SVCB v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 856

FEDERAL COURT OF AUSTRALIA

SVCB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 856

SVCB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 51 of 2004

SELWAY J
9 JUNE 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 51 OF 2004

BETWEEN:	SVCB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SELWAY J
DATE OF ORDER:	9 JUNE 2004
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        Application dismissed.

2.        The applicant to pay the respondent’s 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 51 OF 2004

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

JUDGE:	SELWAY J
DATE:	9 JUNE 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. In this matter the applicant seeks orders for prohibition, certiorari, mandamus, injunctions and declarations in relation to a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 13 February 2004.  The Tribunal confirmed the previous decision that the applicant not be granted a protection visa.

2. In order to succeed in this application, the applicant must show that the Tribunal fell into jurisdictional error in its process, reasons or decision.  The applicant’s claim for a protection visa was relevantly based upon his claim that he feared death or injury if he returned to Albania, his country of nationality.  He claimed that that fear was a direct result of a blood feud involving his family.

3. As it is set out in the Tribunal’s reasons:

   ‘The Tribunal asked the applicant to explain the history of the blood feud.  The applicant said that in the summer of 1964 they had had a dispute about land.  His grandfather had killed someone as a result.  The regime was very powerful and his grandfather had been jailed for 25 years.  His grandfather had died in jail after fifteen year[s].  The applicant said that neither he nor his father had had direct contact with [the other family].  The Tribunal asked whether the old people had said anything about why [the other family] wanted to pursue the blood feud.  The applicant stated that [the other family] had said that they would not forgive the blood feud because they were Muslim and the applicant’s family were Catholic.  The Muslim people always wanted to put them down.  The Tribunal discussed with the applicant country information, suggesting a high degree of religious tolerance in Albania.  The applicant stated the government was run by Muslims.  Muslims looked at churches with hatred.  The applicant stated that he had been targeted both because of what had happened before and because of his Catholicism.’

4. The Tribunal rejected that claim in part by reason of its rejection of his credibility but in part by reason of s 91S of the Migration Act 1958 (Cth). The Tribunal said:

   ‘In this case, it was the killing by the applicant’s grandfather in the context of a land dispute that triggered the blood feud between the two families. The [other] family’s desire to avenge the applicant’s grandfather’s act through the pursuit of a blood feud was not motivated by any of the Convention grounds. Rather, the blood feud arose from the unlawful act of the applicant’s grandfather. The grandfather’s unlawful act put the grandfather and other male members of the family at risk of revenge according to the Kanun. In circumstances where the instigator of the feud, the applicant’s grandfather, is dead, the [other family] is now seeking to pursue the feud against the applicant, his father and his brother. As Merkel J stated in setting out the proper construction of s 91S in SDAR, …“where a family member’s fear of persecution has arisen … 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.” Applying the correct interpretation of s 91S to the applicant’s claims based on membership of his family, the applicant’s fear of persecution in relation to the family feud arising from his grandfather’s unlawful act is to be disregarded.

5. The Tribunal made the following further comments:

   ‘Further, even it were accepted that a particular social group of this type did exist, the Tribunal does not accept that membership of the group of “citizens of Albania affected by or subject to the Kanun” is the essential and significant reason for the harm feared by the applicant.  The essential and significant reason that the applicant is being targeted is not because he is subject to the Kanun, as are people across northern Albania, but rather that he is a member of a family that is being targeted for revenge.  The applicant is not being targeted “for reasons” of his membership of a group comprised of citizens of Albania subject to or adhering to, the Kanun.  Similar reasoning was applied by the Full Federal Court in SCAL v MIMIA [2003] FCAFC 301 (Carr, Finn and Sundberg JJ, 18 December 2003) at [19].

6. The applicant and the respondent have each filed written submissions. Both are content for the issue to be determined on the basis of those written submissions. In his written submission, the applicant raises one ground, namely that the Tribunal misunderstood and misapplied section 91S of the Migration Act. For this purpose, the applicant contends that the Full Court decision in SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 301 (‘SCAL’), was wrongly decided.

7. The applicant accepts that SCAL determines the issues he seeks to raise and that SCAL is binding on me.  In these circumstances the application must be dismissed with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.

Associate:

Dated:             2 July 2004

Counsel for the Applicant:	No Appearance for Applicant
Solicitor for the Applicant:	McDonald Steed
Counsel for the Respondent:	C White
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	9 June 2004
Date of Judgment:	9 June 2004