specifically, the UK Home Office reported in July 2024 that:

   ·In general, the state is willing and able to offer effective protection to persons affected by an active blood feud; 

   ·Up until 2012, the UK Upper Tribunal (in its guidance decision EH) assessed that state protection in areas in which Kanun law predominates was not always sufficient, but in recent years there has been a change to that assessment because of steps undertaken by the Albanian government including significant criminal justice reform in preparation for accession to the European Union;

   ·These steps include the development of a blood feud action plan, amendments to the criminal code to specifically address blood feuds, measures to support reconciliation between families involved in blood feuds and the compilation of a database by the General Directorate of State Police of all families affected by blood feuds;

   ·A murder committed as part of a blood feud is punishable by up to 30 years or life imprisonment, while a threat of a blood feud or revenge, or inciting someone to take part in a blood feud, is punishable with up to three years’ imprisonment;

   ·In the context that there are few active blood feuds and these are declining the state has undertaken tens of investigations into blood-feud-related crime leading to a number of convictions for murder for blood feud and a serious threat to retaliation or blood revenge of the Criminal Code;

   ·The Shkoder Regional Police Directorate considered that the strengthening of the law has contributed to the decline of blood feuds.[12]

   [12] UK Home Office Guidance: Country Policy and Information Note: Blood Feuds Albania July 2024

7. The UK Home Office assesses that the Albanian government has taken reasonable steps to prevent acts of persecution committed as part of an active blood feud by operating an effective legal system for the detection, prosecution and punishment of such acts throughout Albania. It considers that in light of the changes implemented by the Albanian government since the UK Upper Tribunal made its decision in EH in 2012, there are very strong grounds supported by cogent evidence to depart from the Upper Tribunal’s findings in that case. It assesses that in general, protection is available in all areas of the country for persons involved in an active blood feud.[13]

   [13] UK Home Office Guidance: Country Policy and Information Note: Blood Feuds Albania July 2024

8. At hearing the applicant responded to this information by saying that of course the Albanian government would say that it protected its citizens, rather than admitting it is corrupt and unable to do so. He said that a person was killed in [Town] in a blood feud after a pause of 29 years and the only person arrested was a [Country 5] national engaged by the family to do the shooting. He said that four [Country 6] people were also involved and within a year and a half three people had been killed but only the [Country 5] person was arrested which shows the government is not good at its job. He said those people living in Albania know how the police and justice system works and how things work in Albania.

9. Media articles submitted by the applicant report that at least 50 arrest warrants were issued by the Albanian authorities targeting criminal families in Shkoder, Lezhe and Fushe-Kruje. Those warrants were approved by a Special Court Against Corruption targeting criminal families, some of whom are linked in those articles to politicians and businessmen. Another article indicates arrest warrants were also issued for a number of police officers. Further media reports submitted after the hearing refer to three murders in Memaliaj in July 2024 reported to arise from a blood feud and the police response to those murders. Other articles cited in those submissions refer to a range of crimes, including the assassination of an Albanian politician in April 2023, a murder in July 2023 relating to a blood feud originating in 1996, mafia related assassinations, the drowning deaths of a mother and her three young children apparently in a murder suicide and a judge whose apartment was bombed in 2024, apparently linked to his involvement in the prosecution of murder and exploitation cases accompanied by tensions in the court room. The article reports that the judge was placed under protection by the state.

10. It is not suggested that any of the individuals or families named in those articles are members of the applicant’s family or the [G] family. Overall those articles indicate that serious crimes take place in Albania including crimes of revenge, murder, corruption and blood feuds, and that the authorities respond to and investigate serious crimes and arrest and prosecute perpetrators.

11. In post-hearing submissions, it was submitted that the UK Home Office suggests that although the Albanian state has made efforts to enhance state protection, these measures remain insufficient in areas where Kanun law prevails, particularly in northern Albania where the applicant resides. It is submitted that in such regions, the state’s efforts do not adequately protect individuals from Kanun-related blood feuds once feuds exist.

12. For the reasons set out above, the Tribunal has not accepted that the applicant is the target of a blood feud as opposed to other forms of revenge crime. In any case that submission misrepresents the UK Home Office report which cites the UK Upper Tribunal’s 2012 decision in EH in the terms reflected in the submission, but goes on to state that in light of the changes implemented by the Albanian government since the UK Upper Tribunal made its decision in EH in 2012 there are very strong grounds supported by cogent evidence to depart from the Upper Tribunal’s findings in that case.

13. The Tribunal accepts that there may be instances where perpetrators may harm another individual despite that individual having sought police protection, whether in the context of a blood feud or other crime, and that some individuals affected by crimes will migrate rather than seek the assistance of the Albanian authorities. However as set out above, the High Court has held that no country can guarantee that its citizens will be safe from violence at all times and in all circumstances and what is required is a reasonable level of protection, not a perfect one.[14]

    [14] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26]; [117]

14. The Tribunal has considered the applicant’s reasons for not seeking the protection of the Albanian authorities, because of his belief that they are corrupt and ineffective and that his aim was to reconcile with the [G] family so that he could live his life freely. However the fact that he has chosen not to do so does not mean that the Albanian authorities are unable or unwilling to offer that protection to him.

15. The Tribunal has also considered the other Tribunal decisions to which it has been referred. The Tribunal’s assessment in two of those matters involved applicants with characteristics related to gender and sexual orientation that do not arise in the current matter (1618963 and 2302844). The Tribunal in the third matter accepted the applicant was the target of an active blood feud which had been running for a number of years (1704030). The Tribunal’s decision was made three years ago on the basis of different country information than is now available.

16. In light of the country information cited above, the Tribunal is satisfied that Albania has a system of protection consisting of an appropriate criminal law, a reasonably effective police force and an impartial judicial system for the purposes of s 5LA(2). The Tribunal finds that protection is durable and accessible throughout Albania including in northern Albania and the Albanian state is willing and able to offer protection to the applicant. It follows that effective protection measures are available to the applicant and he does not meet the criteria set out in s 5J(2). Therefore he does not have a well-founded fear of persecution and is not a refugee for the purposes of s 5H.

    Complementary protection

17. For the reasons set out above, the Tribunal has accepted there to be a real chance that [Mr G] or his associates would seek to seriously harm the applicant if he returns to his home near [Town], Albania, now or in the reasonably foreseeable future. For the same reasons the Tribunal accepts there is a real risk the applicant will be subjected to significant harm by [Mr G] or his associates should he return to [Town], Albania.

18. The Tribunal has found that Albania has a system of protection consisting of an appropriate criminal law, a reasonably effective police force and an impartial judicial system for the purposes of s 5LA(2). The Tribunal has found that the protection is durable and accessible throughout Albania including in northern Albania and the Albanian state is willing and able to offer protection to the applicant.

19. In considering the issue of state protection for the purposes of complementary protection, the Tribunal has had regard to the different standard of protection that applies. Under s 36(2B), there is taken not to be a real risk of significant harm if 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’: s 36(2B)(b).

20. There is nothing about the applicant’s circumstances that causes the Tribunal to consider that the Albanian authorities are unwilling or unable to provide the applicant with a level of protection from [Mr G] or his associates such as would reduce the level of risk to something less than a real risk. The Tribunal notes that the applicant was involved in the accidental death of [Ms G]. Neither [Mr G] or any other member of the [G] family physically harmed the applicant in the three years he remained living in the area after the accident. The Tribunal has not accepted that [Mr G] bribed his way out of jail or that he otherwise has influence with the Albanian authorities, rather the legal documents submitted by the applicant indicate [Mr G] j was arrested, prosecuted and jailed for his past criminal activities.

21. For these reasons the Tribunal considers that the level of protection available to the applicant would reduce the risk of significant harm to something less than a real risk.

    Other matters

22. When asked at hearing whether there were any other reasons he feared returning to Albania, the applicant stated that he had another problem that forced him to leave Albania the first time he came to Australia in 2013, being his history with his ex-girlfriend. He said her family were not happy when they broke up and wanted to force him to marry her. She had two brothers who put a lot of pressure on the applicant to marry her.

23. When asked if he had contact with his ex-girlfriend when he returned to Albania in 2021, the applicant said that he didn’t but that her brothers sent him a message to let him know that they knew he was back in Albania and they were going to get him. When asked how that message was communicated to him, he said through another person. He said that after the accident occurred in April 2021, he did not hear from them again. When asked if he thought they would seek to harm him if he returned to Albania he said that during his three years in Albania he stayed inside at home so he couldn’t say yes or no.

24. At hearing I discussed with him that he had not mentioned these matters in his visa application or before the original decision maker and the Act required the Tribunal to draw an adverse inference as to the credibility of those claims unless satisfied he had a reasonable excuse for not raising them earlier. In a post-hearing submission it was submitted that the applicant had merely reiterated claims that had been part of his initial protection application in 2013 and they were not new claims. No further information was provided about those claims or any future risk of harm to the applicant from his ex-girlfriend’s brothers.

25. Section 423A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of claims or evidence not raised or presented before the primary decision was made, unless the Tribunal is satisfied there is a reasonable explanation as to why that occurred.  I accept that the applicant’s claims for protection in his 2013 protection visa application involved claimed harm from the family of an ex-girlfriend. However I consider the applicant’s evidence at hearing that those people threatened him after his return to Albania in 2021 is a new claim that should have been raised before the primary decision maker.

26. I note also that the applicant first departed Albania in 2013 and the applicant stated that he did not see her or have contact with her when he returned to Albania in 2021. On the evidence before me, I do not accept the applicant was threatened by his ex-girlfriend’s brothers in 2021 as claimed.

27. Given the applicant’s relationship with his ex-girlfriend ended more than 10 years ago and he did not raise any fear of harm on this basis in his protection visa application, the Tribunal does not accept there to be a real chance that the applicant will be seriously harmed by any other person for reasons of his relationship with his ex-girlfriend if he returns to Albania, now or in the reasonably foreseeable future. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[15]  For the same reasons the Tribunal does not accept there to be a real risk the applicant will face significant harm by any person for these reasons.

    [15] MIAC v SZQRB [2013] FCAFC 33 [246], [297], [342].

    CONCLUSIONS

28. 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).

29. 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

30. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).

    DECISION

100.   The Tribunal affirms the decision not to grant the applicant a protection visa.

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.

…