Minister for Immigration and Multicultural Affairs v Haji Ibrahim

Minister for Immigration and Multicultural Affairs v Haji Ibrahim - [2000] HCA 55 - HCA 2000 case summary — Zoe

[16]

In Abdi[3], the Full Court had considered the possibility that one of the objectives of clan warfare may be "wiping out an opposing clan."
The Refugee Review Tribunal was criticised for failing to pursue this line of investigation in the present case.
As Gummow J has observed, the expression "civil war" may be a misleading description of the situation in Somalia as described in the evidence. A better description may be anarchy. Depending upon the factual issues raised for examination, it may be helpful to consider whether conduct of a certain kind is "systematic", or whether treatment of a certain kind is discriminatory, or "differential". In the end, however, it is the language of the Convention which has to be applied.
Katz J held that there was nothing in the reasoning of the Tribunal which revealed any error of principle in the approach taken to the facts of the present case. Much of the reasoning is explained by the way the respondent's case was argued, and by the nature of the evidence before the Tribunal. The Tribunal considered and rejected the respondent's claim that the maltreatment he and members of his family suffered was the consequence of a genocidal policy directed towards his clan. It was concluded, in relation to one instance, for example, that the perpetrators "came to steal livestock, and tied up and killed those who were taking care of the livestock". This involves an invasion of human rights, but, without more, it does not amount to persecution for a relevant reason.
Persecution and disorder are not mutually exclusive. The existence of disorder may provide the occasion of, and perhaps the opportunity for, persecution of an individual or a group. In such a case, the ground of the persecution may or may not be a Convention ground. Nothing in the reasoning of the Tribunal was inconsistent with that. As the clans and subclans in Somalia struggle for power and resources, it is inevitable that from time to time, and from place to place, some will be in the ascendancy and others will be vulnerable. In such a situation, an inquiry as to whether the motivation of those temporarily in the ascendancy is to harm their enemies rather than to secure the benefits of domination is unlikely to be fruitful. The distinction, in a context of the kind revealed by the evidence in the present case, lacks practical content.
Katz J was right to conclude that there was no error in the approach taken by the Tribunal.
GAUDRON J. The facts and the history of these proceedings are set out in other judgments. I shall repeat them only to the extent necessary to make clear my reasons for concluding that the appeal in this matter should be dismissed.
The sole question raised in this appeal is whether, in allowing an appeal from Katz J, the Full Court of the Federal Court erred in finding reviewable error on the part of the Refugee Review Tribunal ("the Tribunal"). The Tribunal affirmed a decision by the Delegate of the Minister for Immigration and Multicultural Affairs that the respondent, Mr Haji Ibrahim, who is a Somali citizen, is not a refugee 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 (together referred to as "the Convention") and, thus, is not entitled to a protection visa pursuant to s 36 of the Migration Act 1958 (Cth) ("the Act")[4].

[21]

It should at once be noted that a person who claims to be a refugee, as defined in Art 1A(2) of the Convention, has only to establish a "well-founded fear of being persecuted". That is usually established by evidence of conduct amounting to persecution of the individual concerned or by evidence of discriminatory conduct, amounting to persecution, of others belonging to the same racial, religious, national or social group or having the same political opinion. And to establish that the conduct in question is "for reasons of" race, religion, nationality, etc, the individual concerned may seek to establish that that conduct is systematic, in the sense that there is a pattern of discriminatory conduct towards, for example, persons who belong to a particular religious group.
The Convention does not require that the individual who claims to be a refugee should have been the victim of persecution. The Convention test is simply whether the individual concerned has a "well-founded fear of persecution". Nor does the Convention require that the individual establish a systematic course of conduct directed against a particular group of persons of which he or she is a member. On the contrary, a well-founded fear of persecution may be based on isolated incidents which are intended to, or are likely to, cause fear on the part of persons of a particular race, religion, nationality, social group or political opinion.
A second matter should be noted with respect to the Convention definition of "refugee", namely, that, as a matter of ordinary usage, the notion of "persecution" is not confined to conduct authorised by the State or, even, conduct condoned by the State, although, as already pointed out, the Convention has, until recently, usually fallen for application in relation to conduct of that kind[10]. Nor, as a matter of ordinary usage, does "persecution" necessarily involve conduct by members of a particular group against a less powerful group.
As a matter of ordinary usage, the notion of "persecution" includes sustained discriminatory conduct or a pattern of discriminatory conduct against individuals or a group of individuals who, as a matter of fact, are unable to protect themselves by resort to law or by other means. That being so, conduct of that kind, if it is engaged in for a Convention reason, is, in my view, persecution for the purposes of the Convention. And that is so whether or not the conduct occurs in the course of a civil war, during general civil unrest or, as here, in a situation in which it may not be possible to identify any particular person or group of persons responsible for the conduct said to constitute persecution.

[26]

In a number of cases, this Court has emphasised that, for the purposes of the Convention, "[persecution] ... for reasons of race, religion, nationality, membership of a particular social group or political opinion" is conduct which is discriminatory on one or other of those grounds[15] and which is sufficiently serious to constitute persecution. In cases where, for example, conduct is aimed at a particular religious group, its discriminatory nature may be so obvious that there is no necessity to characterise it as such or to analyse what is involved in the notion of "discrimination". In a context of shifting clan allegiances and clan warfare, however, discrimination may be difficult to perceive unless the elements of what is involved in that notion are kept in mind.
Before turning to an analysis of discrimination, it should be noted that it is difficult to escape the conclusion that, in a clan war, the actions of one clan against the members of another are actions which are taken, in the words of Art 1A(2) of the Convention, "for reasons of ... [their] membership of a particular social group", being the group constituted by that other clan. Even so, action of that kind, even if it involves killing and torture, is not persecution for the purposes of the Convention, unless it discriminates in some way against the members of that other clan.
It was recently held by the House of Lords, in Adan v Secretary of State for the Home Department[16], that "a state of civil war whose incidents are widespread clan and sub-clan based killing and torture" does not give rise to a well-founded fear of persecution for the purposes of the Convention if the "individual claimant is at no greater risk ... than others who are at risk ... for reasons of their clan and sub-clan membership"[17]. Although there is no reference in Adan to discrimination, as such, that notion clearly provides the rationale for the decision in that case. And to the extent that the decision in that case gives expression to a negative test of persecution, I respectfully adopt it.
In Adan, the House of Lords also stated a positive test with respect to persecution. Lord Slynn of Hadley said that, to establish refugee status, an individual who is caught up in a civil war must "show a well-founded fear of persecution over and above the risk to life and liberty inherent in the civil war."[18] Similarly, Lord Lloyd of Berwick observed that a person claiming to be a refugee "must be able to show ... a differential impact ... he must be able to show fear of persecution for Convention reasons over and above the ordinary risks of clan warfare."[19] And, of course, that was the criterion by which the Tribunal assessed Mr Haji Ibrahim's claim in this case. That criterion is, in my view, deficient, albeit not for the reasons given in Abdi and applied by the Full Court in this case.
In Abdi, the Federal Court took a different approach from that taken in Adan. In Abdi, the Federal Court said:

[29]

It is convenient now to turn to the concept of discrimination which, as has been pointed out, is an essential feature of persecution for the purposes of the Convention. Discrimination is not simply the different treatment of individuals or of classes of individuals. There are two distinct aspects to discrimination. The first, which needs no elaboration, is the different treatment of people who are not relevantly different[21]; the second is the treatment of people who are relevantly different in a manner that is not appropriate and adapted to that difference[22]. Treatment of the latter kind is usually, albeit inaccurately, referred to as indirect discrimination. And it is usually identified on the basis of its different impact on different groups within the population.
For constitutional purposes, it has been accepted that conduct which does not properly take account of relevant differences constitutes discrimination[23]. The same view should be taken with respect to the Convention in its application in conditions of clan warfare. And on that basis, if an individual can establish that conduct to which all are subject has significantly greater consequences for the group of which he or she is a member, then he or she may well establish a well-founded fear of persecution. And in the case of clan warfare, where war is waged against members of a particular social group, namely a particular clan because they are members of that clan, he or she may well establish a well-founded fear of persecution for a Convention reason.
Where, as here, it is necessary to apply the Convention in relation to a country riven by clan wars, it is not sufficient, in my view, to ask whether the person claiming refugee status faces risks "over and above the ordinary risks of clan warfare". That can be illustrated by this case. As already pointed out, there was material before the Tribunal to the effect that the Rahanwein are militarily weak. As I will shortly explain, that may constitute a relevant difference between them and other clans caught up in the struggle in Somalia.
It may be that, because the Rahanwein are militarily weak, the consequences of clan warfare are so much greater for them that their plight is properly to be identified as persecution. Or to put the matter another way, the "ordinary risks of clan warfare" for them may be so much greater than for others caught up in the clan-based conflict that they are at risk of persecution for reason of their membership of a particular social group, namely, the militarily weak Rahanwein. However, it does not necessarily follow that, if the Rahanwein are militarily weak, their members are at greater risk than are members of other clans or sub-clans. For example, it may be that the Rahanwein or the Dabarre are able to forge alliances with other clans or sub-clans so that they are at no greater risk than anyone else. These matters should have been but were not investigated by the Tribunal.
In addition to asking itself whether the Rahanwein and the Dabarre were the victims of "systematic conduct aimed at [their] members" and whether they were "differentially at risk ... over and above the ordinary risks of clan warfare", the Tribunal should have considered whether clan warfare posed special problems for members of the Rahanwein and the Dabarre over and above those of the other clans caught up in the conflict, such that they are properly to be regarded as being at risk of persecution by reason of their membership of that clan or sub-clan. Only if that further exercise is undertaken, can it be determined whether Mr Haji Ibrahim has a well-founded fear of persecution for a Convention reason.

[44]

When the civil unrest commenced, the applicant and his family lived in Baidoa, a city mainly populated by the Rahanwein, but controlled by Siad Barre's brother-in-law, a member of the Marehan sub-clan of the Darod clan. He and his soldiers fled when a group led by Omar Jess of the Ogaden sub-clan of the Darod clan entered Baidoa, "destroyed everything and killed many people". According to the applicant, Rahanwein forces later ousted Omar Jess. But Marehan forces then returned to Baidoa and "took everything that was left". The applicant's house was destroyed. In May or June 1991, he and his wife left for Safarnooleys in another area.
On their walk to Safarnooleys, they met an armed group from the Marehan sub-clan. After learning that the applicant was from the Rahanwein clan, the Marehan group took him and his family to a farm, telling him that he would be killed if he tried to escape. He and others were forced to work on sorghum farms in the area. Male prisoners were tied up at night; female prisoners, including the applicant's wife, were raped; other females were made to cook for their captors. The Marehans killed some women. The applicant and his family escaped in April 1992 when the Marehans were attacked by another group. The applicant claimed that the Marehans shot many people who attempted to escape.
The applicant and his family reached Safarnooleys two days later to find that Hussein Aideed's forces were attacking the Marehans in that area and stealing livestock. The applicant claimed that Aideed engaged in genocide against the Rahanwein, but the Tribunal did not accept his evidence on this point. After the applicant's brother was killed, the applicant left for Dinsor, in the Baay region where some of his sub-clan, the Dabarre, lived. He left his family with his sister-in-law. An uncle advised him to leave because the Aideed forces had killed many of his relatives and their tribe had suffered "from the fighting between the other clans".
After leaving Dinsor, the applicant took a route to avoid the Marehan. He eventually reached Dolo near the borders of Kenya, Ethiopia and Somalia in November 1992. While in Dolo, he heard news that the Dabarre had been attacked by members of Mirifle sub-clans of the Rahanwein. He said that his sub-clan and these sub-clans had been involved in disputes for a long time.
He left Dolo in 1995 and, with money given to him by his brother, he reached Thailand and, eventually, Sydney. On arrival, he told immigration officials that he was a refugee. He said:

[46]

The Tribunal found the applicant to be credible and accepted his account "of his and his clan's and sub-clan's experiences." Upon these facts, the applicant made out a strong case for refugee status. He was a member of a particular social group - either the Rahanwein clan or the Dabarre sub-clan. The human rights of members of that clan or sub-clan have been and are likely to be interfered with to an extent that constitutes persecution for the purpose of the Convention. Arguably it was and is membership of the clan or sub-clan that provided and provides the dominant reason for the potential persecution of the applicant.
The other view of these facts is that the Rahanwein and the Dabarre are seen by groups such as the Marehan and the Ogaden as rivals in the struggle for land and resources. These groups attack anyone who opposes or is perceived to oppose their claims to the land and resources of Somalia. It is opposition to their claims, not clan membership as such, which is the motivating force for any harm inflicted on the Rahanwein and the Dabarre. On this view, the dominant reason for the killings, the imprisonments and the destruction of property of members of the Rahanwein clan and Dabarre sub-clan has been the need to ensure that the rival clans and sub-clans succeed in their struggle for the land and resources. It is also a possible view of the facts that the Rahanwein women were raped for reasons of sexual gratification rather than their membership of the Rahanwein clan.
Accepting that the facts showed hypotheses inconsistent with persecution for a Convention reason, it was still open to the Tribunal to be satisfied that there was a real chance that the killings, the rapes, the imprisonments and destruction of the property of the Rahanwein and the Dabarre have been and will be inflicted, not because of military or economic necessity but because of the desire to terrify, punish or exact revenge on members of the Rahanwein clan or Dabarre sub-clan. But after examining the facts, the Tribunal - which is the body charged with determining the merits of each application - was not so satisfied. It held that, if returned to Somalia, the applicant would not face a real chance of persecution for Convention reasons. The Tribunal concluded that the harm that the applicant fears arises from struggles for land and power and not because of his membership of any particular social group. The Tribunal said:

[76]

Neither the text, rationale nor purpose of the Convention or any decision of this Court entitles a decision-maker to reject a claim for refugee status merely because the applicant has failed to prove that, in a conflict such as that in Somalia, he or she is exposed to a risk of harm different from that of others caught up in that conflict. No doubt, as a practical matter in such situations, the Tribunal will often find it difficult to determine whether the feared persecution is "for reasons" specified in the Convention or for military or economic reasons or other reasons. But that is very different from holding that an applicant for refugee status must prove that he or she is exposed to a greater risk of harm than others caught up in the war or unrest.
It is also true, as the Minister argued, that not all harm inflicted by the government of a country in the course of a civil war or unrest is necessarily persecution for the purpose of the Convention. That is because the harm may be justifiable as a measure carried out to achieve a legitimate object of the country. In Applicant A[41], I discussed the kinds of discriminatory conduct that may be justifiable and not amount to persecution even when done for a Convention reason. It is of course true that, even when the conduct is that of the legitimate government of the country, it may be difficult to determine whether the conduct is persecution or is justifiable action because it is appropriate and adapted to achieving some legitimate object of the country of the refugee, such as its defence. When General Sherman marched through Georgia in his swing to the sea during the United States Civil War, for example, he fed his army off the land and farms as it crossed the State and, when locals burned bridges to impede his progress, he ordered the burning of nearby houses[42]. He did this "to demonstrate the vulnerability of the South and make its inhabitants feel that war and individual ruin are synonymous terms" so that the South would quit and rejoin the Union[43]. If those circumstances arose today, it would be a nice question whether he had persecuted the people of Georgia for a Convention reason, despite his object of reuniting the North and South.
Although issues of justification can be relevant in civil war contexts, it is difficult to see how they can have any relevance in the Somali context where there has been no legitimate or indeed any national government. The object of the Convention is to provide refuge for those groups who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality[44]. Whatever legitimacy the actions of the various groups in Somalia may have, it is not grounded in the authority of a government. In the type of conflict that has existed in Somalia, many of the groups may have felt that they were attempting to achieve objectives which, from their perspective, were legitimate. But even so, it is unlikely that any group's actions were directed entirely towards legitimate objectives in an appropriate and adapted manner. Legitimacy or justification are not concepts that seem to have had any relevance in the Somali context.
Because Somalia has had no government in any relevant sense, persons such as the applicant have had no protection from their country of nationality. Where the State has disintegrated, as appears to have been the case in Somalia, so that there is no State to prevent the persecution of a person by private individuals or groups, that persecution will fall within the definition of refugee just as it would if an existing government had failed to protect that person from the persecution. Given the objects of the Convention, I can see no reason for reading down the definition of refugee so that it applies only when the country of nationality has a government. A person who otherwise satisfies the definition is a refugee when that person cannot avail him or herself "of the protection of [his or her] country", not its government.
The difficulties of determining whether harm inflicted in the course of a civil war amounts to persecution or has been done for a Convention reason are very great. But despite these difficulties, I see no basis in the text of the Convention or otherwise for holding that, in conditions of civil war or unrest, a person can prove persecution only when he or she can establish a risk of harm over and above that of others caught up in those conditions. There is nothing in the Convention definition of a refugee, nor any reason in principle or policy, that prevents members of various groups, each of which are involved in a conflict, from being refugees in the Convention sense. The test of "differential impact", as propounded in Adan[45], finds no support in the text of the Convention and it should not be followed in Australia. It is not the degree or differentiation of risk that determines whether a person caught in a civil war is a refugee under the Convention definition. It is a complex of factors that is determinative - the motivation of the oppressor; the degree and repetition of harm to the rights, interests or dignity of the individual; the justification, if any, for the infliction of that harm and the proportionality of the means used to achieve the justification. Even if the passage in Lord Lloyd's speech be read as no more than an emphatic statement that the applicant must prove more than harm resulting from the civil war - and I do not think that it was intended to be so limited - it departs from the language of the Convention and invites error.
Furthermore, contrary to what Lord Lloyd appears to have thought, not all participants on both sides of the civil war would be entitled to protection under the Convention if the differential impact test is rejected. Article 1F of the Convention provides:

[87]

The mere fact that members of the Marehan sub-clan would have detained members of two other clans "depending on the affiliations of the time" does not, of itself, mean that the incident did not constitute persecution for reason of the applicant's membership of a particular social group. It is a possible view of this passage that the Tribunal was simply making the point that any person who belonged to or supported any clan, opposed to the Marehan, would be treated similarly to the way the applicant was treated. On that view, the Tribunal was saying that the Marehan group perceived the applicant and his family as supporters of their enemy and that they were detained for that reason, just as any other person from an opposing clan would have been detained. In other words, the Tribunal was saying no more than that the applicant's membership of his clan was not the reason that he and his family were detained.
Although it is possible that the Tribunal meant the passage to be understood in the sense set out above, the better view is that it was a direct product of applying the erroneous Adan principle. Because the applicant's position could not be distinguished from that of a member of the Abgal or Habir Gidir sub-clans, the Tribunal impliedly found that he was not differentially at risk and that his detention did not constitute persecution. In that respect, the Tribunal erred because it made a finding by applying an erroneous legal precept.
But was it necessary for the Tribunal to make any finding concerning the motivation for this incident? The Minister submits that, contrary to the conclusion of the Full Court, the Tribunal was not required by law "to address specifically whether the capture and retention of the [applicant] and his family were (as he asserted) driven by the intent to repress his particular clan". If this is so, and if the error did not otherwise affect its decision, this submission should be upheld.
In most cases, it is necessary for a Tribunal considering a claim for refugee status to make findings about past events that are alleged to constitute persecution. That is because what has occurred in the past is ordinarily a reliable indicator of what is likely to occur in the future[53]. Past acts of persecution are usually strong evidence that the applicant will again be persecuted if returned to the country of his or her nationality. But the relevance of past acts of persecution depends upon the degree of likelihood that they or similar acts will occur in the future.
The applicant was detained from May or June 1991 until April 1992. He lodged his application for a protection visa in January 1998. Whether or not he had a well-founded fear of persecution for a Convention reason had to be determined no later than the date of the Tribunal's decision[54] and not as at the date of the 1991 incident. Detention by an armed group of members of the Marehan sub-clan in May or June 1991 throws no real light on whether he would be likely to be persecuted by the Marehan or any other clan or sub-clan if he was returned to Somalia in 1998. Indeed, the Tribunal had material before it that three of the militia group leaders, including Hussein Aideed, had signed an agreement to "plot the structure of a future Somali state and the transitional government that will create that state" and that a meeting of 26 Somali factions had agreed to hold a National Reconciliation Conference in June 1997. However, this Conference apparently did not have the support of Hussein Aideed and there were "continuing armed clashes between rival militia groupings". Leaving aside the possibility that the clan warfare would have ended if and when the applicant was returned to Somalia in 1998, the motivation of a group of Marehans then located near Safarnooleys in May or June 1991 throws no light on what they or other Marehan or other clans or sub-clans would be likely to do to the applicant in 1998. If the political positions of the various clans had been stable, the motivation of this relatively small group of Marehans might arguably throw some light on what Marehans generally might do to the applicant seven years later, although I doubt that it would. But given the shifting alliances, I do not think that a finding as to the motivation for this incident was so necessary that, by failing to find that motivation, the Tribunal erred in law.
This conclusion is strengthened by the way that the applicant conducted his case before the Tribunal. It was not conducted on the basis that the incident at Safarnooleys was critical in determining whether he would be persecuted if returned to Somalia. His case was put on a more general basis. Although his evidence referred to the incident, neither the oral submissions on behalf of the applicant before the Tribunal nor the 13-page written submission filed by his solicitor after the oral hearing had concluded mentioned the incident. The written submission asserted that the applicant:

[166]

The remaining issues also turn on the meaning to be given to the Convention definition, but they involve more fundamental considerations respecting the scope and purpose of the Convention itself. The provisions of the Convention "assume a situation in which refugees, possibly by irregular means, have somehow managed to arrive at or in[[111]] the territory of the contracting State"[112]. The Convention definition of "refugee", as imported into Australian statute law, is to be construed by first giving the terms thereof their ordinary meaning but bearing in mind the Convention as a whole, including its context, object and purpose[113]. That in turn requires some appreciation of the place taken by the Convention in the body of international law respecting refugees and territorial asylum.
First, it has long been recognised that, according to customary international law, the right of asylum is a right of States, not of the individual; no individual, including those seeking asylum, may assert a right to enter the territory of a State of which that individual is not a national[114]. The proposition that every State has competence to regulate the admission of aliens at will was applied in Australian municipal law from the earliest days of this Court[115]. However, from that proposition, two principles of customary international law have followed. One is that a State is free to admit anyone it chooses to admit, even at the risk of inviting the displeasure of another State; and the other is that, because no State is entitled to exercise corporeal control over its nationals on the territory of another State, such individuals are safe from further persecution unless the asylum State is prepared to surrender them[116]. A corollary is that, in the absence of an extradition treaty, the asylum State has no international obligation to surrender fugitives to the State from which they have fled[117] and the fugitives are protected against the exercise of jurisdiction by that State.
Secondly, as Professor Sir Hersch Lauterpacht pointed out at the time[118], the Universal Declaration of Human Rights adopted in 1948, that is to say, shortly before the formation of the Convention, was accompanied by a general repudiation by member States of the idea that the Declaration imposed upon them a legal obligation to respect the human rights and fundamental freedoms which it proclaimed. Article 14 declared that "[e]veryone has the right to seek and to enjoy in other countries asylum from persecution". But this right "to seek" asylum was not accompanied by any assurance that the quest would be successful. A deliberate choice was made not to make a significant innovation in international law which would have amounted to a limitation upon the absolute right of member States to regulate immigration by conferring privileges upon individuals[119]. Over the last 50 years, other provisions of the Declaration have, as Professor Brownlie puts it, come to "constitute general principles of law or [to] represent elementary considerations of humanity" and have been invoked by the European Court of Human Rights and the International Court of Justice[120]. But it is not suggested that Art 14 goes beyond its calculated limitation[121]. Nor was the matter taken any further by the International Covenant on Civil and Political Rights ("the ICCPR"). This entered into force for Australia on 13 November 1980[122]. Article 12 of the ICCPR stipulates freedom to leave any country and forbids arbitrary deprivation of the right to enter one's own country; but the ICCPR does not provide for any right of entry to seek asylum and the omission was deliberate[123].
Thirdly, the Convention was negotiated and agreed between States so that, as Lord Clyde observed, "it is at a state level that it has to be understood"[124]. The drafting of the Convention reflected the concerns of the Cold War. The participating States did not include the Soviet Union and its allies, which had objected to a notion of comprehensive protection for refugees. The States which did participate nevertheless had no commitment to basing the Convention in the international promotion of human rights[125]. The Convention built upon the work begun under various inter-war international instruments[126] and continued by the United Nations Relief and Rehabilitation Administration, established in 1943[127], and by the International Refugee Organization[128]. The result has been described by Professor Hathaway[129]:

[177]

Finally, the limited scope of the Convention (and thus of the imperative requirements imposed by s 36 and s 65 of the Act upon the appellant) has provoked a threefold response. First, the Office of the United Nations High Commissioner for Refugees has exercised a broader mandate than that drawn from the Convention, by the provision of protection and assistance to persons who are in "need of international protection" but who could not, on a case by case basis, be shown to have a well-founded fear of persecution on Convention grounds[136]. Secondly, there have been attempts which it is unnecessary to recount here to broaden the scope of the Convention itself by a Draft United Nations Convention on Territorial Asylum but these collapsed more than 20 years ago[137]. Thirdly, and perhaps most significantly, countries including Australia have admitted "refugees" under arrangements, not involving the issue of protection visas, but on special humanitarian grounds[138]. The Act authorises the taking of such steps. For example, s 37A and ss 91H‑91L provide for temporary safe haven visas.
The provisions in the Act respecting protection visas have to be construed in the context of the legislation as a whole. This shows that the provisions in question are not the only mechanism for giving effect to the calls of international humanitarianism. Further, the Convention was adopted against a particular background of customary international law concerning the consequences of delinquency in the exercise of State responsibility for the welfare of its own nationals and the acceptance by asylum States of responsibilities under their municipal laws towards those they accepted as refugees. The Convention was not designed to confer any general right of asylum upon classes or groups of persons suffering hardship and was deliberately confined in its scope. Whether there is a need for revision of the Convention and whether this should be promoted by the other branches of government is not a matter that arises for this Court. Its mandate is to construe and apply the Act. The interpretation of the protection visa provisions in the Act should not be strained to meet a judicially perceived mischief in the delayed development of customary or other international law.

[179]

The criteria accepted and applied by the Full Court of "differential operation" and "motivation" stem from the reasoning of the House of Lords in Adan. In turn, that reasoning reflected the terms of the "issue" which had been framed for their Lordships in the terms which I have repeated earlier in these reasons. It asked whether a "state of civil war" could, in certain circumstances, "give rise to [a] well‑founded fear of persecution" in the sense of the Convention definition. This assumed that conditions in Somalia answered the description of a state of civil war. The particular legal issue which on that assumption was posed to the House of Lords was the application of the Convention definition to an "individual claimant" who was "at no greater risk of such adverse treatment than others who are at risk in the civil war for reasons of their clan and sub-clan membership".
The result, with respect, was to invite the House of Lords to proceed upon an hypothesis flawed in several respects and thereby to diminish the strength and utility of conclusions reached on the journey for which this had been the point of departure. Certainly the material before the Tribunal in this matter and referred to earlier in these reasons indicated endemic deficiencies in Somali civil society which in recent years have been reflected by the absence of the functioning apparatus of a nation state. The widespread disorder which this has entailed is not aptly described as a "civil war" in the sense of that term described earlier in these reasons. To proceed as was done in Adan involves a risk that there will be a blurring of the distinction between the persecutory acts which the asylum seeker must show and the broader circumstances leading to those acts[139].
It does not advance the inquiry called for by the Convention definition to ask of a particular individual whether that person was to be differentiated from other members of the general population who were all at risk so long as the "civil war" continued. Nor does it assist to require the administrative decision-maker (here, the Tribunal) to determine the "objectives", as a matter of "reality", of "the war". The objectives of the various States which were combatants in the First World War were the subject of propaganda at the time and remain a subject for debate between historians with varying degrees of access to primary sources. To oblige the appellant, his delegates and then the Tribunal to embark upon such issues during or shortly after the immediate currency of the events in question, presumably to reach conclusions of fact upon them, is a task not readily to be inferred as required by reason of the adoption by the Act of the Convention definition. The dynamics of communal violence, civil conflict and disorder may obscure the boundaries between combat, crime and persecution. The reasons for a particular conflict may be virtually unfathomable.
The notions of "civil war", "differential operation" and "object" or "motivation" of that "civil war" are distractions from applying the text of the Convention definition. In so far as Adan and the decision of the Full Court in Abdi and the present case expound or apply them, those decisions should not be followed.
As it happens, the Full Court went on to state the issue which, these distractions aside, had arisen for the decision of the Tribunal. The task of the Tribunal had been to determine[140]:

[193]

Somalia is a country on the Horn of Africa facing the Indian Ocean and the Gulf of Aden. The northern portion of Somalia was formerly part of the British Empire and the southern portion of the Italian Empire. A united Somalia secured independence from colonial rule in 1960. The evidence in these proceedings shows that there was no relevant ethnic distinction between the various peoples of Somalia.
Before the relatively brief period of colonial rule, which commenced in the 1880s, Somalia had no permanent administrative hierarchy and no central governmental authority. Its nomadic pastoral economy was dominated by clans traditionally "segmented into component units or amalgamated into larger ones, depending on the prevailing conditions of war and peace amongst blood-related lineages"[154]. Coalitions between clans were regularly formed and disbanded. This was a feature of everyday life. The structures of clan authority were partly suppressed, but never extinguished, by the military forces of the colonial powers and their Somali successors.
In 1991 the President, Siad Barre, was overthrown and subsequently fled the country amidst increasing anarchy. This left Somalia to disintegrate into its clan and sub-clan units. Such was the country from which Mr Haji Ibrahim fled in 1995. He travelled to Australia on a false passport on 25 December 1997 and immediately claimed refugee status.
The delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") refused Mr Haji Ibrahim a protection visa to which persons who are refugees within the Convention definition are entitled[155]. Mr Haji Ibrahim appealed to the Tribunal. In its decision, the Tribunal found him to be articulate and credible. Specifically, it accepted his account "of his and his clan's and sub-clan's experiences"[156]. On the basis of Mr Haji Ibrahim's evidence and independent testimony, the Tribunal found that Somalia "has been in a state of civil conflict since 1991"[157]. Based on a wealth of material placed before it, to the effect described above, the Tribunal concluded that Somalia was "without any centralised government or authority and ... the conflict [was] a result of power struggles between clans and subclans in a series of shifting allegiances"[158].
Mr Haji Ibrahim gave evidence before the Tribunal that he was a member of a clan group called Waqbare within the sub-clan Dabarre within the clan Rahanwein. One of his father's cousins had served as a minister in the Barre government. Mr Haji Ibrahim had been educated and trained as a high school teacher. His brother had also studied and had been sent to China under a scholarship arranged by the Minister for Education. Subsequently, the brother moved to Japan. According to Mr Haji Ibrahim, when the Barre government was overthrown, Somalia "degenerated into a situation where many clans formed armed militias and waged attacks on other clan groups"[159]. At that time Mr Haji Ibrahim and his wife had been living in Baidoa, a town west of the capital Mogadishu.
According to Mr Haji Ibrahim, in 1992 a group from a rival clan, opposed to the former government, entered Baidoa, destroying much property and killing many people. When this attack occurred, members of President Barre's family fled the town. Soon afterwards, Mr Haji Ibrahim's wife gave birth to a son. In search of safety, the family travelled south towards an area called Safarnooleys. On the way they were met by members of the Marehan clan. These persons took them prisoner and held them under guard in the area of a sorghum farm. The women, including Mr Haji Ibrahim's wife, were raped. Mr Haji Ibrahim suggested that a second child, later born to his wife, was a result of rape. Mr Haji Ibrahim, his wife and their son escaped from the farm under fire to continue their odyssey towards Safarnooleys where Mr Haji Ibrahim's brother was believed to be living.
According to independent information that appears to have been accepted both by the Tribunal and by Mr Haji Ibrahim, the Rahanwein clan (within which Mr Haji Ibrahim's family was positioned) were basically "sedentary peasants", living in southern Somalia. They were no match for "the violent depradations of the warring factions"[160]. They were "militarily weak" and subject to the "massive destruction", "looting of the grain reserves" and other violent conduct. These misfortunes were aggravated by conditions of famine and complicated for a short time by an ill-fated United Nations intervention which eventually withdrew, having failed to bring peace or order to Somalia[161].
When Mr Haji Ibrahim and his family eventually reached Safarnooleys they found that the area had been attacked by forces of another clan led by a rebel commander "General" Hussein Aideed. Aideed's soldiers had killed many of Mr Haji Ibrahim's clan, including his brother. Mr Haji Ibrahim contended that this had been done for reasons of genocide. However, that was one assertion made by Mr Haji Ibrahim which the Tribunal did not accept[162]. It is not now in contention.
Mr Haji Ibrahim stated that he had left his wife and children at Safarnooleys to travel to Dinsor in a region native to his sub-clan, the Dabarre. There an uncle cautioned him to leave the area urgently and to seek safety because many of his relatives had been killed by Aideed's forces. Mr Haji Ibrahim took this advice. Alone, he made his way further south. His journey was expedited by news that the Dabarre had been attacked by members of a sub-clan who were themselves, apparently, part of the Rahanwein. In December 1994, on the Somali Service of the BBC, Mr Haji Ibrahim heard that another uncle, Sultan Abdulmajid Sheik Hussein, had been killed by Aideed's forces. Having failed in efforts to contact his wife, Mr Haji Ibrahim travelled to Addis Ababa in Ethiopia in June 1995. There he communicated with his brother in Japan. The latter provided him with an airline ticket to travel to Thailand. It was from Thailand that Mr Haji Ibrahim eventually travelled to Australia.

[197]

If this conclusion were simply a finding of fact, it would be immune from judicial review in the Federal Court. That Court is limited to affording review upon grounds specified by s 476 of the Migration Act 1958 (Cth) ("the Act")[174]. The Full Court recognised this[175]. It confined its analysis to suggested errors of law. Relevantly, these concerned the alleged misinterpretation by the Tribunal of the applicable law by which to determine entitlement to refugee protection on the part of a person in the position of Mr Haji Ibrahim[176].
The basic misinterpretation which the Full Court found was the failure of the Tribunal to consider "the motivation of the civil war giving rise to the 'ordinary risks of clan warfare'"[177]. This phrase has been criticised by other members of this Court. However, it is important to read it (as we must also read the reasons of the Tribunal) in context. That context was the consideration which led the Full Court to identify the "reason" for the "fear" on the part of Mr Haji Ibrahim. In the context, I do not take the Full Court to have been suggesting that the Tribunal was obliged to undertake an authoritative historical or political analysis of the Somali civil war. But where the Tribunal had before it an applicant who contended a "well-founded fear of being persecuted for reasons of ... membership of a particular social group" the critical point to be decided was the "reasons of" the applicant's fear and whether those reasons were "well‑founded" and grounded in persecution.
That Mr Haji Ibrahim was a member of a "particular social group" was accepted by the Tribunal[178]. That he had a subjective "fear" was not disputed[179]. In these circumstances, it was correct for the Full Court to concentrate its attention on the Tribunal's treatment of the "reasons of" such fear. If it were merely "fear" of being returned to a country in the midst of civil war, that would not be sufficient to attract the Convention definition to Mr Haji Ibrahim's case. In this way it became essential to analyse the conduct said to amount to "persecution" and then to consider whether, if such conduct might constitute "persecution", it was "for reasons of" Mr Haji Ibrahim's membership of a particular social group. In referring to the "motivation behind the 'clan based warfare'", the Full Court was, in my view, doing no more than paraphrasing the definitional reference to the "reasons of" the alleged "persecution".
In essence, the error of law which the Full Court discerned was the adoption by the Tribunal of an over-broad exclusion from potential coverage as "refugees" of persons, like the present respondent, caught up in "civil war", "civil conflict" or "civil unrest", as the Tribunal successively described the conditions in Somalia at the time Mr Haji Ibrahim left that country and up to the time of its decision. Correctly, in my view, the Full Court concluded that the facts should be reassessed by the Tribunal, excluding from its evaluation this barrier erected because of the existence of "civil unrest" reflected in the requirement, imposed on Mr Haji Ibrahim, to show "systematic persecution" of members of his clan, the Rahanwein.
In order to make this point clear, it is necessary to understand the background to the decision of the Tribunal concerning the treatment of applicants for refugee status who have fled from civil war or civil conflict. Only when this background is appreciated, as reflected in the reasons of the Tribunal, can the error of law identified by the Full Court be fully understood and evaluated by this Court.

[198]

There is no mention, either in the applicable international law[180] or in Australian municipal law giving it effect[181], justifying differential treatment of persons claiming refugee status who may be viewed as having fled from a civil war or civil conflict. Generically, a "refugee" may be thought of, in lay terms, "as a person compelled to flee his [or her] State of origin or residence due to political troubles, persecution, famine or natural disaster"[182]. A "refugee" is thus commonly "perceived as an involuntary migrant, a victim of circumstances which force him [or her] to seek sanctuary in a foreign country"[183]. From ancient times, nations have opened their doors to persons who would now be described as "refugees". However, the provision of legal protection to refugees by international law, and thereafter by municipal law, is a development of the twentieth century. The applicable law arose "[o]ut of the struggle to reconcile traditional liberal principles and concern for genuine human suffering with dramatically altered political and economic situations"[184] within the context of national immigration policies[185].
Amongst the early international responses to the problem of refugees was the creation, in 1938, of the Intergovernmental Committee on Refugees[186]. To a large extent, that body responded to involuntary emigration from Germany and Austria of persons suffering Nazi persecution[187]. An enlargement, in 1943, of the definition of those qualifying for refugee status afforded protection to Spanish republican refugees who had fled the violent conclusion of the Spanish civil war. That civil war was fresh in mind when the present international regime was negotiated and adopted. It therefore seems unlikely that it was intended that such regime would exclude refugees from national civil wars and civil conflicts who otherwise qualified as "refugees" for the purposes of the Convention definition. Had such an exclusion been intended it would have been stated.
After an interregnum during which the United Nations Relief and Rehabilitation Administration assumed increasing responsibility for the plight of "post-war political refugees"[188], the International Refugee Organisation was established in 1946 to bring the protection of refugees under the aegis of the United Nations. Eventually, in July 1951, the Convention relating to the Status of Refugees was signed at Geneva. In its terms, the Convention covered only those persons who had become refugees "[a]s a result of events occurring before 1 January 1951". However, on 31 January 1967 the Protocol relating to the Status of Refugees omitted this limitation[189]. Moreover, whereas the Convention in its original form had permitted contracting states to extend the ambit of the Convention to events occurring beyond Europe, following the Protocol the Convention was to be applied "without any geographic limitation"[190]. What had begun, substantially, as a response to the European refugee crisis following the Second World War thus became an instrument of general international application.
While resolving to expand the geographic application of refugee protection, the international community confined the ambit of international law to some only of the persons who might in general parlance be described as "refugees". Two concepts in the Convention were used to stem what was otherwise seen as potentially amounting to an uncontrollable flood of economic migration from disadvantaged countries dislocated by civil war and civil conflict. The two control mechanisms were, first, the requirement of proof of a "well‑founded fear of being persecuted" and, secondly, the requirement of proof that such persecution was "for reasons of" identified, specific and limited personal and group stigmata ("race, religion, nationality, membership of a particular social group or political opinion"). Although the temporal and geographical ambit of the applicable international law provisions was expanded by the Protocol, the control mechanisms have remained unchanged[191].
It follows that it is necessary, but insufficient, to qualify as a "refugee" within the Convention definition, to show that a "well-founded fear" lies behind an applicant's flight from the country of his or her nationality. That fear must be of a particular kind and for particular reasons. It is not sufficient to show a fear of being discriminated against or of suffering loss of basic human rights if the applicant were returned to the country of his or her nationality. Nor is it sufficient, as such, to show a fear of being killed or maimed in a civil war or civil conflict in that country. Neither is it sufficient to show fear for other reasons outside the Convention definition, such as that caused by economic disasters or natural catastrophes[192]. People who flee in the face of such misfortunes may think of themselves as "refugees". They may be so described by many of those who attempt to cater to their needs. They may occasionally even enjoy limited rights of protection afforded by municipal law[193]. But such cases fall outside the special and particular protection given by the applicable international law about refugees which, in Australia, is given domestic effect by municipal law[194].
As the republican refugees who fled Spain after the civil war found, flight from conditions of civil war is not, as such, regarded as a disqualification from protection under international law. Nevertheless, the large number of civil wars and civil conflicts which have occasioned mass emigration of persons claiming refugee status has led to attempts to confine the protection of the Convention, as amended by the Protocol, so as to exclude most such persons. By 1995 such persons reportedly constituted the majority of asylum seekers claiming refugee status in Europe[195]. A desire to confine the legal obligations, assumed pursuant to the Convention, led to various attempts to persuade courts to confine the broad language used in the Convention so as to remove from its protection most victims of civil war and internal armed conflict.
The Handbook issued by the United Nations High Commissioner for Refugees lent a measure of support to this endeavour. It states[196]:

[200]

This view was picked up in the decisions of the German and French courts[197]. It has occasionally found reflection in decisions in England[198]. It has attracted a special sub-classification in guidelines adopted under statutory powers in Canada[199]. The reasons for concern on the part of such decision-makers were clear enough. The history of the Convention and of the Protocol certainly suggests a general intention to confine protection to limited categories of persons and to limited numbers[200]. Civil wars typically involve large numbers of conflicting parties who oppress each other. Were those who flee such conflicts automatically entitled to legal protection and "refugee" status, it was feared that such protection might extend, potentially, to all persons in every faction who flee a civil war or civil conflict in order to escape the violence. Such an approach might potentially expand the protection under the Convention and the Protocol far beyond the confined classes and numbers originally intended. These considerations, and the social realities in which courts and refugee tribunals function, made it understandable that attempts would be made to place those fleeing from civil wars and civil conflicts into a separate category, substantially beyond the pale of protection under the Convention as amended by the Protocol.
Although the foregoing legal developments were probably inevitable, they cannot be sustained by proper legal analysis. Moreover, they were unnecessary. The control mechanisms already provided by the Convention afforded ample protection from such Domesday fears[201]. Because there is no special exclusion from protection of persons fleeing civil war or civil conflict, commentators and courts in other countries gradually came to realise that attention to the existing control mechanisms would not only be more legitimate in terms of legal analysis but would also prove sufficiently protective against inadmissible demands of persons falling outside the ambit of the Convention.
This point was made in Canada by the Federal Court of Appeal in its influential decision in Salibian v Canada (Minister of Employment and Immigration)[202]. There, Décary JA, giving the reasons of that Court, concluded[203]:

[202]

In the House of Lords in Adan v Secretary of State for the Home Department[204], Lord Lloyd of Berwick approved this passage. The fact of involvement in, or flight from, a civil war or civil conflict is no reason to deprive those concerned of any entitlements they may have to refugee status by international and municipal law. Involvement in a civil war or civil conflict is neither qualification nor disqualification. It may constitute part of the background facts. But it does not relieve the decision-maker of the duty to consider the elements of the Convention definition, as those words apply to the particular case.
It is the Convention definition itself that obliges the decision-maker, when faced with a background of civil war or civil conflict, to address the "reasons of" the fear deposed to by the applicant for refugee status. This necessity takes the decision-maker beyond the threshold fact that the claimant for such status was caught up in a civil war or civil conflict. The decision-maker must scrutinise the "reasons of" the fear in the particular case. This must be done against the criteria of the two control mechanisms as I have described them: first, are those reasons capable of being classified as "persecution"? Secondly, are they for "reasons of" one of the specified grounds, or are they no more than fear of return to the dangers of a civil war or civil conflict as such?
It is this differentiation that necessitates consideration of the "reasons" or "motivation" for the conduct suffered by an applicant for refugee status in the context of a civil war or civil conflict. Such "motivation" is not examined (nor do I take the Full Court to have suggested that it should be) in order to write an abridged history of the causes and course of the civil war or civil conflict in question. Instead, the examination is performed to prevent the mind of the decision-maker from being diverted by an illegitimate conviction that, somehow, involvement in a civil war or like situation acts as a disqualification, taking a claimant for refugee status outside the scope of the protection of refugee law.

[208]

A random, isolated act of violence suffered by Mr Haji Ibrahim, or a group of which he was a member, would not, alone, qualify as "persecution". On the other hand, it would be a mistake to import into the notion of "persecution", as an essential ingredient of that term, the order and system that has frequently been present in modern examples of "persecution" in Europe. Correctly, the Full Court differentiated between the ways in which the word "systematic" is used as a matter of ordinary English expression[212]. At least so far as it implies regular or methodical oppression of the victim, the notion of "systematic" conduct is a possible, but not a necessary, element in the idea of "persecution". In effect, to impose that criterion as an element of "persecution" in the context of Somalia would be to impose upon the whole world a Eurocentric view about "persecution" as that notion is used in the Convention, which is now of universal application[213].
The adoption of Eurocentric ideas of persecution might have been an arguable stance to take in 1951. However, following the coming into force of the Protocol of 1967 such an approach is, in my view, no longer legally tenable. The Convention must be interpreted having regard to its universal operation. It is intended to apply to the large variety of situations which, anywhere in the world, respond to its provisions. The controls lie in those provisions. They do not lie in supposed additional rules excluding the victims of civil wars and civil conflict or those classified as having been subjected to "unsystematic" oppression. Conduct may be "unsystematic" when compared to the generally methodical persecution and elimination of Jews and others in Nazi Germany. Yet it may still amount to "persecution" in the context of the lives of the victims in a country such as Somalia.
Clearly, the Tribunal considered that the unsystematic features of the "civil war", "civil conflict" and "civil unrest" in Somalia, as such, made it impossible to categorise what happened there to Mr Haji Ibrahim and his family as "persecution" for Convention reasons. The Full Court regarded the Tribunal's approach, in that regard, as involving an error of law. So do I. It diverted the attention of the Tribunal from precisely what had happened to Mr Haji Ibrahim (and his family) and whether, in the Somali context, that constituted "persecution" for reasons of Mr Haji Ibrahim's membership of a particular social group, namely his clan and sub-clan. Because the Tribunal was diverted from the real question that it was obliged as a matter of law to decide, the conclusion at which it arrived was flawed by error of law. This was an unsurprising result. If one takes a flawed approach one must normally expect to arrive at an incorrect conclusion[214]. In my opinion the Full Court was correct when it decided[215]:

[211]

Each case of the present kind must be determined by the primary decision‑maker and the Tribunal on its own facts[216]. The task of the Federal Court in reviewing the Tribunal is a limited one. It is not concerned with reviewing the decision on the merits[217]. Its only concern, relevantly, is to correct an error of law. Neither the Federal Court nor this Court would be warranted to comb through the Tribunal's reasons in a pernickety way, unduly vigilant to discover some legal error[218]. On the other hand, the Tribunal's reasons represent the only clue which the applicant for refugee status, the Minister and the Australian public have for the making of a decision on a point of considerable importance. A wrong decision may, in some cases, have serious or even fatal consequences[219].
The Convention, which is rendered part of Australian law, must be construed according to its language but taking into account its international application to the wide variety of refugee situations that can arise throughout the world[220]. Only a proportion of "refugees", generically described, fall within the protection of the Convention as amended by the Protocol. The language of those instruments falls short of affording protection to every victim of discrimination and abuse of human rights[221]. By the same token discrimination or abuse of human rights can often shade into persecution[222].
I do not agree that, because of the historical context in which it was originally drafted, the Convention should be narrowly interpreted to meet only refugee problems of the kind and number envisaged at the time the Convention was adopted in 1951[223]. The ambit of the Convention has been significantly expanded by the Protocol. The Preamble to the Convention makes specific reference to the Charter of the United Nations and the Universal Declaration of Human Rights, each of which "have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination"[224]. This Court should not narrowly confine the operation of the Convention language. That language, unusually for its time, focussed attention on personalised criteria concerning individuals[225]. These criteria enlisted international attention precisely because the personal safety and basic human rights of individuals were seriously jeopardised. Deliberately, refugee status under the Convention, as amended by the Protocol, is "an extremely malleable legal concept which can take on different meanings as required by the nature and scope of the dilemma prompting involuntary migration"[226]. It is a serious mistake to confine the operation of the Convention definition of "refugee" by reference to supposed exclusions of those who flee from civil war or civil conflict[227]. It is an even more serious mistake to impose upon the Convention definition of "refugee" Eurocentric ideas which are not, and never have been, a necessary part of the operation of the Convention[228].
Given its contemporary ambit, the Convention is not limited to providing protection to persons similar to the republican refugees in the aftermath of the Spanish civil war. The civil conflict in Somalia may in some ways be more confusing and apparently more irrational to the Western mind, have even more ancient origins and be less "systematic" in its execution than the Spanish conflict and others in Europe before and since. But this does not matter if, in the particular case, the applicant for refugee status establishes "persecution" affecting him or her, or a group of which he or she is a member, for Convention reasons.
The Tribunal, in all material respects, accepted that Mr Haji Ibrahim was a credible witness. It was accepted that his clan and sub-clan were, for the purposes of the Convention definition, a "particular social group"[229]. That group preceded and existed independently of the suggested persecution of its members of which Mr Haji Ibrahim complained[230]. The kind of conduct directed at Mr Haji Ibrahim was such that it might qualify as "persecution". But it still had to run the gauntlet of the two control mechanisms which limited the protection afforded by the Convention and the Australian law which gives it local operation. These control mechanisms were not applied to the facts of Mr Haji Ibrahim's application as the law requires. This was because the Tribunal became diverted by the supposed category of civil war and civil conflict and by the supposed necessity of "systematic conduct" as a prerequisite to "persecution". Such a category does not exist, as such, as a class excluded from the protection of the Convention and the Act. Such "systematic conduct" is not a requirement of the Act. It was a mistake of law to apply these two supposed qualifications to shackle the operation of the Convention in Australian law.
The Tribunal was therefore rightly required by the Full Court to reconsider the application to the facts, as found, of the Convention definition; but freed from the erroneous presuppositions. The outcome in the Tribunal might eventually be the same. But it would then be a decision freed from a significant legal error in the understanding of the Convention as it applies to refugees who happen to be fleeing from a civil war or civil conflict. As Professor Goodwin‑Gill observes[231]:

[213]

The appeal should be dismissed[232].
HAYNE J. I agree with Gummow J that, for the reasons he gives, the appeal to this Court should be allowed and the consequential orders which he proposes should be made.
The question for the Refugee Review Tribunal was whether the decision of a delegate to the Minister to refuse to grant a protection visa should be affirmed, varied or set aside[233]. Because that question depended upon whether the "applicant for the visa is a non‑citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol"[234] its answer depended upon the text of the Convention and the Protocol. Judicial and academic discussion of the effect of the text of the Convention and the Protocol, either generally or in its application to particular cases, may be very informative. It may illuminate what may otherwise have been obscure about how it should apply in the instant case. Of course, judicial decisions in this area must be given their proper precedential status and effect. But in the end, it is the text of the Convention and the Protocol which must be applied, and (subject to the requirements of precedent) commentaries upon that text must not be accorded a status which denies the primacy of the instruments themselves. Especially is that so given that prior judicial decisions or other discussions about the operation of the Convention and the Protocol must be understood in their proper context. Particular decisions necessarily focus upon the application to the case at hand of the criteria adopted in the instruments to define those to whom Australia has protection obligations.
Expressions like "civil war" or "differential operation" are not used in the Convention or the Protocol. It would obviously be wrong to attempt to supplant the Convention criteria with criteria derived from some conception of civil war as an apt description of events in the country of nationality of the applicant for a protection visa. And although the expression "differential operation" may evoke some elements of the concept of "persecution", it too cannot supplant the criteria adopted in the Convention. Terms like "civil war" and "differential operation" may be useful in explaining why, in a particular set of circumstances, a conclusion is reached about whether a person has a well‑founded fear of persecution for a Convention reason but such expressions cannot, and must not, be taken to state any general principle the content of which differs from what is to be found in the Convention and the Protocol.
Not only may the use of such terms serve to distract attention from the relevant questions, their use will often carry with them unintended and inapposite shades of meaning. Thus, in the present case, the use of the expression "civil war" to describe the course of events in Somalia may suggest a degree of coherent organisation of groups, each of which was unified in pursuit of some identified political objective relating to the government of a nation state ordinarily organised along lines similar to those of other long‑established nation states. But, as the reasons of Gummow J reveal, that is an inaccurate and incomplete description of events in Somalia.
The use of a term like "civil war" in the present context is, for the reasons just stated, either inaccurate or apt to mislead. But there is another, equally fundamental, objection to introducing such a concept into the debate in the present case. Its use presupposes that the Refugee Review Tribunal can, and should, conduct some analysis of political and social history of the country from which the applicant for protection has come for the purpose of classifying those events in some way and then deriving conclusions from that classification. No satisfactory analysis of that kind can be made by a tribunal in the position of the Refugee Review Tribunal. Its making would require information which the Tribunal does not have and cannot obtain. And even if all the relevant information were available, that information would require analysis taking time and skills which the Tribunal does not have. Further, it must be recognised that the analysis of social and political behaviour is necessarily imperfect, its results inevitably are open to reasonable dispute, and all too often, because of the nature of the subject matter being examined, an analysis will reveal little or no objective fact, but much about the subjective views of the analyst.
The Tribunal was not persuaded that the respondent in this matter had a well‑founded fear of persecution. At first instance, Katz J rightly rejected the contention that the Tribunal's conclusion was attended by relevant error. It is, then, as Gummow J points out, not necessary to consider in this case the more general questions presented by the analysis referred to by the English Court of Appeal in R v Secretary of State for the Home Department; Ex parte Adan[235], which seeks to distinguish between an "accountability" and a "protection" theory of interpretation of the Convention[236].
CALLINAN J. This is another case in which the Court has to determine whether an application for a protection visa was within Art 1A(2) of the Convention relating to the Status of Refugees[237] which applies in this country pursuant to s 36(2)[238] of the Migration Act 1958 (Cth) ("the Act") and Subclass 866 of Sched 2[239] of the Migration Regulations 1994 (Cth). The article relevantly provides that a person is a refugee who:

[233]

That reasoning involves a misconception about the findings of the Tribunal. In particular, the Tribunal found, in terms, that the harm that the respondent feared was not persecution by reason of his membership of either the Rahanwein clan, or of his subclan, of itself, but rather, unsystematic "warfare" because of "the instability, anarchy and murderous shiftings witnessed today in the Somali scene".
The Tribunal held that it was difficult to identify any clan which could be regarded as being the victim of targeted persecution by any other group or groups, or as being subject to a differential impact over and above the ordinary risks of clan warfare, or, as I would prefer, for reasons which will appear, clan conflict.
It is true that the Tribunal did say that the capture of the respondent and his wife and their subsequent maltreatment by the forces of another clan would have been the same if they had identified themselves as members of other clans, again, depending upon the affiliations at the time. But that is not to say that the Tribunal did not have regard to the respondent's membership of the Rahanwein clan and the possibility of persecution on that account. The Tribunal's affirmative finding was that the respondent was the victim of unsystematic warfare resulting from instability, anarchy and murderous shiftings. That finding was not a finding of a Convention reason.
The Full Court also held that the Tribunal erred in construing the word "persecution" and by the inappropriate importation of "systematic" to qualify it. The Full Court referred to some earlier decisions in the Federal Court[247] which had considered the significance of the words "systematic persecution". It was said that the expression could be used in either of two senses: of deliberate, premeditated, or intended conduct, of acting or carrying out actions with a premeditated intent; or of habitual behaviour according to a regular or methodical system. The Full Court held it was impermissible, and an error of law, to apply the expression as if it had the second of the two meanings. This was their Honours' foundation for a conclusion that the Tribunal fell into error in holding that "unsystematic warfare without more is not persecution"[248].
In my opinion the Tribunal did not fall into error in this regard. What the Tribunal did was to make a finding of fact that the turbulent and violent conditions which were prevailing in Somalia stemmed from instability, anarchy and murderous shiftings in clan allegiances, and not "Convention" persecution whether of a systematic kind or otherwise.
The Tribunal did pay careful regard to the claims that were made by the respondent and the situation in Somalia. Katz J held that it was not inappropriate for the Tribunal to introduce the word "systematic" as a qualifier of the word "persecution" if the former is used, as his Honour thought it was here, to distinguish between isolated instances of oppressive conduct and systematic attacks against the respondent or his social or other group. Neither the Tribunal nor Katz J, in so holding, said or meant that persecution which was not systematic could not be persecution for a Convention reason.
In Adan v Secretary of State for the Home Department[249] the House of Lords considered the meaning of persecution for a Convention reason in the context of evidence before them of clan conflict in Somalia. Lord Slynn of Hadley and Lord Lloyd of Berwick (with whom Lord Goff of Chieveley, Lord Nolan and Lord Hope of Craighead agreed) both made speeches in which they referred to a state of civil war in Somalia in circumstances in which law and order had broken down. The same or similar expressions were used by the Tribunal and the Federal Court in this case.
Throughout the judgment of the Full Court in this case, their Honours referred to conditions in Somalia as conditions of "civil war"[250]. The use of these expressions in my respectful opinion involves a misdescription of what is occurring in Somalia. Maraudings by clan chiefs in pursuit of territory and resources, ready to make and break allegiances at will, as frightening and dangerous as their conduct might be, does not have the character of a civil war which would usually have a clearly defined object and clearly defined sides. However, I do not suggest that the case should be decided on any narrow, semantic basis. There is a real distinction between, on the one hand, the situation in Somalia, and, on the other, the circumstances which gave rise to the Convention, and the language which came to be used in it which was designed to deal with those circumstances, of which the Office of the United Nations High Commissioner for Human Rights has written[251]:

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (417 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (19)