FEDERAL COURT OF AUSTRALIA

SVBB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 960

SVBB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ORS

SAD 46 of 2004

SELWAY J

9 JULY 2004

ADELAIDE

THE COURT ORDERS THAT:

1.           Certiorari to issue bringing up the decision of the Refugee Review Tribunal the subject of these proceedings, made on 9 February 2004 and quashing it.

2.           Mandamus to the Refugee Review Tribunal requiring the Tribunal to hear the application for review according to law.

3.           The first respondent to pay the applicant’s costs.

4.           No order as to the costs for the second and third respondents.

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

REASONS FOR JUDGMENT

1                     In these proceedings the applicant has sought the issue of writs of prohibition, certiorari, mandamus and/or injunctions in relation to a decision of the Refugee Review Tribunal (‘the Tribunal’).  The applicant says that the decision is invalid by reason of a jurisdictional error or errors made by the Tribunal.  For the reasons given below I think that application must succeed in this case.

2                     The applicant is a citizen of Albania.  He arrived in Australia on 27 September 2000.  On 31 October 2000 he lodged an application for a protection visa under the Migration Act 1958 Cth (‘the Act’).  In order for the applicant to be granted a protection visa, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) had to be satisfied that Australia had protection obligations to the applicant under the Refugees Convention as amended by the Refugees Protocol:  see section 36(2) of the Act.  In general terms, the Minister had to be satisfied that the applicant was a refugee as defined in the convention, being a person who -

‘… owing to a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.’

3                     The applicant claimed that he had a well-founded fear of persecution by reason of a blood feud involving his family and another family.  The background to that blood feud is set out in the Tribunal’s reasons.

‘In his application for a protection visa the applicant states that he left Albania because on 20 August 2000 his family killed a member of a [another] family and injured another.  The applicant claimed that his father is now in hiding and that the [other] family intends to take revenge which, under Albanian custom, requires a member of the [other] family to kill a male member of the applicant’s family.  This means that the applicant is in great danger in Albania and will probably be killed.’

4                     More detail of that claim is given below.  On 27 March 2002, a delegate of the Minister rejected the applicant’s claim for a protection visa.  The applicant sought a review of that decision from the Refugee Review Tribunal on 9 February 2004.  The Tribunal affirmed the decision of the delegate.  It is from that decision that these proceedings are brought.

5                     Both parties accept that, in order to succeed on this application, the applicant must show that there was a jurisdictional error in the process, reasons or decision of the Tribunal.  The applicant alleges that there were two errors.  The first is that the Tribunal failed to consider whether or not the applicant was a member of a broader social group other than his family and that the Tribunal also failed to consider whether or not the Albanian authorities persecuted the applicant.

6                     The short answer to the second allegation is that those arguments do not seem to have been put before the Tribunal nor, in my view, was there sufficient notice of those claims to suggest that the Tribunal should have been aware that that was the claim that was being pursued.  In these circumstances it seems to me that this aspect of the applicant’s argument is covered by my reasons in the case of STYB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 705.  As I understand it, the applicant’s solicitor, whilst not accepting that conclusion, properly conceded that it was fairly open on the facts and background of this case.

7                     The first ground of jurisdictional error raises issues of some more substance.  It is necessary to set out some of the reasons of the Tribunal in order to understand the background to it.

‘In a submission dated 22 January 2004 and received by the Tribunal on the same date, the applicant’s new adviser claimed that in the applicant’s circumstances, section 91S of the act did not apply to limit the applicant’s claim because the family of the applicant were being targeted collectively and at once by the blood feud and the Albanian state was either unable or unwilling to protect the applicant.  The adviser argues that the actions of the father should not be in question in the applicant’s case but that the relevant matter is the blood feud edict itself, which targets the family as a collective.  The adviser claims that in this way the applicant is a target either together with his father or separately, so that section 91S does not apply in his case.’

8                     In order to understand that submission, it is necessary to consider the operation of section 91S of the act.  That section provides:

‘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.’

9                     In relation to that section, the Tribunal made the following findings and comments:

‘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 [other] family to harm the applicant or any other member of the applicant’s family is revenge for a murder committed by the father of the applicant.  Revenge for any criminal act, including murder, is not a reason for harm which comes under the Refugees Convention unless it can be linked to a Convention reason.

The effect of section 91S is that I must disregard the fear of persecution of a person, such as the applicant, whose fear arises because he or she is the relative of a person targeted for a non-Convention reason, whose fear of persecution must be disregarded.  The application of section 91S in respect of blood feuds was upheld in SDAR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1102 in which Merkel J stated 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.’

In SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548 at [24], von Doussa J agreed with conclusions of Merkel J.  Taking into account all of the above, I find that s 91S prevents the applicant’s membership of his family being used as vehicle to bring him 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 he would be persecuted because he belongs to a particular social group, being his family.

The applicant’s adviser in a submission dated 22 January 2004 argued that section 91S of the Act did not apply in the applicant’s case as his family was being targeted collectively and that the applicant’s father’s actions or fears should not be relevant in the applicant’s case.  I do not accept this line of reasoning because if the applicant’s father had not murdered [the other] person, the applicant would not be targeted by the [other] family in any way.  I find the essential and significant reason that the applicant fears persecution is because the [other] family are seeking revenge for the murder of their family member by the father of the applicant and therefore s 91S must apply to prevent the applicant from relying on this action by his father to bring him within the scope of the Refugees Convention because the persecution or fear of persecution is motivated by a non-Convention reason.’

10                  It seems to me, with respect, that this analysis is clearly based upon the understanding that, if the event which caused the fear of persecution was an event caused by a family member, then s 91S does not apply.  In particular, it seems to be based upon an understanding 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.  For the reasons given by me in STXB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 860 at par 32 to 34, this seems to be an erroneous understanding of s 91S of the Act.

11                  In that case, there had been a factual finding by the Tribunal that the reason for persecution of the person who committed the alleged act was that person’s alleged act.  In the relevant paragraphs I proceeded to discuss why, in my view, that was a factual finding and not a legal one:

‘This is not to say that the factual finding made by the Tribunal was inevitable.  Some care needs to be taken in applying s 91S of the Act in circumstances involving claims based on customary or traditional law.  The application of that section is dependent upon a factual finding that the initial or original fear of persecution arises for a reason other than membership of the family group.  Obviously there must be someone in the family group who fears persecution for some reason other than that membership.  In the cases that have considered the issue in the context of Albanian blood feuds under the Kanun the relevant ‘someone’ is the person whose act caused the blood feud.  That person’s fear of persecution is usually expressed as a personal fear of revenge by the family of the person who was injured or (usually) killed: see, for example SDAR v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 72 ALD 129; [2002] FCA 1102 (‘SDAR’) at [24]; SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548 (‘SCAL 1’) at [24]; SCAL 2 at [10], [19].  Where such factual findings have been made then s 91S is applicable: see SCAL 2.

However, the applicability of s 91S depends upon the relevant factual findings.  In some traditional or customary legal systems which include the concept of family feud it is not appropriate to characterise the relevant ‘source’ of the feud as a separate and distinct individual responsibility for which the family group is, in effect, vicariously liable.  Rather it is the family group, including the individual as a member of that group, which is primarily responsible for the alleged wrong.  The individual who in fact caused the affront in the first place is only subject to persecution because he or she is a member of the family, not because he or she caused the affront.  In at least one of the examples of feud in traditional Indigenous Australian societies given by Ronald and Catherine Berndt in The World of the First Australians (5th ed, 1988) responsibility for the alleged wrong is ‘ascribed to the clan as a whole’ (see at 358).  Indeed, it would appear that in some traditional or customary legal systems the proper analysis of the feud is not in terms of ‘revenge’, but rather in terms of ‘debt’, with one family group being indebted to the other by reason of the initial transgression: see, for example, Norbert Rouland Legal Anthropology (1994) at 239-243, 274-277.  It would seem to me that if it were established as a fact that a family group was a ‘particular social group’ for the purposes of the Convention and that each member of the group was persecuted by reason only of their membership of that group then s 91S would not have application even if the reason why the group was being persecuted was in revenge arising out of act of a member of the family.

Some of the reasoning of the various Tribunals that have considered claims for refugee status based upon Albanian blood feuds might suggest that if the original cause for the alleged fear of persecution was an unlawful act by someone then this would be sufficient to exclude s 91S.  If so I do not think that is a correct understanding of the section.  For the purposes of s 91S of the Act the ‘reasons mentioned in Article 1A(2) of the Refugee Convention’ include ‘membership of a particular social group’ and that, in turn, may include membership of a family.  The question is not whether the ultimate cause of the feud was an illegal act by a family member or not, but whether any member of the relevant family feared persecution for a reason other than a Convention reason (including, for this purpose, membership of the relevant family)’ see SDAR at [24].’

12                  It was put to me on behalf of the Minister that the factual findings made by the Tribunal were factual findings that the applicant’s father feared persecution for a reason other than membership of the family group.  In my view, that is not a correct analysis of the Tribunal’s reasons, particularly in the context of the Tribunal ‘s statement of its understanding of how s 91S of the Act operates in these circumstances.  It was also put to me that the analysis by the Tribunal is consistent with analysis in other cases by this court; in particular, SDAR and SCAL 2.  There is some force in that submission and indeed it would appear that the Tribunal has understood those cases on that basis.

13                  However, in light of the terms of s 91S and the reasoning in those cases, it seems clear to me that the Court in those cases was not stating propositions of law, but propositions of fact which had been made by the Tribunal in those cases or which were reasonably to be inferred from those findings.

14                  Two other things should be said.  First, as a matter of fact the Tribunal may find that the Kanun has the effect that individuals who committed criminal acts are responsible for their own acts.  All of the previous cases in this Court would seem to be based upon factual findings made by the Tribunal that the Kanun does distinguish between the perpetrator and the family group.  The question of the effect of the Kanun is a matter of fact for the Tribunal in each case.

15                  Second, by reason of Article 1F of the Refugees Convention, the applicant’s father would not himself be able to make a claim to be a refugee even if the Kanun imposes only collective rather than individual responsibility.  However, it does not seem to me that s 91S incorporates article 1F in identifying the reason for persecution of all family members.

16                  Having regard to the application, it would seem to me that the Tribunal has proceeded on an erroneous understanding of s 91S of the Act.  It seems to me, that issue having been squarely raised before it, its failure to properly apply s 91S is a jurisdictional error.  It is a jurisdictional error which may have affected the result.  For that reason, the application must be allowed.

Associate:

Dated:              22 July 2004