Minister for Immigration and Multicultural and Indigenous Affairs v SVBB

REASONS FOR JUDGMENT THE COURT: 1 This is an appeal by the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) from orders made by a judge of this Court granting certiorari to quash a decision of the Refugee Review Tribunal (RRT) made on 9 February 2004 and ordering mandamus directed to the RRT requiring it to hear the application for review according to law. 2 The respondent is an Albanian citizen who was born on 28 May 1976. He entered Australia on 27 September 2000. On 26 October 2000 he applied for a protection (Class XA) visa claiming to be a refugee within the meaning of s 36(2) of the Migration Act 1958 (Cth) (the Act). On 27 March 2002 the Minister's delegate determined that the respondent was not a person to whom Australia had protection obligations under the Refugees Convention and refused to grant him a protection (Class XA) visa. 3 The respondent applied to the RRT for a review of the Minister's delegate's decision. On 9 February 2004 the RRT dismissed the respondent's application for a review and affirmed the Minister's delegate's decision not to grant a protection visa. 4 On 29 March 2004 the respondent applied to a judge of this Court for a review of that decision. 5 On 9 July 2004 the primary judge made the following orders: '1. Certiorari to issue bringing up the decision of the Refugee Review Tribunal the subject of these proceedings, made on 9 February 2004 and quashing it. 2. Mandamus to the Refugee Review Tribunal requiring the Tribunal to hear the application for review according to law. 3. The first respondent to pay the applicant's costs. 4. No order as to the costs for the second and third respondents.' 6 The grounds of the Minister's appeal are that the learned judge erred: '1. In the application of section 91S of the Migration Act, 1958 (Cth) ("the Act"). 2. In finding that the Refugee Review Tribunal ("RRT") proceeded on an erroneous understanding of section 91S of the Act. 3. In finding that the RRT acted upon the understanding that, if the event which caused the fear of persecution was an event caused by a family member then section 91S of the Act does not apply, when the RRT decision discloses no such understanding. 4. In not finding that the RRT made a finding of fact that the Applicant's father feared persecution for a reason other than membership of the family group. 5. In not finding that the analysis and application of the law by the RRT was consistent with the authorities of this Court including SDAR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1102 and SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 301. 6. In not following the decision of SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 301.' 7 There is no dispute that the respondent is an Albanian national. His account of his leaving Albania and the reasons for it have remained consistent. 8 The respondent said that his father sold some land to an Albanian family (family A). One fifth of the purchase price was payable immediately, the balance to be paid over a period of six months from the date of the agreement. 9 Before the date for payment of the balance of the purchase price had passed, family A commenced a business on the land. 10 When family A failed to pay the balance of the purchase price the respondent's parents approached that family at the business premises. 11 The respondent's parents were told that they would not get the balance of the money for the land and that they could 'forget about it'. The parties became angry and persons began pushing and shoving each other. The respondent's father was hit and his mother was struck when she tried to intervene in support of her husband. 12 The respondent's father became extremely angry that his wife had been struck. He returned home, seized a gun, returned to family A's business premises and shot two members of that family, as a result of which one died and the other was seriously wounded. His father went into hiding because he was being sought by the government for the offences committed and by family A who were seeking revenge. The respondent has not seen his father since that time. 13 The respondent's case was that Albanian people are subject to the ancient code of the Kanun of Lek Dukagjini which lays down a code of 'laws' governing birth, marriage, inheritance, hospitality and death, and which has 'traditionally served as the foundation of social behaviour and self government for the clans of northern Albania'. The Kanun regulates killings resulting from blood feuds between families. 14 At the time, the respondent was living in Tirana. Shortly after the shooting, the respondent's uncle advised him to leave Albania and provided him with US$10,000 for that purpose. 15 The respondent's case was that, as a result of his father shooting the two members of family A and killing one of them, it was inevitable that the surviving members of family A would seek revenge for the killing. He and his father were the only two male members of the family and therefore both of them are in extreme danger in Albania. 16 He said that the only reason he left Albania was because of the blood feud and that he is much safer in Australia than in Albania. He fears that if he returned to Albania his life would be at risk, because he would be likely to be killed by members of family A and that the Albanian authorities will not protect him as Albania is in chaos and the law of Kanun predominates in the Albanian countryside. 17 The RRT accepted the respondent's account but concluded that the respondent was not entitled to claim the status of a refugee because his fear of persecution was not for a Convention reason. 18 The RRT said: 'Although the Tribunal is satisfied that in the Albanian context the applicant's family can be considered to be a particular social group under the Convention, I find that the motivation of family A to harm the applicant or any other member of the applicant's family is revenge for a murder committed by the father of the applicant. Revenge for any criminal act, including murder, is not a reason for harm which comes under the Refugees Convention unless it can be linked to a Convention reason. The effect of s91S is that I must disregard the fear of persecution of a person such as the applicant whose fear arises because he or she is the relative of a person targeted for a non-Convention reason whose fear of persecution must be disregarded.' 19 There can be no quarrel with the finding in the first sentence of the first paragraph. That finding reflects the respondent's case. The second sentence is undoubtedly correct. The second paragraph contains a further finding which, taken with the finding in the first paragraph to which we have referred, also reflected the respondent's case. The findings of the RRT were that the respondent fears persecution because he is the son of a man who fears persecution for a non-Convention reason. 20 The RRT followed the decision of Merkel J in SDAR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1102 and the later decision of SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548. 21 The RRT said, in relation to an alternative argument put forward by the respondent: 'The applicant's adviser in a submission argued that s.91S of the Act did not apply in the applicant's case as his family was being targeted collectively and that the applicant's father's actions or fears should not be relevant in the applicant's case. I do not accept this line of reasoning because if the applicant's father had not murdered Mr CA the applicant would not be targeted by family A in any way. I find that the essential and significant reason that the applicant fears persecution is because family A are seeking revenge for the murder of their family member by the father of the applicant and therefore s.91S must apply to prevent the applicant from relying on this action by his father to bring him within the scope of the Refugees Convention because the persecution or fear of persecution is motivated by a non-Convention reason. I find that the applicant's fears of Convention-related persecution are not well-founded.' 22 On the application for review before the primary judge the respondent put two arguments. First, he argued that the RRT failed to consider whether or not he was a member of a broader social group other than his family and, secondly, he argued that the RRT also failed to consider whether or not the Albanian authorities persecuted him. 23 The primary judge rejected the second argument on the basis that it had never been put to the delegate or to the RRT. 24 The primary judge did not, in his reasons, address the first argument. That argument has not been pursued on this appeal. In any event, that argument could not have succeeded unless the respondent first established that he had an objective well founded fear of persecution for a Convention reason. 25 However, the primary judge did uphold the respondent's application for review on another ground. After referring to the RRT's reasons, he said at [10]-[11]: ' It seems to me, with respect, that this analysis is clearly based upon the understanding that, if the event which caused the fear of persecution was an event caused by a family member, then s 91S does not apply. In particular, it seems to be based upon an understanding that s 91S does not apply as a matter of law where the event that gave rise to the fear of persecution was a criminal act by a family member. For the reasons given by me in STXB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 860 at par 32 to 34, this seems to be an erroneous understanding of s 91S of the Act. In that case, there had been a factual finding by the Tribunal that the reason for persecution of the person who committed the alleged act was that person's alleged act. In the relevant paragraphs I proceeded to discuss why, in my view, that was a factual finding and not a legal one: "This is not to say that the factual finding made by the Tribunal was inevitable. Some care needs to be taken in applying s 91S of the Act in circumstances involving claims based on customary or traditional law. The application of that section is dependent upon a factual finding that the initial or original fear of persecution arises for a reason other than membership of the family group. Obviously there must be someone in the family group who fears persecution for some reason other than that membership. In the cases that have considered the issue in the context of Albanian blood feuds under the Kanun the relevant 'someone' is the person whose act caused the blood feud. That person's fear of persecution is usually expressed as a personal fear of revenge by the family of the person who was injured or (usually) killed: see, for example SDAR v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 72 ALD 129; [2002] FCA 1102 ('SDAR') at [24]; SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548 ('SCAL 1') at [24]; SCAL 2 at [10], [19]. Where such factual findings have been made then s 91S is applicable: see SCAL 2.