SVMB v MIMIA & Ors; SVNB v MIMIA & Ors; STCB v MIMIA & Anor [2006] HCATrans 57 (10 February 2006)

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SVMB v MIMIA & Ors; SVNB v MIMIA & Ors; STCB v MIMIA & Anor [2006] HCATrans 57 (10 February 2006)

Last Updated: 14 February 2006

[2006] HCATrans 057

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A27 of 2005

B e t w e e n -

SVMB

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

PETER KATSAMBANIS, MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Second Respondent

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Third Respondent

Office of the Registry
Adelaide No A28 of 2005

B e t w e e n -

SVNB

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

PETER KATSAMBANIS, MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Second Respondent

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Third Respondent

Office of the Registry
Adelaide No A31 of 2005

B e t w e e n -

STCB

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Applications for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 10 FEBRUARY 2006, AT 1.51 PM

Copyright in the High Court of Australia

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MR P.C. CHARMAN: If it please the Court, I appear in matters 9 and 10, but not in matter 11, for the applicants. (instructed by Winters)

MR M.J. RODER: If it please the Court, I appear in all three matters for the first respondent. (instructed by Sparke Helmore)

HAYNE J: Now, is there any reason, Mr Charman, why we should not adopt this course? What we propose to do is to immediately direct attention to application 11, hearing from Mr Roder, and then come back and consider the two applications in which you are engaged. Is there any reason why we should not follow that course?

MR CHARMAN: No, your Honour, I am content with that course of action.

HAYNE J: Yes. Mr Roder, in matter No 11 there is no oral argument on behalf of the applicant, is that right?

MR RODER: That is correct.

HAYNE J: We would be assisted, I think, in hearing from you first in connection with STCB, conscious, no doubt as you are, of the fact that these blood feud cases seem to be numerous and the Court on earlier occasions has from time to time said of particular applications that they are not good vehicles for agitating the questions about 91S and the like which it is said may arise in connection with blood feud cases. Now, with that in mind, what would you say in matter 11?

MR RODER: Your Honour, with that in mind, I would submit really two things. The first is that the same type of factual findings which led the Court to conclude that other applications for special leave would have insufficient prospects of success given the findings that have been made in this case and the second submission I would make is that when one considers the judgment of the Full Court in this case, the issue, so far as it related to section 91S of the Act, was defined and refined in a particularly narrow way relating to the factual findings of the Tribunals and in such a way that the determination of the Full Court was directed towards that question, simply involving factual issues, or essentially involving factual issues, and not suitable again for the resolution of the Court of the particular questions that are identified. I wonder if I could start with that and then perhaps take the Court to the findings of the Tribunal.

HAYNE J: Of course.

MR RODER: The way in which the case was put before the Full Court can be seen at page 41 of the application book, lines 10 to 15. There are two distinct grounds of appeal which were identified and the first related to a section 91S issue and the other issue was an issue relating to particular social groups. You will see that the way in which the argument was advanced before the Full Court in relation to section 91S did not really relate to the construction so much of 91S, but the submission was made that the Tribunal failed to make a finding that it was required to make by section 91S of the Act, that is the reason for the fear of persecution or the persecution experienced by the appellant’s grandfather.

Your Honour, what the Full Court said about that is to be found at paragraph 19 of the judgment and essentially what the Full Court said was that the reason for the persecution of the appellant’s grandfather was a matter that was an inherent part of the appellant’s claim and really inhered in the fact that the Tribunal accepted the appellant’s own account. This is a case where it was the grandfather, I think, who had been the initial perpetrator of the first killing or the first harm that then leads to the cycle of harm and, as I understand what was being put by Mr Ower, is that the grandfather might have been harmed because he was a member of his own family and that would be a Convention-based reason rather than because he actually killed the member of the other family.

The Full Court said the argument that he might be targeted because he is a member of his own family when in fact he killed someone and that he was targeted in revenge for that was not only far fetched, but circular. I would submit that the Full Court was correct in the way it reasoned on that issue and I would go further than the Full Court because, in my submission, there was in fact it appears, certainly at the very least, an implicit conclusion of fact by the Tribunal on the issue. At page 15 of the application book, line 25, or just above that, the Tribunal says:

Although the Tribunal is satisfied that in the Albanian context the applicant’s family can be considered to be a particular social group under the Convention, the Tribunal finds that the motivation of the Paja family to harm a member of the applicant’s family is revenge for a murder committed by the applicant’s grandfather. Revenge for a criminal act is not a reason for harm which comes under the Convention.

The effect of s 91S 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.

In my submission, implicit in all of that was that the Tribunal accepted what the Full Court said was apparent on the applicant’s claim, namely, that the applicant was being harmed because she was the relative of a person targeted for a non-Convention reason, namely, the grandfather. Accordingly, if one then goes to apply those findings to the provisions of section 91S, which are set out on the same page above, it is clear that section 91S attaches. It was not any real question of construction of section 91S that was being raised on this appeal; it was a question of whether the Tribunal had engaged in the appropriate fact-finding exercise and, in particular, whether it had determined whether the fear of the original family member was or was not for a Convention reason. That is the first reason I would say that this case - - -

HAYNE J: Before you leave that reason, there is reference in the Tribunal reasons to SDAR and SCAL dealing with the operation of section 91S in blood feud cases.

MR RODER: Yes.

HAYNE J: Is there any divergence of view which has emerged in the Federal Court about the operation of 91S?

MR RODER: Not that I am aware of in terms of its construction. In fact, it appears that in most of the – I think there was the decision in SDAR, there was the Full Court decision in SCAL, which essentially proceeded along the same basis of Merkel J in SDAR, and then from that time onwards it appears to have been the practice that appellants before the Full Court have essentially said, “We are bound by the decisions in other Full Courts. We acknowledge that they are not plainly wrong and, therefore, whilst we accept generally that we could not succeed on the current state of authority, we want to continue with this appeal to preserve our rights.” This case is a slight exception because, instead of doing that, it seems as though there has been an attempt to deal with it by a different method, in other words, attack the factual approach of the Tribunal. That is as best as I understand what has happened in all of these cases, your Honours.

Your Honours, the other finding of fact which is made in this case which is similar, but I am bound to say to your Honours that it is slightly different from some of the findings in the other cases, is the findings that the Tribunal made regarding the response of the Albanian authorities to these types of blood feuds – because that, of course, is an important matter because we are dealing here with a case which is based on there being a claim of harm by a non-State act, because it is not suggested that the Albanian State is persecuting the applicant, and in cases of persecution by non-State actors, not only do you need to show, as it were, the well-founded fear of persecution, but there needs to be some dereliction of duty by the State, either by complicity or by some negligence in failing to provide a reasonable standard of international protection.

That flows from the decision of this Court in the case dealing with the Jehovah’s Witnesses in the Ukraine, which is S152, your Honours, and that is referred to in my summary of argument in this matter, or it may even be in the other matter. I cannot just put my finger on it. It is in the application book and it is paragraphs - - -

HAYNE J: We are generally familiar with that.

MR RODER: Indeed, your Honour. The findings of fact of the Tribunal which go to that matter, the Court will see there are findings of fact which are contained at page 14 of the application book. It appears clear that the Tribunal has accepted the information, rather lengthy information, which is set out at paragraphs 12 to 14 from the United Kingdom Home Office Report. In effect, the tenor of that information seems to be that the government is trying to wipe this practice out, that it is exceedingly difficult to stop citizens from doing these things, that there have been certainly significant resources directed towards it, and the ultimate conclusion is that:

The Tribunal finds that the Albanian authorities have recognised the problems presented by blood feuds and have shown that they are willing to address them.

Now, I need to distinguish that. It is a slightly different finding from the findings in some of the earlier cases which cited the same information and said that the Tribunal had found that the Albanian authorities had recognised the problems and had put in place proper resources to address them. So there is a slight difference in emphasis in the findings. But, again, in my submission, for the purpose of considering the authorities that apply, or the law that applies to harm by non-State actors, the information which is accepted and the conclusion of the Tribunal and, as far as I can see, the lack of any case being specifically advanced to the Tribunal that the Albanian Government failed to comply with international standards, that this part of the Tribunal’s reasons is also another reason why this would not be a suitable vehicle, because this part of the reasons may in itself have the consequence that the construction of section 91S never really arises on the appeal.

I do not know that I can assist by further argument other than by referring to what is in my written submissions, unless there are specific questions regarding the reasons of the Tribunal or the Full Court.

HAYNE J: Just on that, in the reasons of the Tribunal in this matter, namely STCB, you have the finding at page 14, line 24, that the authorities recognise the problem and show a willingness to address them. Do we have any further finding that amplifies that or identifies the likelihood of harm befalling the applicant?

MR RODER: No. I think the short answer to that is no, your Honour, and I am not sure that if one looks at the Jehovah’s Witness case, that the question is not really the likelihood of harm. Certainly in this – obviously that is a relevant issue because there has to be a well-founded fear of persecution, but in the context that I am talking about, which is the fact that there has to be government dereliction, the issue is not really the likelihood of harm, that the issue is really the adequacy of the procedures that the State is put in place. The decision in S152 talks about a reasonably impartial police force and international standards and the like.

There is no express finding which expressly makes a finding about international standards. I can only say this, that there was not a finding of that nature in.....either and the Court said the reason for that was there was never a case advanced to the Tribunal that there had been a failure to meet those international standards. As far as I am aware, it does not appear to me that any case of that nature was advanced before the Tribunal in this matter. But, certainly, I do not think I can assist the Court in any further findings.

HAYNE J: Because ground 5 of the draft notice of appeal alleges error in failing to conclude that:

the Tribunal had failed to consider the individual circumstances concerning the Appellant’s claim that the Albanian State was unwilling or unable to provide adequate protection from the [threatening] family to him.

MR RODER: Yes. That seems to be an echo of an argument that has been put on previous special leave applications, that the Tribunal had to, in that context, focus on whether it was likely that this particular applicant would be harmed or the degree of likelihood. We would submit that that is just not a proper reading of the authorities in S152 and, as the Court said in that case, in every country in the world people are the subject of criminal attacks and they are often, whether it be in Australia or elsewhere, based on reasons of ethnicity or religion or Convention-based reasons. The question is not really whether the State can protect this particular applicant; the question is whether the State, in a sense, is derelict in its duty by failing to put into place adequate resources such that justifies the unwillingness of the applicant to seek the protection of that country.

As I say, in the Jehovah’s Witness case there was really no case presented to the Tribunal that the standards were inadequate in that sense. Our submission is that that is, again, a difficulty in this case as well. Again, I do not know other than making that particular proposition - - -

HAYNE J: Now, there is this other aspect of the matter in which a different social group was posited, namely, those subject to customary law. What do you say about that?

MR RODER: Well, I will say two things. Firstly, as I understood the way that argument is advanced, it was advanced essentially on the basis that the State treats people who are subject to that law differently. In other words, it was based on some form of attack by the State on those sorts of people, some failure by the State or differential treatment by the State on those grounds. That would seem not to be available given the Tribunal’s findings of fact that I took the Court to before.

HAYNE J: That is tied then with what is to be understood by the willingness of the Albanian authorities to address the problems presented by blood feuds. Does that go far enough to identify what is being done in response to protect those who are subject to this customary practice?

MR RODER: In my submission, it would plainly be enough to rebut some sort of claim based on a Khawar type of claim, that is a deliberately
differential treatment by the State of such persons, and that is how I understood, in effect, that case was being put. But, in any event, my second response to that, your Honour, is, again, the Court will see that the particular social group issue was put before the Full Court, again, in a fairly distinct context. That is it was suggested that there was an incorrect test that was applied because the Tribunal failed to consider the subjective perceptions held by the Albanian community. Now, in my submission, there was absolutely nothing in the Tribunal’s reasons that said that they failed to consider those matters.

The Court will recall this issue of subjective and objective perceptions was dealt with by the High Court in Applicant S, because in Applicant S the Tribunal had reasoned that because society did not perceive able-bodied young men to be a distinct group, therefore they were not a particular social group, and what the High Court said was perceptions are relevant, but it is not the ultimate question. The ultimate question is whether they are objectively distinguishable. The Tribunal, in my submission, considered the question as a matter of fact and did so in accordance with the test in Applicant S and that the error which was suggested just simply did not arise.

I would also submit that the reasoning of the Full Court at paragraph 31 regarding this issue, that as a matter of fact the Tribunal was correct in concluding that that social group was too broad should be upheld. Ultimately, my submission on that is that it was a question of fact for the Tribunal, that it was at least open to the Tribunal to come to the conclusion that it did and it considered the issue applying the principles set out by the Court in Applicant S. Your Honours, I see that time is up.

HAYNE J: Yes. Just before you sit down, Mr Roder, there is one question. The application for leave is made out of time. Do you oppose any necessary extension?

MR RODER: I have no instructions to oppose that, your Honour.

HAYNE J: Yes, thank you. Now, Mr Charman, you disappeared into the ether when you were about to say something to us. Having heard what is being urged in STCB, in your two applications it struck me at least – I speak only for myself – that you have injected into your two matters the further question of refusal to grant leave to appeal to the Full Court of the Federal Court out of time, do you not?

MR CHARMAN: Yes, your Honour, there was I think some delay with respect to appealing and I think the decision of the Full Court - - -

HAYNE J: The question which troubles me, and again I speak only for myself, is if there is to be a grant of leave in connection with 91S and blood feuds, are any of these three cases suitable vehicles? At the moment my impression is that your two, SVMB and SVNB, are less suitable than STCB. Now, is there anything you would wish to say in that connection?

MR CHARMAN: Your Honour, if I could say this. Firstly, the arguments, perhaps I could say of all three matters, would be a similar argument and there would be no reason I think this honourable Court could not hear, if you like, the three matters together. The arguments are almost identical or versions of the same argument.

HAYNE J: What are the findings of fact below that make SVMB or SVNB better than or additional to STCB?

MR CHARMAN: Your Honour, in both of those matters, SVMB and SVNB, the Tribunal accepted there is a blood feud, so there is no difference in that. The Tribunal accepted that the applicants were members of a particular social group, ie, family. The Tribunal very clearly, as indeed Justice Lander on first instance and the Full Court, relied upon what was said by Justice Merkel in SDAR as to the interpretation of 91S. We would say that it is clearly before the Court in a quite precise manner in relation to these two matters. There was a finding of fact in relation to the Albanian authorities which we say, with respect, was even vaguer than the one in STCB, in that it was a finding that the – or perhaps to be accurate I should – it is a similar finding in both matters at page 15 of the application book.

HAYNE J: As I say, my concern is to know what is better or additional in your two matters compared with the third.

MR CHARMAN: Well, your Honour, we say that in relation to these two matters – and I can indicate that I am fully aware of the facts and the reasons in relation to the third, so if your Honour does want any assistance in relation to that I am able to give it. But in relation to these two matters we say that the issue of a particular social group of Kanun followers was not raised, but the issue of the construction of 91S was raised fairly and squarely as a very discrete point. My learned friend has indicated that in STCB, the third of the matters, there was a different approach taken in relation to whether it was a criticism of the interpretation of 91S or a criticism of the fact-finding mechanism in relation to whether it was purely revenge or not.

Now, in these two matters, SVMB and SVNB, it was very clearly a case of what is the interpretation of 91S, and we say it is a suitable vehicle because at all levels – at the Tribunal, at first instance and on appeal – there has been a consistent approach in accepting what Justice Merkel said in
SDAR, and we say that is clearly wrong, with respect, and that that is the issue in terms of the interpretation of 91S. That is, your Honours, why we say these two matters are a better vehicle for the interpretation of 91S. The third matter may be a better vehicle in terms of the interpretation of the application of that to a particular social group, being the followers of Kanun, which is the reason I say, your Honour, why it would be appropriate, if one wished to deal with all of the matters arising out of 91S, to deal with the three matters together.

HAYNE J: Yes. Mr Roder, we are minded to make a grant of leave. The question is in one or all three. What do you say as to that question, one or all three to be heard together with no duplication of argument?

MR RODER: I have already made my submission to the Court on the other matter. I think all I can say about SVMB and SVNB is that there is a particular difficulty because it was a claim that related to an extension of time and there were other matters that were put to the Court in the exercise of its discretion. In other words, that the Full Court disallowed the extension because it found that the case was hopeless on the current state of authorities.

HAYNE J: Yes.

MR RODER: There was no particular analysis of the section. But there were also arguments put by Ms Maharaj, who appeared in that case – I have looked at her written submissions this morning. There were arguments that really the explanation for the delay was unsatisfactory. It was a curious matter where I think the applicant had initially thought to appeal directly to this Court from a decision of a single judge and then sought the advice of counsel. It appears what happened was that rather than remedying the situation forthwith, the advice was to sit back and wait and see what came out from other special leave applications.

Now, that was a relevant matter to be taken into account in the exercise of discretion, accepting that in cases of this nature there are always other countervailing considerations. The Full Court never even got to that because it decided the case on a different basis. So we would say that that is one reason why a grant of leave should not be given in SVMB and SVNB. Those cases also would not, in my submission, add anything in particular and they have that added difficulty. I suppose without having any express instructions, my submission would be that leave should not be granted in those cases.

HAYNE J: Yes.

MR RODER: Again, I do not know that I can assist any further.

HAYNE J: Yes, thank you. There will be a grant of leave in matter No 11, STCB v The Minister for Immigration, and, as is implicit in that order, there will be a further order extending the time within which application for special leave to appeal may be made.

Matters SVMB and SVNB will stand out of the list generally. There will be no order for costs save one reserving costs. They can be revived, if needs be, on written notice to the opposite party of not less than 14 days.

We will adjourn the Court.

AT 2.25 PM THE MATTERS WERE CONCLUDED