FEDERAL COURT OF AUSTRALIA

IMMIGRATION - review of decision of Refugee Review Tribunal – factional fighting between clans in Somalia – applicant a member of the Ashraf clan in an area controlled by the Habr Gedir clan – allegation that Tribunal failed to refer to or deal with independent evidence in support of applicant’s claim for refugee status – material not referred to by Tribunal not in fact supportive of applicant’s claims – findings of Tribunal open on evidence before it – allegation that Tribunal failed to act “according to substantial justice and the merits of the case” – discussion of Eshetu v Minister for Immigration and Multicultural Affairs – alleged failure to accord “substantial justice” does not give rise to an available ground for review – Eshetu concerned only with procedural failures - allegation that Tribunal erred by requiring the applicant to demonstrate a course of systematic discrimination against the applicant – discussion of “systematic conduct” – no error of law – whether the Ashraf community are harassed to such a degree as to constitute persecution is a question of fact to be determined by the Tribunal

Migration Act 1958 (Cth), ss 420, 430, 476(1)(a), (e)

Abdalla v Minister for Immigration and Multicultural Affairs (FCA, unrep, Burchett, Tamberlin and Emmett JJ, 20/8/98), referred to

Mohamed v Minister for Immigration and Multicultural Affairs  (FCA, unrep, Hill J, 11/5/98), applied

Applicant A v Minister for Immigration and Multicultural Affairs  (1997) 142 ALR 331, applied

Eshetu v Minister for Immigration and Multicultural Affairs  (1997) 145 ALR 621, considered

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

Periannan Murugasu v Minister for Immigration and Ethnic Affairs  (FCA, unrep, Wilcox J, 28/7/87), applied

Jahazi v Minister for Immigration and Ethnic Affairs  (1995) 61 FCR 293, applied

Adan v Home Secretary [1998] 2 WLR 702, applied

Sun Zhan Qui v Minister for Immigration and Multicultural Affairs (1997) 151 ALR 505, not followed

RUKHIYAH FARRAH MOHAMMED v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 357 of 1998

MADGWICK J

SYDNEY

3 SEPTEMBER 1998

SHORT MINUTES OF ORDERS

THE COURT ORDERS THAT:

1.         The application is dismissed.

REASONS FOR JUDGMENT

HIS HONOUR:  This is a review of a decision of the Refugee Review Tribunal (“the Tribunal”), in which the Tribunal affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa, on the basis that the applicant is not a person to whom Australia owes protection obligations under the Convention Relating to the Status of Refugees, as amended by the 1967 Protocol (“the Convention”).

Background

The applicant is a national of Somalia.  It is common knowledge that Somalia has been involved in civil war and dislocation since 1990.  There has been no central government in Somalia since the head of government, Siyaad Barre, fled the country in 1991.  The pattern in Somalia is that the dominant clan in an area controls it.  There is sporadic inter-clan or factional fighting between the controlling groups.

The applicant’s family lived in Mogadishu and are members of the Ashraf clan.  Mogadishu is controlled by the Habr Gedir people, a part of the Hawiye clan.  The Ashraf, although respected as religious leaders, are a minority group in Mogadishu and are subject to the control of the Habr Gedir.  Once conflict began, many of the Ashraf people fled the Mogadishu area, but the applicant’s family remained. 

Prior to the civil unrest, the applicant’s father had established himself as a successful trader in foodstuffs.  After the conflict began, the applicant’s father paid money to Habr Gedir neighbours which enabled him to continue his business under their protection. 

During periods when the fighting between the Habr Gedir and other sub-clans of the Hawiye became too dangerous, the applicant’s family would move away from Mogadishu to Afgrey until the fighting subsided, and then would return to continue the business.  During one of these trips in 1993, the applicant and her family were brutally attacked.  The applicant was wounded with a knife and raped.  The applicant believed her attackers to be from the Hawiye clan, and that the attack was motivated because her family were not of the same clan as the attackers.  The family later returned to Mogadishu when the situation became more stable.

The arrangement between the applicant’s father and his Habr Gedir neighbours continued until mid 1997, when the applicant’s father and two brothers were killed during a “home invasion” style robbery.  The applicant also believed this attack to be clan-motivated, and to have been perpetrated by Habr Gedir people.  After that terrible incident, the applicant’s mother advised the applicant to leave the country and seek asylum in Australia. 

The applicant arrived in Australia on 17 November 1997.  On 1 December the applicant lodged an application for a protection visa.  In her application, the applicant stated:

“I left Somalia because my clan (Ashraf) have been constantly been (sic) targeted by the Hawiye clan.  As a result, my father ... and my two brothers .... were killed by the Hawiye clan about 6 months ago.  So I left Somalia to seek protection in Australia.

Since 1991 I escaped Mogadishu to Afgrey several times because my clan was constantly attacked by the Hawiye clan.  In 1993 I was attacked by the Hawiye clan on my way to Afgrey.  One of the Hawiye clan slashed my foot with a knife.  But the situation in Afgrey was similar to the situation in Mogadishu.  So we stayed in Afgrey for a short time.  It is very dangerous to travel from one region to another region in Somalia.  When things became really bad I decided to leave.  I travelled to Kenya, then to Australia through Italy with a false Somali passport.  I could not register as a refugee in Kenya because of problems in the refugee camps.

...

I could not return to Mogadishu or any part of Somalia because it is not safe.  Besides I have never lived in any other part of Somalia except Afgrey and Mogadishu.  In addition, there is no central authority in Somalia.  Therefore, as a Somali citizen, I have no right.  The Shari’at punishment in Somalia is very harsh.  I will be discriminated and subjected to the ridicule and oppression of Shari’a law and fundamentalist Muslims and mistreated because I am [a woman].  I will likely be killed and systematically be discriminated and mistreated (the same way my father and brothers were killed) because clan membership and religion.  Although everybody is hoping for the best in Somalia, there is no guarantees.”

On 20 January 1998 the applicant was notified of the delegate’s decision that she did not satisfy the requirements of the Convention for a protection visa.  The applicant then lodged an appeal with the Tribunal on 27 January.

Proceedings before the Tribunal

A “refugee” is defined in the Convention to be a person who:

“owing to a 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.”

The relevant question for determination by the Tribunal was whether the applicant had a “well founded fear of being persecuted for reasons of race” or “membership of a particular social group”. 

The applicant gave evidence before the Tribunal on 31 March, and the reasons for the Tribunal’s decision affirming the delegate’s decision were given on 16 April 1998.  In those reasons, the Tribunal summarised the applicant’s claims and evidence based on interviews conducted by Departmental officers, the applicant’s evidence before the Tribunal, and various independent country reports concerning the prevailing conditions in Somalia.  The Tribunal continued:

“FINDINGS AND REASONS

The Applicant has claimed to have left Somalia and sought protection because of a fear of persecution for reasons of her membership of her clan group and her religion.

In determining this matter I have considered the consistency and the motivation for the application.  I have considered the Applicant’s accounts at the airport, her written application, her oral evidence at the departmental interview and that at the Tribunal hearing.

I have also considered the Applicant’s account and the independent material before me to determine whether or not any claimed fear is well-founded and for a Convention reason.

The Nature of the Applicant’s Claims

The Applicant had the opportunity to seek asylum in Italy but did not do so.  Information in DFA cable RO55562 of 22 November 1993 and put to her by the departmental officer advises that Somalis can remain in Italy on one year renewable visas.  She said that her reason for not seeking asylum in Italy was because there was no work there.  She is reported as stating that she came to Australia to support her family in Somalia.  She later said that her main reason was to seek protection.  Since she chose not to apply for protection in Italy it is reasonable to conclude, at least, that her motivation for coming to Australia was not solely for protection.

She responded to questions from an immigration officer at the airport.  According to that officer’s report she gave no answers to indicate that her reasons for wanting to remain in Australia were Convention related.  It appears that she was given the opportunity through an interpreter to clarify her responses.  It appears from that report that she was aware that her claims may not be such that an application for a protection visa would succeed and that, in desperation, she sought help from the interpreter.

It is not reasonable to expect that a newcomer to the country would understand the legislative framework of the Convention.  However, the Applicant, by her own account, had planned for some time to come to Australia to seek protection.  That being the case, it is reasonable to expect that she would have been in a position to state the basis for her fear and the reason for any harm she anticipated.  Despite what appears to have been a number of opportunities to do this at the airport she failed to do so.

Having considered her account I am of the opinion that, over a period of time, she has sought ways to bring her matter within the ambit of the Convention.

While the Applicant’s account has become more detailed over time core details remain consistent.

For the purposes of this decision I have accepted the issues below as findings of fact and considered those facts to determine whether or not any fear she has is well-founded and for a Convention reason:

(1)     The Applicant was born and lived in Mogadishu until the latter half of 1997.

(2)     She and the other members of her family are of the Ashraf (Sharif) clan.

(3)     The Ashraf/Sharif clan is a small clan which is respected for its religious character.

(4)     The Applicant’s father was known to be a wealthy merchant who maintained his status through the civil conflict as a merchant by entering into an arrangement with members of the majority clan in his area.

(5)     The Applicant and her family were attacked by a group of ten men in 1993 when they were leaving Mogadishu to seek refuge from civil strife in an area outside of that region.

(6)     The Applicant’s father and two brothers were killed in an incident in 1997 when a group of people broke into the family property and looted it.  They were killed when they attempted to intervene.

(7)     The Applicant’s mother advised her to leave Somalia and seek asylum in Australia.  The Applicant’s remaining siblings and her mother remained in Mogadishu.

(8)     The Applicant is a devout Muslim, of the Sunni faith.  Most Somalis are of that same faith.

(9)     There is an extremist Islamic group called Itihad which is involved in terrorism.  The Applicant has provided no account that she faced any treatment amounting to persecution at the hands of members of this group.

(10)   The Applicant left Africa and entered Italy.  She did not seek asylum there but paid an agent to assist her to travel to Australia on false documentation.

Consideration of Past Harm

The Applicant has provided a credible account of her family’s fate following the onset of clan based civil unrest in or around 1991.

...

I have considered the Applicant’s circumstances up until the time of the attack [in 1993].  Although she has claimed that her family faced harassment because of their clan membershipI find that this is not supported by the independent evidence concerning her clan which is respected in Somalia, the opinion of an expert that they are not targeted for reasons of membership of that clan or her own account.

I accept that members of the host clan group where she lived may have taken advantage of her father’s plight in not being able to obtain cargo independently and had to rely on their support.  However, she has given no evidence or account of any harassment other than this possible exploitation.  Such exploitation does not, of itself, indicate that it was for a Convention reason.  The only motivation it indicates with any degree of certainty is one of personal financial gain for those exploiting.

By her own account the family were relatively wealthy and were also able to leave Mogadishu if they wanted to.  However, they continued to live in Mogadishu until 1997 and suffered no serious harm or harassment apart from the two, unrelated incidents claimed by the Applicant.

When the Applicant left Somalia the rest of the family, who are members of the same clan remained in Mogadishu in the Habr Gedir area rather than seeking protection elsewhere.  This indicates to me that they did not fear serious harm at the hands of the Habr Gedir clan group.

The Applicant has given no account of systematic or systemic harassment for reasons of her clan membership.  The independent material concerning the Ashraf or Sharif clan states that it is a respected clan.  By the Applicant’s own account even people outside the clan may use the indicator ‘Sharif’ because of the status it bestows.  I am of the opinion that non members of the clan would not opt to indicate membership of the clan if it put them at risk.  I find that the Applicant and her family were not targeted for reasons of their clan membership.

I conclude that the attack in 1993 was random and opportunistic and not for a Convention reason.  As tragic as that attack was I have taken into account that it occurred at a time of conflict and in the absence of any significant rule of law.

Following the incident the Applicant and her family returned to Mogadishu and resumed the relative stability that existed in the absence of fighting between larger clans.  This leads me to conclude that the attack was random and not indicative of any systematic course of conduct.

In regard to the attack, looting and killing at her family’s property I find no relationship between the incident in 1993 and this one.

The nature of the incident which began as a break in with looting leads me to find that the motivation was one of theft.  I accept the Applicant’s speculative claim that the people involved were probable Habr Gedir.  Since the majority of people in that area of Mogadishu were members of the Habr Gedir clan it follows that the likelihood of the people committing the robbery were, themselves, Habr Gedir was high.  However, even if I accept that they were

members of the Habr Gedir clan it does not follow that the only basis for such an attack was clan related.

Any speculation that this was the case is fanciful.  The Applicant has based her conclusions that the incident was clan based on the fact that her father and two brothers were killed and that her Habr Gedir neighbours would not return money that she claims her father gave them before his death.  Killings in the course of a robbery unfortunately are not uncommon.  The Applicant claimed her father and brothers were killed when they tried to stop the intruders from looting.  If killing for reasons of clan membership was the motivation the intruders were clearly in a position to kill the entire family if they had chosen to do so.  By the Applicant’s own account they only killed those who tried to intervene.  I find the killings were the unfortunate consequence of her father and brothers’ attempts to protect their property and prevent the looting.

Similarly, if the neighbours and former protectors of the Applicant’s father kept money which he had given them prior to his death this, of itself, does not lead to a conclusion that it was for reasons of clan differences.  Rather the logical conclusion is that these people, who had profited from the agreement between them and the Applicant’s father for the past seven years, opportunistically kept the money as it was the last money they would receive from that arrangement since their former partner had been killed.

To determine that these incidents are evidence of persecution for reasons of clan membership it is not enough that the Applicant belongs to a different clan to that of her attackers or the killing was for that reason.  …

Having considered the two unrelated incidents I find that neither incident provides evidence of persecution for reasons of a particular social group, being clan membership, but for other motivations unrelated to the Convention.

Prospective Harm

The situation in Somalia has not changed appreciably since the Applicant left in 1997.  As the Applicant’s representative said it has been argued that the situation has improved but the overall situation remains unstable.

I accept that there is a high level of violence and lawlessness in Somalia.  I cannot rule out the possibility of random and opportunistic attacks occurring in Mogadishu.  However, for the purposes of this decision I am limited in my powers to determine whether or not the Applicant faces a ‘real chance’ of persecution for a Convention reason.

As discussed above I find that she was not targeted for any Convention reason in that time.  Even if I accept the representative’s submission that there has been no significant change in the country I find that there is no ‘real chance’ that the Applicant would face persecution for reasons of her membership of the Ashraf clan before she left Somalia and there has been no significant change this leads me to find there is no greater chance now or in reasonably foreseeable future than there was then.”

Grounds for review

It was the applicant’s submission that the Tribunal failed to refer to or deal with important evidence that the applicant considered to be in favour of her case.  The applicant argued that, by failing to deal with this evidence, the Tribunal breached s 476(1)(a) in that it did not observe the “procedures” said to be required under s 420 or s 430 of the Act, or both.  Alternatively, it was submitted that the Tribunal’s decision involved an error of law, in that the Tribunal had required the applicant to demonstrate that there had been “systematic or systemic harassment” of her family, and that that harassment had to amount to persecution of a kind solely for a Convention reason.

The relevant legislative provisions are as follows:

“420        (1)   The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

                (2)     The Tribunal, in reviewing a decision:

                (a)     is not bound by technicalities, legal forms or rules of evidence; and

                (b)     must act according to substantial justice and the merits of the case.

430          Where the Tribunal makes its decision on a review, the Tribunal must 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)     refers to the evidence or any other material on which the findings of fact were based.

476          (1)     Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

                (a)     that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

                ...

                (e)     that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

                ...

                (2)     The following are not grounds upon which an application may be made under subsection (1):

                (a)     that a breach of the rules of natural justice occurred in connection with the making of the decision;

                (b)     that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.”

Section 430: a failure to give reasons

The applicant’s main contention is that, in reaching the conclusion that she was not at risk of persecution because of her membership of the Ashraf clan, the Tribunal failed to refer to or deal with important evidence that was before the Tribunal and which was in favour of the applicant’s case.  The applicant disputes that her evidence, parts of which the Tribunal found to be credible, supported the Tribunal’s conclusion that the applicant’s own account of events provided “no account of systematic or systemic harassment for reasons of clan membership”.  It was argued that the applicant’s evidence was consistent with the view that minority groups, including Ashraf, were a target for persecution. 

There might be some basis for a view that, for example, the applicant’s father was exploited because of his vulnerable position as an Ashraf in a Habr Gedir controlled district.  However, it is not sufficient for the purposes of judicial review that the Court may have taken a different view of the applicant’s evidence than that taken by the Tribunal.  It must be shown that the finding which the Tribunal made in respect of the applicant’s evidence was not reasonably open on the material before it.  The Tribunal dealt with the applicant’s evidence in some detail, and it was open to the Tribunal to reject parts of the applicant’s evidence because of what the Tribunal perceived to be the applicant’s attempt to improve her case to fit within the Convention definition.

The position is not so simple as to the independent evidence to which the Tribunal had regard.  The Tribunal claimed support for its rejection of the applicant’s claims of persecution because of clan membership on the basis that a number of independent reports did not support those assertions.  Those independent reports concerned the general position of Ashraf people within Somali society.  A report prepared by the Canadian Immigration and Refugee Board (1 August 1996) was quoted by the Tribunal:

“... the Ashraf are to be found throughout Somalia [and] are accorded some prestige by other clans because of their reputation for learning and their religious probity.  Ashraf are often found living among various clans.  The term ‘Ashraf’ means ‘respected’ in the Somali language, but the Ashraf would have suffered along with most of the other clans because of the indiscriminate nature of the violence during the civil conflict.

A professor of history specialising in Somalia at the University of Pennsylvania in Philadelphia corroborated the above information in a telephone interview on 31 July 1996.”  (emphasis added)

The Tribunal considered that advice to be consistent with an earlier report from the same source released in January 1990:

“... According to the manager of COSTI, Centre for Italian Scholastic and Technical Organisations located in Toronto, the name of the tribe in question is the Asharaf tribe.  A member of this minor group is called Sharif.  They claim to be descendants of the prophet Mohammed and are very religious.  Members of this family are scattered all over Somalia, with a concentration living in Mogadishu.  They all use ‘Sharif’ as their first name to identify their religious dedication.

In the early days, the Asharaf backed Siyaad Barre until the promulgation of the Religious Family Law in 1974. Religious leaders were against the new law giving women equal inheritance rights.  Consequently, Islamic teachers and leaders voiced their opposition to Siyaad Barre’s move to make Somalia a secular state.  It was for this reason that ten Sheikhs were publicly executed by the regime... Many of Somalia’s religious teachers are Asharaf supporting the religious affairs financially and actively...”

It will be recalled that the Tribunal concluded:

“I have considered the Applicant’s circumstances up until the time of the attack.  Although she has claimed that her family faced harassment because of their clan membership I find this is not supported by the independent evidence concerning her clan which is respected in Somalia, the opinion of an expert that they are not targeted for reasons of membership of that clan or her own account.”

It was submitted that the references to the “independent evidence” and the “opinion of an expert” were not reasonably open to the Tribunal.  The applicant gave evidence on two occasions that she was afraid to use the Sharif name because people would associate her with the Ashraf clan.  The evidence recited above does not refute that claim, but simply points in terms to the fact that the Ashraf were a respected tribe.  It does not necessarily follow that a clan which is ordinarily well-respected for its religious observance and leadership might not be persecuted as a minority group in a state of lawlessness in which there is no organised State to offer protection to the vulnerable.  Nor does the statement that the “Ashraf would have suffered along with most of the other clans because of the indiscriminate nature of the violence during the civil conflict”, in the context in which it was made, positively exclude a reasonable chance that the applicant’s assertions of persecution for reasons of clan membership were credible or likely.  As a matter of fairness and logic, it cannot be said that the expert’s corroboration of that independent report regarding the general status of the Ashraf in Somalia, was positively conclusive of the Tribunal’s finding that the Ashraf people, of which the applicant and her family were members, are not persecuted for a Convention reason. 

Nevertheless, the Tribunal member was making the negative point that the applicant’s claims were “not supported by” the materials in question.  That was in a context where the Tribunal member had reservations, based on what he saw as an “improvement” of the applicant’s story, about her credibility.  It would have been an inference reasonably available to the Tribunal from the material in question that Ashraf people were unlikely to be singled out as such for ill-treatment by members of the larger clans (or subclans) such as the Habr Gedir.  Despite initial concerns I had, it does not seem to me that the Tribunal carried the use of these materials beyond the bounds of their reasonable usefulness.

The Tribunal also took into account parts of a report from the US State Department on Human Rights (January 1998) regarding religious and legal practices in Somalia.  However, it was said that the Tribunal failed to have regard to the following evidence contained in that report which, it might be thought, could have supported the applicant’s case:

“National/Racial/Ethnic Minorities

More than 80 percent of the people share a common ethnic heritage, religion, and nomadic culture.  The largest minority group, Bantu Somalis are descended from slaves brought to the country about 300 years ago.  In virtually all areas, members of groups other than the predominant clan in that area are excluded from effective participation in governing institutions and are subject to discrimination in employment, judicial proceedings, and access to public service.

Members of minority groups are subjected to harassment, intimidation, and abuse by armed gunmen of all affiliations.” 

I am mindful that the Tribunal is not obliged to deal expressly with every item of evidence before it: Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 594 per Kirby J. In Mohamed v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, unreported, Hill J, 11 May 1998) his Honour said of s 430:

“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.”

In considering whether there has been a “substantial failure” to comply with the requirements of s 430, the Court is not to undertake a minute examination of the Tribunal’s reasons “with an eye keenly attuned to the perception of error”:  Muralidharan v Minister for Immigration and Ethnic Affairs and Anor (1996) 136 ALR 84 at 94.  The Court must “beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision”:  Wu Shan Liang v Minister for Immigration and Ethnic Affairs (1996) 185 CLR 259 at 272.

In my opinion, it does not matter whether the Tribunal’s failure to address this evidence was merely a question of factual preference, which did not need specific express justification.  Let it be assumed that the Tribunal was not entitled to have regard to parts of that report which, in its opinion, tended to refute the applicant’s claims, without also having regard to those parts which tended to support them.  Let it also be assumed that the Tribunal was obliged to deal with such evidence in its reasons, and in such a way that, had the Tribunal put its mind to it and rejected the evidence, its reasons for doing so would be sufficiently cogent to support a conclusion that the material was not reliable or relevant.  While this may usually be required, it does not matter in this case because, on analysis, that material does not support the applicant’s case. 

Her case is that she reasonably feared persecution for reasons of membership of a particular social group.  The social group suggested is the Ashraf clan.  But none of the material in question supports the view that members of that clan are singled out for ill-treatment for reasons of their membership of that clan.  It is not because they are Ashraf that they may be discriminated against but because, on the applicant’s own case, in the applicant’s precinct within Mogadishu, they are not Habr Gedir.  It does not appear possible to identify any other “particular social group” as being relevant:  there is nothing to indicate that persons who are simply not of the Habr Gedir clan (or subclan) within a particular Mogadishu precinct are a “cognisable” group within society (c.f. Applicant A v Minister for Immigration and Multicultural Affairs (1997) 142 ALR 331 at 341 per Dawson J).  Further, it is only the fact of their persecution which might cause them to have any of the characteristics of such a group, and that is not enough:  the group must be identifiable as such before the persecution:  ibid.

Indeed, on a closer analysis of both the material accepted by the Tribunal and also that argued as being relevant by the applicant, the position is even less hopeful for the applicant.  She ultimately fears harm not really because she is not of the Habr Gedir clan but because she is not of the dominant clan in her own area.  Such reason for fearing harm appears to apply generally to many people throughout Somalia.  Habr Gedir people themselves living in an area not controlled by their clan might well have the same fears as the applicant.  Thus, there

is even less of any distinguishing feature of a “particular social group” in the collection of people who fear oppression than if there were only one clan of overlords.

Section 420: failure to act according to substantial justice and the merits of the case

The Full Court of this Court considered whether the requirements of s 420 constitute a “procedure ... required by this Act” in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621.  By majority, (Davies and Burchett JJ, Whitlam J dissenting) the Court held that s 420 did establish procedures to which s 476(1)(a) and (e) applied.  In that case, Davies J stated at 625-6:

“The phrase ‘substantial justice and the merits of the case’ does not, of course, empower a tribunal to make a decision otherwise than in accordance with law: see Collins v Repatriation Commission (1980) 48 FLR 198.  However, that is not to say that the words have no substantive, as distinct from procedural, effect......

In some decisions, a view has been taken that, if an error has been identified which would amount to a breach of the rules of natural justice, if those were applicable, or which involved the making of a decision that was so unreasonable that no reasonable person could have so exercised the power, which is a basic ground of review in judicial review proceedings, then consideration of that error is precluded by s 476(2)....

In my opinion, that approach is wrong.  The Migration Act has substituted for the rules developed by the common law and the rules incorporated in the ADJR Act rules of its own.  Section 420 provides that the mechanism of review shall be ‘fair, economical, informal and quick’ and shall be directed to arriving at the ‘substantial justice and merits of the case’. If the procedures of the tribunal have not met that prescription, the decision of the Refugee Review Tribunal may be set aside.  It matters not that the breach may have also amounted to a breach of the rules of procedural fairness developed by the common law.  The matter is to be determined not by the common law but by the words of the statute.  A breach of the statute is not saved by s 476(2).”

The current view of s 420 generally taken by judges of this Court remains, in my respectful opinion, unsatisfactory.  For myself, I do not agree with the majority opinion in Eshetu and regard that opinion as obiter dicta.  I gave my reasons for this in Drekevutu v Minister for Immigration and Ethnic Affairs (unreported, 11 August 1997).  However, special leave has recently been granted by the High Court in Eshetu and, at least until such time as that appeal is determined, for comity’s sake I intend to follow it. 

However, Eshetu should not be understood to imply that the merits of a decision may be challenged on the ground that it did not accord with substantial or natural justice.  Davies J made as much clear in his subsequent judgment in Guo Wei Zhe v Minister for Immigration and Multicultural Affairs (No 2) (Federal Court of Australia, unreported, 24 February 1998), in which his Honour said:

“There are procedural requirements that a Refugee Review Tribunal must act in accordance with ‘substantial justice and the merits of the case’ per s 420(2)(b) of the Migration Act.  The procedure adopted by the Tribunal must be directed to ensuring that a decision in the case will deal with the substantial justice and the merits of the case.  If the Tribunal does not act in such a way to permit that to be done, it will breach one of the procedures which the Act prescribes.

However, the merits raised … go to the merits of the case, not to matters of procedure.  The Migration Act does not provide a ground of review that a decision is ‘substantially unjust’.  If the procedures are unjust than the ground provided by s 476(1)(a) may be relied upon.  If what is alleged concerned [certain types of errors of law], then s 476(1)(a) may be relied upon.”  (emphasis added)

In Sun Zhan Qui v Minister for Immigration and Multicultural Affairs (1997) 151 ALR 505 at 549, Wilcox J held that the Tribunal had failed to fulfil its obligation under s 420 in that, among other things, the Tribunal gave no weight to evidence which strongly supported the applicant’s claims, and, applying the principle in Eshetu, the decision should be set aside under s 476(1)(a).  With respect, and with regard to Davies J’s comments in his subsequent judgment, I disagree with his Honour that such a failure amounts to a remediable breach of s 420.  There was nothing in this case to suggest that the Tribunal had erred as to any procedure.  On the applicant’s argument, the Tribunal did, however, fail substantively to deal with the merits of the applicant’s case by not taking a supposedly highly relevant part of that information available into account.  That is an entirely different matter to what is required by ss 476(1)(a) and 420 in the Eshetu view.  To consider that the requirement for substantial justice, without reference to the procedural aspect of s 420 fixed on (according to Eshetu) by s 476(1)(a), opens the way for review is, with respect, to ignore s 476.  I do not understand even Eshetu to be saying that this is the correct approach.

The argument was also raised that the Tribunal failed to act according to substantial justice and the merits of the case in that it relied on the two documents outlined above without giving the applicant an opportunity to consider and respond to that information.  This argument can shortly be dealt with.  The substance of those documents was fairly enough put to the applicant during an interview with a Departmental officer and before the Tribunal.  Further, the applicant had been made aware, through her representative, of the existence and import of that material, sufficient to put her on notice to make further inquiry.  The documents were not hidden from her – she could have had regard to them.

Section 476(1)(e)

The applicant’s argument for review under s 476(1)(e) is essentially the same as was before Hill J in Mohamed.  In that case, the Tribunal had found that, although the applicant and his family had been subject to attacks where clan status may have been a contributing factor, the evidence did not demonstrate that the applicant had been a victim “of a course of systematic action directed against him for reason of his sub-clan” sufficient for the purposes of the Convention; rather, those incidents suffered by the applicant and his family were “sporadic or random”.  His Honour referred to the High Court’s decision in Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429-30, in which McHugh J 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 involves 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 a 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 harms short of interference with life or liberty may constitute ‘persecution’ for the purpose of the Convention and Protocol.”

Hill J commented:

“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.”

That is undoubtedly the correct approach.  However, in this case, I do not believe that the Tribunal required the applicant to demonstrate that there had been systematic harassment against her or her family in particular; but had concluded that, on the basis of the evidence from the applicant and from other sources, there was no evidence to suggest that the Ashraf people were subject, as such, to systematic harassment.  The Tribunal said in its reasons:

“The Applicant has given no account of systematic or systematic harassment for reasons of her clan membership.  The independent material concerning the Ashraf or Sharif clan states that it is a respected clan.  By the Applicant’s own account even people outside the clan may use the indicator ‘Sharif’ because of the status it bestows.  I am of the opinion that non members of the clan would not opt to indicate membership of the clan if it put them at risk.  I find that the Applicant and her family were not targeted for reasons of their clan membership.

I conclude that the attack in 1993 was random and opportunistic and not for a Convention reason.  As tragic as that attack was I have taken into account that it occurred at a time of conflict and in the absence of any significant rule of law.

Following the incident the Applicant and her family returned to Mogadishu and resumed the relative stability that existed in the absence of fighting between larger clans.  This leads me to conclude that the attack was random and not indicative of any systematic course of conduct.”

That, of itself, does not indicate an error in the Tribunal’s approach.  The Tribunal relied upon a decision of Wilcox J in Periannan Murugasu v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, unreported, 28 July 1987), in which his Honour said:

“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 involved in incidental violence as a result of civil or communal disturbances.... 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 the community may not have a well founded fear of being persecuted.  Questions of degree are involved, both as to the extent of the harassment which exists in a particular case and as to the continuity of that harassment, so as to answer the question whether it amounts to persecution.  Conclusions of fact have to be made ...”

A similar approach was taken by the House of Lords in Adan v Home Secretary [1998] 2 WLR 702 at 713:

“I conclude.... 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.... 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.”

After I had reserved this decision, a Full Court of this Court gave judgment in Abdalla v Minister for Immigration and Multicultural Affairs (unreported, Burchett, Tamberlin and Emmett JJ, 20 August 1998).  The Full Court held that a person could be persecuted, in the relevant Convention sense, where the alleged persecution arose out of communal violence.  The Full Court distinguished on the facts a contrary finding by the House of Lords in Adan.  However, the Full Court made it clear that whether such violence amounts to persecution “depends upon whether there is a purpose behind the recurring pattern which is referrable to a Convention ground”.  In that case, the applicant, who was also from Somalia, was a member of the same clan as that of the former President.  The Full Court held that, where there was evidence that the applicant’s clan had been targeted because of the connection with the former regime, that was within the concept of persecution. 

However, that is not the situation here.  Unlike Abdalla, the Tribunal was not saying that communal violence arising from civil war could not, in general, amount to persecution for a Convention reason.  Furthermore, unlike the situation in Abdalla, there was no evidence before the Tribunal to suggest that there was any reason why the Ashraf would be specifically targeted in such a way that it could be said that they were persecuted for a Convention reason.  The Tribunal’s conclusion, and an available inference from some of the evidence, was that, in fact, the Ashraf were less likely to be specifically targeted because they appeared to hold a position of respect in the general community.

It is not for the Court to reach a factual conclusion as to whether the material before the Tribunal supports a conclusion that the Ashraf community in Mogadishu were, because of their own clan affiliation, harassed to such a degree that it could be said to amount to persecution, or whether the applicant and her family were, for other than a Convention reason, unfortunate victims of civil war: that is a question for the Tribunal.  But I see no legal error in the Tribunal’s approach to the law in making the finding that it did.

Nor do I consider that there is any merit in the argument that the Tribunal required the applicant to demonstrate that she had been persecuted solely for a Convention reason in order to qualify for refugee status.  In Jahazi v Minister for Immigration and Ethnic Affairs (1996) 61 FCR 293 at 299-300, French J held:

“The question 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.”

There is nothing to suggest that the Tribunal proceeded to evaluate the applicant’s claims on the basis that a Convention reason needed to be the sole reason for the act of persecution as claimed.

Conclusion

Despite what one might consider the tragic circumstances of the applicant and her appalling suffering, I find no error of law on behalf of the Tribunal and the application is dismissed.

Associate:

Dated:              3 September 1998