Ibrahim v Minister for Immigration & Multicultural Affairs

Introduction 1 The appellant appeals from a decision of a judge of the Court dismissing an application pursuant to Pt 8 of the Migration Act 1958 (Cth) ("the Act") to review a decision of the Refugee Review Tribunal ("the Tribunal") made on 20 October 1999. The Tribunal affirmed a decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs, not to grant a protection visa to the appellant.

Background 2 The appellant is a citizen of Somalia and a member of the Midgan clan. He left Somalia in 1993 and lived in Kenya until he arrived in Australia on a false passport on 20 June 1999. He has been in immigration detention since his arrival in Australia. 3 Before the Tribunal the appellant claimed that the Midgan are a very low class clan and that he and his family were subjected to attacks when the war broke out in Somalia. His family's house was looted and they were terrorised. The appellant's father was also taken away and blood was forcibly taken from him. His mother and sisters were raped and blood was forcibly taken from his brothers and a sister. The appellant's sister was able to travel to Australia. The appellant gave conflicting evidence to the Tribunal as to the sequence of a number of the events upon which he relied. One particular matter which the Tribunal considered was that the appellant stated that he had heard that his sister had been forced to give blood but that he did not witness this. His sister gave evidence that the appellant was present when she was forced to give blood and that he was beaten. 4 The Tribunal considered inconsistencies between the evidence of the appellant and his sister and was satisfied that the appellant was not a witness of truth. The Tribunal reasoned: "Given the significant problems in the applicant's story about how he came to be in Australia and the other problems above about the evidence of blood transfusions, the Tribunal is not satisfied about the veracity of the applicant's claims about the taking of blood from himself and his family, his beating, their house being looted or the other events he claims occurred to himself and his family in Somalia." 5 The appellant's sister entered Australia on 21 August 1998 and had applied for a protection visa. A delegate of the Minister refused to grant her a protection visa. On review a differently constituted Tribunal determined that she satisfied the criteria set out in the Act for the grant of a protection visa on the ground that she faced persecution as a young Somali woman without family and clan protection. 6 The Tribunal considered material available to it in relation to the taking of blood from persons in Somalia and was not satisfied that it occurred to the appellant. The Tribunal accepted that the forced taking of blood was an assault sufficiently serious to be persecutory, but did not accept that the taking of blood in Somalia was done for a Convention reason. The Tribunal accepted advice from Australian authorities that when blood was taken it was taken from persons who happened to be nearby and had nothing to do with membership of a clan. 7 The Tribunal did not accept that the appellant's father had died, that his mother and elder sister were raped and that he was beaten in the terms stated by the appellant. The Tribunal reasoned: "Given that the Tribunal is not prepared to accept that the applicant has been truthful about his history, the Tribunal does not accept that he was beaten or that the other events occurred as claimed … Finally if the Tribunal is wrong about the applicant's claims that blood was forcibly taken, and the beatings that occurred along with this, the Tribunal is nonetheless satisfied that there is no real chance it will occur in the future should the applicant return to Somalia. Much water has passed under the bridge in Somalia since 1993. There has been a UN peace keeping force. Whilst there is still fighting the country information does not indicate that it is at the level it was in 1991." The Tribunal then set out in some detail the country information upon which it relied. That information included extracts from a March 1999 report on Somalia by the United Kingdom Home Office Country Information and Policy Unit, Asylum and Appeals Policy Directorate. The Tribunal quoted extensively from this report. For present purposes it is only necessary to refer to the following passages included in the quotations set out in the Tribunal's reasons: "4.16 … Inevitably, members of small clans and minority groups are at more risk, although some minority groups, such as low‑caste Midgan, Tomal, Yibir, Ayle, Jaji and Yahar who may risk harassment by Somali clans in rural areas, do not necessarily find themselves facing particular human rights or security problems in Mogadishu. (See also Sections 5.11‑5.24). (emphasis added) … 5.20 The minority Gaboye/Midgan (usually referred to as the Midgan) traditionally settle in areas where they can obtain protection from a clan and build up an economic activity. Although minorities have usually been able to avoid involvement in clan disputes they have sometimes come under pressure to participate in fighting in areas of conflict. This happened to the Midgan in Mogadishu following the collapse of the Barre administration, although Midgan and other minority groups who may risk harassment by Somali clans in rural areas do not necessarily find themselves facing difficulties in Mogadishu now. Midgan have been able to settle in Puntland.(emphasisadded) … 5.24 While many displaced minority groups would not necessarily face persecution on the basis of clan membership or ethnicity were they to return to their home areas, they may well face difficulty in regaining their homes and land which were seized by clan militia which took control of their territories. …" (emphasis added) Having quoted extensively from this report the Tribunal continued: "The tenor of this information in the Tribunal's view is that at the present stage the Midgan are safe in Mogadishu and in Puntland in the north." The Tribunal concluded that the country information to which it had referred was to the effect that: "… in Mogadishu Midgans are not at risk of persecution on account of their clan." 8 The Tribunal then reasoned: "As a result the Tribunal is satisfied that the applicant does not face a real chance of persecution on account of his clan should he return to Somalia. In relation to the forced taking of blood, and the claimed beatings of the applicant, if the Tribunal is wrong about not accepting that these occurred in the past, the Tribunal is satisfied in view of changes in the country since then and the country information above that there is no real chance such practices will occur in the future should the applicant return to Somalia." 9 The primary judge summarised the claims made by the appellant before the Tribunal, the earlier Tribunal's findings in relation to the appellant's sister and the Tribunal's conclusions in rejecting the claims made by the appellant. His Honour noted the appellant's submission that the Tribunal erred by requiring the Convention ground of race, that is membership of the Midgan clan, to be the sole reason of the persecution but noted that the Tribunal had determined: "… even if Mr Ibrahim had suffered persecution in Somalia 'for reasons' which included a Convention reason, there was not a real chance that such persecution would occur on Mr Ibrahim's return to Somalia". His Honour could discern no error of law in the Tribunal's reasoning which would have effected the result. His Honour rejected the appellant's submission that the Tribunal was obliged to adopt the same approach to its fact finding as had the Tribunal which had considered the appellant's sister's application and which made its decision in December 1998. His Honour noted that the country information from the United Kingdom Home Office and Department of Foreign Affairs and Trade referred to in the Tribunal's reasons was not available to the earlier Tribunal which decided the appellant's sister's application. 10 The appellant raised three general grounds of appeal: · The Tribunal and his Honour had not approached the assessment of the appellant's credibility in the correct manner. · The Tribunal had approached the issue of whether the appellant had a well‑founded fear of persecution "for reasons of" belonging to the Midgan clan at too high a level of generality rather than considering the particular case of the appellant. His Honour had not found it necessary to consider this matter. · The Tribunal was obliged to adopt an approach consistent with the facts found by the Tribunal which had heard the appellant's sister's application.