FEDERAL COURT OF AUSTRALIA

SVZB v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1150

MIGRATION – protection visa – Albanian blood feuds – particular social group – s 91S of the Migration Act 1958 (Cth) – State toleration of the persecution of blood feudants

Migration Act 1958 (Cth) s 91S

Applicant S v Minister for Immigration & Multicultural Affairs (2004) 206 ALR 242 cited

SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 301 cited

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

Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 cited

SVZB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

No S 107 of 2004

FINN J

ADELAIDE

6 SEPTEMBER 2004

THE COURT ORDERS THAT:

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 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).

2                     He is a citizen of Albania and lodged his application prior to the amendment to the Migration Act which introduced s 91.

3                     The circumstances giving rise to his application are shortly summarised in the following paragraphs of the Refugee Review Tribunal’s reasons for decision:

“In a submission attached to his protection visa application, the applicant states he lived in Berat in the South of Albania with his father (who is separated from his mother) and his brother.  There are security problems in this region – ‘everyone had weapons and there was no law and order’.  There were several bad groups in Berat.  The most dangerous was the Jaupi family, which consisted of four brothers.  They have killed over 50 people.

The applicant’s family had trouble with the Jaupi family because they would just take goods from their shop.  In approximately January 1999, the police were looking for the two older Jaupi brothers – Ilir and Joti.  The applicant’s father saw them hiding in a house, in front of the applicant’s home, and he passed on this information to the applicant’s uncle, Mitat Kuci, the Chief of Police in Berat.  The brothers were aware that the applicant’s father had seen them.  The older brother, Joti, left the house, however the younger one was still there when police arrived about half an hour later and shot him.

The applicant’s uncle took Ilir to hospital with Ilir’s mother.  Before he died Ilir told his mother that the applicant’s father dobbed them in and that they should kill the applicant’s family.

Five days later the applicant’s shop was blown up and his family was forced into hiding,  The police could not do anything about the incident.  They went to Tirana, but approximately five months later Joti threw hand grenades at their house.  A few months later (in approximately July 1999) the family car which was being driven by a friend of the applicant (Sokol) was blown up, killing his friend.  The applicant believes that Joti and his gang assumed that he and his family were in the car.

The applicant’s family moved to Durres, 40 km South of Tirana.  The applicant’s uncle told him that Joti was threatening his family saying he would be killed, as would the applicant’s family.  The police moved his uncle to Tirana.

The applicant’s family moved illegally to Greece.  Subsequently Joti has killed a chief of police in the South of Albania.  Three days after this, he called the police and said he wanted to destroy the family.  The applicant was not safe in Greece because Joti has relatives and other contacts there.  Thus, he departed for Australia after he was offered an Italian passport and Australian visa.

The Applicant’s adviser submitted that the blood feud/revenge problem in Albania is very real and that the applicant has a well-founded fear of persecution because of membership of a particular social group (his family).  She also submitted that it is not possible for the applicant to relocate to another part of Albania and that the applicant cannot live safely in neighbouring countries, such as Greece or Italy.”

4                     On 1 October 2001, s 91S came into force.  It 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.”

5                     The Department of Immigration (to abbreviate its title) sought comments from the applicant’s migration agent on s 91S as it might apply to the applicant.  Her response was that the well recognised social group to which the applicant belonged was “Blood feudants”.

6                     The Minister’s delegate refused the application essentially on s 91S grounds. 

7                     In review proceedings before the Tribunal the particular social groups relied upon were (i) family and (ii) blood feudants.  The latter description was treated by the Tribunal as synonymous with “citizens of Albania who are subject to the operation of customary law code of Leke Dukagjini (the Kanun)” in consequence of a submission made by a new migration agent on his behalf.

8                     At the hearing before the Tribunal the applicant was questioned about the reason he feared persecution.  The Tribunal dealt with this questioning in the following passage:

“I wanted him to indicate the reason that he feared persecution:  Why did the Jaupi family want to harm him?  He stated that it was because his father told the police the location of Ilir Jaupi who was subsequently shot by police:  emphasis in original.

Thus, the applicant confirmed that the main reason he feared the Jaupi family was because they wanted to exact revenge because they blamed his father for the death of Ilir.”

9                     In dealing with the claim based on membership of his family, the Tribunal concluded that his application fell within s 91S.  It considered that that section required the Tribunal to identify the operating cause for a threat “where an applicant has a fear due to a threat directed at his or her family”.  In the present matter it concluded:

“… the reason for the fear held by the applicant (and other members of his family) is non-Convention related:  it is because his father told police of the whereabouts of a member of the Jaupi family and this family now wishes to avenge the resultant killing of Ilir Jaupi by police.  It follows that the applicant’s fear of persecution in relation to the family feud is to be disregarded.”

10                  Though the Tribunal made no explicit finding of any fear of persecution the applicant’s father experienced, it had earlier indicated what was the applicant’s reason for fearing persecution.  It was “because [the Jaupi family] wanted to exact revenge because they blamed his father for the death of Ilir”.  In my view, it is implicit in the Tribunal’s finding, having regard to its exposition of s 91S, that it made the requisite finding concerning the fear of the applicant’s father.  I would note that the applicant does not contest the family group finding in this application.

11                  Turning to the alternatively formulated group – the “blood feudants” – the Tribunal clearly failed to ask itself the correct question in determining whether or not the alleged social group existed.  It applied a decision of the Full Court of this Court (Zamora) which was later overruled by the High Court in Applicant S v Minister for Immigration & Multicultural Affairs (2004) 206 ALR 242.

12                  However, it has been submitted by the respondent Minister – correctly in my view – that this error had no practical effect on the result and should not lead to the decision being quashed:  see SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 301 at [19];  STXB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 860.  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.”

13                  It was plainly open to the Tribunal as a matter of fact to find that the reason for any persecution was membership of the relevant family rather than membership of some broader group.  In consequence, the Tribunal’s error did not vitiate its decision.

14                  The one submission made by the applicant which is untouched by the above conclusion relates to alleged State toleration of blood feuds or else of the actions of the Jaupi family on account of their connections with Government. 

15                  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.  It was revisited in his new migration agent’s submission to the Tribunal in the following way in the context of the applicant’s membership of the social group of blood feudants:

“Furthermore the Jaupi family have very powerful political connections which allows them to do what they basically want therefore due to the lack of governmental intervention membership of the above group is tolerated by the governmental authorities who rarely intervene in such customary disputes.”

16                  In narrating the applicant’s claims the Tribunal noted these matters;  it commented at several points that “political … reasons are not central to his fear of persecution;  and it dealt generally with those matters in these terms: 

“While the applicant mentioned political and religious considerations at the hearing, this was not in an endeavour to accurately detail the reasons for his fear.  The applicant’s attempts to place his fear of persecution against a religious or political context was simply an attempt to contrive a Convention ‘hook’ for his fear.  The applicant would not fear the Jaupi family if his father did not inform of [sic] the police of the whereabouts of Ilir Jaupi.  This is a point accepted by the applicant.

The applicant’s submission at the hearing that he would not fear the Jaupi family if they were not politically connected does not advance the applicant’s case.  This is a matter that could go to the issue of state protection, however, is not relevant in this case given that the applicant cannot overcome the threshold point that neither the Jaupi family nor the State will impute him with an adverse political opinion.  The applicant does not risk being harmed on account of his political opinion and hence it is not necessary to consider if the state can protect him from such harm.”

17                  As best 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’s being a member of a blood feud group.

18                  The Tribunal did not make an explicit finding on this matter, though it acknowledged that the applicant had raised State toleration.  This failure cannot assist the applicant.  Section 91S has seen to that, though in an unusual way.

19                  The terms of that section are such that (i) if the applicant claims to have a well-founded fear of being persecuted for the reason of membership of his family, then (ii) one has to disregard (a) any fear of persecution that his father has ever experienced, where the reason for the fear is because of the revenge sought against him by the Cufe’s (i.e. it is a non-Convention reason);  and (b) any fear the applicant has where it is reasonable to conclude that that fear would not exist if it were assumed that the fear of his father had never existed.

20                  Even if it be assumed that the fear of persecution had by the applicant can possibly be characterised as fear of persecution by the State for a Convention reason (i.e. condonation of violence to members of his family as blood feudants):  on such State persecution, see Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1;  that fear (being “any fear”) is to be disregarded if his father’s fear is not Convention related and if the applicant’s fear would not exist if his father’s fear had never existed.

21                  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.

22                  If this conclusion seems surprising because it leads to the disregard of State persecution it only emphasises that s 91S itself is a surprising section.

23                  Accordingly, I dismiss the application with costs.

Associate:

Dated:              6 September 2004