SCAL v Minister for Immigration & Multicultural & Indigenous Affairs

The applicant, a citizen of Albania, sought review of a decision by the Refugee Review Tribunal which affirmed a decision of the Minister for Immigration & Multicultural & Indigenous Affairs not to grant him a protection visa. The applicant argued that he feared persecution due to a blood feud with another family in Albania, which arose under customary Albanian law known as the Kanun. He contended that he belonged to a particular social group defined by the threat of this blood feud, which required a male member of one family to be killed as a matter of honour where a member of that family had been involved in the killing of a member of another family. The applicant sought to bring himself within the definition of ‘refugee’ under the Refugees Convention by claiming a well-founded fear of being persecuted for reasons of his membership of this particular social group.

The central legal issue was whether the applicant's claim of belonging to a particular social group, which was not previously made in his application for a protection visa or before the Tribunal, could be considered by the Court. Additionally, the Court had to determine if the applicant's re-cast claim of belonging to a group comprising ‘citizens of Albania who are subject to the operation of the customary law Code of Leke Dukagjini’ constituted a particular social group as defined by the Refugees Convention. The Court needed to consider whether the customary law applied generally to all citizens of Albania and whether it created a group of people with a shared characteristic or element that could be set apart from society at large.

The Court held that neither the delegate nor the Tribunal is obliged to consider claims that have not been made in the visa application or before the Tribunal. Even if the applicant could make good his claim that he belonged to a different particular social group, it was doubtful that this would constitute an error justifying intervention by the Court. The Court noted that a particular social group must be defined in a way that includes numerous members who share a certain characteristic or element that unites them and enables them to be set apart from society at large. However, a law or practice that, although persecutory, applies to all members of society cannot create a particular social group consisting of all those who fall within its terms. The Court concluded that the applicant's claim did not constitute an error on the part of the Tribunal justifying intervention by the Court.

The Court dismissed the application and ordered that the applicant pay the respondent’s costs of and incidental to the application.