SCAL v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 301

SCAL v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 301

The appeal failed because the re-cast social group based on persons subject to the Kanun had not been put to the Tribunal and the Tribunal was not obliged to construct it; in any event the appellant's asserted fear was plainly because of his family membership or because his father killed a member of another family, so s 91S defeated an attempt to rely on the family as the particular social group. The Tribunal also found that the claimed blood feud did not exist and that the appellant would not face persecution for that reason if returned to Albania, and that finding was not displaced. The natural justice ground failed because the Tribunal was not obliged to put its concerns about the...

Jurisdiction
Australia
Judgment Date
18 December 2003
Procedural Posture
Migration Appeal From a Single Judge of the Federal Court of Australia Concerning Refusal of a Protection Visa / Full Court Appeal
Outcome
Appeal dismissed.
Legal Topics
['protection Visa' 'refugee Convention' 'particular Social Group' 'family as a Particular Social Group' 'blood Feud' 'migration Act 1958 (cth) S 91 S' 'natural Justice']
['migration' 'administrative Law' 'refugee Law'] ['protection Visa' 'refugee Convention' 'particular Social Group' 'family as a Particular Social Group' 'blood Feud' 'migration Act 1958 (cth) S 91 S' 'natural Justice']

Case Brief

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Procedural Posture

Migration Appeal From a Single Judge of the Federal Court of Australia Concerning Refusal of a Protection Visa / Full Court Appeal

Legal Issues

  1. 1 ["Whether the appellant's claimed fear arising from an Albanian blood feud was persecution for reason of membership of a particular social group." 'Whether s 91S of the Migration Act 1958 (Cth) required the Tribunal to disregard fear of persecution based on family membership where the underlying fear arose from non-Convention reasons.' 'Whether the primary judge erred in rejecting a re-cast social group described as citizens of Albania subject to the customary law Code of Leke Dukagjini (the Kanun).' 'Whether the Tribunal denied natural justice by failing to put concerns about evidence supplied by Mr Game and Mr Rrotani to the appellant.']

Ratio Decidendi

The appeal failed because the re-cast social group based on persons subject to the Kanun had not been put to the Tribunal and the Tribunal was not obliged to construct it; in any event the appellant's asserted fear was plainly because of his family membership or because his father killed a member of another family, so s 91S defeated an attempt to rely on the family as the particular social group. The Tribunal also found that the claimed blood feud did not exist and that the appellant would not face persecution for that reason if returned to Albania, and that finding was not displaced. The natural justice ground failed because the Tribunal was not obliged to put its concerns about the...

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal be dismissed.' "The appellant pay the respondent's costs of the appeal."]