Case: STCB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 61 ; (2006) 231 ALR 556
Outcome: cited
The Tribunal noted that the appellant's brother had succeeded on a similar claim. The appellant's brother's claim had been made prior to the amendment of s 91S of the Act that was effected by the Migration Legislation Amendment Act (No 6) 2001 (Cth) . The effect of these amendments is described in the decision of the High Court in STCB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 61 ; (2006) 231 ALR 556. 14 The Tribunal went on to say: Even if I were satisfied which I am not that the applicant's family were involved in such a feud, the applicant's claims amount to a claim to fear persecution for reason of membership of a particular social group, namely his family. In considering such a claim, s 91S of the Migration Act would be relevant and, in interpreting that provision, I would be bound by the terms and reasons of the High Court's decision in STCB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 61 ... Following that decision and applying s 91S(a) , it is clear that the applicant's cousin, Martin's fear of persecution would be for a reason other than those mentioned in Art 1A(2) of the Convention namely revenge for murder. Section 91S(a) would then require that fear of persecution to be disregarded. Section 91S(b)(i) would then require the applicant's fear of persecution to be disregarded, since it would be reasonable to conclude that that fear would not exist if his cousin's fear had never existed. And s 91S(b)(ii) would require that his father's and brother's fear of persecution be disregarded, since it would be reasonable to conclude that neither of those fears would exist either if the cousin's fear had never existed. The result of disregarding the fears of persecution of the cousin, the applicant, the father and the brother would then be that the applicant would be treated as not having a well-founded fear of persecution for the reason of membership of a particular social group that consists of the (sic) his family. 15 It is necessary to refer only to two provisions of the Act, s 91S and s 425. Section 91S provides: 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. 16 As the decision of the High Court in STCB v Minister for Immigration and Multicultural and Indigenous Affairs illustrates, this provision has an inexorable operation to fears of persecution based on family membership in the usual blood feud case. 17 Section 425(1) provides: The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.