STCB v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 276

FEDERAL COURT OF AUSTRALIA

STCB v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 276

STCB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

No S 813 of 2003

FINN J
ADELAIDE
15 MARCH 2004

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 813 OF 2003

BETWEEN:	STCB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FINN J
DATE OF ORDER:	15 MARCH 2004
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 813 OF 2003

BETWEEN:	STCB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	FINN J
DATE:	15 MARCH 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The object of this application is to keep alive the right of the applicant ultimately to seek special leave to the High Court against the anticipated decision of the Full Court of this court.  The matter, as has been accepted by the applicant, is for present purposes governed by the Full Court decision in SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 301. Special leave had been sought in SCAL.

2. The applicant has candidly conceded that SCAL is determinative of the issues in this matter, and I am bound to follow that decision.  That concession has properly been made.  The present matter, like SCAL, involves an alleged fear of persecution arising from an Albanian blood feud, in this case, the blood feud resulting from the killing by the applicant's grandfather of a member of the aggrieved family in 1944 or 1945.  That family has declared its intention to take revenge.

3. For present purposes, I am obliged to conclude that if the applicant did not belong to his family or if his grandfather had not killed a member of the aggrieved family he would have no fear of persecution. The particular social group to which he belongs is his family, and s 91S of the Migration Act 1958 (Cth), in the circumstances, precludes reliance upon fear of persecution by reason of his membership of that group for the purposes of an application for a protection visa.

4. Accordingly, the application will be dismissed with costs.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated:             17 March 2004

Counsel for the Applicant:	J McGrath
Solicitor for the Applicant:	McDonald Steed Lawyers
Counsel for the Respondent:	K Tredrea
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	15 March 2004
Date of Judgment:	15 March 2004