FEDERAL COURT OF AUSTRALIA

STCB v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 276

STCB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

No S 813 of 2003

FINN J

ADELAIDE

15 MARCH 2004

THE COURT ORDERS THAT:

1.         The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The object of this application is to keep alive the right of the applicant ultimately to seek special leave to the High Court against the anticipated decision of the Full Court of this court.  The matter, as has been accepted by the applicant, is for present purposes governed by the Full Court decision in SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 301.  Special leave had been sought in SCAL.

2                     The applicant has candidly conceded that SCAL is determinative of the issues in this matter, and I am bound to follow that decision.  That concession has properly been made.  The present matter, like SCAL, involves an alleged fear of persecution arising from an Albanian blood feud, in this case, the blood feud resulting from the killing by the applicant's grandfather of a member of the aggrieved family in 1944 or 1945.  That family has declared its intention to take revenge.

3                     For present purposes, I am obliged to conclude that if the applicant did not belong to his family or if his grandfather had not killed a member of the aggrieved family he would have no fear of persecution.  The particular social group to which he belongs is his family, and s 91S of the Migration Act 1958 (Cth), in the circumstances, precludes reliance upon fear of persecution by reason of his membership of that group for the purposes of an application for a protection visa. 

4                     Accordingly, the application will be dismissed with costs.

Associate:

Dated:              17 March 2004