Ali v Minister for Immigration & Multicultural Affairs

(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.

(1995) 57 FCR 565

(1992) 39 FCR 401

(1997) 190 CLR 225