Chan v Minister for Immigration and Ethnic Affairs

REASONS FOR JUDGMENT This is an application, under s 476 of the Migration Act 1958, to review a decision of the Refugee Review Tribunal affirming a decision not to grant the applicants a protection visa. The applicants are a mother and two of her children, who belong to a small minority group or clan in Somalia known as the Yahar in the south of the country. They are apparently known as the Yibir elsewhere. An authority quoted by the tribunal indicates that they may number less than 1% of the total population. Mrs Kabail claimed to be a refugee within the well known Convention definition, and her children's claims were dependent on hers. It was Mrs Kabail's case that the Yahar had no rights in Somalia, and that she and her family were subjected to bodily harm, robbery and treatment as an inferior caste. Independent sources consulted by the tribunal confirmed that the Yahar "are despised as an inferior class", and occupy inferior positions, in which they are subordinated to more powerful clans or sub-clans in the localities where they live. In particular, Mrs Kabail spoke of several serious incidents to which she personally had been subjected, together with members of her family. In 1993, a faction of one of the major clans, the Hawiye, invaded the town where she lived, Jowhar. Her mother was shot in the leg and her brother in the head, while she was threatened with rape. She was pregnant at the time. She was beaten, and they said they beat her "because she was part of the Abgal", the group with which as Yahar at Jowhar, her family was associated. After this incident, most of her family escaped to Ethiopia, but she and her husband remained in her father's house. Then, in November 1997, Mrs Kabail's sister in law and her thirteen years old son were killed and her mother in law was beaten with a rifle butt. The aggressors were Hawiye, whose immediate motive appears to have been robbery, and there was no one the family could turn to for defence. When her husband attempted to complain to the Hawiye elders, the result was that he, she and her brother were beaten, so that her brother's arm was broken. The reason given was: "How can some[one] like you who is Yahar complain about us to our elders?" Other people simply looked on. The significance of this evidence may have been entirely missed by the tribunal, which concentrated on the original attack and its motivation, rather than on the question whether the second attack revealed a serious form of racially motivated persecution. Mrs Kabail also gave evidence that in 1992 an Abgal man seized a farm which belonged to her husband. She said he "snatched the farm from my husband by force. He took the land … the farm and he say this is, you know, because you are Yahar you can't look after the farm any more". Twice in this passage of the evidence, there is a note inserted in the transcript "indistinct". In a further passage, immediately following it, the terms of which indicate that the transcript is quite mangled because of difficulties with the tape or otherwise, Mrs Kabail gave evidence of a subsequent conversation, presumably in 1997, between herself and the Abgal man. Her evidence was to the effect that an agreement was reached to permit the Abgal man to have the land if he helped her to get to Italy, and that he did so. The tribunal seems to have thought that, as this arrangement involved the recognition of the true title to the land, it cast doubt on whether she had given "a completely candid explanation of her family's relationship with the Abgal", and it was not "an account which would lead me to find that she was persecuted". The reasons make no reference to the possibility that someone who had wrongfully seized valuable land might have been anxious to regularize his position in case the rule of law might come to be reasserted in the future. The tribunal concluded that none of these accounts given by Mrs Kabail was an "account in which she, her family or any of the Yahar in the area were targeted or persecuted for reasons of their membership of the Yahar clan." It continued: "The Applicant is not able to satisfy me that any form of harm she might face in Somalia would form part of a course of systematic action directed against her for reasons of her clan membership or any other Convention-related reason. Her representative submitted that, 'the chances for security and welfare in the case of lower-caste clans would appear to be significantly less favourable in condition[s] presently prevailing, where there is no central government in Somalia, than, say, during the Siad Barre period, when there was.' As stated above I accept this is the case. However, I [am] bound to determine whether or not the Applicant's circumstances in the condition[s] prevailing in her country are such that she or her clan face systematic action aimed at (her as) an individual or (her) group of people. The account she has provided is consistent with one of suffering as a consequence of inter or intra clan fighting." (In two places in this passage, I have added emphasis to the word "systematic".) The tribunal went on to discuss the problems created by the civil war in Somalia. The tribunal referred to what McHugh J said in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 430: "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 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." The tribunal also referred to the statement of Gummow J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 283: "The first condition is that a person be outside the country of nationality by reason of (owing to) a fear of persecution which is well founded both in an objective and subjective sense. This means that persons who are outside the country of nationality by reason of such causes as natural disasters, war and economic misfortune cannot answer the requirements of [the definition]." The tribunal then went on to refer to the decision of the tribunal in Abdalla v Minister for Immigration and Multicultural Affairs and the first instance judgment on review of that decision. In doing so, the tribunal was placing reliance upon a decision which has since been overruled: Abdalla v Minister for Immigration and Multicultural Affairs (unreported, Burchett, Tamberlin and Emmett JJ, 20 August 1998). Following the citation of Abdalla, the Tribunal continued: "The evidence in this present case indicates a situation where the patterns of communal violence do not form part of 'a course of systematic conduct' against the Applicant's clan group. Clearly, the Applicant claims fear of suffering harm within the recurring pattern of communal violence in Somalia and, I accept that her membership of a minority group renders her more vulnerable but, according to the authorities cited, this is not persecution for the purposes of the Convention. I conclude on the evidence that the Applicant does not face a real chance of Convention-related persecution in Somalia. She is therefore not a refugee." It will be seen that the final conclusion not only follows directly upon a quotation from the flawed decision of the tribunal in Abdalla, but also reflects precisely that decision's reliance, in the context of events in Somalia, on the distinction between "a course of systematic conduct" and the infliction of violence upon a group in a manner not answering this description. The tribunal's understanding of the principle it was applying is perhaps best indicated by a reference back to the earlier passages I have cited, which show that the tribunal considered the applicant must demonstrate "a course of systematic action directed against her for reasons of her clan membership or any other Convention-related reason", or "that she or her clan face systematic action aimed at (her as) an individual or (her) group of people". These formulations make the requirement that the action be "systematic" of the essence, so that, without it, even action "directed against" or "aimed at" a group, or an individual by reason of membership of a group, will be insufficient in the tribunal's view for the purposes of the Convention. This would impose upon the definition of a refugee a limitation not suggested by the language of the Convention, and going far beyond anything which has ever been suggested by any court. The joint judgment of Burchett, Tamberlin and Emmett JJ in Abdalla contains the following statement: "In substance the RRT 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. The decision in respect of whether recurring communal violence amounts to 'persecution' depends on whether there is a purpose behind the recurring pattern which is referable to a Convention ground. … Competition for territory, depending on the circumstances, may also lead to persecution." The joint judgment proceeded to examine the decision of the House of Lords in Adan v The Secretary of State for the Home Department [1998] 2 WLR 702. It commented: "It is evident from these observations that the decision in Adan 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. It is not in any way a controlling authority in relation to the present case. The question to be investigated before reaching a conclusion as to whether there is persecution in the present case which it raises is whether the evidence establishes that all sections of society are equally at risk so long as the civil war continues. In the RRT decision, this issue is not addressed." The same comment might be made in the present case. In Mohamed v Minister for Immigration and Multicultural Affairs (unreported, Hill J, 11 May 1998), Hill J referred to the judgment of McHugh J in Chan and also to Periannan Murugasu v Minister for Immigration and Ethnic Affairs (unreported, Wilcox J, 28 July 1987). Hill J said: "It is evident from the passage [in the judgment of McHugh J in Chan at 429-430] 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." In Chen Shi Hai v Minister for Immigration and Multicultural Affairs (unreported, French J, 5 June 1998), there is a discussion of the effect of the expression "for reasons of" in the Convention definition. It is pointed out that this expression imports a requirement of a causal connection between the apprehended persecution and membership of the particular race, group et cetera. French J says: "To recognise the necessity for some form of selection principle to operate in this way is not to encourage the development of rules and principles which will constrict the protection of the Convention. As Burchett J observed in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 567-568: 'The general language must be allowed freedom of application, so far as it reasonably extends, in order not to shut out inadvertently victims of the as yet unforeseeable forms of oppression that future despotism, fanaticism, cruelty and intolerance may invent. The Convention was intended to give hope to all fugitives fairly encompassed by its language. It seems to me that those who framed the provision wisely chose broad expressions, which it is not the Court's task to constrict.'" Having regard to these statements of the law, I am satisfied that the tribunal erred in a matter of fundamental principle in the present case. The tribunal was not "bound to determine whether or not the Applicant's circumstances … [were] such that she or her clan face[d] systematic action aimed at" her or the group to which she belonged. It was not decisive that she was unable to satisfy the tribunal "that any form of harm she might face in Somalia would form part of a course of systematic action directed against her for reasons of her clan membership or any other Convention-related reason". It was not necessary that any such harm would form part of a course of systematic action. The presence of system, in some cases, may make it easier to conclude there was persecution, but the absence of it cannot deny that acts done with the motivation that is implicit in the idea of persecution may have been persecutory: see Ram at 568-569. I have considered whether, nevertheless, the findings of fact made by the tribunal precluded Mrs Kabail from succeeding, even had a correct view of the law been taken. Cf Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353. However, I have come to the conclusion that the error was so fundamental it must have pervaded those very findings of fact. The whole matter was approached from the wrong point of view. The tribunal was not asking itself whether the applicant had "a well founded fear of being persecuted" for a Convention reason, but whether the fears it accepted she had fell within its own too narrow conception of the scope of the Convention. Accordingly, the court orders that the tribunal's decision be set aside, and that the matter be remitted to the tribunal differently constituted for rehearing in accordance with law. The respondent must pay the applicants' costs.