SHHB v Minister for Immigration - [2004] FMCA 421

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHHB v MINISTER FOR IMMIGRATION

[2004] FMCA 421

MIGRATION – Membership of social group – protection visa.

Judiciary Act 1903, ss.39(B), 91S
Migration Act 1958 (Cth)

SCAG & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 545
SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 548
SDAR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1102

Applicant:

SHHB

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

AZ114 of 2003

Delivered on:

6 July 2004

Delivered at:

Adelaide

Hearing date:

21 May 2004

Judgment of:

Lindsay FM

REPRESENTATION

Counsel for the Applicant:

Ms J McGrath

Solicitors for the Applicant:

McDonald Steed

Counsel for the Respondent:

Ms C White

Solicitors for the Respondent:

Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

AZ 114 of 2003

SHHB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application under the Migration Act 1958 (Cth) for review of a decision made by the Refugee Review Tribunal of 28^th February 2003 to affirm a decision of the respondent’s delegate not to grant the applicant a protection visa. Also before me is an application under s.39(B) of the Judiciary Act 1903 seeking judicial review of the same decision.
I have had the benefit of reading the written Summary of Argument of the applicant (including a supplementary Summary of Argument) and a Summary of Argument of the respondent (including a supplementary Summary of Argument).
The factual background to the application is that the applicant claims to be the object of a blood feud in Albania. A family known as the Lopci family have indicated an intention to exact revenge against a male member of the applicant’s family because of an incident which occurred in Shkoder Albania on 2^nd October 1997, in which a member of the Lopci family was shot. The applicant was driving a motor vehicle in which his brother and cousin were passengers when they were shot at by members of the Lopci family. A member of the Lopci family was shot and killed during the incident.
The Lopci family’s purposes in exacting revenge is said to have arisen as a result of the operation of the Code of Leke Dukajgini.
It will be remembered that in the decision of von Doussa J in SCAG & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 545 the same Code (also known as Kanun) was also said to be relevant to the application for a protection visa. In that case, the applicant’s cousin had killed a male member of the other family over a dispute relating to a broken engagement and the other family wished to avenge the killing.
In SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 548, His Honour was also dealing with a matter relating to the same Code. Judgment in that matter was delivered contemporaneously with the judgment in SCAG. In that matter the applicant’s father shot and killed an intruder to his delicatessen. The father was arrested and subsequently sentenced to imprisonment. The deceased’s family were said to have the applicant in their sights as a subject of revenge pursuant to the Code.
The applicant’s claims were accepted as truthful by the Refugee Review Tribunal. However, the Tribunal considered that s.91S of the Migration Act operated so as to exclude the applicant’s claims relating to the Code as the basis of his contended well-founded fear of being persecuted on account of his membership of a particular social group.
Section 91S of the Act 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 of persecution is not a reason mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; and
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.
In the Refugee Review Tribunal, the applicant contended that s.91S did not determine his application on the grounds that his fears were not dependent upon and neither did they arise out of any fear held by any other family member, but arose because of his membership of the family group. This submission was dealt with at page 180 of the Case Book. In dealing with that argument the Tribunal followed the decision of Merkel J in SDAR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1102. The relevant passage from that judgment is set out at some length at page 181 of the Case Book.
This aspect of the Tribunal’s finding has not been agitated in the application to this Court. The way in which that argument was dealt with by the Tribunal is noted at paragraph 9 of the Outline of Submissions of the applicant filed on 22^nd August 2003.
The applicant contends that the reviewable error of the Tribunal was that relating to the definition of the relevant social group for the purposes of Section 91S. Whilst the tribunal found that the relevant social group was the applicant’s family, it is contended that the relevant social group is the group of citizens of Albania who are subject to the operation of the customary law Code.
It is not contended by the applicant that this submission was specifically put to the tribunal. It is contended that such failure is not material. It is said that all that the applicant is now seeking to do is to, whilst relying upon the same factual material that was before the Tribunal, to cast the definition of the social group in different and wider terms.
It is contended that by casting the social group in these terms, the applicant can then argue that such group is one which is subject to persecution on account of those matters referred to in the Refugees Convention and in particular Article IA(2) as amended by the Refugees Protocol.
This is precisely the same argument as was put to the Full Court of the Federal Court in the SCAL decision referred to above. The report of the Full Court decision can be found at [2003] FCA FC 301.
In that case the appellant failed for three reasons. Leaving aside that matter that related to the particular factual finding of the Tribunal that the blood feud claimed by the appellant in that case did not exist, the reasons why the argument did not succeed before the Full Court are the same reasons why the argument must fail in this case. Firstly, the “re-cast Social Group Claim” was not put to the Tribunal. Secondly, the Full Court found that the applicant’s fear arose not on account of his membership of a group of persons subject to the Code, but because of the membership of a family one of whose members had killed a member of another family. It was that specific factual circumstance which was taken to be determinative. No attempt was made before me to distinguish this case from that before the Full Court on its facts. Indeed, the applicant before me properly concedes that I am bound by the decision of the Full Court in SCAL in all relevant respects.
I agree. Finding as I must that the argument now advanced in paragraphs 10-15 of the applicant’s Summary of Argument was not an argument put to the Tribunal and finding as I am obliged to do, that the applicant’s fear arises from his membership of a family which has shot and killed a member of the Lopci family, the application must fail.
There will be an order dismissing the application filed on the 25^th March 2003.
There is an application for costs.
The application for costs is opposed, and I consider it appropriate to hear further oral submissions in relation to the question of costs before making any determination.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Associate:

Date: