STCB v Minister for Immigration and Multicultural and Indigenous Affairs

Section 91S 5 Section 91S of the Migration Act is central to the treatment of the applicant's claims both by the Tribunal and the primary judge. It is as follows: 'Section 91S 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.'

The Tribunal's Decision 6 The Tribunal found that there is a tradition of blood feuds in Albania. It held that the Albanian authorities have recognised this problem and have shown that they are willing to address it. The Tribunal accepted the appellant's claim that his family is involved in a blood feud because the appellant's grandfather killed a member of the other family. 7 The Tribunal held, however, that pursuant to s 91S of the Migration Act it must reject the appellant's initial submission that he feared persecution because of membership of a social group consisting of his family. The Tribunal considered that s 91S required it to disregard the appellant's fear because it arose from his being a relative of a person targeted for a non-Convention reason. In the Tribunal's words: 'No Convention reason for the blood feud has been submitted at any stage of the applicant's efforts to obtain a protection visa. 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, the Tribunal finds that the motivation of the [other family] to harm a member of the applicant's family is revenge for a murder committed by the applicant's grandfather. Revenge for a criminal act is not a reason for harm which comes under the Convention.' 8 In coming to this conclusion the Tribunal relied on a decision of Merkel J in SDAR v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 72 ALD 129 ('SDAR') and a decision of von Doussa J in SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548('SCAL') in which his Honour agreed with the conclusions of Merkel J in SDAR.

9 In considering the wider social group of which the appellant claimed to be a member, the Tribunal said that the potential social group of Albanian citizens who are subject to the laws of the Kanun could be said to comprise at least one third of the Albanian population, including men, women and children, people who live in rural or urban areas, people who are rich or poor, and people who are well-educated or not. The Tribunal observed: 'such a heterogeneous group of people could [not] sensibly be said to be united, cognisable or distinguished from the rest of Albanian society'

and concluded that the appellant did not have a well-founded fear of persecution for a Convention reason.

decision of the primary judge 10 After the Tribunal made its decision on 15 September 2003, a Full Federal Court dismissed an appeal from the decision of von Doussa J in SCAL. The decision of the primary judge in this case was that the Full Court decision in SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 301 ('SCAL FC') was determinative of the issues in this matter and he was bound to follow that decision. His Honour noted that this was 'candidly conceded' by the appellant and continued: 'The present matter, like SCAL, involves an alleged fear of persecution arising from an Albanian blood feud, in this case, the blood feud resulting from the killing by the applicant's grandfather of a member of the aggrieved family in 1944 or 1945. That family has declared its intention to take revenge. For present purposes, I am obliged to conclude that if the applicant did not belong to his family or if his grandfather had not killed a member of the aggrieved family he would have no fear of persecution. The particular social group to which he belongs is his family, and s 91S of the Migration Act 1958 (Cth), in the circumstances, precludes reliance upon fear of persecution by reason of his membership of that group for the purposes of an application for a protection visa.' For those reasons, his Honour dismissed the application. 11 Given the concession made before the primary judge and the course taken by his Honour, the decision in SCAL and SCAL FC warrant further consideration.

The Full Court decision in SCAL FC 12 The case also involved an Albanian citizen who claimed that his family was the target of a blood feud arising under the Kanun; this was as a result of his father shooting and killing an intruder who broke into the family shop in Shkoder. The Full Court noted at [7] that the Tribunal did not accept the applicant's claim to be the victim of a blood feud and for that reason concluded that there was no real chance he would face persecution on account of any blood feud or any other Convention reason if he were to return to his home village. In view of this finding it is surprising that, both at first instance and on appeal, there was detailed discussion of s 91S and its application to claims of persecution based on the existence of a blood feud. Referring to the Tribunal's finding that the applicant was not the victim of a blood feud, the Full Court commented at [19], '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'. 13 Despite this, the Full Court considered the primary judge's treatment of the particular social group. Before von Doussa J in SCAL, the applicant had initially relied on his membership of a particular social group consisting of his family group. In oral argument, he relied on a wider social group namely, 'citizens of Albania who are subject to the operation of the customary law Code of Lekë Dukagjini' or the Kanun. Von Doussa J said that this broad definition embraced everyone in the areas of Albania where the Kanun applied and held that, in those areas, it was a law of general application that extended to matters such as 'the boundaries of land, the seasonal movement of stock and the uncompromising protection of a guest'; SCAL at [19]. Von Doussa J held that although the whole community might be subject to the law it did not render the whole community a particular social group for the purposes of the definition of a 'refugee'. His Honour therefore rejected the wider social group referred to in oral argument as well as the narrower group 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.' His Honour found that the proper social group was that first put forward by the applicant, that is the family group, and held that s 91S precluded the applicant from relying on that ground. 14 In SCAL FC the Full Court held that the applicant's attempt to outflank s 91S failed for a number of reasons. First, the applicant had not put the wider social group formulated in oral argument before von Doussa J to the Tribunal. Second, their Honours rejected the submission that von Doussa J had erred in concluding that the wider social group 'comprised the whole community and would include everyone who for one reason or another had a well-founded fear of persecution'; SCAL FC at [17]. Their Honours held that this submission was based on a misreading of von Doussa J's reasons. Third, even if, as the applicant suggested, von Doussa J erred in describing the wider social group as one solely united by a fear of persecution. His Honour said, at [19], that it was: '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. …If he did not belong to that family, or if his father had not killed the intruder, he would have no fear of persecution.' [Emphasis added]

15 At the hearing of the appeal the appellant was given leave to file an amended notice of appeal which stated two grounds of appeal, which were that the Tribunal made jurisdictional errors by: (a) failing to make a finding, as required by s 91S of the Migration Act, of the reason for the fear of persecution or the persecution experienced by the appellant's grandfather; and (b) applying an incorrect test for identifying a particular social group, in that it failed to consider the subjective perceptions held by the Albanian community in considering whether the group 'Albanian citizens subject to the Kanun' was distinguished from that community at large. 16 Counsel for the appellant, Mr Ower,said that the concession his client made before the primary judge recognised that if the decision of the Full Court in SCAL FC is correct it is determinative of the appellant's claim and that, whether or not SCAL FC is correct, his Honour was obliged to follow it. On appeal the appellant's primary submission was that SCAL FC could be distinguished from the present case or, alternatively, it was submitted that the decision was wrong and that this Court should refuse to follow it. Mr Ower admitted that the former submission involved resiling, at least in part, from the concession that was made before the primary judge.

First ground of appeal: failure to determine the reason for the appellant's grandfather's fear 17 In relation to the first ground of appeal the appellant admitted that the mere inability of the state to protect its citizens is not enough to support the claim of persecution. This issue was addressed in Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at 13 where Gleeson CJ remarked that a State's failure to protect a victim from harm might be relevant to whether the victim's continuing fear of persecution is well-founded irrespective of whether it resulted from the state tolerating or condoning the behaviour or merely being unable to prevent it. The Chief Justice continued, 'Persecution may also result from the combined effect of the conduct of private individuals and the state or its agents … Where persecution consists of two elements, the criminal conduct of private citizens, and the toleration or condonation of such conduct by the state or agents of the state, resulting in the withholding of protection which the victims are entitled to expect, then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state.' 18 The appellant accepted as correct the Tribunal's statement that, under s 91S, where a person's fear arises because he or she has a relative who is or has been targeted for a non-Convention reason, the fear must be disregarded. Obviously this involves a finding that the relative's fear arises from a non-Convention reason. Mr Ower submitted, however, that the Tribunal did not make a finding as to whether the appellant's grandfather's fear was for a non-Convention or a Convention reason and its failure to do so is a jurisdictional error. In his oral submissions Mr Ower said, 'Our complaint is that the Tribunal has not undergone that analysis. It needed to distinguish between whether the grandfather was targeted because he was a member of a family, pursuant to customary law, or whether he was merely targeted because he had killed someone. In the latter case, it's a non-Convention reason and therefore the appellant's fear must be disregarded under s 91S, but in the former case the grandfather's fear is for a Convention reason, in that it's because of his membership of a social group, namely his family.' 19 In analysing the motivation of the other family there are two elements to consider, first the reason why that family would want to do harm and second the criterion for selecting a victim. It cannot be doubted that, irrespective of the identity of the potential victim, the motivation to do harm stemmed from the murder of a member of the other family. In fact this motivation was put to the Tribunal as an element of the appellant's claim. The Tribunal's finding, quoted at [7] above, shows that it accepted that the other family's motivation is 'revenge' for a murder committed by the appellant's grandfather. Similarly, the Tribunal accepted that the reason the appellant's family was involved in a blood feud was that the appellant's grandfather had killed a member of the other family. Implicit in this is an acceptance of the fact that the appellant might be targeted because of his relationship to his grandfather. Given those findings it beggars belief to suggest that the appellant's grandfather would be vulnerable for any reason other than that he was the killer. No analysis is required; the conclusion is inherent in the appellant's claim. It is obvious that this is a finding made by the Tribunal or perhaps more accurately, this is a fact that the Tribunal accepted as an element of the appellant's account. The argument that the grandfather might be targeted because he is a member of his own family is not only far fetched but also circular. This ground of appeal must be rejected.

Second ground of appeal: test used to determine membership of a 'particular social group'

20 The second ground of review concerns the identification of the group subject to the Kanun as a 'particular social group'. The Tribunal noted that: 'The potential social group of Albanian citizens who are subject to the Kanun could reasonably be said to comprise at least a third of the population of Albania, and includes men, women and children, people who live in urban areas and those who live in rural areas, people who are wealthy and people who are poor, those who are well-educated and have good jobs and those who have neither.' 21 The Tribunal did not accept that such a 'heterogenous group of people could sensibly be said to be united, cognisable or distinguished from the rest of Albanian society' and therefore held that they did not meet the requirements for a particular social group within the meaning of the Convention. The appellant claims that in reaching this conclusion the Tribunal erred because it did not take into account the subjective perceptions of the Albanian community. 22 Pursuant to s 36(2) of the Migration Act, the Tribunal, in assessing an application for a protection visa, must decide if the applicant is a person to whom Australia owes protection obligations under the Convention Relating to the Status of Refugees 1951. This involves determining if the person is a 'refugee' within the meaning of Article 1A(2) of the Convention which relevantly includes in the definition of 'refugee' a person who, 'owing to a well-founded fear of being persecuted for reasons of … membership of a particular social group … 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'. 23 For this aspect of the definition to apply, there must be a 'particular social group', the applicant must be a member of the relevant group and the applicant must have a well-founded fear of being persecuted for reasons of his or her membership of that group. 24 The principles applicable to the identification of a particular social group have been developed by the High Court in an number of cases and have most recently been expounded in Applicant S v Minister for Immigration and Multicultural Affairs (2004) 206 ALR 242 ('Applicant S'). Those principles, as articulated by Gleeson CJ, Gummow and Kirby JJ at 252, are: 'First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large.'

25 In Applicant S, the High Court referred to the view expressed by McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 264, that while shared fear of persecution cannot be the defining characteristic of the group, the fact of persecutory conduct 'may serve to identify or even cause the creation of a particular social group'. In their majority judgment in Applicant S, Gleeson CJ, Gummow and Kirby JJ held at 249-250 that, although the way in which the group is perceived by the community in the relevant country may be critical in most but not all cases, evidence as to this factor is not essential. Their Honours explained, 'The general principle is not that the group must be recognised or perceived within the society, but rather that the group must be distinguished from the rest of society.' 26 A claim to be a refugee based on membership of 'a particular social group' involves a claim that one has a well-founded fear of persecution for that reason. This raises the question whether it is necessary for the persecutor, at least, to perceive the group as a particular social group otherwise it might be thought there would be no basis for the claim that the putative refugee was targeted for reasons of his or her membership of that group. 27 In Applicant S however, McHugh J expressed the view, at 258-259, that it was not necessary even for the persecutor to have this perception: 'A person cannot have a well-founded fear of persecution within the meaning of Art 1A(2) of the Convention unless a real chance exists that some person or persons will persecute the asylum-seeker for being a member of a particular class of persons that is cognisable - at least objectively - as a particular social group. The phrase "persecuted for reasons of … membership" implies, therefore, that the persecutor recognises certain individuals as having something in common that makes them different from other members of the society. It also necessarily implies that the persecutor selects the asylum-seeker for persecution because that person is one of those individuals. But it does not follow that the persecutor or anyone else in the society must perceive the group as "a particular social group".' 28 His Honour emphasised that the group must be a 'social' group and it must be a 'particular' social group and pointed out that not every demographic division in of the relevant society will meet these criteria. McHugh J continued at 259-260: 'A demographic division of persons may constitute a group because, for statistical or recording purposes, those persons may be properly classified or considered together. Nevertheless, such a group of persons is not necessarily "a particular social group" within the meaning of Art 1A(2) of the Convention. Many demographic groups may constitute "a particular social group" for the purposes of the Convention. Aged persons, for example, are a demographic division and in many - probably most - societies are also generally regarded as a particular social group. However, that is because aged persons are perceived both within those societies and by those living outside those societies as having a recognisable and independent social presence. … A "particular social group" may exist although it is not recognised or perceived as such by the society in which it exists. For example, those who form the "particular social group" may be perceived by the society in which the group exists as aberrant individuals and may even be described by a particular name, yet the society may not perceive these individuals as constituting a particular group. Nevertheless, those living outside that society may easily recognise the individuals concerned as comprising a particular social group.' As an example, his Honour mentioned homosexuals in Bangladesh as a particular social group that is not recognised as such in the society in which it exists. 29 The above comments are, of course, directed to situations where there is no evidence of the relevant group being perceived by the society as a particular social group. Where there is evidence of such a perception his Honour accepted that it is 'usually compelling evidence that the relevant group is "a particular social group" in that country'; at 259. It is on this basis that the appellant submits that it was a jurisdictional error for the Tribunal to reject the claimed group as a particular social group without considering whether it was recognised as such by the greater Albanian community. 30 As noted at [9] above, the Tribunal dismissed the appellant's claim on the basis that Albanian citizens subject to the Kanun could not be 'united, cognisable or distinguished from the rest of Albanian society'. The Tribunal stated this conclusion following a lengthy quotation from the reasons of von Doussa J in SCAL and clearly intended to apply the same approach as his Honour; see [13] above. We see no error in the Tribunal's conclusion however other observations made by the Tribunal require comment. 31 The Tribunal said that the potential social group, 'includes men, women and children who live in urban areas and those who live in rural areas, people who are wealthy and people who are poor, those who are well-educated and have good jobs and those who have neither.' Although we agree that, in this case, that group is not distinguishable as a particular social group, it is not the presence of diversity that leads to this conclusion. Rather it is the absence of a common element that unites individuals and makes them a cognisable group within their society, and a target for persecution, that is the disqualifying factor. Left-handed people might also be wealthy or poor, rural or urban, well-educated or illiterate but if they are targeted for persecution because they are left-handed they may well become recognisable as a particular social group in their society; see Applicant A at 264. Von Doussa J's comment in SCAL at [21] is equally applicable here: 'The only particular social group that can be sensibly defined so as to include a common characteristic or element that is not the fear of persecution is the particular family group, that is the group whose members become subject to the risk of revenge because one of their number killed a member of another family. …it was, in the circumstances of this case, the proper description of the particular social group to which the applicant belonged.' 32 That being so, the Tribunal did not err in failing to take into account the subjective perceptions of the Albanian community. In the absence of the common element that would make the group a cognisable group within Albanian society there was no occasion for the Tribunal to consider the issue. 33 The appropriate order is that the appeal be dismissed with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Stone & Bennett.

Associate: Dated: 6 October 2004 Counsel for the Applicant: Mr SD Ower

Solicitor for the Applicant: McDonald Steed McGrath