STCB v MIMIA

[2006] HCATrans 436

[2006] HCATrans 436

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A5 of 2006

B e t w e e n -

STCB

Appellant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

GLEESON CJ
GUMMOW J
KIRBY J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 10 AUGUST 2006, AT 10.04 AM

(Continued from 9/8/06)

Copyright in the High Court of Australia

GLEESON CJ:   Yes, Mr Ower.

MR OWER:   If I may first return to a matter that your Honour the Chief Justice raised last night, namely, the particular articles of the Kanun as extracted in the appeal book upon which we say give rise to the blood feud in this case.  The particular articles which we would rely upon are Article 896 – and this is at page 62 of the appeal book, if it pleases – and Article 900. 

GLEESON CJ:   Thank you.

MR OWER:   In drawing attention to those two paragraphs, I do reiterate, however, the submission made yesterday that it is important to remember that the operation of the Kanun on the evidence before the Tribunal is not necessarily the traditional operation but how the participants in the blood feud perceive customary law to operate today.

GLEESON CJ:   Article 900 seems to impose a time limit of 24 hours.

MR OWER:   Indeed, your Honour, and if one reads through the articles in the textbook, one could, in fact, see that the blood feud could be resolved by payment of some sort of gratuity to the family who have otherwise been murdered, but the other material before the Tribunal suggests that that is not how the Kanun operates in modern Albania.  Indeed, the foreword to the textbook notes that this is rather just a classical recitation of the operation of the Kanun.

GLEESON CJ:   Well, again, I am sorry to nag about this, but I would just like to run my eyes over the other material.  Which is the other material that you say alters the information that appears on page 62?  I am not suggesting you are wrong.  I just do not want to make an act of faith in the assertions that are made about the blood feud.  I just want to see the evidence of it.

MR OWER:   Other than the witness statements which were put forward in support of the appellant’s case, the best source of information remains the United Kingdom Home Office Report and, in particular, the first two paragraphs of the matter extracted in the reasons for decision of the Tribunal which commence at page 122 and, in particular, the passages at pages 133 and 134.

GLEESON CJ:   Thank you.  One of my concerns, Mr Ower, is simply a practical one:  we do not want to end up writing a judgment that causes some kind of international incident.

MR OWER:   Yes.  If I may then turn to the fourth of the five matters that I wish to address the Court upon, namely, the error in which we submit that the Tribunal and the Full Court in turn made in relation to this question of the alternate social group.  If I could begin in that respect with the decision of this Court in Applicant S.  The Court is no doubt familiar with the facts in Applicant S and, in particular, the manner in which the error in the courts below concerning the application of the decision of this Court in Applicant A was rectified. 

I would particularly draw the Court’s attention to the three‑step test posited by the judgment of your Honours, the Chief Justice, Justices Gummow and Kirby at page 400 of the report, paragraph 36.  I do so conscious of the prohibition on reading the words of a judgment as if it were a statute but, nevertheless, this is the appropriate test, in our respectful submission, for both the Tribunal to have applied – and I make that submission noting that the Tribunal did not have the benefit of a judgment at that particular time – and, subsequently, to be applied by the Full Court in considering whether the Tribunal had committed jurisdictional error. 

The Court will note at paragraph 36 that there are three steps in ascertaining whether a group falls within the definition of a particular social group:

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.

Earlier in the judgment at pages 399 and following and, in particular, paragraphs 31, 32, 33, 34 and 35, the majority judgment considers the role of what I have described as subjective perceptions of the society in question.  In terms of considering the answer to that third question posed, namely, whether the possession of the characteristic distinguishes the group at large, the fact finder may have regard to objective matters such as country information published by international sources which go to the questions of what legal and cultural factors distinguish the particular social group as well as the subjective perceptions of the society in question.  So there are two matters which are relevant, in our respectful submission, to be taken into account.

These subjective perceptions, as the Court well knows, usually arise in circumstances described by his Honour Justice McHugh as that of the left‑handed man example, which is one the Court has no doubt heard on many occasions and I will not necessarily repeat it here.  In light of that, if I could ask the Court to turn to the Tribunal’s consideration of this issue, which is a matter I started on yesterday afternoon, and, in particular, its finding at page 141 of the appeal book, lines 8 through to 12. 

In my submission, the effect of that finding is that the Tribunal has made positive answers to the first two questions posed by the majority in Applicant S, namely, that there is a common characteristic of people who are subject to customary law and that that common characteristic is not a shared fear of persecution.  It is then asked the question as to whether those persons are able to be distinguished from Albanian society at large and it has come to the conclusion that due to the heterogeneous nature of the group they cannot be said to be united, cognisable or distinguished from the rest of Albanian society.

GLEESON CJ:   What sort of people are not subject to customary law?

MR OWER:   On the evidence, your Honour, before the Tribunal certain members in Northern Albania were not regarded as being subject to customary law.

GLEESON CJ:   Which ones?

MR OWER:   In particular, the country information suggested that there were groups who otherwise were not involved in blood feuds or otherwise were regarded as being subject.

GLEESON CJ:   I just wonder if you could describe the people who in the area or the locality from which your client comes are not subject to customary law if you say the people who are subject to customary law are a particular social group.  Who are the others?

MR OWER:   The definition would be the reverse of the definition of the social group.  Those who are not subject to customary law are those who do not regard themselves as being subject to customary law and do not act in such a manner.

GLEESON CJ:   But can you describe them?

MR OWER:   I cannot put it any higher ‑ ‑ ‑

GLEESON CJ:   People who wear dark suits or ‑ ‑ ‑

MR OWER:   No, your Honour, it is not the sort of matter where there is a feature which is able to be observed in a material sense.  Ultimately, it is a question of the beliefs of each individual and the way in which they are treated by the other members of society, in my submission.  So, for example, one may have a family who are subject to customary law because of the nature of their upbringing and their interrelationships with other members of society.  On the other hand, we may have a family living next door who do not regard themselves as being subject to customary law.

GLEESON CJ:   If you were on the wrong end of a threat of being killed because your grandfather did something, it would be more important to know who regards you as being subject to this law than what you think, would it not?  You might be a very enlightened modern person yourself, but if there is somebody after you because of what your grandfather did, it is what that somebody thinks that matters, is it not?

MR OWER:   In my respectful submission, that is almost the facts of the instant case in that there is no real evidence that the appellant or his family were interested in otherwise participating in a blood feud at that stage or otherwise concerned about the events of 1944‑1945 until such time as the Paja family took them up in 1997.  The example your Honour the Chief Justice is putting to me also goes to this question of the application of the left‑handed man principle, for lack of a better term, in that it is the perceptions of others in society that give rise to the distinction of a particular social group.

GLEESON CJ:   Yes, but it is usually pretty easy to identify who is not a left‑handed man.  What I am asking you is what would be the indicia of people who are not the subject, or potentially the subject, of this customary law?

MR OWER:   In terms of people, the left‑handed man, as I say, there is a material matter that can be observed and otherwise distinguished to establish the nature of the demographic.  However, when we are talking of matters of belief or application of customary rights and traditions, ultimately it is a question of, as I say, the beliefs of those around the members of the group as well as the beliefs of those within the group.

GLEESON CJ:   I really find it difficult to put out of my mind the information provided by the Home Office that you referred to us a little earlier, that this so‑called customary law is more often than not something that is used as an excuse by criminals for their conduct.  It is something that is used as an excuse for settling scores among drug traffickers and the like.

MR OWER:   Yes, your Honour, and that goes back to the earlier issue about the application of the traditional Kanun.  Ultimately, the situation now is that being regarded as being subject to customary law is a matter that has otherwise been twisted, but that does not change the fact that people believe that they are subject to it and otherwise have to obey it, even though its uses have otherwise been changed over time by unscrupulous individuals within the community.

GLEESON CJ:   Mr Ower, there must be a lot of experience in other countries with Albanian people who are claiming to be refugees on this basis.  Are there decisions in the United Kingdom or in North America or other comparable jurisdictions dealing with this problem?

MR OWER:   My learned friends have performed some research and I am happy to address briefly in relation to that.  It appears that there is only little authority in respect of this issue.  There is a decision of the United Kingdom Court of Appeal in respect of Albanian blood feuds which I understand has been supplied to the Court by the first respondent, the decision of Skenderaj ‑ ‑ ‑

KIRBY J:   Did we not also have a Canadian case?  Was that ‑ ‑ ‑

MR OWER:   Yes, and I understand that a decision of the Trial Division of the Federal Court of Canada, his Honour Justice Heneghan, Bojaj v Canada (Minister of Citizenship and Immigration) has also been handed up.

KIRBY J:   It is not quite true to say there is no external indicia of involvement in a blood feud, because on page 68 of the book with the law relating to crimes they have in one of the passages there that where a blood feud is expiated “[a] cross on the door is a sign of the reconciled blood”, however, the cross must be in the blood of the “owner of the blood”.  It is such a horrible set of rules that you would not be terribly anxious to have people who live by those rules in Australia, I must admit to you.

MR OWER:   No, your Honour, but ultimately that is not a matter that need concern this Court.  In relation to the question of the cross on the door, there is no other material before the Court to suggest that that is actually still in application and certainly there is no evidence from any of the appellant’s witnesses before the Tribunal that that was a part of the blood feud between his family and that of the Paja family.

KIRBY J:   It is such a primitive set of rules.  I mean, even an infant in the cradle is subject to the blood feud.  I mean, what sort of people could kill a baby in a cradle because of something some adult did to somebody in the family?

MR OWER:   It does represent a fairly unenlightened view of human nature, if it pleases your Honour ‑ ‑ ‑

KIRBY J:   It certainly does.

MR OWER:   ‑ ‑ ‑ but ultimately it is a question of whether Australia is able to offer protection to persons who are otherwise caught up in such matters.

GLEESON CJ:   It seems to have been written at a time when in England they were persecuting witches.

MR OWER:   It is of a similar age, but it does not appear that ‑ ‑ ‑

KIRBY J:   We persecuted others even more recently, so I suppose we should not be too surprised, but persecuting little infants in a cradle seems definitely Herodian.

MR OWER:   When one looks at the United Kingdom Home Office, one sees that some 6 per cent of the population of Albania as at 2000 were involved in these blood feuds and there is also a statistic that some 1,250 persons were confined to their homes due to their operation.  So it does seem to be an interesting dilemma for ‑ ‑ ‑

KIRBY J:   The only relevance of this is that the Parliament of Australia has enacted section 91S and the Minister, in explaining the reasons, did mention family disputes and one interpretation of 91S is that the Parliament of Australia is not saying that people who get involved in family disputes are therefore forever removed from the protection of the Convention, but it does say that for the purpose of determining the application of the Convention you subtract this element of family dispute.  At least that is one way to read it.  I must say to you, reading this material, it is a way that I can understand the Parliament of Australia enacting and it is not a way that I would struggle to read it in a different fashion.

MR OWER:   The difficulty with that construction, if it pleases your Honour, is that it then raises the question, in what circumstances would a family constitute a particular social group for the Convention and otherwise be regarded as giving rise to protection obligations on behalf of Australia?  It is difficult to posit a hypothetical example involving families if the construction of the courts below of 91S prevails in which a family is able to be a particular social group.

GLEESON CJ:   I do not follow that.  It simply eliminates families if the persecution is for a non‑Convention reason, does it not?

MR OWER:   If the persecution of one member of the family ‑ ‑ ‑

GLEESON CJ:   Of the grandfather.

KIRBY J:   That is why you are trying to elevate it, and you are saying it is not just because of the grandfather’s act of murder back in 1945, it is because there is interposed this social group which is transfixed and identified and defined by the customary law or customs of Albania of this very primitive kind that we see in the appeal book.

MR OWER:   We do not shy away from the act that instigated the blood feud, the murder of the other member of the Paja family in 1944‑1945.  What we do submit is that that is only the beginning of the inquiry and the question for the Tribunal is then to ask, what consequences flowed from that act and, in particular, whom against the members of the family of the appellant is revenge sought?  If it is simply a case of that act has inspired the Paja family to seek revenge against the grandfather, say, for argument’s sake, as an individual, then that is a non‑Convention reason.  However, if it elevates, to use your Honour’s word, to something more by virtue of seeking revenge against an entire family group, we would say that that still has scope for operation within the confines of section 91S.

KIRBY J:   I am going to ask Mr Gunst this, but I may as well ask you.  It occurred to me that there is some analogy between this sort of case and Khawar.  You remember the case concerning the Pakistani woman who was assailed by her husband, the in‑laws and was identified as a member of a social group of women in Pakistan who were vulnerable to that sort of conduct and not protected by the law of the country.  Now, can it be said here by analogy that this is a case where the appellant is in an analogous situation as a person who is – he also has family difficulties, or difficulties with people with whom his family has a relationship, and you cannot look effectively to the Albanian authorities to protect him and that is a member of a social group recognised in Albania, namely, people who are engaged in blood feuds, and we ought not to impose on that construct our view of such views, and that you just subtract the personal element, ie, grandfather, that that is not the basic cause of the appellant’s fear?

MR OWER:   The parallels between this case and Khawar do arise, in particular, in relation to the alternate social group contention in that the question is, where does the motivation for the persecutor come from?  Does it come from the non‑State actors, the members of the Paja family, or does it come from the Albanian authorities and their treatment of the appellant in terms of him being able to seek protection?  In Khawar’s Case, while it was not directly a matter of consideration by this Court in that the principal matter was that of the construction of a particular social group, one of the issues that the Tribunal was required to consider upon the remitter was whether there was a discrimination by the Pakistani authorities which, when combined with the violence by the respondent’s husband in that case, would constitute persecution.  In my respectful submission, the alternate social group argument put forward before this Court on behalf of the appellant raises similar issues.

Now, the material below in the Tribunal was somewhat scarce as to this, as were the contentions, but properly understood, in my respectful submission, that is the nature of that claim and we would draw that parallel between the reasoning in Khawar and this particular case. 

KIRBY J:   Apparently the Albanian Communist Party, under that enlightened rule of Mr Hoxha, stamped this out.

MR OWER:   Indeed, and it was only upon the collapse of Communism, on the basis of material, that blood feuds once again arose.

GUMMOW J:   But what is the current legal situation?  What does Albanian law say about this?

MR OWER:   The only material before the Tribunal was that of the UK Home Office and that ‑ ‑ ‑

CALLINAN J:   It shows that laws have been introduced but have not been totally effective because of some sort of form of judicial restraint and reluctance also on the part of the authorities to pass laws or to enact laws to cover this because it involves recognition of the archaic laws.  It is a rather curious position.

MR OWER:   The country information before the Tribunal is as your Honour Justice Callinan states, that there seems to be a recognition by aspects of the Albanian State of the problems posed by blood feuds, but ultimately there does not appear to be much more evidence as to the actual implementation of effective State protection in that respect.  It was, in my submission, a question the Tribunal never got to simply because it had already determined that the fear arising due to membership of a family could be disregarded and the alternate claim, the social group, did not arise.  So, in my submission, ultimately that is a question the Tribunal did not necessarily get to at this stage.

If I could return to the question your Honour the Chief Justice posed to me in relation to other authorities from other jurisdictions, we would only make two points in relation to these cases to be proffered by the first respondent.  The first is that in the decision of the English Court of Appeal it appears there was a finding at paragraph [30] on page 565 that Mr Skenderaj’s family did not constitute a particular social group in the facts and circumstances of this case and it is unclear whether such an approach would be applicable when one takes into account the manner in which this particular social group is judged by way of decisions of this Court in Applicant A and Applicant S, but certainly that seems to be the ratio of that particular case.  In terms of the decision of the Trial Division of the Federal Court of Canada ‑ ‑ ‑

GUMMOW J:   Applicant A was cited in the English case, was it not?

MR OWER:   It was cited, your Honour, but it does not appear that a similar approach was taken in that there seems to be more reliance upon the decision of their Lordships in Shah, together with some consideration of the decision of the Supreme Court of Canada in Ward’s Case and, in particular, paragraphs [23] through [25].  One can see the culmination of that reasoning in paragraph [30] where ultimately it seems to be a suggestion that the family cannot be “regarded as a distinct group by Albanian society any more than, no doubt, most other families in the country”.  That is from page 566, point a.  So with respect to their Lordships in the Court of Appeal, it is not apparent that a similar approach would be taken in consideration of the question in this country.  Certainly the Tribunal accepted, for the purposes of the present matter, that the family could constitute a social group.

GLEESON CJ:   This particular family.

MR OWER:   This particular family.

GLEESON CJ:   That is the question, whether this particular family is a particular social group.

MR OWER:   And the Tribunal made a finding to that effect, that it accepted that this particular family was in the Albanian context a social group.  In terms of the decision of the Trial Division, the decision would appear to turn on its own facts and, in particular, at pages 317 and 318, paragraphs [15] and [16] there is a citation to a decision of his Honour Mr Justice Rothstein in Klinko v Canada and there would appear to be ‑ ‑ ‑

GLEESON CJ:   I think he is now a member of the Supreme Court, is that right?

MR OWER:   I am not able to assist your Honour in that respect.  In terms of his Lordship’s reasoning in that particular case, it appears that he upheld a finding of fact made by the fact‑finding body, the panel, that the primary victim, which is presumably another member of the family, that the reason for their persecution did not come within the Convention refugee definition, so it would appear that at least in Klinko there was a finding of fact to the effect that the primary fear, if one may describe it in those terms, was not Convention‑based.

At paragraph [16] Mr Justice Heneghan made a similar conclusion based upon the findings of fact made by the panel under review in that case.  So again, in my submission, they are of limited assistance to your Honours.  The appellant has undertaken some research in relation to United States authorities but on the basis of my researches, it was not an issue that had necessarily arisen.

KIRBY J:   Out of fairness to your client, I should say that it is his contention that he is the victim of this blood feud; he is not a perpetrator of it himself.  His contention is that he is as much a victim as anybody else is of it and he seeks to come to Australia in order to rid himself of the danger and fear that he says is persecution on a Convention basis and he is not himself involved in the blood feud.  The blood feud is on the part of others who are acting out what they take to be Albanian customs.

MR OWER:   Yes, your Honour.  There is no evidence and certainly no contention on behalf of the appellant that he was otherwise a willing participant in this matter.

GLEESON CJ:   These English and Canadian decisions insofar as we know about them seem to indicate that the Albanian blood feud has not been a successful basis for claims of refugee status in those countries.

MR OWER:   Yes, your Honour, that would be a fair conclusion.  In respect of the matters that I was addressing on before, we were concerned with the decisions of other jurisdictions, that is to say, the question of the alternate social group.  The Full Court’s consideration of this matter appears at page 172, paragraph 31 and the Full Court appeared to accept the submission that the Tribunal had erred in its finding regarding cognisability.  That appears at paragraph 31, lines 7 and 8, in that there appears to be an agreement on behalf of their Honours that in the particular case at Bar:

that group is not distinguishable as a particular social group, it is not the presence of diversity that leads to this conclusion. 

That is to say, they accept that the Tribunal erred but they otherwise find that the Tribunal was right in its conclusion on the basis that:

Rather it is the absence of a common element that unites individuals and makes them a cognisable group within their society, and a target for persecution, that is the disqualifying factor.

As such it would appear that the Full Court has reverted to the first question posed by Applicant S, that is to say, whether there is a common characteristic identifying the nature of the group.  With respect to the reasoning of their Honours, the very definition of the group defines what is the common characteristic, that is to say, persons who are otherwise subject to customary law.  It is no different from describing a demographic of people over 50 or other such groups within society. 

The conclusion there that there is simply no identifying common element, with great respect to their Honours, is difficult to understand.  The real question is whether the social group that is so defined can in fact be distinguished from society or whether it is merely a group, a demographic, of Albanian society, which was the conclusion the Tribunal made.  So our short submission in relation to that is that the Tribunal did err but that the Full Court in making its finding was also in error and that the question remains to be determined upon the proper application of the test set out in Applicant S.

If I may then turn to the final matter that I wish to address which has already been touched on in questions from your Honour Justice Callinan, this question of the appropriateness of State protection, there is the finding which appears at page 135 of the appeal book, lines 24 through 26, where the Tribunal, after setting out the information from the United Kingdom Home Office, states that:

The Tribunal finds that the Albanian authorities have recognised the problems presented by blood feuds and have shown that they are willing to address them.

We make three submissions in relation to that finding as to why we say it does not otherwise affect the nature of the error made by the Tribunal and, in particular, why we say that that finding does not otherwise mean the Tribunal has acted within jurisdiction.

The first is that it is not a finding that the Albanian State is able to provide effective State protection to persons who are otherwise persecuted by reason of their membership of a particular social group, their family or persons who are subject to the Kanun.  We say that because the finding appears in the middle of the Tribunal’s reasons and it is difficult to see why the Tribunal would come to that conclusion and then proceed to go on and consider whether the fear needed to be disregarded under section 91S and then make a finding that the particular social group in question did not exist.  One would imagine that if there was a finding that there was effective State protection by the Albanian State, that would be the end of the matter and Australia would not owe protection obligations to the appellant without any further consideration of the intricacies of the statute.

The second submission we make is that it appears my learned friends in their written submissions rely upon that finding to suggest that this question of the subjective perceptions of the Albanian society cannot arise in terms of the left‑handed man sort of principle because there is no persecution by the Albanian State, therefore there cannot be a perception by members of the Albanian community of that persecution.

We would simply say to that that even if that finding could be read as high as to say that there was now some form of State protection, it does not affect the preceding six or seven years of lawlessness in Albania.  Ultimately from 1997 to approximately 2000 and 2001 there was a breakdown of law and order on the basis of the material before the Tribunal in Albania.  Even if some form of protection was put in place in 2001, 2002 and 2003, it does not change the fact that, as I have already stated, some 6 per cent of the population were involved in blood feuds and as such could not really affect what the subjective perceptions of the Albanian community were.

GLEESON CJ:   What do you mean by the expression “involved in”?

MR OWER:   I probably should withdraw the word “involved” because the word used by the country information is “affected” and that word is put in inverted commas at page 134, line 16, but, in my submission, the use of the word “involved” otherwise means being subject to a blood feud or, indeed, being a perpetrator of such a blood feud, otherwise having some connection to vengeance killings or the risk thereof in Albanian society.

GLEESON CJ:   As you say, the word is “affected” by, not “involved in” and the word “affected” is put in inverted commas to indicate the imprecision of its meaning.

MR OWER:   One could regard “affected” as being a broader meaning than “involved” in that even if ‑ ‑ ‑

GLEESON CJ:   I suppose if your client was married, his wife might say that she was affected by the blood feud.

MR OWER:   Indeed, and even wider relations, cousins, aunts, matters like that, could easily be affected.  It is unclear on the information though.  In my submission, it probably has a more direct meaning as used by the country information here when that statement is made in the context of the lawlessness that appeared in Albania at that time.

The final matter that I wish to address in respect of the finding at page 135, lines 24 to 26, is that if the Court does regard that as an attempt by the Tribunal to consider the effectiveness of State protection, we would simply draw attention to the decision of the majority in the matter of Minister for Immigration v Respondents S152, the Ukrainian Jews case, and in particular the discussion by the majority at page 104 of the bundle of

materials handed up by the appellant.  The majority judgment of your Honour the Chief Justice, Justice Hayne and your Honour Justice Heydon considered the question of effective State protection and its role in providing a possible motivation in that matter and, in particular, we would rely upon the discussion at page 104 of the bundle, which is page 685 of the report, paragraph [28].  The majority state that that case is not an appropriate vehicle to discuss the standard of the level of State protection, but at approximately lines 37, 38 there is a discussion about “a reasonably effective police force and a reasonably impartial system of justice”.  We would submit that if those are the sorts of considerations that need to be taken into account in respect of the nature of effective State protection, that certainly is not the effect of the finding which appears at page 135, 24 through 26.

Those are my submissions, if it pleases the Court.

GLEESON CJ:   Thank you, Mr Ower.  Yes, Mr Gunst.

MR GUNST:   Your Honours, there are two issues as we see it.  The first is the application and meaning of section 91S of the Migration Act and the second is the contention put forward on behalf of the appellant that he forms part of a particular social group within the meaning of the Refugees Convention and is hence entitled to the protection of this country.

We do not wish to read at length or to retraverse our written submissions.  Can we say this about section 91S.  Its meaning is plain both from the plain reading of the words and from the explanatory memorandum and from the second reading speech with which your Honours have been provided.  The approach to the ‑ ‑ ‑

KIRBY J:   The appellant says that the meaning is plain too.  It is just that you both have a different plain meaning.  He says that your approach and the one that has succeeded so far is one that suffers the fatal flaw of approaching the issue from the point of view of our cultural assumptions and not from the point of view of a Convention and a law which is designed to protect people in all environments around the world, including the Albanian, in their social assumptions which interpose not just a dislike of an old man who had killed somebody in 1945 but obligations and cultural norms that force people into these blood feuds which impose on the person a real fear that leads him to want to leave and come to a safe haven like Australia.  So that really is the issue.  If we subtract simply the grandfather hate but leave in it the Albanian cultural norms, is there then a Convention reason for leaving Albania and seeking our protection?

MR GUNST:   We would say not, your Honour.  Can we say in answer to a question that your Honour put to our learned friend a little while ago, section 91S leaves open the possibility of engaging the protection obligations of this country on the basis that one is persecuted because of membership of one’s family where the source of that persecution ‑ ‑ ‑

KIRBY J:   Yes, it merely subtracts the pure family matter but leaves the protection of the Convention operating on some other Convention ground.

MR GUNST:   Yes.  Can I put it in terms of Convention reason or non‑Convention reason and can I give your Honour two examples that will illustrate what we say is the reach of section 91S.  Take the example of a particular regime in a country with a despotic ruler.  The despotic ruler is overthrown and a new political regime comes into power.  Persons who were related, perhaps bore the same surname, for example, as the despotic ruler who has been overthrown may find themselves subject to persecution.  If the persecution of the despot was for a Convention reason, that is, for imputed political opinion, political differences, then any persecution of members of that person’s family would come within the Convention.  That is, they would not be excluded by section 91S.  I have perhaps made that rather more complicated than it should have been.

On the other hand, if the originating persecution was not for a Convention reason, then section 91S will apply, the paradigm case being one such as this or the facts of Sarrazola’s Case where the revenge that is sought is against somebody for a non‑Convention reason – revenge for a criminal attack or inflicting violence to encourage the payment of criminal debts or the like.

KIRBY J:   But that was a pure debt within a family and it did not have what is suggested is the added element in this case which changes it into a social group, namely, the cultural motivation and imperative to kill other people of the blood of that family.  It was purely personal.

MR GUNST:   We would say that makes no difference, your Honour.  We would say that where the originating reason for the harm, to use a more neutral expression, is a non‑Convention reason, then, to use a colloquial expression, flowing water cannot rise higher than its source.  The fear of the family member cannot rise higher than the non‑Convention fear of, in this case, the grandfather, or in Sarrazola the brother. 

Let us go back a step.  The Federal Court in Sarrazola decided the case in the way that the decision makes clear.  It is plain that the Parliament intended to restrict the application of the Migration Act.  That is, to restrict the application of the Convention to exclude fact situations such as those that arose in Sarrazola.  The explanatory memorandum says as much, although without identifying the case.

KIRBY J:   And that therefore presents very acutely whether the injection of this added cultural norm in Albania lifts this case out of the mischief to which section 91S is directed.  That really is the issue for us, is it not?  Presumably that is the basis on which special leave was granted to the appellant to come to the Court.

MR GUNST:   And we would say plainly that is not a distinguishing factor that lifts it outside section 91S, the original persecution being revenge for a murder.  It is quite plain there was a killing in 1945.  The grandfather left his village.  There is a witness statement that was put in – there is a translation; it is written in Albanian in the appeal book but there is a translation of it as well – in which somebody who is elderly who had known the family for a long time says Kola, the grandfather, had to leave the village of Shllak and move to the larger town of Shkoder some years before.  That is at page 52 of the appeal book, your Honours. 

So it is plain that the fear of persecution and the persecution of the grandfather was for a non‑Convention reason.  That does not seem to be in dispute and we would say it is beyond argument.  There was a suggestion made at some stage in the Full Court that the Tribunal misdirected itself because it failed to consider the hypothesis that the grandfather might have been persecuted not for the murder but for the reason that he was a member of this same family of which the present appellant is a member.  There is no support in the evidence for that but we would simply say to your Honours that it seems very unlikely indeed that you have had one of your family members murdered and you would say to the murderer, “Don’t mind about that.  We didn’t like him much either but, gosh, we’re going to persecute you because we don’t like your family”.  There is no support for it and we would ask your Honours simply to put that to one side.

GLEESON CJ:   It was not the case though, was it?

MR GUNST:   No, it is a suggestion made in the appellant’s outline in this Court.

GLEESON CJ:   The case that was put to the Tribunal, as I understand it ‑ ‑ ‑

MR GUNST:   The case that was put to the Tribunal was, “My grandfather murdered somebody.  He was persecuted and after an abeyance, because of the Communist regime that was rather too strict to enable us to have paybacks, they have been coming after me in the last few years as a result of that.”

GLEESON CJ:   I think rightly or wrongly part of the reasoning of the Full Court in this case, as I understand it, was that a criticism that was made of the Tribunal’s reasoning was not a fair criticism because where it was said the Tribunal failed to decide a discrete issue of fact, the Tribunal in fact just accepted the appellant’s case on that point as it was put.

MR GUNST:   Yes, that is precisely so, your Honour.  To summarise what we say about section 91S, we say that the meaning is clear, the words are clear and Parliament’s intention is clear when one looks at the explanatory memorandum and at the second reading speech that Parliament intended to exclude family group membership as a basis for seeking protection where the fear arises for – and I will use a rough expression – an original non‑Convention reason as opposed to an original Convention reason.

The reasoning is set out by Justice Merkel in SDAR, which is one of the cases in our book of materials, and in particular at paragraph 24.  Can we perhaps take your Honours to it because it is the decision that was the first of the decisions concerned with this section in the Federal Court and it is the decision that has been consistently applied by all other courts, both single judge and Full Federal Court since.  It is at tab 3 of our book of authorities.  His Honour sets out some of his Honour’s analysis commencing at paragraph 18 of the judgment.

KIRBY J:   These only say the same thing.  It is relevant that very experienced judges of the Federal Court who are dealing with these things all the time have all come to this conclusion.  There is that other case too, the one at tab 5, SCAL.

MR GUNST:   Yes, both at first instance and in a Full Court.

KIRBY J:   But the question for us is, is that the correct approach or does it subtract because of our cultural norms the element which is different which is the interposition of the blood feud and the identification of those within that subjection, accordingly?  For example, in Australia I think it would be very unlikely that people would blame a grandchild for something the grandfather did.  A murder by a grandfather, well, that would be his personal moral fault.  It is not something we would blame successive generations, I do not think, but that is apparently the reality of Albania.  Now, the question is, does that define the group?

MR GUNST:   I will need to say something about that and take your Honours to what the evidence was about that.  In fact, in our submission, the evidence does not go that high.  The evidence that the Tribunal had in fact does not justify such a strong proposition as your Honour has just put, but can I defer that just for a moment and deal with Justice Merkel’s judgment and the succeeding Federal Court judgments, if only to say that this is not one of those cases where there has been a disparity of views in the Federal Court that your Honours need to resolve.

The view adopted of this section in every case – and we have instanced these; several are in the books of authorities and there are some others we instance in our written submissions – there has been a consistent approach to this section taken by judges of the Federal Court, all of whom discuss and accept as accurate the statement set out by his Honour Justice Merkel in paragraph 24 of SDAR which is at tab 3 of our materials.  Of course, if your Honours were of the view that they were all wrong, your Honours would say so, but we merely wanted to draw to your Honours’ attention that there is no divergence of view in the Federal Court about this section that needs resolution.

Can I therefore come to the question that your Honour Justice Kirby put about – or deal with the proposition about what this code actually says to make good the proposition that it is not in fact as all embracing or all pervasive as one might at first have thought.  Can I first of all take your Honours to two pages in the appeal book.  To deal with something my learned friend said this morning, our learned friend was putting forward the proposition that this code, whatever it be, applies to some and not to others and that his client’s family was one of the ones to whom it was subject and that was something that supported the proposition they were part of a particular social group.  In fact, the applicant’s case was that this code applied to everybody in the particular geographical part of Albania, the northern part where it applied, and the Tribunal so found as a fact. 

Can we take your Honours first of all to pages 54 to 55 of the appeal book.  This is a statement by a witness who was a supporter of the appellant’s claim before the delegate and the Tribunal.  This was the man who lent his passport to be used falsely for the appellant to enter this country in the first place.  The statement starts at page 54 and on page 55 of the appeal book, the second page of the statement, your Honours see he says:

My brother Luli who still lives in Shkoder, told me in 1997 that the Paja family had declared an intention to take revenge on the Shyti family for a killing that occurred in 1944 or 1945.

My brother was very worried about Mr Shyti and his brother.  In Albania the People’s Code is very strong.

Your Honours will note lines 5 and 6:

These days the law of Albania is effectively the ancient law known as the Canon or Code of Lek Dukajgini and any reforms that came in during Communism have gone out of the window.

CALLINAN J:   When did the Communist regime collapse, is there evidence ‑ ‑ ‑

MR GUNST:   It was either 1991 or 1992, your Honour.  It came in at the end of World War II in 1945 after a turbulent period of partisan warfare, as we would call it, and it was swept away in 1991‑1992.  If we can take your Honours to page 140 of the appeal book, which is at the very tail end of the Tribunal’s reasons for decision, commencing at line 3 your Honours see the finding of fact by the Tribunal in these terms.  The Kanun is to be treated at least in the geographical areas from which the applicant comes as a law or practice of general application.  That is the answer to the proposition that your Honour the Chief Justice was asking our learned friend this morning, in our submission. 

Can we then go back to look at what the evidence actually showed about what this code actually is.  As we would say, the code is not an alternate social group.  The code, insofar as the evidence shows it is anything, is merely a descriptor of a custom – one might think a particularly barbarous or unpleasant one in some of its facets, at least – that applies in a certain geographical area; in essence, the northern half or the northern third of the Republic of Albania.

Can we take your Honours firstly to page 57 of the appeal book, which is the start of this textbook which purports to be a translation from the Albanian of part of this Kanun, as we see on page 58, apparently from the Greek, and there is some historical and literary analysis on pages 58 and 59.  The particular parts appear to be at pages 61 and following.  There seems to be a fair emphasis on blood, as your Honours see.  Can we direct your Honour’s attention, first of all, to paragraph 892 on page 61 where we see that this Code, insofar as it applies, says that:

Whoever kills a human being, whether man or woman, boy or girl, or even an infant, handsome or deformed, Chief, Elder, or principal Elder, rich or poor, noble or baseborn, must pay the same penalty:  6 purses [i.e. 3,000 grosh], 100 sheep, and half an ox in fine.

GLEESON CJ:   The basic idea behind this has not disappeared from the entire world except Albania.  In the part of the world in which we live it is called payback.

MR GUNST:   Yes.  Indeed, one could find in Anglo-Saxon law before the Norman conquest, your Honour, provisions much the same as this, payments that required the payment of a fine to the family of a deceased person.

GLEESON CJ:   Try Papua New Guinea in 2006.

KIRBY J:   New Zealand has introduced the lowest level family meetings where there have been family offences between families, so it is not unknown, but it is regularised, controlled and it is not as irrational as some of the rules of the Kanun appear to be.

MR GUNST:   And there are some such problems here.  Your Honours have dealt with in S152 ‑ ‑ ‑

KIRBY J:   A couple taken in adultery can be killed, but only with the one bullet.

MR GUNST:   I do not even want to begin to think how you would do that, your Honour, but ‑ ‑ ‑

GLEESON CJ:   Well, that as a matter of practicality seems to indicate immediate retribution.

MR GUNST:   Yes, and that is going to bring me on to the next page of the appeal book, your Honour, at page 62.  At paragraph 896 we see that:

If the murder has been committed . . . the murderer, together with the males of his house - even infants in the cradle, must leave the village and go to stay with friends, in order to avoid the danger of being killed.

Fortunately we see in 897 that women and priests “do not incur the blood‑feud”.

But then if your Honours look at paragraphs 898 to 900, it is a rather more short‑term thing than extending from 1945 through until the present date.  It is the murderer that incurs the blood guilt or blood debt according to this feud, that is, as the text of paragraph 898 tells us:

the person who pulls the trigger and fires the gun or uses some other weapon against another person.

§899.  The family of the victim could not pursue or kill any of the brothers, nephews or cousins of the murderer, but only the actual perpetrator.

Then in paragraph 900 there is this 24 hour rule that your Honour the Chief Justice referred to, that other family members were at risk for 24 hours, but so long as they kept out of the way, then there had to be guarantees of a truce provided.

So, to pick up your Honour Justice Kirby’s proposition, we would say this, that at least so far as the written word of this customary code is concerned, it does not extend to feuds extending over multiple generations to the extermination of the male line of some perpetrator of a criminal offence.  It may be, as your Honour the Chief Justice said, that it is used as a cloak for payback or in furtherance of criminal designs, and there was evidence that the Tribunal had and accepted that that was in fact how this code was being used, as a cloak, as it were, for criminal activity, and nothing further.  But that does not bring it any closer, in our submission, to providing a Convention reason for a claim for the engagement of the protection obligations of this country.

GLEESON CJ:   Well, we are not ourselves so far removed from situations in which people sometimes seek to use customary law to justify conduct that we regard as criminal, and it can give rise to serious problems in sentencing in some places.

MR GUNST:   That is so, your Honour.  I did not want to trespass onto customary law in this country, but we accept the force of what your Honour puts.  However, it does not elevate what is essentially a personal non‑Convention reason into a Convention reason by the remove of generations.  If it is not a Convention reason to start with, even if one had some justification by this custom for revenge, a concept known to us but foreign to our legal system, even if one had some justification by reference to this custom for seeking revenge against a murderer, it does not convert it into a Convention reason, and the lapse of years and the production of further generations does not elevate a non‑Convention reason into a Convention reason, in our submission.

GLEESON CJ:   But factually the issue is complicated by the consideration that apparently this so‑called custom is not a true custom, but an excuse that people use to justify their conduct.

MR GUNST:   Yes, that is so, and there is evidence to that effect which the Tribunal accepted which it sets out in its reasons.  But once again, your Honour, that puts it further away from being a Convention reason so far as this appellant is concerned, not closer.  If there was some law of general application that said, “If you have a different religious faith to us” or “If you have a different political opinion to us we can kill you and we can kill your children and grandchildren as well”, then that may come closer.  But there is no suggestion of that in this case.  There is no suggestion in any of the material and it certainly was not the appellant’s case before the Tribunal.

KIRBY J:   Why is it called the Code of Lekë Dukagjini?

MR GUNST:   I do not know the answer to that.

KIRBY J:   Is that a person’s name or is it a place or – do we know that?  “Kanun” is apparently translated as “code”.

MR GUNST:   I assume “Kanun” is a cognate word to “canon” as in canon law.  On page 58 of the appeal book in the foreword to this text we see that the expression “Dukagjin” was said to be:

In the areas bordering on Dukagjin – in the widest sense – especially in the plains, where the Turkish government had managed to establish domination -

Your Honours will recall that much ‑ ‑ ‑

KIRBY J:   I think the answer is at page 58 in the middle of the page, “the areas bordering on Dukagjin”.  They are a particular part, so it must be the code of a particular part of Albania, in the north apparently.

MR GUNST:   Yes, that seems to be so, your Honour, “Kanun” meaning a code, as in canon law, and perhaps the code of the law of this particular geographic area.

GLEESON CJ:   The paragraph at line 20 seems to provide the approximate answer to the question.

MR GUNST:   Yes, and that supports the Tribunal’s finding that at least in the geographic area of the north of Albania is the law of general application.  Whether that is a full explanation for all that goes on in that area, as your Honour the Chief Justice said, or whether it is used as a cloak or an excuse for criminal activity or payback, is another question.  But none of that converts into a Convention reason, either for the grandfather, and certainly not for the grandson - the appellant - in our submission.  The Tribunal found and accepted that the persecution of the grandfather was not for a Convention reason and went on to conclude, and we say correctly, nor was any persecution or fear of persecution that the appellant may have.

Your Honours, in dealing with section 91S I forgot to say the second reading speech and the explanatory memorandum make it clear that this section was introduced for the particular purpose that we previously described and which we have set out in our written submissions.  After we made the point that the approach to this section has been consistent throughout in the Federal Court and requires no correction, we wanted to make the point that it is also consistent with such authorities as we have been able to find in other jurisdictions.

Our learned friend took you to the materials that we provided yesterday, in particular from the United Kingdom and from Canada.  In both of those jurisdictions the approach is the same as that which section 91S requires in this country.  It is the approach that would have been the approach of the Federal Court in this country and was indeed the approach up to the Full Federal Court’s decision in Sarrazola.  It was the decision in that case which required the correction that section 91S brought in to existence.

As we say, in the United Kingdom it is Skenderaj, and there are the two Canadian cases, and your Honours have discussed them with Mr Ower and your Honours have seen them.  They are Bojaj and Zefi.  Skenderaj was in fact – and we picked it up because of your Honour Justice Kirby’s research – referred to by your Honour in your Honour’s judgment in Dranichnikov.  We have not put it in our materials, but it is Dranichnikov v Minister for Immigration and Multicultural Affairs 197 ALR 389, and the case is referred to in your Honour Justice Kirby’s judgment at paragraphs 70 to 71.

Mr Dranichnikov was the member of the group – he was a businessman from Russia and he was the man who put forward the suggestion that businessmen in Russia who asked the authorities to act against criminal elements were themselves a group that were subject to persecution.  In your Honour Justice Kirby’s judgment, as we say, at paragraphs 70 to 71, your Honour refers to Skenderaj and cites the facts.  The approach is the same, at least in the United Kingdom and in Canada, and we say it is the correct approach, the one that is mandated by section 91S.

I had in fact diverted myself.  I was taking your Honours to the provisions of the code itself.  I had taken your Honours to page 62.  We might also just draw your Honours’ attention to page 64 which deals with manslaughter.  At paragraph 932 of the code which commences at page 64 and runs over onto page 65, your Honours will see that the code in fact distinguishes, or at least purports to distinguish in this written form, between murder and manslaughter, and we find – one might say rather relieved to find – that:

Involuntary manslaughter is not avenged by the gun:  The murderer pays for the blood and guarantees are given.

Presumably that is the 100 sheep and the half of the ox that was referred to earlier.  In paragraph 934 your Honours see that:

If people of wisdom confirm that the killing was, in fact, involuntary, the murderer pays the blood‑money and is given guarantees.

There would be guarantees by the family ‑ ‑ ‑

CALLINAN J:   It seems to be full of contradictions though, the code.  We think we are hard put to construe various statutes.  I would not like to have to construe this.

MR GUNST:   There are quite a number of contradictions in it, your Honour, and we accept that.

GLEESON CJ:   It was probably written in a locality where the judiciary and the police force were not notable for their presence.

MR GUNST:   Or at least for their jurisprudence perhaps, your Honour, but yes, probably also their presence.

KIRBY J:   Well, it is written down by a Franciscan priest of great intellectual gifts, it says.

MR GUNST:   Yes, but from records from a long time past, as we understand it, your Honour.  Perhaps if we were to read Anglo‑Saxon statutes or the like, we would find them equally difficult to understand, but ‑ ‑ ‑

GLEESON CJ:   He was probably the Albanian equivalent of the Venerable Bede.

CALLINAN J:   I would not like to be the parliamentary draftsman in Albania.

GLEESON CJ:   There would be a few reprisals there.

MR GUNST:   I am not sure that Bede was a Franciscan, your Honour, but otherwise ‑ ‑ ‑

GLEESON CJ:   No, I did not suggest he was, but he was a recorder of customs.

MR GUNST:   Yes, he was.  Your Honours, we think that is about all we need ‑ ‑ ‑

KIRBY J:   It does not rival Sir Samuel Griffith’s Code, at least in our eyes.  Maybe that is the question.

MR GUNST:   There is one thing that I should conclude with, and I would remind your Honours that in Minister for Immigration and Multicultural Affairs v Respondents S152 205 ALR 487 in the joint judgment of your Honour the Chief Justice and Justices Hayne and Heydon at paragraphs [25] and [26] your Honours reminded us – and I will quote directly:

No country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence.  Day by day, Australian courts deal with criminal cases involving violent attacks on personal property.  Some of them may occur for reasons of racial or religious intolerance.

Your Honours, insofar as Albania may be a more lawless place, on the evidence, than at least most of Australia, that is regrettable, but it does not convert a non‑Convention reason for the origin of this grudge into a Convention reason, and it does not entitle the appellant to engage the protection obligations of this country.

Unless there is anything that your Honours think we have left unsaid, or in respect of which we could assist your Honours, those are our submissions on behalf of the first respondent.

GLEESON CJ:   Thank you, Mr Gunst.  Yes, Mr Ower.

MR OWER:   The only matter that I would wish to raise in reply, if it pleases the Court, is while I accept the correctness of what my friend says in relation to the consideration of 91S in the courts below, that is to say, it has followed from the decision of his Honour Justice Merkel in SDAR, I would draw the Court’s attention to the consideration of the matter by his Honour Justice Selway in a matter of STXB v Minister for Immigration 139 FCR 1. His Honour adopted the reasoning of the decisions that have been cited by my learned friend, but I would draw the Court’s attention to his Honour’s consideration of the matter at pages 11 and 12, paragraph ‑ ‑ ‑

KIRBY J:   Is that an Albanian case?

MR OWER:   Yes, if it pleases, another Albanian blood‑feud case.

GLEESON CJ:   Do we have that case?

MR OWER   No, your Honour, and I apologise for that.  I am presently arranging for copies to be provided to the Court.

GLEESON CJ:   Well, perhaps you could then read to us and put onto the record what it is you want us to look at so that if necessary we can ask any questions about it.

MR OWER:   If it pleases, your Honour.  Paragraph 32:

This is not to say that the factual finding made by the Tribunal -

and the reference there is to the motivation for the persecution –

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 -

the decision of his Honour Justice von Doussa in SCAL and the Full Court in SCAL.  Justice Selway continues at paragraph 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.

Then his Honour goes on to give an example from traditional indigenous Australian society and a citation to a work, The World of the First Australians.  His Honour notes that ‑ ‑ ‑

GLEESON CJ:   What is that example?

MR OWER:   I will read it, if it pleases:

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”.  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 -

Then his Honour cites a work of legal anthropology.  His Honour then goes on to note that that was not the factual finding made by the Tribunal in that particular case in that the factual findings were such that the motivation to harm the other member of the family was one of personal revenge, and accordingly that reasoning did not apply.  The submission we make here is that those findings simply have not been made.

GLEESON CJ:   Would you not say they were simply not being made?  How was the case for the appellant put before the Tribunal?

MR OWER:   We would submit that the case was put to the Tribunal on the basis in a similar manner to which it has been put to this Court now.

GLEESON CJ:   Let us have a look at the Tribunal’s reasoning?  It starts at 122. 

MR OWER:   The appellant’s first claims in relation to it appear at the top of page 126.

GLEESON CJ:   I am looking at page 135, line 28:

The Tribunal accepts the applicant’s claim that his family is involved in a blood feud with the Paja family because the applicant’s grandfather killed a member of the Paja family in 1944-45.

MR OWER:   But, with respect to that finding, that does not necessarily say why the Paja family wished to harm either the appellant or the appellant’s grandfather.  It is not a finding to the effect that they wished to harm the appellant’s grandfather by virtue of a personal act of revenge.  Our complaint is that that necessary consideration has never been done.

GLEESON CJ:   Why do you say they wish to harm the grandfather, the grandfather having killed a member of the Paja family?  If it was not revenge they were after, what was it?

MR OWER:   It was perhaps revenge, but the question is revenge against whom?  Revenge against the entirety of the family, including revenge against the grandfather would still constitute a convention reason, in our submission.  The material before the Tribunal would support that sort of analysis.  Ultimately, our complaint is that that question, whether there was a convention based reason to persecute the other members of the family or whether it was simply an individual motivation, was never considered by the Tribunal.  But certainly the case was put on those terms to the Tribunal, in our submission.  Unless your Honour has anything further, that was my reply.

GLEESON CJ:   Thank you, Mr Ower.  We will reserve our decision in this matter and we will adjourn until 10.15 on Tuesday, 29 August 2006 in Canberra.

AT 11.22 AM THE MATTER WAS ADJOURNED