SCAG v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 302

FEDERAL COURT OF AUSTRALIA

SCAG v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 302 Migration Act 1958 (Cth) s 91S SCAG, SCAH AND SCAJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS S 567 OF 2003 CARR, FINN and SUNDBERG JJ 18 DECEMBER 2003 MELBOURNE (HEARD IN ADELAIDE)

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 567 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: SCAG, SCAH AND SCAJ

APPELLANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CARR, FINN and SUNDBERG JJ

DATE OF ORDER: 18 DECEMBER 2003

WHERE MADE: MELBOURNE (HEARD IN ADELAIDE)

THE COURT ORDERS THAT: 1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 567 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: SCAG, SCAH AND SCAJ

APPELLANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CARR, FINN and SUNDBERG JJ

DATE: 18 DECEMBER 2003

PLACE: MELBOURNE (HEARD IN ADELAIDE)

REASONS FOR JUDGMENT

THE COURT:

1 The appellants are a husband and wife and their daughter. They are Albanian citizens. The wife arrived in Australia on a false passport on 16 June 2000. The husband and daughter arrived on a valid temporary visa on 3 November 2000. On 16 January 2001 they lodged an application for a protection visa. Only the husband made a specific claim that he was a refugee within the meaning of the Refugees Convention. A delegate of the respondent refused to grant the visa. The delegate's decision was affirmed by the Refugee Review Tribunal. The appellants' application for review of the Tribunal's decision was dismissed by the primary judge. The appeal is from that decision. 2 The husband claimed he had to leave Albania because he feared death by a revenge killing in a blood feud between two families. He said his cousin had killed a male member of another family in January 2000 over a dispute relating to a broken engagement. The other family stated an intention to kill a member of the husband's family by way of revenge. He said that if he returned to Albania he would be killed. Attempts had been made to negotiate a settlement of the dispute, but the other family would not forgive the killing. Under the customary Code of Leke Dukagjini, known as the "Kanun", which sets down the rules for blood feuds, a male member of the husband's family is liable to be killed. The husband's cousin had disappeared after the killing, and his whereabouts are unknown. Other male members of the husband's family were his father, who was elderly, and his cousin's father. Both had been in hiding since the death. The husband said he was the only other male member of the family, and therefore the likely victim. The husband's visa application was based on his claim that he is a member of a particular social group, namely his family, and that he would be persecuted if he returned to Albania for reasons of his membership of that particular social group because he would be the target of the blood feud. 3 In its reasons for decision the Tribunal said it had considerable doubt about several aspects of the husband's claim, and in particular his explanations for delay in seeking a visa to travel to Australia and in leaving Albania, which seemed to the Tribunal to be inconsistent with the behaviour of a person who feared serious harm. However, it gave him the benefit of the doubt, and concluded that he was not entitled to a protection visa because of the operation of s 91S of the Migration Act 1958 (Cth). The Tribunal said: "According to the applicant's account, Gjergi Simonej and Arben Prela were exchanging punches, and then Gjergi pulled out a gun, fired at Arben and killed him. The Tribunal finds that even though family matters were the cause of the dispute, the killing of Arben Prela, which triggered the blood feud, was a criminal act by Gjergi Simonej, and was not Convention‑related. … While the Tribunal accepts that the applicant fears persecution because of his family membership, this fear would not exist if his relative, Gjergi Simonej, had not killed Arben Prela in a non‑Convention related crime. The Tribunal finds that the motivation of the Prela family to harm a member of the Simonej family is revenge for Arben's death and this motivation is not Convention‑related. The Tribunal is therefore required by s.91S of the Act to disregard the applicant's fear of persecution which arises from his membership of his particular social group, his family, because the harm he fears is not motivated by a Convention reason, and would not exist were it not for the non‑Convention related actions of a member of his family."