STCB v Minister for Immigration and Multicultural and Indigenous Affairs

STCB v Minister for Immigration and Multicultural and Indigenous Affairs - [2006] HCA 61 - HCA 2006 case summary — Zoe

[18]

Before the delegate of the first respondent the appellant apparently relied only on membership of one social group - his family. Before the Refugee Review Tribunal ("the Tribunal"), as in the Federal Court and as in this Court, he relied on membership of a second social group - "Albanian citizens who are subject to the customary law". It is no doubt not a coincidence that the appellant first came to rely on the second social group after s 91S was enacted and after the first respondent's delegate had applied s 91S to reject the appellant's claim to a protection visa based upon his membership of the first social group. In this appeal the appellant has relied on both social groups.
On 15 September 2003 the Tribunal affirmed the delegate's decision not to grant a protection visa.
The Tribunal accepted the appellant's claim that his family was involved in a blood feud with the Paja family because the appellant's grandfather had killed a member of the Paja family in 1944-1945. It also found that there was a tradition of blood feuds in Albania, particularly in the north, and that these feuds had revived after many years of repression by the Communist regime in power until 1991-1992. However, it found that the Albanian authorities had recognised, and shown willingness to address, the problems presented by blood feuds. Further, the Tribunal found that the motivation of the Paja family to harm a member of the appellant's family was revenge for the murder committed by the appellant's grandfather, and that fear of revenge for a criminal act was not fear of persecution for a reason falling within the Convention definition of persecution. The Tribunal considered that s 91S prevented it from having regard to any fear of persecution on the appellant's part arising from the fact that he was a member of a family, another member of which feared, or had feared, persecution for a non-Convention reason.
The Tribunal also rejected the appellant's alternative claim to be a member of a social group comprising Albanian citizens subject to the customary law. The Tribunal said that it was necessary, for persons to form part of a "particular social group", that they share a characteristic, other than a common fear of persecution, which sets them apart from society at large. The Kanun was, at least in the north of Albania, a law or practice of general application. The population affected was too heterogeneous to be regarded as having a characteristic distinguishing them from the rest of Albanian society.

[31]

Subject to certain contentions of the appellant to be considered below, s 91S is fatal to the appellant's claim that he fears persecution for the reason of membership of a particular social group that consists of his family.
It was implicit in the appellant's claim to the Tribunal that at the time his grandfather killed a member of the Paja family in 1944-1945 the Kanun was still in operation, the Communist regime having not yet stamped it out; hence the grandfather must have feared revenge for the murder. Indeed, although there is no explicit finding on the point, the appellant did tender material to the Tribunal suggesting that the grandfather had left his village after the murder, and the Tribunal did not criticise that evidence.
The Tribunal set out without criticism the following account given by the appellant. The appellant first heard of the threats of the Paja family to kill either himself or his brother on 1 September 1997, while he was living with his father and mother. After his father's death in October of that year he then moved with his brother to his uncle's home: this was a means of obtaining sanctuary from the Paja family, since under the Kanun, if they killed him in the home of his mother's relatives, they would end up in a feud with that family. He lived there until he left for Australia in 2000. His brother lived there until he left for Italy on or about 1 March 2000. His brother's residence outside Albania was a secret, because it was not safe for him to live in Europe otherwise in view of the ease with which Albanians could travel there. In addition, the appellant accepted an assumption in one of the Tribunal's questions that he and his brother had a strong interest in staying in touch so that they would know if there were any developments in the blood feud. It follows that the brother must have been aware of the blood feud and feared being killed as a matter of revenge, and the same is true of the appellant's father during the short period between learning of the blood feud and dying.
The failure of the Tribunal to criticise this account, and its acceptance of the appellant's claim "that his family is involved in a blood feud with the Paja family because the [appellant's] grandfather killed a member of the Paja family in 1944-45", suggest that the Tribunal made implicit findings that this account was correct.
Applying s 91S(a), it is clear that the grandfather had a fear of persecution for a reason other than those mentioned in Art 1A(2) of the Convention - revenge for murder. Section 91S(a) requires that fear of persecution to be disregarded. Section 91S(b)(i) requires the appellant's fear of persecution to be disregarded, for it is reasonable to conclude that that fear would not exist if the grandfather's fear had never existed. And s 91S(b)(ii) requires that the brother's and the father's fear of persecution be disregarded, for it is reasonable to conclude that neither of those fears would exist either if the grandfather's fear had never existed. The result of disregarding the fears of persecution of the grandfather, the appellant, the father and the brother is that the appellant is to be treated as not having a well-founded fear of persecution for the reason of membership of a particular social group that consists of the appellant's family.

[37]

The appellant is correct to suggest that s 91S required the Tribunal to consider each of the questions posed by s 91S(a) and (b) before determining that it could disregard the appellant's fear of persecution in this case. However, it did this to the extent necessary.
When the Tribunal accepted the appellant's "claim that his family is involved in a blood feud with the Paja family", it accepted that at least the following members of the appellant's family feared persecution by the Paja family - the appellant's grandfather, the appellant's father, the appellant's brother and the appellant himself. As indicated earlier, this proposition was inherent in the appellant's claim and in what he told the Tribunal. So far as the appellant was suggesting that other members of his family feared persecution, that suggestion was also accepted by the Tribunal when it made that finding. The appellant criticised the Full Court for using similar reasoning in relying on matters inherent in the appellant's claim in relation to the vulnerability of the appellant's grandfather, and submitted that this was an attempt to remedy the defects in the Tribunal's decision by constructing its own findings of fact to fill the vacuum left by the failure of the Tribunal to make them. This is not a sound criticism. An appellate court which elucidates, by analysis, the findings of another body in the light of unchallenged factual averments by a claimant is not "constructing" its own different findings. The first step in the appellant's argument thus fails.
So does the next step. The relevant finding is that the reason for the persecution is not just "revenge", but "revenge for a criminal act". While some types of revenge may be motivated by Convention reasons, the Tribunal did not deflect itself from inquiring whether revenge for the grandfather's criminal act was within Art 1A(2): it explicitly and correctly found that it was not. The appellant put a submission that the grandfather had a fear of persecution by reason of being a member of his own family rather than by reason of his crime. This submission must be rejected, because the appellant did not suggest before the Tribunal that any aspect of the grandfather's membership of the family was relevant to the blood feud: the only matter relevant to it so far as he was concerned was his crime. As the Tribunal noted, the appellant never submitted that the desire for revenge against the appellant's grandfather was Convention-based. The appellant's arguments on this point ultimately boil down to a complaint about a finding of fact, rather than a jurisdictional error.
The dichotomy in the next step of the appellant's argument - between whether revenge was sought against the appellant's family as individuals, or as members of the family - is not a helpful one. Revenge was sought because of their relationship with the grandfather, whose crime had triggered the Paja family's desire for revenge. While Minister for Immigration and Multicultural Affairs v Sarrazola (No 2)[16] held that a family was capable of constituting a particular social group, and while s 91S preserves that possibility, s 91S reverses another aspect of that case so far as it permitted claims of persecution by one family member deriving from persecution of another for non-Convention reasons. The appellant's reliance on that case flies in the face of its reversal by s 91S. The appellant's criticism of Merkel J[17] for treating the reversal of that case as significant for Albanian blood feud cases is thus groundless.
The appellant's final submission, that the Tribunal did not expressly consider the application of s 91S(b), must be rejected. In the present case the Tribunal's conclusions about s 91S(a) meant that the answers to the s 91S(b) issues were inevitably adverse to the appellant. The want of express consideration of s 91S(b) is therefore not a sign of any jurisdictional error.

[74]

It follows that the statement that the appellant's "fears are not well-founded", read in this context, must be understood as meaning no more than that the appellant's fears were not "well-founded" for "a reason which comes under the Refugees Convention". Read as a whole, the Tribunal's reasons accept the existence of "fear" and that such fear was for a reason flowing from the revived operation of the Kanun. The Tribunal simply concluded that the appellant had failed to engage the Refugees Convention because he had not identified a "particular social group" of which he was a member. But for that, every other component of a valid claim for protection was established.
The unwillingness to avail himself of the protection of his country of nationality was not concluded against the appellant. The Tribunal accepted that the Albanian authorities had "recognised" the problem presented by blood feuds. But it noted the revival of such feuds after the overthrow of Communist rule. The Home Office report (and much other uncontested information in the record) sustained the conclusion about the revival of blood feuds; their widespread impact; the imperfect response of the Albanian authorities to the danger; and the fear that such blood feuds occasioned to their victims.
The victims of blood feuds: It is important to recognise that the appellant's case was not only that he suffered from "fear" but that, as a victim of a blood feud that actually put his life in danger, his "fear" was for the reason of an inhumane practice alien to civilised societies and contrary to the appellant's most fundamental human right, the right to live, free from such violent inter-generational vengeance[42].
The country report on Albania which the Tribunal apparently accepted (having included a large extract in its reasons without criticism or qualification) makes it clear that the blood feud rule, of which the appellant complained, was a very real phenomenon, especially in particular areas of Albania; that a large portion of the population were affected by it; and that governmental attempts to respond to its revival were commendable but inadequate and significantly ineffective.
The following is the key passage from the Home Office report, quoted by the Tribunal[43]:

[97]

This consideration in the Tribunal's reasons was therefore, likewise, erroneous and irrelevant. If such a consideration disqualified a person from being a member of a "particular social group", it would equally have disqualified Ms Khawar. Yet this Court upheld her entitlement to relief.
Thirdly, so far as the Tribunal rejected the appellant's claim on the basis that the "particular social group" that he secondly nominated could not "sensibly be said to be united"[61], this too indicates error. It appears to hark back to the notion that a "particular social group" is "united" in the sense of members of a club or a beleaguered aristocracy[62]. The possession of such unity on the part of a "social group" has long since been rejected as a matter of law. In Applicant A[63], the Minister did not support the proposition that associational membership was necessary or sufficient to establish the existence of a requisite "group". Many "social groups" that have been accepted by this Court were not "united". Indeed, of their nature, many members of such groups would not be known to other members. To be "united" could be very dangerous for them. The position of homosexuals in some countries[64] and Muslim apostates in their home countries[65] are illustrations of this fact. To demand that the social group should be "united" is clearly erroneous in law.
Fourthly, the Tribunal, in describing the further criterion that it applied to the appellant's second postulated "particular social group", also rejected that social group because it "could [not] sensibly be said to be … cognisable or distinguished from the rest of Albanian society"[66]. However, this too constitutes error when measured against the "particular social group" accepted in Khawar. Women in Pakistan, as such, might indeed be "cognisable or distinguished" from the rest of Pakistani society. But of their nature, the more particular categories accepted by the other members of the majority in Khawar would not be "cognisable or distinguished" in the way described. Of its very nature, the situation of women in their private circumstances in their own households, the subject of domestic violence from their husbands or their husbands' families, would quite often not be known to, or distinguished from, the rest of their society. That, indeed, was the complaint of such women, namely, that the people within their homes from whom they ought to receive protection, their husbands, were unwilling to give it or, indeed, supported the oppressive conduct.
Fifthly, there are important factual similarities between the categories of women accepted in Khawar as potentially constituting a "particular social group" and the persons in the sub-class of the Albanian population to which the appellant belonged and upon which his claim relied. Each was a member of a large and disparate group in society. Each, by reason of cultural norms, was commonly confined to the home. Each was oppressed by behavioural features of the society which constituted an affront to fundamental human dignity and human rights. Indeed, each was at risk of losing life itself. And each was unable to look to the authorities for effective and reasonable protection from those non-state agents which were the instruments occasioning their fear and initiating their flight in order that they might remove themselves from such an intolerable situation.
Relevant overseas decisions: In both Canada and the United Kingdom, Albanians the subject of blood feuds have been recognised as falling within a particular social group for Convention purposes. In Pepa v Canada (Minister of Citizenship and Immigration)[67], the Federal Court of Canada overturned a decision of the Immigration and Refugee Board, in which the Board concluded that the applicant, a victim of the Kanun, was not a member of a particular social group entitled to Canada's protection. The Board had erred in concluding that because the acts of vengeance had arisen out of a "private vendetta", they could not be said to have been performed for a Convention reason. In reaching this conclusion, the Board had focused, "incorrectly, on the perpetrators and not on the victims".
In the United Kingdom, the question of whether the subject of a blood feud is a member of a particular social group will depend on the facts of the case[68]. In the recent case of Brozi[69], the Immigration Appeal Tribunal ("the IAT") concluded that the applicant, a victim of a blood feud, did belong to a particular social group and was therefore entitled to protection. On the issue of State protection, the IAT concluded that "[t]he Albanian government does not have in place a system which offers sufficiency of protection. There is no reasonable willingness by the police to detect, prosecute and punish those responsible for blood feuds." Whilst State protection is assessed on a case-by-case basis, it was said in Brozi that there will generally be an insufficiency of protection in Albanian blood feud cases. The same result was reached in the case of Koci v Secretary of State for the Home Department[70].
Once again[71], this Court adopts an approach to the Refugees Convention that is out of line with the standards of the High Commissioner for Refugees and different from that adopted by other countries of asylum. For my own part, in the local application of international treaties to which Australia is a party, I would not adopt such a narrow approach.
Conclusion: an incorrect test: The result is that the Tribunal misdirected itself by its reference to irrelevant considerations. It is not a requirement of a "particular social group" that the group must:

[100]

Provision of reasonable protection? But can it be said that it would be futile to return the matter to the Tribunal because, even if it confined itself to relevant considerations, it would be bound, on the appellant's second category, to come to an adverse conclusion? Such arguments were strongly pressed upon this Court in Khawar, as members of the Court recognised[72]. Indeed, this was the basis upon which Callinan J dissented in that case[73]. Thus, if, contrary to the lengthy extract from the Home Office report, the Tribunal were to conclude in the present case that, at the time of its decision, based on up-to-date country information, the government of Albania had blood feuds under reasonable control and gave adequate protection to those who feared the application of the Kanun, the Tribunal might indeed conclude that the appellant's fears were not well founded. In such circumstances the fears would not sustain the appellant's unwillingness to look to his country of nationality for protection.
A private dispute? Likewise, if, on a rehearing, the Tribunal were to conclude that the appellant did not have a well-founded fear of being persecuted "for reasons of … membership of a particular social group"[74], but for reasons of some purely private animosity on the part of the Paja family[75], the claim under the Refugees Convention might, on those new facts, be rejected. Establishment of the existence of a "particular social group", or even of membership of such a group, is not sufficient to assure entitlement to protection. The causal connection between an established "fear" and membership of such a "social group" must be demonstrated. However, on the basis of the Tribunal's earlier finding, adverse conclusions on these issues would appear unlikely. They would not warrant this Court's refusal of relief at this stage.
Can it be said that the appellant would be bound to fail either because he could not demonstrate "persecution" within the meaning of the Convention[76]; or because, however refined and re-expressed, the "social group" to which he claims membership is not adequately "particular" or sufficiently analogous to others that have been recognised by this Court?
Absence of persecution? As to proof of "persecution" there are still issues of uncertainty in Australian law concerning the extent to which the actions of non-state agents may amount to "persecution" to which the Refugees Convention responds[77]. Those uncertainties have been examined in several cases of which Khawar was one. It is settled law in this country that nation States are not obliged to eliminate all risks of harm or to guarantee the safety of their nationals in all circumstances[78]. The Refugees Convention was written against the background of circumstances in which countries have varying resources with which to afford protection to their nationals against the acts of non-state entities.
Nevertheless, it is now clear, at least in Australia, that the Refugees Convention is not confined to affording protection against the affronts to fundamental human rights by agents of the State in the country of the putative refugee's nationality. I remain of the view, derived from successive opinions of the House of Lords[79], that the applicable law in this regard can be summed up in the descriptive formulation:

[105]

The three-fold test: Against this background, I come to apply the three steps for the ascertainment of a "particular social group" explained in the joint reasons in Applicant S v Minister for Immigration and Multicultural Affairs[86]. Accepting that test for the purposes of the Refugees Convention, are the three steps fulfilled in the appellant's case? Approaching the case in the way explained by Applicant S, would it be open to the Tribunal to reach a conclusion in favour of the appellant?
The first requirement is the possession of an identifiable characteristic or attribute common to the members of the posited group. On the basis of the country information, quoted by the Tribunal, there is evidence to support such common characteristics or attributes. The applicable features involve being citizens of Albania, caught up in a blood feud, subject to the Kanun and (perhaps) forced into self-imprisonment for their own safety because of the incapacity or unwillingness of State agents to protect them. The geographical origin of most such people, being from the north of Albania, where the Kanun is still strongly observed, may be a further feature of the group to which the appellant belongs. On the basis of the country information cited, there would be no doubt that, in Albania, "self-imprisonment", in fear of such blood-feud vengeance, exists; is well known as a social phenomenon; and is widespread. The "group" involved does not comprise trivial numbers.
The second step requires that the relevant characteristic or attribute is not solely the shared fear of persecution. That step may be taken. This is not a case of random violence or the total breakdown of law and order. The joint reasons postulate that the appellant's "social group collapses" because in truth he is "not subject to customary law, but to gangs of criminals acting in the name only of customary law"[87]. With respect, I see no hint of this factual conclusion in the Tribunal's reasons. It would mean that thousands of Albanians condemned to self-imprisonment are mistaken in their belief that the risk they face arises from the blood debt exacted by the Kanun. It should be left to the Tribunal, not this Court, to reach such a conclusion.
Moreover, simply because conduct is "criminal", does not mean that it is committed for a solely "criminal" purpose, or that it is being performed by "crime gangs" with no motivation other than "criminal revenge". Acts of violence are often "criminal", and claims of persecution are usually supported with reference to persecutory conduct that entails "criminal" behaviour. This should not be taken to exclude the possibility that the conduct has also been committed for a Convention reason, as it was in this case.
Nor can it be said that members of the appellant's social group are defined solely by their mutual fear of persecution. The cause of the fear in the appellant's case, according to his evidence, preceded the identification of the group[88]. That cause is the revival in recent years of the operation of the Kanun, previously suppressed, and the imposition of the serious risk of inter-generational violence for innocent victims such as the appellant. It affected many others in a like position.
The third step requires that the nominated characteristic or attribute of the posited group should distinguish it from society at large. According to the country information, the victims of the Kanun can be identified by reference to its rules. Those rules are written down and their force has lately been revived. The rules do not provide general protection. If they are applied, the ordinary Albanian may, according to the country information quoted by the Tribunal, still be subject to corruption, violence and general lawlessness. But he or she will not be forced to hide to escape the vengeance of another family for a wrong done years ago by a blood relative. The Kanun is quite particular in this respect. It distinguishes a person such as the appellant from other citizens of Albania at large. The Kanun rules may seem inhumane, irrational and unjust to Australians. But, on the evidence, it would be open to the Tribunal to conclude that those rules would be well known, and understood, in Albania, particularly amongst people from the north.
Conclusion: rehearing required: The result is that the Tribunal, which reached its conclusion before Applicant S was decided by this Court, applied incorrect criteria for the determination of whether the second "social group" nominated by the appellant was a "particular social group" within the Refugees Convention. By failing to address the correct questions, it failed to exercise its jurisdiction according to law. That failure should have been detected and corrected by the Federal Court. It amounted to jurisdictional error entitling the appellant to the judicial review he sought. The Federal Court erred in refusing to hold that the Tribunal had constructively failed to exercise its jurisdiction in accordance with law[89].
As in Khawar[90], this conclusion does not necessarily mean that the appellant would succeed in the rehearing before the Tribunal. There remain factual issues to be determined in the light of further refinement of the "particular social group" of which the appellant claims to be a member. But a rehearing would not be futile. The appellant is entitled to have a hearing before the Tribunal that addresses his claim and applies the correct legal criteria to it.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (153 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (21)

Cited By (3)