STJB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 9 | Case summary

REASONS FOR JUDGMENT THE COURT: 1 These appeals involve allegations of persecution arising out of "blood feuds" between families in Albania. When the appeals were called on, on Monday 14 February 2005, the Court, having regard to the concessions by the appellant in each of the appeals, ordered that each appeal would be dismissed with costs. The Court indicated that it would publish its reasons for those dismissals at a later date. These are those reasons. 2 Mr S. Ower, counsel for the appellant in each appeal, in each appellant's outline of written submissions conceded: 'The appellants note that the issues raised in these appeals concerning the proper construction and application of section 91S of the Migration Act 1958 (Cth) have been determined (adversely to them) by three previous Full Courts, and that the appeals will therefore be dismissed.' The three previous Full Court decisions are SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 301 (Carr, Finn and Sundberg JJ); STCB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 266 (Spender, Stone and Bennett JJ); and STYB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 295 (Cooper, Mansfield and Marshall JJ). 3 It was further submitted: 'However, in the light of the comments made by Gummow, Kirby and Heydon JJ during the hearing of the application for special leave to appeal in SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA Trans 477 (19 November 2004), the appellants formally maintain the arguments raised in their respective grounds of appeal and wish to preserve their position in relation to any application for special leave to appeal.' 4 The possible bases for such an application concern whether, on the facts of the case, the particular appellant had a well-founded fear of persecution "for reason of" membership of "a particular social group", namely his family, or a wider group such as, in one case, "Albanian citizens who are subject to the Kanun" or in another, "men in Albania", having regard to the proper construction and application of s 91S of the Migration Act 1958 (Cth) ('the Act'); and whether, in the facts of a particular case, the authorities in Albania condoned or tolerated persecution by third parties, in the sense considered by the High Court in Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1. 5 Section 91S of the Act provides: 'For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well-founded fear of being persecuted for the reason of membership of a particular social group that consists of the first person's family: (a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; and (b) disregard any fear of persecution, or any persecution, that: (i) the first person has ever experienced; or (ii) any other member or former member (whether alive or dead) of the family has ever experienced; where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.' 6 There are differences between each of the three appeals, and it is appropriate that, despite the concession on behalf of each appellant that we are bound to dismiss their appeals, the Court shortly express its views in relation to the respective claims in each appeal, having regard to the possibility of applications for special leave to appeal. 7 We note as a preliminary observation that in each appeal, the Tribunal formed the view that, pursuant to s 91S of the Act, each appellant's fear of persecution was to be disregarded, as it was a fear which arose because the appellant is a relative of a person targeted for a non-Convention reason. This finding, it seems to us, is fatal to any claim that s 91S, on the facts of each of the cases, has no application. 8 The Full Court in STCB rejected as fanciful the possibility that the actual perpetrator of the crime, the applicant's father, would be vulnerable, not because he was the killer, but because he was a member of the killer's family. The Full Court said at par 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. …' 9 We proceed to consider each particular appeal. 10 STDB is an appeal from the judgment of Selway J given on 8 July 2004. In those proceedings it was alleged that the decision of the Refugee Review Tribunal ('the Tribunal') affirming a decision of a delegate of the Minister to refuse a protection visa was invalid by reason of jurisdictional error. The applicant claimed that he had a well-founded fear of persecution by reason of a blood feud involving his family and family X. The blood feud was said to arise from a dispute over land which resulted in the applicant's father shooting and killing a member of family X. The applicant claimed that family X would kill a male member of the applicant's family in revenge for the act by the applicant's father. The applicant claimed that he feared he would be killed if he returned to Albania. 11 Selway J said that STDB was substantially similar to the case of STJB which had been considered by the same Tribunal member and, in respect of which, the Tribunal handed down its decision in each case on the same day. Selway J noted that the reasons of the Tribunal in each case were substantially similar and indicated that, for the reasons given by his Honour in STJB, application STDB should be dismissed with costs. 12 In STJB, Selway J gave judgment, also on 8 July 2004, dismissing an application which sought to challenge the decision of the Tribunal affirming a decision of a delegate of the Minister to refuse a protection visa. In STJB, the applicant claimed 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 the wounds were not serious, the applicant claimed that both family X and family Y had stated an intention to kill a male member of the applicant's family. The applicant claimed he would be killed if he returned to Albania. 13 In STJB, the applicant claimed he was a member of a particular social group, namely his family, which feared persecution from family Y and family X. In addition to that claim, the applicant also put his case to the Tribunal expressly on the basis that he was a member of a particular social group comprising "Albanian citizens who are subject to the Kanun" (the system of traditional customary law practised in some parts of Albania), and that the applicant's fear of persecution was in relation to the deliberate actions of the Albanian Government. 14 Selway J noted that the applicant STJB was accepted by the Tribunal as 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 these families in the course of a dispute over the use of land.' 15 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 …' 16 Concerning the claim that the Tribunal had misunderstood and misapplied s 91S of the Act, Selway J said: 'The Tribunal's reasons … 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.' (Our emphasis) 17 We respectfully agree that the Tribunal found as a fact that the fear of applicant STJB arose because he is a relative of a person targeted for a non-Convention reason; that the finding was one open to the Tribunal to make, and was a finding which brought s 91S of the Act into operation, with the consequence that any fear of persecution by applicant STJB was not for a Convention reason. 18 Concerning the claim that 'Albanian citizens who are subject to customary law, the Code of Lek Dukagjini, or the Kanun' could be considered a particular social group under the Refugees Convention, Selway J referred to the test in the joint judgment of Gleeson CJ, Gummow and Kirby JJ in Applicant S v Minister for Immigration and Multicultural Affairs (2004) 206 ALR 242; [2004] HCA 25 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) 19 Selway J noted that in case STJB: '… 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 on all fours with the High Court's approach. … 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.' In our respectful view, Selway J was plainly correct in his conclusion concerning this claim. 20 The final claim in effect asserted that Albania condoned or tolerated persecution by third parties. Such State action can itself constitute persecution, as the High Court noted in Minister for Immigration and Multicultural Affairs v Khawar (supra). Concerning this claim, Selway J concluded: '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".' 21 In our respectful opinion, his Honour's conclusion in respect of the claim concerning State action is similarly unimpeachable. 22 Both applications STDB and STJB were rightly dismissed with costs by Selway J. 23 Appeal STXB was an application seeking constitutional writs in relation to a decision of the Refugee Review Tribunal which was constituted by a different member from the member who decided STDB and STJB. The applicant STXB had claimed he had a well-founded fear of persecution by reason of a blood feud involving his family and another family. The blood feud was said to arise from a dispute over land which resulted in the applicant's grandfather killing a member of the other family. Although the applicant's grandfather spent many years in prison as a result of the incident, the other family still held the applicant's family responsible. Members of the applicant's family had been threatened and the applicant's family home had been "machine-gunned". Attempts by "the authorities" to resolve the dispute by reconciliation had failed. The applicant said that he had fled Albania to escape the risk of being killed as a result of the feud. 24 There were further claims that the applicant had suffered persecution in Albania by reason of his membership of a particular social group, that group being men in Albania. The Tribunal noted: 'It was argued by the adviser that only men in Albania were subject to Kanun Law and as such men were an identifiable particular social group for the purposes of the Convention. It was further claimed that the applicant had been persecuted in Albania by reason of his membership of a particular social group, that group being his family because of his family's imputed political beliefs and that this imputed political belief is based on an imputation that the applicant's family is expressing a political opinion about the Kanun law. The adviser further claims that the applicant deserves protection on humanitarian grounds.' 25 In the application for constitutional writs to the Federal Court, applicant STXB alleged two errors of law: 'The tribunal made an error of law in finding that men in Albania who are targeted for revenge killing under the Kanun cannot be characterised as belonging to a particular social group. … The Tribunal did not accord that Applicant procedural fairness through the course of the hearing and the Tribunal made an error of law and therefore the Tribunal made a jurisdictional error.' 26 In his reasons for judgment, dismissing the application with costs, Selway J said: 'The Tribunal delivered its decision on 23 January, 2004. It accepted that there is a long standing tradition of blood feuds in Albania and that the applicant's family was involved in a blood feud. It accepted that the reasons for this was that the applicant's grandfather had killed a member of the other family and the other family wanted to get revenge for the death. The Tribunal also accepted that the applicant's family could be considered as a "particular social group" for the purpose of the Convention. However, the Tribunal found that that was not sufficient in light of the terms of s 91S of the Act. …' His Honour later said: 'The Tribunal held that the effect of s 91S of the Act was that it had to disregard a fear of persecution which arose by reason of the applicant's membership of his family where the motivation for the original persecution of another member of that family was a "non-Convention reason": "The effect of s91S is that I must disregard the fear of persecution of persons such as the applicants whose fear arise because they are the relatives of a person targeted for a non-Convention reason whose fear of persecution must be disregarded. The application of s91S in respect of blood feuds was upheld in SDAR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1102 in which Merkel J. stated at [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 the 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. …' 27 Selway J noted: 'The Tribunal then proceeded to consider the applicant's claim based upon his membership of a broader social group, namely men in Albania. … On the facts before it the Tribunal held that "Albanian men" were not a "particular social group" for the purposes of the Convention …' 28 His Honour also noted that the Tribunal had observed: '… 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); and Gummow J (at 285) agreeing with the statement of Burchett J in Ram v Minister for Immigration & Ethnic Affairs & 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." … Even if men in Albania were to be found to be a particular social group the essential and significant reason why people may be harmed under a blood feud is not because they are men in Albania. It is clear that the essential and significant reason why a person would be a target under a blood feud is their membership of a family that is the subject of a revenge attack in a blood feud. It is the membership of this family that gives rise to the essential and significant reason for the persecution and as I have already found that s.91S prevents the applicant's membership of his family being used as a vehicle to bring him within the scope of the Refugees Convention because the persecution or fear of persecution is motivated by a non-Convention reason.' Selway J said: 'For similar reasons the Tribunal also rejected the further claim by the applicant that men in Albania targeted in accordance with the Kanun formed a "particular social group". …' 29 Selway J rejected the claim of a lack of procedural fairness. 30 Selway J concluded that the Tribunal applied the wrong test to determine if there was a particular social group, but nonetheless commented: 'This is not to say that the Tribunal was in error in concluding that the claimed social groups did not constitute a "particular social group" for the purposes of the Convention. It was held by the Full Court of this Court in SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 301 ('SCAL 2') at [9] in relation to facts that are similar to those present in this case that the relevant facts did not create a "particular social group". The applicant accepts that I am bound by SCAL 2, but says that the decision is wrong. That is an argument that will need to be pursued elsewhere.' Selway J however continued: '…The Tribunal found that the reason for any persecution was by reason of the applicant's membership of his family and that s 91S of the Act prevented that being used as a vehicle to bring the applicant within the Convention.' 31 Selway J said: '… The application of that section is dependent upon a factual finding that the initial or original fear of persecution arises for a reason other than membership of the family group. Obviously there must be someone in the family group who fears persecution for some reason other than that membership. In the cases that have considered the issue in the context of Albanian blood feuds under the Kanun the relevant "someone" is the person whose act caused the blood feud. That person's fear of persecution is usually expressed as a personal fear of revenge by the family of the person who was injured or (usually) killed: see, for example SDAR v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 72 ALD 129; [2002] FCA 1102 ('SDAR') at [24]; SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548 ('SCAL 1') at [24]; SCAL 2 at [10], [19]. Where such factual findings have been made then s 91S is applicable: see SCAL 2.' 32 Importantly, Selway J found: '… the applicant did not put to the Tribunal that the effect of the Kanun was that all members of his family, including his grandfather, were subject to persecution only by reason of their membership in the family. It would seem to have been accepted as part of the applicant's case that his grandfather was personally responsible for his acts. The case as argued before me also proceeded on this basis. …' 33 Selway J in STXB expressed his conclusion: 'The result is that even if the Tribunal was in error in applying the test set out in Zamora, that error did not have any practical effect on the result. The Tribunal found that even if Albanian men, or Albanian men targeted in accordance with the Kanun, could constitute a "particular social group" they were not the relevant social group in this case. The Tribunal found that the relevant social group in this case was the applicant's family. It also found that the applicant's grandfather feared persecution for a non-Convention reason and that consequently s 91S of the Act applied. The Tribunals interpretation of s 91S is consistent with SCAL 2. Its findings of fact were fairly open in light of the case that the applicant presented. In these circumstances there was no jurisdictional error that had any consequence upon the decision actually reached by the Tribunal.' (Our emphasis) 34 We respectfully agree with Selway J that there was no error in the finding by the Tribunal that the relevant social group in this case was the applicant's family nor in its finding that the applicant's grandfather feared persecution for a non-Convention reason, with the consequence that s 91S of the Act applied. 35 Each of the appeals should be dismissed for the reasons we have set out above. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Heerey & Lander

STJB v Minister for Immigration & Multicultural & Indigenous Affairs

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Judgment (14 paragraphs)

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