Adan v Secretary of State for the Home Department

Federal Court of Australia|1998-08-20|Before: Wilcox J

REASONS FOR JUDGMENT WILCOX J: Abdullah Sheikh Mohamed Abdi applied to the Court for review of a decision of the Refugee Review Tribunal affirming a decision not to grant him a protection visa. At the conclusion of argument on 16 October 1998, I made an order allowing the application for review, setting aside the decision of the Tribunal and remitting the application to the Tribunal for rehearing and determination according to law. I also ordered the respondent, Minister for Immigration and Multicultural Affairs, pay the applicant's costs of the application for review. I intimated I would give my reasons later. These are my reasons.

The facts The applicant arrived in Australia on 24 February 1998. He is a man of Somali nationality who claims to have been born on 1 January 1960. Aspects of the history stated by the applicant were not accepted by the Tribunal; but the Tribunal did accept Mr Abdi was a member of the Darod clan and, also it seems, has lived most of his life in Mogadishu, the capital, where he attended university and, subsequently, worked as a public servant. According to a statutory declaration made by Mr Abdi, he fled Mogadishu, along with members of his family and other members of the Darod clan, on the collapse of the Said Barre government in 1991. According to the declaration, between then and November 1997, when he left Somalia by way of Mogadishu, Mr Abdi lived in various rural areas; I gather mostly south of Mogadishu. During that time, apparently about the end of 1993 or early in 1994, he said a dispute arose between the Absame and Majerten sub-clans of the Darod clan. There was division amongst the Absames as to the course that ought to be taken. The Absame sub-clan divides further, into the Weitein (or Wetan or Weytan) sub-clan and the Ogaden sub-clan. Mr Abdi said his father was killed by the Ogaden and he himself was shot and wounded. The Tribunal did not comment on all the matters stated in the declaration but did accept that Mr Abdi "is a Somalian, that he is from the Darod sub-clan known as Weitein, that his father was involved in a leadership or land struggle involving the Darod sub-clans and that as a result he was killed, and the applicant was injured".

The Tribunal decision It is important to note the precise nature of the fear claimed by Mr Abdi. In its reasons, the Tribunal purported to state this on three occasions; but each time in somewhat different terms. On the first occasion the Tribunal said this: "At hearing before the Tribunal the applicant advised that he fears returning to Somalia as he thinks he will be 'persecuted because I don't know where I will be able to get protection. Every clan is dominating or targeting any clan who is smaller and weaker than their clan'. In particular he claims that he fears the Hawiye because he is a Darod. He claimed that the Darod is divided and the larger Darod clans are taking the land of the smaller ones, and he doesn't know where to go to be safe. When asked by the Tribunal why he in particular would be of any interest he stated that 'not particularly me but all small clans in Somalia, no small clan is safe at the hands of a big clan'. He described his lineage as Darod - Absame - Weitein. He was asked why the Weitein would be of interest to anyone, and he explained that it was related to land and conflict around the Kismayo area between the Ogaden (a major power in the area) and the Majerten. His father was killed in a conflict when there were negotiations between Absame elders (his father being one) and Ogaden elders over leadership of the clan. His father had been in charge and opposed fighting the Majerten, in the ensuing fighting he had been killed. Many people were killed in the conflict, and the applicant's clan fled the area. People would be interested in him for revenge over the deaths which occurred at this time, and people are looking for him. He was wounded at this time and recovered in the nomad areas staying there for about 7 or 8 months." (Emphasis added.) The Tribunal's second account was briefer: "In essence the applicant claims that he fears returning to Somalia because of the clan warfare which is continuing and also because of the possibility of revenge from other Darod sub-clans resulting from the dispute when his father was killed." (Emphasis added.) The final version was in these terms: In essence in Somalia the current instability and conflict is caused by clan and sub-clan based civil war where what people fear is being caught up in the fighting between the different groups (whose allegiance and alliance is continually shifting …). This is inherent and understandable in such a civil war situation, and also given the context of shifting clan alliances. In the applicant's case he is also concerned apart from this wider warfare, with the dispute within his clan over leadership and a land dispute. He is concerned about revenge that may flow from this." (Emphasis added.) After setting out the above facts and summaries of claims, the Tribunal referred to the need for applicants to show "they would be differentially at risk". The member explained: "To fall within the Convention definition however a person must show that they are at a greater risk than other members of their clan or society than the risk of harm which would be caused by the civil or clan warfare itself. In essence they must show that apart from the civil war or clan warfare that they fall within the definition of a Convention refugee as defined under Article 1 A(2) of the Convention. Essentially what the applicant fears is returning to a country which is in a state of civil or clan warfare. This is understandable but not sufficient to establish persecution for a Convention reason. Being at risk or effected by civil or clan war is not by itself sufficient in an applicant for a protection visa. A person must be able to establish that they would be differentially at risk. They must be able to show 'fear of persecution for convention reasons over and above the ordinary risks of clan warfare' as stated by Lord Lloyd of Berwick, in Adan v Secretary of State for the Home Department [1998] 2 WLR 702." The member quoted this observation of Lord Lloyd (with whom the other members of the House of Lords agreed) at 713: "… 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." The Tribunal also mentioned a comment of Hill J in Mohamed Dahir Mohamed v Minister for Immigration and Multicultural Affairs (FCA, 11 May 1998, not reported) "Where a country is engaged in a civil war, acts committed against its nationals as a result of that war do not as such constitute persecution for a Convention reason. Were it otherwise as fortunes fluctuated in such a war, both sides would at some stage be able to claim refugee status." The Tribunal went on: "The applicant has not on the accepted evidence established, nor would independent evidence support, that he or his clan would be at any differential risk of harm. It is also insufficient that the applicant fear revenge from persons over deaths in a leadership or land dispute for the reasoning as discussed by O'Loughlin J in Magyari v MIMA (unreported, Federal Court of Australia Act, 22 May 1997), where the applicant was a passenger in a motor vehicle that was involved in an accident in which a young gypsy boy suffered serious injuries. In that case the applicant feared revenge from the gypsies. His Honour stated: [The applicant] has been hounded by the gypsies because of what he, in their perception, has done. They see him as the party, or one of the parties, responsible for the injuries that the child has suffered. The applicant's alleged fear derives from these circumstances which have nothing whatsoever to do with any of the five Convention reasons. The gypsies are not concerned with his race, religion or nationality, or with his membership of any social group or with his political opinion. Rather they are concerned to exact some form of retribution from him for what has happened to the child. … If the applicant has a well founded fear of being persecuted by the gypsies … the Tribunal was correct in concluding that the fear has no connection with any one of the Convention reasons. The applicant fears revenge from other sub-clan members over deaths that occurred when his father was killed. They, as in the above cited case, are interested in revenge, and the exacting of retribution, they are not motivated as required by the Convention definition and the words 'for reasons of' as contained in the Article 1A(2) definition. I am accordingly not satisfied that the applicant has a well-founded fear of persecution for reasons of a Convention ground in the foreseeable future." Finally, the Tribunal considered the possibility of Mr Abdi relocating elsewhere in Somalia. The member referred to country material that suggested clan warfare is almost entirely confined to Mogadishu and gave glowing accounts of the situation in the northeast and northwest of the country. After discussing the clan situation in those areas, the member said: "Overall, these facts combined with the applicant's age, being well-educated and the resourcefulness he has displayed in Somalia indicates that he should have little problem in relocating to the northeast area, or indeed there is also the possibility of relocating to a Darod area in Somaliland. Given this background of the applicant I am satisfied that he is able to and it is reasonable for him to relocate to the northeastern region of Somalia. He accordingly does not have a well-founded fear of persecution."

The clan warfare issue Mr Craig Colborne, counsel for Mr Abdi, argued the Tribunal fell into an error of law in requiring Mr Abdi to demonstrate he was affected by the clan warfare differently from other members of the Weitein sub-clan. He referred to a recent decision of a Full Court of this Court, Abdalla v Minister for Immigration & Ethnic Affairs (Burchett, Tamberlin and Emmett JJ, 20 August 1998), in which the Court referred to Adan and commented it "turned on the particular evidence as to the circumstances of Mr Adan and the nature of the war in the north of Somalia at the relevant time." The Court added: "The decision … deals with what was apparently indiscriminate violence or oppression manifested towards all clans without any differential impact based on clan membership." Their Honours concluded the point by saying: "In the present case, we consider that the approach adopted by the RRT was erroneous because it failed to accept that communal violence arising from the civil war could amount to persecution for a Convention reason. It is not correct to proceed on the basis that because a fear arises within a recurring pattern of communal violence in a civil war context therefore it cannot amount to 'persecution' for a Convention reason." Mr Colborne argued the Tribunal erred in this case in treating the civil war as an answer to Mr Abdi's claim of persecution. He said that, as in Abdulla, Mr Abdi claimed more than a risk of harm from the fact of civil war; he claimed a risk of persecution by the Hawije clan because he is a Darod and a risk of persecution by members of the Ogaden sub-clan because he is a member of the Weitein sub-clan. Mr Colborne says these claims were not evaluated by the Tribunal, which treated all claims as being no more than fear of being caught up in a civil war. Although Ms Frances Backman, counsel for the Minister, sought to support the Tribunal's decision by reference to Adan, I am satisfied there is substance in Mr Colborne's point. I have already set out the various ways the Tribunal summarised Mr Abdi's claim. On the first occasion, the Tribunal quoted Mr Abdi's own words about "(e)very clan … targeting any clan who is smaller and weaker than their clan"; this must mean the members of the targeted clan and that those people are targeted because they are members of the particular social group constituting the clan. It is a claim of persecution for a Convention reason, and much more than a claim of the ordinary risks of warfare, even clan warfare. The distinction was made in Adan by Lord Slynn of Hadley at 705: "Looking, however, at the language of the Convention and its object and purpose I do not consider that it applies to those caught up in a civil war when law and order have broken down and where, as in the present case, every group seems to be fighting some other group or groups in an endeavour to gain power. In such a situation what the members of each group may have is a well founded fear not so much of persecution by other groups as of death or injury or loss of freedom due to the fighting between the groups. In such a situation the individual or group has to show well founded fear of persecution over and above the risk to life and liberty inherent in the civil war." On its second statement of the fear, in the present case, the Tribunal spoke of "the clan warfare which is continuing", without appreciating the distinction made by Lord Slynn or (subsequently) by the Full Court in Abdalla, but did mention "the possibility of revenge from other Darod sub-clans resulting from the dispute when his father was killed". On the third telling, the reference to revenge disappeared. The case was disposed of by reference to a statement that "what people fear" - note, this did not purport to be a statement of what Mr Abdi said he feared - "is being caught up in the fighting between the different groups". Referring to Adan, the Tribunal said this was not enough. It will be apparent that, because of its downgrading of the applicant's claim, the Tribunal never addressed the claims he actually made. Although Ms Backman suggested to the contrary, it is not necessary for a person threatened with persecution, as a member of a particular social group, to show he or she is affected differentially to other members in the group; that is, exposed to a risk greater than, or different to, others. This is inherent in what McHugh J said in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 430: "As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is 'being persecuted' for the purposes of the Convention." It must be so; otherwise the Convention would be farcical. Assume a country in which it was policy to execute all adherents of a particular religion. It would be absurd to say none were at risk of "persecution", within the meaning of the Convention, because the policy did not differentiate between individual adherents; they were all to be executed if captured.

The revenge claim I have already set out the Tribunal's treatment of the revenge claim. The Tribunal relied on Magyari, in which O'Loughlin J held an applicant's fear of being victimised by gypsies, concerned about his involvement in a motor vehicle accident, had no connection with a Convention reason. The Tribunal correctly observed Mr Abdi "fears revenge from other sub-clan members over deaths that occurred when his father was killed" and, as in Magyari, "(t)hey are interested in revenge, and the exacting of retribution"; but it then fell into the error of treating all fears of revenge as falling outside the Convention. O'Loughlin J did not say that. He was referring to the facts of a particular case where the alleged threat of revenge concerned the applicant as an individual; he was targeted because he was the individual involved in the motor accident, not because of his race, religion, political opinion or whatever. It is wrong to extrapolate from that decision a general rule that a fear of revenge can never be a fear covered by the Convention. Assume that, in retaliation for an act of violence by people of religion X, adherents of religion Y indiscriminately target adherents of religion X. The latter are at risk of a revenge killing, not because of who they are as individuals but simply because of their religion; the feared persecution falls within the Convention. It was not sufficient in this case for the Tribunal to instruct itself that Mr Abdi's fear was that of being the victim of revenge arising out of deaths in the leadership or land dispute case; the Tribunal needed then to determine whether this fear arose out of his membership of a group of people identified in the Convention (for example, the Weitein sub-clan) or was purely personal (for example, his relationship with his father). The Tribunal failed to address that issue.

Relocation The Tribunal set out at some length, and in an unremarkable way, the law concerning the possibility of an applicant relocating in his or her own country. There were, however, two problems about its conclusions. They are connected. First, northeast Somalia is only a suitable place of relocation for Mr Abdi if it is accessible to him without significant risk. There was no evidence to establish this was the case. The main point of international access to Somalia is Mogadishu, a city in which serious inter-clan problems continue. If Mr Abdi were deported back to Mogadishu, would he be able safely to make his own way to the northeast? The Tribunal did not say. Or did the Tribunal assume the Australian government would organise his secure conveyance to the northeast? There is no indication it did. The matter of access was not even addressed in the Tribunal's reasons. Perhaps this was because the Tribunal failed to raise the issue of relocation with Mr Abdi. This failure is the second problem about the Tribunal's decision on relocation. It meant the Tribunal failed to act fairly, justly and according to the substantial merits of the case; especially having regard to an undertaking the Tribunal gave Mr Abdi at the beginning of the hearing. The Tribunal member said: "The Tribunal is inquisitorial in nature. That means not only have I had a look at the documents and information that you have submitted but I have information that has been obtained from other sources, either concerning you or your claims. If I have any information which I consider is adverse in particular to your claims, I will tell you about it and give you an opportunity to respond." The Tribunal's information about the northeast, and its theory that the northeast furnished a suitable place of internal relocation, was clearly information (and a theory) adverse to Mr Abdi's claim to a protection visa. However, in disregard of its undertaking, the Tribunal failed to tell Mr Abdi about it and give him an opportunity to respond.

Orders The Tribunal's decision is seriously flawed. In relation to each of the first and second points argued by Mr Colborne, the Tribunal fell into an error of law, being an incorrect application of the law to the facts as found by it: see s476(1)(e) of the Migration Act. Those points also involve a failure properly to address the issues that arose out of the claims made by Mr Abdi. This was a failure to accord substantial justice: see Eshetu v Minister for Immigration & Ethnic Affairs(1997) 71 FCR 300 and Sun Zhan Qui v Minister for Immigration & Ethnic Affairs (1997) 151 ALR 505 at 546-549. Mr Colborne's third point (relocation) also involved a failure to accord substantial justice. Having regard to these defects, it was apparent the decision could not stand. Accordingly, I set it aside and remitted the application to the Tribunal where it will be considered afresh by another Tribunal member. I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox

Solicitor for the Applicant: Kessels and Associates

Solicitor for the Respondent: Australian Government Solicitor

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