SFQB v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application for an order of review of a decision of the Refugee Review Tribunal (the RRT) in which the RRT affirmed the respondent's delegate's decision not to grant protection visas. The decision of the RRT was made on 26 March 2002 and handed down on 19 April 2002. 2 The grounds of the application are: '1. The [RRT] erred in law in finding that section 91(s) of the Migration Act required it to disregard the fears of persecution on the part of the applicants; 1.1 The Tribunal erred in finding that the fear of persecution of male and female members of the applicant family was not for a Convention reason; and 1.2 The error referred to in par 1.1 herein is a jurisdictional error vitiating the Tribunal's Decision. 2. The applicant seeks to produce fresh evidence of events occurring after the Decision of the Tribunal giving rise to greater fears of persecution on her part, herself and her children; 3. The [RRT] erred in law in not considering separately from the applicants' claims for entitlement to refugee status the claims of her two children; and 4. The [RRT] erred in law in determining that section 91(s) of the Migration Act applied to the applicant when her application for a visa preceded its enactment.' 3 At the hearing all grounds apart from ground 1 were abandoned. The sole matter before the Court was the construction and application of s 91S of the Migration Legislation Amendment Act (No 6) 2001 (the amending Act). In particular, the applicants did not press ground 4. 4 The first applicant is the mother of the second and third applicants. The first applicant married her husband, Pjerin Kaftalli, on 14 June 1984. Their two children, the second and third applicants, were born on 31 May 1985 and 2 March 1988 respectively. Both the second and third applicants live with the first applicant in South Australia. The applicant's husband lives in Albania. 5 The applicants claim to be Albanian nationals. Their claim was accepted by the RRT. The first applicant claimed that she was a qualified dentist who completed her training in Albania in 1982 and was employed by the government in Albania until 1996 when she commenced work in private practice. It was her case that she remained in private practice until she left Albania in December 2000. 6 The applicants left Albania on 6 December 2000 and travelled on her passport and entered Australia on a medical treatment visa class UB Visitor P Subclass 675 which had been granted to the applicant on 2 August 2000 on account of a leg ailment suffered by her daughter. It was the applicants' case that they came to Australia for the specific purpose of obtaining medical treatment for the third applicant. 7 The applicants arrived in Australia on 8 December 2000. The first applicant applied for a protection visa on 8 March 2001. 8 That application was refused on 5 July 2001 by a delegate of the respondent. On 9 August 2001 the applicants applied to the Refugee Review Tribunal (the RRT) for a review of that decision. On 26 March 2002 the RRT, in written reasons which were handed down on 19 April 2002, affirmed the Minister's delegate's decision not to grant a protection visa. This application for a review of the RRT decision was filed in this Court on 6 February 2003. 9 This is the applicant's second application for a review of the RRT decision. On 28 May 2002 the applicants made an application to this Court to review the RRT's decision but on 19 August 2002 the first applicant discontinued the application. It is her evidence that she did so upon the advice of her migration agent. 10 Her evidence is that on 5 February 2003 she received advice from her now counsel, Mr Gordon Barrett QC, 'that I may have a further right of appeal to this Honourable Court in consequence of the recent developments involving my family in Albania and, further, in reliance upon the decision of the High Court of Australia with respect to the case of Plaintiff S157/2002 v Commonwealth of Australia (2003) HCA 2 (4 February 2003)'. 11 The fresh evidence ground (ground 2) was abandoned at the hearing of this application. 12 The applicants have sought an extension of time within which to file and serve the application for review because 'an extension of time is required because a notice of appeal was not filed and served within the time limited by O 52 r 15'. Such an application is misconceived. The procedure presently before the Court is not an appeal but an application for review of an administrative decision pursuant to s 39B of the Judiciary Act 1903 (Cth). The primary relief sought in this application is 'an order that a writ of certiorari be issued quashing the decision' of the RRT. Whilst the High Court Rules provide for a six month time limit for the filing of such applications (O 55 r 17), no time limit is fixed by the Federal Court Rules. 13 The applicants sought a protection visa on the ground that the first applicant feared persecution because of a blood feud between members of her family and another family in Albania arising out of an incident which occurred on 5 December 1997. 14 Her case before the RRT was that on 5 December 1997 four masked and armed men, who belonged to a family by the name of 'Baba', entered a coffee shop in Shkoder run by the applicant's brother and her brother-in-law (her husband's brother) and demanded money. The demand was refused and her brother and her brother-in-law exchanged shots with the intruders and two of the intruders were injured. It was the applicant's case before the RRT that the families of the proprietors of the coffee shop, namely her brother's family and her husband's brother's family, have suffered reprisals at the hands of the Baba family and, as a result, the extended families fear persecution by the Baba family. 15 The first applicant said that on each of the three anniversaries of the original incident, 5 December 1998, 5 December 1999 and 5 December 2000, masked men came to her dental surgery demanding money with menaces and threatened her that, if she did not pay, her husband and son and members of other families would be shot. On each occasion the intruders claimed that their actions were part of the blood feud arising out of the coffee shop incident. 16 Her case before the RRT was that the last occasion was particularly terrifying. The RRT has recorded her case in the following terms: 'Two men came into the surgery at closing time, each carrying a 3 foot steel rod. They shouted "you owe us blood". They tied and gagged her female colleague and then they grabbed the applicant mother, tied her and gagged her and then each of them raped her. The applicant mother claims that she lost consciousness for a short period. The men said to her colleague that the next occasion would be worse, and it would be the applicant's daughter's turn next. The men smashed all the surgery equipment. The applicant mother claims that she did not tell her husband for fear that he would leave the house and go and look for her attackers, and he may have been killed doing this.' 17 It was the applicant's case that she left for Australia the next day. 18 Blood feuds are not uncommon in Albania. They are based on revenge and they are recognised in the Albanian traditional law codified during the rule of Leke Dukagjini. The code is known as the 'Kanun' of Leke Dukagjini. 19 The Tribunal accepted a number of reports which recognised the Kanun as a system for administering justice in northern Albania which historically has remained isolated from central government law. The Kanun recognises revenge killings between families. The Kanun has emerged as a system of 'justice' which is being used to compensate for a weak and corrupt judicial system. Some blood feuds can last for generations. 20 The country information included the following: 'The Kanun is being used to compensate for a weak and corrupt judicial system, as well as the fact that for too long now it has become the accepted tenet that Northern Albania is beyond the rule of law, that the government has no jurisdiction in the north, and so the north must rely upon its own customary law to provide justice for its citizens.' 21 The applicants' case, put shortly, was that they were members of a family which was part of a blood feud. As such they were liable to persecution at the hands of the Baba family and that the State offered no protection to a person in those circumstances. 22 I think it is fair to say that the RRT doubted the first applicant's account of events in Albania but it is also true to say, as counsel for the respondent properly conceded, the RRT did not make a finding rejecting her account. In the end result the RRT reached its decision on its interpretation of s 91S of the amending Act. 23 Section 36(2) of the Migration Act 1958 (the Act) provides that a criterion for the grant of a protection visa is that the applicant for the visa is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The Refugees Convention is the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951: s 5. Whether a person be a refugee will depend on whether that person can establish that: '… 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 outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.' 24 The applicants claimed that as a member of a family they came within the term 'membership of a particular social group'. In Minister for Immigration & Multicultural Affairs v Sarrazola [2001] FCA 263 Heerey, Sundberg and Merkel JJ held that membership of a family could satisfy the test of membership of a particular social group: see also Sarrazola v Minister for Immigration & Multicultural Affairs [1999] FCA 101 and Giraldo v Minister for Immigration & Multicultural Affairs [2001] FCA 113. 25 There is nothing surprising about the proposition that being a member of a family could amount to membership of a particular social group for Convention purposes. A family is a recognisable unit. Families large and small operate as social groups. The only difference between a family and some other social group is that membership of a family is by birth rather than election. However, in my opinion, nothing turns on that. The purpose of the Refugees Convention is to protect persons of recognisable units and a family is as recognisable as any other social group. Indeed in many cases it would be easier to identify membership of a family and thus a particular social group than many other social groups. 26 Therefore the applicants' case was that membership of a particular social group, being the applicants' extended family, brought them within a group of people who might be refugees. 27 Indeed the Act and particularly s 91S of the Act recognises a family as a unit which could be described as a particular social group and a family member as one who might have membership of that particular social group. 28 Section 91S, which was contained in the amending Act,was assented to on 27 September 2001 and commenced on 1 October 2001. It now forms part of Subdiv AL of Pt 2, Div 3 of the Actwhich is the subdivision dealing with 'Other Provisions about Protection Visas'. 29 Part 2 of Sch 1 of the amending Act deals with the application of the amendment. It provides that Subdiv AL of Div 3 of Pt 2 of the Act applies in relation to: '(a) … (b) … (c) An application for a protection visa made before the commencement of this item, where: (i) a decision to refuse to grant the visa was made before that commencement; and (ii) an application for review of that decision is or was made to the Refugee Review Tribunal or the Administrative Appeals Tribunal (whether before, at or after that commencement); and (iii) the Refugee Review Tribunal or the Administrative Appeals Tribunal made a decision on that review after that commencement.' 30 In this case the delegate's decision to refuse to grant the visa was made on 5 July 2001 (before the date of commencement of the amending Act): (c)(ii). The applicants applied for a review of that decision on 9 August 2001 (before the commencement of the amending Act): (c)(ii). The RRT decision was made on 26 March 2002 and published on 19 April 2002 (after the commencement of the amending Act): (c)(iii). 31 Section 91S therefore applied in the review of the delegate's decision in respect of the applicants' application for a protection visa. 32 Section 91S provides: 'Membership of a particular social group 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.' 33 Section 91S was considered in SDAR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1102 (SDAR). In that matter two arguments were advanced: 'The first argument was that the RRT wrongly interpreted s 91S which, so it is contended, does not prevent regard being had to the applicant's fear of being targeted for persecution by reason of his family membership as that fear is not derived from and is independent of the persecution or fear of persecution for a non-Convention reason experienced by his cousin as another member of the family group. Rather, so it is said, the applicant's fear is for a Convention reason as the fear is based on evidence that the applicant will be targeted in his own right as a family member, rather than on evidence that his cousin will be targeted. The second argument was that, if the interpretation of s 91S by the RRT was correct, then the section inappropriately limited the definition of a refugee in Art 1A of the Refugees Convention, with the consequence that the enactment by the Commonwealth parliament of the Refugees Convention into Australian law is not supported by s 51(xxix), the external affairs power of the Commonwealth, or by any other head of power under the Constitution.' 34 Both arguments were rejected. I have set out the arguments in detail because it is difficult to distinguish those arguments from those advanced to me. 35 Mr Barrett QC who appeared for the applicant put three arguments in respect of s 91S in support of his proposition that s 91S had no application to the applicants' claims. 36 First he argued that it had to be assumed that any persecution for Convention reasons was irrational. The reason why the victim was persecuted was irrelevant because it had to be assumed the reason was irrational. It is irrational because the victim has not provoked the persecutor into the ill treatment other than by being a member of a group. It is not relevant, he argued, to explore the persecutor's reasons. Because the applicants were members of a particular social group, so the argument went, the Court can assume without further enquiry that they are being persecuted or have a well-founded fear of persecution. I think the argument was that no further enquiry needs to be made so therefore s 91S has no work to do. 37 I confess I have some difficulty with this argument. I am prepared to assume that persecution for a Convention reason is irrational. I cannot see however where that takes the applicants in a consideration of their claims or the application of s 91S. 38 In the end result persecution is only for a Convention reason if a person is being persecuted 'for reasons of' any of the matters that follow in the Convention definition. Persecution for any reason apart from race, religion, nationality, membership of a particular social group or political opinion is not persecution for a Convention reason. Whether the persecution is for an irrational reason or not, the applicants cannot bring themselves within the definition of refugees in the Convention unless they can show that they have a fear of persecution for reasons of membership of a particular social group. It follows that that argument must fail. 39 Secondly he argued that s 91S should be construed consistently with art 1A of the Convention. He said that in those circumstances s 91S should not be construed as limiting the Convention. It was put that s 91S was inconsistent with the Convention and that s 91S had to yield to the Convention. That argument I think is a variation of the second argument put to Merkel J. The premise in the argument put to me is that the Parliament cannot, for reasons unstated, limit the application of the Convention in applications for protection visas. 40 Section 36 adopts the Convention as a criterion for the purpose of granting a protection visa. The Parliament could have adopted whatever criterion it wished. In this case it adopted art 1A of the Refugees Convention. Parliament can also change that criterion. It could do so by deleting all reference to the Convention or the Protocol and include some other and quite different qualifying condition. There is nothing that requires the Parliament to adopt the Convention as the criterion for the grant of a protection visa. It is only part of the domestic law if the Parliament incorporates it into law by statute: M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 290; Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287. There were no doubt good reasons to adopt the Convention as the criterion for the grant of a protection visa. Apart from the obvious good sense in the Convention, it allows Australia to discharge its international obligations as a signatory to the Convention. 41 Not only could Parliament delete all reference to the Convention and Protocol in s 36 but Parliament could also remove a particular object from the terms of the Convention. For example, Parliament could, if it wished, pass an Act which required the Minister or the delegate considering the application for the protection visa to not have regard to the question of religion in considering whether a person has a well-founded fear of persecution. 42 The criteria for the grant of a protection visa are matters for the Parliament and the Parliament is not bound to use the Convention as the sole criterion, but if it does use the Convention as the criterion, it is not prevented from requiring the Minister or the delegate to understand the Convention in a particular way. 43 Of course s 91S must be construed by reference to the Convention because it relates to the Convention. However, s 91S is not to be read down, as Mr Barrett argued, as inconsistent with the Convention. Section 91S is, in effect, no more than a definition section. It requires the Minister and the delegate to read the Convention having regard to the matters in s 91S. I reject the second argument. 44 The third argument was that s 91S does not do what it intends to do. That requires first determining what is its intendment. 45 The purpose for the enactment of s 91S was explained by the Minister in his Second Reading Speech (House of Representatives, 28 August 2001, Hansard 242) in the following terms: 'The legislation would also provide that to invoke protection the Convention reason must be the essential and significant reason for the persecution. The convention was not designed to protect people who fear persecution for personal reasons that have little or nothing to do with the Convention - for example, because they have failed to pay their family's debts. Yet a recent Federal Court case provides for this very scenario. The legislation will also prevent people from using elaborate constructs to claim that they are being persecutedas a member of a family and thus under the convention ground of a particular social group, when there is no convention related reason for the persecution. This will remove a potential avenue for criminal families to claim protection on the basis of gang wars - not those the government would see as warranting international protection.' 46 In SDAR Merkel J rejected an applicant's claim based on similar facts and circumstances to the matter before me. He said [24]: 'It is my view that, properly construed, the fear of persecution and persecution referred to in s 91S is a fear and persecution for the reason that the person is a member of a particular family, another member of which fears persecution or has been or may be targeted for persecution for a non-convention reason. As a consequence of that non-convention fear or persecution, the fear or persecution of other family members by reason of their family membership is to be disregarded. Thus, where a family member's fear of persecution has arisen because another family member's criminal debts have not been paid, or because a blood feud has arisen from or been associated with the unlawful act of another family member, that fear of persecution and persecution is to be disregarded.' 47 In QAAD v Minister for Immigration & Multicultural Affairs [2002] FCA 1038 at [8] Kiefel J said: 'If the Tribunal was to assume that a blood feud existed, it was the father who was the person targeted. Section 91S … had the effect that a relative of a person targeted for a non-Convention reason is not thereby to be taken as a person persecuted for Convention reasons.' 48 I agree, with respect, with their Honours' construction of s 91S. 49 Section 91S applies to the objects of the Convention contained in 'membership of a particular social group'. It only applies if the claimed persecution is by reason of a membership of a family. It applies in circumstances where the Minister or the delegate has to consider whether the applicant has a well-founded fear of being persecuted by reason of membership of that family. In those circumstances the person considering the application must disregard any fear of persecution that any other member or former member of the family has ever experienced, where the reason for the fear of persecution is not a reason mentioned in art 1A(2) of the Refugees Convention, and to disregard any fear of persecution or any persecution that the applicant has experienced where it is reasonable to conclude that the applicant's fear of persecution or persecution would not exist if it were assumed that the other member of the family had never experienced a fear of persecution or any other persecution. 50 In my opinion s 91S was intended to apply in the very circumstances of the applicant's case. In this case the applicant claims to have a well-founded fear of persecution because members of her family have experienced persecution for reasons apart from the reasons mentioned in art 1A(2) of the Refugees Convention. 51 The parties agreed that if I rejected the applicant's contentions in respect to the construction of s 91S the application for the review had to be dismissed. 52 I have rejected those arguments. The application for review is dismissed. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.