Ibrahim v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2000-03-31|Before: Marshall J

REASONS FOR JUDGMENT 1 This is an application pursuant to Part 8 of the Migration Act 1958 (Cth) ("the Act") to review a decision of the Refugee Review Tribunal ("RRT") made on 20 October 1999. The decision of the RRT affirmed a decision of a delegate of the respondent not to grant a protection visa to the applicant, Mr Ibrahim. Mr Ibrahim alleged that the decision of the RRT involved errors of law or alternatively a failure to exercise jurisdiction, resulting in a lack of jurisdiction. The grounds of review relied upon are those contained in s476(1)(b) and (e) of the Act. The application concerns an alleged entitlement to refugee status pursuant to 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").

Factual background 2 Mr Ibrahim is a citizen of Somalia. He is a member of the Midgan clan. The Midgan is a minority clan in Somalia without its own militia protection. He left Somalia in 1993 and lived in Kenya until he arrived in Australia on 20 June 1999. He entered Australia with the assistance of a false passport. Authorities at Melbourne Airport interviewed and detained him. Mr Ibrahim has been in migration detention since his arrival in Australia. 3 In the hearing before the RRT, Mr Ibrahim claimed that he and his family had suffered discrimination and persecution as a result of being members of the Midgan clan. The claimed discrimination related to education and work opportunities as well as work conditions. The claimed persecution concerned action by majority clans in: · stealing from and looting the family home; · beating family members; · forcible taking of the blood of family members; and · raping family members. 4 Mr Ibrahim's sister arrived in Australia in September 1998 and was granted a protection visa in April 1999 after a decision by the RRT on 23 December 1998 which found that she was a refugee. In that decision (V98/09367), the RRT held as follows: · the Midgan is an "outcast" clan, kept outside the power system in Somalia (although it did not accept that Midgan were singled out for brutal treatment); · information on forcible blood taking was "difficult to locate" and not always consistent or conclusive; · civilians in Somalia were pressured into giving blood (although it did not accept that blood was taken from the applicant's sister and did not accept that forcible blood taking was persecutory for a Convention based reason); · Mogadishu was "one of the places least safe for any returnee"; · three siblings were lost in an artillery attack; · relocation was not a reasonable option; · young women were recognised in Somali society as a particular social group; · Mr Ibrahim's sister was a young (19 year old), unprotected female; and · refugee status should be granted although the RRT was not convinced that Mr Ibrahim's sister gave "totally reliable information." The RRT concluded that: "This Tribunal has determined that she is a Convention refugee on the ground that she faces a real chance of persecution for reasons of her being a single young Somali woman from Mogadishu without family or clan protection and on that ground alone." 5 Evidence was given in Mr Ibrahim's case by his sister and Mr Ibrahim himself. Additionally, the RRT considered country information relating to: · the position of the Midgan in Somalia; · the practice of forcible blood taking; and · the risks or dangers of living in Mogadishu and Puntland.

Conclusions of the RRT 6 The RRT did not accept Mr Ibrahim as a "witness of truth". It pointed to several inconsistencies in his evidence and to inconsistencies in his evidence when compared to that of his sister. It referred to his sister's case in the following way: "The applicant's sister's decision was not decided on a basis that is of relevance to the applicant, but rather that she faces persecution as a young single Somali woman without family and clan protection." 7 The RRT did not believe Mr Ibrahim's evidence about forcible blood taking in general or the particular evidence that blood was attempted to be forcibly taken from him. On the subject of forcible blood taking the RRT said that it: "…accepts the advice from the Australian authorities that when such practises occurred it was people who happened to be nearby who were required to give blood and that they had nothing to do with clan. As a result, whilst the Tribunal would accept that the forced taking of blood is an assault sufficiently serious to be persecutory, the Tribunal does not accept that it is done for a Convention reason." 8 The RRT did not accept the following claims made by Mr Ibrahim: · that he had been beaten; · that three of his siblings had been killed in a bomb explosion; · that there was a real chance he would be beaten and have blood forcibly taken if he was returned to Somalia; and · that there was a real chance he would be at risk in Somalia because of his clan. 9 The RRT found that "Midgan are safe in Mogadishu and in Puntland". It did not "formally consider re - location" to Puntland given its finding that it was "not satisfied that there is any real chance [Mr Ibrahim] will face persecution on account of his clan should he now return to Mogadishu". In so finding, the RRT relied on a United Kingdom Home Office ("UK Home Office") report of March 1999 which stated that Midgan do not necessarily face particular human rights or security difficulties in Mogadishu. The RRT also relied on advice from the Department of Foreign Affairs and Trade ("DFAT") to the effect that Midgan are not the subject of hostility from major clans in Mogadishu. 10 The RRT then referred specifically to the "country information" that was before it. At p11 of its reasons it said as follows: "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." 11 The RRT inter alia referred to: · documentation dated 8 October 1996 from the Immigration and Refugee Board, Canada;

· the March 1999 report on Somalia from the UK Home Office Country Information and Policy Unit, Asylum and Appeals Policy directorate; and

12 After reviewing the information referred to at the first two dot points above, the RRT said: "The tenor of this information in the Tribunal's view is that at the present stage the Midgan are safe in Mogadishu … Indeed it seems to indicate that the applicant would be safer in Mogadishu than elsewhere."

Grounds of review 13 Ms D S Mortimer, of counsel, appeared for Mr Ibrahim. Ms Mortimer was appointed as counsel for Mr Ibrahim under the Court's Pro Bono representation scheme. Ms Mortimer relied on three grounds in support of a submission that the RRT erred in law. 14 The three grounds advanced were as follows: (a) an error in the construction of the Convention and in particular the words "for reasons of", words which appear in the Convention and preface the various grounds or Convention reasons for persecution; (b) a failure in the RRT to apply a consistent approach to fact finding in the particular circumstances of Mr Ibrahim's case when compared to his sister's application; and (c) a failure to give genuine consideration to the merits of Mr Ibrahim's case.

"For reasons of" 15 Ms Mortimer submitted that the RRT erred by requiring the Convention ground of race (ie. membership of the Midgan clan) to be the sole reason for the persecution when the Convention does not so require. Ms Mortimer contended that the proper approach is to ask if a Convention reason is a material factor and if that is so, one then examines the circumstances of the individual applicant. 16 Mr P R D Gray, of counsel, appeared for the respondent. Mr Gray submitted that the RRT's finding that the relevant persecution did not occur in Mr Ibrahim's case meant that it was not relevant to inquire whether persecution for a Convention based reason occurred in combination with other factors impacting especially upon Mr Ibrahim. Additionally, Mr Gray submitted that even if Mr Ibrahim had suffered persecution for a Convention based reason the RRT had found that circumstances in Somalia had changed since Mr Ibrahim departed in 1993 such that he had no objective fear of persecution for a Convention based reason should he be returned to Somalia. 17 It is not necessary, for current purposes to review the scope of the words "for reasons of" where they appear in the Convention. It is sufficient to refer to, without repeating, the observations of Dawson J, McHugh J and Gummow J in Applicant A v Minister for Immigration and Ethnic Affairs and Another (1997) 190 CLR 225 at 239 to 241 (per Dawson J); at 256 (per McHugh J) and at 284 (per Gummow J). For current purposes it is sufficient to rely on the fact that the RRT determined that 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. Information from DFAT which was very recent and current at the time of the RRT's decision was availed of by the RRT to come to that view. 18 Consequently, the first ground relied on by Ms Mortimer does not truly arise. The crucial nature of country information which supports a finding of changed circumstances was examined by a Full Court in Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 811, see esp. at [par 51]. Accordingly, I can discern no error of law in the RRT's decision which bears upon its interpretation of the Convention which error, if made, would have affected the legal result in the proceeding.

The consistency argument 19 Ms Mortimer submitted that the RRT was obliged to adopt a consistent approach to fact finding on objective aspects of the particular circumstances. Counsel referred to Mr Ibrahim's sister's decision having been made in December 1998 by the RRT and the instant decision subject to review having been made in October 1999. Ms Mortimer referred to the principle espoused in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 that consistency is an important element of good administrative decision making. 20 As Mr Gray contended in his written submissions, the RRT's fact finding task is performed in the context of a standard of "satisfaction" of whether relevant protection obligations are owed by Australia to an applicant for a protection visa. See Kopalapillai v Minister for Immigration (1998) 86 FCR 547 at 558. 21 Accordingly, such satisfaction can only be attained in accordance with the circumstances of each individual case. The success of Mr Ibrahim's sister's application did not mean that the RRT was bound to grant Mr Ibrahim a protection visa. Its task, in Mr Ibrahim's case, was to consider the evidence before it, including the country information and come to a view about the merits of the application in accordance with well established legal principles referred to by the High Court of Australia in Chan v Minister for Immigration (1989) 169 CLR 379. Further, whether a person has a relevant well founded fear of persecution must be considered at the time of the decision. For example, changed circumstances in a country may result in a claim that may have succeeded at a previous time being a claim unlikely to now succeed as a consequence of the change. The country information from the UK Home Office and DFAT referred to in the RRT's reasons was not available to the member of the RRT who decided the application of Mr Ibrahim's sister. There is no substance, in my view, in Ms Mortimer's submissions on the "consistency of approach" issue.

Real consideration of the merits 22 Ms Mortimer submitted that the RRT did not give genuine consideration to the merits of Mr Ibrahim's case. Ms Mortimer contended that the RRT wrongly found Mr Ibrahim's sister's case to be of "no assistance" when it was relevant to a determination of Mr Ibrahim's case. It was submitted that the former decision was of relevance on credibility issues. 23 I reject that submission. The RRT rightly observed that little assistance could be gleaned from the former decision as it was decided primarily in reliance on that applicant's status as a young single woman without family support or clan protection. Mr Ibrahim was incapable of belonging to that social group by reason of his sex, that is, male. 24 When viewed in context and read as a whole I am unable to discern that the RRT's reasons for decision disclose no real consideration of the merits of Mr Ibrahim's case.

Order 25 For the foregoing reasons the application is dismissed with costs, including reserved costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Solicitor for the Applicant: Refugee & Immigration Legal Centre

Solicitor for the Respondent: Australian Government Solicitor

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