STJB v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 In these proceedings the applicant has sought the issue of writs of prohibition, certiorari, mandamus and/or injunctions in relation to a decision of the Refugee Review Tribunal ('the Tribunal'). The applicant says that that decision is invalid by reason of a jurisdictional error made by the Tribunal. For the reasons given below the application is dismissed. 2 The applicant is a citizen of Albania. He arrived in Australia on 11 July, 2000. His wife arrived on 17 October, 2000. On 29 November, 2000 they each lodged an application for a protection visa. In order for the applicant to be granted a protection visa the respondent (the Minister) had to be satisfied that Australia had protection obligations to the applicant under the Refugees Convention as amended by the Refugees Protocol: s 36(2) of the Migration Act 1958 (Cth) ('the Act'). In general terms the Minister had to be satisfied that the applicant was a 'refugee' as defined in the Convention, being a person who: '… owing to a well-founded fear of being persecuted for reason 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, is unable or, owing to such fear, is unwilling to return to it.' 3 The applicant claimed that he had a well founded fear of persecution by reason of a 'blood feud' involving his family and two other families. The blood feud was said to arise from a dispute over land which resulted in the applicant's uncle shooting two members of one family (family X) and one member of another family (family Y). Although the applicant claimed that the wounds were not serious, the applicant claimed that both family X and family Y have stated an intention to kill a male member of the applicant's family. The applicant claimed that he would be killed if he returned to Albania. 4 On 18 October, 2001 the applicant's application for a protection visa was refused by a delegate of the Minister. On 2 November, 2001 the applicant applied for a review of that decision. 5 The claim made by the applicant has some similarity with a number of other claims based upon Albanian blood feuds that have been considered, and rejected by the Tribunal and by this Court. As in those cases, the applicant claimed that he was a member of a particular social group, namely his family, which feared persecution from family Y and family X. However, in addition to that claim, the applicant also put his case to the Tribunal expressly on the basis that the applicant was a member of a particular social group comprising Albanians who were subject to the Kanun (the system of traditional or customary law practised in some parts of Albania) and that the applicant's fear of persecution was a in relation to the deliberate actions of the Albanian government. This is made clear in the Tribunal's reasons: 'The adviser noted that since the applicant had lodged his application for a protection visa, Section 91S of the Migration Act had been introduced. The adviser submitted that in SDAR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1102, Merkel J had stated that s91S should not be construed so as to exclude a genuine blood feud type claim where the applicant's fear was not dependent upon a fear submitted by another family member. The adviser noted that in SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548, the applicant had characterised his fear as being based not on his membership of his family as a particular social group but on his membership of a particular social group comprised of "Albanian citizens who are subject to customary law, the Code of Lek Dukagjini, or the Kanun". Von Doussa J found that the purported social group was not a cognisable group in society. The adviser stated that the applicant does not agree with the findings of von Doussa J. The practice of the Kanun is most common in agricultural and regional parts of Northern Albania, and amongst uneducated people. The customary law does not affect the entire Albanian population. The applicant therefore requested the Tribunal to consider his claim that he is a member of a particular social group comprised of "Albanian citizens who are subject to customary law, the Code of Lek Dukagjini, or the Kanun". The adviser submitted that this group was subject to persecution by reason of the inability of the Albanian authorities to halt customary law blood feuds or to protect those persons who are rendered victims of such feuds in northern Albania, and further that the Albanian authorities tolerate or at least condone honour killings to settle blood feuds. The adviser referred to the case of Khawar v MIMA [1999] FCA 1529 where the court accepted that a failure of state protection for a Convention reason can itself constitute persecution within the meaning of the Convention.' 6 As can be seen there are two elements of the applicant's claim that serves to distinguish it from at least some of the others that have been made in previous cases. First, the claim involves an express claim that the applicant was a member of a broader 'particular social group' than just his family, namely Albanian members who are subject to the Kanun. (Although I note that this claim was also made in STXB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 860 ('STXB')). Second, it also involves an express claim that the Albanian government 'tolerates or at least condones' honour killings. Such a claim may have been considered in SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548 ('SCAL 1'). It will be necessary to consider SCAL 1 in more detail below. 7 The Tribunal accepted that there was a tradition of blood feuds in Albania, particularly in the north of that country. The Tribunal accepted that the applicant was truthful. In particular: '… The Tribunal therefore accepts that the applicant's family is involved in a blood feud with [family X and family Y] because the applicant's uncle wounded three members of the these families in the course of a dispute over the use of land.' 8 The Tribunal accepted that the tradition of blood feuds was supported by the Kanun. The Tribunal quoted from a report of April, 2003 by the UK Home Office: 'Blood Feuds Despite efforts by the Albanian government to wipe it out, the 15-century code of customs, the Kanun of Lek Dukajini, has reappeared throughout northern Albania, since the return of democracy. The code has been handed down orally through generations, and lays out a code of 'laws' governing marriage, birth, death, hospitality and inheritance, which have traditionally served as the foundation of social behaviour and self-government for the clans of northern Albania. In particular, the Kanun regulates killings in order to stop the total annihilation of families. According to several sources, a range of factors has contributed to the re-emergence of blood feuds, 'gjakmarrja', especially in northern Albania, such as the weakness of state institutions, a law and order vacuum, and a lack of trust in the law. Most ongoing vendettas stem from disputes over land and water rights. Many killings continued to occur throughout the country as the result of individual or clan vigilante actions connected to traditional 'blood feuds' or criminal gang conflicts. The Kanun has been used as a system for administering justice in northern Albania, which historically has remained isolated from central government law. Today, revenge killings in the name of the Kanun have taken on threatening proportions. A recent survey on the Kanun by the Independent Social Studies Centre, Eureka, expressed concern that many killers were using the rules of the Kanun as a cover to commit ordinary crime. In one sense it could be argued that northern Albanians are resorting to the Kanun in order to fill the law and order vacuum. In most cases, however, it is not the traditional rules of the Kanun that are being applied but rather a self-selected interpretation. In fact it is a means of settling accounts amongst gangs of traffickers, smugglers, and other criminal elements who, in the absence of official law and order, can use the fear, respect and moral justification associated with the Kanun to terrorise people into a code of silence. In 1996, the Albanian government initiated a series of national and local activities mainly in the country's northern and north-eastern zones where the problem of blood feuds is more acute than elsewhere. The Prime Minister called on all the political forces to engage in the fast elimination of blood feuds, in co-operation with the government. The National Blood Feud Reconciliation Committee was established and the then Prime Minister, Aleksander Meksi, was confident that it had produced positive results as regards blood feud reconciliation. It would be difficult to separate the issue of blood feuds from the larger problem of lawlessness in Albania, especially in the mountainous north of Albania and in remote areas. However, the OSCE noted in 2000, that whilst much needs to be done to root out the networks of criminality, the most significant change is that random violence is no longer tolerated or considered to be normal. The public increasingly expects order and proper policing. The numbers of persons affected directly or indirectly by blood feuds vary widely. A survey conducted by the Law Faculty of Tirana University in March 2000 showed that 210,000 Albanians (six per cent of the total population) were 'affected' by blood feuds including about 1,250 people locked in their homes for fear of being killed. The Albanian Human Rights Group reported that during 2001, 2,750 families were self-imprisoned at home and that 900 children were prevented from attending school due to fear of revenge. According to the Ministry of Public Order, more than 14 individuals were killed in blood feuds in 2001. Figures published by the National Mission for Blood Feud Reconciliation, in August 2000, stated that 756 blood feuds had been reconciled, allowing the people involved to return to put an end to self-confinement at home. The missioners explained that the roots of this problem lie in the ill-intentioned interpretation of the Kanun and in the reluctance of citizens to obey the laws of the state. According to the Ministry of Public Order, more than 29 individuals were killed in blood feuds which was practised by individuals particularly in the northern part of the country. Under the kanun, only adult males are acceptable targets for blood feuds, but women and children often were killed or injured in the attacks. The Albanian Human Rights Group (AHRG) estimated that 1,400 families were self-imprisoned at home and that 140 to 400 children were prevented from attending school due to fear of revenge. Several agencies provide reconciliation services to families involved in blood feuds, although according to the International Crisis Group there has been no concerted and coordinated strategy devised to combat this growing and deeply damaging phenomena. The Association for Fraternisation and Reconciliation aims to settle disputes between families through dialogue. The National Reconciliation Committee estimated it had resolved around 400 blood feuds whilst the All-Nation Reconciliation Mission claimed it has succeeded in settling about 600 feuds. During 2002, the Ombudsman Office also contributed to resolve a number of highly controversial cases concerning blood feud. Albanian officials appear to have recognised the problems posed by the Kanun and have pledged to address them. In August 1999, the Albanian government dispatched 200 men belonging to the Tirana-based special terrorist force RENEA to the northern district of Tropoja in an effort to curb lawlessness and gang violence after four people were killed in vendettas. The security forces arrested 22 people suspected of murder, armed robbery or theft, and seized large quantities of weaponry and stolen vehicles. The Albanian Penal Code does not contain any provisions which directly address blood feuds. The Vice-Chairman of the British-Albanian Legal Association stated in March 2000 that to incorporate any special provisions dealing with blood feuds in the Criminal Code would be seen as a retrograde step in Albania by giving official recognition to an archaic custom. There are certain articles which could become relevant if the crime at issue was feud related. Articles 48 and 50 deal with mitigating and aggravating circumstances. Circumstances which can lead to mitigation of punishment include when an act is committed due to positive moral and social values. A traditional judge, sympathetic to the conviction of customary law, might consider an act committed pursuant to a blood feud would be committed 'due to positive moral and social values.' Aggravating circumstances include the act being committed 'savagely and ruthlessly' which is sometimes the case when a blood feud is the motive. Article 49 provides that the Court may also consider other circumstances which it deems such as to justify the lowering of the sentence and again this could be applied in the case of a feud-related crime. The punishment for simple murder is a term of 10 to 20 years' imprisonment. The sentence for premeditated homicide is 15 to 25 years' imprisonment, and when aggravating circumstances occur, life imprisonment. The very nature of a blood feud means that the murder would be premeditated. (UK Home Office: Albania Assessment, April 2003, Section 6)' 9 In relation to the claim that the applicant was a member of a social group comprising his family, the Tribunal reached the following conclusion: '… 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 [family X and family Y] to harm a member of the applicant's family is revenge for the injuries inflicted on three of their members by the applicant's uncle. Revenge for a criminal act is not a reason for harm which comes under the Convention. The effect of s91S is that the Tribunal must disregard the fear of persecution of a person such as the applicant whose fear arises because he or she is the relative of a person targeted for a non-Convention reason …' 10 In relation to the claim that the applicant was a member of a particular social group comprising Albanian citizens subject to the Kanun, the Tribunal analysed and applied the tests for identifying a 'particular social group' as follows: 'Following the Court's judgement in SDAR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1102, the applicant submitted to the Tribunal an alternative particular social group to which he belonged. The applicant claimed that he would be persecuted for reason of his membership of a particular social group comprising Albanian citizens who are subject to customary law, the Code of Lek Dukagjini, or the Kanun. It was submitted by the applicant's adviser that this group was subject to persecution by reason of the inability of the Albanian authorities to halt customary law blood feuds or to protect those persons who are rendered victims of such feuds in northern Albania. The adviser submitted that Albanian citizens affected by the Kanun are a cognisable group in Albanian society. Australian case law has held that a particular social group is a collection of persons who share a certain characteristic or element which unites them and distinguishes them from society at large. Not only must such persons exhibit some common element but the element must unite them, making those who share it a cognisable group within their society. The group must be identifiable as a social unit. Moreover, the characteristic or element which unites the group cannot be a common fear of persecution. In other words, the group must not be defined by the persecution: Applicant A & Anor v MIEA & Anor (1997) 190 CLR 225 per Dawson J at 242, McHugh J at 263, Gummow J at 285-6. It is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be feared because of the person's membership or perceived membership of the particular social group: Applicant A per Dawson J at 240. As Burchett J said in Ram v MIEA & Anor (1995) 57 FCR 565 at 569: "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." The issue of whether 'Albanian citizens who are subject to customary law, the Code of Lek Dukagjini, or the Kanun' could be considered to be a particular social group under the Refugees Convention was discussed in detail by von Doussa J. in SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548 [at [15]-[21]] …. The Tribunal has considered whether "Albanian citizens who are subject to customary law, the Code of Lek Dukagjini, or the Kanun" can be considered to be a particular social group. The Tribunal notes the applicant's adviser's submission that the practice of the Kanun does not affect the entire Albanian population. The adviser states that the Kanun is most common in agricultural and regional parts of northern Albania, and affects mainly uneducated people. The UK Home Office material referred to above (and to which the adviser also refers) notes that the rules of the Kanun are applied mainly, although not exclusively, in northern Albania and that they apply 'throughout' northern Albania. While the Tribunal accepts that the Kanun may be more common in rural areas where the people have less education, the Tribunal does not accept that people who are educated or live in urban areas are excluded from its jurisdiction. The potential social group of Albanian citizens who are subject to the laws of 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 those who are not and those who have good jobs and those without work. The Tribunal does not accept that such a heterogeneous group of people could sensibly be said to be united, cognisable or distinguished from the rest of Albanian society. The Tribunal finds that a group comprising 'Albanian citizens who are subject to customary law, the Code of Lek Dukagjini, or the Kanun' does not meet the requirements for a particular social group which is recognised under the Refugees Convention.' 11 In relation to the further aspect of the claim that the Albanian authorities tolerate or at least condone honour killings, the Tribunal made the following finding: '… The Tribunal finds that the Albanian authorities have recognised the problems presented by blood feuds and have put in place proper police and judicial procedures to address these problems.' 12 The Tribunal concluded that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Convention. On 27 October, 2003 it affirmed the previous decision not to grant a protection visa. 13 It is that decision which is challenged in these proceedings. The parties accept that in order to succeed in these proceedings the applicant must show that the process, reasons or decision of the Tribunal was affected by jurisdictional error and that that error may have affected the decision reached by the Tribunal. 14 The applicant says that the reasoning and decision of the Tribunal was affected by jurisdictional error in that: (a) The Tribunal misunderstood and misapplied s 91S of the Act; (b) The Tribunal misunderstood and misapplied the test for identifying a 'particular social group'. If it had applied the correct test it would have found that Albanian citizens who are subject to the Kanun formed a particular social group for the purposes of the Convention. (c) The Tribunal failed to appreciate or consider the significance of the applicant's claim of State persecution in determining whether Albanian citizens who are subject to the Kanun formed a particular social group. 15 I have set out my understanding of the meaning and effect of s 91S of the Act in my reasons in STXB (at pars [31]-[34]). It suffices to say that the Tribunal in this case did not fall into any of the potential factual errors that I referred to in that case. The Tribunal's reasons quoted in par 10 above make it clear that the Tribunal analysed the factual basis for the persecution of the applicant's uncle and concluded that the reason that he was being persecuted was for revenge for wounding the members of family X and family Y. He was not being persecuted by reason of his membership of the applicant's family. On that basis s 91S of the Act would seem to be clearly applicable. In any event I am bound by the decision of the Full Court in SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 301 (SCAL 2) which so held (at [11]). I note that the applicant challenges the correctness of SCAL 2, but accepts that I am bound by it. 16 In STXB I also had cause to consider the appropriate test to identify a 'particular social group' (see at [24]-[27]). In particular, I referred to the test in the joint judgment of Gleeson CJ with Gummow and Kirby JJ in Applicant S v Minister for Immigration and Multicultural Affairs (2004) 206 ALR 242;[2004] HCA 25 ('Applicant S') at [36] (see also McHugh J at [68]-[69], Callinan J at [97]-[98]): 'Therefore, the determination of whether a group falls within the definition of 'particular social group' in Art 1A(2) of the Convention can be summarised as follows. 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. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a 'social group' and not a 'particular social group'. As this Court has repeatedly emphasised, identifying accurately the 'particular social group' alleged is vital for the accurate application of the applicable law to the case in hand.' (citations omitted) 17 In this case (unlike in STXB) it would appear that the Tribunal applied the correct test for identifying a 'particular social group' as set out in the joint judgment of the High Court. The Tribunal's reasons are quoted in par 10 above. Those reasons are on all fours with the High Court's approach. Indeed, this was accepted by counsel for the applicant in submissions before me. Having applied the correct test it was a question of fact for the Tribunal as to whether the relevant group proposed by the applicant met that test. The Tribunal held that it did not. In the circumstances that was a result which was open to the Tribunal. In my view there was no jurisdictional error in the Tribunal reaching that conclusion. 18 The remaining question concerns the role and effect of State action. This argument is a variation of the argument already considered. It involves a number of steps: (a) Where a State or its authorities condone or tolerate persecution by third parties such State action can itself constitute persecution: see Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at 13; (b) In this case the Albanian authorities condoned and tolerated blood feuds; (c) The claim expressly made by the applicant referred to the action of the Albanian authorities in condoning or tolerating blood feuds. Evidence was put before the Tribunal to support that claim; (d) In this context the Tribunal was required to consider whether the reason for the persecution by the State was a Convention reason: contrast STYB at [15]-[18]; (e) Although the Tribunal did consider the reason for the persecution by family X and family Y, it failed to consider the reason for the persecution by the State. On the material put before the Tribunal by the applicant the Tribunal should have concluded that the reason for the persecution by the State was the State's sympathy and support of the Kanun. That sympathy and support was evidence that persons subject to the Kanun formed a 'particular social group'. (e) The failure of the Tribunal to consider the claim in this context involved a jurisdictional error. 19 The short answer to this argument in the context of this case is that the Tribunal rejected the factual basis for it. The Tribunal did not accept that the authorities condoned or tolerated blood feuds. The Tribunal found as a fact that the Albanian authorities 'have put in place proper police and judicial procedures to address these problems'. The applicant argued that the Tribunal had not adequately considered the material that the applicant had put before the Tribunal. However, the determination of factual issues is within the jurisdiction of the Tribunal. If it matters, there was material before the Tribunal, in particular the UK Home Office report to which it referred, which supported its factual conclusions. Having rejected the factual basis for the argument, it was unnecessary for the Tribunal to consider the other steps that the applicant said flowed from the argument. 20 Even if the Tribunal had not rejected the factual basis for this argument, the Tribunal's other factual findings necessarily meant that this argument could not succeed. Where, as here, the applicant's claim was that the reason for State persecution was the membership of a 'particular social group' it was still necessary to identify some unifying element of that group other than the shared fear of persecution: see Applicant S at [36]. In this case the Tribunal expressly rejected that there was any such unifying element (see the quotation at par 10 above). Even if the Tribunal did not consider the effect of State persecution for that purpose (having found that three was none) the only additional factual issue arising from such persecution was the persecution itself. That is not a sufficient unifying element for the identification of a particular social group. 21 This conclusion is consistent with the judgment of von Doussa J in SCAL 1. In that case von Doussa J commented (at [6]) that it was implicit in the claim made by the applicant in that case that 'the threat of death which the applicant fears [as a result of an Albanian blood feud] is one against which the State offers no adequate protection, and further, that the State tolerates or condones honour killings carried out to settle a blood feud.' It would appear State toleration or condonation of blood feuds was implicit in that claim by reason of the information put before the Tribunal by the applicant in that case (see at [9]) and by reason of the understanding by his Honour of the meaning of 'persecution' in the Convention. That understanding would now need to be considered in light of the High Court's reasoning in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487. Nevertheless, having concluded that it was implicit in the applicant's claim in that case that the State tolerated or condoned honour killings, von Doussa J nevertheless found that there was not, on the evidence in that case, a 'particular social group' comprising persons subject to the Kanun. His Honour concluded (at [17]-[21]) that the only identifying feature of such a group was a shared fear of persecution. That conclusion was affirmed by the Full Court in SCAL 2. 22 Consequently, even if the Tribunal had found that the Albanian authorities had condoned or tolerated blood feuds, the finding by the Tribunal that persons subject to the Kanun did not constitute a 'particular social group' was fatal to the claim by the applicant. On the facts of this case it meant that any persecution by State authorities did not involve persecution for a Convention reason. 23 For these reasons the application is dismissed. I will hear the parties as to costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.