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

FEDERAL COURT OF AUSTRALIA

STXB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 860 MIGRATION - Protection Visa - Albanian Blood Feuds - Particular Social Group - Section 91S of the Migration Act, 1958 (Cth). Migration Act 1958 (Cth) Minister for Immigration & Multicultural Affairs v Zamora (1998) 85 FCR 458 Applicant S v Minister for Immigration and Multicultural Affairs (2004) 206 ALR 242 SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 301 SDAR v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 72 ALD 129 SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548 STYB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 705 STJB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 861 STXB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS S 35 of 2004 SELWAY J 8 JULY 2004 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S35 OF 2004

BETWEEN: STXB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SELWAY J

DATE OF ORDER: 8 JULY 2004

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT:

The application is dismissed.

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 S35 OF 2004

BETWEEN: STXB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SELWAY J

DATE: 8 JULY 2004

PLACE: ADELAIDE

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 that decision is invalid by reason of a jurisdictional error made by the Tribunal. For the reasons given below, the application is dismissed. 2 The applicant is a citizen of Albania. He arrived in Australia on 24 February, 2001. On 11 April, 2001 he lodged an application for a protection visa. 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: s 36(2) of the Migration Act 1958 (Cth) ('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 reason 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 blood feud was said to arise from a dispute over land which resulted in the applicant's grandfather killing a member of the other family. Although the applicant's grandfather spent many years in prison as a result of the incident, the other family still held the applicant's family responsible. Members of the applicant's family had been threatened and the applicant's family home had been 'machine gunned'. Attempts by 'the authorities' to resolve the dispute by reconciliation had failed. The applicant said that he had fled Albania to escape the risk of being killed as a result of the feud. 4 There was some development of the claim over time. In its reasons the Tribunal described the claim before it as follows: 'In his application for a review to the Tribunal that applicant states that considers himself a refugee because he is outside his country of nationality and believes that he has a well founded fear of persecution by the aggressive acts of others and cannot gain full protection from the police or the authorities. The applicant claims that he is not willing to seek protection in Albania or in any other nearby country because those threatening his life can and will find him and kill him. The applicant claims he sincerely believes that his life is threatened because of a social order that is allowed to continue and therefore denies him freedom from the continuing fear of persecution. The applicant claims that he fears that the act of those pursuing him with intent to injure or kill him is in itself a persecution and for those reasons he seeks the protection of Australia. Further Submission by Adviser [This year] the applicant's advisor forwarded a written submission to the Tribunal where it was claimed that the applicant had suffered persecution in Albania by reason of his membership of a particular social group, that group being men in Albania. It was argued by the adviser that only men in Albania were subject to Kanun Law and as such men were an identifiable particular social group for the purposes of the Convention. It was further claimed that the applicant had been persecuted in Albania by reason of his membership of a particular social group, that group being his family because of his family's imputed political beliefs and that this imputed political belief is based on an imputation that the applicant's family is expressing a political opinion about the Kanun law. The adviser further claims that the applicant deserves protection on humanitarian grounds.' 5 On 15 March, 2002 the applicant's claim was rejected by a delegate of the Minister. The applicant sought a review by the Tribunal of that decision. 6 The Tribunal interviewed the applicant who informed the Tribunal of his fears and of the blood feud. The Tribunal also had before it 'country' information relating to blood feuds in parts of Albania. In particular, the Tribunal referred to and quoted from a report from the United Kingdom Home Office of October, 2003: 'Blood Feuds The communist regime spent a good deal of time and energy in trying to stamp out revenge killings, Hajmarrja-Akmaria, as they are known in Albanian. A principle enemy of communist propaganda among the peasants, particularly in the northern highlands, was the Kanun of Lek Dukagjini. The Kanun of Lek Dukagjini, in popular parlance the Law of Lek, is a volumnious compendium of tribal and clan customs passed down largely unchanged since ancient times. The tribal elders to try to regulate the intermittent anarchy of the mountains, and the operations of the blood feud through the Kanun. Thus, the Kanun lays down the circumstances in which it is permissible to kill an enemy. The blood feud is a factor in the social life of the many remote Albanian communities. The Albanian character is seen as a product of this world, with immense regard being put on personal loyalty and bravery, but with a common disregard for the requirements of the state legal system. Despite efforts by the Albanian government to wipe it out, the Kanun of Lek Dukajini, has reappeared throughout northern Albania, since the return of democracy. The code has been handed down orally through generations, and lays out a code of 'laws' governing marriage, birth, death, hospitality and inheritance, which have traditionally served as the foundation of social behaviour and self-government for the clans of northern Albania. In particular, the Kanun regulates killings in order to stop the total annihilation of families. Written editions of the text are widely available in Tirana and Kosovo kiosks. According to several sources, a range of factors has contributed to the re-emergence of blood feuds, 'gjakmarrja', especially in northern Albania, such as the weakness of state institutions, a law and order vacuum, and a lack of trust in the law. Most ongoing vendettas stem from disputes over land and water rights. Many killings continued to occur throughout the country as the result of individual or clan vigilante actions connected to traditional 'blood feuds' or criminal gang conflicts. The Albanian Helsinki Committee considers one reason for the prevalence of the blood feud to be the failure of the judicial system to operate appropriately. The Kanun has been used as a system for administering justice in northern Albania, which historically has remained isolated from central government law. Today, revenge killings in the name of the Kanun have taken on threatening proportions. A recent survey on the Kanun by the Independent Social Studies Centre, Eureka, expressed concern that many killers were using the rules of the Kanun as a cover to commit ordinary crime. In one sense it could be argued that northern Albanians are resorting to the Kanun in order to fill the law and order vacuum. In most cases, however, it is not the traditional rules of the Kanun that are being applied but rather a self-selected interpretation. In fact it is a means of settling accounts amongst gangs of traffickers, smugglers, and other criminal elements who, in the absence of official law and order, can use the fear, respect and moral justification associated with the Kanun to terrorise people into a code of silence. According to the Ministry of Public Order, more than 29 individuals were killed in blood feuds in 2002. Under the kanun, only adult males are acceptable targets for blood feuds, but women and children often were killed or injured in the attacks. According to several sources, it is often difficult to distinguish 'traditional' blood feuds governed by the Kanun from the same use of the Kanun by criminal elements to hide their crimes. The number of persons affected directly or indirectly by blood feuds varies widely. The Albanian Human Rights Group (AHRG) estimated that 1,400 families were self-imprisoned at home and that 140 to 400 children were prevented from attending school due to fear of revenge. A newly formed organisation, 'MJAFT!' (in essence, translating as 'Enough is Enough') estimate that Blood Feuds are " … .the reality for over 7,000 northern Albanians living today". Several agencies provide reconciliation services to families involved in blood feuds, although according to the International Crisis Group there has been no concerted and coordinated strategy devised to combat this growing and deeply damaging phenomena. The Association for Fraternization and Reconciliation aims to settle disputes between families through dialogue. During 2002, the Ombudsman Office also contributed to resolve a number of highly controversial cases concerning blood feud. The Albanian Peace Union, formerly the Albanian Reconciliation Mission was founded in 1991. It claims over 1,000 members and to have resolved over 3,000 feuds in the last ten years. Albania is taking formal steps to reduce the role played by the blood feud in the country. A round table held on 13 June 2003 came up with an action plan for dealing with the ancient phenomenon, which has been criticised by the European Union (EU) and is likely, if not addressed, to pose a barrier to EU integration. The moves were strongly backed by Albanian President Alfred Moisiu, who told the meeting he was totally committed to reducing blood feud. In President Moisui's address to the Albanian Assembly, on 5 October, he said that the "growing tendency towards family crime and the increased number of victims in the name of the Kanun is a blow to the state." The Albanian Penal Code does not contain any provisions that directly address blood feuds. The Vice-Chairman of the British-Albanian Legal Association stated in March 2000 that to incorporate any special provisions dealing with blood feuds in the Criminal Code would be seen as a retrograde step in Albania by giving official recognition to an archaic custom. There are certain articles that could become relevant if the crime at issue was feud related. Articles 48 and 50 deal with mitigating and aggravating circumstances. Circumstances that can lead to mitigation of punishment include when an act is committed due to positive moral and social values. A traditional judge, sympathetic to the conviction of customary law, might consider an act committed pursuant to a blood feud would be committed 'due to positive moral and social values.' Aggravating circumstances include the act being committed 'savagely and ruthlessly' which is sometimes the case when a blood feud is the motive. Article 49 provides that the Court may also consider other circumstances which it deems such as to justify the lowering of the sentence and again this could be applied in the case of a feud-related crime. The punishment for simple murder is a term of 10 to 20 years' imprisonment. The sentence for premeditated homicide is 15 to 25 years' imprisonment, and when aggravating circumstances occur, life imprisonment. The very nature of a blood feud means that the murder would be premeditated. (UK Home Office: Albania Country Report, October 2003 Section 6) 7 The Tribunal delivered its decision on 23 January, 2004. It accepted that there is a long standing tradition of blood feuds in Albania and that the applicant's family was involved in a blood feud. It accepted that the reason for this was that the applicant's grandfather had killed a member of the other family and the other family wanted to get revenge for the death. 8 The Tribunal also accepted that the applicant's family could be considered as a 'particular social group' for the purpose of the Convention. However, the Tribunal found that that was not sufficient in light of the terms of s 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 The Tribunal held that the effect of s 91S of the Act was that it had to disregard a fear of persecution which arose by reason of the applicant's membership of his family where the motivation for the original persecution of another member of that family was a 'non-Convention reason': 'The effect of s91S is that I must disregard the fear of persecution of persons such as the applicants whose fear arise because they are the relatives of a person targeted for a non-Convention reason whose fear of persecution must be disregarded. The application of s91S in respect of blood feuds was upheld in SDAR v Minister for Immigration & Multicultural & 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 a 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 belong to a particular social group being his family.' 10 The Tribunal then proceeded to consider the applicant's claim based upon his membership of a broader social group, namely men in Albania. As to that claim the Tribunal identified the relevant criteria for identifying a 'particular social group' as that identified by the Full Court in Minister for Immigration & Multicultural Affairs v Zamora (1998) 85 FCR 458 (Zamora) at 464: '… To determine that a particular social group exists, the putative group must be shown to have the following features. First, there must be some characteristic other than persecution or the fear of persecution that unites the collection of individuals; … Second, that characteristic must set the group apart, as a social group, from the rest of the community. Third, there must be recognition within the society that the collection of individuals is a group that is set apart from the rest of the community. 11 The Tribunal then proceeded to discuss the relevant legal principles: 'Whether a supposed group is a 'particular social group' in a society will depend upon all of the evidence. … In MIMA v Applicant Z [2001] FCA 1823 Sackville J (Hely J agreeing), held that there was no material before the Tribunal to justify a finding that Afghan society, or some clearly identifiable section of it, perceived 'able bodied Afghan men' as a distinct social unit. Justice Kiefel, with whom Hely J also agreed, concluded that the group 'able bodied Afghan males' shared no common attribute which linked them and set them apart from society as a recognisable group. Her Honour agreed with Tamberlin J in Mahmoodi v MIMA [2001] FCA 1090 that the description 'able bodied Afghan males' was simply of characteristics based on gender or health or fitness.' 12 On the facts before it the Tribunal held that 'Albanian men' were not a 'particular social group' for the purposes of the Convention: 'Neither the applicant nor his adviser advanced any argument that men in Albania are perceived in any way as a distinct social unit in society. Men in Albania do not share any common attributes that make them stand apart from the rest of society as a recognisable group. I therefore find that men in Albania do not constitute a particular social group for the purposes of the Convention.' 13 In any event, the Tribunal also held that any fear of persecution that the applicant might have was not because he was an Albanian man but because his family was involved in a blood feud: '… However it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be feared because of the person's membership or perceived membership of the particular social group: Applicant A per Dawson J (at 240); and Gummow J (at 285) agreeing with the statement of Burchett J in Ram v Minister for Immigration & Ethnic Affairs & Anor (1995) 57 FCR 565 at 569: "When a member of a social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned in the eyes of their persecutors, so that it is a fitting use of language to say that it is 'for reasons of' his membership of that group." … Even if men in Albania were to be found to be a particular social group the essential and significant reason why people may be harmed under a blood feud is not because they are men in Albania. It is clear that the essential and significant reason why a person would be a target under a blood feud is their membership of a family that is the subject of a revenge attack in a blood feud. It is the membership of this family that gives rise to the essential and significant reason for the persecution and as I have already found that s.91S prevents the applicant's membership of his family being used as a 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.' 14 For similar reasons the Tribunal also rejected the further claim by the applicant that men in Albania targeted in accordance with the Kanun formed a 'particular social group': 'At the hearing the applicant claimed that he was a member of a particular social group, that social group being men in Albania who are targeted in accordance with the Kanun. A particular social group is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. That is to say, not only must such persons exhibit some common element; the element must unite them, making those who share it a cognisable group within their society … There is no such internal link or unifying characteristic, attribute, activity, belief, interest or goal with men in Albania who are targeted for revenge killing under the Kanun in order for them to be perceived as a particular social group. The lack of common unifying element as expressed by Gummow J. in Applicant A (at 104) is also apparent in claiming that this particular social group exist. It is clear that the people persecuted under Kanun law in Albania are not in fact being persecuted for reasons of their membership of a particular social group being men in Albania being targeted for revenge under the Kanun but are being persecuted for reasons of their membership of their own family which is involved in a blood feud. I therefore find that men in Albania being targeted for revenge in accordance with the Kanun do not constitute a particular social group for the purposes of the Convention.' 15 Finally the Tribunal rejected another argument put by the applicant that the applicant feared persecution by reason of his political opinion, namely as to the role of the Kanun. 16 It should be noted that there was no claim by the applicant that the Albanian authorities had actively or deliberately condoned blood feuds. Indeed the Tribunal found: '… I find that the Albanian authorities have recognised the problems caused by blood feuds in their society and I also find that they have shown they are willing to take action to address these problems.' 17 For these reasons the Tribunal was not satisfied that the applicant satisfied the criteria for the grant of a protection visa and affirmed the decision not to grant a protection visa. 18 The applicant brings these proceedings in this Court alleging that the decision of the Tribunal was invalid. The parties accept that the applicant can only succeed if he can identify some jurisdictional error in the process, reasoning or decision of the Tribunal which could have affected the conclusion that it reached. Two jurisdictional errors are alleged. 19 The first is an alleged breach of the rules of procedural fairness. The interview of the applicant by the Tribunal was conducted by video link. The applicant was assisted by a migration agent. In the course of the hearing the applicant gave some answers as to dates which were contradictory. An affidavit has been filed from the applicant's migration agent. That affidavit alleges that the applicant was sitting immediately adjacent to the migration agent. The migration agent was taking notes. The migration agent deposes that the Tribunal directed the migration agent to move his notes away from the applicant. The migration agent moved further away from the applicant, but continued to take notes. The migration agent also deposes that the Tribunal raised the same issue with the migration agent at a later stage in the interview. The migration agent said to the Tribunal that 'if [he] was being accused of passing notes' he took objection. The agent moved even further away from the applicant. 20 There is some mention of this event in the Tribunal's reasons: 'At this point in the hearing the applicant's adviser was asked to desist from pointing the applicant to various notes in the files that the adviser had placed on the table near the applicant, and the adviser agreed to move these files away from the applicant.' 21 The transcript of the Tribunal interview has been put before me. It is clear that the Tribunal was concerned at the actions of the migration agent. It is also clear that the Tribunal made no criticism of the applicant himself. Indeed, the transcript shows that the Tribunal made this perfectly clear to the the applicant. It would also seem clear that the objection made by the migration agent was because the agent perceived the accusation to be personally directed at him, not his client. 22 The applicant says that what occurred involved a failure to afford the applicant a fair hearing. The applicant says that the Tribunal should have adjourned the matter to enable a different Tribunal member to hear the matter. Alternatively the applicant says that the Tribunal was affected by ostensible bias. 23 The short answer to all this is that the criticism and concerns raised by the Tribunal related to the actions of the migration agent, not the applicant. The Tribunal is perfectly entitled to ensure that the applicant is not being coached by a migration agent or by anyone else. The Tribunal is entitled to form a view of the credit worthiness of the applicant's evidence without the applicant receiving any coaching (whether such coaching ultimately assists the applicant's cause or otherwise). If the Tribunal proposed to take into account in its reasons the effect upon the applicant's credit of any 'coaching' that he had received, then it may have been at least desirable that that be raised with the applicant so as to give him an opportunity to answer it. However, that is not this case. Any criticism was directed to the actions of the migration agent, not the applicant. Nor was any credit finding made against the applicant. The applicant was believed by the Tribunal. A reasonable bystander would not have apprehended that the Tribunal had prejudged the matter or was unable to bring an independent mind to the issues that needed to be determined. The first jurisdictional error alleged by the applicant is not made out. 24 The second alleged jurisdictional error is that the Tribunal misunderstood the legal meaning of 'particular social group' and consequently made a jurisdictional error in failing to exercise its jurisdiction. 25 The legal meaning of the phrase 'particular social group' has been recently considered by the High Court in Applicant S v Minister for Immigration and Multicultural Affairs (2004) 206 ALR 242 ('Applicant S'). The High Court in that case held that the Tribunal had misunderstood the meaning of 'particular social group' in the Convention. In the joint judgment of Gleeson CJ with Gummow and Kirby JJ the correct test is discussed at [36] (see also McHugh J at [68]-[69], Callinan J at [97]-[98]) 'Therefore, the determination of whether a group falls within the definition of 'particular social group' in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a 'social group' and not a 'particular social group'. As this Court has repeatedly emphasised, identifying accurately the 'particular social group' alleged is vital for the accurate application of the applicable law to the case in hand.' (citations omitted) 26 It can be seen that this test is similar to that identified by the Full Court of this Court in Zamora which was relied upon by the Tribunal in this case. There is one clear difference and another possible difference. The clear difference relates to the third proposition in both tests. The High Court rejected that aspect of the third proposition stated by the Full Court, that society must recognise that the group is 'set apart'. The High Court held that the group must be 'distinguished or set apart from society at large' - it must be 'a cognisable group within the community' (see at [27]). Whether or not it is so cognisable is a question of fact, to be 'ascertained objectively from a third party perspective' (at [34]). Obviously, if a group is set apart from the rest of society then the society itself and the members of the group are both likely to identify the group as a separate group. However, even if they do not the group can still be a 'particular social group' if, as a matter of fact, the relevant group fulfils the tests set out in the joint judgment. 27 The second possible difference between the High Court test and that proposed by the Full Court in Zamora is the use by the High Court of the word 'distinguish' whilst the Full Court used the words 'set apart'. It is possible that the meanings could be different. Any distinction which marks off a group might be said to 'distinguish' that group even if it would not be said to 'set it apart' from the rest of society. So, for example, if some 'left handed persons' in Australia (to use an example referred to in Applicant S at [31]) formed a club and then wore a 'club tie' it might be said that the wearing of the tie 'distinguished' the left handed persons within that club from the rest of society. However, it would seem plain that the High Court is not using the word 'distinguish' in this narrow sense. Rather it is clear from [27] of the joint reasons that the word 'distinguish' is used in the same sense as 'set apart', namely to 'divide into classes' (Macquarie Dictionary). Such 'classes' must be understood in the context of a Convention concerned with the protection of human rights. On this view the relevant characteristic must be one that, in that context, sets the relevant group apart from the rest of society. It must be a real, distinct and relevant difference so that the members of the group can be said to be a 'class' within the society. Even if left handed persons formed a club and then wore the club tie this would not relevantly set them apart. In Australia neither left handed persons nor club members nor persons wearing club ties are relevantly 'set apart' from the rest of society so as to form a 'particular social group' even if they can be identified as members of a group. Although the test established by the High Court uses the word 'distinguish' rather than 'set apart' it is my view that the High Court used the word 'distinguish' in the same sense in which the Full Court used the word 'set apart'. 28 It is clear from the quotations from the Tribunal's reasons set out at pars 10 and 11 above that the Tribunal followed the test set out in Zamora (and subsequent cases in this Court) as to the need for the relevant society to recognise the relevant social group. True it is that the Tribunal's conclusions as set out in [12] that men in Albania, or (as set out in [14]) men in Albania targeted in accordance with the Kanun, do constitute a 'particular social group' does not directly refer back to the requirement that the relevant group be recognised within the society. However, having set out the wrong test it can be assumed that the Tribunal applied it. In my view the Tribunal applied the wrong test to determine if there was a particular social group. 29 This is not to say that the Tribunal was in error in concluding that the claimed social groups did not constitute a 'particular social group' for the purposes of the Convention. It was held by the Full Court of this Court in SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 301 ('SCAL 2')at [9] in relation to facts that are similar to those present in this case that the relevant facts did not create a 'particular social group'. The applicant accepts that I am bound by SCAL 2, but says that the decision is wrong. That is an argument that will need to be pursued elsewhere. 30 In any event, the Tribunal did not stop there. It proceeded to hold that even if the relevant group was a 'particular social group' for the purpose of the Convention, that was not the reason for any persecution. The Tribunal found that the reason for any persecution was by reason of the applicant's membership of his family and that s 91S of the Act prevented that being used as a vehicle to bring the applicant within the Convention. 31 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. 32 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. 33 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. 34 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]. 35 However, the applicant did not put to the Tribunal that the effect of the Kanun was that all members of his family, including his grandfather, were subject to persecution only by reason of their membership in the family. It would seem to have been accepted as part of the applicant's case that his grandfather was personally responsible for his acts. The case as argued before me also proceeded on this basis. This is similar to the other cases that have come before this Court dealing with Albanian blood feuds: see STYB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 705 ('STYB') at [14]; SDAR at [23]-[24]; SCAL 1 at [24]. Although it is a question of fact for the Tribunal, this may reflect the nature of the Kanun traditional laws. Even if it accepted that there may be some traditional systems whereby blood feuds only involve group and not individual responsibility, the Kanun need not be one of these. 36 I note that there was no argument put to the Tribunal in this case that the Albanian government had actively or deliberately supported blood feuds: contrast STJB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 861. Nor was any argument put to me that the Tribunal was in error in failing to consider whether the Albanian government had actively or deliberately supported blood feuds: contrast STYB at [22]-[24]. 37 The result is that even if the Tribunal was in error in applying the test set out in Zamora, that error did not have any practical effect on the result. The Tribunal found that even if Albanian men, or Albanian men targeted in accordance with the Kanun, could constitute a 'particular social group' they were not the relevant social group in this case. The Tribunal found that the relevant social group in this case was the applicant's family. It also found that the applicant's grandfather feared persecution for a non-Convention reason and that consequently s 91S of the Act applied. The Tribunals interpretation of s 91S is consistent with SCAL 2. Its findings of fact were fairly open in light of the case that the applicant presented. In these circumstances there was no jurisdictional error that had any consequence upon the decision actually reached by the Tribunal. 38 I will hear the parties as to costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.