FEDERAL COURT OF AUSTRALIA

Mohamed v Minister for Immigration & Multicultural Affairs

[1999] FCA 371

IMMIGRATION – review of decision of Refugee Review Tribunal – whether error of law in interpretation or application of test for persecution – applicant member of minority clan in Somalia – situation of civil conflict – whether applicant had been required to show “a course of systematic conduct” directed against his clan – whether other error of law – whether Tribunal failed to act according to substantial justice and merits of the case

Migration Act 1958 (Cth), ss 420(2)(b), 476

Abdalla v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 11 distinguished on one aspect and applied to another

Mohamed v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia, Hill J, 11 May 1998, Judgment No 485 of 1998) distinguished

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

Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543 applied

Chen v Minister for Immigration and Multicultural Affairs [1999] FCA 34 applied

Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 referred to

MOHAMED MAIALIN MOHAMED v MINISTER FOR IMMIGRATION

AND MULTICULTURAL AFFAIRS

WG 146 of 1998

CARR J

1 APRIL 1999

PERTH

THE COURT ORDERS THAT:

1.         The decision of the Refugee Review Tribunal dated 31 August 1998 be set aside.

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

3.         The respondent pay the applicant’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Introduction

1                     This is an application, under s 476 of the Migration Act 1958 (Cth) (“the Act”), to review a decision of the Refugee Review Tribunal, made on 31 August 1998, affirming the decision of a delegate of the respondent, made on 14 May 1998, to refuse to grant the applicant a protection visa.

2                     The Tribunal’s task was to satisfy itself whether the applicant was a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”), and in particular whether the applicant was a refugee within the meaning of Article 1A(2) of the Convention.  Article 1A(2) of the Convention defines a refugee 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.”

3                     The applicant (now aged 27) who is a citizen of Somalia, arrived in Australia on 18 November 1997.  On 26 November 1997 he lodged an application for a protection visa with the respondent’s Department. 

The Tribunal’s findings and reasons

4                     The Tribunal accepted the applicant’s evidence which included the following.  The applicant belongs to the Shiqaal clan, although his mother was from the Dir clan before she married.  He was raised in Mogadishu where he attended school from 1977 until about 1990.  His father had a retail clothing business in Mogadishu.  In 1991, some months after the outbreak of civil war in Somalia, the applicant fled from Mogadishu with his father and mother as the war became more intensive and there was looting and killing.  They travelled to Shalanbood, but when fighting also became more intensive in that area they fled to Jalalaqsi where the applicant had a maternal uncle.  The maternal uncle was from the Dir clan.  The family remained in Jalalaqsi from the end of 1991 until around March 1994.  There was not much conflict in that area at that time.  In August 1993 the applicant together with his wife and father were walking on their way to his maternal uncle’s home when they were stopped by Hawiye clansmen who asked the identity of their clan.  His father explained that they belonged to the Shiqaal clan.  Some of the Hawiye clansmen grabbed the applicant’s wife and while his father was attempting to protect her, his father was killed.  The Tribunal said that it did not accept that the applicant’s father was shot because of his clan identity.  It referred to the applicant’s own evidence that the shooting occurred only when the applicant’s father attempted to protect the applicant’s wife from being taken away and harmed.  The Tribunal concluded that if the Hawiye clansmen were indeed seeking out Shiqaal clanspeople in order to kill them or harm them, all three would have been killed at that time as the applicant had said that his father had identified them as such.  The Tribunal found that as horrific and frightening as this incident was, it was as a result of the general lawlessness and warfare being conducted in Somalia, but not for reasons of the applicant’s clan membership.  The applicant’s evidence was that following this incident, he continued on to his maternal uncle’s home which was about 10 minutes away and that he and his wife remained in Jalalaqsi until March 1994 i.e. about seven months.  The Tribunal found that the fact that the applicant remained in the area was inconsistent with a fear of persecution.  It noted the applicant’s evidence that he and his wife were in shock and did not know where to go.  However, the Tribunal referred to the applicant’s own evidence that his uncle was well-known in the town, was married to a Hawiye woman and was negotiating with the elders from the Hawiye clan.  The Tribunal stated that it was clear that during this time the applicant had protection and for that reason was able to remain in Jalalaqsi.  The applicant returned to Mogadishu in about March 1994 and re-established the retail clothing business.  The Tribunal said that it found this behaviour and these activities also to be inconsistent with a fear of persecution for reason of his clan membership, particularly in the light of the independent evidence, which the Tribunal accepted, that Mogadishu was controlled by different sub-clans of the Hawiye clan.  There was another incident upon which the applicant relied.  In December 1994 the applicant’s home was attacked by the Hawiye.  He was shot in the shoulder and abducted.  He spent one day and night in captivity and a ransom was demanded.  The applicant’s evidence was that every other shop owner had been contributing money “to the fighting”, but that he had not.  The applicant was released upon payment of a ransom and then spent a day and night in hospital.  While he was in hospital, his shop was looted and the boy who was minding the shop was killed.  The Tribunal said that it did not accept that the applicant was targeted in this way for reasons of his clan membership, but that it was a matter of extortion and criminal acts due to the general lawlessness in Mogadishu.  The Tribunal found that the applicant had a business and he was considered to be someone who could pay.  It found that this attack on the applicant was not related to his clan membership.  The Tribunal further found that the applicant’s experiences and any harm which he suffered had been as a result of the clan conflict and warfare that was continuing in Somalia and in particular in Mogadishu.  The Tribunal relied upon a considerable volume of independent evidence to conclude that the Shiqaal may be small, but its members are influential and have strong connections with the clans controlling the Mogadishu area.  The Tribunal found that the applicant had been a victim of lawlessness and banditry which was rife in Somalia and in particular the Mogabishu, Baidoa and Kismayo areas.  The Tribunal then expressed some reservations concerning the applicant’s credibility and said that it had formed the view that the applicant downplayed his clan’s status and his business success in order to enhance his claims.  The Tribunal found that the applicant did not have a well-founded fear of persecution for reasons of his clan membership, his membership of a particular social group or any other Convention-based reason, either at the time of its decision or in the foreseeable future.

The Applicant’s Grounds of Review and My Reasoning

5                     The applicant advanced seven grounds of review.  It is convenient to divide them into three categories, although as will be seen, the categories overlapped.

A.        Error of Law

6                     The applicant contended that the Tribunal “… erred in law in determining the test for persecution”.  For this proposition, the applicant’s counsel singled out the following paragraph from the Tribunal’s reasons (at p 19):

“Conduct will be persecutory in the Convention sense if it is a serious punishment or penalty or a significant detriment or disadvantage which can be seen as part of a course of systematic conduct, motivated or attended by enmity and directed for a Convention reason towards a person or a group because of a difference which the persecutor will not tolerate.  It is not enough to have a well-founded fear of war or civil unrest.”

7                     The applicant argued that by applying the test of persecution set out above, the Tribunal erred in law.  It had done this by requiring the applicant to show in relation to the August 1993 incident that the killers from the Hawiye clan were intentionally seeking out Shiqaal clanspeople in order to kill or harm them.  The applicant contended that “… the murder of the Applicant’s father and the attempted abduction and prospective rape of the Applicant’s wife would have been incidents of persecution for a Convention reason if such acts were directed against the Applicant’s family because they were members of the Shiqaal clan, being another clan to the Hawiye clan and one which was or was considered to be unable to provide effective protection to its members or effective retaliation or was otherwise held in disdain”.

8                     Mr H N H Christie, counsel for the applicant, submitted that the Tribunal had posed “a different and wrong test” for persecution and by judging and rejecting the applicant’s claim against that test had fallen into error. 

9                     Mr Christie acknowledged that the Tribunal had at pp 2-4 of its reasons correctly set out the principles defining refugee status, but submitted that, looking at the Tribunal’s reasons as a whole, this first part was (merely) a “… basic statement of principles which is to be found these days in every decision of the Tribunal”.  The Tribunal had in fact, so Mr Christie contended, applied the test contained in the paragraph set out above. 

10                  The applicant’s claims, so it was submitted, were assessed against a standard which was far too high.  Persecution did not have to be part of a course of systematic conduct, nor did there have to be a difference that the persecutor would not tolerate.  The applicant accepted the last sentence of the above paragraph i.e. that it was not enough to have a well-founded fear of war or civil unrest. 

My Reasoning

11                  If, on a fair reading of the Tribunal’s reasons, it could be seen that the Tribunal had applied the test enunciated in the first paragraph of the above passage, then in my view, its decision would have involved an error of law.  The error would have been an incorrect interpretation of the applicable law and an incorrect application of that law to the facts as found by the Tribunal – s 476(1)(e) – see Abdalla v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 11 at 19-21 (a decision of a Full Court of this Court) and Mohamed v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia, Hill J, 11 May 1998, Judgment No 485 of 1998) at 9-11.  Those authorities show that acts of systematic harassment against a group or against an individual may show a fear to be well-founded, but such evidence is not a necessary prerequisite for success in an application.  As Hill J observed in Mohamed (at 10):

“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.”

12                  In Abdalla the Full Court (at 20) said:

“In substance the tribunal decided, in the present case, that the recurring pattern of communal violence, which it found to exist in Somalia, did not amount to persecution because there was no systematic course of conduct.  The requirement, in our view, was too widely expressed.  Where there is a recurring pattern of violence towards a person on a Convention ground, there is no reason why such conduct may not constitute “persecution”.  Clearly “persecution” involves more than a random act.  To amount to “persecution” there must be a form of selective harassment of an individual or of a group of which the individual is a member.  One act of selective harassment may be sufficient.  The fact that a recurring pattern can be loosely described as communal violence or even civil war does not mean that it cannot amount to “persecution”.  It is necessary to examine the situation further in an attempt to determine the purpose which gives rise to the violence or danger.”

13                  I do not think that the application of a “beneficial construction” to the Tribunal’s reasons in this matter, as explained by the High Court of Australia in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 would stand in the applicant’s way if he made good the proposition that the Tribunal had in fact applied the test contained in the above paragraph extracted from page 19 of its reasons.  In my opinion the Tribunal did not do so.  The applicant’s claims were based on two horrific incidents.  The Tribunal can be seen to have looked at each incident to see (in the case of the first incident) whether the applicant’s father had been killed because of his clan identity, and (in the case of the second incident) whether that incident, taken as a whole, occurred by reason of the applicant’s clan membership.  I think that it is sufficiently clear that if the Tribunal had found that these incidents, or even one of them, had been because of membership of the Shiqaal clan, then it would have found either or both incidents to amount to persecution for a Convention reason i.e. because of membership of the particular social group identified as the Shiqaal clan, and the applicant would have been successful.  In relation to the August 1993 incident, the Tribunal said this (at p 21 of its reasons):

“I do not accept that the Applicant’s father was fired upon because of his clan identity.  The Applicant’s own evidence is that the shooting occurred only once the Applicant’s father attempted to protect the Applicant’s wife from being taken away and harmed.  If the Hawiye clansmen were indeed seeking out Shiqaal clanspeople in order to kill them or harm them, all three would have been killed at that time as the Applicant said that his father identified them as such.

I find that, as horrific and frightening as this incident was, it was as a result of the general lawlessness and warfare being conducted in Somalia but not for reasons of the Applicant’s clan membership.” (Emphasis added)

14                  I have some concerns (and I raised them at the hearing of this application) about the logical sequence which the Tribunal appears to have adopted.  The sequence of the facts as found was:

1.         Hawiye clansmen stopped the group comprising the applicant, his wife and his father and asked the identity of their clan.

2.         The applicant’s father said that they belonged to the Shiqaal clan.

3.         Some of the Hawiye clansmen grabbed the applicant’s wife.

4.         While the applicant’s father was attempting to protect her, he was shot and killed.

15                  If the applicant’s father had not intervened, the logical conclusion would seem to be that the abduction would have occurred.  If the abduction had occurred, it would clearly have been open to the Tribunal to conclude that it occurred because the abductors wanted the applicant’s wife and because the applicant’s family were of the Shiqaal clan.  The Tribunal appears to have worked backwards from the fact that the shooting occurred only when the applicant’s father had attempted to protect his daughter-in-law from being taken away and harmed, to a conclusion that if the murderers (as they soon became) were indeed seeking out the Shiqaal clanspeople in order to kill them or harm them, they would have killed all three of them because his father had identified them as being from the Shiqaal clan.  It is clear that in that reasoning the Tribunal was not confining its assessment to killing because it uses the phrase “or harm them”.  I doubt the logic in the drawing of that inference.  However, the Tribunal’s reasoning is that because all three of the applicant’s family were not killed at the time when they were identified (by the applicant’s father) as being Shiqaal, the abductors/ murderers were not seeking out Shiqaal clanspeople in order to kill or harm them (the harm would include the abduction and subsequent harm to the applicant’s wife).  Therefore the applicant’s father had not been shot because of his clan identity.  The Tribunal chose to lump into together the absence of a purpose to harm (abduction and any subsequent harm) with a purpose to kill because of the clan identity.  If this is illogical reasoning (and I think it probably is), it does not of itself constitute error of law, if there was any basis for the inference drawn.  The basis seems to be that if the intended abduction of the daughter-in-law was because the family belonged to the Shiqaal clan, the abductors/murderers would have immediately shot all three members of the family as soon as they confirmed that they belonged to the Shiqaal clan.  The logic of this reasoning can be further criticised by asking the question why, if the abductors wanted to abduct the applicant’s wife (as they obviously did), for reasons which included membership of the Shiqaal clan, would they kill all three members of the family, when the applicant’s father identified the family as belonging to the Shiqaal clan?  Would it not have been far more likely that they would simply have killed the two men?  In Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543, a Full Court of this Court observed (by way of obiter dictum) at 553:

“Moreover, as Batt J pointed out in Dacakis [a reference to Roads Corp v Dacakis [1995] 2 VR 508] (at 520), although want of logic in drawing an inference will not of itself constitute error of law, it may sound a warning note to put one on inquiry whether there was indeed any basis for the inference drawn.  Likewise, want of logic might in some cases also sound a warning note to put one on inquiry whether there was only a purported, and not a real, exercise of the functions entrusted to the decision-maker, as to which see Teo [a reference to Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 at 199-200] and the cases there cited.”

16                  Apart from the error of law which I identify immediately below, it was open to the Tribunal to find, as it did, that the applicant’s father was not shot because of his clan identity.  As the respondent submitted, this case is different from Mohamed.  In Mohamed the Tribunal had erred in law because it concluded that two isolated episodes of press-ganging were insufficient evidence to satisfy the Tribunal that the applicant in that case had been the victim of a course of systematic action directed against him for reason of his sub-clan.  The error had been repeated, as Hill J noted, in more than one passage and was exemplified by the Tribunal’s comments that the incidents relied upon were “isolated occasions”.  In the present matter the Tribunal specifically considered whether the applicant’s father was shot and killed and, later, the incident in which the applicant was shot and wounded, were because the applicant belonged to the Shiqaal clan.

17                  But I think that the Tribunal’s reasoning process has sounded an Epeabaka-type warning note.  In my view, the Tribunal erred in law in the manner in which it approached its assessment of the August 1993 incident.  This was not merely want of logic.  The Tribunal focussed only on the killing of the father.  That was the outcome of the incident, but there was far more to it than that.  The abductors/murderers did not simply grab the applicant’s wife on sight.  First, they asked the family group for the identity of their clan.  Only after the family’s identification as Shiqaal did some of them grab the applicant’s wife.  In my opinion, the Tribunal only asked itself a part of the question (i.e. why the applicant’s father was killed).  It should have asked itself whether the abductors/murderers seized the applicant’s wife because the family group belonged to the Shiqaal.  Then it should have considered whether that seizure amounted to persecution.  It would have been open, in my opinion, for the Tribunal to find that the forcible seizure and attempted abduction of the applicant’s wife was persecution.  If that part of the incident occurred by reason of membership of the Shiqaal clan, then the killing of the applicant’s father might be for a combination of two reasons.  First, the attempt to save his daughter-in-law and, secondly, because he was a Shiqaal and could, with impunity, be killed for that attempt.  The authorities show that a Convention reason for persecution does not have to be the sole reason for the persecution.  But these issues are for the next tribunal which hears this matter.

18                  In fairness to the Tribunal, I should add that its conclusion that the applicant did not have a well-founded fear of persecution by reason of membership of the Shiqaal clan had two further supplementary bases.  The first was that after the incident of August 1993, the applicant and his wife remained in Jalalaqsi until March 1994 i.e. about seven months.  The Tribunal found that the fact that the applicant so remained in the area was inconsistent with a fear of persecution.  It noted the applicant’s evidence that they were in shock at that time and did not know where to go, but referred to the applicant’s own evidence that his uncle was well-known in the town, was married to a Hawiye woman and was negotiating with the elders from the Hawiye clan.  The Tribunal said that it was clear that during that seven month period the applicant had protection and for that reason was able to remain in Jalalaqsi.  The second additional basis was that the applicant had returned to Mogadishu and re-established his business.  The Tribunal found that this was inconsistent with a fear of persecution for reason of clan membership, particularly in the light of the independent evidence (which the Tribunal accepted) that Mogadishu was controlled by different sub-clans of the Hawiye clan.  As will be seen below, when considering the other grounds raised by the applicant, his counsel challenged these findings.  Later in these reasons I reject those challenges.  However, the error of law which I have identified immediately above is a separate matter which remains uncured by the Tribunal’s supplementary conclusions.

19                  In relation to the second incident, in December 1995, which I have described above, the Tribunal said this (at 21-22):

“The Applicant’s own evidence was that every shop owner was contributing to the fighting but that he had not.  The Applicant’s own evidence was that during the time that he spent in hospital following the incident, his shop was looted and the boy selling in the shop was killed.  I do not accept that the Applicant was targeted in this way for reasons of his clan membership, but that it was a matter of extortion and criminal acts due to the general lawlessness in Mogadishu.

The Applicant had a business and he was considered to be someone who could pay.  I find that this attack on the Applicant was not related to his clan membership.”

20                  This time the Tribunal can be seen clearly to have recognised and applied the test of whether that incident, taken as a whole, occurred for reasons of the applicant’s clan membership.  Once again, it was not requiring that there be a systematic course of conduct which the Tribunal in Abdalla had required.  The Tribunal specifically considered whether this incident occurred by reason of the applicant’s membership of the Shiqaal clan.  In oral argument Mr Christie conceded that the Tribunal’s inference that the incident did not occur for reasons of the applicant’s clan membership was an inference which was open for the Tribunal to draw.  In my view, no error of law has been demonstrated in relation to the manner in which the Tribunal assessed this second incident. 

B.        The no-evidence grounds

21                  The applicant advanced four “no-evidence” grounds.  At the hearing, Mr Christie explained that insofar as the applicant relied on s 476(1)(g) of the Act, he relied exclusively on the qualification provided by s 476(4)(b) i.e. that the Tribunal based the respective “decisions” on the existence of particular facts which did not exist.  The four “no-evidence” grounds were as follows.

(a)        The death of the applicant’s father

22                  The applicant contended that there was no evidence or other material to justify the Tribunal’s decision that the death of the applicant’s father was as a result of general lawlessness and warfare being conducted in Somalia and not for reasons of the applicant’s clan membership.  The applicant particularised this complaint by saying that the circumstances of the incident that led to the applicant’s father’s death, as recounted by the applicant and accepted by the Tribunal, were not capable of bearing the inference drawn by the Tribunal. 

23                  In written and oral submissions Mr Christie said that as the Tribunal had accepted the applicant’s account of this incident, there was no evidence to draw the conclusion that this was a random act of violence to which the other inhabitants of Jalalaqsi were equally at risk.  The only conclusion reasonably open on the evidence, so it was put, was that the applicant’s family was treated as it was because it belonged to a minority clan which was unprotected in the clan system that operated in Jalalaqsi.

(b)        Remaining in Jalalaqsi

24                  The applicant submitted that there was no evidence or other material before the Tribunal to justify its decision that the fact that the applicant remained in Jalalaqsi following the death of his father was inconsistent with a fear of persecution.  The applicant argued that in circumstances where there was independent evidence that the Shiqaal clan did not have a safe area where such clan was dominant, the evidence that the applicant had remained in Jalalaqsi for approximately seven months following his father’s death, was not capable of supporting the inference drawn by the Tribunal that such continued stay was inconsistent with a fear of persecution.  The applicant contended that there was no other material before the Tribunal to support such an inference. 

25                  Mr Christie referred to the applicant’s evidence that the family stayed on in Jalalaqsi because they did not know what else to do.  He submitted that there was no evidence before the Tribunal from which it could draw any contrary conclusion. 

(c)        Returning to Mogadishu

26                  The applicant argued that there was no evidence or other material before the Tribunal to justify it in determining that the applicant’s activities in returning to Mogadishu and re-establishing a business there were inconsistent with a fear of persecution for reasons of his clan membership.  By way of particulars in relation to this ground, the applicant referred to what it described as “uncontroverted independent evidence” that the Shiqaal clan did not have a safe area within Somalia where it was dominant.  The applicant also referred to his evidence that he and his family had returned at a time when the United Nations peacekeepers were present in that city.  His return and establishment of a business were matters which were not capable of supporting the inference drawn and there was no other material to support that inference. 

27                  Mr Christie submitted that the applicant and his family had to live somewhere and had to earn a living.  There was no evidence before the Tribunal, so he submitted, that there was a safe haven to which they could reasonably go or that there was a safe way to earn a living.

(d)        Protection in Jalalaqsi

28                  The applicant argued that there was no evidence or other material before the Tribunal to justify its determination that in the seven months period following the murder of his father “it is clear that during this time the applicant had protection and for this reason was able to remain in Jalalaqsi”.

Independent Country Information

29                  The applicant submitted that independent country information available to the Tribunal did not contain any information which contradicted his account of what happened to him and his family, but provided substantial corroboration of that account.  The applicant argued that the independent evidence showed that:

(a)        the Shiqaal were a minority clan;

(b)        the Shiqaal were in danger of ill-treatment if they happened to be in enemy clan territory;

(c)        the Shiqaal lacked a large home territory;

(d)        all minority clans in Somalia are subjected to harassment, intimidation and abuse;

(e)        certain Shiqaal clan members had been involved in gun battles in the southern town or village of Gilib in April 1995, November 1995 and June 1996; and

(f)         certain Shiqaal clan members had been involved in peace negotiations.

30                  The applicant contended that evidence that some members of the Shiqaal clan were armed and were involved in warfare in one small and far-removed area of Somalia, was not capable of supporting the inference that the applicant and his family were victims of inter-clan warfare or general lawlessness.  Equally, evidence that some prominent members of the Shiqaal clan may have been used as mediators or peace-makers between the powerful clans was not capable, so it was submitted, of supporting the inference that ordinary members of the Shiqaal clan had effective clan protection.

My Reasoning

31                  The respondent submitted that each of the above grounds was misconceived because the “decision” referred to in the “no evidence” ground of review, provided by s 476(1)(g) of the Act, was the judicially-reviewable decision of which review was sought.  The respondent contended that s 476(1)(g) was not available as a ground of review in relation to individual findings of fact made along the way to the judicially-reviewable decision.  The respondent also relied upon the qualification to this ground contained in s 476(4)(b) of the Act. 

32                  I consider that I am bound by the decision of the Full Court in Abdalla where (at 16-18) it was held that if the relevant decision was based in part on a fact or if the existence of a fact was material to the Tribunal’s conclusion and if there was no evidence or material to support that fact, then the applicant can make a good case under s 476(1)(g) when read with s 476(4)(b). 

33                  In relation to the death of the applicant’s father, I think that there was evidence to support the Tribunal’s conclusion that the applicant’s father was not fired upon because of his clan identity.  The error of law which I have found was not of a “no evidence” type.  The error was in not asking itself the right question.  The Tribunal accepted the applicant’s own evidence that the shooting occurred only when the applicant’s father had attempted to protect his wife from being taken away and harmed.  There was abundant independent evidence of the general lawlessness and warfare being conducted in Somalia and, in my view, subject to asking first whether the attempted abduction was persecution for a Convention reason (membership of the Shiqaal clan), it was open to the Tribunal to infer, on what I consider to be a logically-flawed basis, that the shooting (which it described as “horrific and frightening”) was as a result of that general lawlessness and warfare.  The Tribunal had recourse to a considerable volume of independent evidence comprising materials describing the clan structure of Somalia, political developments since 1991 and in particular the civil war and general lawlessness in the country.  The Tribunal devoted some 2½ pages of its reasons to setting out excerpts from the 1997 United States Department of State Country Report on Human Rights Practices in Somalia.

34                  In relation to the Tribunal’s expressed opinion that the fact that the applicant remained in Jalalaqsi until March 1994 was inconsistent with a fear of persecution, it is sufficient to make two observations.  First, I accept the respondent’s submission that this was a conclusion or opinion, not the finding of a particular fact - see the decision of a Full Court of this Court in Chen v Minister for Immigration and Multicultural Affairs [1999] FCA 34 at paragraph 4 and the cases there cited.  The same applies to the Tribunal’s conclusion concerning the applicant’s activities in returning to Mogadishu and re-establishing a business there. 

35                  In relation to the matter of protection in Jalalaqsi, there was evidence that the applicant had protection and was thus able to remain in Jalalaqsi.  It is sufficient to refer to the facts relating to the applicant’s uncle who was well-known in that town, was married to a Hawiye woman and was able to negotiate with the elders from the Hawiye clan.  During the seven months following the death of the applicant’s father, he and his wife had remained at his uncle’s home.  All of this evidence came from the applicant. 

36                  For the foregoing reasons, I reject the applicant’s “no evidence” grounds.

C.        Failing to act according to substantial justice and the merits of the case

37                  The applicant contended that the Tribunal had not observed procedures which were required by law to be observed in connection with the making of its decision and that it had thereby failed to act according to substantial justice and the merits of the case, contrary to s 420(2)(b) of the Act.  The applicant identified this failure in terms of failing to give any weight to certain specified relevant factors said to be of great importance and giving excessive weight to certain specified factors which were said to be of no relevance in determining that past acts of violence against the applicant, his family and the Shiqaal clan were not persecution for a Convention reason and that he did not have a well-founded fear of persecution for a Convention reason.

(i)         Failing to give any weight to relevant factors of great importance

38                  These were particularised as follows:

A.        That the Shiqaal clan were a minority clan, were mostly a religious group, had no certain traditional areas of land or settlement in Somalia, were largely under-armed and had been loyal to the regime of the former President Said Barre.

B.         The violent incident in August 1993, where the applicant’s father was killed and the applicant’s wife was assaulted and faced the prospect of abduction and rape by Hawiye clan members, arose because the Hawiye clan members asked the applicant and his father about their clan identity.  Upon being told by the applicant and his father that they were from the Shiqaal clan, the Hawiye clan accused them of being spies for the Barre regime.  It was then that the Hawiye clan members attempted to take the applicant’s wife away, and the applicant’s father was killed when he tried to protest. 

C.        The violent incident in December 1995 where the applicant was attacked by Hawiye clan members, shot in the shoulder and abducted was related to the applicant’s clan membership as he was told when released from captivity by his Hawiye attackers that he was a criminal because he was pretending to belong to another clan.

(ii)        Giving excessive weight to factors of no relevance

39                  These factors were said to be as follows:

A.        That the applicant’s father was attempting to protect the applicant’s wife from being abducted by the Hawiye clansmen when he was shot and killed.

B.         That the applicant had remained in Jalalaqsi at his maternal uncle’s home for seven months following the death of his father.

C.        That the applicant had subsequently returned to Mogadishu and had re-established his business there.

D.        That some armed gunmen in Somalia were from the Shiqaal clan.

40                  The applicant relied upon the decision of a Full Court of this Court in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 at 549–550 in which Wilcox and Burchett JJ followed Eshetu.  I note North J’s rejection (at 565) of the reasoning in Eshetu.  But subject to that, all of the members of the Court were in agreement that the Tribunal had failed to accord substantial justice to the appellant in that case by giving no weight to at least two important facts.  Mr P R Macliver, counsel for the respondent, formally submitted that the requirement in s 420(2)(b) of the Act to “act according to substantial justice and the merits of the case” did not constitute “procedures” that are required to be observed in connection with the making of the decision within the meaning of s 476(1)(a).  However, he acknowledged that I was bound to hold otherwise, at least until the High Court of Australia hands down its decision on the appeal in Eshetu.

41                  In my view, with one exception, the applicant, in purported reliance upon s 420(2)(b) of the Act, is seeking to attack the merits of the Tribunal’s decision.  The exception is the matter of the attempted abduction of the applicant’s wife.  In relation to alleged failure to give any weight to relevant factors of great importance, I would reject that sub-ground for three further reasons.  First, the weight to be given to these matters was a matter for the Tribunal.  Secondly (in relation to most of particular A and the whole of particular C in paragraph 38 above), it can be seen that the Tribunal did take into account these matters – see pp 10-11, 13-14 and 20-21 of its reasons.  Thirdly, to the extent that the Tribunal did not expressly refer to any evidence that the Shiqaal were largely underarmed and had been loyal to the regime of the former President Said Barre, these were not matters to which the Tribunal was required to refer.

42                  I reject the allegation that the Tribunal gave excessive weight to factors of no relevance.  First each of the four matters referred to at paragraph 16 above was a relevant matter for the Tribunal to consider.  If the applicant’s father was shot because he was trying to protect his daughter-in-law and not because he was from the Shiqaal clan, that was relevant to whether there was persecution.  Similarly the fact that the applicant had remained in Jalalaqsi for seven months was, in my view, clearly relevant to whether he had a well-founded fear of persecution.  The same applies to the circumstances that the applicant had returned to Mogadishu and re-established his business there.  The fact that some armed gunmen in Somalia were from the Shiqaal clan was, in my opinion, clearly relevant to an assessment of whether the applicant, as a member of that clan, had a well-founded fear of persecution.  It may not have been a major factor in that process, but the weight which the Tribunal chose to attach to it was a matter for it.

Conclusion

43                  For the reasons set out at paragraphs 17 and 18 above, I will set aside the Tribunal’s decision and remit the matter to a differently constituted tribunal for rehearing, with or without new evidence, and according to law.

Associate:

Dated:              1 April 1999