Case: STCB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 61 ; (2006) 231 ALR 556
Outcome: cited
appellant had legal assistance in relation to his application to the Tribunal for review. His legal advisers wrote to the Tribunal on 19 September 2007. In their letter, they said that the appellant accepted that, as a result of the High Court's decision in STCB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 61 ; (2006) 231 ALR 556 , the appellant could not claim refugee status on the basis that he is a member of the particular social groups described as "Albanian citizens who are subject to the customary law" or "the [X] family" which are at risk of persecution because of a blood feud. I use the letter, X, in lieu of the name of the appellant's family. On the appellant's behalf, his legal advisers submitted that he was a refugee on the following grounds: that he is a member of the particular social group being a "male Albanian child" and will suffer persecution because of that membership; that he is a member of the particular social group being a "Kulak (landowner) family" and will suffer persecution because of that membership; or his imputed political opinion as a member of a Kulak family. The appellant's legal advisers submitted that, although Albanian law does not uphold traditional or customary law, the Albanian authorities are unwilling and unable to protect the appellant from the risk of harm which he faces if he returns to that country. The Tribunal member said that the direct cause of the blood feud was the act of Uncle Ded shooting at members of the Lleshi and Biba families and not for any other reason. The fear of harm resulted from the blood feud and the blood feud would not have arisen without the occurrence of the shooting incident. The Tribunal member said that Uncle Ded's fear of reprisals was for the shooting incident and is not Convention related. As the fear held by the appellant's family member was not Convention related, the threshold question in s 91S(a) was satisfied. The Tribunal member said: "Therefore, in accordance with subsection 91S(b), any fear of persecution on the basis of being a member of the [X] family on the basis of the shooting incident must be disregarded under section 91S of the Act. As found by the majority in the High Court in STCB v MIMIA &amp; Anor [2006] HCA 61 at [20] in similar circumstances (and acknowledged by the representative), in these circumstances, s 91S is fatal to a claim that the applicant fears persecution for reasons of membership of a particular social group that consists of his family." The Tribunal member said that she did not need to decide if there were particular social groups of the kind advanced by the appellant ("male Albanian child" or "Kulak family") because, in light of her findings of fact, membership of those "groups" could not be the reason for the fear of harm. She said that the shooting incident triggered the blood feud which in turn is the reason for the fear of harm. The Tribunal member concluded that the appellant did not have a well-founded fear of persecution for a Convention reason and she was not satisfied that the appellant came within Article 1A(2) of the Refugees Convention. The federal magistrate's reasons Thirdly, the appellant submitted that Uncle Ded's conduct was clearly not criminal and that a purpose behind the introduction of s 91S was to remove the potential for criminal families to otherwise claim refugee status ( STCB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 61 ; (2006) 231 ALR 556). However, the evidence before the Tribunal was at the very least equivocal as to whether Uncle Ded's conduct constituted a criminal act. It is true that he was not charged by the police over the shooting incident, but the evidence suggests that Uncle Ded shot at members of the Lleshi and Biba families as they were leaving the property. Again, it is clearly not my task to make findings about these issues. Again, they suggest that the claim now made was not apparent on the face of the material before the Tribunal. I have considered all the circumstances and I do not think the claim now advanced was apparent on the face of the material before the Tribunal. In my opinion, the Tribunal did not fall into jurisdictional error in not considering whether there was a social group of "Albanian householders who had resisted armed encroachment onto their property" and whether Uncle Ded was a member of such a group. Conclusion The appeal must be dismissed with costs. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 14 August 2009 Counsel for the Appellant: Dr S C Churches Solicitor for the Appellant: McDonald Steed McGrath Lawyers Counsel for the First Respondent: Dr C D Bleby Solicitor for the First Respondent: Australian Government Solicitor Date of Hearing: 24 February 2009 Date of Judgment: 14 August 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/878.html