Minister for Immigration & Multicultural Affairs v Hamad

REASONS FOR JUDGMENT 1 This is an appeal from a decision of Moore J (NG 575 of 1998) who set aside a decision of the Refugee Review Tribunal ("RRT") made on 18 May 1998. The RRT had affirmed a decision of the delegate of the Minister for Immigration and Multicultural Affairs refusing to grant the applicant (respondent to this appeal) a protection visa because it, too, was not satisfied that the respondent was a refugee. GROUNDS OF APPEAL 2 Two grounds of appeal were argued: (a) That Moore J erred in finding that the RRT erred in adopting too narrow and erroneous an approach to what constitutes persecution, and (b) That Moore J ought to have found that the RRT was correct in finding that the nature of the applicant's claims were outside the Convention.

BACKGROUND 3 The RRT accepted that the account given by the respondent as to his experiences in Somalia and current fears were substantially true. 4 He was born in the Somali town of Kismayu on 20 October 1968 and belonged to the Yahar clan or tribe which is a low caste clan. 5 When the civil war broke out in February 1991 the respondent was living in Kismayu and Darods fled there from Mogadishu. They were followed by Hawiye and there was fighting where the respondent was targeted by his neighbours. When the fighting started the respondent was in a village and could not go to Mogadishu at that time. A brother of the respondent was killed in the fighting by some Darod people who mistook him for a Hawiye, possibly because of his accent. 6 In March 1991 the government of Siad Barre used low caste clan members as soldiers and spies to control the bigger clans. The respondent's family went to Mogadishu where every army was looking for them. In Mogadishu, the respondent's father was captured, detained and subsequently executed because he was a Yahar from Kismayu and thus suspected of being a spy for the Darod. The respondent's father was killed by Hawiye militia. 7 In April 1991 the respondent arrived in Ethiopia after having spent some time in Kenya. 8 In May 1991, Abdul Azis, a brother of the respondent, was taken from his home during a round up of people from minor or low caste clans and killed. Abdul Azis was killed by the Abgal group. 9 In early 1992, with the help of friends of the respondent's father, the respondent's family was taken by ship from Mogadishu to Yemen. In 1993 the respondent joined his family in Yemen. 10 In February 1998 the respondent travelled to Australia via London and Bangkok arriving in Australia on 6 March 1998. THE RRT'S DECISION 11 The RRT was satisfied that the Yahar clan can constitute a particular social group for the purpose of the Convention. It then proceeded to explain its conclusions on two issues: (a) whether the applicant faces a real chance of harm if he returns to Somalia, and (b) whether this amounts to persecution in a Convention sense, ie. directed against him by reason of his membership of the Yahar clan. 12 The RRT said at 14 of its decision: "Whether in a particular case discrimination amounts to persecution in a Convention sense will depend upon all the circumstances. Conduct will be persecutory in the Convention sense if serious harm can be seen as part of a course of systematic conduct, motivated or attended by enmity or malignity, and directed for a Convention reason against a person or a group because of a difference which the persecutor will not tolerate. It is not enough by itself to have a well-founded fear of war or of civil unrest or of harm motivated by such things as revenge or land disputes. In considering this issue, the Tribunal has found particularly helpful, and has drawn upon, Tribunal decision N97/188902 of 1 October 1997 (upheld by the Federal Court in Abdalla v MIMA, unreported, Beaumont J, 6 January 1998). It is not in dispute that Somalia has been in a state of civil war, much of it clan-based, with intrinsically unstable and frequently shifting factional and clan alliances. However, no matter how serious, the hardship and dangers to people caught up in civil disturbances do not, without more, amount to persecution. Nor does a power imbalance between warring groups, of itself, convert the warfare into "persecution" of the weaker or more vulnerable group. Of course, that does not mean that a member of that group might not fall within the Convention definition of a refugee. It is in this context that the question of fact and degree is particularly important." 13 The RRT then referred to a number of authorities to support the conclusion that recurring patterns of violence between groups within a community will not constitute persecution unless it forms part of "a course of systematic conduct". 14 The RRT then made the following findings: "The Tribunal accepts that violent lawlessness has been endemic in Mogadishu and nearby areas in Somalia (including in Kismayu) since the outbreak of civil war in 1991. The Tribunal also accepts that the only security available to many people has been the membership or protection of a large armed clan and that members of small clans have been in a position of particular vulnerability, not least because they were not themselves protected by armed militias. However, the fact that such a group may be vulnerable to abuse by armed and lawless militias does not of itself demonstrate that such abuse arises for a Convention reason. It does not appear from the evidence in this case that the shifting and unstable patterns of clan alliances and communal violence which gave rise to tragic difficulties for members of the Applicant's family in Kismayu and Mogadishu formed part of "a course of systematic conduct" against the Applicant's clan or sub-clan. His brother in Kismayu was mistaken for an Abgal (Hiwaye) in fighting between Darod and Hiwaye; his father was suspected of spying for the Darod because he came to Mogadishu from Kismayu; and his brother was killed by Abgal militia apparently in revenge for Yahar killing of Abgals in the closing days of the old Barre regime. All of this took place in early 1991 at the height of the civil war in the context of fighting between the Darod and Hiwaye (including the Abgal) in which many people were caught up. There was no evidence before the Tribunal that this was part of a systemic or sustained targeting of Yahar over a period by reason of their clan identity." 15 The conclusion reached was that the claim for refugee status had not been made out because the applicant's fear of suffering arising from the uncertainty and violence of civil conflict and the recurring pattern of communal violence in Somalia was not, in his particular circumstances, Convention-based persecution. MOORE J'S DECISION 16 This decision was made on the following basis: that the approach of the RRT identified too narrowly what constitutes persecution by seeking to ascertain whether the conduct directed against the respondent's clan was manifestly part of a course of systematic conduct and elevating this enquiry to be central to the determination of the existence of convention-based persecution, in fact, a determining criterion. THE MEANING OF THE WORD "SYSTEMATIC" 17 The phrase "systematic conduct" can be, and often is, used in two senses - either to refer to the motive, or evidence revealing the motive for the acts of the perpetrator or alternatively to refer to a number of acts or the volume of acts which are necessary before persecution is established. It is in the first sense that the word is used in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429 in this often-quoted passage from the judgment of McHugh J: "But not every threat of harm to a person or interference with his or her rights for reasons of race, religion, nationality, membership of a particular social group or political opinion constitutes "being persecuted". The notion of persecution involves selective harassment. It is not necessary, however, that the conduct complained of should be directed against a person as an individual. He or she may be "persecuted" because he or she is a member of a group which is the subject of systematic harassment." (our emphasis) 18 Wilcox J in Murugasu v Minister of Immigration and Ethnic Affairs (unreported, Federal Court, 28 July 1987) made observations to the same effect when he said, at 13: "The word "persecuted" suggests a course of systematic action aimed at an individual or a group of people. It is not enough that there be a fear of being involved in incidental violence as a result of civil war or communal disturbances." (our emphasis) 19 It may be, and frequently is, the case that the paucity of acts or occurrences relied on, or the circumstances in which they occur may lead a decision maker properly to conclude as a matter of fact that there is no persecution. However, the presence or absence of conduct which can be characterised as "systematic" does not of itself, determine the issue. 20 This issue was addressed by a Full Court of the Federal Court in Abdalla v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 11 at 20 in the following way: "In substance the tribunal decided, in the present case, that the recurring pattern of communal violence, which it found to exist in Somalia, did not amount to persecution because there was no systematic course of conduct. The requirement, in our view, was too widely expressed. Where there is a recurring pattern of violence towards a person on a Convention ground, there is no reason why such conduct may not constitute "persecution". Clearly "persecution" involves more than a random act. To amount to "persecution" there must be a form of selective harassment of an individual or a group of which the individual is a member. One act of selective harassment may be sufficient. The fact that a recurring pattern can be loosely described as communal violence or even civil war does not mean that it cannot amount to "persecution". It is necessary to examine the situation further in an attempt to determine the purpose which gives rise to the violence or danger. The decision in respect of whether recurring communal violence amounts to "persecution" depends on whether there is a purpose behind the recurring pattern which is referrable to a Convention ground. In the present case, the tribunal has found that the frequent fighting against the Marehan clan is partly based on settling long standing scores dating back to the Siad Barre regime and partly based on competition for territory. In so far as the threatened oppression arises from the settling of scores with the Marehan as a clan, it can be concluded that the fighting was directed at them as a group which had the former president as a member. This, in our view, is within the concept of persecution. Competition for territory, depending on the circumstances, may also lead to persecution. This precise question as to whether the present circumstances amounted to persecution was apparently not investigated before the tribunal, presumably because the decision-maker formed the view that communal violence within the framework of a civil war is not a form of "persecution" within the meaning of the Convention. This approach, in our view, is not correct. Much will depend on the purposes for which the war is being fought. For example, if it is fought to eliminate or punish members of another clan, it may amount to "persecution" for a Convention reason." 21 In the case before us the RRT appeared to understand that the investigation must be directed, even where there is communal violence, at the motive for the acts which are accepted as having occurred. At 16 the decision maker said: "It is appropriate to consider whether the fighting is aimed at establishing or maintaining power or establishing control over land or resources, which would generally not be persecution, or whether it can properly be regarded as part of a course of systematic conduct aimed at "the destruction of persons suspected of being adversaries because of their race, ethnic origin, religion or political opinion" or the "purposeful destruction of the ethnic, cultural or religious identity of the insurgent part of the population". Again, this will be a question of fact and degree." 22 The appellant relies on to this passage to argue that the RRT understood its task and that its reference to systematic conduct in its findings amounted to no more than an evidentiary conclusion based on an assessment of the particular circumstances of the case and not as a determining criterion. Relying on the oft quoted principle adopted in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, that it is important to adopt a restrained approach to identifying errors of law by not construing reasons "minutely and finely", the appellant said it was "not appropriate" to seize upon words such as "systematic" and find, in their use, a demonstration of legal error, particularly when the word has been used in a specific conceptual framework with judicial support from the High Court. 23 We do not consider that his Honour did take this approach. He identified in his reasons an important part of the process of decision making when assessing refugee status namely the way decision makers approach the task of determining the existence of persecution for a convention-related reason. The elevation of "a course of systematic conduct" to a legal standard or determining criterion which must be met by those asserting persecution is, in our view, a fundamental legal error. We adopt the reasons given for this conclusion in Abdalla (cited above). 24 The issue is of even greater importance when, as in this case, the respondent's country is in the grip of civil war. In Minister for Immigration and Multicultural Affairs v Abdi [1999] FCA 299 we considered the application of the Convention grounds in respect of a country at civil war and disagreed with the conclusions reached by the House of Lords in Adan v Secretary of State for the Home Department (1998) 2 WLR 702 in so far as their Lordships concluded that a clan or race based war cannot, without some further and differential degree of risk, give rise to Convention-based persecution. At 13 we said: "It is somewhat odd to suggest that claimants are precluded from refugee status solely on the ground, for example, that a conflict based on race or religion which gives rise to the fear, can be described as a "war". The task of the decision-maker in these circumstances must be to investigate the reasons underlying the war and the way it is conducted in order to ascertain whether it is based on a Convention ground or has an objective which is covered by the Convention, namely: race, religion or other stated reason. This responsibility cannot be curtailed by a conclusion that there is a state of war. It is difficult, with respect, to see the basis on which a superadded requirement of "greater risk", "differential risk" or "risk over and above that arising from clan warfare" can be derived as a criterion for application of the Convention definition where the war is based on race or religion rather than for example a quest for property, power or resources. For example, once it is established that a person is at risk of being killed or tortured in a war by reason of clan membership, in circumstances where that is one of the objectives of the war in question, one might properly ask what further degree of danger or exposure needs to be established before the required nexus with a Convention reason is made out? Given the purpose of the Convention and the well-settled principle that a broad, liberal and purposive interpretation must be given to the language, it is difficult to see the reason why a "second tier" of "differential" or superadded persecution should be imposed on an applicant for refugee status." 25 It follows that the communal violence (even occurring within the framework of a civil war), experienced by this applicant cannot be put aside. The nature of war must be examined to determine whether it has given rise to persecution. The purpose of war is of central importance in determining the question whether what has happened amounts to persecution under the Convention. The appellant submits that the RRT's decision is entirely consistent with the approach adopted in Adan as to the need to find something more than the existence of a race or religion based war. We agree, and having concluded that those statements go beyond the requirements of the Convention, we would in addition dismiss the appeal on this ground. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices O'Connor, Tamberlin and Mansfield.