FEDERAL COURT OF AUSTRALIA

SVNB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1125

MIGRATION – Protection visa – particular social group – blood feud – applicant claimed membership of family and membership of ‘Albanian men’ as relevant social group – blood feud began in 1945 – applicant’s grandfather persecuted for non-Convention reason – requirement under s 91S that decision maker disregard any fear of persecution held by the applicant as a result of the non-Convention related persecution of his grandfather.

Migration Act 1958 (Cth) s 91S

SDAR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1102 cited

SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548 cited

STXB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 860 cited

SVNB V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS; PETER KATSAMBANIS, MEMBER, REFUGEE REVIEW TRIBUNAL AND PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

SAD 75 of 2004

LANDER

2 SEPTEMBER 2004

ADELAIDE

THE COURT ORDERS THAT:

1.         The application for judicial review is dismissed.

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

REASONS FOR JUDGMENT

1                     This is an application for judicial review of a decision of the Refugee Review Tribunal (RRT) made on 27 February 2004 in which the RRT affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) made on 26 April 2002 refusing to grant the applicant a Protection visa.

2                     This matter was heard at the same time as the applicant’s wife’s application for judicial review of a decision of the same member of the RRT heard on the same day in connection with her application for a Protection visa.

3                     The applicant is an Albanian citizen who was born on 7 November 1971.  He is married to SVMB, who has also sought judicial review of a separate decision of the RRT.

4                     The applicant arrived in Australia on 29 October 2001.  On 6 December 2001 he lodged an application for a Protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (the Department) under the Migration Act 1958 (Cth) (the Act).  It is that application which was refused by a delegate of the Minister on 26 April 2002 and which gave rise to the review by the RRT, which affirmed the decision on 27 February 2004.

5                     In his application for a Protection visa, the applicant stated:

‘I left Albania because of a family feud.  My grandfather was killed by our neighbour and my father killed our neighbour and so the feud went on.  Our family was very poor and because of this feud we were forced to stay locked inside our house.  They were determined to kill one of us and I feared for my life.’

6                     The applicant claimed that the blood feud with which his family is involved began in 1945 when the applicant’s grandfather struck Brahim Hasani causing his nose to bleed.  His grandfather and Brahim Hasani had quarrelled over the boundary of their adjoining properties.  The following day, Brahim Hasani shot the applicant’s grandfather and killed him.

7                     The applicant claimed that his uncle, in revenge for his father’s death, killed Brahim Hasani in 1955.  The applicant’s uncle was arrested but never convicted of the murder.

8                     The applicant claimed that in 1986 Ramadan Hasani, the son of Brahim Hasani, shot and killed the applicant’s uncle in revenge for Brahim Hasani’s murder.  The applicant claimed that Ramadan Hasani returned to Albania, after the fall of communism in 1990 when he was shot dead by the applicant’s cousin, the son of the applicant’s uncle.  The applicant’s cousin immediately left for Italy and has not been heard of since.

9                     The applicant claimed that the blood feud not only arose out of the multiple murders, to which I have referred, but also involved religion.  The Hasani family are Muslim and the applicant’s family, Catholic.  All attempts at reconciliation of the two families have been unsuccessful.

10                  The applicant said that he and his brother left Albania for Italy on 31 August 1997 as life in Albania had become intolerable because the applicant and the male members of his family were forced to stay indoors to avoid being killed.  The applicant said that he was granted legal resident status in Italy in 1999 and, thereafter, re-established contact with his family whom he visited on five occasions between 1999 and October 2001.

11                  In his evidence before the RRT, the applicant said that he had married in Albania on or around the time of his fourth visit to Albania from Italy.  He did not take his wife to Italy when he returned.  He said that he did not see his wife again until she came to Australia.  He said that on his fourth trip he also was baptised.

12                  The applicant claimed that he was told in 2001 that a member of the Hasani family was in Italy searching for him.  The applicant decided to leave Italy and come to Australia to save his life.

13                  The RRT found that the applicant was an Albanian and a Catholic, and that his family was involved in a blood feud with the Hasani family which commenced in the circumstances related by the applicant.  The RRT found that the applicant was a member of a particular social group being the applicant’s family.  Because the RRT identified the particular social group, which consisted of the applicant’s family, the RRT was bound to consider the application of s 91S.  Section 91S provides:

‘91S    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.’

14                  The RRT found that the blood feud had commenced as a result of a dispute between Brahim Hasani and the applicant’s grandfather over the boundaries of their adjoining land.  It found that the Hasani family continues to seek to harm the applicant’s family in revenge for the killings that have followed that dispute.  In particular, the RRT found that the dispute did not arise out of any issue of religion.

15                  The RRT found that the dispute over the boundaries of land and the subsequent revenge for a series of killings were not reasons related to the Refugees Convention as amended by the Refugees Protocol.

16                  The RRT followed the decisions of Merkel J in SDAR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1102 and von Doussa J in SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548.

17                  In SDAR v Minister for Immigration & Multicultural & Indigenous Affairs, 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.’

18                  Having found that the applicant’s fear of persecution arose out of the blood feud which was caused by a dispute between the applicant’s ancestor and Brahim Hasani, and the subsequent revenge killings, the RRT dismissed the application.

19                  The applicant contends, on this application, that the RRT made a jurisdictional error because it failed to consider whether or not the applicant was a member of a broader social group other than his family.  In my opinion, that submission must be rejected.  It is clear from the RRT’s reasons, which have been cited above, that it did consider whether the applicant was a member of a broader social group other than his own family.

20                  It said:

‘The applicant has alternatively argued that he fears persecution from the Hasani family for religious reasons because he is a Catholic and the Hasani family are Muslims.  However I have already found that the motivation for the Hasani family seeking the applicant is because of their desire to seek revenge as part of the blood feud between their family and the applicant’s family.  I find that the essential and significant reason that the applicant fears persecution from the Hasani family is because of revenge under the blood feud and not for any reason related to the religion of the applicant.’

21                  Later, the RRT dealt with the applicant’s alternative claims and said:

‘The applicant’s adviser made a submission arguing that the applicant feared persecution on the basis of his membership of a particular social group being men in Albania or alternatively as a member of a particular social group being his family because of his family’s imputed political opinion.  However I have already found that the essential and significant reason that the Hasani family are seeking the applicant is because of their desire to seek revenge as part of the blood feud between their family and the applicant’s family and not because he is either a man in Albania or because of any political opinion that has been imputed upon him or his family because of their adherence to Kanun Law.  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 is a man in Albania or because of any imputed political [sic] of him or of his family.’

22                  The applicant has not identified in his further contentions of fact and law what particular social group he claims membership of.  At the hearing, his solicitor suggested he was a member of a particular social group, namely, Albanian men.

23                  Whether he is a member of a particular social class, being Albanian men, is not relevant in this case as he is not subject to persecution because he is an Albanian man but because he is a member of his own family.

24                  In my opinion, the RRT was right to conclude that the relevant particular social group which applied in the applicant’s case was his family.

25                  Once it found that fact it had to consider the application of s 91S.

26                  It had to consider whether any other member of the family had ever experienced a fear of persecution or persecution and, if it concluded that any other member had, then the RRT had to consider whether the reason for that fear of persecution or persecution is a reason mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol.

27                  Article 1A(2) relevantly provides:

‘… 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it.’

28                  In this case, the applicant’s grandfather was persecuted.  In fact, he was murdered.  He was murdered because he had assaulted and had argued with Brahim Hasani about the boundaries of their land.  The persecution suffered by the applicant’s grandfather did not arise for a Convention reason.  In those circumstances, the RRT was bound to disregard any fear of persecution or any persecution suffered by the applicant’s grandfather.

29                  Once the RRT reached that point, it also had to disregard any fear of persecution that the applicant has experienced, where it is reasonable to conclude that fear would not exist if it were assumed that the fear of persecution suffered by other members of his family had never existed.

30                  The applicant’s fear of persecution would not exist if the applicant’s grandfather had not been persecuted.  Section 91S of the Act applies.

31                  Because of the finding referred to in [13] of these reasons, I do not have to consider Selway J’s remarks in STXB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 860.

32                  In my opinion, having regard to the earlier findings made by the RRT, the RRT was bound to reach the conclusion it did and dismiss the applicant’s claim.

33                  In my opinion, the application for judicial review should be dismissed.

Associate:

Dated:              2 September 2004