STYB v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia (Full Court)|2004-11-12|Before: Selway J, Mansfield JJ

THE COURT 1 This matter is an appeal from a judgment of Selway J in which his Honour dismissed the appellant's application to review a decision of the Refugee Review Tribunal ("the RRT"). The RRT decided that the appellant was not entitled to a protection visa by reference to the Convention relating to the Status of Refugees 1951, as amended by the Protocol relating to the Status of Refugees 1967 ("the Convention"). The application before Selway J was one in which prerogative relief was sought against the respondent in respect of the appellant's application for a protection visa. 2 On 4 November 2004, the Court heard the appeal and, at the conclusion of argument by counsel for the appellant, ordered that the appeal be dismissed with costs.

Background 3 The appellant is a citizen of Albania and is Catholic by religion. He entered Australia on 27 October 2000, using his brother's Australian passport. Prior to coming to Australia the appellant had lived in Greece since 1990, apart from a few brief visits to relatives in Albania where he effectively was in hiding. Before that, from 1988 until 1990 he served in the Albanian army. The appellant has never married. He has two sisters who live in Albania, a brother who lives in Australia and three other brothers whose whereabouts are unknown. 4 On 21 November 2000, the appellant lodged an application for a protection visa. He claimed that he would face persecution if returned to Albania, by reason of his religion and his membership of a particular social group, his family. He claimed that he would be killed in a blood feud if returned to Albania. He also claimed that he would be discriminated against because of his Catholicism. 5 On 31 January 2002, a delegate of the respondent found that the appellant was not a person to whom Australia owed protection obligations under the Convention. On 22 February 2002 the appellant applied to the RRT to review the decision of the delegate. The RRT affirmed the decision of the delegate on 15 September 2003.

The RRT decision 6 The RRT found the appellant to be a citizen of Albania. It considered country information in assessing his claim that he would be killed in a blood feud if returned to that country. 7 In reliance on the country information, the RRT accepted that there is a tradition of blood feuds in Albania, especially in Northern Albania. It then found that the Albanian authorities had recognised the problems caused by blood feuds and had shown a willingness to address those problems. 8 The RRT accepted that the appellant's family is involved in a blood feud with another family because a member of his family killed a member of the other family in 1939, in the course of a dispute over land ownership. The RRT acknowledged that there had been a resurgence of blood feuds since the collapse of Communism in Albania. 9 The RRT was satisfied that the appellant's family was a particular social group under the Convention. However, it found that the motivation of the other family to harm a member of the appellant's family would be revenge for a criminal act. It considered that revenge for a criminal act is not a Convention related reason for harm. 10 The RRT referred to s 91S of the Migration Act 1958 (Cth) ("the Act"). Section 91S 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:

(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." 11 The RRT, at p 13 of its reasons for decision said: "The effect of s 91S 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 a relative of a person targeted for a non-Convention reason." 12 The RRT found that s 91S prevented the appellant's membership of his family from being used as a basis to bring him within the scope of the Convention, because his fear of persecution is motivated by a non-Convention reason. 13 On the question of religion, the RRT was satisfied that persecution on religious grounds no longer occurs in Albania. It found that the appellant did not face a real chance of persecution by reason of his religion, if he were returned to Albania. 14 The RRT was not satisfied that the appellant was a person to whom Australia owed protection obligations under the Convention.

The reasoning of the primary judge 15 Before the primary judge, the appellant submitted that the particular social group to which he belonged was "persons subject to Kanun (being the relevant customary behaviour practised in northern Albania) or persons subject to a blood feud." 16 His Honour noted that that was not the claim made before the RRT. In response to the submission that the RRT had an obligation to identify the particular social group of relevance to the appellant, his Honour was unable to identify any material before the RRT which showed that "persons subject to the Kanun or persons subject to a blood feud" might make up a particular social group. 17 The primary judge referred to the judgment of the High Court of Australia in Applicant S v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 25; (2004) 206 ALR 242 and in particular to the following passage at [36] in the judgment of Gleeson CJ, Gummow and Kirby JJ. '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) 18 His Honour held that there was no material before the RRT to suggest that persons subject to the Kanun or people subject to blood feuds met the three criteria referred to in Applicant S. 19 The primary judge considered that the RRT did not err in failing to consider whether the appellant was a member of "a social group of persons subject to the traditional laws of the Kanun, or persons subject to blood feuds." 20 His Honour then rejected a related submission that the RRT committed a jurisdictional error by failing to consider whether the Albanian authorities deliberately did not provide protection to members of the claimed social group. The primary judge noted that no such claim was made to the RRT. He also observed that the RRT's findings contained an inference that the authorities had attempted to prevent blood feuds, rather than deliberately failing to do so. 21 The primary judge concluded that the RRT did not fall into error by failing to consider whether the Albanian authorities deliberately would not protect the appellant because he was involved in a blood feud. His Honour dismissed the application in the absence of the appellant's identification of a jurisdictional error by the RRT.

The issues on the appeal 22 Counsel for the appellant contended that the RRT made two jurisdictional errors which the primary judge did not detect. The first was that the RRT misconstrued s 91S, by considering the particular social group as being the appellant's family and not the appellant's purported membership of the wider social group identified in the submissions before the primary judge. The second was that the RRT failed to determine the claim with respect to that wider group, despite being presented with material in relation to it. 23 Counsel for the appellant submitted that the claim before the RRT was capable of being based on the wider social group of "those Albanians who are subject to the Kanun of Lek Dukajini and the subject of a blood feud" and that s 91S does not prevent a claim of persecution being made on account of the membership of that wider social group. Counsel contended that the RRT wrongly assumed that the concept of blood feud was family related when it is not so confined. 24 Counsel for the appellant submitted that the RRT wrongly excluded from its consideration available material which showed "passive" inactivity by Albanian authorities in protecting those at risk from blood feuds.

Consideration 25 We see no basis for the appellant's submission that the primary judge erred in his consideration of the matter before him. In our view, the primary judge correctly observed that no claim was made to the RRT on the basis of the alleged wider social group. We also consider that he was correct in saying that there was no evidence before the RRT which identified the wider group. 26 Before the delegate, the appellant claimed to fear persecution because of his membership of his family. That claim was again made before the RRT by the appellant's advisor. The only blood feud referred to by the appellant before the RRT was the feud between his family and one other family. There was no claim, or evidence to support a claim, that the appellant was at risk because of being subject to the Kanun and subject to a blood feud. 27 In the country information referred to by the RRT the existence of the Kanun of Lek Dukagjini is referred to and described as a "15th century code of Customs handed down orally through generations…". The country material tended to suggest that the Kanun was used as an excuse for a wide range of killings. However, there is no claim made by or on behalf of the appellant in any of the material before the RRT that he was at risk because of the application of the Kanun. On the contrary, the claim related only to the possible activities of one family, which was hostile to his family. 28 The first suggested jurisdictional error, that is, that the RRT considered the wrong social group, and on the material it was open to it to consider another one, is without foundation. No misapprehension of s 91S occurred. The section applied to the claims of the appellant and was correctly applied by the RRT, as the primary judge appropriately observed. 29 The second suggested jurisdictional error is also not established. The RRT was not presented with any claim of membership of the alleged wider social group or with any evidence as to the persecutory fate of its members. The material before the RRT did not give rise to a case which the RRT failed to address: cf Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1; [2002] HCA 14 per McHugh and Gummow JJ at 27 - 28, [81] - [82]. 30 Even if the existence of the suggested wider group was established, it would not constitute a particular social group for the purposes of the Convention. That is because all members of Northern Albanian society would qualify for membership. Accordingly it would not satisfy the test referred to in Applicant S at [36]; In SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 301 at [17], a Full Court said: "The second ground of appeal is that the primary judge erred in concluding that the re‑cast social group comprised the whole community and would include everyone who for one reason or another had a well‑founded fear of persecution. It is said that the Tribunal had before it evidence that the social group did not encompass the entire Albanian community, and that the group is limited by factors including geographical location, education and wealth. The primary judge did not so err. In his description of the Code his Honour recorded that with the collapse of communism in Albania the Code "re‑emerged and was followed in the northern parts of Albania from which the applicant came". Later in his reasons he said the re‑cast social group "embraces everyone in the geographic areas of Albania where the customary law is being applied". After referring to the parts of the Code that were in evidence, his Honour said at [19]: "The Kanun is to be treated, at least in the geographical areas from which the applicant comes, as a law or practice of general application. Whilst the whole community may be subject to it, it does not render the whole community a particular social group for the purpose of the definition of 'refugee'." The appellant treats the "whole community" as meaning the whole Albanian community. However, in context, the primary judge's "whole community" is the community of the area in which the Kanun is applied, namely the northern parts of Albania from which the appellant came. The appellant's submission is based on a misreading of the primary judge's reasons, and must be rejected." See also STCB v Minister for Immigration and Multicultural and Indigenous Society [2004] FCAFC 266 at [30] to [31]. 31 We also reject the submission of counsel for the appellant that the RRT wrongly excluded from its consideration available material, which allegedly showed that Albanian authorities were passively inactive in protecting their citizens from blood feuds. The RRT made a finding to the contrary. That finding was open to it on the country information before it. Additional country information relied upon by the delegate (which material was also before the RRT) said that: "Albanian officials appear to have recognised the problems posed by the Kanun and have pledged to address them." 32 Therefore, even if there was material to support the existence of the wider group there was evidence to show that the authorities intended to address any problems which might relevantly arise in respect of it.

Conclusion 33 For the above reasons we considered that the matters raised on behalf of the appellant on the appeal did not demonstrate that the primary judge erred in any respect. Accordingly we dismissed the appeal 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 Cooper, Marshall and Mansfield.

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