Mohamad v Minister for Immigration & Multicultural Affairs

WHITLAM J: 1 This is an appeal from a judgment of Emmett J ([1999] FCA 688) dismissing an application under s 476 of the Migration Act 1958 ("the Act") for review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 19 February 1999. The Tribunal affirmed the decision made by a delegate of the respondent refusing to grant the appellant a protection visa. It was not satisfied that the appellant met the criterion prescribed for a protection visa by s 36(2) of the Act, namely, that he was "a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol". (The instruments mentioned in that provision will be together referred to as "the Convention".) A "refugee" is defined by Art 1A (2) of the Convention as a person who: "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country." Specifically, the Tribunal found that the appellant did not have a "well-founded fear of persecution" for a reason set out in that definition. 2 The appellant is a Somali national, who left his country in early September 1998 and arrived in Australia on 8 October 1998. The material before the Tribunal indicated that Somali society is based on clan lineages, that there has been no central government in Somalia since early 1991, and that various "warlords" fight each other for control of certain parts of the country. The appellant claimed to be a member of the Abrahim sub-clan and to be a second cousin of a prominent warlord, Mohamed Said Hirsi (known as General Morgan), who was also a member of the same sub-clan. He also claimed to have been involved in a group called the Somali Youth Movement. In substance, the appellant claimed that he feared persecution by reason of the political opinions held by or imputed to him and by reason of his membership of a particular social group, namely, his sub-clan. 3 The Tribunal prepared a very full statement under s 430(1) of the Act. It described in detail (at pp 2-10) the claims made and evidence submitted by and on behalf of the appellant. After then setting out (at pp10-11) its understanding of the elements of the Convention definition of "refugee", the Tribunal referred (at pp11-17) to what it described as the "background" material before it. The Tribunal then set out (at pp17-22) its findings of fact on the claims made by the appellant. It commenced (p.17): "I accept that Mr Mohamad is a member of the Abrahim sub-clan, which is part of the Marjeeteen clan. I also accept that he was forced to flee Mogadishu, where he was studying, in 1991 and was unable to return to his home district of Shabalele at the time because of attacks on members of the Darood clan by Hawiye militia men. I accept the [sic] he and his family lived in Dobley and then in Kismayo and that he left Somalia in the manner claimed in 1998. However, for the reasons set out below, I do not believe that he has been at risk of harm from General Morgan since 1994 because he formed an opposition group called the Somali Youth Movement, nor do I accept that his sub-clan, the Abdarahim Ibrahim are at risk of harm because of General Morgan who is also a member of the clan, nor that Mr Mohamad himself is at risk of harm because he is General Morgan's cousin." 4 The Tribunal first dealt specifically with the claims about the Somali Youth Movement and concluded (p. 19): "… I am not satisfied that he was involved in a group called that [sic] Somali Youth Movement or other anti-General Morgan activities, nor that General Morgan ever sought to harm him because of his political views or activities, nor that he faces a real chance of being harmed by General Morgan if he returns to Somalia because of his views or activities." 5 The Tribunal then turned to the appellant's other claims and said (at p 19): "Membership of the Abrahim clan and relationship to General Morgan Mr Mohamad claims that he fears he will be persecuted by other clans and sub-clans, including other members of Majarteen clans, if he returns to Somalia because he is a member of the same sub-clan was [sic] General Morgan, who he claims is his cousin. As noted above, I accept that Mr Mohamad is a member of the Abrahim clan and I also accept that he may be related to General Morgan. I accept that he was shot by members of an Ogadan militia in Dopley in 1993 and that members of his family have died and suffered in other ways as a result of the violence which continues to plague the Kismayo region in Somalia. However, I do not accept that he was singled out for attack by Marehan militia when they attacked Kismayo last year because of his clan or his relationship to General Morgan, nor that he or members of his clan have been singled out for animosity or harm by other clans in the Kismayo area in the manner claimed in his submissions." 6 It gave four specific reasons for those findings, the second of which (at pp 19-20) should be noted: "Secondly, none of the sources suggest that the Abdarahim Ibrahim sub-clan has been singled out for attack by other Mujeerteen clans, the Marehan or anyone else who opposed General Morgan since 1991. Indeed, there is no mention of the Abdarahim Ibrahim clan in any of the sources consulted, except on diagrams setting out clan structures." 7 Finally, the Tribunal stated (at pp 21-22): "After considering all of the evidence, I have concluded that Mr Mohamad fled Somalia to avoid the general violence of the civil war. It is well established that to satisfy the Convention definition of a refugee it is not enough, of itself, to be outside one's country owing to a well-founded fear of war or civil unrest. This is not to suggest that groups or individuals cannot be persecuted in a Convention sense during times of civil war or communal violence. If a war is fought for the specific purpose of punishing or eliminating members of a particular clan or religious group, members of such groups will clearly come within the scope of the Convention. People or groups who are targeted for a Convention reason in a situation of civil war or communal violence will also come within the scope of the Convention. However, for an applicant fleeing a situation of communal violence or civil war to come within the scope of the Convention, there must be evidence he or she faces a real chance of facing some form of selective harassment for a Convention reason. As noted above, this may occur when the clan or religious group to which the [sic] belong is targeted and faces a greater risk of harm than other groups involved in the conflict. It may also occur if the applicant faces a particular risk of harm because of his or her political opinion or one which is imputed to them. However, if the evidence indicates that all sections of society are equally at risk so long as the civil war continues, a claim for protection has not been made out. Furthermore, it is not enough that an individual or group faces a greater risk of harm within a situation of communal violence. The risk must also be for a Convention reason. Thus, the fact that smaller and weaker groups are most risk of harm because they are least able to defend themselves does not bring them within the Convention. There would need to be evidence that they were targeted for a Convention reason, rather than facing the same kinds of attacks as other clans, but suffering more because of their size and weakness. (See Abdalla v MIMA (unreported, Full Federal Court of Australia, 20 August 1998, Burchett, Tamberlin & Emmett JJ) at pp. 14-15; Hussein v MIMA (unreported, Federal Court of Australia, Lindgren J, 3 November 1998) I have considerable sympathy for Mr Mohamad who is clearly a sincere man greatly concerned for the future safety and well-being of his family. I accept that he has a subjective fear of returning to Somalia. I also accept that he faces some risk of falling victim to the continuing violence in the Kismayo region, which, unlike some parts of Somalia, is not at peace and appears unlikely to be at peace for some time to come. However, after considering all the evidence, I am not satisfied that he or his sub-clan have faced selective harassment for a Convention reason in the Kismayo area of Somalia, nor that he faces a real chance of facing selective harassment amounting to persecution for a Convention reason in the region in the foreseeable future. I am therefore not satisfied that he has a well-founded fear of persecution for a Convention reason in Somalia." (Emphasis supplied.) 8 At first instance before Emmett J, counsel then appearing for the appellant unsuccessfully contended that the decision of the Tribunal involved two errors of law. The argument in respect of the first suggested error, namely, that the manner in which the Tribunal stated its particular findings compelled it to return to the question "What if I am wrong?", has not been renewed before us. The second point has been re-agitated, but consideration of it may conveniently be deferred. 9 The core of the appellant's case in the present appeal, according to his counsel, is that Emmett J should have detected an error of approach in the first passage that I have highlighted in the final excerpt from the Tribunal's statement set out in paragraph 7 above. The clue to the Tribunal's error is said to lie in its use of the expression "greater risk of harm". Such language is said to betoken an adherence to a view about the meaning of the Convention in a situation where there is a state of civil war between clans, which found favour with the House of Lords in Adan v Home Secretary [1999] 1 AC 293, but which was subsequently not accepted by a Full Court of this Court in Minister for Immigration and Multicultural Affairs v Abdi (1999) 87 FCR 280. Counsel for the appellant submits that the Tribunal thus required his client to show, in circumstances where persecution was rife and widespread, some relatively higher level of persecution than it would in circumstances where persecution was less commonly experienced by a population. He submits that the Tribunal's reasoning suggests that "[where] multiple parts of society, each part being a defined social group, face persecution, the Convention requires a showing that a particular social group faces more persecution than any other social group". 10 The Tribunal did not cite Adan but, as appears from the excerpt in paragraph 7 above, it did refer to the judgment of a Full Court of this Court (Burchett, Tamberlin and Emmett JJ) in Abdalla v Minister for Immigration and Multicultural Affairs. That decision is now reported at (1998) 51 ALD 11. Their Honours said (at 20-21) in the passages referred to by the Tribunal: "… Clearly "persecution" involves more than a random act. To amount to "persecution" there must be a form of selective harassment of an individual or of 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. The respondent referred to the recent decision of the House of Lords in Adan v Secretary of State for the Home Department [1998] 2 WLR 702. This decision was referred to in support of a proposition that a state of civil war, in which widespread clan killing and torture takes place, will not give rise to a well-founded fear of persecution where the individual claimant is at no greater risk of adverse treatment than others who are at risk in the civil war for reasons of their clan and sub-clan membership. Their Lordships held that on the material in that case the applicant was not a refugee within the Convention. … …the decision in Adan turned on the particular evidence as to the circumstances of Mr Adan and the nature of the war in the north of Somalia at the relevant time. [Adan] is not in any way a controlling authority in relation to the present case. The question to be investigated before reaching a conclusion as to whether there is persecution in the present case which [Adan] raises is whether the evidence establishes that all sections of society are equally at risk so long as the civil war continues. In the tribunal decision, this issue is not addressed. The decision in Adan deals with what was apparently indiscriminate violence or oppression manifested towards all clans without any differential impact based on clan membership. In the present case the tribunal was concerned with what the evidence indicates is the special position of the Marehan clan by reason of its association with the former regime. There is support in the findings of the tribunal for the conclusion that the Marehan are in a different position as to risk in the civil war because of their identification with the former president. In the present case, we consider that the approach adopted by the tribunal was erroneous because it failed to accept that communal violence arising from the civil war could amount to persecution for a Convention reason. It is not correct to proceed on the basis that because a fear arises within a recurring patten of communal violence in a civil war context therefore it cannot amount to "persecution" for a Convention reason." 11 In Adan the issue in the appeal was stated (at 308) to be: "Can a state of civil war whose incidents are widespread clan and sub-clan based killing and torture give rise to well-founded fear of persecution for the purposes of the 1951 Convention and the 1967 Protocol thereto, notwithstanding that the individual claimant is 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 House of Lords disagreed with the Court of Appeal on this issue and, in the opinion of Lord Lloyd of Berwick (at 311), effectively answered the question thus posed in the negative. His Lordship took the view (at 308-311) that, where there is a state of civil war between clans, an asylum-seeker must be able to show that he is at greater risk of ill-treatment than the members of his own clan or any other clan. Such an asylum-seeker must, his Lordship said, be able to show fear of persecution for Convention reasons "over and above the ordinary risks of clan warfare". 12 The Tribunal decided the appellant's case before judgment was delivered in Abdi, in which case the Tribunal, differently constituted, had purported to apply the statements made by Lord Lloyd of Berwick in Adan. In Abdi the Full Court (O'Connor, Tamberlin and Mansfield JJ) said (at 290-291) that there was no basis either in the language or objectives of the Convention for the imposition of an additional requirement of "greater risk" where a person is at risk of being killed or tortured in a war by reason of clan membership, and held (at 292) that the Tribunal erred in law by applying the gloss on the Convention set out in Adan. 13 Any ambiguity in the statement in Abdalla about "whether the evidence establishes that all sections of society are equally at risk so long as the civil war continues" has now been clarified by the decision in Abdi. Be that as it may, in the present case I do not think that the phrase "greater risk of harm" indicates a flawed approach on the part of the Tribunal. After all, the Tribunal expressly found that the appellant's clan had not been singled out for attack. This means that he was not at risk by reason of his clan membership at all. No question of the appellant being at greater risk than other members of his clan arose. 14 Importantly, the Tribunal expressly acknowledged (at p.21) that: "People or groups who are targeted for a Convention reason in a situation of civil war or communal violence will also come within the scope of the Convention." There is not the slightest hint in the Tribunal's statement that it misunderstood the instruction given in Abdalla, to which it referred and which was particularly apt in the circumstances of the case. Further, in its earlier discussion (at pp10-11) of the elements of the Convention definition of "refugee", the Tribunal noted the judgment of Burchett J in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 567 et seq. about the motivation envisaged by that definition. His Honour's formulation was approved in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 by Dawson J at 242 and by Gummow J at 284. In the sentence impugned by counsel for the appellant, the Tribunal speaks of a group "which … is targeted and faces greater risk" (my emphasis). This language suggests no more than that "greater risk" will be faced as a result of being "targeted". Plainly the Tribunal means only to convey the sense of a group being singled out in the context of a war. The Tribunal has not imposed an additional requirement that the appellant, as an individual, show that he is at "greater risk" than other members of his clan. 15 In England discussion of the connection between risk and a Convention reason in a civil war context seems to have been sidetracked by a debate about the meaning of an expression used in a text book by a Canadian academic: see Adan in the Court of Appeal [1997] 1 WLR 1107 per Simon Brown LJ at 1119-1120. No such confusion should occur in Australia. In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 the High Court explained (at 570-571) what it called the third element of the Convention definition of "refugee". An applicant for a protection visa must, so far as that element of the definition is concerned, only show that the persecution which he or she fears is for one of the so-called Convention reasons enumerated in Art 1A(2) of the Convention. As Abdi makes clear, no gloss is justified. In the present case, however, the Tribunal has properly instructed itself and has, in my opinion, applied the law correctly to the facts found by it. The appellant's first ground of appeal (which is a point never articulated at first instance) thus fails. 16 The second ground of appeal was, as I have said, a matter agitated before Emmett J. It turns on the second highlighted passage in the excerpt from the Tribunal set out in paragraph 7 above. Counsel for the appellant submits that in that passage the Tribunal accepted that the appellant's clan was "smaller and weaker". In the alternative, he says that the Tribunal should have made a finding on that issue. Counsel for the respondent disputes that there ever was such an issue before the Tribunal which grounded a claimed fear of persecution by the appellant. I note that in a submission before the Tribunal dated 17 December 1998 his adviser said: "The applicants [sic] falling out with the warlord and the ramifications that that leads to i.e. the lack of protection from a strong clan in a country where there is no central government exposes the applicant to grave dangers at the hands of not only Morgan's allies but also his enemies." That appears to be the highest basis upon which the relevance of the clan's weakness was put. 17 In any event, counsel for the appellant says that the Tribunal failed to explore the consequences of this "issue". Emmett J said (at [7]) that the appellant's contention on this matter was formulated in a manner with which he had some difficulty. So do I. The contention seems to be that the Tribunal failed to consider whether it was the perception by stronger clans of the appellant's clan as "weak" which motivated the persecution of its members because they belonged to a group which could not protect its members or retaliate. 18 Emmett J said: "29. The difficulty with the contention is, as I have said, that there is no express finding that the clan was weak and there was an express finding that there was no singling out of the clan. I have already referred to the passage in the reasons where the Tribunal records a finding that none of the sources suggest that the Abrahim sub-clan has been singled out for attack and in particular to the report to the Canadian Immigration and Refugee Board which makes no mention of the Abrahim sub-clan and does not suggest that any of Majeerteen sub-clans or people close to General Morgan are particularly at risk. 30. The Tribunal considered the claims advanced by the Applicant in relation to persecution by reason of his membership of the particular social group consisting of either his family, being his relationship to General Morgan, or the clan. However, as I have said above, the Tribunal did not accept the Applicant's evidence about having suffered persecution in 1998 in the manner claimed. I have referred above already to those passages in which the Tribunal accepted that a well founded fear of war was alone not sufficient. The well founded fear of a war must be a war waged for a Convention reason. The persecution of small or weak groups is not per se persecution for a Convention reason. For a successful claim, an Applicant would need to establish that the relevant attacks were because the persecutors were aiming at destroying or damaging the members of the persecuted by reason of their membership of the particular clan - see Hussein v The Minister for Immigration & Multicultural Affairs [1999] FCA 288 at paragraph 24." 19 His Honour later added: "32. If, coincidentally, all of the weak in a particular circumstance happen to be members of a particular social group there is no persecution for a Convention reason by that circumstance alone …." 20 I need only say that I entirely agree with Emmett J and think that what his Honour said is a complete answer to the second point argued in this appeal. 21 The appeal should be dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam. Associate: Dated: 16 February 2000