Minister for Immigration and Citizenship v SZCWF [2007] FCAFC 155

Minister for Immigration and Citizenship v SZCWF [2007] FCAFC 155

The Tribunal's acceptance that the families were involved in a blood feud was sufficient, to the extent necessary, to support findings relevant to s 91S. The father's killing was serious harm and, although a single incident, was not isolated or random because it occurred in the context of a blood feud involving systematic and discriminatory targeting. Any persecution or fear of persecution of the father, and the first respondent's derivative fear, arose from revenge in the blood feud and not for a Convention reason. Section 91S therefore required those matters to be disregarded, and the Federal Magistrate erred in finding jurisdictional error.

Jurisdiction
Australia
Judgment Date
27 September 2007
Procedural Posture
Migration Appeal Concerning Judicial Review of a Refugee Review Tribunal Protection Visa Decision / Appeal to the Full Court of the Federal Court From a Judge of the Federal Magistrates Court of Australia
Outcome
Appeal allowed; orders of the Federal Magistrate set aside; application for review of the Refugee Review Tribunal decision dismissed with costs.
Legal Topics
['protection Visa' 'albanian Blood Feud' 'particular Social Group' 'family as Particular Social Group' 'migration Act 1958 (cth) S 91 S' 'persecution' 'systematic and Discriminatory Conduct' 'convention Reason']
['migration Law' 'refugee Law' 'administrative Law'] ['protection Visa' 'albanian Blood Feud' 'particular Social Group' 'family as Particular Social Group' 'migration Act 1958 (cth) S 91 S' 'persecution' 'systematic and Discriminatory Conduct' 'convention Reason']

Case Brief

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Procedural Posture

Migration Appeal Concerning Judicial Review of a Refugee Review Tribunal Protection Visa Decision / Appeal to the Full Court of the Federal Court From a Judge of the Federal Magistrates Court of Australia

Legal Issues

  1. 1 ['Whether the Tribunal erred in applying s 91S of the Migration Act 1958 (Cth) without expressly addressing the threshold questions identified in STCB.' "Whether the death of the first respondent's father in an exchange of gunfire during an Albanian blood feud could constitute persecution involving serious harm and systematic and discriminatory conduct." 'Whether any persecution or fear of persecution of the father and the first respondent arose for a Convention reason or from revenge in a blood feud.' "Whether the Federal Magistrate was correct to set aside the Tribunal's decision for jurisdictional error."]

Ratio Decidendi

The Tribunal's acceptance that the families were involved in a blood feud was sufficient, to the extent necessary, to support findings relevant to s 91S. The father's killing was serious harm and, although a single incident, was not isolated or random because it occurred in the context of a blood feud involving systematic and discriminatory targeting. Any persecution or fear of persecution of the father, and the first respondent's derivative fear, arose from revenge in the blood feud and not for a Convention reason. Section 91S therefore required those matters to be disregarded, and the Federal Magistrate erred in finding jurisdictional error.

Court Disposition

Appeal allowed; orders of the Federal Magistrate set aside; application for review of the Refugee Review Tribunal decision dismissed with costs.

Orders

  • ['The appeal be allowed.' 'The orders of the Federal Magistrate made on 5 April 2007 be set aside.' 'The application for review of the decision of the Refugee Review Tribunal be dismissed with costs.' "The first respondent to pay the appellant's costs of the appeal."]