SVZB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 14 | Case summary

REASONS FOR JUDGMENT SPENDER J: 1 These three appeals concern, amongst other things, allegations said to be based on "blood feuds" amongst families in Albania. In respect of each appeal the appellant has, in written outlines of submission, made the following statements: '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. (Emphasis added) 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.' 2 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 The concession by the counsel for the appellant in each appeal is sufficient to justify the orders dismissing the appeals with costs, but it is appropriate in the light of the foreshadowed possible application for special leave that we give our own short reasons why the appeals are properly to be dismissed. 4 I refer to and incorporate the reasons which the Court, as presently constituted, expressed in other matters which the Court published immediately before these appeals were called on, namely STJB v Minister for Immigration and Multicultural and Indigenous Affairs, STDB v Minister for Immigration and Multicultural and Indigenous Affairs and STXB v Minister for Immigration and Multicultural and Indigenous Affairs, where the specific aspects referred to in those three appeals were the subject of short observations by the Court. 5 Dealing first with SVXB, the reasons of Finn J of 14 July 2004 in par 2 indicate that the application before him put in issue only one matter, and that was whether the Refugee Review Tribunal ('the Tribunal') erred in concluding that the applicant's claim fell within the exclusionary provisions of s 91S of the Migration Act 1958 (Cth) ('the Act'). His Honour, in par 4 of his reasons, concluded: 'The Tribunal found as a matter of fact that: (i) "the applicant believes he will be killed by the bereaved family for reason of his family's association with his father, the one who killed the two men"; and (ii) "the father's fear is fear of revenge for deaths he occasioned during the course of a quarrel over the sale or disposition of land. This is not a Convention reason".' 6 His Honour continued: 'No basis for impugning either of those findings was advanced by the applicant. They are conclusive of this application. The second finding attracts the provisions of subpar (a) of s 91S; the first finding, the provisions of subpar (b) of s 91S. The application must be dismissed.' 7 In my opinion, his Honour's conclusions that the findings of fact by the Tribunal are as he characterised them, are correct and dispose of the claim in respect of s 91S of the Act. No ground exists for a successful appeal from his Honour's decision in that matter. 8 The second appeal is SWBB, a judgment of Finn J of 6 September 2004. His Honour, in par 2 of his reasons, indicated that there were three bases advanced for the claim for refugee status in that case. The first was participation in two blood feuds, the second was by reason of membership of a particular social group of businessmen, and the third alleged persecution by reason of political opinion. 9 In pars 21 and 22 his Honour dealt with the claim based on s 91S of the Act. His Honour said: 'The migration agent's contentions have sought to cast this feud as one of the traditional type. Even if the claim could permissibly be recast in this fashion - and I do not consider it can - it would fail under s 91S of the Migration Act 1958 (Cth) as that section is understood to apply to a family feud: see e.g. SCAL v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 301. The claim based on persecution by reason of membership of a particular social group being "businessmen who are persecuted by criminal gangs that are tolerated by the State authorities", failed on several bases. One was that it was not a "cognisable group"; another, that the applicant, as a businessman subject to extortion, had State protection available to hire. …' 10 In relation to the third claim based on the applicant's political opinion, after making some observations his Honour concluded: '… In this state of affairs I am unprepared to conclude that the Tribunal erred in what it said, let alone that it failed to consider an important aspect of the applicant's claim.' 11 His Honour rejected each of the three bases for the claim seeking to interfere with the Tribunal's decision, in particular in respect of the claim based on s 91S of the Act. No error appears in his Honour's reasons in that regard, nor, it should be said for completeness, in his treatment of the other unsuccessful grounds of the application. 12 The third matter, SVZB, again was the subject of judgment by Finn J on 6 September 2004. In this particular case the applicant, who appeared in person before Finn J, was noted by his Honour, in the first paragraph of his reasons, in these terms: 'The applicant, in prosecuting his unsuccessful application for a protection visa, has sought to steer a course that would save him from foundering on the provisions of s 91S of the Migration Act 1958 (Cth). 13 However, the gravamen of his Honour's decision is to be found in par 12 of his reasons in these terms: '… Though the Tribunal found that blood feudants did not constitute a particular social group, it went on to make a finding that: "... the reason for the applicant's fear is not because he belongs to a group of people called blood feudants, but because his father was implicated in the killing of a member of the Jaupi family".' 14 Later, in relation to the aspect of State toleration, his Honour said: 'The question of State toleration was raised by his migration agent in response to the request to comment on s 91S and it took the form of a bare assertion to that effect. … As best as I understand the challenge now made to the Tribunal's conclusion, it is that the Tribunal did not consider whether there was State toleration of the persecution of blood feudants, and whether this was motivated by reason of the applicant being a member of a blood feud group.' 15 His Honour at par 21 concluded: 'I earlier indicated that the Tribunal has made the implicit finding that the applicant's father's fear was not Convention related. To assume his father's fear had never existed requires as well the assumption that its cause did not exist, i.e. there had been no blood feud precipitated by his actions. In such circumstances it would be reasonable to conclude that the applicant's fear of persecution by the State would not exist as that fear presupposed a blood feud involving his family.' 16 In my opinion, there is no reason to doubt the correctness of his Honour's conclusion that the application ought to be dismissed having regard to the provisions of s 91S of the Act, and the particular claims that the applicant relied on. 17 For these reasons, and having regard to the Court's more considered observations in STJB v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCAFC 9, these appeals should be dismissed with costs. HEEREY J: 18 I agree. The only thing I wish to add is that in the SWBB matter, I do not wish to be taken as endorsing the primary judge's criticism of the style of the Tribunal's reasons or their brevity. LANDER J: 19 I also agree. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Heerey & Lander

SVZB v Minister for Immigration & Multicultural & Indigenous Affairs

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