GWH24 v Minister for Immigration and Multicultural Affairs

Case •

[2025] FedCFamC2G 318

•

11 March 2025

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

GWH24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 318

File number: MLG 3040 of 2024
Judgment of: JUDGE BLAKE
Date of judgment: 11 March 2025
Catchwords: MIGRATION – Judicial review – whether Administrative Appeals Tribunal (‘Tribunal’) misconstrued section 36(2)(aa) and section 36(2B)(b) of the Migration Act 1958 (Cth) – whether Tribunal wrongly treated section 36(2B)(b) as a ‘carve out’ from section 36(2)(aa), contrary to the principles in Minister for Immigration and Citizenship vMZYYL [2012] FCAFC 147 – whether Tribunal erred by focusing on a system of protection rather than the ability of the individual to avail himself of protection – no error established – application dismissed.
Legislation:

Migration Act 1958 (Cth) ss 5J(2), 5L, 5LA(1), 5LA(2), 36, 36(2)(a), 36(2)(aa), 36(2B), 36(2B), 189.

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Sch 2.   
Cases cited:

ABAR15 v Minister for Immigration and Border Protection (No 2) [2016] FCA 721

AMO18 v Minister for Home Affairs [2020] FCA 1403

CPP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 199

Minister for Immigration and Citizenship vMZYYL [2012] FCAFC 147
Division: Division 2 General Federal Law
Number of paragraphs: 68
Date of hearing: 28 January 2025
Place: Melbourne
Counsel for the Applicant: Dr McBeth
Solicitor for the Applicant: Bardo Zouki Noureddine Lawyers
Advocate for the Respondent: Mr Brown
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

MLG3040 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

GWH24

Applicant
AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE BLAKE

DATE OF ORDER:

11 MARCH 2025

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.

2.The Application filed 9 September 2024, as amended 30 December 2024, be dismissed.

3.The Applicant pay the First Respondent’s costs of the proceeding, fixed in the sum of $8,371.30.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE BLAKE:

  1. This is an application to review a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 19 August 2024. In that decision, the Tribunal affirmed a decision of a delegate of the Minister (‘delegate’) not to grant the Applicant a Temporary Protection (subclass 785) visa (‘visa’) (Court Book (‘CB’) 298).

  2. For the reasons that follow, I have decided to dismiss the application for review.

    BACKGROUND

  3. The Applicant is an Albanian national. He arrived in Australia on 27 April 2024 on a visitor visa, and was subsequently detained under section 189 of the Migration Act 1958 (Cth) (‘the Act’) (CB 301). He had previously entered and exited Australia on other visas, including by using other identities to obtain those visas. He applied for the visa on 30 April 2024 (CB 13).

  4. On 16 May 2024, the Applicant attended a Protection Visa interview (‘PV interview’) (CB 180). On 30 May 2024, the delegate refused to grant the Applicant the visa (CB 172).

  5. On 6 June 2024, the Applicant applied to the Tribunal for review of the delegate’s decision (CB 196). On 24 June 2024, the Applicant was invited to appear before the Tribunal on 18 July 2024 (CB 202).

  6. On 18 July 2024, a hearing was held at the Tribunal. 

  7. On 19 August 2024, the Tribunal affirmed the decision not to grant the Applicant the visa (CB 298).

  8. The Applicant filed the application to review the decision of the Tribunal in this Court on 9 September 2024. The application was accompanied by a supporting affidavit of his solicitor. On 30 December 2024, the Applicant filed an amended application to review the decision of the Tribunal (‘Application’).

  9. At the Hearing before me, the Applicant (who was represented) relied on the Application and his written outline of submissions filed 24 December 2024. The Minister relied on written submissions filed 15 January 2025. The Minister also filed a Court Book in the proceeding.

    THE APPLICATION

  10. The Application contains a single Ground of Review. It is reproduced below:

    1.The Tribunal constructively failed to consider whether there were effective protection measures, by accepting that a different level of risk applied to Northern Albania compared to the rest of the country yet failing to consider what that differential risk meant for the Applicant's individual circumstances, as a person who would return to Northern Albania.

    1.        The Tribunal erred in its construction of s 36(2B) of the Migration Act 1958.

    Particulars

    (a)The Tribunal erred by treating s 36(2B)(b) as a "carve-out" to be considered after the enquiry provided for in s 36(2)(aa).

    (b)The Tribunal erred by focusing on the existence of a system of protection rather than the ability of the individual applicant to avail himself of protection from the specific risk of harm he faced.

    THE LEGISLATION

  11. It is appropriate to start with the words of the Act.

  12. Section 36(2)(aa) of the Act forms part of the Complementary Protection Regime. It provides as follows:

    (2)      A criterion for a protection visa is that the applicant for the visa is:

    …

    (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;

  13. Subsection (2A) to section 36 defines the term ‘significant harm’.

  14. Relevant to this case are the terms of subsection (2B) to section 36 of the Act, in particular subparagraph (b) of that subsection. Subsection (2B) is as follows:

    (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.

  15. In Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147 (‘MZYYL’), a Full Court of the Federal Court of Australia (Lander, Jessup and Gordon JJ) considered the operation of section 36(2)(aa) and the proper construction of section 36(2B)(b) of the Act. The tribunal had directed that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there was a real risk that the applicant would suffer significant harm (at [6]). In relation to the question of whether the applicant could obtain protection from an authority of the country as contemplated under section 36(2B)(b) of the Act, the Full Court noted at [21] that the tribunal found that:

    (a)the requisite standard of protection from an authority under section 36(2B)(b) is different from the concept of state protection under the Refugees Convention in that the language requires that the level of protection must be such as to reduce the risk of significant harm to something less than a real one; and

    (b)despite the in-principle availability of state protection in the receiving country for the purposes of the Refugees Convention, for the purposes of section 36(2B) of the Act, the applicant could not obtain from an authority in the country, protection such that there would not be a ‘real risk’ that he will suffer significant harm (that is, there remained a real risk that if the applicant was removed to the receiving country he would suffer significant harm for the purposes of section 36(2A) of the Act).

  16. In MZYYL, the Minister contended that the decision of the tribunal was affected by jurisdictional error because ‘the standard of protection in s 36(2B)(b) of the Act is that of “reasonable” protection and the tribunal erred in holding that a higher standard was required than under section 36(2)(a) of the Act’ (at [7]). The Minister submitted the tribunal wrongly construed section 36(2B)(b) of the Act as requiring that a higher standard of state protection must be available to a non-citizen in applying the criterion for a protection visa under section 36(2)(aa) than that required by section 36(2)(a). Instead, the Minister contended that the prescribed standard in section 36(2)(aa) is satisfied if the State in question operates an effective legal system for the detection, prosecution and punishment of acts constituting serious harm and an applicant has access to such protection (at [23]-[27]). The applicant adopted the tribunal’s construction of section 36(2B)(b) of the Act and submitted, inter alia, that section 36(2B)(b) of the Act reflects the legislative intention that a non-refoulement obligation does not arise in state protection such that there would not be a real risk of significant harm in the receiving state (or put another way, the state protection is such that it lessens the risk of harm to a level below real risk) (at [28]). It was these competing contentions above that framed the dispute before the Full Court.

  17. The Full Court noted that the starting point must be the words of the Act (at [29]). The Full Court then made a number of observations about section 36(2B)(b). At paragraph [33], the Full Court stated as follows:

    At the outset, a number of matters should be noted. First, s 36(2B)(b) is the obverse of s 36(2)(aa). It uses the same language as s 36(2)(aa). Section 36(2B)(b), like the other paragraphs in s 36(2B), deems a particular circumstance to mean that the non-citizen will not suffer significant harm if the non-citizen were to be returned to the receiving country. If any of the circumstances mentioned in s 36(2B) are found to exist, the Minister must conclude that the non-citizen would not suffer significant harm for the purposes of s 36(2)(aa). However, the inquiry in s 36(2B) is not at large. It is an inquiry into the particular circumstances that appertain to the non-citizen whose application for a visa is under consideration. That is made clear by the reference in the chapeau to the “non-citizen” and the references in paragraphs (a) and (b) to the non-citizen relocating or seeking protection from an authority of the country but, even more particularly, by paragraph (c) which speaks of the non-citizen personally.

    (emphasis added)

  18. It can be seen from the extract above, that given the competing contentions of the parties, the Full Court was making the point that the particular circumstances of an individual applicant for protection must be considered and it is not enough for the relevant State to simply operate, inter alia, ‘an effective legal system for the detention, prosecution and punishment of acts constituting serious harm’.

  19. At [34], the Full Court noted that the language in section 36(2B)(b) is different to the state protection test adopted in the Refugees Convention.

  20. At [35], the Full Court observed that, contrary to the submissions of the Minister, section 36(2B)(b) does not, in its terms, require either the conclusion that it is inevitable that the non-citizen will suffer significant harm or the conclusion that it is certain that he or she will not.

  21. Then at [36], the Full Court stated as follows:

    The Minister submitted that the prescribed standard of protection in s 36(2B)(b) is satisfied (as required by international standards) if the State authority in question operates an effective legal system for the detection, prosecution and punishment of acts constituting serious harm and the non-citizen has access to such protection. That construction is rejected. It is contrary to the express words of the section. To construe the provision in that way would have the Court ignore or read out of s 36(2B)(b) (and, indeed, other sections in the Complementary Protection Regime) the phrase “real risk” and the reference to the noncitizen. The Minister’s construction seeks to have the Court focus on the system rather than the individual. That is not the question posed by the section. At least part of the problem with the Minister’s construction of s 36(2B)(b) arises because the Minister seeks to treat s 36(2B)(b) as a “carve-out” to be considered after the enquiry provided for in s 36(2)(aa). That approach should be rejected. The section must be read as a whole. The enquiry provided for in s 36(2)(aa) necessarily involves consideration of the matters referred to in s 36(2B). The Minister does not undertake the enquiry in s 36(2)(aa) and then move to s 36(2B).

  22. At least two points emerge from the paragraph extracted above. First, the Full Court confirms that the focus of section 36(2B)(b) is on the individual and the ability of the individual to access the protections available in his or her circumstances, and the focus is not simply on the availability or operation of, inter alia, an effective legal system. Second, the Full Court postulates that at least part of the problem with the construction of section 36(2B)(b) proposed by the Minister arose because of the approach the Minister took in that case of focusing on section 36(2)(aa) and then treating section 36(2B)(b) as a ‘carve out’.

  23. Finally, at [39] (after observing other difficulties with the construction advanced by the Minister in [37]-[38]), the Full Court stated at [39]: 

    Section 36(2B)(b) poses the question whether, in obtaining protection from the receiving country, the protection is such that there would not be a real risk that the non-citizen would suffer significant harm if returned. The section proceeds from an assumption (correctly made) that there will be circumstances where the protection offered is not sufficient to remove the fact that there is a real risk that the non-citizen will suffer significant harm.

  24. The paragraph above emphasises one of the principal points that arose for consideration in the case i.e. whether the circumstances of the individual mean that there is a risk that the protection offered by a particular State is insufficient to remove the real risk the individual will suffer significant harm.

  25. In AMO18 v Minister for Home Affairs [2020] FCA 1403 (‘AMO18’), the appellants claimed there was a real risk that they would suffer significant harm if removed to the Philippines. In considering that question (among others), the Tribunal was required to ask itself whether it could be satisfied that each of the appellants could obtain, from an authority of the Philippines, protection such that there would not be a real risk that each would suffer significant harm.

  26. Greenwood J in AMO18 set out the principles regarding the relationship between section 36(2)(aa), 36(2A) and 36(2B) at [28] of his reasons (which he identified as arising from MZYYL). Greenwood J also identified and referred to the reasons given by the Tribunal at paragraphs [21]-[26], [30]-[39], [46]-[47] of his reasons. His Honour recorded at [25]–[26] of his reasons, the following findings made by the Tribunal at [95] and [96] of the Tribunal’s reasons:

    [25]

    …

    However, given the applicants’ evidence is that [Mr A] continues to hold Philippines citizenship and may now run a business in the Philippines, the Tribunal accepts that he is likely to travel to the Philippines (albeit irregularly). On this basis and for the purposes of this review, the Tribunal is prepared to accept that the applicants face a real risk of significant harm in the reasonably foreseeable future from [Mr A].

    …

    [26]

    …

    The issue before the Tribunal is whether the applicants could obtain state protection such that there would not be a real risk that they will suffer significant harm. Considering the country information outlined above, the Tribunal is satisfied that the Philippines authorities have established a range of measures and are reasonably effective in addressing domestic violence. The Tribunal also notes that although there is corruption within the system, there is nothing in the information provided by the applicants to indicate that the state is unable or unwilling to protect them in their particular circumstances.

  27. It can be seen from the extract above that Greenwood J was dealing with a situation where:

    (a)the Tribunal had made a finding that the applicants faced a real risk of significant harm; and

    (b)then proceeded to consider whether the applicants could avail themselves of protection from the relevant State as contemplated by section 36(2B)(b) of the Act.

  28. After setting out the statutory provisions, his summary of the principles arising from MZYYL and the grounds of appeal, Greenwood J returned to the findings of the Tribunal, in particular, the Tribunal’s approach at [95]-[96] of its reasons. At [31] Greenwood J states:

    At [95], as earlier mentioned, the Tribunal accepts that the applicants face a real risk of significant harm in the reasonably foreseeable future from Mr A. In that sense, the Tribunal accepts that s 36(2)(aa) and s 36(2B) are engaged although, the provisions of s 36(2)(aa), s 36(2A) and s 36(2B), considered as a whole, raised the question (at [96]) of whether the applicants “could obtain state protection such that there would not be a real risk that they will suffer significant harm”.

  29. It can be seen from the paragraph extracted above that Greenwood J regarded the finding of the Tribunal (at [95] of the reasons of the Tribunal, set out in [25] of his reasons), that the applicants faced a real risk of significant harm, as engaging each of section 36(2)(aa), 36(2A) and 36(2B)(b) of the Act. Greenwood J did not consider, and made no finding, that the sequence of the reasons adopted by the Tribunal in the matter before him somehow contravened or was inconsistent with the comments made by the Full Court in MZYYL at paragraph [36] of its reasons. In making that observation, it is also important to observe that the particular issue raised in this matter before me (whether the Tribunal fell into error by treating section 36(2B)(b) as a ‘carve out’) was not raised before Greenwood J.

  30. Greenwood J then turned to other aspects of the contentions advanced by the appellants. Those contentions included a submission that the Tribunal fell into error because it had in mind, when answering the question posed by sections 36(2)(aa) and 36(2B)(b), the statutory inquiry required by section 36(2)(a), section 5J(2) and section 5LA, and also that the Tribunal failed to undertake the inquiry required by section 36(2)(aa) and section 36(2B)(b) in a manner consistent with MZYYL (at [42]). Ultimately, Greenwood J concluded that the Tribunal had not fallen into jurisdictional error in the way contended for by the appellants (although Greenwood J did find a separate jurisdictional error that resulted in the proceeding being remitted).

    THE REASONS OF THE TRIBUNAL

  1. The Ground of Review raised by the Applicant in the present matter takes particular aim at paragraphs [86]-[90] of the Reasons of the Tribunal (‘Reasons’). In order to understand how the Applicant’s case is put, it is necessary to have brief regard to the way in which the Tribunal reasoned.

  2. In the Reasons, the Tribunal:

    (a)set out the criteria for a protection visa at [6]-[11] of the Reasons, dealt with the issue of non-disclosure certificates at paragraphs [13]-[18] of the Reasons, dealt with issues concerning the identity of the Applicant at paragraphs [19]-[25], accepted that the Applicant was an Albanian national at [26] and set out the personal background of the Applicant at [27]-[33] of the Reasons;

    (b)at [34] set out the Applicant’s claim for protection, being that he faced harm constituting serious and significant harm from the family of 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 Tribunal noted that the Applicant claimed harm from the woman’s brother [Mr G] and the Applicant also claimed that [Mr G] was involved in crime and has connections with corrupt government officials and police;

    (c)considered the Applicant’s claims concerning the fatal motor vehicle accident concerning the young woman and accepted the Applicant’s account of the accident and his subsequent arrest and detention to be true at [38] and [41] of the Reasons;

    (d)did not accept there existed a ‘blood feud’ between the Applicant and the family of [Ms G], but considered that any retaliatory harm [Mr G] may seek to inflict on the Applicant would be by way of revenge crime at [52] and [54] of the Reasons;

    (e)did not discount as remote the possibility that [Mr G] would seek to harm the Applicant if he returned to his home, nor that the harm if it occurred could rise to the level of serious harm, and therefore accepted that the Applicant faced a real chance of serious harm if he returned to his home at [64] of the Reasons;

    (f)accepted there may be some formulation of the particular social group that is capable of meeting the requirements of section 5L of the Act, such as persons from the north of Albania whose actions are known to cause the death of another person, and thereby accepted that the essential and significant reason for the harm feared by the Applicant is his membership of such group at [67] of the Reasons;

    (g)for the purposes of section 5LA(1) of the Act, identified that the issue was 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, at [69] of the Reasons; and

    (h)was satisfied on the basis of Country Information and a consideration of the circumstances pertaining to the Applicant that Albania has a system of protection consisting of appropriate criminal law, a reasonably effective police force and impartial judicial system for the purposes of section 5LA(2) of the Act, before concluding that effective protection measures are available to the Applicant and he does not meet the criteria set out in section 5J(2) of the Act, at [85] of the Reasons.

  3. The Tribunal then moved to consider the Applicant’s claim under the Complementary Protection Regime. The reasoning of the Tribunal on this issue was brief and its findings were based upon its earlier findings. The Tribunal stated:

    [86]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 [L], 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 [L], Albania.

    [87]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.

    [88]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).

    [89]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] was arrested, prosecuted and jailed for his past criminal activities.

    [90]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.

  4. Ultimately, based on all of the above, the Tribunal concluded that the Applicant met neither the refugee criterion in section 36(2)(a) of the Act, nor the alternative criterion in section 36(2)(aa) of the Act. The Tribunal affirmed the decision of the delegate: at [97]-[100] of the Reasons.

    GROUND ONE, PARTICULAR (A)

  5. In the matter before me, the Applicant emphasised the statement of the Full Court in MZYYL at paragraph [36] of its reasons to the effect it is wrong to treat section 36(2B)(b) as a ‘carve out’ from section 36(2)(aa). The Applicant contends that the Reasons of the Tribunal in this matter disclose that the Tribunal has made that same error here i.e. the Tribunal has treated section 36(2B)(b) as a ‘carve out’.

  6. The statement made by the Full Court in MZYYL at paragraph [36] of its reasons is responsive to, and critical of, the submission advanced by the Minister in that matter. It is necessary to emphasise the nature of the Minister’s submission in that matter. The submission advanced was to the effect that the ‘construction’ of section 36(2B)(b) sought to have the Court focus on the system rather than the individual. The Full Court rejected that, and in doing so, pointed out the ‘section must be read as a whole’ (which must be a reference to the entirety of section 36 of the Act). The essential point the Full Court was seeking to make is that section 36(2B)(b) of the Act requires a decision maker to focus on the circumstances of the individual and not simply whether there is a system of state protection in existence or available, or to put it another way, the failure to link an assessment of whether a non-citizen could obtain protection from a further assessment of whether there was a real risk the non-citizen would suffer significant harm as a necessary and foreseeable consequence of being removed. When the Full Court stated at [36] that it was an error to ‘carve out’ section 36(2B) from section 36(2)(aa), it was saying that an approach that determines section 36(2)(aa) first and went on to apply a standard of ‘reasonable protection’ drawn from refugee law without applying the ‘real risk’ test would constitute a carve out.

  7. In AMO18, Greenwood J was acutely aware of the principles emanating from MZYYL. Greenwood J, however, did not cavil with the approach taken by the Tribunal when it:

    (a)made an anterior  finding that the applicants in that matter faced a real risk of significant harm in the reasonably foreseeable future (at [95] of the reasons of the Tribunal as noted by Greenwood J at paragraph [25] of his reasons); and

    (b)subsequently made a finding that the applicants could access protection from the Philippine authorities (at [96] of the reasons of the Tribunal as noted by Greenwood J at paragraph [26] of his reasons).

  8. In the present matter, the Applicant contends that the Tribunal fell into error because it is engaged in a two-step process, contrary to the principles set out at paragraph [36] of MZYYL. It is submitted that the Tribunal first made a finding that there was a real risk that the Applicant would be subjected to significant harm at paragraph [86] of its Reasons, and then subsequently considered the application of section 36(2B)(b) of the Act at paragraphs [87]-[89] of its Reasons. This approach is said by the Applicant to be impermissible given the decision in MZYYL. In oral submissions, the Applicant contended that the proper approach which ought to have been taken ‘would be something like “I accept that Mr [G] and his associates might be motivated to come after you, but after considering the information about the police force and your individual circumstances, I find that the police would intercept him and prevent him from inflicting significant harm”’.

  9. It can be seen from the above that the Applicant, in seeking to make good the asserted error by the Tribunal, focuses on the sequence of the reasoning of the Tribunal. I accept that the sequence in which the Tribunal reaches its conclusions may disclose or point to error in a particular case. It would be wrong, however, to focus only on the sequence in which the Tribunal approached a matter to discern whether there is error. MZYYL does not stand for the proposition that the Tribunal needs to do its job in a particular order or reason in a particular sequence. Rather, the real issue is whether in approaching its task, the Tribunal has read and applied the provisions of section 36(2)(aa), 36(2A) and 36(2B) as a whole (MZYYL at [36]). Whether the Tribunal has approached its task in this way depends upon a proper analysis all of its Reasons.

  10. In the present matter, the Tribunal has approached its task in a way that engaged with both section 36(2)(aa) and 36(2B).

  11. At [6]-[9] of its Reasons, the Tribunal set out the refugee criterion.

  12. At [10] of its Reasons, the Tribunal referred to the criteria for complementary protection including section 36(2)(aa), section 36(2A) and section 36(2B).

  13. Commencing at paragraph [68] of its Reasons, the Tribunal considered, for the purposes of section 5J(2) of the Act whether, inter alia, there were effective protection measures available in Albania. In addressing this matter, the Tribunal:

    (a)noted that it was not in dispute that the Applicant did not seek protection from the Albanian authorities and that the Applicant has stated that he had not done so because ‘they are corrupt and he feels there is no reason to do so, rather his aim was always to reconcile with’ the family of [Mr G]: at [68] of the Reasons;

    (b)noted it discussed with the Applicant during the hearing that Country Information indicated that in general the Albanian state is willing and able to offer effective protection to persons affected by criminal activities, including those affected by blood feuds: at [73] of the Reasons;

    (c)referenced a report from the UK Home Office that stated that the Albanian Government had taken reasonable steps to prevent persecution by operating an effective system, and that while there were some reports of abuse, wrongdoing or insufficiency, these were not indicative of a police system which is unwilling or unable to offer protection. The Tribunal also noted (from the UK Home Office Report) that the Albanian government had introduced measures to combat corruption in the police, and that there was a functioning judicial system, with due process guarantees, the presumption of innocence, and free legal aid: at [74] of the Reasons;

    (d)noted that while the Applicant was not a target of a blood feud, it was 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: at [75] of the Reasons;

    (e)in respect of blood feuds, referenced the Report of the UK Home Office in July 2024 and stated, inter alia, that:

    (i)in general the state is willing and able to offer effective protection to persons affected by an active blood feud;

    (ii)while state protection in areas in which Kanun law predominates were not always sufficient, in recent years there [may] have been a change to that assessment because of steps taken by the Albanian government in preparation for accession to the European Union;

    (iii)steps taken include 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 state police of all families affected by blood feuds;

    (iv)a murder committed as part of a blood feud is punishable by up to 30 years or life imprisonment, while a threat of blood feud or revenge is punishable with up to 3 years of imprisonment;

    (v)in the context above, there are few active blood feuds, these are declining and the state has undertaken tens of investigations into blood feud related crime, leading to a number of convictions for murder for blood feud;

    (vi)the Shkoder Regional Police Directorate considered that the strengthening of the law had contributed to the decline of blood feuds;

    (f)put the information above to the Applicant and noted his responses at paragraph [77] of the Reasons;

    (g)considered media articles submitted by the Applicant at paragraph [78] of the Reasons;

    (h)considered post-hearing submissions of the Applicant that the measures introduced by the Albanian government remain insufficient in areas where Kanun law prevails, particularly in northern Albania where the Applicant resides: at [80] of the Reasons;

    (i)accepted there may be instances where perpetrators may harm another individual despite an individual having sought police protection: at [82] of the Reasons;

    (j)stated at [83] of the Reasons that:

    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.

    (k)concluded that it was satisfied that Albania has a system of protection consisting of an appropriate criminal law, a reasonably effective police force and an impartial judicial system, and that the protection was durable and accessible throughout Albania: at [85] of the Reasons.

  14. The Tribunal concluded its assessment of whether the Applicant was a refugee at [85] of its Reasons in the following terms:

    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.

  15. The Tribunal then turned its attention to whether the Applicant qualified for complementary protection. At paragraph [86] of the Reasons, the Tribunal accepted that the Applicant faced a real risk of significant harm (based on its earlier findings that the Applicant faced a real chance of serious harm). 

  16. At [87], the Tribunal referred to and noted its findings for the purposes of section 5LA(2) of the Act. At paragraph [88] of the Reasons, the Tribunal makes clear that it is alive to the fact that a ‘different standard of protection’ applies when assessing the availability of complementary protection and sets out an extract from section 36(2B). In these paragraphs, the Tribunal is doing two things. It invokes and seeks to apply the test set out within subsection 36(2B)(b). It also is plainly relying on its reasoning and findings made earlier at paragraphs [68]–[85], including its findings that Albania has a system of protection consisting of appropriate criminal law, a reasonably effective police force and an impartial judicial system, and is willing and able to offer protection to the Applicant, and its notation that the Applicant as refused to seek such protection.

  17. Then, at [89], the Tribunal considers additional matters relevant to whether the Applicant faces a real risk of significant harm. Those matters include that the Applicant has not been physically harmed by members of the [G] family in the three years he was living in that area and that [Mr G] had been arrested, prosecuted and jailed for past criminal activities.

  18. Finally, at [90], the Tribunal concludes that the level of protection available to the Applicant reduces the risk of significant harm to something less than a real risk.

  19. In my view, the reasons of Tribunal read fairly, and as a whole, demonstrate that it engaged with the provisions of section 36(2)(aa) and section 36(2B)(b). It was alive to the different tests that applied. It approached the matter in a holistic way. It considered the circumstances pertaining to the Applicant. Its Reasons read as a whole and fairly do not disclose that it approached section 36(2B)(b) as a ‘carve out’. Rather, it properly considered, whether in obtaining protection, the protection is such that there would not be a real risk the Applicant would suffer significant harm.

  20. For these reasons, particular (a) to Ground One is not made out.

    GROUND ONE, PARTICULAR (B)

  21. It is trite to observe that when assessing the application of section 36(2B)(b) to the facts of the case, the particular circumstances of the non-citizen must be considered. It is not sufficient that there be generally, a system of protection available. As the Full Court in MZYYL stated at [39], section 36(2B)(b) ‘poses the question whether, in obtaining protection from the receiving country, the protection is such that there would not be a real risk that the non-citizen would suffer significant harm if returned’.

  22. The risk identified by the Tribunal in the present matter was any retaliatory harm that ‘[Mr G] or his associates may seek to inflict on the applicant’ by way of ‘revenge crime as distinct from a blood feud’ (at [54] of the Reasons). Indeed at [64] of the Reasons, the Tribunal stated it did not ‘discount as remote the possibility that [Mr G] or his associates would seek to harm the applicant if he returns to his home... nor that the harm if it occurred could rise to the level of serious harm’.

  23. In submissions under this particular of the Ground of Review, the Applicant identified two errors. Each is considered separately below.

  24. The Applicant first submits that the Tribunal asked itself the wrong question. In this regard, the Applicant refers to the opening sentence of paragraph [89] of the Reasons of the Tribunal. It is submitted that the Tribunal wrongly asked itself whether there was anything unusual about the Applicant’s circumstances that would cause the Tribunal to deviate from its finding that effective protection measures existed. In oral submissions, the Applicant characterised this as the Tribunal asking itself whether there was anything to ‘rebut that system-based presumption’ and that ‘one cannot start from that presumption’.

  1. In advancing the submission that the Tribunal asked itself the wrong question, and seeking to highlight the type of inquiry the Tribunal should have made, the Applicant sought to contrast the approach of the Tribunal to the approach taken by Charlesworth J in ABAR15 v Minister for Immigration and Border Protection (No 2) [2016] FCA 721 (‘ABAR15’). At paragraph [60], Charlesworth J stated:

    Consistent with the Full Court’s reasoning in MZYYL, in my opinion s 36(2)(aa), s 36(2B) and the definition of “significant harm” in s 36(2A) of the Act together evince an intention that the decision-maker (here, the Tribunal), be obliged in the appellant’s case to ask itself the following questions:

    (a)What is the source and nature of the significant harm at which the appellant claims to be at risk?

    (b)What is the nature and degree of protection able to be afforded by Vietnamese authorities, being protection from the specific harm at which the appellant claims to be at risk?

    (c)Could the appellant herself obtain from the Vietnamese authorities that protection, again having regard to the source and nature of the harm at which the appellant claims to be at risk?

    (d)Would the appellant, upon obtaining that protection from the said authorities, nonetheless be at real risk of significant harm?  

  2. The second error asserted by the Applicant is that the Tribunal failed to focus on the ability of the individual to be protected from a specific risk of harm. Instead, it is submitted that what the Tribunal did was to focus on the existence of whether Albania had systems of protection (such as criminal law, a police force, and a judicial system) without considering whether there was a real risk that the Applicant would suffer significant harm, given his circumstances. The Applicant submitted that the Tribunal’s Reasons in respect of protection from blood feuds do not address the specific risk with which the Applicant is confronted, namely, revenge crime. The Applicant contended that given these matters, the only time the Tribunal came to consider his personal circumstances, insofar as they engaged section 36(2B)(b) of the Act, was in paragraph [89] of the Reasons and when it did so in that paragraph, it considered matters that were not probative of the key question before the Tribunal, namely the particular risk he faced at the hands of [Mr G] and whether that risk was reduced having regard to the terms of section 36(2B)(b) of the Act.

  3. In my view, the submissions of the Applicant do not disclose an error by the Tribunal.

  4. Turning to the second of the asserted errors outlined above (the contention that there was a failure to focus on the ability of the Applicant to be protected from specific harm), the Applicant seeks to focus only on paragraphs [86]-[89] of the Reasons of the Tribunal in order to make good his submission. That submission ignores the way in which the Tribunal reasoned. The Tribunal expressly had regard to its earlier findings (including findings in respect of section 5J(2) and section 5LA(2) of the Act) in reaching its conclusions with respect to section 36(2B) of the Act. In setting out its findings, it had regard to the circumstances and specific risk the Applicant faced. For example:

    (a)it noted the circumstance peculiar to the Applicant that he had not sought the protection of the Albanian authorities because his aim was to reconcile with the family of [Ms G]: at [68] of the Reasons;

    (b)it demonstrated an awareness that the Applicant was facing risk peculiar to him from a revenge crime and not a blood feud, but had regard to the information about blood feuds ‘because of the similarities between revenge crimes and blood feuds: at [75] of the Reasons; and

    (c)based on Country Information, noted at [75] of the Reasons, that the State was ‘willing and able to offer effective protection’ (which the Applicant was not seeking), the development of blood feud action plans, criminal penalties for murder committed as part of a blood feud or revenge, and that the strengthening of the law had contributed to the decline of blood feuds.

  5. The Tribunal also considered particular matters raised by the Applicant. Among other things, it:

    (a)considered the Applicant’s responses given at the hearing: at [77] of the Reasons;

    (b)considered specifically media articles provided by the Applicant that he claimed were relevant to him: at [78] of the Reasons; and

    (c)considered post-hearing submissions from the Applicant: at [80] of the Reasons.

  6. Having considered the matters above, the Tribunal then stated at [83] as follows:  

    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.

  7. None of the above is to ignore what the Tribunal then added at paragraph [89] of the Reasons. At [89] of the Reasons, the Tribunal took account of the following matters personal to the Applicant: that he had been involved in the death of [Ms G], that neither the Applicant nor any other member of his family had been harmed in the three years he remained living in the area after the incident, that [Mr G] had not bribed his way out of jail or that he had influence with the Albanian authorities, and that [Mr G] had been arrested, prosecuted and jailed for his past criminal activities. Each of these matters were probative of the harm faced by the Applicant, and in particular, whether he could obtain protection such that there would not be a real risk that he would suffer significant harm.   

  8. All of the matters referred to above were peculiar and specific to the risk faced by the Applicant, and whether he could obtain protection such that there would not be a real risk that he would suffer significant harm.

  9. As to the submission that the Tribunal asked itself the wrong question and ought to have approached the matter in a similar way to which Charlesworth J did in ABAR15, the questions set out by Charlesworth J in ABAR15 at [60] are not a prescription that must be addressed in every case. Charlesworth J understood that herself and said as much at paragraph [61] of her reasons. Further, as Besanko J noted at [56] in CPP17 v Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 199, what the Tribunal is required to consider is ‘whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellants being removed from Australia and returned…there is a real risk that the appellants will suffer significant harm’.

  10. Further, in my view, the Tribunal clearly understood the task before it. At paragraph [88] of its Reasons, the Tribunal identified that a ‘different standard of protection…applies’ and then referenced section 36(2B) noting that ‘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’”. It addressed that question, having regard to its earlier reasons and findings. In short, the Tribunal did not ask itself the wrong question.

  11. Further, although it is not strictly necessary to say so, the Tribunal effectively answered the questions Charlesworth J posed in ABAR15, albeit not sequentially. The Tribunal:

    (a)identified the source and nature of the significant harm: the harm was as set out at paragraphs [32(b)] and [32(e)] above. See also the Reasons at [34], [42] and [54];

    (b)considered the nature and degree of protection available from the relevant State authorities: see paragraph [43] above and also the Reasons at [68]–[85] and [86]–[90];

    (c)considered whether the Applicant could obtain the protection from the relevant State authorities: see paragraph [32(h)] and [58] above and also the Reasons at [58], [68] and [89]; and

    (d)determined whether the Applicant upon obtaining protection from the authorities would be at real risk of significant harm: see Reasons at [90].

  12. For the above reasons, particular (b) to Ground Two is also not made out.

  13. The only appropriate order is that the Application be dismissed.

    CONCLUSION

  14. The Applicant has been entirely unsuccessful. The Minister seeks costs in accordance with the scale set out in schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) in the amount of $8,371.30. I will make an order for costs in the sum sought by the Minister of $8,371.30.

I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake.

Associate:

Dated:       11 March 2025

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