Minister for Immigration and Multicultural Affairs v Shtjefni

REASONS FOR JUDGMENT 1 Albania is largely a lawless country. Young Albanian girls are commonly kidnapped and held for ransom or forced into prostitution in western Europe, often after having been raped, beaten and injected with heroin. It has been reported that "many of the traffickers work in collusion with the police, who turn a blind eye to the highly lucrative trade." (Report of the International Crisis Group, published on 25 May 2001). Appeals by the international community to the Albanian government to deal with this serious problem are largely ignored. 2 The Shtjefni family (Mr Shtjefni, his daughter, Leonia, and his son, Aldi) are from Albania, and have been caught up in these events. On three occasions during the calendar year 2000, Mr Shtjefni was forced to pay between US$1,000 and US$1,500 to prevent his children being kidnapped by criminals. Then on 25 December 2000 criminals broke into his home, kidnapped Leonia and shot, but fortunately did not kill, his mother. Mr Shtjefni was compelled to pay US$3,000 to obtain the release of his daughter. Using false passports, Mr Shtjefni fled to Australia with his two children. He did not have enough money to bring his wife. He felt that it was too dangerous for his wife to take the children out of Albania alone. 3 The facts that I have just outlined are taken from findings made by the Refugee Review Tribunal and from evidence that the tribunal accepted as accurate. The proceeding before the tribunal was to determine whether Mr Shtjefni and his children were Convention refugees. They had sought, but had been refused, protection visas by a delegate of the Minister for Immigration and Multicultural Affairs and had taken their case to the tribunal. The tribunal held that Mr Shtjefni and Aldi were not refugees, but decided that Leonia did satisfy the relevant criteria. Accordingly the tribunal remitted the matter to the delegate for reconsideration with a direction "that [the Shtjefni family] are persons to whom Australia has protection obligations under the Refugees Convention". 4 The Minister now seeks to review the tribunal's decision. Before dealing with the Minister's criticisms of the decision it is necessary to say something about the circumstances in which a person may be a Convention refugee, and to explain why the tribunal found that Leonia was such a person. 5 Leonia based her claim to be a refugee on the basis of a fear of persecution for reasons of her membership of a particular social group. Article 1A(2) of the Refugees Convention defines a refugee as a person who "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion … is unable or, owing to such fear, is unwilling to avail himself of the protection of [his] country …". The "particular social group" of which Leonia claimed to be a member is her immediate family, that is, her father, mother, brother and herself. 6 The tribunal held that a family can be a "particular social group" for the purposes of the Refugees Convention. It referred to a number of decisions in the Federal Court where this proposition has been accepted. For example, in Sarrazola v Minister for Immigration and Multicultural Affairs [1999] FCA 101 Hely J said (at para 36): "A family is cognisable as a group in society such that its members share something which unites them and sets them apart from the general community". In Giraldo v Minister for Immigration and Multicultural Affairs [2001] FCA 113, Sackville J said (at para 42): "A particular family or extended family is capable of constituting a particular social group for the purposes of the Convention." In Minister for Immigration and Multicultural Affairs v Sarrazola (no. 4) [2001] FCA 263 Merkel J, with whom Sundberg and Heerey JJ agreed, said (at para 31): "[I]t is entirely consistent with the Convention that a person's freedom from persecution on the basis that he or she is a member of a particular social group, namely a family, can be one of the fundamental rights and freedoms assured to refugees." 7 The Minister does not challenge this finding. This is not surprising. Not only are there the authorities to which I have referred, the view that a family can be a "particular social group" has been accepted by some justices of the High Court. For example, in Applicant A v Minister for Immigration and Multicultural Affairs (1997) 190 CLR 225 Dawson J said (at 241): "I can see no reason to confine a particular social group to small groups or to large ones; a family or a group of many millions may each be a particular social group". It is also a view that has been accepted by courts in other countries. Both Canada and the United States have adopted the Refugees Convention as local law. The following are examples of United States cases that have ruled on the issue. In Sanchez-Trujillo v Immigration and Naturalization Service 801 F 2d 1571, 1576 (9th Cir 1986) the Ninth Circuit Court of Appeals said that: "a prototypical example of a 'particular social group' would consist of the immediate members of a certain family, the family being a focus of fundamental affiliational concerns and common interests for most people." In Gebremichael v Immigration and Naturalization Service 10 F 3d 28, 36 (1st Cir 1993) the First Circuit Court of Appeals said: "There can, in fact, be no plainer example of a social group based on common, identifiable and immutable characteristics than that of the nuclear family." More recently in Castillo v Immigration and Naturalisation Service 242 F 3d 1169 (9th Cir 2001), the Ninth Circuit Court of Appeals, after a review of many authorities, said (at 1176) that: "Consistent with decisions from our circuit, our sister circuits and the [Board of Immigration Appeals], we hold that a family group may qualify as a particular social group within the meaning of [the relevant US Act]." 8 As to the position in Canada, see for example Al-Busaidy v Canada (Minister of Employment and Immigration) 31 ACWS (3d) 457 A.C.W.S.J. LEXIS 29598, p.5 (1992) ("[T]he [Immigration Appeal Board] has committed reviewable error in not giving due effect to the applicant's uncontradicted evidence with respect to his membership in a particular social group, namely, his own immediate family."); Montoya v Canada 48 ACWS (3d) 391, para 5 (1994) ("[T]he Applicant's immediate family can be considered a particular social group."); Vyramuthu v Canada 53 ACWS (3d) 385, para 7 (1995) ("[J]urisprudence establishes that a family may constituted (sic) a particular social group…"); Campos v Minister of Citizenship and Immigration 1997 Fed Ct Trial LEXIS 695, p.5 ("The [Convention Refugee Determination Division of the Immigration and Refugee Board] determined that the applicants' family was capable of constituting a particular social group…"). In Castellanos v Solicitor General of Canada [1995] 2 FC 190, the Federal Court of Canada said (at 204): "When considering such associations or social groups, one cannot imagine a closer-knit or easier to confirm unit than the family. This is especially true with respect to immediate family, being a person's sons, daughters, parents and any other blood relative they permanently reside with. There can be absolutely no doubt that the family unit forms a social group which is protected against persecution by the Act." 9 To reach the conclusion that Leonia was a Convention refugee, the tribunal was also required to find that her fear of harm was on account of her membership of her family, that is that Leonia's status as a member of her family prompted both the threats of kidnapping and her actual kidnapping. As to this the tribunal reached the following conclusion: "The tribunal finds that [Leonia's] fear of persecution necessarily incorporates three notions: · That criminals wish to extract money from a particular person they have identified as wealthy · The extortion victim is [Leonia's] father · The attitude of the persecutors is that [Leonia] should be targeted for harm as a means of obtaining payment from the father These notions are inextricably linked. It is only when regard is had to the combination that the fear of persecution emerges. In effect, a significant part of the reason for the persecution feared by [Leonia] is her familial tie with her father." 10 While the Minister accepts that it was open to the tribunal to find that a family is a "particular social group", the Minister says that the tribunal's finding in relation to this particular family was in error because the tribunal did not apply the correct test to arrive at its decision. The Minister says that the relevant test is that laid down in Minister for Immigration and Multicultural Affairs v Zamora (1998) 85 FCR 458. In Zamora the Full Court said (at 464) that a particular social group must have the following features: "First, there must be some characteristic other than persecution or the fear of persecution that unites the collection of individuals; persecution or fear of it cannot be a defining feature of the group. Second, that characteristic must set the group apart, as a social group, from the rest of the community. Third, there must be recognition within the society that the collection of individuals is a group that is set apart from the rest of the community." 11 The tribunal reached the conclusion that Leonia's family was a "particular social group" based on the following findings: (a) "[I]n the Albanian context, the family can be considered to be a group which is unified by relationships of blood and marriage"; (b) "Albania is a … clan-oriented society"; (c) There is a "prevalence of family-based 'blood feuds' in Albania" and this evidences the significance of the family unit in Albanian society; and (d) "[I]n Albania a family unit is considered to be a social group which is publicly recognised as being set apart." 12 The Minister says that these findings are not sufficient to meet the requirements of the third limb of the criteria stated in Zamora. In particular, the Minister says that before the tribunal could find that a family constitutes a "particular social group", the particular family must be publicly recognised as a group, and it is not sufficient that families generally are recognised as a separate group within the relevant community. 13 There are two answers to this argument. The first is that the Minister's "construction" of the third requirement in Zamora is not correct. A proper reading of the third requirement does not suggest that it is necessary for a particular collection of individuals to be regarded by the community as a separate group, such as a family group, before it will qualify as a "particular social group". There are many examples of potentially relevant social groups. They include groups defined by kinship, ethnicity, territory, age, sex, language, place of residence, class, occupation, recreation, business, education, and so on. What is important is that the relevant group be recognised as separate from the general community. Then there will be a "particular social group" for the purposes of the Refugees Convention. That is all that is required to meet the third limb of the Zamora "test". It would be too limiting to impose a further requirement that a particular social group must also be defined by reference to the identity of its particular members. 14 The second reason for rejecting the Minister's contention is that it is contrary to authority. In Sarrazola (no. 4), the Full Court considered the three factors mentioned in Zamora. Merkel J, with whom Heerey and Sundberg JJ agreed, said in relation to the second and third factors (at para 36 and para 37): "In order to determine the existence of the second and third factors in Zamora the RRT was required to address whether the characteristics of the family configuration raised by the material and evidence before it (see Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 at 482) set the group apart as a social group from the rest of the community, and whether the group was recognised by the relevant section of Columbian society as a group that is so set apart. The characteristics that usually unite a family as a collection of individuals and that which will set it apart from the rest of the community will be familial links of the kind described by Wilcox J in C. The determination of which of those links apply in a particular case will identify, and thereby define, the relevant group as the particular social group for the purposes of Art 1(2A). Importantly, in addressing the third factor in Zamora the question is whether the family unit considered to be a social group is publicly recognised as being set apart as such. It is not whether the particular family (ie the members of the family however configured) is well known as such." It is not for me to take up the Minister's invitation to decide whether everything that was said in these two paragraphs is correct. It is clear the case stands as authority for the correctness of the tribunal's approach. 15 The Minister also challenges the tribunal's finding that Leonia's fear of harm was "for reasons of" her membership of her family. The Minister says that according to the facts as found by the tribunal, Leonia was only being targeted by criminals because of her family's wealth and that is not sufficient in law to create a causal nexus between the feared harm (kidnapping, etc) and the claimed Convention reason (membership of a "particular social group"). 16 It may be accepted that if Leonia was at risk merely because she was wealthy, she could not claim to be a Convention refugee. But that is not the reason why Leonia fears persecution in Albania. Her father is, or is perceived to be, a wealthy individual. Criminal elements in Albania know that he will pay money to protect his children. In other words, Leonia's father is a perfect target for extortion because of the relationship that subsists between himself and his children, especially his daughter. When threats are made to kidnap Leonia, those threats are not made because of her personal characteristics. She is a target because of her position in the family group. If her father, the head of the family group, was not a wealthy man (or believed to be wealthy), Leonia would not be a target for the criminal conduct. 17 This really disposes of the application, save for one matter. The Minister correctly points out that neither Mr Shtjefni nor Aldi are Convention refugees. Accordingly the tribunal should not have included them in its direction as persons to whom Australian owes protection obligations. That the direction overstates this position is not in dispute. In a sense the error is immaterial. While neither Mr Shtjefni nor Aldi are Convention refugees, they are derivatively entitled to a protection visa because of their relationship with Leonia. In this connection reference should be made to Schedule 2, sub-paragraph 866.211(b) and paragraph 866.222 of the Migration Regulations. 18 Nevertheless it is appropriate that the application be allowed in part, to vary the order so that it will read: "The matter be remitted for reconsideration with the direction that the second applicant is a person to whom Australia has protection obligations under the Refugees Convention". Otherwise the application should be dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.