FEDERAL COURT OF AUSTRALIA

MIGRATION – whether for an application for refugee status to succeed the applicant must show a series of coordinated acts directed against him or her which can be said to be systematic and not isolated – discussion of the word ‘systematic’ – whether Tribunal failed in obligation to give reasons – consequences where country of nationality is in the midst of a civil war

WORDS AND PHRASES – “Systematic persecution”

Migration Act 1958 (Cth) – ss 36(2), 476(1),

Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 – followed

R v Secretary of State for the Home Department, Ex parte Adan [1998] 2 WLR 702 – cited

Periannan Murugasu v Minister for Immigration and Ethnic Affairs (unreported, Wilcox J, 28 July 1987) – followed

Abdalla v Minister for Immigration & Multicultural Affairs (unreported, Beaumont J,

6 January 1998) – considered

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 – cited

Jahazi v Minister for Immigration and Ethnic Affairs (1996) 61 FCR 293 – cited

Immigration and Naturalization Service v Elias-Zacarias (1992) 502 US 478 – cited

MOHAMED DAHIR MOHAMED v

minister for immigration and multicultural affairs

NG 2 of 1998

hill j

sydney

11 may 1998

THE COURT ORDERS THAT:

1.                  The decision of the Refugee Review Tribunal dated 5 December 1997 be set aside.

2.                  The application be remitted to a Tribunal differently constituted for rehearing, with or without new evidence, in accordance with law.

3.         The Respondent pay the Applicant’s costs.

REASONS FOR JUDGMENT

The Applicant, Mohamed Dahir Mohamed, applies to the Court for judicial review of a decision of the Refugee Review Tribunal constituted by Mr Luke Hardy whereby the Tribunal determined that Mr Mohamed was not a person to whom Australia owed protection obligations under the provision of the Convention Relating to the Status of Refugees (Geneva, 28 July 1951) as amended by the Protocol Relating to the Status of Refugees (New York, 31 January 1967) as incorporated in the criteria for the Grant of a Protection Visa by s 36(2) of the Migration Act 1958 (“the Act”) and Part 866 of Schedule 2 to the Migration Regulations.

Mr Mohamed is a national of Somalia who arrived in Australia on 16 August 1997.  His application for refugee status made to the former Department of Immigration and Ethnic Affairs was refused and, in the result, he sought review of that decision by the Refugee Review Tribunal (“the Tribunal”).

The grounds for judicial review of such a decision by the Tribunal, at least in this Court, are greatly circumscribed by force of the provisions of Part 8, Division 2 of the Act.  Only two of these grounds are relevant to the present application.  First, it is claimed that the Tribunal failed to observe procedures required by the Act to be observed in connection with the making of the decision (s 476(1)(a)).  Second it is claimed that there was, on the part of the Tribunal, an error of law or incorrect application of the law to the facts:  s 476(1)(e).

Before discussing the grounds for review sought to be made out, it is convenient to set out the background facts to Mr Mohamed’s application and to summarise the way the Tribunal dealt with them.

Background Facts

Save in one respect, which went more to an expression of opinion rather than to a factual matter, the Tribunal appears to have accepted the evidence which Mr Mohamed gave to it and his account of the background facts in Somalia.

A clan system prevails in Somalia.  One such clan is the Hilibi clan which is actually a sub clan of the parent clan Hawiye.  Mr Mohamed is a member of the Tifow sub-group of Hilibi.  Another sub clan of the parent clan Hawiye is the Abgal group.  Other rival clans include the Darod and Isaaq clans.  There is rivalry between the Abgal and the Hilibi as well as between the Hilibi and Darod and Hilibi and Isaaq clans.  In the area of Northern Mogadishu, from which Mr Mohamed comes, control is in the hands of a faction of the Abgal clan.

Mr Mohamed claimed to have a well founded fear of persecution by reason of his race, membership of the Hilibi clan or political opinion based upon historical events.  These can be enumerated as follows.  There is no suggestion in the Tribunal’s reasons that these events did not happen.

1.                  His family home was occupied by Abgal supporters in 1989 – his family was evicted and rent not paid, at least from 1991.

2.                  Mr Mohamed was jailed for three months in 1993 by Abgal soldiers for refusing to fight on their side in a civil war.

3.                  In 1995 his uncle was shot and killed, allegedly for not joining up with the Abgal forces.

4.                  The family house was torched in 1995, as an additional reprisal for his uncle’s refusal to fight with the Abgal.

5.                  At some date, apparently after 1996, Mr Mohamed’s father was arrested.  He was later released.

6.                  In 1997 Mr Mohamed was again detained for refusing to join the Abgal army.  He escaped but learnt a little later that his father had disappeared.  He has not been heard of, at least by Mr Mohamed, since.

The Tribunal’s Reasons

The Tribunal under the heading “Findings” noted that it accepted that Mr Mohamed and members of family had:

“ … met at least episodically with intimidation and harsh treatment from Abgal members in recent years and that on occasions, the treatment the Applicant and his family received may reasonably be regarded to have been persecutory.”

However, the Tribunal expressed itself not to be satisfied that the harassment experienced could reasonably be called “continuous” on the evidence provided.  It also said it was not satisfied that Mr Mohamed’s absences within and from Somalia accounted for his having survived or were the sole reason why the main events cited were so isolated in time.  It accepted Mr Mohamed’s evidence that on three occasions he had been pressed by Abgal clan members to join the army.  However, the Tribunal said:

“However, there is an inconsistency of methods, approaches and outcomes, underlined by a lack of persistence on the part of the respective Abgal members involved in each episode as would reasonably indicate that either different individuals approached the Applicant’s family on the different occasions or that the same individuals had short memories, and, in either event, that their recruitment efforts along with their incentives and disincentives were not co-ordinated in any systematic way.”

It pointed to the fact that four years had elapsed between the time the applicant was jailed in 1993 and his jailing in 1987.  It suggested that the lack of persistence by those harassing Mr Mohamed was incongruous.  Indeed the Tribunal asked itself rhetorically why Abgal soldiers would have wanted a known clan leader to join their forces in the first place.  However, the matter that most concerned the Tribunal was the absence of “systematic action”.  It said:

“ … the emerging picture is one of scarce and sporadic approaches by Abgal soldiers over a four-year period rather than systematic ones.  At the same time, there is virtually negligible evidence of these or other members of the very numerous Abgal tribe trying to wipe out the Applicant and his family, merely for reasons of what should have been their easily-imputable clan status or political opinion over the same period.”

However the Tribunal was prepared to acknowledge:

“ … that a diminished opinion on the part of the Abgal towards Hilibi might have motivated the individual Abgal members on both occasions to think nothing of trying to coerce the Applicant as they did.”

The Tribunal appears to have accepted that the consequence to Mr Mohamed was persecutory and could be linked back to Convention factors of race, social group and political opinion.  It added:

“However, even though a lasting peace has not yet been guaranteed in Somalia, these two widely separated events do not indicate a real chance of the Applicant facing similar treatment in future, partly because of a significant factor underlying this area of the Applicant’s claims:  the evidence of the Abgal being prepared to work alongside the Hilibi in peace and war.”

The one matter which the Tribunal (at least expressly) rejected was a claim by Mr Mohamed based upon his personal experience and perceptions that the reason the Abgal wanted Hilibi clan members to join in battle with them was to aim them at a rival clan group with a view to eliminating both at the end of the campaign.  The Tribunal said:

“This does not mean the Tribunal disbelieves the claim about the state of unfriendliness between the Abgal and the Hilibi; however, the evidence does not support the claim of systematic, let alone mortal enmity between the two sub-clans;  rather, it indicates a residual dislike and distrust on the part of Abgal towards Hilibi generally, punctuated occasionally by political pragmatism, deals, manoeuvring, joint ventures and attempts at manipulation.”

The Tribunal emphasised that, if one took away the two episodes which it described as “attempted press-ganging”, not a lot had happened to the applicant in the four intervening years or, for that matter, in the eight years since 1989.  The Tribunal therefore concluded as follows:

“Accordingly, there is insufficient evidence in his own personal experiences to satisfy the Tribunal that he has been victim of a course of systematic action directed against him for reason of his sub-clan (“race”; “membership of a particular social group”) or his perceived anti-Abgal factional position (“political opinion”).”

Dealing with the problems which Mr Mohamed’s father had faced, the Tribunal expressed itself not to be satisfied that the sub-clan status of the father was the “sole” reason for problems that arose with a business partner of the father who was a member of the Abgal clan.  The Tribunal then said:

“Having considered all the evidence, the Tribunal concludes that the broad, underlying relationship between the Abgal and the Hilibi is not as dangerous as the Applicant claims to fear.  Bearing in mind the Applicant’s own evidence of pragmatism, and of individual pacts and deals, between members of the Abgal and members of the Hilibi, the Tribunal concludes that the DFAT opinion regarding the relationship between the two sub-clans has substance and is reliable.  The evidence regarding the broad, underlying relationship between the Abgal and Hilibi is not in itself indicative of a real chance of the Applicant facing Convention-related persecution at the hands of the Abgal.”

The reference to the DFAT opinion is a reference to a cable from the Australian Embassy in Nairobi stating that there is no historical enmity between the Hilibi and Abgal clans, that the applicant’s account of events is difficult to reconcile with reports of the situation in Somalia and that there has been no credible account of forced conscription in Somalia since 1991.  The cable took the view that the reports of the difficulty which Mr Mohamed and his family experienced did not ring true.  Given that the Tribunal appears to have accepted the evidence of Mr Mohamed, it is difficult to know how it could have reconciled that evidence once accepted on the one hand with the cable on the other.

Finally, the Tribunal returned to consider the various events which I have enumerated, given in evidence by Mr Mohamed to see whether these:

“ … albeit substantially unconnected instances of Abgal hostility towards the Hilibi might be indicative of a cumulative phenomenon amounting over time to Convention-related persecution in the reasonably foreseeable future.”

The Tribunal took the view that the incidents in question were “sporadic or random” where clan status may well have been a contributing issue but could not cumulatively be seen to be Convention-related persecution.  It is convenient to repeat the Tribunal’s comments on the various incidents:

“In the ‘sporadic or random’ camp are the episodes involving the jailing of the Applicant over his refusals to join the Abgal in battle, upon which the Tribunal has already given its specific conclusions.  The cumulative significance of these episodes is undermined by the evidence in these, and other instances in the Applicant’s claims, of the Abgal being prepared to have the Hilibi working alongside them in peaceful and military pursuits.

Turning to the episode of the shooting of the Applicant’s uncle over a similar refusal, this may have been presented as evidence intended to support the Applicant’s claim as to what might happen to him, but he nevertheless did not meet with similar treatment on the two isolated occasions when he was pressed to enlist.”

(It is tempting to interpolate that had the Applicant met with similar treatment he, like his uncle, would be dead.)

“The Tribunal is not satisfied that the episode involving the uncle accumulates with the Applicant’s own experiences in such a way as would indicate that he might face a chance of cumulative Convention-related harassment amounting to persecution in the foreseeable future.

Further to this, the Tribunal is not satisfied that the hostility on the part of the Applicant’s father’s business partner was caused directly and purely by an attitude towards the Hilibi clan, however much that person might have tried to exploit it either in seeking a dissolution of the partnership or after the latter disintegrated;  surely there would have been enough powerful Abgal around to help jail the Applicant’s father, if merely his sub-clan status were the issue, at any time prior to the establishment of the partnership if they had wanted to do so.  The partner had to hold more than the father’s Hilibi status against him in order to have him jailed.

Lastly, there is the occupation and sequestering of the Applicant’s family home in 1989.  It was not until 1991 that the Abgal occupants refused to pay rent and kicked the Applicant’s family out.  That places the event well within the temporal and factual context of the civil war and therefore the event is not seen to accumulate with events that occurred before or since.”

I propose to deal with the two grounds of review in the reverse order to that in which the submissions were put.

Error of Law

In written submissions and in oral argument three matters were pointed to as indicating errors of law on the part of the Tribunal.  These may be briefly summarised as follows:

1.                  That the Tribunal erred in the approach it adopted to what it saw as a requirement that persecutory conduct be systematic.

2.                  That the Tribunal erred in treating it as a requirement that the act of persecution be solely or purely related to a relevant Convention reason.

3.                  That the Tribunal erred in applying a requirement that it was necessary for the applicant to show mortal enmity existing between the two sub-clans before the applicant could show a well founded fear of persecution on a Convention ground in a case such as the present.

As appears from some of the quotations earlier given, there is to be found scattered through the reasons of the Tribunal reference to a requirement which the Tribunal saw to be a principle of law, that the acts of persecution relied upon be systematic against the Applicant.  In fairness to the Tribunal, it must be said that in various places the use of the word “systematic” is used in two contexts.  The first context in which it is used is the context of acts directed at a particular group, in the present case the Hilibi clan by the Abgal.  The second context is, however, of whether the acts which occurred to Mr Mohamed himself could be said to be systematic as opposed to isolated instances.

As will be seen, the word “systematic” has found its way into case law on refugee status.  The present case displays the difficulty of taking language used in the context of a particular case by a judge and treating that language as itself a test and as a substitute for the statutory test.  The statutory test is that to be found in Article 1 of the Convention as modified by the Protocol where a refugee is defined as any person who:

“owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

Thus the relevant question for determination by the Tribunal (and to its satisfaction) was whether Mr Mohamed had a “well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”.

It is clear enough from the language of Article 1 that the well founded fear of persecution must exist at the time the application for refugee status is brought.  The case law, both in Australia and the United Kingdom supports this Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 386-387, 399, 405-406;  R v Secretary of State for the Home Department, Ex parte Adan [1998] 2 WLR 702.  This does not mean that what happened in the past will be immaterial to the conclusion required to be drawn at the time of application.  Logically, events which have happened up to the time an applicant for refugee status leaves his or her own country will provide a useful and often determinative guide for the future unless something intervenes between the time an applicant has left his or her country of nationality and the time he or she applies for refugee status.  As McHugh J pointed out in Chan at 432:

“In many cases, the same result will be reached whether one begins by asking whether an applicant was a refugee when he or she left his or her country of nationality and whether the circumstances have since changed or whether one simply examines the circumstances in the country of nationality at the time a claim for recognition is made on a State party.”

The Tribunal did not suggest that conditions in Somalia had altered since Mr Mohamed left that country.

The intrusion of the word “systematic” into the test for refugee status appears to have its origin in Periannan Murugasu v Minister for Immigration and Ethnic Affairs (unreported, Wilcox J, 28 July 1987).  The application thus fell to be considered against the situation that existed in Sri Lanka in respect of nationals of Tamil extraction of whom the applicant was one.  There had in Colombo been many instances of violence against Tamil persons.  The applicant claimed that he had a well founded fear of being persecuted because a member of the Tamil community.  It was in this context that Wilcox J said at 13:

“It is important to note that the definition requires consideration not only of the subjective question  whether the particular applicant has a fear, but also of the objective question whether that fear is well founded.  Moreover, the fear must be one of being ‘persecuted’, for a particular reason.  The word ‘persecuted’ suggests a course of systematic conduct aimed at an individual or at a group of people.  It is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances.  I agree with counsel for the applicant that it is not essential to the notion of persecution that the persecution be directed against the applicant as an individual.  In a case where a community is being systematically harassed to such a degree that the word persecution is apt, then I see no reason why an individual member of that community may not have a well-founded fear of being persecuted.

Questions of degree are involved …”

The passage cited was referred to by McHugh J in Chan with approval.  His Honour was the only member of the Court who did so.  Leaving to one side the question of system, Chan is authority for a number of propositions of significance:

1.                  The words “well founded fear of being persecuted” contain both a subjective and objective requirement;  see eg.at 406 per Toohey J, 396 per Dawson J.

2.                  For there to be a “well founded fear of persecution” there must be a real chance that the refugee will be persecuted if he or she returns to his or her country of nationality; see at 389 per Mason CJ; at 398 per Dawson J and at 407 per Toohey J.

3.                  The expression “real chance” conveys the notion of a substantial as distinct from a remote chance.  It will not matter that there is less than a 50% chance of persecution occurring, see Mason CJ at 389.  Indeed an applicant may well have a “well founded fear of persecution” even though there is only a 10% chance that the applicant will be persecuted;  see per McHugh J at 429. 

4.                  Discrimination involving interrogation, detention or exile will prima facie amount to persecution;  per Mason CJ at 390.  A threat to life or freedom for a Convention reason amounts to persecution;  per Dawson J at 399.

It was in the context of the meaning of persecution that McHugh J referred with approval to the judgment of Wilcox J in Periannan supra.  At 429-30, his Honour said:

“The term ‘persecuted’ is not defined by the Convention or the Protocol.  But not every threat of harm to a person or interference with his or her rights for reasons of race, religion, nationality, membership of a particular social group or political opinion constitutes ‘being persecuted’.  The notion of persecution involved selective harassment.  It is not necessary, however, that the conduct complained of should be directed against a person as an individual.  He or she may be ‘persecuted’ because he or she is a member of a group which is the subject of systematic harassment: … Nor is it a necessary element of ‘persecution’ that the individual should be the victim of a series of acts.  A single act of oppression may suffice.  As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is ‘being persecuted’ for the purposes of the Convention. … Moreover, to constitute ‘persecution’ the harm threatened need not be that of loss of life or liberty.  Other forms of harm short of interference with life or liberty may constitute ‘persecution’ for the purpose of the Convention and Protocol.”

It is evident from the passage above cited that his Honour was not suggesting that there needed to be a series of systematic acts against an individual before it could be said that that individual had a “well founded fear” of persecution.  So much appears from the observation made by McHugh J at 430 that a single act of oppression may suffice to show persecution and that it is not necessary that there be a series of acts.  Where the fear of persecution is in respect of an applicant’s membership of a group, acts of systematic harassment against the group will show the fear to be well founded.  There need not be any particular act in fact perpetrated against the individual.  Where the fear of persecution is in respect of an individual’s political or religious beliefs the resolution of the question whether the fear is well founded will be assisted if it is shown that a course of systematic conduct has been actuated against that individual.  But it is not a necessary prerequisite for success in an application.  Evidence that individuals with a similar belief suffered discrimination amounting to persecution would likewise justify the conclusion that the individual’s fear was well founded even if the individual himself or herself suffers only an isolated act of persecution or none at all.  There is no requirement in law that, for an application for refugee status to succeed, the applicant must show a series of coordinated acts directed at him or her which can be said to be not isolated but systematic.

In Abdalla v Minister for Immigration & Multicultural Affairs (unreported, Beaumont J, 6 January 1998) his Honour rejected an attack on a decision of the Tribunal on the basis that the Tribunal had required there be a course of systematic conduct before there could be persecution.  That was a case, like Periannan, where the contrast was between communal violence to which all were subjected on the one hand and a course of systematic conduct claimed by the applicant to be directed at her.  I do not read his Honour as seeking to graft some new test on persecution outside this context.  If that was what his Honour intended then, with respect, I differ from him.

Before returning to the reasons of the Tribunal, it is necessary to say something about the role of this Court in judicial review. 

The Court is not charged with making decisions on the merits and the Court’s jurisdiction on review is not a merits review.  Parliament has conferred upon the Tribunal the jurisdiction and sole jurisdiction to determine matters of fact and to reach a conclusion on the merits of the case.  Although it might be thought that to confer upon a tribunal, not being a Chapter III court jurisdiction to resolve controversies of fact as between subject and the Minister conclusively might involve the exercise by the Tribunal of judicial power, that is what has been done.  This Court’s jurisdiction is very limited.  The role of a court in judicial review must of necessity involve an exercise of restraint.  Administrative tribunals operate often with considerable constraints both of time and resources.  Although generally directed by statute to give reasons and find facts, the real world in which tribunals operate dictates that a court reviewing those reasons must give them what has been called a “beneficial construction”.  In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ quoted with approval the language of the full court of this Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287:

“The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”

Hence in approaching the question of whether the Tribunal in the present case made an error of law which vitiated its decision in the way in which it used the word “systematic” I do so recognising not only the difficulties which face tribunals of this kind in adjudicating upon matters which come before them but also the need for judicial restraint which the High Court counsels.

In some parts of the Tribunal’s reasons reference by the Tribunal to “systematic actions” is used in a way which could not be the subject of criticism.  For example, the Tribunal clearly refers to the fact that evidence does not support the:

“impression of a systematic program on the part of all the Abgal towards all the Hilibi.”

Clearly where the issue is whether a particular act is persecution for membership of a particular group evidence that there is a systematic attack on that group will be most relevant to the issue of persecution.  However, there are other instances where the Tribunal’s approach suggests that, for the applicant to succeed, it would be necessary in law to show the acts of persecution complained of by the applicant are themselves not isolated examples but part of a systematic attack against the applicant.  If the issue is framed in terms of whether these acts are part of a systematic attack against the group to which an applicant belongs there can be no quarrel with the use of the word “systematic”. 

The following passage is, however, quite different.  It demonstrates what appears to be error on the part of the Tribunal in the use of the word “systematic”:

“ … If one takes away these two isolated episodes of attempted press-ganging, not a lot happened to him in the four intervening years or, for that matter, in the eight years since 1989.  Accordingly, there is insufficient evidence in his own personal experiences to satisfy the Tribunal that he has been victim of a course of systematic action directed against him for reason of his sub-clan … or his perceived anti-Abgal factional position …” [emphasis added]

This error is repeated in more than one passage.  It is to be found, for example, in comments by the Tribunal that incidents relied upon were “isolated occasions”.

I am therefore of the view that, in this respect, the Tribunal committed an error of law.

Whether the Convention Reason had to be the Sole Reason

It would seem clear that each of “race, religion, nationality, membership of a particular social group or political opinion” may be but one of several reasons for persecution.  If any must be the sole reason falling within the Convention test it would be quite difficult.  However, in my view it suffices that an applicant is able to show that actual persecution inflicted on him or her is persecution so as to qualify the applicant as a refugee notwithstanding that there could be other non Convention reasons.  So in Jahazi v Minister for Immigration and Ethnic Affairs (1996) 61 FCR 293 at 299-300 the Court said:

“ … whether a particular causal connection between persecution and membership of a group attracts Convention protection will be resolved not merely by the logic of causality but as a matter of evaluation which has regard to the policy of the Convention.  While it is not necessary that the fear of persecution be solely attributable to membership of a relevant social group, a decision-maker can have regard to the extent to which membership of the relevant group is a factor in the risk of persecution.” [emphasis added]

The error of law which the applicant complains of is perhaps best illustrated in the context of the Tribunal’s discussion of the relationship that existed between Mr Mohamed’s father and his business partner, a member of the Abgal tribe.  The Tribunal said:

“ … the Tribunal is not satisfied that the hostility on the part of the Applicant’s father’s business partner was caused directly and purely by an attitude towards the Hilibi clan, however much that person might have tried to exploit it either in seeking a dissolution of the partnership or after the latter disintegrated; …” [emphasis added]

The other passage complained of is to be found in the context that the Tribunal was considering whether episodes of harassment were “continuous” in respect of Mr Mohamed.  The Tribunal said:

“The Tribunal is not satisfied that the Applicant’s travels within and absences from Somalia account sufficiently for his survival, or that they constitute the sole reason for why the main events cited in this application were so isolated in time.” [emphasis added]

With respect to the submission, neither of the two passages suggest that the Tribunal proceeded on the basis that a Convention reason needed to be the sole reason for the act of persecution before an applicant might succeed in establishing that he or she was entitled to be treated as a refugee.  Both passages cited are outside this context and do not in my view demonstrate error on the part of the Tribunal.

The Necessity to Show Mortal Enmity

The applicant complains that the Tribunal erred in law in the following passage:

“This does not mean that the Tribunal disbelieves the claim about a state of unfriendliness between the Abgal and the Hilibi; however, the evidence does not support the claim of systematic, let alone mortal enmity between the two sub-clans; rather, it indicates a residual dislike and distrust on the part of Abgal towards Hilibi generally …”

On one view the passage might be construed as suggesting that the Tribunal took the view that the applicant was required to show mortal enmity between the Abgal and Hilibi clans before he could succeed.  Clearly that would not accord with any view of the law supported by the authorities.  However, I think on balance that while the Tribunal’s usage of language might be criticised as being loose, the passage complained of did not involve any error of law.

The Tribunal’s Failure to Give Reasons

It is a ground of judicial review by the Court that procedures required by the Act to be observed “in connection with the making of the decision” were not observed.  The applicant seeks to avail himself of that ground by referring to s 430 of the Act which requires the Tribunal where it makes a decision on a review to prepare a written statement that:

“(a)     sets out the decision of the Tribunal on the review; and

(b)                                       sets out the reasons for the decision; and

(c)                                        sets out the findings on any material questions of fact; and

(d)                                       refers to the evidence or any other material on which the findings of fact were based.”

It might perhaps be argued that the written statement logically follows upon the making of the decision but is not issued “in connection with the making of the decision”.  That argument was not made and indeed counsel for the Minister did not seek to argue that a breach of s 430 did not constitute a failure to observe procedures of the kind referred to in s 476(1)(a).  On the whole I think that in not raising the argument counsel was correct.

For an applicant to succeed on review in setting aside the decision of a tribunal for failure to comply with s 430, it is obvious that there must be a substantial failure to comply with the section before a ground of review is made out.  Particularly the Court should not impose upon the Tribunal a standard of perfection in both fact finding and process of reasoning which is unattainable.  Section 430 and sections in other Acts of similar purport give legislative guidance to a Tribunal of its obligation to so construct its reasons that a party to the dispute before a Tribunal can comprehend why it was that the Tribunal reached the conclusion it did and can consider whether to seek judicial review of the decision or appeal it.  Likewise the reasons provide the framework in which a judicial review of the decision may proceed by informing the Court of the process adopted by the Tribunal in reaching its conclusion.

The complaint in the present case is put on the following bases:

1.                  The Tribunal made no finding as to the nexus between events such as the commandeering of the applicant’s home, the expulsion of his family, the shooting of his uncle and the subsequent burning of the house with any of the Convention reasons relied upon by the applicant as constituting a ground for his application.

2.                  The Tribunal reached no conclusion as to the history and nature of the conflicts in Somalia or why this conflict did not produce Convention related danger to the applicant.

3.                  The Tribunal reached no conclusion as to what implications there were for the applicant of his uncle’s murder.

The Tribunal accepted, it would seem, that the various episodes concerning the applicant and his family were persecutory.  It accepted also that this persecution came from members of the same tribe, the Abgal.  It dismissed these episodes, however, by treating them as isolated instances rather than as illustrative of persecution for a Convention reason, even if individually the episodes might be seen to have arisen because of Mr Mohamed’s membership of the Hilibi tribe.  As I have already said, the approach the Tribunal took was, at least to some extent, erroneous.

What the Tribunal was obliged to do was not specifically to look at each episode and make findings as to whether a particular episode constituted a persecution for a Convention reason but rather ultimately to conclude whether to its satisfaction the applicant came within the relevant part of the definition of a refugee in Article 1 of the Convention.  In a case where a claim is made by reference to past events, it will be incumbent upon the Tribunal to consider those events in concluding whether there existed as at the time they took place well founded grounds for a fear of persecution for a Convention reason.  It may find against the applicant because it takes the view in respect of a particular episode that it did not constitute persecution for a Convention reason (in which case it would be bound to explain why) or it might deal with the matter cumulatively finding at the relevant time there were grounds for fear of persecution. 

The next step in the process by the Tribunal, assuming it found that fear of persecution was well founded as regards acts in the past, would be to show that nothing had happened in the meantime which would cause the fear that there existed no longer to be well founded.

It may be noted in the present case that the Tribunal did not suggest that the situation in Somalia had improved since Mr Mohamed left there.  No doubt that is a matter a tribunal differently constituted will need to consider along with the prime issue which Mr Mohamed raised of whether, at the time he left, he did have a well founded fear of persecution.

It is difficult in reading the Tribunal’s reasons to arrive at a conclusion as to what its process of reasoning was.  It could have found against the applicant by finding that the acts perpetrated against him were not persecution.  It did not do that.  It could have found that none of the events, alone or together, justified a fear or persecution for a Convention reason.  Parts of its reasons could lead to this conclusion.  It could have found the applicant himself had no fear of prosecution.  The Tribunal did not make any finding about this and it can perhaps be assumed that the Tribunal accepted that he did without saying so.  It could have found, if of the view that the applicant’s fear of prosecution arising out of the events complained of was well founded, that circumstances in Somalia had changed.  It did not do this either.

In my view the applicant is correct in his submission that the Tribunal substantially failed to comply with its obligation to give reasons for its decision.

Three additional matters require some comment.

1.                  There is a reference in the Tribunal’s reasons to the fact that a particular claim was not independently corroborated.  That reference did not appear to play any real role in the Tribunal’s reasons.  However, I have noticed a tendency in reasons issued from time to time by the Tribunal to suggest that the evidence of a witness should not be believed because it lacks corroboration.  There is no requirement in law that the evidence of an applicant or, for that matter, any other person requires corroboration before it is accepted.  Of course, there is no principle of law either that the Tribunal must accept what a witness says.  It is for the Tribunal to assess the veracity of a witness and, from all the material before it, to find facts and reach a conclusion.  Corroboration or lack of it should not distract the Tribunal from its statutory task.

2.                  The second matter relates to the consequences where refugee status is sought when the country of nationality is in the midst of a civil war.  Where a country is engaged in a civil war, acts committed against its nationals as a result of that war do not as such constitute persecution for a Convention reason.  Were it otherwise as fortunes fluctuated in such a war, both sides would at some stage be able to claim refugee status.  That problem has for years been recognised in Australia.  The decision of the House of Lords in Ex parte Adan to which reference has already been made reaches the same conclusion in the United Kingdom and is, with respect, clearly correct.  As Lord Lloyd of Berwick said in that case in delivering the leading judgment:

“I conclude from these authorities, and from my understanding of what the framers of the Convention had in mind, that where a state of civil war exists, it is not enough for an asylum-seeker to show that he would be at risk if he were returned to his country.  He must be able to show what Mr Pannick calls a differential impact.  In other words, he must be able to show fear of persecution for Convention reasons over and above the ordinary risks of clan warfare.”

But that is not to say that a person who is the victim of acts capable of being called “persecution” will never satisfy the Convention definition in times of civil war.  If it were the policy of one side in a civil war to commit genocide against the members of another tribe, members of that other tribe may well be able to succeed in showing they have a “well founded fear of persecution for a Convention reason” notwithstanding that policy of genocide is implemented in times of civil war.

3.                  The third matter is the fact that two periods of imprisonment complained of by the Applicant arose out of attempts on the part of the Hilibi to conscript Mr Mohamed in Hilibi forces.  In Immigration and Naturalization Service v Elias-Zacarias (1992) 502 US 478 the Supreme Court of the United States held that punishment arising from refusal to fight for a guerrilla movement was not necessarily persecution for a Convention reason.  That must be so.  Persecution for failure to be conscripted is not necessarily persecution for a Convention reason.  Resisting conscription may arise for reasons such as fear of combat.  Imprisonment for resistance may be motivated by punishment for failing to comply with a lawful obligation to join not for a political view or arising from membership of a group.  But it does not follow from this case that in all circumstances persecution for failure to accept conscription might not amount to prosecution for a Convention reason.  All the facts must be considered.  It will be for the Tribunal to conclude that Mr Mohamed’s imprisonment for avoiding conscription evoked a well founded fear then of persecution, if so whether consideration of that fear was, at the date of application, well founded.

I would, for the reasons earlier given, set aside the Tribunal’s decision and remit the application to a tribunal differently constituted for rehearing, with or without new evidence, and in accordance with law.

Associate:

Dated:              11 May 1998