STCB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 61

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, CALLINAN AND HEYDON JJ

STCB APPELLANT

AND

MINISTER FOR IMMIGRATION AND

MULTICULTURAL AND INDIGENOUS

AFFAIRS & ANOR RESPONDENTS

STCB v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] HCA 61

14 December 2006

A5/2006

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation

S D Ower for the appellant (instructed by McDonald Steed McGrath)

C Gunst QC with M J Roder for the first respondent (instructed by Sparke Helmore)

Submitting appearance for the second respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

STCB v Minister for Immigration and Multicultural and Indigenous Affairs

Immigration – Refugees – Application for protection visa – Fear of persecution – Persecution for reason of membership of particular social group – Family – Fear of persecution because of family involvement in blood feud – Whether decision-maker required by s 91S of Migration Act 1958 (Cth) to disregard fear of persecution – Albanian citizens subject to customary law – Whether a "particular social group".

Migration Act 1958 (Cth), s 91S.

Convention relating to the Status of Refugees 1951, Art 1A(2).

1. GLEESON CJ, GUMMOW, CALLINAN AND HEYDON JJ. The appellant is a citizen of Albania who claims to be a refugee.

The appellant's application for a visa

1. On 7 November 2000 the appellant applied to the Minister for Immigration and Multicultural and Indigenous Affairs (the first respondent) for a Protection (Class XA) visa. His application was based on the claim that in 1944-1945 his grandfather had killed a member of the Paja family; that the Paja family was therefore obliged by the customary law of Albania known as the Kanun or Code of Lekë Dukagjini ("the Kanun")[1] to kill a male member of the appellant's family; that he feared that he would be killed by the Paja family if he returned to Albania; and that the Albanian police were powerless to stop this. 2. By reason of s 36(2) of the Migration Act 1958 (Cth) ("the Act"), the appellant's claim to a protection visa depended on his establishing that he was a non-citizen to whom Australia owed protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). Article 1A(2) of the Convention provides that a necessary condition of refugee status is having a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion". In this appeal the appellant contended that he had a well-founded fear of persecution by reason of being a member of two relevant social groups: his family and "Albanian citizens who are subject to the customary law".