STYB v MIMIA & Anor; STDB v MIMIA & Anor [2005] HCATrans 594 (11 August 2005)

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STYB v MIMIA & Anor; STDB v MIMIA & Anor [2005] HCATrans 594 (11 August 2005)

Last Updated: 26 August 2005

[2005] HCATrans 594

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A70 of 2004

B e t w e e n -

STYB

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Office of the Registry
Adelaide No A3 of 2005

B e t w e e n -

STDB

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
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 11 AUGUST 2005, AT 11.00 AM

Copyright in the High Court of Australia

__________________

MR S.D. OWER: If it pleases the Court, I appear for the applicant in the matter of STYB. (instructed by Winters)

MR P.A. HEYWOOD-SMITH QC: If the Court pleases, I appear with MR S.D. OWER for the applicant in the matter of STDB. (instructed by McDonald Steed McGrath)

MR M.J. RODER: If the Court pleases, I appear for the respondent in both of the matters. (instructed by Sparke Helmore)

GLEESON CJ: We understand that these are two separate matters, but we also understand that it looks as though they may stand or fall together and it seemed convenient in those circumstances that we should hear argument in both matters before we give a judgment in either of them.

MR HEYWOOD-SMITH: We are grateful, if the Court pleases.

GLEESON CJ: And we will leave it to counsel to decide in what order they want to address us.

MR HEYWOOD-SMITH: Well, if we could proceed with the second of the two matters, STDB, that would be our preference, if the Court pleases.

GLEESON CJ: Thank you.

MR HEYWOOD-SMITH: This application raises quite a short point and the two instruments that the Court is concerned with, and of which certainly the first you are no doubt very familiar, is the Convention definition of “refugee” which conveniently appears on page 3 of the application book at line 25. The other instrument that is of significance is section 91S which is the 2001 amendment to the Migration Act which impacts upon the application of the Convention. That commences at the bottom of page 37 of the application book and goes over to the top of the next page. Can I just very - - -

GLEESON CJ: Just before you go any further, Mr Heywood-Smith, I understand that you want to put to us an interesting argument about the construction of section 91S, but could I ask you about a finding that appears on page 15 of the application book at line 30. I think there is an identical finding in the other matter. Do you see the paragraph commencing with the word “Based”?

MR HEYWOOD-SMITH: I do, if the Court pleases.

GLEESON CJ: What, if any, effect does that finding have on the question whether the issue of construction that you want to address arises for decision?

MR HEYWOOD-SMITH: Well, there is two things about it. Firstly, we would ask the Court to note that it is a finding which appears to be contrary to the evidence that the Tribunal refers to beforehand and seems that they have accepted.

GLEESON CJ: We are not going to review the findings of fact.

MR HEYWOOD-SMITH: I appreciate that, but we say that it should not be considered as being a finding related to the issue of whether or not there is a particular social group. We do not believe that the Tribunal directed its mind to the issue.

GLEESON CJ: No, but does it not go to the question of whether there is a well-founded fear of persecution? Assuming you are right in everything else you say about what constitutes persecution and about the lack of significance of section 91S, there seems to be a finding in both cases that although there is this history of blood feuds in Albania, the Albanian authorities are providing appropriate law and order procedures to deal with the situation.

MR HEYWOOD-SMITH: The finding at page 15, line 30 we say is not one that the Tribunal is relating at all to the issue of well-founded fear.

GLEESON CJ: What is its relevance?

MR HEYWOOD-SMITH: Well, it appears to be an observation by the Tribunal. It does not relate to anything that is relevant to the decision at that stage. At page 22, line 11, there is, we accept, a bare statement:

The Tribunal finds that the applicant’s fears are not well-founded.

However, when properly read, the whole of that paragraph, we say it is apparent that what the decision-maker was saying is that because there is no particular social group and because there is no Convention reason as a result of that, the fears are not well-founded. We rather expect that what the Tribunal is saying is the Tribunal finds that the applicant’s fears are not a well-founded fear of persecution as a result of the Convention reason. There is no indication in the reasons that the Tribunal is addressing its mind to the issue of the fear in respect of the issue of a particular social group. And indeed we say here the Tribunal says, “We accept the applicant as an applicant-in-chief. The applicant has given evidence of his fear”, and they go on to address section 91S in its construction on the presumption that there is a fear. Section 91S addresses fears.

HEYDON J: Yes, but was it well founded?

MR HEYWOOD-SMITH: Well, we say it is most unsatisfactory the way that the Tribunal has approached it upon a proper construction, we say, that this Court would not be at all.....the decision-maker has addressed their mind to that. Now, that may mean that we are left with a situation as applied in the Khawar Case of the matter having to be remitted, but our submission to the Court is that the reasons of the Tribunal are so unsatisfactory in this regard, having accepted the applicant as a witness of truth, having accepted the applicant’s documents without reservation, including the document which appears at page 1 of the application book, the certificate from the local authorities that they could not guarantee the life of the applicant, and having placed significance, and clear significance, on the country information appearing at pages 13 to 15, including the passage at page 15, line 8 in which the country information does not suggest for a moment that the authorities have the issue in hand, they simply say some action is being taken. They do not address the issue of.....in effect. In those circumstances, our submission to the Court is the Court is satisfied that there has been an error in the application of 91S to start with. Then the Court could not be confident that the Tribunal has approached the matter in the logical way that would lead to a proper determination on that issue.

GLEESON CJ: Yes, go ahead and let us have your argument on 91S.

MR HEYWOOD-SMITH: So far as section 91S is concerned, the Court no doubt has a very clear idea of the definition, and what it introduces is five categories of reasons for a well-founded fear: race, religion, nationality, membership of a particular social group or political opinion. Now, four of those, all but the second to last, membership of a particular social group, indicate to the reader the sorts of matters that are being addressed. The membership of a particular social group, however, is an open-ended reason and it might be for a variety of reasons, as indeed the other four, there might be underlying reasons for why they are activated. But it was concern as a result of the open-endedness of that fourth category, membership of a particular social group, that caused the Federal Parliament of 2001 to enact this amending provision to address – which followed the Sarrazola Case which this Court will recall was the one involving the Colombian woman whose brother had been owed a debt to criminal elements.

Now, when addressing this issue by section 91S, if I take the Court to that, the Court will see that it is specifically to address the situation where an applicant puts up as the particular social group that person’s family. And then it goes on to say that that the decision-maker is to disregard particular fears. Our submission is that the construction is that that section is not activated unless the applicant advances as the reason for his fear the fear of another family member or his own fear based on the fear of another family member. That was not this case. There is no finding by the decision-maker in this case of any fear by the father at all, either implicit or explicit, and for good reason. The father was taken into custody and was incarcerated for 16 years and was incarcerated at the time of this application.

GLEESON CJ: It is “fear or persecution”, is it not? More accurately, “fear of persecution, or any persecution”.

MR HEYWOOD-SMITH: Yes, quite so.

GLEESON CJ: That appears in the first line of paragraph (a) and the second-last line of paragraph (b)(ii).

MR HEYWOOD-SMITH: That is so. And there is no finding of any persecution of the father at all. But what we say here is that the section is designed to catch the Sarrazola-type occasion, but it does not speak to this occasion for these reasons. Firstly, the applicant’s fear here is not derivative upon any former or other fear and, secondly, if he or another member did have such a fear it would be for a Convention reason, that being membership of a group, in this instance his family who was being subjected to punishment, and possible punishment pursuant to customary law for actions not permitted by him.

Now, can I just give this as an example. In the ordinary course, in any civilised country if someone had killed somebody, perhaps on the road, it is not usual for a blood feud to arise. It is not usual for someone who perhaps might knock somebody over on the road and kill someone to immediately have a fear that they will be the target of a blood feud. The reason that it is in this case quite unusual is that it just so happens that in this area of Albania the people are complying with or regarding them as subject to this customary law known as the Kanun law which contemplates and allows such avengement by the victim’s family and in circumstances where, we say, the local authorities condone that.

Now, this section 91S has come before the Federal Court and was construed by Justice Merkel in the SDAR matter and the construction which his Honour places appears on page 17 of the application book at line 13, and is a single paragraph and it is a paragraph that has been applied thereafter by the Federal Court. And if the Court goes to it, we say it is the subject of criticism. His Honour says:

It is my view that, properly construed, the fear of persecution and persecution referred to in s91S 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 –

and we query where that comes from –

for a non-convention reasons. 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.

Now, our criticism of the definition is that it asserts that a blood feud cannot give rise to a relevant fear. That is how it has been applied and that is how it was applied in this particular case. If the Court goes to page 16, line 32, the decision-maker says:

The feuds do not originate for a reason which would come under the Refugees Convention.

Now, our criticism is that must be why in some instances clearly it will not be for a Convention reason. In other instances it will. It was necessary for the decision-maker to grapple with that but the decision-maker has simply said that because it is a blood feud, it is not a Convention reason. As to the example I gave a moment ago, if this had been an applicant from New Zealand who said that he had knocked somebody over with his bike, it would be very difficult to suggest that that blood feud arose from a Convention reason. In this instance we say it can.

GLEESON CJ: Let us see how the words of 91S apply, if they do apply, to the facts of your case. Tell us the facts of your case and tell us what you say about the meaning of the words of 91S as they bear or do not bear on your case.

MR HEYWOOD-SMITH: We say that the facts of our case are quite simple. There was a land dispute, there was an incident in which the applicant’s father exchanged shots with a member of another family, that the other family member was killed. The father was arrested, tried, convicted and sentenced to 16 years imprisonment. The applicant, his son, and his brother in fear of retribution left for Italy where they resided for a time - - -

GLEESON CJ: All right. Now, let us look at the words of 91S.

MR HEYWOOD-SMITH: Now, the applicant advanced his family as the particular social group, but he did not advance any fear that his father might have had and nor did he advance - - -

GLEESON CJ: I am not saying you are wrong, but would you humour us by taking us through the words of the relevant section with relation to the facts of this case.

MR HEYWOOD-SMITH: Quite so. Well, the top of page 38, he was advancing his family as the particular social group. But we say because he did not advance any fear, there was no need for the decision-maker to go beyond that phrase. If we are wrong about that, the decision-maker, as I say, might presume a fear on the part of the father or persecution of the father. Where the reason for the fear or persecution of the father is not a reason mentioned in Article 1A(2) of the Refugees Convention, that raises the same issue. You go back to the Refugees Convention and we look at the five factors and the one that we rely upon is membership of a particular social group, which does not of itself indicate a basis or prejudice or whatever. So again there is a necessity to give greater consideration to the actual fear or persecution.

Now, let us infer that the father was at large for a time and feared persecution. The reason for that persecution, we say, is because of the application of the customary law in that area. As I have indicated, in our country if somebody knocks somebody over on a bike they do not normally have a fear that a member of the family will come and seek to avenge them. It is only because, we say, he is a part of that community or lived in that community where that customary law has application that the fear arose. Now, that, we say, is a Convention fear, but the decision-maker simply applied a rule of thumb derived from Justice Merkel’s definition of the section which said that blood feuds cannot amount to a Convention reason, therefore the section has application and therefore this application does not succeed.

If we go down to (b), if we disregard (a) and say that the decision-maker held the view - or the first person, the applicant, was advancing his own fear, is it reasonable to conclude that that fear would not exist if it were assumed that the fear of persecution mentioned in paragraph (a) had never existed? If we go back to the fear in paragraph (a) we are left with the same scenario of having to scratch the surface as to why this fear exists. Our submission is that it is not normal, it is not the usual case that a blood feud arises for a reason which does not come under the Convention; indeed, to the contrary. Our submission would be that blood feuds in the 21^st century would very rarely originate for a reason other than the particular circumstances of this case which we say is a Convention situation.

Now, the other issue is the matter of alternative social group. There was an alternative social group advanced, namely, “Albanian citizens who are subject to customary law . . . the Kanun.” That is page 17, line 30. Indeed, it was advanced slightly differently than was recorded there – that is acknowledged by our friends – advanced on the basis that the Kanun was a customary law which does not – where the authorities are unable to protect the objects from such avenging. Here we say that the decision-maker applied the Applicant S test, which appears at page 40.

GLEESON CJ: Yes, thank you, Mr Heywood-Smith. Yes, Mr Ower.

MR OWER: If it pleases the Court, the relevant findings of fact in this matter are near identical to those in the first matter and I would adopt.....in that matter. The only matter I would wish to address, if it pleases the Court, is the issue of State protection in response to your Honour the Chief Justice’s question. Your Honour has drawn attention to the finding which is in both of these matters, that is the Albanian State has put in place proper judicial and police procedures. What the Tribunal has not done in either case is determine whether those procedures are enforced and, if they are enforced, whether they are enforced in a discriminatory manner.

In that way I would submit that these two cases are analogous to the case, as my learned leader said, of Khawar where it was assumed by this Court, though no findings were made in the Tribunal, that the laws of Pakistan did include appropriate criminal law which would protect against violence against women. However, Mrs Khawar’s complaint was that those laws were specifically not enforced. In both this case and the other case before the Court today the complaint of both applicants is that, despite the fact that there are these procedures set in place by the Albanian State, there is no enforcement and enforcement is not undertaken by the police in the relevant area due to the existence of Kanun or blood feud. In that way I would submit that the jurisdictional error arising from the construction of section 91S does affect the decision in that the issue of State protection does not provide an answer to the question of well-founded fear and does not otherwise immunise the decision from that aspect.

GLEESON CJ: Now, would you care to take us through 91S and tell us how the words apply or why they do not apply to the facts of your case.

MR OWER: In this particular case the relevant finding of the Tribunal is set out at page 12 of the application book, lines 18 through to 24, namely, that there was a blood feud between the applicant’s family and the Marine family, and that the applicant feared revenge from the Marine family on behalf of what his ancestors had done. The Tribunal at page 13, lines 10 to 15, found that the motivation of the Marine family was to harm all the members of the applicant’s family but it also found that part of that motivation was revenge and it concluded that revenge for a criminal act was not a reason for harm which came under the Convention.

In making that finding it purported to apply the (a) limb of section 91S in that it purported to find that the motivation to harm the other members of the applicant’s family and, indeed, the applicant was revenge per se. The complaint, we say, in relation to that finding and the error made in the application of section 91S is that revenge in itself does not necessarily answer the inquiry posed by section 91S(a). It begs the question, revenge against whom? I would refer to the quote from Justice Wilcox in Abdi’s Case which is set out in the written submissions, revenge could be revenge against a particular social group, revenge against - - -

GLEESON CJ: Look, is this the way the argument runs? Let us look at the words of 91S. In the opening paragraph, the opening chapeau of 91S recognises that a family can be a particular social group. Is that step one?

MR OWER: If it pleases.

GLEESON CJ: Step two requires you in an appropriate case to disregard a fear of persecution by other family members if that persecution is not for a Convention reason, right?

MR OWER: That is correct, sir.

GLEESON CJ: Step three tells you that you disregard the applicant’s fear of persecution if the applicant’s fear of persecution would not exist if it were assumed that the fear mentioned in paragraph (a) – that is the fear of the other family members – for a non-Convention reason did not exist.

MR OWER: Yes, your Honour.

GLEESON CJ: Is your argument that if the fear of the other members of your client’s family of persecution in pursuit of this blood feud is a fear for a Convention reason, then you are not required to disregard it?

MR OWER: Yes, your Honour.

GLEESON CJ: Is that the point?

MR OWER: That is the point and that is the argument put by the applicant in both this matter and the other matter, that the findings made by the Tribunal do not answer whether the fear of the other family members is for a Convention reason and, indeed, by inference would support a finding that they were, in that the motivation of the other family would seem to be to harm all members of the applicant’s family, not but virtue of what they have done as individuals but by virtue of the status as members of a particular social group, that is to say, that family. By virtue of disregarding the other members of the family’s fear, the Tribunal erred in disregarding the applicant’s fear which in turn led to jurisdictional error.

GLEESON CJ: Is the difference from the Colombian case that in the Colombian case the applicant said, “I fear that they’re going to come after me because of what my brother did”? In such a situation it falls within 91S
because any fear of persecution by the brother is a fear that it is not for a Convention reason.

MR OWER: Indeed, it was a fear held by him as an individual and - - -

GLEESON CJ: The Colombian applicant’s fear would not exist if the brother’s fear had not existed?

MR OWER: That is correct, your Honour, and, in my submission, that is the purpose behind section 91S, to eliminate cases such as arose in Sarrazola as distinct from cases that arose here. Some support for that argument is gained from the explanatory memorandum which notes that the purpose of this section is not to eliminate family members as a social group per se, which suggests that Parliament when they enacted this section had in its contemplation a situation analogous to this.

GLEESON CJ: Well, your argument is that 91S was never intended to deal with the Capulets and the Montagues?

MR OWER: Indeed, your Honour. And it is by virtue of the ruling of Justice Merkel in the matter of SDAR the Federal Court has been led into error in relation to its construction of this particular provision. Unless I can assist the Court further, those are my submissions, your Honour.

GLEESON CJ: Thank you. Yes, Mr Roder.

MR RODER: Thank you, your Honour. Your Honour, my submission on the construction point is that the way in which the applicant presented his case before the Tribunal was exactly the same as the Colombian type situation in Sarrazola, that is, “I fear they are coming against me to avenge what my grandfather did”. It must be remembered it is not a case where there was some pre-existing blood feud which sets the context for the grandfather’s actions. The case was, “My grandfather killed a man and I fear that in revenge for that I will be harmed.” In my submission, on analysis it is exactly the same point as the Colombian case.

The reason why section 91S attaches is the finding of the Tribunal that the revenge against the grandfather would not be Convention based, because as a matter of common sense the revenge against the grandfather is, as it were, a personal level of revenge or revenge for a criminal act which is not a Convention-based reason. In my submission, properly understood, there is no real difference in the construction of the section between what is proposed by my learned friends and what the Full Court said.

GLEESON CJ: Could I ask you this question. I forget now which case this relates to, but one of these original wrongdoers, if I can use that expression, was put in gaol.

MR RODER: Yes.

GLEESON CJ: Now, there is no suggestion that he is being persecuted, is there?

MR RODER: Well, your Honour, there is this – I think, with respect, the background of the Kanun and the way in which the case was presented would be that revenge would be sought against the killer and/or members of his family. I think the Kanun is in fact – the provisions of it are set out in my learned friend’s book in - - -

GLEESON CJ: But somebody who is locked up in prison is not being persecuted, is he?

MR RODER: Well, he may well still have a fear of persecution notwithstanding that he is in prison, your Honour, with respect.

GLEESON CJ: I see.

MR RODER: I mean, people may be at risk of harm notwithstanding they are in prison. There may be periods that they are not in prison, but the provisions of the Kanun are, according to the material that my learned friend has provided, that originally the blood feud used to be just against the person who did the killing, and then in more modern times it has extended so that it applies not only to the person who did the killing but also to male members of his family. So, as I understand the way in which the case was always presented, it was that the killer and these other people would be at risk. Now, it may be that he was safer in gaol than out of gaol.

GLEESON CJ: Is this the way the blood feud works, that you will always be able to trace it back to some conduct, whether it is killing or other violent conduct, and the perpetrator of that conduct will always either be persecuted or have a fear of persecution for a non-Convention reason?

MR RODER: We would say that is how it works and that was, in effect, the finding of fact the Tribunal made.

GLEESON CJ: And then what 91S(b) tells you to do is to disregard the fear of persecution of the relatives of the perpetrator, or the descendants of the perpetrator, if their fear of persecution would not exist if the fear or the persecution of the original perpetrator had never existed.

MR RODER: I would say the answer to that is yes. Could I qualify one answer I gave to your Honour before, because it is possible, of course, that a blood feud might arise against the background of a Convention reason. For instance, the initial killing might be in the context of a political dispute or some other reason and therefore it might not always be the case that the initial killer might not be regarded as having a Convention reason. But subject to that qualification, yes, that is how we would say it would work and that is how the Full Court said it worked.

The Tribunal made an explicit finding of fact in this case that the killer, as it were, in fact would be the subject of revenge for a non-Convention reason and therefore we say he becomes a person within subsection (a). And then when one goes to subsection (b), his fear is to be disregarded and it is reasonable to conclude that the applicant would not have the fear if his fear is disregarded. That is how we say it works.

GLEESON CJ: I am not saying it is right or wrong, but does it depend on the theory that at least in the case of blood feuds of the kind with which we are concerned, the blood feud will always have its origin in actual or feared persecution for a non-Convention reason of an individual?

MR RODER: Yes, I think it must, your Honour.

GLEESON CJ: That is what starts the feud off?

MR RODER: That is what starts the feud off, certainly in the context of this type of dispute, which was I think a feud just over a dispute over land as opposed to a dispute in some broader Convention context. I mean, the only reason I make the qualification is that there are cases that say you should not just stop at the question of whether it is revenge. You do need to look at the broader background.

GLEESON CJ: How does that work in the reverse case? Feuds go both ways.

MR RODER: Yes, your Honour.

GLEESON CJ: How does that work in the fear of persecution that will then be engendered on the part of the people who were the relatives of the original victim?

MR RODER: I think I would have to accept that that may give rise to more difficult questions than this particular case does because it may be that when we get into the payback situation in the feud and the responding situation that - - -

GLEESON CJ: That would be the Montague and Capulet situation?

MR RODER: Yes.

GLEESON CJ: It would be a feud whose origins are lost in the mists of time or, alternatively, a feud that resulted from the original wrongdoing of X and the response of their respective families to that in circumstances where you cannot point to anybody in the family of the original victim who was being persecuted for a non-Convention reason.

MR RODER: I concede that there are points along the line where it may become more difficult. I just say in a case such as this where the case was put to the Tribunal on the basis that there was no existing blood feud, I think it was in both cases, I think it was the grandfather - one of the cases might have been the father - killed somebody, and the revenge against me is being sought directly as revenge for what my grandfather did or what my father did, I say at least in those circumstances that the analysis is that the Tribunal and the Full Court is correct, and I accept that one can envisage circumstances where all of this gets murkier and more difficult to pull apart and see what the origins of particular actions are.

I just say that this is not one of those cases and it was plainly open in this case for the Tribunal to find that revenge directed against the grandfather would not be for a Convention reason, which the Tribunal did find, and then to take the view that the provisions of section 91S kicked in. That is the proposition I put. And I really say - - -

GLEESON CJ: I am not saying it is wrong, but the argument depends on the proposition that the grandfather has a fear of persecution or is being persecuted.

MR RODER: It does, your Honour, and I say, with respect, that that would be entirely consistent with a case put to the Tribunal on the basis of the Kanun. The Tribunal deals with these Albanian cases, tends to have particular members assigned to these cases, it builds up particular levels of knowledge of these things. The provisions of the Kanun, as I say, have been put in my learned friend’s own book of material before the Court. And one will see from those materials that it is quite plain that the provisions of the Kanun differentiate between the murderer and other members of the family and have the effect that originally it was only the murderer who was the subject of the revenge, but it has been extended so that it is both the killer and other males, but always directed towards the killer.

Page 83 of the applicant’s reference materials in STDB, paragraphs 898 to 900, for instance, show that. So we say it was certainly open to the Tribunal to find that it was inherent in the claim, as it were, that there would be the – the killer would be targeted for revenge and to take the view that merely because he had been arrested at some stage and subsequently incarcerated at some stage, that it would still be open to the Tribunal to take the view that there was revenge directed towards him, and the fact that he was in prison did not mean he did not have a fear of persecution. In terms of the Tribunal’s findings of fact on that matter – the Tribunal’s findings of fact are at page 17 of the application book.

GLEESON CJ: Which one are you on now?

MR RODER: Sorry, on the STDB application book, your Honour. At lines 5 to 10 one will see that the Tribunal concluded:

that the motivation of the Ndoka family to harm a member of the applicant’s family is revenge for the killing of Ndoc Ndoka by the applicant’s father. Revenge for a criminal act is not a reason for harm which comes under the Convention.

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.

So implicit in that is a finding by the Tribunal that the father was a person targeted for a non-Convention reason. And, as I understand even the applicant’s own argument, if that finding of fact stands, as it were, then, as I understand what the applicant puts, they accept that section 91S attaches. What the applicant is saying is that, in effect, disputing this finding, that this all starts with the person who is targeted for a non-Convention reason. We say the finding is certainly open to the Tribunal.

As I would submit, it is in effect inherent in the claim itself which is the view that the Full Court took of the matter in this matter, your Honour, at – I am just looking at the reasons of the Full Court. I do not want to read them in any detail, but at pages 38 to 39 and paragraph 8, the Full Court found that really the conclusion that the grandfather in those circumstances was vulnerable to harm or faced harm, that it was inherent in the applicant’s claim that is was because he was the killer and that it was for a non-Convention reason. We would submit that the analysis of the Full Court is correct and that the finding of the Tribunal was open to it and that really this case turned on the way in which the case was presented to the Tribunal and on that finding of fact. There may be other cases - - -

GLEESON CJ: Does that apply to the other case too?

MR RODER: It does, your Honour. It is exactly the same analysis and there is exactly the same finding of fact made in the other case. Now, there may be other cases where the point of construction arises, but we say this is not one of them. Your Honour, we also would submit that in any event this would not be a suitable vehicle in light of the finding of the Tribunal regarding the response of the Albanian State to threatened harm by non-State actors. I rely in particular on the matters I have set out in my written submissions in both matters. In the STDB matter, in particular, what I have put at paragraph 12 on page 69, we just say that in the context of a claim of threatened harm by non-State actors, a finding of this nature would mean that this case may not be a suitable vehicle for resolution of that question.

Then finally, we say in particular it would not be a suitable vehicle for the resolution of a Khawar-type argument, that is, an argument based on State complicity which is, as I understand, one of the arguments that was raised before the Full Court and the Tribunal. When one looks at the Tribunal’s finding at page 15, I think it was, of the STDB application book regarding the procedures that the State have put in place, and then one particularly has regard to the country information at pages 13 to 15 on which that finding was based, it will be seen that there is extensive information before the Tribunal which suggests a quite active response and a response full of intent by the Albanian State to stamp this out, but says that it is extremely difficult to stamp out because the citizens just will not obey the law, and it is very difficult to stamp out the procedures that have been put in place. And, in my submission, the evidence at pages 13 to 15 which the Tribunal accepted is totally inconsistent with a Khawar-type of case which is based, in effect, on the State being complicit - - -

GLEESON CJ: Yes, Khawar was a case of a persecutory non-enforcement of the law.

MR RODER: By the State.

GLEESON CJ: By the State.

MR RODER: And Khawar made the point that - - -

GLEESON CJ: I am sorry, an alleged persecutory non-enforcement of the law by the State.

MR RODER: Indeed, your Honour, and the point was made in Khawar that for that sort of case it is not just enough to show that there were corrupt or lazy or inept police at a local level. The basis of a Khawar-type case is really an allegation of discriminatory non-action by the State as an organisation at high level; in other words, a policy not to protect women by
implementing the law with the same force in that particular context. We say when one looks at the Tribunal’s findings and the material before it, this is just not a case where the Khawar point properly arises. If the Court pleases.

GLEESON CJ: Thank you. Yes, Mr Heywood-Smith.

MR HEYWOOD-SMITH: If I could just refer the Court to a couple of passages arising out of my friend’s submission. My friend submits that the case as put by my client decision-maker, were the same as in Sarrazola. I invite the Court to have regard to the passage at the bottom of page 5, line 30 to line 7 on page 6. It would be apparent that that clearly was not the case, that the case as advanced today has always been the applicant’s position. Your Honour the Chief Justice drew reference to the evidence appertaining to the applicant’s father. Can I just indicate to the Court where that appears. At page 7, line 2:

The police came and arrested his father. He was sentenced to 16 years imprisonment and is still in jail in Shkoder.

That is brought up to date, however, at page 10, line 27 where at a later stage in the proceedings it is recorded that the father died in prison in June 2003.

Your Honour the Chief Justice asked questions of my learned friend which relates to the application of this Kanun and I do commend to your Honour in the supplementary materials the passages at page 79 - this is at the very back of the book - the foreword to The Code of Leke Dukagjini and the paragraph commencing about point 5:

The application of the Kanun was further complicated when its rules came into contact with . . . took precedence over all other laws –

And then we turn to page 82, the chapter dealing with blood, in particular, paragraph 896 at the top of page 83 and at paragraphs 898 to 900. And the next chapter in particular, paragraphs 905 to 908.

Finally, my learned friend again takes the Court to the so-called finding that your Honour the Chief Justice directed my attention to at page 15. If I could invite the Court to consider just the terms of that sentence:

The Tribunal finds 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.

There is no finding as to whether or not they have been addressed, as to whether there has been any success at all. Indeed, our friend relies solely, quite appropriately, on the country information at pages 13 to 15 and consideration of the passages. The last three paragraphs of that country information at paragraph 15 makes it absolutely apparent that the country information does not provide any information on the topic of whether or not there has been any success in attempting to deal with the issue. If the Court pleases.

GLEESON CJ: Thank you. Yes, Mr Ower.

MR OWER: Nothing in reply, your Honour.

GLEESON CJ: We are of the view that, having regard to the facts found by the Refugee Review Tribunal both as to the origins of the applicants’ fear and also as to the State action that has been taken, there are insufficient prospects of success to warrant a grant of special leave. In both of these cases the application for special leave to appeal is dismissed with costs.

We will adjourn for a short time to reconstitute.

AT 11.50 AM THE MATTERS WERE CONCLUDED