FEDERAL COURT OF AUSTRALIA

SVXB v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 923

SVXB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, SUE ZELINKA, MEMBER REFUGEE REVIEW TRIBUNAL & PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

No S 99 of 2004

FINN J

ADELAIDE

14 JULY 2004

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the first respondent’s costs of the application.

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

REASONS FOR JUDGMENT

1                     I have already dismissed this application.  These are my reasons for so doing.

2                     This is another Albanian “blood feud” case which has resulted in an unsuccessful application for a protection visa under the Migration Act 1958 (Cth) (“the Act”).  The proceeding in this Court under s 39B of the Judiciary Act 1903 (Cth) now puts in issue only one matter.  It is whether the Refugee Review Tribunal erred in concluding that the applicant’s claim fell within the exclusionary provisions of s 91S of the Act.  That section provides:

“91S   Membership of a particular social group

            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.”

3                     The applicant’s father had killed two men in a shooting incident.  Those killings gave rise to a “blood feud” with his father’s family as a result of which he, as a member of the family group, fears persecution.

4                     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 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.”

5                     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.

6                     The application sought inappropriately to exploit a distinction in the application of s 91S suggested by Selway J in STXB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 860.  The factual foundation for this is non-existent in light of the findings I have noted above and which were of a character that Selway J considered in STXB to be appropriate to attract s 91S.

7                     I have ordered the applicant to pay the first respondent’s costs of the application.

Associate:

Dated:              14 July 2004