STCB v MIMIA & Anor

[2006] HCATrans 435

[2006] HCATrans 435

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 WEDNESDAY, 9 AUGUST 2006, AT 3.22 PM

Copyright in the High Court of Australia

MR S.D. OWER:   If it pleases the Court, I appear for the appellant in this matter.  (instructed by McDonald Steed McGrath)

MR C. GUNST, QC:   If the Court pleases, I appear with my learned friend, MR M.J. RODER, on behalf of the first respondent.  (instructed by Sparke Helmore)

GLEESON CJ:   Yes, Mr Ower.

MR OWER:   If it pleases the Court, the issues which arise in this matter are twofold:  first, what is the proper construction and application of section 91S of the Migration Act, in particular in the facts and circumstances giving rise to the appellant’s claim; and secondly, a subsidiary issue, namely, whether the Full Court below and the Tribunal in turn properly understood and applied the concept of particular social group as explained by the decision of this Court in Applicant S v Minister for Immigration and Multicultural Affairs.  Underlying these two issues is perhaps the wider issue of whether Australian refugee law offers asylum to those who seek protection obligations in circumstances where that claim arises due to customary law or blood feuds.

The matters which I propose to cover in argument are, first, an overview of the appellant’s claims and in particular the way in way in which we say section 91S is engaged and the way in which the alternate social group was put both to the Tribunal and the Full Court below.  Secondly, I propose to address the text, context and legislative history of section 91S, including the mischief to which the supplementary material put forward suggests it was enacted to correct.  Thirdly, the manner in which the Tribunal and the Full Court considered the proper application of section 91S and the manner in which we submit both the Tribunal and then the Full Court for separate reasons erred in both the construction and application of that provision.

I will then turn to the question of the alternate social group, that is to say, the posited group of people who are subject to the Kanun, the Code of Lekë Dukagjini, which is the customary law applicable in the present case.  Finally, I will address the Court in relation to the question of state protection and, in particular, the significance or otherwise of the finding which appears in the Tribunal’s reasons at page 135, lines 24 to 26.

If I can turn to the first issue, namely, the nature of the claims put forward by the appellant, those claims appear in the appeal book at pages 125 through to 133 of the Tribunal’s decision.  In a summary form, the nature of those claims was that in approximately 1997 the appellant and his brother were notified by an uncle that another family, namely, the Paja family, had moved to the city of Shkoder and were intent on invoking or reinvigorating a so‑called blood feud which had arisen from circumstances in 1944-1945 in which the appellant’s grandfather had apparently killed a member of the Paja family.

It is unclear from the evidence as to whether the appellant’s grandfather was in fact still alive in 1997 in that it is not clear from the nature of the claims made or the findings made by the Tribunal whether that was the case.  It is clear that the appellant’s father at that stage was dead and it may be assumed, from the way in which the Tribunal dealt with the matter, that the appellant’s grandfather was also deceased at that time.

The appellant submitted that this fear, namely, that arising from the risk of the Paja family killing him or his brother, gave rise to protection obligations on behalf of Australia in one of two manners:  first, that it gave rise to a well‑founded fear of persecution by reason of his membership of a particular social group – his family; and secondly, alternatively, that it gave rise to a well‑founded fear of persecution by reason of the alternate social group, namely, persons who are subject to the customary law.

This second claim was not put as clearly as it could have been to the Tribunal and it appears to first have arisen in correspondence between the appellant’s migration agent and the Tribunal in a letter which appears at pages 95 and 96 of the appeal book.  If I can take the Court to those pages, your Honours will see at page 95 there is a reference in the letter from the migration agent to the decision of this Court in Khawar’s Case.  While the nature of the fear is not specifically put in the letter, in my submission, the reference to Khawar’s Case gives rise to a claim similar to that put in that case, namely, that there was a risk of there being a discrimination on behalf of the Albanian authorities in relation to the provision of law enforcement to persons who are members of the particular social group.

Now, I would concede that it is not expressly spelt out in that letter, and certainly the evidence before the Tribunal was somewhat scarce in relation to claims of selective discrimination on behalf of the Albanian state, but it was clearly, in my submission, put to the Tribunal that that was an aspect of the alternate claim.  Not only was there persecution constituted by the violence or potential violence conducted by the Paja family, but also that there was an element of conscious discrimination on behalf of the Albanian state in relation to those who were caught in such a blood feud.

GUMMOW J:   Is there any evidence about what this expression means, “the Paja family”?  How many people are we talking about?

MR OWER:   Yes, your Honour, members of a clan, but there is no specific evidence as to who they specifically constitute, and the Tribunal has not necessarily explored that issue either.  One may assume that it is another family, somewhat larger, on the basis of the findings made by the Tribunal, than the appellant’s family.

The appellant’s claim that he had a well‑founded fear of persecution by reason of a membership of his own family enlivened the application of section 91S, and if I could take the Court to that provision.  Section 91S was inserted into the Act by the Migration Legislation Amendment Act No 6 of 2001 and came into force on 1 October 2001.  By virtue of the transitional provisions which were enacted at the same time, it applied to the appellant’s application for a protection visa despite the fact that that application pre‑dated the commencement of the provision.

The mischief to which section 91S is addressed would appear to be from the explanatory memorandum the decision of the Full Court of the Federal Court in the matter of Sarrazola (No 2) 107 FCR 184. The Sarrazola matter, to give a brief summary of the facts ‑ ‑ ‑

GLEESON CJ:   Is it on the list?

MR OWER:   It is on the list, if it pleases, and it has been included in the appellant’s bundle of authorities, which I hope your Honour has a copy of.  A brief summation of the facts in Sarrazola (No 2) was that Ms Sarrazola was the sister of a small time Colombian drug runner who owed money – that is to say, the drug runner – owed money to some higher up gangsters in the hierarchy.  They sought to recover that money, but were unable to do so, from the drug runner and accordingly sought to extort money through threat of violence from the sister.  The sister claimed that she was entitled to protection obligations by Australia on the virtue of being a member of a particular social group, namely, family.

The Full Court on two occasions accepted the applicability of such a construction of the Refugees Convention without the consideration of section 91S.  It does not appear that special leave to appeal was sought either from the original decision of the Full Court in Sarrazola (No 1) or the decision in Sarrazola (No 2).

The first thing to note about section 91S, in my respectful submission, is that its intent is not to exclude a family from being a particular social group for the purposes of the Convention.  That flows not only from the words of the provision, but also from the nature of the explanatory memorandum and the comments made therein.  If the Court looks at section 91S, one can see that there are two limbs to it, paragraph (a) and paragraph (b).  In my respectful submission, paragraphs (a) and (b) divide into four steps a relatively logical process which a person seeking to invoke protection by reason of membership of a family would need to have their claim assessed against.

Paragraph (a), which talks about disregarding:

any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced –

requires three steps:  first, the identification of whether there is a fear of persecution or any other persecution by any other member of the family – and one notes that that includes members of the family who are living or dead; secondly, the identification of the motivation for that persecution – why do the persecutors wish to persecute any other member of the appellant’s or the applicant’s family; thirdly, whether that reason, once identified, constitutes a reason falling within the Refugees Convention.

Once those three steps are undertaken there then may be a call for the fourth step which arises from paragraph (b), namely, a step whereby whether it is reasonable to conclude that the appellant’s fear would not have existed if the first‑mentioned person, that is to say, the other family member’s fear, had also been disregarded.  But one would, of course, only need to come to paragraph (b) if one had found under paragraph (a) that the reason for the fear held by the other family member was not for a Convention reason, and I do not understand there to be any dispute between the parties in relation to the construction of section 91S when one has regard to the relationship between paragraphs (a) and (b).  Now, if one considers the facts of Sarrazola (No 2) in respect of section 91S ‑ ‑ ‑

KIRBY J:   Can I ask you, as in the last case, the case we have just reserved, did section 91S come into the Act at the same time as section 91R?

MR OWER:   If it pleases, your Honour, as part of the same amending legislation.

KIRBY J:   And did the Minister explain the purposes of section 91S?

MR OWER:   Yes, your Honour, in terms very similar to which were stated in the explanatory memorandum.  I do have copies of the second reading speech to hand up if the Court does not ‑ ‑ ‑

KIRBY J:   I think maybe you should do that because we will have two piles and it might be handy to have it.  It seems a much more particular and less generic provision than section 91R.

MR OWER:   The mischief which it is intended to resolve on behalf of the Parliament is relatively small compared to that which was considered arising in respect of section 91R.

KIRBY J:   Where do we find the Minister explaining the mischief?

GLEESON CJ:   Is it at the top of page 30422, second paragraph and following?

MR OWER:   That is correct, your Honour.  The then Minister for Immigration cites a case which he does not name regarding a failure to pay their family’s debts which, in my submission, would fit with the facts of Sarrazola, and then he goes on to describe what ‑ ‑ ‑

KIRBY J:   It is the facts of that case?

MR OWER:   It is, if it pleases, your Honour.  He then goes on to describe what he says are:

elaborate constructs to claim that they are being persecuted as a member of a family and thus under the convention ground of a particular social group, when there is no convention related reason for the persecution.

He goes on to cite possible dangers of:

criminal families to claim protection on the basis of gang wars – not those that the government would see as warranting international protection.

If one looks at the facts of Sarrazola one can see that they squarely fall within section 91S in that on the four‑step analysis that I have put forward to the Court, the brother would have a fear of persecution in that he would fear violence on behalf of the drug lords.  The reason for that fear of persecution was not Convention‑based.  It was simply that he owed money and they wished to recover it from him.  So the second and third steps would be enlivened thereby.  Accordingly, that fear would be required to be disregarded.  The fourth step, the question of whether the sister in the particular case had a well‑founded fear of persecution, would also require that her fear be disregarded because in those circumstances it would be reasonable to conclude that her fear would never exist if the brother’s fear had never existed.

So, in light of that four‑stage process, I now ask the Court to turn to the Tribunal’s consideration of the appellant’s claims and its findings and application of section 91S in that regard.  The Tribunal’s consideration of the particular issue commences at page 135 of the appeal book, line 27 and it makes findings – and I will not read these to the Court – that it accepts the veracity of the applicant’s claim, namely that he is involved in a blood feud.  It makes no specific finding that the appellant is at risk of being killed if he returns to Albania but, in my submission, such a finding would be implicit in its consideration of the matter and the findings that it did make.

At the top of page 136 of the appeal book it notes the implementation of section 91S and commences considering its application at line 13.  The important findings appear at lines 16 through 23.  It cites that no Convention reason was put forward for the blood feud in terms of the actual origins of it but then does note that “the applicant’s family can be considered to be a particular social group under the Convention”.  It then makes the cryptic finding – and I will explain why, in my submission, that finding is cryptic – at lines 20 and 21:

that the motivation of the Paja family to harm a member of the applicant’s family is revenge for a murder committed by the applicant’s grandfather.  Revenge for a criminal act is not a reason for harm which comes under the Convention.

CALLINAN J:   I am sorry, I missed that page.

MR OWER:   It is page 136, your Honour, lines 15 through 22.  In our submission, that paragraph reveals jurisdictional error on behalf of the Tribunal in that it has misconstrued section 91S by virtue of failing to make certain findings and making other findings which are unnecessary.  In fact, we submit there are five indicators or matters which reveal error in the Tribunal’s approach.  The first ‑ ‑ ‑

GUMMOW J:   Are these set out in your written submissions?

MR OWER:   Yes, your Honour, but not necessarily in this manner.  The first matter which we say reveals error on behalf of the Tribunal is that there is a failure to construe the plain words of section 91S.  In and of itself that may be of little significance, but in the context of the other matters that I will come to shortly, it reveals a misunderstanding of its task in terms of applying the claims made by the appellant to the legislation.

That failure to construe, in my submission, leads to the second of the five matters, that there is no express finding as to the first step of section 91S.  Your Honours will recall that, in my submission, the first step is to make a finding as to whether any other member or former member of the family has ever experienced any fear of persecution or any persecution.  There is no finding as to that.  We know from the appellant’s claims that as at 1997 his father and his brother were at risk of persecution and his father shortly thereafter died, so it is really only him and his brother.  There is no mention of the grandfather.  There is no evidence of the grandfather and, indeed, there is no suggestion in any of the material that the Paja family ever sought to enact revenge or otherwise to murder the grandfather.

GUMMOW J:   You use this word “evidence”.

MR OWER:   Material, your Honour.

GUMMOW J:   We are not in the evidence world, are we?  We are in the Tribunal.

MR OWER:   No, your Honour, but there was no material before the Tribunal, in my submission, which would give rise to that finding.

HEYDON J:   Is there not a finding at page 135, line 27:

his family is involved in a blood feud with the Paja family –

That means each member of the family and that is, as you say in a perhaps shorthand way, caught up on line 20 on page 136.  Is there not an implicit finding?

MR OWER:   That would be one possible reading of the matter and one that was certainly agitated in the court below in that if that was the finding, we would submit that section 91S would require the fear to be taken into account and not disregarded in that if each member of the Paja family alive as at 1997 held a fear of persecution, the next step, the question “What is the motivation of the Paja family to harm members of the appellant’s family?” would necessarily be their status as members of the family which in turn would be a Convention reason, in my respectful submission.  So if the Court were to construe the findings as being implicitly that each other member of the appellant’s family alive as at 1997 held such a fear of persecution, we would still submit for the reasons that I am currently addressing that the Tribunal has misconstrued section 91S.

The third matter is the question of motivation and, as I have stated, whether the Court ‑ ‑ ‑

GUMMOW J:   What is the point you have just made again?  Just recapitulate it for me if you would.

MR OWER:   The principal submission of the appellant is that there has been no finding made as to the first step of section 91S.  That is to say, there is no finding as to whether any other member of the appellant’s family had a fear of persecution.  However, even if the Court were against me on that submission and were to construe the reasons of the Tribunal as having an implicit finding, it would still, in my submission, lead to a finding that the Tribunal has made jurisdictional error in that there is no suggestion that the Paja family are motivated to persecute other members of the appellant’s family for a non‑Convention reason, which is in short the point I am about to come to in that there is no express finding as to the motivation of the Paja family to harm any member of the appellant’s family.

I have taken your Honours to the finding at lines 21 and 22 about a “Revenge for a criminal act is not a reason for harm which comes under the Convention” but, in my respectful submission, that finding begs the question:  revenge against whom?  Your Honours would have seen from the outline of submissions filed by the appellant a citation from a decision of his Honour Justice Wilcox in the matter of Abdi ‑ ‑ ‑

GUMMOW J:   Wait a minute, what about line 2 on the top of page 126.  Your client’s uncle had approached members of this family on two occasions. 

The applicant states that he believes if he returns to Albania he will be killed by a member of the Paja family.  He states that efforts have been made to resolve the feud.  His uncle has approached –

That suggests it is family to family, does it not, not just your client.  Your complaint is that there is no finding that it goes beyond your client.

MR OWER:   That is our principal complaint, your Honour.  Our alternative submission is that it may be construed as being family to family, in which case we would say that section 91S has no application either.  That was the argument, as I stated, that was put to the courts below and was not accepted in that the court below – and I will come in greater detail to the decision of the Full Court shortly – understood the grandfather – and, as I have stated, there was no evidence that the grandfather was even alive at that time – as having a fear of persecution solely as an individual and not by virtue of being a member of a family, family to family.  Our complaint about that is that if one accepts there is an implicit finding, as your Honour, I understand, is putting to me, that would seem to be contrary to the whole tenor of the evidence and the manner in which the Tribunal dealt with it.

CALLINAN J:   Can you assist me with the – what is the Albanian Reconciliation Commission?

MR OWER:   The material before the Tribunal on that issue, your Honour, is very sparse.  I am loath to give evidence from the Bar table but I understand that it ‑ ‑ ‑

CALLINAN J:   What is there in the book, if anything?

MR OWER:   There is only the material which appears in the United Kingdom Home Office Report and your Honour will see that extracted in the decision of the Tribunal at pages 133 through 135, in particular at page 134, lines 31 and following.  There is some discussion of bodies established for reconciliation of blood feuds, though whether those bodies are international bodies or bodies established by the Albanian State is unclear.  The best answer may be that some are put forward by the international community and some others are put forward by the Albanian State.

CALLINAN J:   Thank you.  Was there evidence that your client was the only surviving male member of the family?

MR OWER:   The evidence was, your Honour, that there were at least two members, the appellant and his brother.

CALLINAN J:   Was one out of the country, out of Albania?  Was he in Italy?

MR OWER:   I understand that at the time of the Tribunal’s decision he was no longer in Albania, though his exact location was a secret and not disclosed.

HEYDON J:   Page 125, line 24 says:

He has a brother who may be in Italy.

MR OWER:   And your Honour will see in an earlier passage that that was a matter of discussion during the Tribunal hearing, in particular at page 130, but there was some hesitancy on behalf of the appellant to disclose his brother’s exact location, and in particular that was lines 2 through 5 on page 130.

CALLINAN J:   Where do we find the best evidence of the so‑called blood feud code?

MR OWER:   The appellant’s migration agent submitted statements on behalf of witnesses which gave some expression to how the code operates in modern Albania.

CALLINAN J:   What is the best example for your case?

MR OWER:   The first example we would rely upon is a statement of a Mr Lek Simoni who gave a statement and that appears at pages 54 and 55.  There is a statement of a Mr Paulin Uci at page 52 of the appeal book and then, additionally, there is an extract from a textbook which was placed before the Tribunal which commences at page 57 which sets out the traditional nature of the code.  Without taking the Court to the specific provisions of the code I would draw the Court’s attention to the passages at page 62 and in particular items 896 and 897 and then items 898, 899 and 900 which appear at lines 17 through 25 - perhaps particular references on item 900.

That would perhaps give some material as to the traditional operation of the code, in answer to your Honour Justice Callinan’s question, but perhaps the best modern analysis is again that which appears in the United Kingdom Home Office Report and the relevant passages are again ‑ ‑ ‑

CALLINAN J:   If you can get into the house of your potential assailant the rules of hospitality protect you - page 59.

MR OWER:   That is correct, your Honour.  Indeed, I think the appellants case was that prior to leaving Albania he had been living in a house in which he had protection from violence by members of the Paja family.

CALLINAN J:   Anyway, there does not seem to be any dispute about the way in which the code operated, is that right, or you are not aware of any dispute about it?

MR OWER:   I am not aware, your Honour.  I think that the sole issue of dispute between the parties is whether section 91S has the effect of excluding claims arising under the code from Australian refugee law.  If I could return then to the five matters which we say give rise to jurisdictional error and in particular the Tribunal’s finding in relation to revenge.  As I submitted, the Tribunal’s finding begs the question, revenge against whom?  We not only respectfully adopt the passage of Justice Wilcox in the matter of Abdi which is, as I have stated, set out in the written submissions, but we would also rely upon the comments of members of this Court in the matter of Minister for Immigration v Singh 209 CLR 533.

Singh was a decision in a slightly different legal context in that it involved the application of Article 1F of the Refugees Convention and in particular whether crimes committed by the respondent in that case constituted political or non‑political crimes. However, in that context the question of motivation was considered by your Honour the Chief Justice and Justice McHugh and we would respectfully adopt those statements as having application in the present case, in particular, the statement of your Honour the Chief Justice at page 544 of the report. Your Honour the Chief Justice at page 544, paragraph 18 considered matters as to whether “murder might, in some circumstances, be a political crime”. We would rely upon that entire paragraph and in particular the closing words:

Revenge is not the antithesis of political struggle; it is one of its most common features.

GLEESON CJ:   At some stage before the argument concludes I would just like you to draw attention to that part of this Kanun that threatens your client.  Do not bother to do it now, or do not let me take you out of your line of argument.  Tomorrow morning.

MR OWER:   Perhaps that is a matter I can address your Honour on in reply.

GLEESON CJ:   I do not want an address on it, just page so‑and‑so, line so‑and‑so.

MR OWER:   If it pleases, your Honour.  In the present case the Tribunal has failed to consider who the persons are that revenge is sought against.  Is revenge sought against an individual member of the appellant’s family or is revenge sought against the entirety of the appellant’s family?  Are the Paja family motivated to harm members of the appellant’s family because they are members of the appellant’s family.  If the answer to that proposition is yes, we would then say that at the third step of the three steps in section 91S that it is a Convention reason because the motivation to harm members of the appellant’s family is that they are members of a particular social group, namely, the appellant’s family.

That may seem somewhat circular but, in my submission, that is the proper application of section 91S in this case, if one accepts that there is a finding that the Paja family wish to harm all other members of the appellant’s family, and the error of the Full Court was to sit and solely consider the position of the grandfather in the absence of any findings by the Tribunal to that effect.

Before I come to the decision of the Full Court, one can demonstrate the correctness of the proposition regarding revenge and the underlying question of motivation by thinking of perhaps a simpler example of persecution which would clearly fall within the Convention.  One could conjure an example of perhaps Nazi Germany during 1939 to 1945 and its persecution of members of the Jewish religion.  The reasons why members of the Nazi regime wished to persecute members of the Jewish religion are based upon their own twisted ideology, but for the purposes of the Convention the simple fact that they do wish to persecute members of the Jewish religion because they are members of that religion is sufficient.

In this particular case, if we consider the application of this revenge finding, the particular reason why the Paja family wish to have revenge against members of the appellant’s family is irrelevant, whether it be due to a criminal act, originally, a longstanding feud between families.  It is sufficient for the purposes of the Convention that they wish to persecute them because they are members of that family.

My learned friends in their written submissions seek to avoid that reasoning by an act of interstitial articulation in that they insert the words “in the individual circumstances” into the finding which appears at page 136 of the appeal book, lines 21 and 22, but, in my submission, even if those words are inserted and even if one understands the reasoning of the Tribunal in that respect, it still has not asked in answer to the question, “Whom is the revenge sought against?”  That is the third of the five matters which we say suggest that the Tribunal has misconstrued and in turn misapplied section 91S.

The fourth is the absence of any consideration of section 91R(1)(a), which I understand to have been at least partly considered in the case before this one.  Section 91R(1)(a) requires that the motivation for the persecution, in terms of the Convention reason, be the “essential and significant reason”.  The Tribunal does note the operation of section 91R(1)(a) at page 124, lines 29 through 31.  However, it does not seek to apply that in respect of its findings as to the motivation of the Paja family at lines 20 to 21.  We say that that is another reason why the Tribunal has misconstrued and in turn misunderstood its task under that provision.

The fifth factor which we say gives rise to the inference that there has been such misconsideration is that there appears to be no express consideration of this question of where it is reasonable to conclude, that is to say, the question posed by section 91S(b) and one would expect in the circumstances a statement that if the Tribunal had disregarded the fear of the other members of the family under paragraph (a) it would then state that in its opinion it was reasonable to conclude that the fear of the appellant would not exist.  There appears to be no consideration or, indeed, a simple finding to that effect.

GUMMOW J:   Are you going to deal at some stage with an error of law on the part of the Full Court?  We are not here to have a rerun of the Tribunal’s decision.

MR OWER:   Yes, your Honour.  I will be coming to that shortly in that my submission is that while the Tribunal has committed jurisdictional error the Full Court has attempted to sidestep that by invoking findings that, in my submission, the Tribunal did not make so that the error of law is not simply – on behalf of the Full Court – that it has not accepted the submissions in respect of jurisdictional error on behalf of the Tribunal but that in itself it has erred both in respect of the construction of 91S issue and the other issue of the alternate social group.

Returning then to the question of the Tribunal, a factor which the Court may regard as supporting the appellant’s contentions is the Tribunal’s apparent reliance upon the decision of his Honour Justice Merkel in the matter of SDAR and the Court will see the citation to SDAR and a quotation therefrom at page 136, lines 28 through 35.  If I could take the Court to the decision of SDAR which has been included the appellant’s bundle of materials.  At page 20 of that bundle there is a copy of the Federal Court report of that decision.

SDAR was the first case by a Federal Court judge considering the proper construction of section 91S and there were a number of other issues in the matter which do not concern the Court today.  An argument was put on behalf of the applicant in that case that was similar, but had certain different characteristics to the argument that has been put to the Court today on behalf of the appellant.  In particular, there was a significant difference in that the applicant in that case sought to draw a distinction between persecution and a fear of persecution which Justice Merkel regarded as an improper distinction.

At page 443 of the report, which is page 27 of the bundle, his Honour Justice Merkel summarises the Minister’s contentions and notes the difficulties faced by the applicant and in particular, at paragraph 19, quotes Lord Diplock from an extra curial text to the effect that – I am reading from the end of paragraph 19 which on this copy is lines 36 and following:

“If . . . the Courts can identify the target of parliamentary legislation their proper function is to see that it is hit; not merely to record that it has been missed.”

His Honour goes on to consider the application of that at paragraphs 20 and 21 and then comes to his conclusion at paragraph 24 on page 444, which is the passage cited by the Tribunal.  The particular significant aspect of that is that it appears his Honour concludes that a blood feud in every case must necessarily require the fear of persecution being disregarded in that he states at line 25 on the page in paragraph 24:

Thus, where a family member’s fear of persecution has arisen because another family member’s criminal debts have not been paid, or because a blood feud has arisen from or been associated with the unlawful act of another family member, that fear of persecution and persecution is to be disregarded.

Now, as a general principle, we do not take issue with the statement of his Lordship Lord Diplock, but we would note that such a principle of construction is of course subsidiary to the golden rule, namely that one starts with the plain words of the text and, in my submission, part of the Tribunal’s error lies in simply relying upon the conclusions of his Honour Justice Merkel and failing to actually apply the statute in question to the factual contentions put forward by the appellant.  It may be that in certain circumstances his Honour Justice Merkel’s statement is correct, namely, that blood feuds which have arisen from unlawful acts would require fear of persecution to be disregarded but, in my submission, it does not necessarily follow in every case.

His Honour has sought to invent a bright line rule in the application of section 91S to claims similar to that arising in this present case and, in my submission, that in itself is an error in that it is ultimately an application in the facts and circumstances of each case.  Now, this argument as has been put to this Court was put to the Full Court and the Full Court considered the matter in its reasons for decision commencing at page 160 of the appeal book and in particular pages 167, 168 and 169, and if I could take the Court to page 167 of the appeal book.

Your Honours will note paragraph 17, which is at line 30 of page 167, there is a consideration there of Khawar’s Case though, with respect to the court below, it is unclear what particular relevance Khawar had to this aspect of the applicant’s case.  Then at paragraph 18 there is a discussion of the application of section 91S followed by a quote from oral submissions before that court.  Then at paragraph 19, the Full Court sought to consider the argument and make appropriate findings.  In particular at line 30 the court states at paragraph 19:

The Tribunal’s finding . . . shows that it accepted that the other family’s motivation is ‘revenge’ for a murder committed by the appellant’s grandfather.  Similarly, the Tribunal accepted that the reason the appellant’s family was involved in a blood feud was that the appellant’s grandfather had killed a member of the other family.  Implicit in this is an acceptance of the fact that the appellant might be targeted because of his relationship to his grandfather.

Now, we do not quibble with those findings so far.  The next sentence is:

Given those findings it beggars belief to suggest that the appellant’s grandfather would be vulnerable for any reason other than that he was the killer.  No analysis is required; the conclusion is inherent in the appellant’s claim.  It is obvious that this is a finding made by the Tribunal or perhaps more accurately, this is a fact that the Tribunal accepted as an element of the appellant’s account.

Well, with great respect to the court below, we take issue with that conclusion in that ultimately it is the Full Court seeking to make findings or to construe reasons in a way that the Tribunal simply has not sought to express.  In my submission, the Tribunal’s reasons can be construed in one of two fashions, and we have touched on those earlier in oral argument:  either it has failed to make any finding as to the reason for the fear of other members of the family; or it has made the finding that they could have a fear of persecution and the Paja family are motivated to persecute them because they are indeed members of that particular family.

So it is difficult to understand how the Full Court could come to the conclusion that “it beggars belief to suggest that the appellant’s grandfather would be vulnerable for any other reason other than that he was the killer”.  It was clearly open on the facts for that to be the case, but our principal complaint is that the Tribunal simply did not undergo that analysis, and indeed it is difficult to see how the Tribunal could have undergone that analysis in the absence of any material as to whether the grandfather is indeed alive or dead at the date the Paja family wish to re‑instigate or invoke the blood feud.

So, in our respectful submission, it is not implicit in the findings made that the grandfather held a fear of persecution for a non‑Convention reason.  It may be the case.  It may be that the Tribunal, hearing the matter and properly applying section 91S, may reconsider the matter and after hearing further material and oral submissions may make that finding.  But our principal complaint is that it simply has not come to that conclusion and that one cannot construe the Tribunal’s reasons as so coming to such a conclusion.

KIRBY J:   Is the purpose of 91S to prevent people being members of a recognised social group whose only relevant social group is their own family?

MR OWER:   No, your Honour, we would submit that that is not the purpose of the section in that, if it were the purpose, one would expect the section to be much more simply drafted, namely, that for the purposes of Australian law a family shall not be a particular social group.  Both the words of the section and the explanatory memoranda would suggest that families per se are not going to be excluded from the operation of the Convention but rather, and to use this term which has been used in other matters which have considered section 91S, derivative family claims would not apply; that is to say, where the only reason why a person has a fear of persecution is that they have that fear because other members of their family are being persecuted for non‑Convention reasons.

There needs to be a finding, and indeed the entire purpose of section 91S, in my submission, is to restrict its application where the entire family has a fear of persecution for reasons of being a member of that family.  Ultimately, that is the nub of the appellant’s argument, that that is his claim, and the manner in which the Tribunal dealt with the matter and then the Full Court subsequently considered it was such that his claim has been disregarded improperly when it is the purpose of 91S that those claims are to be recognised under Australian law.

KIRBY J:   I asked the question because of the terms of paragraph 31 of the Full Court reasons.

MR OWER:   Paragraph 31 is in the context of the Full Court’s consideration of the alternate social group argument and does not necessarily affect the argument put forward by the appellant in relation to the family argument.  The conclusion of his Honour Justice von Doussa in SCAL was based upon, in our respectful submission, a misapplication of the questions of laws of general application, and I will come to that in due course when I address the Court in relation to that issue.  But in a short answer to your Honour Justice Kirby’s question, we would submit that paragraph 31 does not derogate from the argument being put so far.

If I could turn then to the third matter that I wish to address the Court on, namely the error made by the Tribunal and subsequently the Full Court in relation to this issue of the alternate social group, your Honours have already been taken to page 95 and in particular the claim that was put forward that there was this alternate social group, persons who were subject to the customary law.  The Tribunal’s consideration of the issue commences at page 137 of the appeal book, lines 17 and following, and I will not take your Honours to those pages other than to note that there is a consideration of some - what should be regarded as standard propositions from Applicant A and the decision of his Honour Justice Burchett in Ram’s Case.

Then commencing at page 138 there is consideration of the reason of Justice von Doussa in the matter of SCAL.  The Tribunal finishes that quote at the bottom of page 140, and what is interesting to note is that the Tribunal does not appear to apply Justice von Doussa’s reasoning.  Despite setting it out at great length, it nevertheless goes on to come to its own conclusion in respect of the existence of the particular social group, and this goes back to your Honour Justice Kirby’s question why we take issue with Justice von Doussa’s findings in relation to that.  We do not regard it as necessary to overturn them in this Court in that ultimately the Tribunal and

then in turn the Full Court did not necessarily expressly rely upon his Honour’s reasoning.

The Tribunal’s own consideration of the matter commences at the bottom of page 140 and then continues on, on page 141.

GLEESON CJ:   Well, perhaps we can look at that tomorrow.  How long do you think you will require to complete your submissions, Mr Ower?

MR OWER:   I imagine I will be another 15 minutes, if it pleases.

GLEESON CJ:   We will adjourn until 10 am tomorrow.

AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 10 AUGUST 2006