FEDERAL COURT OF AUSTRALIA

Ali v Minister for Immigration & Multicultural Affairs

[1999] FCA 650

MIGRATION – application for judicial review of decision of Refugee Review Tribunal affirming decision not to grant applicant protection visa – error of law – definition of “refugee” in circumstances of civil war – whether error of law vitiating findings of tribunal – “particular social group” – member of family – whether finding of Tribunal that applicant feared persecution as member of his father’s family – relocation – whether Tribunal failed to consider whether relocation practically possible

WORDS AND PHRASES – “refugee” – “particular social group”

Migration Act 1958 (Cth) ss 36(2), 430, 476(1)(a), 476(1)(e)

Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 569 cited

Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 cited

Adan v Secretary of State for the Home Department [1998] 2 WLR 702 referred to

Minister for Immigration and Multicultural Affairs v Abdi [1999] FCA 299 applied

Minister for Immigration and Multicultural Affairs v Abdi (Federal Court of Australia, Wilcox J, 23 October 1998, unreported) cited

Mohamed v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Hill J, 11 May 1998, unreported) referred to

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 cited

Guo Wei Zhi v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Burchett, Einfeld and Emmett JJ, 10 December 1998, unreported) cited

Sarrazola v Minister for Immigration and Multicultural Affairs [1999] FCA 101 distinguished

WALI HAJI ALI v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 921 OF 1999

LEHANE J

14 MAY 1999

SYDNEY

THE COURT ORDERS THAT:

1.         The application for judicial review be dismissed.

2.         The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     The applicant seeks review of a decision of the Refugee Review Tribunal dated 7 August 1998 by which the Tribunal, not being satisfied that the applicant was a refugee, affirmed a primary decision not to grant him a protection visa.  He seeks an order that the decision of the Tribunal be set aside on the ground that the decision involved an error of law, being either an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found (Migration Act 1958 (Cth) s 476(1)(e)); during argument, counsel for the applicant sought to rely also on s 476(1)(a) and s 430 of the Migration Act.  The grounds on which the applicant relies can, however, best be understood against the background of the Tribunal’s findings of fact.

Findings of fact

2                     The Tribunal largely accepted the applicant’s account of the events leading to his arrival in Australia, on false documents, in June 1997.  What follows is based on that account as accepted by the Tribunal.

3                     The applicant is a Somali from the town of Hargeysa in north‑west Somalia.  He and his family are members of the Yibir clan.  Somalia has been without a central government since its last president, Mohamed Siad Barre, fled in 1991.  Since then, as the Tribunal summarised it, “The general country information presents a picture of shifting and self‑interested clan warfare and alliances in Somalia, with power, territory and resources in dispute …”.  The applicant’s father was an informer; particularly, he informed the former government about the movements of the Somali National Movement (SNM), associated with a rival clan of the Yibir known as the Isaaq.  The SNM killed the applicant’s father and brother in 1988; the family then fled to another town (Hadhiq‑Hadhiq), also in north‑west Somalia.  In early 1997 (that is, when the applicant and his family had been living in Hadhiq‑Hadhiq for about eight years), the SNM found out where the applicant was and came to kill him.  He was not at home; members of the SNM beat his mother, his sister and his wife.  In April 1997 the applicant fled to Ethiopia; he returned briefly in June of that year but only in order to catch a flight to Bangkok and thence to Australia.  Although he had not initially claimed that he was an informer, only that his father had been, the applicant added, in evidence to the Tribunal, that he also was an informer: between 1986 and 1988 he (like his father) had been a member of a group known as the “Victorious Army”.  Members of that group, mostly Yibir, watched and followed other citizens, as the Tribunal put it, “to ensure that they supported and did not oppose the government.  When people were detained as a result of their accusations, members of the group then extorted bribes in order to secure the release of the accused citizens”.  The Tribunal expressed concern that that evidence was given for the first time before it, but nevertheless accepted it (there was no suggestion that that involved any reviewable error).

4                     The applicant asserted that, if he were returned to Somalia – particularly to Hargeysa – the Isaaq would kill him: they would do so in revenge for both his father’s and his own activities as informers, and the consequences of those activities.  Additionally, the applicant claimed that because the Yibir were seen as having supported the former Barre government, members of the Yibir clan are today killed in all parts of Somalia.

5                     The Tribunal referred to a number of reports about the recent and current situation in Somalia.  On the basis of the information in those reports, the Tribunal was not satisfied that the Yibir are generally targeted in the north‑west region of Somalia (now, under the name “Somaliland”, substantially self‑governing but not recognised internationally as an independent state).  The Tribunal also considered the situation in the north‑east of Somalia, which it described as a reasonably accessible region adjacent to the applicant’s own north‑west region.  The Tribunal concluded that the independent evidence about that part of the country did not indicate that that area was lawless or that the Yibir were subject to particular attack or harassment; nor, the Tribunal found, was the north‑east dominated by the Isaaq or the SNM.

6                     In the light of those findings, the Tribunal’s task was to consider whether the applicant met the criterion in s 36(2) of the Migration Act:

“A criterion for a protection visa is that the applicant for the visa is a non‑citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”

7                     There was no suggestion that, if the applicant was a “refugee” as defined by the Convention, he nevertheless did not meet the criterion.  The question, therefore, was whether the applicant, in the words of Article 1A(2) of the Convention, had a “well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” and was, owing to that fear, unwilling to avail himself of the protection of Somalia.  The applicant’s claim was that he had a well‑founded fear of persecution by reason of his membership of two separate social groups, the Yibir and his family: he was likely to be persecuted by the Isaaq or the SNM simply because he was a Yibir; and he was also likely to face persecution because of his relationship to his father.  The Tribunal found, however, that though the applicant might well suffer persecution if he were to return to north‑west Somalia, that persecution would not occur for a Convention reason: he would be persecuted not because he was a member of a social group but because he and his father had acted as informers.  Any persecution he suffered, therefore, would be suffered not because of what he was but because of what he had done (Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 569; Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 at 404).  Additionally, the Tribunal found that the applicant could avoid harm by relocating to north‑east Somalia.

Grounds relied on: submissions and reasoning

8                     Counsel for the applicant did not press one ground of the amended application: that the Tribunal had not considered whether the applicant’s membership of a social group, namely his family, could lead to persecution in north‑east Somalia.  In other respects, counsel’s argument added to and elaborated upon the grounds stated in the application.  Counsel for the Minister was content to deal with the case as it was put in argument and it is convenient that I do likewise.

(a)        Tribunal followed Adan rather than Abdi

9                     In Adan v Secretary of State for the Home Department [1998] 2 WLR 702 the House of Lords considered the application of the Convention definition of “refugee” in circumstances of civil war, such as the inter‑clan fighting in Somalia.  Lord Slynn said, at 705:

“In such a situation the individual or group has to show a well founded fear of persecution over and above the risk to life and liberty inherent in the civil war.”

            Lord Lloyd (with whom the other members of the House agreed) said, at 711:

“If an asylum‑seeker can show that he is being targeted for Convention reasons, other than his membership of one of the warring clans, then he might qualify for refugee status.”

            Later at 713, his Lordship elaborated that proposition by holding that the asylum‑seeker 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”.

10                  In Minister for Immigration and Multicultural Affairs v Abdi [1999] FCA 299 the Full Court declined to follow that approach.  The Full Court said, at par 42:

“In our view the statements made in Adan travel beyond the requirements of the Convention by imposing additional or differential requirements where the civil war in question is based on racial or clan grounds and not grounds such as a struggle for power or dominance, the acquisition of territory, the appropriation of property or the acquisition of access to strategic resources or facilities.  In the latter examples where the civil war is not directed to racial persecution, it is necessary, of course, to establish the existence of selective harassment on a Convention ground, whereas in the former example such a ground is already present because the civil war is properly characterised as race based.”

11                  The Tribunal’s decision pre‑dated both the decision of the Full Court and the decision of Wilcox J (Federal Court of Australia, 23 October 1998, unreported) which the Full Court affirmed.  It is hardly surprising, therefore, that the Tribunal referred both to Adan and to Mohamed v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Hill J, 11 May 1998, unreported) as authority supporting these propositions:

“Although Somalia has been in a state of civil war, much of it clan‑based, with unstable and frequently shifting factional and clan alliances, the hardship and dangers to people caught up in civil disturbances do not, without more, amount to persecution.  Nor does a power imbalance between warring groups, of itself, convert the warfare into ‘persecution’ of the weaker or more vulnerable group.  Of course, that does not mean that a member of that group might not fall within the Convention definition of a refugee.  It is in this context that the question of fact and degree is particularly important.  …  The Tribunal must therefore consider whether the harm said to be feared by the Applicant does in fact arise differentially in a manner which might bring him within the Convention.”

12                  In the light of Abdi, those propositions, no doubt, require modification.  But it does not follow that the Tribunal’s decision involved an error of law.  It is necessary to return to the findings which it made.  After referring to various reports about the situation in Somalia, the Tribunal continued:

“The foregoing material was put to the Applicant at hearing.  The Applicant accepted that some other clans are represented in the Somaliland Government but stated that it included nobody from his own particular clan.  The Applicant repeated that if he returns the Isaaq will kill him, because he and his father had been informers and also just because he is a Yibir.  However, none of the material consulted supports the Applicant’s assertion that Yibir are being indiscriminately killed as former supporters of the Barre regime, an assertion fundamentally inconsistent with the general tenor of the material.  The Tribunal is satisfied that the Yibir are not generally targeted in the north west region (although that does not exclude the possibility that the Applicant may face harm individually, for reasons of personal revenge by those previously harmed or their relatives).”

13                  The Tribunal made it clear that it was aware that the question of well‑founded fear is to be tested against the country of nationality as a whole, rather than merely against the particular region, but the north‑west was the part of Somalia from which the applicant came and in which he claimed he would suffer persecution for a Convention reason.  The finding that Yibir were not persecuted simply because they were Yibir and that, if the applicant were persecuted, it would be because of what he and his father had done (not because of the applicant’s membership of the clan), resulted, consistently with Abdi, in a conclusion that in this respect the persecution feared by the applicant was not persecution for a Convention reason.

14                  Accordingly, this ground of the application fails.

(b)        Family as social group: persecution “for reason of” membership of family

15                  There is no doubt that a family may be a “particular social group” for the purposes of the Convention: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 240, 241; Guo Wei Zhi v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Burchett, Einfeld and Emmett JJ, 10 December 1998, unreported), Sarrazola v Minister for Immigration and Multicultural Affairs [1999] FCA 101.  The Tribunal recognised the possibility, when it said:

“The activities of the Applicant as an informer were as a part‑time member of an organised group of government informers in Hargeysa called the ‘Victorious Army’, most of whose members were Yibir.  Although the Applicant claimed that he was being targeted for these activities he did not claim that he was being targeted by reason of his membership of the group as such.  Nor did he specifically claim that he was targeted for reasons of his membership of a particular social group constituted by his father’s family, although this inference might follow from the claims relating to targeting as his father’s son.  In any event, these considerations do not assist his case.  As Black CJ said in Morato v MILGEA (1992) 39 FCR 401 at 404, the primary focus of this part of the Convention definition is upon an aspect of what a person is – a member of a particular social group – rather than upon what a person has done or does.  The Applicant’s evidence in the present matter has focused on what he and his father did, and not on their membership of any particular social group.  If some members of the Isaaq clan still wish to harm him, on his own evidence it is for revenge for what he and his father did, and not for reasons of his membership of any group as such, or for reasons of political opinion, in the sense contemplated by the Convention.”

16                  Of course, if the finding was that the applicant had not himself been an informer but that he (perhaps along with other members of his family) was subject to persecution because of what his father had done it might well be that the persecution could properly be said to be “for Convention reasons” – caused by membership of a particular social group, his father’s family.  That is substantially the basis on which Hely J decided Sarrazola.  Counsel for the applicant pointed out that the Tribunal, though it sometimes, as in the passage quoted, referred to activities of the applicant and his father, at other points in its reasons referred to informing done by the applicant or his father: thus suggesting, presumably, that membership of the father’s family was one of the reasons, at least, for the feared persecution.  That, in my view, is a very artificial proposition built upon an unduly pedantic reading of the Tribunal’s reasons.  The effect of the finding is that if the applicant had a well‑founded fear of persecution it was because of particular things that he and his father had both done, not because the applicant was a member of his father’s family.

(c)        Relocation

17                  It is desirable to deal with this ground, even though strictly it may be unnecessary given my conclusions on the other grounds.  The argument for the applicant was, in substance, that in holding that the applicant could relocate to the north‑east of Somalia and live safely, the Tribunal had failed to consider whether relocation was practically possible: particularly, whether the applicant, being outside Somalia, would be able to enter Somalia at all.  Counsel for the applicant referred particularly to a passage in a letter dated 14 April 1998 from the United Nations High Commissioner for Refugees:

“Somali refugees, including those from so‑called Somaliland, continue to lack recourse to diplomatic representation including the securing of a valid national travel document, thus seriously affecting the right of all citizens to return to their country.”

18                  Reference was made also to the report of the US Department of State entitled “Somalia Country Report on Human Rights Practices for 1997” where this was said:

“Freedom of movement continued to be restricted in many parts of the country.  Checkpoints manned by militiamen loyal to one clan or faction inhibited passage by other groups.  In the absence of a recognised national government, most citizens do not have documents needed for international travel.  As security conditions improved in many parts of the country, refugees and internally displaced persons continued to return to their homes, particularly in the northwest.”

19                 But, in my view, the Tribunal did not make the error attributed to it.  The Tribunal referred to north‑east Somalia as a “reasonably accessible region adjacent to the Applicant’s own north west region”.  More importantly, however, it quoted a series of country reports which described an influx of Somalis to north‑east Somalia, in the words of one of the reports, “from widely different clans and minority groups of the remaining part of Somalia”.  Another report quoted in the reasons referred to a “comprehensive gathering of Somalis [in north‑east Somalia] from almost every Somali clan and from almost every part of Somalia …”.  A March 1998 statement of the Federal Office for Refugees in Switzerland described the conditions in, among other places, north‑eastern regions of Somalia as “stable and safe enough in order to return failed asylum seekers”.  Certainly there is no explicit finding that the applicant could enter north‑eastern Somalia.  But the Tribunal referred to evidence that large numbers of Somalis in fact did enter north‑eastern Somalia and that a Swiss authority saw no difficulty in returning failed asylum seekers there.  In my view, the Tribunal considered the matters which it was required to consider, and made findings of fact based on material to which it referred in its reasons.  That being so, its findings, in my view, are not open to challenge.

Conclusion

20                  For those reasons the application for judicial review fails.  The orders of the Court are that:

1.         The application for judicial review be dismissed.

2.         The applicant pay the respondent’s costs.

Associate:

Dated:              14 May 1999