SVMB v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant was born on 27 February 1984 in Shkoder in Albania and is a citizen of that country. She arrived in Australia on 27 February 2002. 2 On 29 April 2002 she lodged an application for a Protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (the Department) under the Migration Act 1958 (Cth) (the Act). On 16 September 2002 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) refused to grant a Protection visa. On 2 October 2002 the applicant applied to the Refugee Review Tribunal (RRT) for a review of that decision. 3 On 27 February 2004 the RRT affirmed the delegate's decision not to grant a Protection visa. 4 On 19 April 2004 the applicant commenced proceedings in this Court seeking issue of the prerogative writs in relation to the decision of the RRT. 5 The grounds for the applicant's claim are: '1. That a breach of the rules of natural justice occurred in connection with the making of the Decision. 2. That the Decision involved an error of law, whether or not the error appears on the record of the Decision. 3. That procedures that were required by law to be observed in connection with the making of the Decision were not observed. 4. That the making of the Decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made. 5. That there was no evidence or other material to justify the making of the Decision. 6. That the Decision was otherwise contrary to law. 7. That the Decision involved the making of a jurisdictional error.' 6 Particulars of the grounds are contained in the application. Essentially, the applicant complains that the RRT did not address her claim that she had a well-founded fear of persecution, by reason of the fact that she was a member of a particular social group, being persons in Albania who are targeted for revenge killing under the Kanun. 7 More recently, the applicant has filed a document entitled 'Applicant's Further Contentions of Fact and Law' in which the applicant has submitted that the RRT made a jurisdictional error because it failed to consider whether or not the applicant was a member of a broader social group other than her husband's family. In her application for a Protection visa, the applicant gave as a reason for leaving Albania: 'I left Albania because I feared for my life as a consequence of my husband fleeing Albania to Australia. After my husband left his enemies turned their attention and hatred towards me. Unprotected I feared for my life and fled.' 8 This application was heard at the same time as the applicant's husband's claim for judicial review. The applicant's husband had separately applied for a Protection visa. A delegate of the Minister had refused that application. The husband had sought a review of that decision. That review was heard by the same member of the RRT who heard the applicant's application for review and on the same day. Both applicants and the Minister asked me to hear their applications for judicial review together. 9 The applicant was educated to Year 8 and thereafter stayed at home to assist her mother with housework and farming a small piece of land owned by the family. 10 Her father arranged for her to marry her husband. The applicant was aware prior to the marriage that her husband's family was involved in a blood feud. In fact, her husband had left Albania to live in Italy because of that feud. She married her husband on 9 August 2001. 11 After the marriage her husband returned to Italy. Eventually, her husband left Italy because, she claimed, some Albanian men had followed him to Italy. Later, she was informed by her husband that her husband had arrived in Australia. 12 After her marriage the applicant resided in her husband's house in Shkoder. She stated that because she was a female she was not liable to be hurt under the Kanun. However, in October 2001 she began to receive threats. She was pressured to reveal her husband's whereabouts. She was threatened that if she did not co-operate she would be kidnapped in order to force her husband to return to Albania. 13 She said she left Albania on 25 February 2002 for the reasons already given. 14 The delegate of the Minister refused her application for a Protection visa and the applicant sought a review of that decision by the RRT. 15 In her application to the RRT she stated: 'I contend that because of my marriage to [AN] that I suffer the same threats and have the same fears namely: of being persecuted and run the risk of being kidnapped or even killed because of my religious beliefs and those of my husband. Because of my religious beliefs and my marriage to [AN] the threats by the Muslim families involved in the feud present a real threat to my safety. As a consequence I fear returning to Albania as despite numerous attempts to factor a peaceful settlement the Muslims will not cooperate. Indeed they have made it clear that they intend to hurt, punish and even kill me if they cannot catch [AN]. It is a continuation of the struggle for minority Catholic Christians against the wrath of the Muslims. It is the Muslims who use the aspects of the Kanun, regarding feuds, to fuel the hatred and in an endevour [sic] to disenfranchise Catholics from their property. Religious harmony does not exist in Albania and each day Muslims violate the sanctity of the minority Catholic community. The Muslims go beyond the Kanun and do not take heed of the restrictions that are supposed to be in place for women and children and do not discriminate against male or female. I fear death.' 16 The applicant's case was that her husband's family's blood feud started when her husband's grandfather fought with Brahim Hasani about a fence which resulted in Brahim killing her husband's grandfather in a fight. 17 The RRT accepted that there was a long-standing tradition of blood feuds in Albania. It also accepted that the applicant's husband's family was involved in a blood feud with the Hasani family which commenced in the circumstances deposed to by the applicant. 18 The RRT said: 'The applicant's original claim was her fear that she would be killed by a member of the Hasani family if she returns to Albania was covered by the Refugees Convention because it was a Convention ground which motivated the Hasani family to want to kill her. That Convention ground is expressed as being the applicant's membership of a particular social group and the particular social group that the applicant claims she belongs to is her husband's family which is [sic] now a part of through marriage.' 19 It further found: '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, I find that the motivation of the Hasani family to harm the applicant or any other member of the applicant's family is revenge in the context of a long standing blood feud over the disputed land. In this context, revenge is not a reason for harm which comes under the Refugees Convention unless it can be linked to a Convention reason.' 20 The RRT then discussed s 91S of the Act and the decision of Merkel J in SDAR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1102 and the decision of von Doussa J in SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548. 21 The RRT then concluded: 'Taking into account all of the above, I find that s.91S prevents the applicant's membership of her husband's family being used as a vehicle to bring her within the scope of the Refugees Convention because the persecution or fear of persecution is motivated by a non-Convention reason. I therefore find that if the applicant were to return to Albania now or in the reasonably foreseeable future, there is not a real chance that she would be persecuted because she belongs to a particular social group being her family or her husband's family. I find that the application of s.91S extends to any claims made in relation to the applicant's unborn child in the same way as it applies to the applicant.' 22 The RRT also rejected the applicant's contention that she feared persecution from the Hasani family for religious reasons because she is a Catholic and the Hasani family are Muslims. 23 It did so because her evidence was that she had not suffered any harm or persecution in the past in Albania because of her religious beliefs and that she was free to practise her religion. 24 Lastly, the RRT rejected the applicant's contention that she feared persecution for her membership of a particular social group, being her husband's family, and that her family are being persecuted because they are perceived or reputed to hold a political opinion, being that the Kanun laws are superior to the State laws of Albania. 25 That contention was rejected because the RRT found as a fact that the motivation of the Hasani family to harm the applicant and members of the husband's family is revenge as part of a long-standing feud between her husband's family and the Hasani family. 26 The RRT found: 'I find that revenge as part of this blood feud is the essential and significant reason for the applicant's fear of persecution and there is absolutely no political motive or imputation of a political opinion on the part of the persecutors in seeking revenge. I therefore find that if the applicant were to return to Albania now or in the reasonably foreseeable future, there is not a real chance that she would be persecuted because of any imputed political opinion that is imputed to him or is imputed to his family.' 27 The applicant contends that the RRT fell into error because the RRT found that s 91S does not apply as a matter of law where the event that gave rise to the fear of persecution was a criminal act by a family member. 28 Section 91S of the Act provides: '91S 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.' 29 Whether s 91S applies in any particular case will depend upon the findings made by the RRT. First, of course, there must be a finding as to the particular social group of which the applicant is a member and, if that social group consists of the applicant's family, then the first element contained in s 91S will have been made out. 30 In this case, the applicant's case was that the particular social group of which she was a member was her husband's family. The RRT made a finding consistent with her claim. 31 After making that finding the RRT was bound, and I paraphrase s 91S, to disregard any fear of persecution that any member of the family has ever experienced where the reason for the fear of persecution is not a reason mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol. 32 The applicant's husband's grandfather was persecuted by Brahim Hasani and was killed by him. The RRT found: 'I accept that the family of the applicant's husband is involved in a blood feud with the Hasani family that commenced when a member of the Hasani family shot and killed the grandfather of the applicant's husband many years ago during a dispute about the boundaries of their adjoining land. I accept that the applicant is of Catholic religion and I accept that the applicant may have been abused and attacked by the Hasani family in order for them to determine the whereabouts of the applicant's husband who they were pursuing as part of this blood feud.' 33 The applicant's husband's grandfather was not persecuted for a Convention reason. The persecution suffered by the applicant's husband's grandfather did not arise by reason of any of the matters mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol. 34 The finding of the RRT required it, therefore, to disregard that fear of persecution by the applicant's husband's grandfather. 35 In those circumstances, the RRT was then bound to disregard any fear of persecution that the applicant had experienced if it concluded that the applicant's fear of persecution would not exist if it were assumed that the persecution suffered by the applicant's husband's grandfather had never existed. 36 The RRT found that the applicant's fear of persecution arose out of her husband's grandfather's argument with the Hasani family and she would not have a fear of persecution but for that argument. 37 In my opinion, the RRT was right to follow the decisions in SDAR v Minister for Immigration & Multicultural & Indigenous Affairs and SCAL v Minister for Immigration & Multicultural & Indigenous Affairs. 38 In SDAR v Minister for Immigration & Multicultural & Indigenous Affairs, Merkel J said 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.' 39 In those circumstances, the RRT was bound to arrive at the decision that it did and to find that s 91S disqualified the applicant from any entitlement to refugee status or to any Protection visa under s 36(2) of the Act. 40 The application must be dismissed. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.