Chan Yee Kin v Minister for Immigration and Ethnic Affairs

REASONS FOR JUDGMENT This is an application for judicial review by Abdullahi Mustaf Hamad ("the applicant") of a decision of the Refugee Review Tribunal ("the Tribunal") of 18 May 1998. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") refusing to grant the applicant a protection visa. The Tribunal also decided it was not satisfied that the applicant was a refugee. A criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"): see s 36 of the Migration Act 1958 (Cth) ("the Act") The applicant is a citizen of Somalia who arrived in Australia on 6 March 1998 without a passport or entry permit. On 10 March 1998, the applicant lodged an application with the Department of Immigration and Multicultural Affairs and on 15 April 1998 that application was refused by a delegate of the Minister. Both the delegate and the Tribunal considered the circumstances of the applicant and whether the applicant was a refugee. Art 1A(2) of the Convention contains, for present purposes, the definition of refugee. It provides: … the term 'refugee' shall apply to any person who; … (2) owing to a 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 in being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it. The case of the applicant before the Tribunal was that he was a member of a minority clan in Somalia and, as such, was likely to be persecuted if he returned to Somalia. The clan is described as the Yahar or Yibir clan. The first description, which I adopt, is used in the south of Somalia and the other elsewhere. The reasons for decision of the Tribunal commenced with a discussion of the relevant legislation and the consideration by Australian courts of what is comprehended by the definition of refugee. The Tribunal went on to deal with the various accounts that had been given by the applicant of his experiences in Somalia and the circumstances in Somalia more generally. They were perceived by the delegate as inconsistent. Ultimately, however, the Tribunal proceeded on the basis that it would accept what the applicant had said. The reasons for decision, apart from some formal observations, concluded with a section entitled "Findings and Reasons". That section contained various subsections. The first was headed "Somalia" and dealt with circumstances in Somalia generally. That was followed by a subsection "Situation of Yahar and Abgal Clans" which dealt with the social position of members of the Yahar clan and the attitude to them adopted by members of the Abgal clan. The subsection "The Applicant's Circumstances" dealt with the applicant's experiences in Somalia and the treatment that had been meted out to his father and two brothers. The subsection "Clan as a Social Group" dealt with the status of clans for the purposes of the Convention, and the subsection "Clan Warfare" dealt with the circumstances in Somalia more generally and whether clan warfare might constitute persecution for reasons of membership of a particular social group. In the subsection "The Applicant's Circumstances", the Tribunal recounted what had happened to the applicant's father and brothers in Somalia. One brother had been killed by members of the Darod clan because they believed he was a member of another clan, the Hiwaye. His father had been detained and died in prison. He had been detained because it was believed he had been spying for the Darod. Another brother had been detained by members of the Hiwaye clan when he disclosed he was a member of the Yahar clan. That brother was later executed. The last subsection was "Findings" which drew together some matters discussed in preceding subsections. In it the Tribunal said: Findings The Tribunal accepts that violent lawlessness has been endemic in Mogadishu and nearby areas in Somalia (including in Kismayu) since the outbreak of civil war in 1991. The Tribunal also accepts that the only security available to many people has been the membership or protection of a large armed clan and that members of small clans have been in a position of particular vulnerability, not least because they were not themselves protected by armed militias. However, the fact that such a group may be vulnerable to abuse by armed and lawless militias does not of itself demonstrate that such abuse arises for a Convention reason. It does not appear from the evidence in this case that the shifting and unstable patterns of clan alliances and communal violence which gave rise to tragic difficulties for members of the Applicant's family in Kismayu and Mogadishu formed part of a 'course of systematic conduct' against the Applicant's clan or sub-clan. His brother in Kismayu was mistaken for an Abgal (Hiwaye) in fighting between Darod and Hiwaye; his father was suspected of spying for the Darod because he came to Mogadishu from Kismayu; and his brother was killed by Abgal militia apparently in revenge for Yahar killing of Abgals in the closing days of the old Barre regime. All of this took place in early 1991 at the height of the civil war in the context of fighting between the Darod and Hiwaye (including the Abgal) in which many people were caught up. There was no evidence before the Tribunal that this was part of a systemic or sustained targeting of Yahar over a period by reason of their clan identity. The Applicant's fear of suffering harm arising from the uncertainty and violence of civil conflict and the recurring pattern of communal violence in Somalia is not in this case persecution for the purposes of the Convention. It follows that the Tribunal is not satisfied that these circumstances indicate that the Applicant faces a real chance of persecution for a Convention reason on return to Somalia. (Emphasis added) For ease of reference I will refer to this passage as the "central findings" of the Tribunal. The findings of the Tribunal in this passage are in a summary form. They concern matters discussed in more detail in the preceding subsections. That discussion dealt with the Kismayu area of Somalia from where the applicant came. It was an area in which, according to a United States Department of State Country Report on Human Rights Practices of 1997 ("the US report") there had been serious fighting among rival clans. An extract of the report is quoted by the Tribunal. In the quoted extract there is a discussion about fighting between the principal clans. As to minority clans the US report stated: In virtually all areas, members of groups other than the predominant clan in that area are excluded from effective participation in governing institutions and are subject to discrimination in employment, judicial proceedings and access to public services. Members of minority groups are subjected to harassment, intimidation and abuse by armed gunmen of all affiliations. It appears from the way the Tribunal dealt with this report and later comments about it that it accepted the US report as a reliable account of circumstances in Somalia. It is comparatively clear from the approach adopted by the Tribunal that it accepted that members of the Yahar clan are a minority group of the type referred to in the report and thus are subjected to harassment, intimidation and abuse by armed gunmen of all affiliations. Before considering the issues raised in this appeal it is necessary to place in context some of the comments made by the Tribunal in its central findings. The reference to "course of systematic conduct" picked up a concept earlier discussed by the Tribunal in the subsection headed "Clan warfare". The Tribunal had said: The Applicant claims that he has experienced and fears persecution in Somalia by reason of his membership of a particular clan, the Yahar, in the context of a sustained pattern of civil unrest and civil war in Somalia in which he did not have the protection of belonging to a major clan with its own militia. Whether in a particular case discrimination amounts to persecution in a Convention sense will depend upon all the circumstances. Conduct will be persecutory in the Convention sense if serious harm can be seen as part of a course of systematic conduct, motivated or attended by enmity or malignity, and directed for a Convention reason against a person or a group because of a difference which the persecutor will not tolerate. It is not enough by itself to have a well founded fear of war or of civil unrest or of harm motivated by such things as revenge or land disputes. (Emphasis added) For ease of reference I will refer to this passage as the "definition of persecution" of the Tribunal. The Tribunal then referred to Abdalla v Minister for Immigration and Multicultural Affairs (unreported, 6 January 1998, Beaumont J). The Tribunal went on: It is not in dispute that Somalia has been in a state of civil war, much of it clan based, with intrinsically unstable and frequently shifting factional and clan alliances. However, no matter how serious 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. It is implicit in the first paragraph of the Tribunal's central findings, that it accepted that members of the Yahar clan were particularly vulnerable to abuse by armed and lawless militias. However in the concluding sentence of the second paragraph in its central findings, the Tribunal indicated that there was no evidence that the treatment meted out to the applicant's father and two brothers was part of a systematic or sustained targeting of Yahar over a period by reason of their clan identity. Plainly the reasons of the Tribunal have to be read generously: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291 per Kirby J. It is likely that what the Tribunal was doing was searching for evidence which might indicate one way or the other whether there was persecutory conduct of the type it had earlier referred to in its definition of persecution. However what the Tribunal appears to have been saying was that conduct identified in its definition of persecution had not been pointed to by the applicant notwithstanding the evidence concerning the fate of his father and brothers. Accordingly there was no evidence of persecution of the type to which the Convention applied. This involves, in my opinion, too narrow an approach to what the Convention comprehends. I accept that the authorities appear to demonstrate a divergence of approach or at least of emphasis in judicial consideration of what might constitute persecution. One approach can be traced to the judgment of Wilcox J in Periannen Murugasu v Minister for Immigration and Ethnic Affairs (unreported, 28 July 1987). His Honour observed: Moreover the fear must be one of being 'persecuted', for a particular reason. The word 'persecuted' suggests a course of systematic conduct aimed at an individual or at a group of people. It is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances. I agree with counsel for the applicant that it is not essential to the notion of persecution that the persecution be directed against the applicant as an individual. In a case where a community is being systematically harassed to such a degree that the word 'persecution' is apt, then I see no reason why an individual member of that community may not have a well founded fear of being persecuted. This formulation was referred to with approval by McHugh J in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. His Honour said at 429: The notion of persecution involves selective harassment. It is not necessary, however, that the conduct complained of should be directed against a person as an individual. He or she may be 'persecuted' because he or she is a member of a group which is the subject of systematic harassment. And later 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 threat need not be the product of any policy of the government of the person's country of nationality. It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution. A similar approach was adopted by Beaumont J in Abdalla v Minister for Immigration and Multicultural Affairs. It is clear that the judgment of Beaumont J in Abdalla influenced the approach of the Tribunal in the present matter, as the reasons indicate that the Tribunal's decision in that matter, which had been upheld by Beaumont J, was particularly helpful. The question of whether it is necessary for an applicant to demonstrate systematic conduct was recently considered by Hill J in Mohammed Dahir Mohammed v Minister for Immigration and Multicultural Affairs (unreported, 11 May 1998). After referring to the passages from the judgment of McHugh J in Chan which I have just set out, Hill J said: It is evident from the passage above cited 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 the 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 co-ordinated acts directed at him or her which can be said to be not isolated but systematic. In Abdalla v Minister for Immigration and Multicultural Affairs (unreported, Beaumont J, 6 January 1998) his Honour rejected an attack on a decision of the Tribunal on the basis that the Tribunal had required there be a course of systematic conduct before there could be persecution. That was a case, like Periannan, where the contrast was between communal violence to which all were subjected on the one hand, and a course of systematic conduct claimed by the applicant to be directed to her. I do not read his Honour as seeking to graft some new test on persecution outside this context. If that was what his Honour intended then, with respect, I differ from him. These authorities were referred to by counsel during the hearing of this matter on 3 August 1998. However since that hearing a Full Court has addressed the apparent divergence of approach to this issue of systematic conduct in an appeal from the judgment of Beaumont J of 6 January 1998. In Abdalla v Minister for Immigration and Multicultural Affairs (Full Federal Court, unreported, 20 August 1998) a Full Court constituted by Burchett, Tamberlin and Emmett JJ allowed an appeal from the judgment of Beaumont J. The parties have made written submissions in relation to the judgment of the Full Court. The Full Court said in its joint judgment: 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 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 emphasis appears in the judgment of the Full Court.) In my opinion the approach of the Tribunal in this matter understandably identifies too narrowly what might constitute persecution. I say understandably because the Tribunal did not have the benefit of the joint judgment of the Full Court in Abdalla. It is relatively clear, in my opinion, that the Tribunal in the present matter was seeking to ascertain whether the conduct directed against members of the Yahar clan was manifestly part of a course of systematic conduct. It appears to have accepted, when dealing with the US report, that members of the Yahar clan are subjected to harassment, intimidation and abuse. To restrict the inquiry to whether this type of treatment arose from a course of systematic conduct involves an erroneous and too narrow approach to what constitutes persecution. I am fortified in this conclusion by a recent judgment of a member of the Full Court in Abdalla, Burchett J, who considered the same issue as a single judge in Barud v Minister for Immigration and Multicultural Affairs (unreported, 3 September 1998). His Honour was considering a decision of the Tribunal concerning a member of the Yahar clan. I accept that it must clearly be kept in mind that this common feature should not result in the decisions of the Tribunal being treated in some homogenous way. Nonetheless the following observations of Burchett J are an apt description of what I perceive to be the erroneous approach of the Tribunal in the present matter. His Honour said: 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. In my opinion the applicant has established in these proceedings reviewable error on the part of the Tribunal. I set aside its decision and the matter is remitted to the Tribunal to be heard in accordance with law. The respondent is to pay the applicant's costs.