Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
SVXB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 923 SVXB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, SUE ZELINKA, MEMBER REFUGEE REVIEW TRIBUNAL & PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL No S 99 of 2004 FINN J ADELAIDE 14 JULY 2004
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY S 99 OF 2004
BETWEEN: SVXB
APPLICANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT
SUE ZELINKA, MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT
PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT
JUDGE: FINN J
DATE OF ORDER: 14 JULY 2004
WHERE MADE: ADELAIDE
THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the first respondent's costs of 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 99 OF 2004
BETWEEN: SVXB
APPLICANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT
SUE ZELINKA, MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT
PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT
JUDGE: FINN J
DATE: 14 JULY 2004
PLACE: ADELAIDE
REASONS FOR JUDGMENT 1 I have already dismissed this application. These are my reasons for so doing. 2 This is another Albanian "blood feud" case which has resulted in an unsuccessful application for a protection visa under the Migration Act 1958 (Cth) ("the Act"). The proceeding in this Court under s 39B of the Judiciary Act 1903 (Cth) now puts in issue only one matter. It is whether the Refugee Review Tribunal erred in concluding that the applicant's claim fell within the exclusionary provisions of s 91S of the Act. That section 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." 3 The applicant's father had killed two men in a shooting incident. Those killings gave rise to a "blood feud" with his father's family as a result of which he, as a member of the family group, fears persecution. 4 The Tribunal found as a matter of fact that: (i) "the applicant believes he will be killed by the bereaved family for reason of his family association with his father, the one who killed the two men"; and
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