SVMB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 86 (18 May 2005)

Last Updated: 18 May 2005

FEDERAL COURT OF AUSTRALIA

SVMB v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCAFC 86

Migration Act 1958 s 91S

SDAR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1102, referred to

SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 548, referred to
SDAR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1102, referred to

SVMB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, PETER KATSAMBANIS, MEMBER REFUGEE REVIEW TRIBUNAL AND PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL

V 285 OF 2004









MARSHALL, MANSFIELD AND STONE JJ
18 MAY 2005
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
ADELAIDE DISTRICT REGISTRY	S 285 OF 2004

BETWEEN:	SVMB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT PETER KATSAMBANIS, MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT
JUDGES:	MARSHALL, MANSFIELD AND STONE JJ
DATE OF ORDER:	18 MAY 2005
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The application for an extension of time within which to file and serve a notice of appeal is dismissed.

2.	The applicant pay the first respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
ADELAIDE DISTRICT REGISTRY	S 285 OF 2004

BETWEEN:	SVMB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT PETER KATSAMBANIS, MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT

JUDGES:	MARSHALL, MANSFIELD AND STONE JJ
DATE:	18 MAY 2005
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

THE COURT

1 On 2 September 2004, Lander J dismissed an application by the applicant for judicial review of a decision of the Refugee Review Tribunal ("the RRT"). The notice of appeal was filed on 24 December 2004. The applicant filed an application for leave to extend the time allowed to file and serve a notice of appeal.

2 Pursuant to O 52 r 15 of the rules of Court, the Court may "for special reasons" give leave to file and serve a notice of appeal out of time. The notice of appeal was filed out of time in the instant case because of the conduct of the applicant’s former solicitor, who advised her to seek special leave in the High Court to appeal from the judgment of Lander J, instead of appealing to a Full Court of this Court.

3 Counsel for the applicant acknowledged that, on the current state of the law, the appeal would not succeed, as the point raised by the notice of appeal has been "categorically determined adversely" to the applicant in three Full Court judgments:

•	STCB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 266;
•	STZB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 14; and
•	STJB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 9.

4 We were invited to grant an extension of time within which to allow the applicant to file and serve her notice of appeal and then dismiss the appeal or dismiss the application for an extension. We see no point in granting an application for an extension of time if the appeal is doomed to certain failure. Counsel for the applicant did not resist this course but wished to be heard on the question of costs.

5 Counsel for the applicant noted that the applicant required a formal order from the Court in respect of which she could seek special leave to appeal and in so doing challenge the correctness of the Full Court authorities referred to above. We propose to make an order refusing an extension of time but having regard to the fact that the matter may be taken to the High Court we consider it appropriate to refer briefly to the factual background, the RRT decision and the reasoning of the primary judge.

Factual background

6 The applicant is a citizen of Albania. She entered Australia on 27 February 2002. On 29 April 2002 she lodged an application for a protection visa. The basis of her claim was that she feared persecution if returned to Albania on account of her membership of a particular social group, her husband’s family.

7 Put shortly the applicant contended that:

• members of the Hasani family wished to harm her husband because of a blood feud;

• her husband fled Albania to Australia, via Italy, and was followed to Italy by members of the rival family;

• in her husband’s absence, the applicant was threatened with kidnap by members of the Hasani family unless she revealed her husband’s whereabouts; and

• she travelled to Australia, via Italy and Turkey on a false passport, to escape the Hasani family.

8 On 16 September 2002, a delegate of the first respondent refused the applicant’s application for a protection visa. An application to review that decision was made to the RRT. On 27 February 2004, the RRT affirmed the decision of the delegate not to grant a protection visa to the applicant.

The RRT decision

9 The RRT accepted that the family of the applicant’s husband was involved in a blood feud with the Hasani family and that such blood feuds occur in Albania. It also accepted that, in the context of Albanian blood feuds, the family of the applicant’s husband was a "particular social group" for the purpose of the Refugees Convention. However, it considered that the motivation of the Hasani family to harm the applicant is revenge "in the context of a long standing blood feud over disputed land." It considered such revenge not to be a reason for harm unless it could be linked to a Convention reason.

10 The RRT then referred to s 91S of the Migration Act 1958 ("the Act"). That section provides:

"Membership of a particular social group
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well-founded fear of being persecuted for the reason of membership of a particular social group that consists of the first person’s family:

(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; and
(b) disregard any fear of persecution, or any persecution, that:
(i) the first person has ever experienced; or
(ii) any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed."

11 The RRT concluded that s 91S of the Act prevented the applicant’s application succeeding, because the fear of persecution was not for a Convention reason. The RRT also rejected her claim, which was not made to the delegate, that she feared persecution (on account of her Catholicism) by the Muslim Hasani family. It also rejected a new claim based on the imputed political opinion of her husband’s family. The RRT found that the motivation of the Hasani family was on account of a long-standing blood feud.

12 The RRT accepted that the applicant may have been abused and attacked by members of the Hasani family in order to find where her husband had fled. It also found that the blood feud had commenced when a member of the Hasani family killed the grandfather of the applicant’s husband in a land dispute.

13 The RRT held that the applicant’s husband’s grandfather was not killed for a Convention reason. It held that it was required by s 91S to disregard any fear of persecution experienced by her husband’s grandfather and any fear of persecution held by the applicant based on any such fear experienced by her husband’s grandfather in considering whether the applicant was entitled to a protection visa. The RRT considered that the applicant’s fear of persecution arose solely out of her husband’s grandfather’s feud with the Hasanis. In so doing the RRT followed the approach of Merkel J in SDAR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1102 and von Doussa J in SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 548.

14 The RRT also rejected the other bases for the applicant’s claim, that is, her claim of persecution for reasons of religion and imputed political opinion.

The reasoning of the primary judge

15 Lander J said that whether s 91S applies in any particular case will depend on the findings made by the RRT. He considered that after the RRT had made a finding that the applicant’s husband’s family was a particular social group to which she belonged, it was bound (in accordance with s 91S), to disregard any fear of persecution that any member of that family had experienced where the reason for the fear is a non-Convention reason. As the applicant’s husband’s grandfather was not persecuted for a Convention reason the RRT was required, according to the primary judge, to disregard that fear of persecution in considering the applicant’s claims.

16 As the RRT found that the applicant’s fear of persecution arose out of her husband’s grandfather’s argument with the Hasanis, and that she would not have a fear of persecution but for that argument, it was (according to his Honour) right to follow judgments such as SDAR.

17 Lander J, cited with approval at [38] the following passage at [24] in the judgment in SDAR:

"It is my view that properly construed, the fear of persecution and persecution referred to in s 91S is a fear and persecution for the reason that the person is a member of the particular family, another member of which fears persecution or has been or may be targeted for persecution for a non-convention reason. As a consequence of that non-convention fear or persecution, the fear or persecution of other family members by reason of their family membership is to be disregarded. 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."

18 The primary judge concluded that the RRT was bound to arrive at its decision that s 91S disqualified the applicant, in the circumstances, from any entitlement to a protection visa. The authorities of STCB, STZB and STJB cited above amongst others, support his Honour’s approach. As mentioned above, counsel for the applicant acknowledged that those authorities stood in the way of his client’s proposed appeal’s success in this Court.

Order

19 Having regard to the foregoing and to the concession about the state of the authorities in this Court, we will order that the application for an extension of time within which to file and serve a notice of appeal be dismissed. We see no reason why costs should not follow the event. No special or extraordinary circumstances are present so as to justify the making of any other order as to costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Marshall, Mansfield and Stone.

Associate:

Dated: 18 May 2005

Counsel for the Applicant:	Mr S Ower
Solicitor for the Applicant:	Winters
Counsel for the Respondents:	Ms S Maharaj
Solicitor for the Respondents:	Sparke Helmore
Date of Hearing:	18 May 2005
Date of Judgment:	18 May 2005