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[2003] FCAFC 302
Federal Court of Australia (Full Court)
2003-12-18
Sundberg JJ
Original judgment source is linked above.
1 The appellants are a husband and wife and their daughter. They are Albanian citizens. The wife arrived in Australia on a false passport on 16 June 2000. The husband and daughter arrived on a valid temporary visa on 3 November 2000. On 16 January 2001 they lodged an application for a protection visa. Only the husband made a specific claim that he was a refugee within the meaning of the Refugees Convention. A delegate of the respondent refused to grant the visa. The delegate's decision was affirmed by the Refugee Review Tribunal. The appellants' application for review of the Tribunal's decision was dismissed by the primary judge. The appeal is from that decision. 2 The husband claimed he had to leave Albania because he feared death by a revenge killing in a blood feud between two families. He said his cousin had killed a male member of another family in January 2000 over a dispute relating to a broken engagement. The other family stated an intention to kill a member of the husband's family by way of revenge. He said that if he returned to Albania he would be killed. Attempts had been made to negotiate a settlement of the dispute, but the other family would not forgive the killing. Under the customary Code of Leke Dukagjini, known as the "Kanun", which sets down the rules for blood feuds, a male member of the husband's family is liable to be killed. The husband's cousin had disappeared after the killing, and his whereabouts are unknown. Other male members of the husband's family were his father, who was elderly, and his cousin's father. Both had been in hiding since the death. The husband said he was the only other male member of the family, and therefore the likely victim. The husband's visa application was based on his claim that he is a member of a particular social group, namely his family, and that he would be persecuted if he returned to Albania for reasons of his membership of that particular social group because he would be the target of the blood feud. 3 In its reasons for decision the Tribunal said it had considerable doubt about several aspects of the husband's claim, and in particular his explanations for delay in seeking a visa to travel to Australia and in leaving Albania, which seemed to the Tribunal to be inconsistent with the behaviour of a person who feared serious harm. However, it gave him the benefit of the doubt, and concluded that he was not entitled to a protection visa because of the operation of s 91S of the Migration Act 1958 (Cth). The Tribunal said: "According to the applicant's account, Gjergi Simonej and Arben Prela were exchanging punches, and then Gjergi pulled out a gun, fired at Arben and killed him. The Tribunal finds that even though family matters were the cause of the dispute, the killing of Arben Prela, which triggered the blood feud, was a criminal act by Gjergi Simonej, and was not Convention‑related. … While the Tribunal accepts that the applicant fears persecution because of his family membership, this fear would not exist if his relative, Gjergi Simonej, had not killed Arben Prela in a non‑Convention related crime. The Tribunal finds that the motivation of the Prela family to harm a member of the Simonej family is revenge for Arben's death and this motivation is not Convention‑related. The Tribunal is therefore required by s.91S of the Act to disregard the applicant's fear of persecution which arises from his membership of his particular social group, his family, because the harm he fears is not motivated by a Convention reason, and would not exist were it not for the non‑Convention related actions of a member of his family."
The Tribunal went on to say that the wife and daughter did not make specific Convention claims of their own, with the result that the fate of their applications depended on that of the husband's.
4 The application before the primary judge was heard together with that in SCAL v Minister for Immigration and Multicultural and Indigenous Affairs (SCAL). The same counsel appeared for the parties in both matters. Judgment was delivered in the two matters contemporaneously. The principal judgment was in SCAL. The primary judge said the judgment in the present was to be read with that in SCAL. His Honour dismissed the application in these words at [6]‑[8]: "In the written submissions filed in advance of the oral hearing on 5 February 2003 the applicants contended that the Tribunal had misconstrued s 91S. In oral argument the contentions of the applicants were re‑cast in the same way as the submissions were re‑cast in SCALso as to contend that the Tribunal erred in identifying the particular social group, the membership of which was the reason for the husband's alleged well‑founded fear of being persecuted. The contention that the Tribunal misconstrued s 91S of the Act was also maintained. For the reasons given in SCAL, I do not consider the Tribunal erred in law in treating as the relevant social group the husband's family, nor do I consider the Tribunal erred in the construction and application of s 91S of the Act. For the reasons given in SCAL, I consider the present application must fail." 5 The notice of appeal is in substantially the same form as that in SCAL, save that there is no reference to the primary judge's treatment of any corroborating evidence, as there was in SCAL (ie the affidavits of Mr Game and Mr Rrotani). 6 The claim that the primary judge erred when he said that the claim that the husband is a member of the re‑cast social group had not been made in his visa application or before the Tribunal has no substance. The appellants' solicitors also had the carriage of the applications in SCAL. The submissions made to the Department and later to the Tribunal were in the same form as those made in SCAL. We refer to and adopt what we have said in SCAL at [15]‑[17]. 7 The claim that the primary judge erred in holding that the social group consisting of citizens of Albania who are subject to the operation of the Kanun comprised the "whole community" is rejected for the reasons given in SCAL at [18]. 8 What we have said at [19] of SCAL about the contention recorded at [18] is applicable to the present case.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Carr, Finn and Sundberg.
Solicitor for the Respondent: Australian Government Solicitor
SCAG
Minister for Immigration & Multicultural and Indigenous Affairs