SCAL v Minister for Immigration & Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT THE COURT: Background 1 The appellant is a citizen of Albania who arrived in Australia on 20 September 1999. On 2 November 1999 he lodged an application for a protection visa. The application was rejected by a delegate of the respondent, whose decision was affirmed by the Refugee Review Tribunal. The appellant's application under s 39B of the Judiciary Act 1903 (Cth) for review of the Tribunal's decision was dismissed by the primary judge. 2 In his application for the visa and before the Tribunal the appellant asserted that he feared he would be killed as a result of a blood feud with another family in Albania. He sought to bring himself within the definition of "refugee" in Article 1A(2) of the Refugees Convention by contending that he had a well‑founded fear of being persecuted by reason of his membership of a particular social group, namely his family, the male members of which were the target of the blood feud. The appellant claimed that the blood feud arose under customary Albanian law known as the Kanun, otherwise known as the Code of Leke Dukagjini, which was followed in the northern parts of Albania from which the appellant came. The rules of a blood feud require a male member of one family to be killed as a matter of honour where a member of that family has been involved in the killing of a member of another family. The appellant claimed that on the night of 16 August 1998 his father was sleeping in the family shop in Shkoder, where the family lived. He said crime was rife in Albania. Three people came to the shop and were in the course of breaking in when the father called out. Thereupon the intruders started shooting. The father shot back, injuring two and killing one of the intruders. The father was later arrested, tried and sentenced to thirteen years imprisonment. The appellant claimed his family still owed blood to the deceased's family. Because his father would be in gaol for a long time, the appellant said he was the only person for them to kill. He said that under the rules of a blood feud it did not matter that he was not at the shop when the killing occurred. He said attempts within Shkoder to effect a reconciliation with the deceased's family had failed. After hiding for a time, he fled Albania, ultimately coming to Australia. Section 91S 3 Section 91S of the Migration Act 1958 (Cth) is central to an assessment of the appellant's claim to fear persecution by reason of his membership of a particular social group. It provides: "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 being persecuted 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 Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; 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." Tribunal's decision 4 The Tribunal first considered the appellant's "particular social group" claim in the context of s 91S. It said: "In this case the applicant's problems have developed because his father shot a potential burglar. It appears that the applicant's father was then sentenced to a term of imprisonment, which indicates that he may not be entirely innocent in the matter. As stated above if the applicant's father was sought for revenge by the family of the person who was killed then this would be because of his actions and not because he is a member of a particular family. The Tribunal concludes in this case that the applicant's father is a target of the aggrieved family but that his fear or persecution does not relate to a Convention reason. The applicant's father's fear, the Tribunal finds does not arise because of the applicant's father's political opinion, race religion nationality or membership of a particular social group. In the applicant's case he is only sought because of the family connection. Section 91S instructs the Tribunal to disregard any fear that the applicant's father or any other family member has experienced where it is reasonable to conclude that the applicant's fear of persecution would not exist if it were assumed that the non‑Convention related fear of persecution of the applicant's father did not exist. In this case the applicant's fear of persecution would not exist if his father's fear or persecution did not exist. In other words if the applicant's father had not shot someone, actions which were not Convention related, and did not fear revenge, a problem that again is not Convention related, the applicant would not have any fear of persecution or be at risk of persecution. As a consequence of applying section 91S the Tribunal finds that after disregarding the problems resulting from the actions of the applicant's father that the applicant does not face a real chance of persecution for a Convention reason." 5 To this stage of its reasons the Tribunal had accepted the appellant's factual claims at face value. However it went on to reject key aspects of them. It found his claim that he is at serious risk because of a blood feud following his father's killing of a burglar to be implausible. It gave its reasons: "Firstly in the Tribunal's view if the family wanted further revenge then they would try and take it out on the applicant's father, even if he is currently in gaol. Secondly it is implausible that the applicant would leave his children in Albania if he really were the victim of a blood feud. Further the applicant remained in Albania from the time of the alleged shooting involving his father until September 1999 without there being any attempt to kill him. In addition the applicant initially went to Italy but failed to apply for asylum there. He also went to France but again failed to apply for asylum. Such a trip through western countries without applying for asylum indicates to the Tribunal that the applicant was not fleeing persecution. Had he really been getting away from a threat to his life the Tribunal considers he would have applied for protection at the earliest opportunity. DFAT's advice above about targeting the son when the father is alive and well in Albania as being irregular, whilst not country information that in itself is decisive, also points in the direction that the applicant is not the subject of a blood feud." The DFAT information referred to in the last sentence of the above passage related to a father who had committed murder, been imprisoned and had been released after nine years as the result of an amnesty given by a new government. 6 The Tribunal then considered various documents submitted by the appellant in support of his claims. These were ostensibly official Albanian records and documents from village officials. The Tribunal referred to country information that document falsification was rife in Albania. It said: "It does not find those documents that relate to the alleged blood feud to be persuasive. Some are not specific at all. … Whilst this information is cogent evidence of the widespread use of false documents it does not mean that all documents are fraudulent. However in this case when considered with the vagueness of some of the documents and their authors, being in the main village members, the Tribunal does not give any weight to the documents that refer to the blood feud." 7 The Tribunal said that, after taking into account all the matters referred to in [5] and [6], it was not satisfied that the appellant is a victim of a blood feud, although it was possible that his father had killed someone and been imprisoned. As a result it concluded that if the appellant were to return to his home village, there was no real chance he would face persecution on account of any blood feud or any other Convention reason. Primary judge 8 The primary judge noted that in oral argument before him the appellant sought to rely on a much wider social group than his family. The contention was that had this group been identified, s 91S would not have required the particular fear he held as member of that wider group to be disregarded. The matter was stood over to enable the appellant to formulate a written description of the wider social group. The group was subsequently identified as "citizens of Albania who are subject to the operation of the customary law Code of Leke Dukagjini (the Kanun)". His Honour noted that the re‑cast social group claim was not made in the appellant's visa application or before the Tribunal, and that neither the delegate nor the Tribunal was obliged to consider claims that had not been made: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1 at [31]‑[32]. 9 The primary judge recorded the translated contents of parts of a text placed before the Tribunal by the appellant intituled The Code of Leke Dukagjini by Shtjefen Gjecov. He observed that the Code applies generally to regulate the affairs of the community, and is not confined to establishing the rules of a blood feud. It regulates such matters as the boundaries of land, the seasonal movement of stock and the uncompromising protection of a guest. His Honour said the Code is to be treated, at least in the geographical areas from which the appellant comes, as a law or practice of general application. He referred to authorities establishing that whilst a particular social group may be defined in a way that includes numerous members, a law or practice which, although in a sense persecutory, applies to all members of society cannot create a particular social group consisting of all those who bring themselves within its terms. See Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (Applicant A) and Minister for Immigration and Multicultural Affairs v Khawar (2002) 187 ALR 574. Applying that proposition to the Code his Honour said at [19]: "Whilst the whole community may be subject to it, it does not render the whole community a particular social group for the purpose of the definition of 'refugee'. To so construe the Refugees Convention would be to include everyone who for one reason or another had a well-founded fear of persecution, regardless of whether that fear had any relationship to the protective purposes of the Refugees Convention. If a shared fear of persecution were sufficient to constitute a particular social group, it would render pointless and unnecessary, the limitation of the definition of refugee to persons who fear persecution 'for reasons of race, religion, nationality … or political opinion'." Accordingly the primary judge rejected the submission that the Tribunal erred in not identifying the relevant social group as "citizens of Albania who are subject to the operation of the customary law Code of Leke Dukagjini (the Kanun)". For the same reason his Honour rejected a somewhat narrower social group he formulated himself, consisting of "males in the general population who have become the target of a blood feud because some family member has killed a member of another family". 10 The primary judge went on to say that the proper definition of the relevant social group was that put forward by the appellant in his visa application, namely the particular family group the members of which became subject to the risk of revenge because one of their number killed a member of another family. His Honour held that s 91S required the fear of persecution which the appellant asserted by reason of membership of that group to be disregarded. He rejected a contention that s 91S should be construed so as to cover only the type of case illustrated by Minister for Immigration and Multicultural Affairs v Sarrazola (1999) 166 ALR 641, which was said to have been the reason behind the enactment of s 91S. In this connection his Honour referred to a passage in the relevant Explanatory Memorandum: "The above provisions do not prevent a family, per se, being a particular social group for the purpose of establishing a Convention reason for persecution. However, they prevent the family being used as a vehicle to bring with[in] the scope of the Convention persecution motivated for non‑Convention reasons." That, his Honour said, was what the appellant was seeking to do - persecution motivated by the father's shooting of the deceased in the course of the deceased's attempt to break into the shop. 11 The primary judge also rejected the appellant's submission that s 91S did not require his fear of persecution to be disregarded because it was reasonable to conclude that he would fear persecution by reason of the blood law alone, even if the father's fear was the result of his killing of the deceased. His Honour noted that a similar submission had been rejected by Merkel J in SDAR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1102. There it was argued that the fear of persecution of the applicant's cousin, who had killed a member of another family, was the only fear of persecution that should be disregarded. The applicant contended that his fear of persecution was not based upon or derived from the fear of persecution of the cousin, and accordingly was not to be disregarded. His Honour agreed with Merkel J's rejection of the argument. He concluded this part of his reasons by saying at [25]‑[26]: "In my opinion, the applicant's claims taken at face value and at the highest cannot, in light of the provisions of s 91S, give rise to a well‑founded fear of persecution so as to bring him within the definition of 'refugee'. For that reason, I think this is one of those rare cases where, even if one of the other grounds of review were made out, it would not be an appropriate exercise of the Court's discretion to set aside the decision of the Tribunal." Nevertheless his Honour considered the other grounds of review. 12 The first of these was that the Tribunal did not make a bona fide attempt to exercise its power to review the appellant's application for a visa. His Honour rejected this ground as without substance. It is not necessary to record his reasons, since the ground of appeal applicable to the rejection is not pursued. 13 The primary judge rejected, as in substance a complaint about the merits, the appellant's complaint about the Tribunal's conclusion that his claim to be at serious risk because of a blood feud was implausible. He was not persuaded that the Tribunal overlooked documents or witness statements. His Honour regarded the other criticisms as in substance criticisms about the weight or lack thereof which the Tribunal attributed to pieces of evidence in the course of its fact finding process. He was not persuaded that the Tribunal's weighing of pieces of evidence was inappropriate in the circumstances, and said that even if it were, error of that kind is not reviewable. Nor was his Honour persuaded that the Tribunal took into account irrelevant matters or left out of account relevant matters. Grounds of appeal Re‑cast social group 14 The appellant contended that the primary judge erred when he said the claim that the appellant was a member of the re‑cast social group had not been made in the visa application or before the Tribunal. He asserted, by reference to par [3] of his Honour's reasons, that the claim he made in his application and before the Tribunal included the following: · he would be killed as a result of a blood feud with another family in Albania · he had a well‑founded fear of being persecuted for the reason of his membership of a particular social group, namely his family, the male members of which were the target of the blood feud · the blood feud arose under customary Albanian law known as the Kanun · with the collapse of the communist regime in Albania and the ensuing lawlessness, the Kanun law re‑emerged and was followed in the northern parts of Albania from which the appellant came · the rules of a blood feud required a male member of one family to be killed as a matter of honour where a member of that family had been involved in the killing of a member of another family. 15 That is a fair summary of what the primary judge said, save that his Honour identified the social group propounded by the appellant as "his family". But there is no substance in the submission that in his visa application the appellant claimed to be a member of the re‑cast social group. In his visa application lodged on 2 November 1999 the appellant claimed membership of a social group, though he did not identify the group. In a letter to the Department dated 3 November 1999 his solicitors said their client "claims that he will suffer persecution in Albania as a result of his membership of a social group (namely the [named] family)". The solicitors said a more detailed submission would follow. In that submission (29 February 2000) it was said the appellant: "is a member of a family which is subject to a blood feud, or vendetta in Albania. He claims that he will be killed by a member of the opposing family if he returns to Albania. He therefore claims that he will suffer persecution as a result of his membership of a particular social group, namely the [named] family." Later in the submission, in the course of their summary of the applicable law, the solicitors said: "The reasons of persecution must be found in the singling out of one or more of the convention reasons. [The applicant] has been targeted because of membership of a social group. It is submitted that membership of a family is the classic 'social group'. His Honour was correct when he said that the re‑cast group was not propounded in the visa application. 16 The Tribunal recorded the appellant's claim that the family of the deceased person sought revenge and he feared for his life "because of his membership of his family and his family is a particular social group". This accords with the submissions made to the Tribunal by the appellant's solicitors. The submission of 29 November 2000 said the appellant "claims that he is a member of a particular social group, namely the [named] Family and that if he returns to Albania he will suffer persecution because of that membership". In the submission of 4 October 2001 the solicitors said the appellant "is targeted because of membership of a social group", that "membership of a family is the classic 'social group'," and that the appellant "is targeted because of his membership of the [named] family". In the submission of 9 November 2001 it is said: In [the applicant's] case his fear arose the moment he heard of the shooting by his father of Shan Laca. His fear is not dependent on any fear held by his father. He is fearful because of his membership of a family group. [The applicant's] father's fear, is also based on a Convention reason, namely his membership of the [named] family. … [The applicant and the applicant's father] hold a fear of persecution because of their membership of their family. It is submitted that s 91S is not intended to exclude genuine social groups claims based on family membership." It is clear that the primary judge was correct when he said the re‑cast social group was not put to the Tribunal. Further, it is to be remembered that after the completion of oral argument before his Honour, the matter had to be stood down so that the recast social group could be formulated. See [8]. That would not have been necessary had that been the way in which the group had been identified throughout. Common fear of persecution 17 The second ground of appeal is that the primary judge erred in concluding that the re‑cast social group comprised the whole community and would include everyone who for one reason or another had a well‑founded fear of persecution. It is said that the Tribunal had before it evidence that the social group did not encompass the entire Albanian community, and that the group is limited by factors including geographical location, education and wealth. The primary judge did not so err. In his description of the Code his Honour recorded that with the collapse of communism in Albania the Code "re‑emerged and was followed in the northern parts of Albania from which the applicant came". Later in his reasons he said the re‑cast social group "embraces everyone in the geographic areas of Albania where the customary law is being applied". After referring to the parts of the Code that were in evidence, his Honour said at [19]: "The Kanun is to be treated, at least in the geographical areas from which the applicant comes, as a law or practice of general application. Whilst the whole community may be subject to it, it does not render the whole community a particular social group for the purpose of the definition of 'refugee'." The appellant treats the "whole community" as meaning the whole Albanian community. However, in context, the primary judge's "whole community" is the community of the area in which the Kanun is applied, namely the northern parts of Albania from which the appellant came. The appellant's submission is based on a misreading of the primary judge's reasons, and must be rejected. 18 The appellant also submitted that the primary judge wrongly said that the re‑cast social group embraced everyone in the geographic areas where the customary law is applied. It was pointed out that the evidence was that not everyone in those areas acknowledges and observes, and is thus subject to, the customary law. Rather the evidence was that in the northern parts of Albania where the appellant lived, many of the families live by the old traditions. The appellant took issue with what he said was the primary judge's finding "that the only common characteristic of the putative social group would be a common fear of persecution". The appellant accepts that a particular social group cannot be defined solely by the common fear by its members of the persecution, but contends that this is not the feature which citizens of Albania who are subject to the Kanun have in common. What he says they have in common is · their adherence to a very old system of customary law which regulates many aspects of their values and relationships · a system of punishment for various antisocial acts which in some cases includes the taking of life · that since the collapse of communism in Albania the Kanun has now emerged in part of the country, giving rise to a very significant number of blood feuds. On the basis of the foregoing it is said that rather than having a fear of persecution in common, those who adhere to the customary law have in common an ancient and complex customary law system which unfortunately includes a "persecutory" component which the authorities effectively do not prevent. Then it is said that the recast social group can be similarly defined so as to include a common characteristic that is not the fear of persecution. 19 We need not enter upon a detailed examination of this complicated submission for three reasons. First, even assuming the primary judge wrongly described the recast group as one solely united by their fear of persecution, it is unrealistic to accept that the appellant fears persecution because of his membership of a group which adheres to a system of customary law which regulates many aspects of their lives and has a system of punishment for persecutory acts. Plainly he fears persecution either because of his membership of his family or because of a fear of reprisal because his father killed a member of the Laca family. Cf Skenderaj v Secretary of State for the Home Department [2004] 4 All ER 555 at 567‑568. If he did not belong to that family, or if his father had not killed the intruder, he would have no fear of persecution. In Applicant A at 285 Gummow J said: "However, numerous individuals with similar characteristics or aspirations do not comprise a particular social group of which they are members. I agree with the statement in Ram v Minister for Immigration (1995) 57 FCR 565 at 569: 'There must be a common unifying element binding the members together before there is a social group of that kind. When a member of a social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned in the eyes of their persecutors, so that it is a fitting use of language to say that it is 'for reasons of' his membership of that group.'" Secondly, the Tribunal found that the blood feud claimed by the appellant did not exist, and that he would not be persecuted for this reason if he returned to Albania. So long as that finding stands the appeal must fail, even if there is an error in the primary judge's treatment of the particular social group. The appellant has not attempted to confront that finding. Thirdly, as we have said, the recast social group claim was not put to the Tribunal, and it was not obliged to consider whether some other social group might be constructed to avoid the problem constituted by s 91S. Especially is this so where the recasting would not have assisted the appellant's claim that his fear was by reason of his membership of that group rather than membership of his family or because his father had killed the intruder. It follows from the above that the appellant's attempt to outflank s 91S, which applies only where the social group is the family, fails. Natural justice 20 The appellant contended that the Tribunal denied him natural justice because it failed to put to him any concerns it may have had about the evidence provided by Mr Game and Mr Rrotani. The Tribunal was under no obligation to do this. See Abebe v The Commonwealth (1999) 197 CLR 510 at [187] and [295]; Kioa v West (1985) 159 CLR 550 at 587; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590‑591; VBAU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1288. See also Muin v Refugee Review Tribunal (2002) 76 ALJR 966 at [265]‑[266] per Hayne J. Conclusion 21 The appeal must be dismissed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Carr, Finn and Sundberg.