SWBB v MIMIA & Anor; STJB v MIMIA & Anor

[2005] HCATrans 1030

[2005] HCATrans 1030

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A2 of 2005

B e t w e e n -

SWBB

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Office of the Registry
  Adelaide  No A5 of 2005

B e t w e e n -

STJB

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Applications for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 16 DECEMBER 2005, AT 10.24 AM

Copyright in the High Court of Australia

__________________

MR P.C. CHARMAN:   If it please the Court, I appear for the applicants.  (instructed by McDonald Steed McGrath)

MR M.J. RODER:   If it please the Court, I appear for the respondents.  (instructed by Sparke Helmore)

GLEESON CJ:   Yes, Mr Charman.

MR CHARMAN:   Your Honours, can I indicate that, subject to what the Court has to say, the parties are agreed that both of these matters could be heard together.

GLEESON CJ:   That suits us if it suits the parties.  You have the same representation in both parties, have you not?

MR CHARMAN:   It is, your Honour, yes, and perhaps I can indicate from the applicants’ point of view that I intend to concentrate on the submissions on STJB.

GLEESON CJ:   I can understand why.

MR CHARMAN:   I do not intend to say a great deal more about SWBB; I cannot see that I can in the circumstances.

GLEESON CJ:   You are trying to persuade us in relation to both these cases that they raise an important issue about the construction of section 91S of the Migration Act.

MR CHARMAN:   Yes, your Honour.

GLEESON CJ:   It is not easy to see that in the case of SWBB, but let us hear what you have to day about STJB.

MR CHARMAN:   Yes, your Honour.  In relation to STJB, we say that 91S was introduced into the Migration Act to cover the case of Sarrazola and we say there was a distinction between that case and the circumstances of this matter in that in this matter the alleged persecution of the applicant is direct persecution, that it is accepted that the applicant’s uncle in this matter shot three people and that, as a result of that – and the Tribunal accepted that - a Kanun-style blood feud had been declared.  There was no controversy about that but what the applicant says is that immediately upon that blood feud being declared, the applicant is at risk not because of the fear of persecution or persecution of his uncle, but a direct fear that the applicant suffers as of the time the Kanun blood feud has been declared.  That is based on the fact that the Kanun blood feud essentially says that the families who considered themselves to have been wronged can and will take revenge on any male from the family that committed the deed as said to have been the wrongful act.  So we say that 91S simply does not apply in these circumstances. 

Leaving aside the question as to whether the uncle suffers persecution for a Convention reason, because we say that is not relevant in this matter, the fact is the manner in which Kanun applies and a blood feud applies means that as of the blood feud being declared, the applicant is directly and immediately at a risk of serious harm.  That distinguishes the case of Sarrazola but it also, we say, takes it outside the scope of 91S which is intended, we say, to deal with a situation where there is a secondary fear of harm, a fear of harm based upon the fear of persecution or any persecution of a family member.  Paragraph 9, hopefully, of my supplementary summary of argument, really sets out the applicant’s contention that the applicant has a fear of persecution because of the application of Kanun to him as a result of the actions of his uncle as compared to the fear of any persecution of the uncle.  So, if one looks at 91S, we say it simply does not operate in these circumstances where the applicant has a direct fear.

GUMMOW J:   How do you get into the Act in the first place?  If one looks at paragraph 22 in the judgment at page 40, 91S cuts down and qualifies but on an assumption that otherwise you are there.

MR CHARMAN:   We accept that, your Honour, and what we say, secondary to that is, if 91S does not cut down and qualify, in our argument, then the applicant is clearly going to suffer some harm, and the Tribunal accepted that.  We accept it is private harm and that the applicant claimed there are two particular social groups, one is that of a family, one is that of being a citizen of Albania who is subject to Kanun.  I refer to that later in my summary of argument in the sense that clearly there has to be a Convention base to the fear of persecution of the applicant, a direct fear of persecution and we say that Convention base can only be a failure of the State to protect the applicant.  In this particular matter, Khawar was raised at the Tribunal and if I can perhaps refer you to, I think, paragraph 22 onwards, of my written outline, is that although the Tribunal found, at page 18, at 30:

that the Albanian authorities have recognised the problems presented by blood feuds and have put in place proper police and judicial procedures to address these problems.

GUMMOW J:   Sorry, what page are you reading from?

MR CHARMAN:   I am sorry, your Honour, page 18 at 30.

GUMMOW J:   What page in the book?

MR CHARMAN:   Page 18.  We say that is overcome for the reasons stated in paragraph 23, that whilst there may be some general principles in place or procedures in place, the Tribunal has to deal with the particular circumstances of the individual applicant and in this case the Tribunal ‑ ‑ ‑

GUMMOW J:   I am looking at page 25, line 23:

The Tribunal finds that a group comprising “Albanian citizens who are subject to customary law . . . does not meet the requirements for a particular social group ‑ ‑ ‑

MR CHARMAN:   Yes, and we say that is incorrect and the Full Federal Court was in error in upholding that and in error in upholding the application of Applicant S in the manner in which it was applied by the Tribunal.  We say there was an error in relation to that because the Tribunal has dealt with Kanun as if it is solely a blood feud doctrine, whereas it is clear from the documents at page 16 of the application book that Kanun is a set of customs, a broad spectrum of customs, which deal with every aspect of life of which one part is a blood feud, a doctrine, and therefore the people who are the followers of Kanun in Albania are arguably a recognisable group.  We say that is supported by the fact that the very fact the Tribunal found that the Albanian authorities were attempting to stop the blood feuds under Kanun law indicates that at least the Albanian authorities could identify those areas and those people that followed Kanun law and that the Kanun law cannot be said, therefore, to be a law of general application.  So, therefore, those people in particularly the northern part of Albania who are followers of the Kanun principles are indeed a recognised ‑ ‑ ‑

GLEESON CJ:   We lost you for a little while.

MR CHARMAN:   I think, your Honours, I was putting to you that in relation to the second particular social group that the applicant claimed he was a member of, that the Tribunal was in error in finding that, in accordance with Applicant S, it follows that Kanun was not a particular social group.  In any event, the Tribunal accepted that there was a particular social group of the applicant’s family and we say, for either of those two reasons, the question then of whether State protection is adequate comes into play.  We say that whilst there is this general finding that the Albanian authorities have put in place judicial and police procedures to deal with blood feuds, the very fact that the Tribunal found that a blood feud existed and accepted the evidence of a witness – and that is at the application book at 15 and 16 – called Marku, that the applicant would be killed if he was to return and the Tribunal accepted the evidence of Marku that the blood feud families, the families that threatened revenge against the applicant, had come to Mr Marku with government papers stating that they wanted the land and that this was consistent with what the applicant said, which was that the old landowners’ families, of which he was a member, were not protected by the State against the new landowners.  The Tribunal appeared to accept that at application book 26, 1 to 5 where the Tribunal said:

but the applicant’s family was not getting support from the authorities because they were traditional owners.

We say that brings it within the scope of the State not protecting the applicant.  The applicant has a direct fear as a result of Kanun.  It is not secondary, and therefore not caught by 91S.  There is a direct fear of suffering serious harm.  It is a fear where he is not going to be protected by way of his being a member of a particular social group, that is his family, or, alternatively, a particular social group, those who follow the principles of Kanun which we say is recognisable for the reasons I have stated, and that the Convention reason is a failure of the State to protect the individual and the failure of the State to protect the individual is because of those passages which I have just referred your Honours to, that the Tribunal accepted that the applicant, as a member of an old landowning family, would not be supported by the authorities, firstly, and secondly, that the families seeking revenge had come to Mr Marku, who I think is a local elder, who had some dealings with trying to resolve the feud, and indicated that they had government papers.  We say that takes this out of the ordinary set of circumstances where there is simply no government involvement either way and that gives some evidence, which the Tribunal has accepted, that the State is condoning the conduct of the families, and for that reason the failure of the State to protect a member of a particular social group brings it within the Convention. 

I think, your Honours, that is frankly the argument in a nutshell.  I can repeat it but at the end of the day that is the argument and I cannot put a lot more to you other than taking you through the decisions.

GLEESON CJ:   Thank you, Mr Charman.  Yes, Mr Roder.

MR RODER:   Thank you, your Honours.  In my submission, there were two important findings of fact which were made by the Tribunal that had the consequence that the suggested question of the construction of section 91S really does not arise in this case.

GUMMOW J:   This is the case of STJB?

MR RODER:   Yes, your Honour, even in STJB it is certainly not as clear as in the other case but there were particular findings of fact on which, we say, on any view of the matter the case could not succeed in light of section 91S and those findings of fact were referred to by the Full Court in their judgment.  There was not a detailed analysis by that court because it was conceded before the Full Court that the case could not succeed on the current state of the law.  The relevant page of the Full Court judgment is page 55, paragraph 17 of the court’s judgment.  The court there refers to a particular finding of fact of the Tribunal, and I will take the Court to the Tribunal’s finding in a moment, but it accurately states the finding, that is that:

the fear of applicant STJB arose because he is a relative of a person targeted for a non-Convention reason -

My submission is that if that finding stands, then when one looks at section 91S, plainly section 91S attaches, and the substance of what my learned friend is putting is, in effect, that that finding ought not to have been made and that the fear of the applicant STJB did not arise for that reason. 

So we say that this is a case that really turns on the question of fact.  That finding of fact is to be found in the reasons of the Tribunal in the book at page 20, in particular from line 15 to line 23.  Firstly, there is a causation finding by the Tribunal that:

the motivation of the Biba and Lleshi families to harm a member of the applicant’s family is revenge for the injuries inflicted on three of their members by the applicant’s uncle.  Revenge for a criminal act is not a reason for harm which comes under the Convention.

And then, importantly:

The effect of s91S is that the Tribunal must disregard the fear of persecution of a person such as the applicant whose fear arises because he or she is the relative of a person targeted for a non‑Convention reason.

If the finding stands that the uncle had a fear of persecution for a non-Convention reason, that is that he was being targeted directly for revenge, that the applicant’s fear arose because of that in the sense that it would be reasonable to say that the applicant’s fear would not have arisen if the uncle’s had not, in my submission, section 91S plainly attaches.  There is nothing in section 91S about “derivative” or “direct” or any of those concepts that my learned friend is referring to.  Again, in my submission, there is really no distinction between this case and the Colombian case of Sarrazola once that finding of fact is in place.  In Sarrazola the Colombian case is that the applicant was saying, “I fear they’re coming against me directly because my grandfather didn’t pay a debt”, and in this case it is, “I fear they’re coming against me to avenge what my uncle did”.  We say, in substance, that there is no discernible difference between the Sarrazola-type case and this case in light of the particular finding of fact.

Your Honours, the other matter we raise and the other finding we refer to is the finding that my learned friend took you to, that is the finding of the Tribunal at page 18, point 30:

that the Albanian authorities have recognised the problems presented by blood feuds and have put in place proper police and judicial procedures to address these problems.

Preceding that finding, there are over two pages of an extract from information from the UK Home Office which would tend to support that conclusion.  We make this point about that, that a finding of that nature has the consequence that this may not be a suitable vehicle in any event for the resolution of the proposed question.  The reason for that is that it is a case, which, as I understand, my learned friend accepts, involves private persecution and not State persecution and there could not be any suggestion of State persecution in light of the Tribunal’s finding that I have taken you to. 

If that be the case, then the applicant not only has the problem of establishing that there is private persecution but he also has to overcome the additional requirement that was set out by the Court in Applicant S152, that is the Jehovah’s Witness’s case, and that is that in the case of private persecution it is also necessary to show either that the State is complicit in the harm or, alternatively, that the State has failed to meet its international obligations by putting into place reasonable levels of protection and institutions to deal with protection.  In light of the Tribunal’s finding, in my submission, even if the applicant was somehow able to overcome section 91S, he could not overcome that additional finding in relation to the question of State protection.  So we say that those two findings, in effect, have the consequence that the section 91S point does not arise or, alternatively, it is not a suitable vehicle. 

GLEESON CJ:   Thank you, Mr Roder.  We will hear what Mr Charman has to say.  Yes, Mr Charman.

MR CHARMAN:   Your Honours, in relation to those two points that my learned friend has made, we accept that the harm is private and we have, I think, accepted that the Convention basis to the fear of persecution is a failure to protect.  We say, for the reasons I have previously stated, that overcomes the factual finding my learned friend has referred to.  For the passages in paragraphs 22 and 23 of my outline of summary of argument, we say that the failure of the State to protect was for a Convention reason.

In relation to the second point of 91S specifically, your Honours, we say that that passage referred to by my learned friend at page 20, from I think 5 to about 25, that that finding of fact by the Tribunal was indeed based on the wrong interpretation of 91S, and if there had been a correct interpretation of 91S, the Tribunal would have dealt with the applicant’s harm as direct harm of an individual under the principles of Kanun.  It is a

fact that the Tribunal had a narrow view of what persecution is and of what the applicant had to raise or to make out as his case in front of the Tribunal and it did not deal with the applicant’s case before it in the manner in which it should.  So, to some extent we say, with the greatest respect to my learned friend, that page 20 and the passage my learned friend referred to is somewhat of a circular argument because indeed it is a very fact that the Tribunal dealt with the applicant’s claims in that manner that we complain of.

Your Honours, unless you want to hear anything else, I can simply indicate that the Full Court did not deal with this matter at any great length because it was conceded in SCAL - which I think was an application for special leave in November last year in this honourable Court at which time that was refused on the basis that Khawar had not been raised in SCAL.  Khawar has been raised in this and specifically the lack of State protection is at issue as a member of either one of the particular social groups and for those reasons we say, despite the fact that it was not argued at any great length in terms of 91S in the Full Court, this is a suitable vehicle, given the facts and the findings of the Tribunal in relation to the fact a blood feud exists, that the applicant would be likely to be killed if he was returned if there were some, at least, acts of the State that condone the behaviour of the feuding families from those passages I referred your Honours to in paragraph 23 of the outline of argument.

For those reasons, that takes this case beyond those other matters where special leave has been refused because there is before the Court an argument in relation to the failure of the State to protect and there is before the Court a factual basis as to why the applicant is going to be harmed upon his return as a result of the State failing to protect.  If this matter was to be granted leave, clearly those arguments which were made in full in SCAL could simply, with respect, be incorporated into any appeal that was to be heard by this Court.  Unless there is anything else, your Honours, that I can assist with. 

GLEESON CJ:   Thank you, Mr Charman.

In both of these matters, having regard to the findings of fact made by the Tribunal, we consider that there are insufficient prospects of success of an appeal to warrant a grant of special leave.  In each case the application is dismissed with costs.

We will adjourn for a short time to make a connection with Brisbane.

AT 10.51 AM THE MATTERS WERE CONCLUDED