SCAG & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 545

FEDERAL COURT OF AUSTRALIA

SCAG & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 545 SCAG, SCAH & SCAI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS No S 54 of 2002 von DOUSSA J ADELAIDE 5 JUNE 2003

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 54 OF 2002

BETWEEN: SCAG, SCAH AND SCAI

APPLICANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: von DOUSSA J

DATE OF ORDER: 5 JUNE 2003

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. Application dismissed. 2. Applicants to pay the respondent's costs of and incidental to the application. 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 54 OF 2002

BETWEEN: SCAG, SCAH AND SCAI

APPLICANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: von DOUSSA J

DATE: 5 JUNE 2003

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 4 January 2002 and handed down on 25 January 2002. The decision of the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants' protection visas. The applicants are husband, wife and their daughter. The wife arrived in Australia on a false passport on 16 June 2000. The husband and daughter arrived in Australia on a valid temporary visa on 3 November 2000. On 16 January 2001 they lodged applications for protection visas. Under the criteria prescribed by the Migration Regulations 1994 (Cth), in respect of applicants who are members of the same family unit, it is enough if one family member is a person to whom Australia has protection obligations. Only the husband made a specific claim that he was a refugee within the meaning of the 'Refugees Convention' as amended by the 'Refugees Protocol', those expressions being defined by s 5(1) of the Migration Act 1958 (Cth) (the Act). 2 The husband claimed that he had to leave Albania as he feared death by a revenge killing in a blood feud between families. He said that a member of another family had stated an intention to kill a member of his family. His cousin had killed a male member of the other family in January 2000 over a dispute relating to a broken engagement, and the other family wished to revenge the killing. The husband said that if he returned to Albania he would be killed by a member of the other family as Albania is a small country and everyone knows everyone else's business. Attempts had been made to negotiate a settlement of the inter-family dispute, but the other family would not forgive the killing of their family member. The husband said that the Albanian authorities would not be able to protect him as the government is in chaos and the police are unable to control crime. Under the customary 'Kanun', known as the Code of Leke Dukagjini, which set down the rules for blood feuds, a male member of his family was liable to be killed. His cousin, who had killed the member of the other family, disappeared immediately and his whereabouts were unknown. Other male members of the husband's family comprised his father who was an elderly man, and his cousin's father. Both those men 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. 3 The applicants' visa application was based on the husband's claim that he is a member of a particular social group, namely his family, within the meaning of the definition of 'refugee' in the Refugees Convention, 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. 4 The Tribunal in its reasons for decision expressed 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, as I understand the reasons of the Tribunal, it ultimately gave the benefit of the doubt to the husband. The Tribunal concluded: 'The applicant claims that he fears being harmed by the [other] family because under the Code of Lek Dukagini [sic] which governs blood feuds, the wronged family is allowed to seek revenge by harming a male member of the family which wronged them, and this person can be someone other than the actual perpetrator of the crime. While the Tribunal accepts that the applicant fears persecution because of his family membership, this fear would not exist if his relative [his cousin] had not killed [a member of the other family] in a non-Convention related crime. The Tribunal finds that the motivation of the [other] family to harm a member of the [applicant's] family is revenge for [the] death and this motivation is not Convention-related.' On this finding, the Tribunal said that it was required by s 91S of the Act to disregard the husband's fear of persecution which arises from his membership of his particular social group, his family, because the harm he feared is not motivated by a Convention reason, and would not exist if it were not for the non-Convention related actions of a member of his family. Putting aside that fear, the Tribunal concluded that the husband did not have a well-founded fear of persecution which imposed protection obligations on Australia. Accordingly, the husband did not satisfy the criteria set out in s 36(2) of the Act for a protection visa. The Tribunal affirmed the decision of the delegate of the Minister not to grant protection visas to the applicants. 5 The applicants' application to this Court has run in parallel with the application in SCAL v Minister for Immigration & Multicultural & Indigenous Affairs (SCAL). The two applications were argued together with the same counsel appearing for the applicants in both matters. Judgment in SCAL is being delivered contemporaneously with this judgment: (see SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548). This judgment should be read with the judgment in SCAL. 6 In the written submissions filed in advance of the oral hearing on 5 February 2003 the applicants contended that the Tribunal had misconstrued s 91S. In oral argument the contentions of the applicants were re-cast in the same way as the submissions were re-cast in SCAL so as to contend that the Tribunal erred in identifying the particular social group, the membership of which was the reason for the husband's alleged well-founded fear of being persecuted. The contention that the Tribunal misconstrued s 91S of the Act was also maintained. 7 For the reasons given in SCAL, I do not consider the Tribunal erred in law in treating as the relevant social group the husband's family, nor do I consider the Tribunal erred in the construction and application of s 91S of the Act.