SDAR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1102

SDAR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1102

The RRT did not err in law in applying s 91S. The applicant's claimed fear of being killed in an Albanian blood feud existed because his cousin had shot a member of another family and thereby generated revenge-motivated persecution for a non-Convention reason. Properly construed, s 91S required the RRT to disregard...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
06 September 2002
Procedural Posture
Migration Judicial Review Concerning Refusal of a Protection Visa / Application to the Federal Court to Review a Refugee Review Tribunal Decision Affirming a Delegate's Refusal of a Protection Visa, With Relief Also Sought Under S 39 B of the Judiciary Act 1903 (cth)
Outcome
Application dismissed with costs.
Legal Topics
['protection Visa' 'particular Social Group Consisting of Family' 'blood Feud' 'section 91 S of the Migration Act 1958 (cth)' 'privative Clause' 'aliens Power' 'immigration Power' 'external Affairs Power']
['migration Law' 'refugee Law' 'administrative Law' 'constitutional Law'] ['protection Visa' 'particular Social Group Consisting of Family' 'blood Feud' 'section 91 S of the Migration Act 1958 (cth)' 'privative Clause' 'aliens Power' 'immigration Power' 'external Affairs Power']

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Procedural Posture

Migration Judicial Review Concerning Refusal of a Protection Visa / Application to the Federal Court to Review a Refugee Review Tribunal Decision Affirming a Delegate's Refusal of a Protection Visa, With Relief Also Sought Under S 39 B of the Judiciary Act 1903 (cth)

Legal Issues

  1. 1 ["Whether s 91S of the Migration Act 1958 (Cth) required the RRT to disregard the applicant's fear of persecution as a male family member arising from a blood feud caused by his cousin's shooting of a member of another family." "Whether the RRT erred in construing s 91S by treating the applicant's fear as resulting from persecution or fear of persecution of another family member for a non-Convention reason." 'Whether s 91S was constitutionally valid if it limited the operation of the Refugees Convention definition of refugee.' 'Whether s 474 of the Migration Act 1958 (Cth) precluded judicial review of the RRT decision.']

Ratio Decidendi

The RRT did not err in law in applying s 91S. The applicant's claimed fear of being killed in an Albanian blood feud existed because his cousin had shot a member of another family and thereby generated revenge-motivated persecution for a non-Convention reason. Properly construed, s 91S required the RRT to disregard the applicant's family-based fear because it resulted from another family member's non-Convention persecution or fear. The constitutional challenge also failed because, following SAAS, s 91S was supported by the aliens and immigration powers and that conclusion was not clearly wrong.

Court Disposition

Application dismissed with costs.

Orders

  • ['The application be dismissed.' "The applicant pay the respondent's costs of the application."]