SVRB v Minister for Immigration and Multicultural and Indigenous Affairs

19 The second applicant claimed he feared persecution if returned to Albania, not merely as a consequence of the blood feud, but because he would be in danger from the Muslim group threatening his wife. He claimed that he feared persecution because his religion and race and because he belonged to a particular social group, being his wife's family. He stated the police were unable or unwilling to protect him. 20 The RRT found that the applicants were nationals of Albania and assessed the applicants' claim against Albania as their country of nationality. The RRT accepted that there was a long-standing tradition of blood feuds in Albania and, in particular, in the northern parts of that country. It accepted that the second applicant's family had been involved in a blood feud with another Albanian family. However, it found that, notwithstanding opportunities proffered to the second applicant, he did not advance any reason to indicate that the blood feud in which he and his family were involved arose out of any Convention related reason. 21 In relation to the second applicant, the RRT said: '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 essential and significant reason that the Gege Ejelli family seek to harm the applicant husband, or any other member of the applicant husband's family, is revenge for the killing of a family member by the applicant husband's father. 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. Considering the applicant's own position I am unable to find any link to a Convention reason.' 22 The RRT applied s 91S of the Migration Act 1958 (Cth) insofar as it relates to blood feuds, which it said prevented the second applicant's membership of his family being used as a vehicle to bring him within the scope of the Convention because the persecution or fear of persecution of the family members was motivated by a non-Convention reason. 23 In summary, it found that as the second applicant had not advanced a Convention related reason, no such finding could be made. It found that if the second applicant were to return to Albania he would not be subject to persecution for a Convention related reason. 24 The second applicant has not challenged that decision. His claim, his counsel said, 'rests entirely on the wife's claim'. It follows, therefore, that the second applicant's history is only relevant to explain why the applicants lived separately and apart. 25 The RRT accepted that the three attacks described by the first applicant had occurred, but found that they were not motivated by religious reasons. Rather, the RRT found that the attacks were motivated exclusively by the desire of the attackers to avoid the payment of taxes to the local authority, and their anger at the first applicant for having reported them for failure to pay. 26 The RRT also found that the first applicant was a member of the particular social group defined as 'women in Albania living alone without male protection', or 'women alone in Albania without a male to protect them'. However, the RRT found there was no evidence that the applicant wife would be at risk of any harm because of her membership of these particular social groups. 27 The RRT found that the first applicant had not identified the person or persons who she feared would harm her for membership of that particular group or why they would harm her. In respect of that, the RRT said: 'In fact, at the second Tribunal hearing the applicants' adviser informed the Tribunal that she had found no evidence to indicate that this particular social group was in fact at risk in Albania today or in the reasonably foreseeable future.' 28 In relation to the claim for fear of persecution on the basis of membership of the particular group of employees, or former employees, of local councils who are (or were) responsible for forwarding the bills of councils and advising taxation authorities to follow up on non-payment of bills, the RRT found: '…there is no evidence available, apart from the assertions of the applicant, that such a group of people is identifiable as a social group in Albania today. …the applicant is … claiming she is… a municipal employee who routinely follows up the non-payment of bills owing to the municipality and reports non-payers to taxation authorities. It is accepted that there are many other municipal employees across many council in Albania who perform similar duties in the course of their employment. However there is no evidence available to indicate that such individuals possess any attributes or characteristics that would distinguish them from Albania society at large, in order to satisfy the test established in Applicant S for the existence of a particular social group. I therefore find that there is no particular social group being "employees or former employees of local councils who were responsible for forwarding the bills of councils and advising taxation authorities to follow up non-payment of bills" in Albanian society today.' 29 The RRT found that it was not enough for the applicant to establish that she was a member of a particular social group or that she had a well-founded fear of persecution. The applicant, so the RRT found, needed also to establish that she feared persecution because of her membership of the particular social group. 30 For all of those reasons, both applicants' proceedings for review before the RRT failed. 31 On this application the applicants contended that the RRT had fallen into error in failing to find that the first applicant had a well-founded fear of persecution as a result of her belonging to each of the particular social groups referred to above. 32 In the case of the claim to have a well-founded fear of persecution in respect of religion, it was contended that the RRT had failed to perform the tests prescribed by the Full Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 in that it failed to test the evidence for a well-founded fear of persecution on the part of the applicant. 33 It was argued that the RRT had merely found that the three instances of attack were attributable to anger attacks in position and collection but had failed to explore whether the evidence was enough for the applicant to have established that she had a well-founded fear of persecution at the hands of Muslim extremists for reason of her Catholicism. 34 In my opinion, that argument must be rejected. Once the RRT found that the particular attacks which the first applicant relied upon to establish objectively a well-founded fear of persecution were not motivated by her religion, then there was no evidence left upon which a finding could be made that she had a well-founded fear of persecution for reason of her Catholicism. 35 The first applicant contended that the RRT had fallen into error in finding that she had not identified who she feared would harm her by reason of her membership of the social group, women alone in Albania. It was put that the RRT had failed to enquire into her claims which she had articulated arose because her assailants saw her as a weak person because she had nobody to support her and no relatives. 36 I think the contention overlooks the essence of the RRT's findings. The RRT found that the first applicant was attacked for a particular reason. That reason was not because of membership of the particular social group, women in Albania. She was attacked on the finding of the RRT because her assailants desired to avoid payment of taxes to the local authority and because they were angry that she had reported them to those authorities. 37 In making that finding, the RRT rejected the first applicant's contention that she was assaulted or attacked because of her membership of that particular social group, women in Albania. It follows that the second argument must also be rejected. 38 Lastly, it was put that the RRT was wrong in finding that there was not a particular social group of local tax officials. In support of that contention, it was said that local tax collectors might not be immediately distinguishable from the remainder of Albanian society but the persecution of one of that particular social group for reason of membership of that group would match the analysis by Justice McHugh in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 264 ('Applicant A'). It was put by the first applicant's counsel that the first applicant came within the type of class which McHugh J described by referring to 'left-handed men'. 39 In Applicant S v Minister for Immigration & Multicultural Affairs (2004) 206 ALR 242 at [31], the majority said of that example: 'Left-handed men share a common attribute (that is, they are left-handed), but, ordinarily, there is nothing to separate or distinguish them from the rest of the community. However, to expand on his Honour's example, if the community's ruling authority were to legislate in such a way that resulted in discrimination against left-handed men, over time the discriminatory treatment of this group might be absorbed into the social consciousness of the community. In these circumstances it might be correct to conclude that the combination of legal and social factors (or norms) prevalent in the community indicate that left-handed men form a particular social group distinguishable from the rest of the community.' 40 In my view, the first applicant's third contention must also be rejected. Whether or not there is a particular social group of the kind contended for by the first applicant is a matter of fact to be determined on the evidence available to the RRT. 41 There was no evidence of any attacks on tax officials, apart from the attacks upon the first applicant. If there had been evidence of that kind, it might have been possible for the RRT to reason that tax officials were discriminated against or liable to persecution by reason of their occupation. 42 The first applicant on the RRT's own findings was not attacked because of her membership of a social group. She was attacked for the reasons found by the RRT. It would be wrong to find that simply because she was attacked for the reasons given by the RRT that she therefore formed part of the particular social group claimed. That would make the attack the defining event identifying the particular social group. That would be contrary, in my opinion, to the dicta of McHugh J in Applicant A (1997) 190 CLR 225 at 264. 43 It was also put that the RRT fell into error because it found that the Albanian government was willing to act in defence of the applicant. 44 Because the first applicant could not establish that she had a well-founded fear of persecution for a Convention reason, which is a finding, in my opinion, which must stand, this matter does not strictly need to be addressed. 45 However, in case this matter needs to be reconsidered elsewhere, I should also deal with that argument. 46 The respondent accepted that if Albania was unable to protect the first applicant, the first applicant would thereby establish that aspect of the definition of 'refugee'. 47 However, it was contended by the respondent that there was no evidence before the RRT to establish that the effectiveness of Albanian state protection fell below that required by international standards. The respondent relied upon Applicants A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 727 and contended that some evidence of that failure was required because the fact cannot be presumed. 48 In my opinion, the respondent's contention must be accepted and the RRT's decision in that other respect also confirmed. In SZBBE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 264 at [46], Jacobson J said: 'It was not suggested either before the Federal Magistrate or on appeal that there was evidence put before the RRT of a failure to adhere to international standards which the RRT should have taken into account. As Heerey J said in MZ RAJ at [26], the ratio of S152 does not include the proposition that there will be jurisdictional error unless the RRT identifies and specifies the content of "international standards" of protection and matches the law enforcement machinery of the state against those standards. It is for an applicant to put forward international standards of protection with which the state failed to comply.' 49 The applicant did not put forward any evidence which identified the international standards of protection with which Albania had failed to comply. 50 The RRT in this case concluded, on the evidence before it, that the level of state protection was in fact adequate and that adequate state protection would not be denied to the first applicant. 51 In my opinion, those findings were open on the evidence. There was no evidence before the RRT that the level of protection fell below international standards. 52 For that other reason, the RRT was right to affirm the delegate's decision. 53 The applicants' application to this Court must be dismissed. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate: Dated: 22 December 2005 Counsel for the First and Second Applicants: Dr S C Churches

Solicitor for the First and Second Applicants: Jane Nunan & Associates

Counsel for the Respondent: M Roder

Solicitor for the Respondent: Sparke Helmore

Date of Hearing: 8 December 2005

Date of Judgment: 22 December 2005