SVJB v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 932

FEDERAL COURT OF AUSTRALIA

SVJB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 932

IMMIGRATION – persecution – social group – blood feud – first applicant’s husband’s family involved in blood feud – fear of persecution due to membership of family – whether ‘Albanian women who have been the victims of a violent sexual attack’ a recognisable social group – whether ‘Albanian women without male protection’ a recognisable social group – whether fears of persecution related to membership of social group or because of blood feud.

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 referred to

SVJB & ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 73 of 2004

LANDER J
19 JULY 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 73 OF 2004

BETWEEN:

SVJB
FIRST APPLICANT

SVKB
SECOND APPLICANT

SVLB
THIRD APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

LANDER J

DATE OF ORDER:

19 JULY 2004

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.        The application is dismissed.

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 73 OF 2004

BETWEEN:

SVJB
FIRST APPLICANT

SVKB
SECOND APPLICANT

SVLB
THIRD APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	LANDER J
DATE:	19 JULY 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. On 14 April 2004 the applicants applied to this Court under s 39B of the Judiciary Act 1903 (Cth) seeking a review of a decision of the Refugee Review Tribunal (RRT) given on 19 March 2004. The application was brought within the time provided for in s 477 of the Migration Act 1958 (Cth) (the Act).

2. On 8 July 2004 the applicants filed an amended application in which they particularised the grounds for review.  The grounds are:

   ‘The decision of the Tribunal involved two errors of law, each going to error of jurisdiction.

   Particulars

   1.In reaching its conclusion, the Tribunal misquoted, and consequently misapprehended s.91S of the Migration Act 1958.

   2.The Applicant made the claim to the Tribunal that she was a member of a particular social group, being Albanian women without a male protector, and that she had a well founded fear of persecution for reason of membership of that particular social group, but the Tribunal failed to make any finding in respect of that claim.’

3. The first applicant was born in Beltoj, Shkoder in Northern Albania on 6 September 1964.  She married her husband BZ, who was born on 22 February 1965, in about 1989 or 1990.

4. Her first child, a son, was born on 10 October 1990.  The second applicant, a daughter, was born on 18 June 1996, and the third applicant, a son, was born on 28 June 2000.

5. The first applicant’s husband left Albania in January 2000 travelling on a false passport.  He came to Australia and applied for and was granted a temporary protection visa.  The first applicant remained in Albania with her children until she left on 11 September 2002 with the second and third applicants.  Her first son is still in Albania.

6. The applicants travelled from Albania to Italy and then from Italy to Australia.  They entered Australia on 23 September 2002.

7. On 6 November 2002 they lodged an application for protection (Class XA) visas with the Department of Immigration and Multicultural and Indigenous Affairs under the Act.  In that application the first applicant claimed that she was persecuted ‘because of my status in Albania as a woman on her own.  In Albania women are only safe if they have the protection of their husband’.  On 17 April 2003 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) refused to grant protection visas.  On 28 April 2003 the applicants applied to the RRT for a review of that decision.  On 19 March 2004 the RRT published its reasons for decision in which the RRT affirmed the decision of the delegate of the Minister not to grant protections visas to the applicants.

8. It is from that decision that the applicants seek judicial review and the issue of the constitutional writs.

9. The second and third applicants rested upon the first applicant’s application and her claim for persecution.

10. The first applicant claimed that she was born in the village of Beltoj near Shkoder where she lived until she left to come to Australia.  Beltoj has a population of about 700 and consists of about 150 families.  It is a farming community and most people are of the Catholic religion.  She claimed that the community lived by the customary law of Lek Dukagjini.

11. Up until 1992 Albania was under the rule of a Communist Government.  Between 1990 and 1992 the Communist Government gradually lost control of power and was eventually replaced by a democratic system.

12. When Communist rule ended, blood feuds, which are a recognised part of the Kanun of Lek Dukagjini, reappeared throughout Northern Albania.  The Kanun is a customary system for administering justice in Northern Albania.  It provides for revenge killings where a member of the family has been killed by a member of another family.  The firstmentioned family is entitled to avenge the death of their member by taking the life of a member of the second family.

13. Contemporary accounts recognise that blood feuds are prevalent in Northern Albania.

14. The first applicant’s claim was that her husband’s family had been engaged in a blood feud with the Gege Ellje family, who also live in Beltoj.  Some time in the 1960s, a member of the Gege Ellje family killed a member of her husband’s family.  Her husband’s family did not attempt to avenge the killing during Communist rule.  However, after Communist rule ceased, her husband’s father killed a member of the Gege Ellje family.  She claimed that the murder was carried out openly and publicly so that the community understood that the earlier killing had been avenged.

15. Her husband’s father was arrested and convicted and sentenced to 15 years in gaol.

16. The first applicant claimed that her husband’s father’s crime resurrected the blood feud between the two families and threatened the safety of her husband’s family.

17. She claimed that her husband left Albania about nine months after his father’s crime and lived and worked in Greece.  Periodically, he returned to Albania to visit her.  He was careful not to be seen whilst he was in Beltoj.  The first applicant said that she remained in Beltoj with her two younger children whilst her husband was in Greece.  Her elder son lived in the house of a family outside the village because it was not safe for him to remain in the village in case he was the victim of a reprisal.

18. She said that efforts were made to resolve the blood feud between the two families but those efforts proved unsuccessful.  She said that whilst she was in Albania she feared that the Gege Ellje family might attack her or her children.  She said that between 2000 and 2002 she heard members of the Gege Ellje family making threats and expressing their intention to kill a member of her husband’s family.

19. She said that on 7 July 2002 her elder son was visiting her.  Some time after 11.30 pm, she heard a knock at the door.  She told her elder son to take the two younger children into the cellar and escape from the cellar to a neighbour’s house.  She did that because she feared that the person or persons at the door were members of the rival family.

20. She opened the door and, even though all of them were wearing masks, she recognised one of the men as Jon Gege Ellje, the nephew of her husband’s father’s victim.  She thought the other two men might have been the victim’s sons.  She said that the men were angry and aggressive and wanted to know where her husband and children were.  They forced their way into the house and began to search it.  She was knocked down to the floor and her nose was broken.  She lost consciousness but when she recovered she was being raped by Jon Gege Ellje.

21. After he had raped her, Jon Gege Ellje slammed her back on to the floor and she lost consciousness again.  When she recovered for the second time, the house was on fire.  Her neighbours tried to put out the fire.  She was helped by her female neighbours.  All of the emergency services attended.  She was taken to hospital by ambulance and her children were delivered to the police.  She told the police and the doctors at the hospital that she had been raped by Jon Gege Ellje.

22. She said that on 9 July 2002 an article appeared in the newspaper detailing the burning of her house and stating that she had been robbed.  She understood that the police had given that story to the newspaper.  The police had also given the newspaper photographs of her and her children.  She was taken back to hospital, she said, where she remained for another seven to ten days.

23. At the end of that time, the police told her that no action would be taken against anyone in relation to the assault, rape or arson.

24. She then made arrangements to leave Albania because she feared for herself and her children.  Her elder son remained in Albania.

25. Her claim that she was an Albanian national was accepted.  However, the RRT found that the first applicant was a most unconvincing witness who gave responses which were vague, evasive and unsatisfactory but, nevertheless, the RRT accepted that the first applicant’s husband’s family had been involved in a blood feud with the Gege Ellje family.

26. The RRT accepted that there was a tradition of blood feuds in Albania, particularly in the north of the country but that the Albanian authorities had recognised the problems presented by blood feuds and had put in place police and judicial procedures to address those problems.

27. Although it did not expressly so find, I think it is implicit in the RRT’s reasons that the RRT was of the opinion that the first applicant and her children would be at risk of recriminations from the Gege Ellje family if they were to return to Albania.

28. The RRT then examined her claim to be a member of other social classes.  In submissions accompanying her application, it had been put that she belonged to the following social groups:

    ‘●       women of Albania who have been the victim of a violent sexual attack

    ●        membership of the [Z] family

    ●a citizen of Albania who is affected by the operation of the tradition, Code Of Lek Dukagjini, or “Kanon”.’

29. The RRT referred to s 91S of the Act.  It found that the first applicant was not entitled to claim to be a member of a social group if her membership was as a result of her husband and her husband’s family’s fear of reprisals because of a blood feud.  In that regard, the RRT was clearly correct.

30. The RRT rejected her claim that she was a member of a social group of ‘Albanian women who have been the victims of a violent sexual attack’ because such a group is not a particular social group under the Convention and within the meaning of s 91S.  In that regard, it relied on McHugh J’s dicta in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 263, where his Honour said:

    ‘The concept of persecution can have no place in defining the term “a particular social group” …  Allowing persecutory conduct of itself to define a particular social group would, in substance, permit the “particular social group” ground to take on the character of a safety-net.  It would impermissibly weaken, if it did not destroy, the cumulative requirements of “fear of persecution”, “for reasons of” and “membership of a particular social group” in the definition of “refugee”.’

31. The RRT also concluded that the first applicant’s membership of the Z family, or a social group who was affected by the operation of the traditional Code of Lek Dukagjini or Kanun, did not allow her to claim to fear persecution for a Convention reason.

32. The applicants do not complain about the RRT’s finding in respect of those matters.

33. The applicant’s original application contained the claim that she was a member of a social group comprised of Albanian women and, in particular, Albanian women without male protection.  She also pursued that claim before the RRT.  The RRT considered that claim and said:

    ‘The adviser submitted that the applicant also belonged to the following particular social groups: “Albanian women”, “Albanian women without male protection” and “Albanian women who have been the victims of violent sexual attack”, and she feared persecution if she returned to Albania for reason of her membership of one or more of these groups.  The Tribunal accepts that “Albanian women” and “Albanian women without male protection” can constitute particular social groups under the Refugees Convention.’

34. This is not a case where the applicant’s claim that she was a member of a social group was rejected.  The RRT accepted that there was a social group of the kind claimed by the applicant and inferentially that the applicant was a member.

35. There can be no doubt that the RRT addressed the thrust of the first applicant’s claim, which was that she was entitled to be regarded as a member of a social group, namely, Albanian women without male protection.

36. Moreover, the RRT then considered her claim for fear of persecution upon the basis that she was a member of such a social group and upon the further assumption that her claims that she was raped and had her house set on fire were true.

37. In that regard, the RRT said:

    ‘As noted above, the Tribunal found the applicant to be an unconvincing witness.  It has serious doubts as to the truth of her claims that she was raped and her house set on fire.  However, the Tribunal is prepared to put its doubts aside and accept that the applicant’s claims of past persecution are true.’

38. It addressed her evidence before the RRT.  Specifically, it found that the applicant had said that the only people who wanted to harm her were the Gege Ellje family.  During the period that she had lived in the village after her husband had left for Greece she had not feared persecution from any other source.

39. That finding was consistent with the evidence contained in her statutory declaration where she said that the 7 July 2002 incident showed that the Gege Ellje family was willing to target her because of their anger with her husband’s family.

40. It is also consistent with her evidence about sending her elder son to live away from the village.  The fear was the Gege Ellje family and the blood feud.  He was not sent away because she was an Albanian woman or because she was an Albanian woman without male protection.

41. The RRT found that the only reason that the Gege Ellje family could have for wishing to harm the first applicant or her children was because of the blood feud which existed between that family and the first applicant’s husband’s family.  She was not likely to be harmed for the reason that she was a member of a social group of Albanian women or, alternatively, a social group of Albanian women without male protection.  It said:

    ‘For the same reasons as those identified above in respect of the applicant’s fear of being persecuted because she belongs to a particular social group comprised of Albanian women, the Tribunal finds there is not a real chance the applicant would be persecuted if she were to return to Albania because she belongs to a group of Albanian woman [sic] who do not have male protection.  Any desire by the Gege Ellje family to persecute the applicant would be for reason of her membership of the [Z] family alone.’

42. The RRT did address the first applicant’s claim that she was a member of a social group, being Albanian women without male protection, and rejected that claim because there was no evidence of persecution for that reason.  Any harm which might befall the first applicant, so the RRT determined, was as a result of her membership of her husband’s family and not as a result of her membership of any other particular social group.

43. In my opinion, the grounds relied on by the first applicant have not been made out.

44. In my opinion, no error has been demonstrated in the RRT’s reasons and the application must be dismissed.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated:            19 July 2004

Counsel for the Applicant:	Dr S Churches
Solicitor for the Applicant:	McDonald Steed McGrath Lawyers
Counsel for the Respondent:	K Tredrea
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	8 July 2004
Date of Judgment:	19 July 2004