Hussein v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|1998-05-28|Before: Sackville J, Ryan J, Madgwick J, Lindgren J, Mansfield JJ

THE COURT: 1 This is an appeal from a decision of Lindgren J given on 3 November 1998. His Honour dismissed an application under s 476(1) of the Migration Act 1958 ("the Act") to review a decision of the Refugee Review Tribunal ("the Tribunal") given on 29 May 1998, itself affirming a decision of a delegate of the respondent ("the delegate") not to grant to the applicant a protection visa. 2 The appellant was born in Somalia in October 1972. He is a member of the Darod tribe or clan, and of the Balcad sub-clan ("the Balcad clan"). He lived with his family in the town of Jilib in the lower Juba region of Somalia. In that area, the Balcad clan also lived with the Ogaden tribe, also a sub-clan of the Darod clan ("the Ogaden clan"). 3 In 1991, the Barre government of Somalia collapsed, and there has since been no national government in place in Somalia. The appellant left Somalia some time afterwards, and then spent a lengthy period in Mozambique, and a period of some six months in South Africa, before arriving in Australia on 11 January 1998 without a passport. On 21 January 1998 he applied for a protection visa under s 36 of the Act. It is the refusal of that application which is the subject of this appeal. Issues on the appeal 4 The appellant's claim to be eligible to a protection visa is based upon 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"), and in particular Article 1A(2) which provides that a refugee is any person who:

5 His primary claim is that he has a well-founded fear of being persecuted if he were to return to Somalia, for reasons of his membership of a particular social group, namely the Balcad clan. It is claimed that the civil unrest which has existed in Somalia since 1991 has included conduct involving systematic attacks upon members of the Balcad clan by reason of their membership of that clan, and that such conduct amounts to persecution. The evidence upon which that claim is based included the Tribunal being asked to accept that there had been a series of attacks upon the applicant and his family, and to look to the reason for them.

6 An alternative foundation for the appellant's claim to have a well-founded fear of persecution is because of his membership of his particular family. He gave evidence that one reason why his family had been targeted by others was that his brother Abdul Rahman Hussein ("Abdul Rahman") had previously been a "spy" for the Barre government. The Tribunal rejected that claim. The appellant did not seek to revive that claim before Lindgren J or on this appeal. It is not necessary to refer further to it. 7 The appellant presented to the Tribunal a further foundation for his claim. It was that the Balcad clan, which was a small tribe, had lived in harmony with but generally under the benign control of the Ogaden clan until the civil war, but that since then, the Ogaden clan itself had persecuted the Balcad clan by expropriating its cattle and property by reason of the Balcad's clan membership. Again, the Tribunal rejected that claim, and it has not been sought to be revived. Again, it is unnecessary to refer to it further. 8 In Minister for Immigration and Ethnic Affairs v Abdi (Full Court, unreported, 26 March 1999) the Court decided that, in the context of a civil war, the fact that the war is 'clan based' should not divert attention from the questions posed by the Convention to identify a refugee. The Court said at par 37:

"The relevant question raised by the language of the definition requires a determination, on the evidence, of whether the harm or detriment is for a Convention reason. In the present case there appears to be a risk of serious harm in Somalia even to bystanders and those on the sidelines who are incidentally caught up in what might be called the "cross-fire". This, however, is not sufficient. The evidence must go further and disclose a Convention connection between the persecution of the applicant or the clan to which he belongs and the risk of harm. This is turn calls for a consideration, so far as can be determined on the evidence, as to the purpose and nature of the war, the way it is conducted, and the objectives sought to be achieved by the war." 9 In considering the appellant's primary claim, it was therefore necessary for the Tribunal to address the purpose giving rise to the violence which the appellant has experienced and which he fears. 10 The appellant, before the learned trial judge, and on this appeal, argued that the Tribunal had erred in three respects in considering that question. The first is that the Tribunal erred in law by failing to look behind the fact of the civil war in Somalia to determine whether, in respect of the Balcad clan, the participants in the civil war were in effect selectively harassing its members by reason of that clan membership. The respondent accepted, if that were the case, that the harassment was of sufficient moment to constitute persecution under the Convention. Secondly, it was put that the Tribunal failed to address the appellant's claims about certain incidents of which he gave evidence and which, if accepted, would strongly fortify his claim that members of the Balcad clan are being persecuted by reason of their membership of that clan. Finally, it was contended that the Tribunal failed to pursue through the appellant at the hearing questions concerning certain of those incidents so as to elicit from the appellant the underlying causes, and so it failed to conduct properly a hearing in accordance with s 425(1) of the Act and to provide to the appellant a decision according to substantial justice and the merits of the case: s 420(2)(b) of the Act. The respondent on this appeal did not dispute that those complaints, if made out, provided grounds of review under s 476(1)(a) and (e) of the Act. Was there an error of law? 11 It emerged in submissions that the appellant's real criticism was not really that the Tribunal had failed to identify and address the correct legal question, but that it had failed to understand and address the evidence to which that question is directed. The Tribunal's reasons do indicate that it looked behind the fact of the civil war to ascertain whether, at least in respect of the conduct which the appellant feared, a reason for that conduct was his membership of the Balcad clan. Thus, the Tribunal said:

"I accept that, as a young Somali male he may still be at risk of being caught up in incidental violence as a consequence of interclan conflicts and to that extent there is a basis for his fear. I also accept that there is no centralised protective authority in Somalia and lawlessness and any lack of access to protection from violence in Somalia cannot be dismissed as remote or insubstantial. However, in this case, such situations could not reasonably be said to affect the Applicant for Convention-related reasons. The Applicant is not able to satisfy me that any form of harm he might face in Somalia would form part of a course of systematic action directed against him for reasons of his clan membership or any Convention-related reason."

The Tribunal explained that conclusion by reference to the findings on the evidence, which it described as follows:

"The evidence in this 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. Clearly, the Applicant claims fear of suffering harm within the recurring pattern of communal violence in Somalia but, according to the authorities cited, this is not persecution for the purposes of the Convention."

12 Counsel for the appellant frankly acknowledged that the review of the Tribunal's decision involved trying to disturb findings of fact made by the Tribunal. Did the Tribunal err in its approach to the evidence? 13 The Tribunal referred to the appellant's written statements and to his oral evidence. After rejecting the evidence that the appellant and his family had been targeted because his brother was a "spy", and the evidence that the Ogaden clan were exploiting the Balcad clan, the Tribunal found "I further find that shortly before his departure from Somalia there was interclan fighting between the Hawiye clan and Ogaden. In the course of that fighting a shell hit the Applicant's family home killing a number of members of the family. The Applicant was not in the house at the time and fortunately escaped the fate of those members of his family who were. This incident, "incidental violence as a result of [interclan conflict]" was such that the Applicant became fearful and, on his father's advice decided to leave Somalia." 14 It was upon the basis of that finding that the Tribunal concluded, not surprisingly, that it was not satisfied that there was no selective harassment of the Balcad clan so that the appellant's fears might be related to a Convention reason. 15 Counsel for the appellant however contended, by reference to the written statements of the appellant and his oral evidence, that there was other evidence touching on that topic. She did not contend that the general country information available to the Tribunal concerning Somalia provided any specific support for her contention that the evidence of the appellant was to the effect that, if he were to return to Somalia, he would be subject to persecution by reason of his membership of the Balcad clan. 16 The appellant's original application for a protection visa included that he was a member of the Darod tribe, and of the sub-clan Balcad. In response to the questions: "Who do you think may harm/mistreat you if you go back? Why do you think they will harm/mistreat you if you go back? What do you fear may happen to you if you go back to that country?"

"I was living in Jilib with my family. In 1991 the warlords, Hawiya, came to Jilib. My two eldest brothers and their wives were killed by these people. These warlords had come to fight another tribe but in fact our tribe/subclan was included. This was why my brothers were killed. My father was shot in both legs. My brother-in-law was also killed. When my father was injured he called me and told me that I should flee as otherwise I would be killed too. He said that because I was a grown man I would be in great danger if I stayed. The warlords were mostly killing the men. … I cannot go back to Somalia because there is still problems there. I would face danger if I went back. The Hawiye tribe still has control of the area where I am from. I would be killed if I went back. Only Hawiya people can live there. I could not go anywhere else in Somalia because I would not have a clan to live with. I do not know where any of my family is. The situation is still dangerous for someone like me and if I was caught by the Hawiya I would be killed." 17 The delegate's decision of 4 February 1998 was made on that material, without any interview of the applicant. When the applicant applied to the Tribunal for a review of the delegate's decision, he submitted a further statement in the following terms:

"My brother Adbul Rahman Hussein was killed by Hawiye warlords in 1991. My other elder brother and their two wives were also killed at this time. Prior to his death Abdul Rahman had worked as an officer for the government. His duties included obtaining and gathering information for the government as to clan movements and fighting. He provided all this information he obtained from contack [sic] to the government.

I believe that this was a part of the reason that he was killed. He was regarded as a spy. He was well-known in our community and as such so was our family. I fear that this relationship with a "spy" would make it more dangerous to return to Somalia for me."

18 The third source of information was his oral evidence to the Tribunal. The appellant said that he was in the house when the flying bomb hit. The Tribunal appears to have overlooked that piece of evidence, but it does not have any significance to its relevant findings. He said expressly that his father was injured and his brother-in-law killed in separate incidents.

19 He was asked about the incident that killed his brother-in-law, and he said:

"Those people when they entered the place and they took control of it they gathered all the people at one place … they were Hawiye … They took control of the place, they gathered everyone and everyone they suspect links with the previous government they just shot them in the streets. The reason my brother was just shot [that may to be a reference to his brother-in-law] - many of us were killed because we belong to Darod at first and there is another problem, particularly my family, that my brother individually has worked for the government."

20 He identified that as his brother Abdul Rahman. The Tribunal asked him about the spying activities, and then returned to the issues of the killing of his brother-in-law and the injuring of his father. He said he was in the bush when his father and brother-in-law were injured and killed respectively. His father then called him and advised him to go away. Those incidents were not then further explored. Towards the end of the examination, the Tribunal asked:

"It is now three years since you left Somalia, what do you believe would happen if you went back to Jibil now?" He said he would be killed. He was asked who would kill him and why. He said there were two reasons. The first concerned his fear of revenge because someone might associate him with his brother and the work he had done for the government. (The Tribunal rejected that claim). The other reason was that someone of his clan could not live in Somalia without some sort of government in place because there is no law and order, and he could be killed. At the end of his examination, he also volunteered that he suffered an injury at the back of his neck where somebody hit him with the bayonet of a gun. He said that happened in his brother's house when the Hiwaye came in to the house to

"check who's alive and who's dead with the bayonet of the gun and they thought I was killed and this is the bayonet gun in my neck."

21 On the basis of that material, it was submitted that there were a number of different incidents which the Tribunal had to address, namely

· the death of his two eldest brothers and their wives killed by a flying bomb · the death of his brother-in-law · the injury to his father · the death of his brother Abdul Rahman · the injury to his neck. 22 The Tribunal's findings do not refer to them other than the occasion when the flying bomb killed two of the appellant's brothers and their wives, and to the death of his brother Abdul Rahman for his "spying" activities. In recording the appellant's evidence, it noted that his father was hurt on a separate occasion when he was running and was hit by bullets. Even in the recital of the appellant's evidence, the Tribunal does not expressly refer to the other incidents. However, it does not necessarily follow that the Tribunal overlooked that evidence. The reasons of the Tribunal are:

"meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed."

per Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. 23 The failure to address a central question in the case advanced by an applicant for a protection visa may constitute a failure to act according to substantial justice and the merits of the case, as required by s 420(2)(b) of the Act: Sun Zhan Qui v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71 at 117-121 per Wilcox J and at 126 per Burchett J; Calado v Minister of State for Immigration and Multicultural Affairs (Full Court, unreported, 2 December 1998); Meadows v Minister for Immigration & Multicultural Affairs (Full Court, unreported, 23 December 1998) per Einfeld J and per von Doussa J. 24 However, as the learned trial judge pointed out, the Tribunal explicitly considered the central question whether the appellant faced harm by reason of his belonging to the Balcad clan. It found that he did not. It concluded that the harm which he feared if he were to return to Somalia was simply because of the widespread fighting in the civil war in Somalia. The evidence in relation to which the Tribunal did not make express findings in its reasons was said to go to that issue, but when it is examined, that evidence does not purport to ascribe to any of the incidents a motivation on the part of the offender or the offending group related to the fact that the appellant's family who were the victims, or the appellant, were members of the Balcad tribe. The incident in which the appellant's two brothers and their wives were killed was ascribed to fighting between the Hiwaye clan and the Ogaden clan, and not to some conduct directed against them as members of the Balcad clan. The death of his brother Abdul Rahman was asserted to be a consequence of his spying activities, but once that evidence was not accepted by the Tribunal, there was no evidence attributing his death to any discriminatory focus upon him as a member of the Balcad clan. There is no evidence in respect of the other incidents he described which went beyond identifying Hiwaye clan members as those responsible for the several attacks. It was not asserted that those attacks were because the Hiwaye clan was aiming at destroying or damaging the members of the Balcad clan by reason of their membership of that clan. Indeed, putting aside the expressed reason for his fear of returning to Somalia because of his brother's spying activities (as the Tribunal rejected the evidence upon which that reason was based), the appellant's expressed reason for his fear of returning to Somalia was not because there was some purposeful attack upon the Balcad clan or its members generally or upon him by reason of membership of that clan, but because there was no law and order in Somalia. Understandably, the appellant is concerned about being exposed to the hardship and dangers of persons caught up in a civil war, but exposure to such hardship or dangers does not of itself amount to persecution for a Convention reason: see eg. per Davies J in Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 405. The evidence could not, as it stands, assist the Tribunal in taking the extra step of finding that the fear of persecution which he has is for reasons of his membership of the Balcad clan, or for a Convention reason. Accordingly, the appellant has not established that the Tribunal failed to address his primary claim or failed to have regard to evidence which, if considered, would have assisted that claim. Did the Tribunal fail to conduct the hearing properly? 25 The Tribunal must act "according to substantial justice and the merits of the case": s 420(2)(b) of the Act. It may be accepted that a failure to do so provides a ground of review under s 476(1)(a): Eshetu v Minister for Immigration and Ethnic Affairs (1997) 71 FCR 300. 26 It is contended for the appellant that the Tribunal failed to act in accordance with the obligation under s 420(2)(b), and failed to give the appellant an opportunity to be heard before it, contrary to s 425(1)(b) of the Act, by failing to question the appellant directly about the reasons for the attacks upon his father, his brother Abdul Rahman, his brother-in-law, and upon himself. It is said that there were lines of inquiry which the Tribunal ought to have followed up, but failed to do so. 27 In Paramananthan v Minister for Immigration and Multicultural Affairs (Federal Court, Full Court, unreported, 21 December 1998), Merkel J adverted to the function of the Tribunal (at 25-29). As his Honour pointed out, the Tribunal's obligation to review a decision properly before it (s 414(1)) is to be performed in a manner which incorporates "elements of an inquisitorial proceeding". Apart from the general obligation under s 420(2)(b) to act according to substantial justice and the merits of the case, the Tribunal must give an applicant an opportunity to appear before it to give evidence: s 425(1)(a), and it must give an applicant an opportunity to request that the Tribunal obtain oral evidence from a specified person or specified persons, and the Tribunal must have regard to those wishes: s 426. Subject to those express obligations, the procuring of evidence before the Tribunal, including from persons notified to it by the applicant, is in the hands of the Tribunal: ss 425(1)(b) and 426(3). If it considers evidence necessary, it has ample powers to procure that evidence: ss 427 and 428, and failure to give evidence is in certain circumstances a criminal offence: ss 433, 434. Apart from an applicant's right to give evidence, the Tribunal is not obliged to permit representation, examination or cross-examination of witnesses, or oral submissions: ss 427(6) and 425(2). 28 His Honour concluded in the light of that statutory structure:

"In my view the inquisitorial function of the RRT and the combined effect of the provisions to which I have referred, is such that the RRT is required to determine the substantive issues raised by the material and evidence before it. That duty, which was recognised by Brennan J in Bushell, is a fundamental incident of the inquisitorial function of an administrative tribunal such as the RRT. I would arrive at the same conclusion based on s 420, the nature, scope and requirements of which have been the subject of much judicial attention to the Court." 29 In Meadows (above), Merkel J again addressed the obligations of the Tribunal by reason of those provisions in the following way:

"Although the content of the obligation [under s 420(2)(b)] may be a matter of contention depending on the particular circumstances of the case, in my view an uncontentious duty of the RRT whilst conducting a review is to plainly and unambiguously raise with the applicant the critical issues on which his or her application might depend: see for example Singh v The Minister for Immigration and Multicultural Affairs 49 ALD 640 at 645 per Tamberlin J. A failure to raise the critical issues with the applicant undermines the duty of the RRT to give an applicant an opportunity to appear before it to give evidence (s 425(1)).

The most obvious application of the duty arises where the issues directly concern the applicant and relate to matters upon which the applicant could reasonably be expected to be able to give evidence."

30 Meadows provides an illustration of the failure by the Tribunal to comply with that obligation by failing to put the visa applicants on notice that it entertained a suspicion that they had fabricated evidence. The present circumstances are far removed from that. 31 The appellant points out that whether he now has a well-founded fear of persecution for a Convention reason depends upon whether there is a real chance of him suffering adverse events if he were to return to Somalia. In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575 Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said:

"In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events."

32 Thus, it is said, the Tribunal should not have left the appellant's evidence as it stood. It should have asked the appellant again, or more forcefully, why he believed his father was injured and his brother-in-law killed. It should have asked him why he was injured.

33 This is not the occasion to explore the boundaries of the obligation to provide an opportunity to be heard, or to conduct a review according to substantial justice and the merits of the case. The appellant had his attention drawn to the important issues in the application for the protection visa. He had the assistance of a solicitor in making his application for review to the Tribunal, including when his written statement to the Tribunal was submitted. During the hearing, the Tribunal provided him with the opportunity to present such evidence as he chose, and sought to understand his evidence by asking questions to that end. Towards the end of his evidence, the Tribunal expressly asked him what it was that he feared should he return to Somalia, and why he had that fear. He was able to respond to that latter question by giving two reasons, only one of which the Tribunal found to be warranted on the facts. In Durairajasingham v Minister for Immigration and Multicultural Affairs (1990) 50 ALD 469, Davies J dealt with an application for review based upon an allegation that the Tribunal, by specific questioning of the visa applicant, had been biased against him. His Honour noted that the Tribunal's function was "semi-inquisitorial", and concluded that the Tribunal did not demonstrate bias by putting to the applicant the problems in the story presented by him. His Honour said (at 475):

"The tribunal was providing a fair hearing to the applicant by making it clear to the applicant what were factors adverse to the applicant's case with which the applicant should deal. By seeking evidence on the crucial points, the tribunal was ensuring that the decision would consider the substantial merits of the case. … … it is a duty of a tribunal not only to listen to the evidence which an applicant may wish to give but also to test the applicant's evidence and to direct the applicant's attention to points which are adverse to the applicant's case and on which the applicant might wish to comment."

34 In a different context, Tamberlin J in Singh v Minister for Immigration and Multicultural Affairs (1997) 49 ALD 640 addressed a complaint by a visa applicant that he had not had an opportunity to address orally or deal with a claim made in material he had submitted by affidavit which the Tribunal regarded as not credible. His Honour observed that the case did not involve information of which the applicant was unaware: cp Kioa v West (1985) 159 CLR 550 at 557. His Honour said that what amounts to substantial justice for a determination in accordance with the merits of the case will depend in every case on the particular factual circumstances. 35 In Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Wilcox J said at 170:

"It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information." 36 Those comments have been referred to with approval by subsequent decisions of the Court, eg. in Luu v Renevier (1989) 91 ALR 39 at 49-50 and see also Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409 at 413-414 and the cases there referred to, and Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290. 37 It has also been accepted that similar considerations may apply by reason of s 420(2) following the introduction of Pt 8 of the Act; Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (above) at 119-121 and Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 560. Those principles have been applied in this Court, eg. in Barkat v Minister for Immigration and Multicultural Affairs (Sackville J, unreported, 28 May 1998), Drekevutu v Minister for Immigration and Multicultural Affairs (Madgwick J, unreported, 11 August 1997), and Demir v Minister for Immigration and Multicultural Affairs (Ryan J, unreported, 19 October 1998). 38 However, even accepting those principles, the position here is that the Tribunal has conducted the hearing in the context described above. It has taken the written assertions or claims and sought at some length to elicit further information to identify the cause or causes of allegedly persecutory conduct. It has directed the appellant's attention to the ultimate issues to be addressed and sought to ensure that the appellant is given the opportunity to respond fully to those issues. It cannot be said in those circumstances that the Tribunal has failed in its obligations. It is not the function of the Tribunal to "lead" a visa applicant to assert a Convention-related fear of persecution when, without that direction, the visa applicant has been given the opportunity to explain the reason for the fear of persecution without being led to a particular answer. As Merkel J stressed in Meadows, whether the procedural obligations imposed under ss 420(2)(b) and 425(1) have been fulfilled will depend upon the circumstances of each particular case. For the above reasons, in the circumstances now before the Court, it has not been shown that the Tribunal failed to meet those obligations. Conclusion 39 The appeal should be dismissed. The appellant should pay to the respondent costs of the appeal to be taxed. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 26 March 1999 Counsel for the Appellant: Ms R Henderson with her Mr C Colborne

Solicitors for the Respondent: Australian Government Solicitor

Migration Act 1958(Cth)ss 420(2)(b), 425(1), 426(3), 427, 428, 433, 434, 476(1)(a), 476(1)(e)

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