Yusuf v Minister for Immigration & Multicultural Affairs

EX TEMPORE REASONS FOR JUDGMENT 1 This is an application to review a decision of the Refugee Review Tribunal under Part 8 of the Migration Act 1958 (Cth) ("the Act"), in which the Tribunal was not satisfied that the applicant, Fathia Mohammed Yusuf, and her two children were refugees. Though there are in fact three applicants, I will in these reasons refer only to "the applicant" for the purposes of identifying Ms Yusuf. 2 The background circumstances and the decision of the Tribunal can be outlined relatively briefly. The applicant is a Somali national whose claims for a protection visa are based on race and membership of a particular social group. She is from Mogadishu and of the Abaskul clan. It is in relation to her clan membership that her apprehensions in relation to persecution arise. 3 The applicant arrived in Australia illegally in February 1999, and lodged an application for a protection visa that month. The applicant has remained in detention since her arrival. Accompanying her application was a statement which referred, amongst other things, to the causes of her apprehension: "About a year and a half ago members from the Hawiye clan invaded our house and attacked my husband. My husband was able to run away with the help of a neighbor [sic]. My husband had to run away and to date I don't know if he is alive or where he is. On one occasion I went to purchase food for my children. People from the Hawiye clan attacked me. They put a sword on my chest, near my neck and they cut me. I still have the scar. I was lucky that my neighbors saw this attack and they came and saved me from these people. I was lucky that the neighbors who were Hawiye saved me otherwise I would have probably been killed. On another occasion a group of women from the Hawiye attacked me as I was shopping near our house. I received cuts to my head and face and I still feel the pain from the injuries. My neighbors who saw the incident once again came to my rescue as they heard me shouting and crying. They told me to go back home and I was not to leave my house again as I could get killed. … If I am returned to Somalia I would probably be killed, as there is no one in Somalia who can protect me. My clan is a small defenseless clan and as a result there is no where [sic] in Somalia where we can settle. In Somalia there is no government and there are no authorities that could protect me. If I am returned there my children and I will probably be killed. It is because of the fact that we have no one to protect us and because of the persecution we face in Somalia as members of the Abaskul clan that I am seeking protection from the Australian government." 4 I would emphasise in relation to that statement that three specific events are referred to in each of the first three paragraphs referred to. Secondly, I would also emphasise, as is evident in the last sentence of the quotation, that it is clan membership which provides the basis for the fear of persecution. A supplementary statement was prepared by the applicant dated 22 February: "Last time when I prepared my statement with my solicitor I was not feeling well. I was also concerned as another person was caring for my children whilst I was with my solicitor and they are used to be [sic] with me all the time. Because of those reasons as well as due to the fact that I am going trough [sic] some very stressful times I forgot some things that have happened to me. Furthermore, another detainee translated my statement to me and I found out that the interpreter did not translate everything I have told my solicitor. Because of these reasons I want to make a further statement and amend my previous statement. … In early 1991 my sister and three of her children were killed. The Hawyee [sic] people attacked her house and they threw a bomb through the window. They attacked their house as they were from the Abaskul clan. The only survivors were one child and my brother-in-law. My brother-in-law and the child survived as at the time they were in hiding and not in the house at the time of the attack. The surviving child was with his father as he was older than the others that remained behind with their mother. Tradition required me to marry my sister's husband, which is what I did. Further to my previous statement I would like to add that the neighbors who protected us from the Hawyee have told us to leave Somalia as they could no longer protect us. They were afraid for their lives as they could be killed because they helped us." 5 When the application came before the Minister's delegate, the delegate obtained information from the Department of Foreign Affairs and Trade concerning the situation of the Abaskul clan in Somalia and in Mogadishu. The terms of that statement insofar as presently relevant are as follows: "A1. The Abaskul are a sub clan of the Darod. The region they are most commonly associated with is the 5th region of Ethiopia (South Eastern Ethiopia) although members of the clan also live in other areas of Somalia including in the area which borders Ethiopia. Mogadishu has attracted settlers from all regions of Somalia. It can be expected that some members of the Abaskul clan would live there and this would not be unusual. A2. An Abaskul, as a member of minority clan in Mogadishu, is at a disadvantage when it comes to securing a job or access to housing for example and would be at a disadvantage in the event of a dispute with a member of a more powerful clan such as the Hawiye. This is a situation in which all minority clan members find themselves so it is not peculiar to the Abaskul. The Abaskul are not the target of the Hawiye, or any other clan, because of their clan affiliation. A3. The Abaskul are traditionally nomadic herdspeople who tend flocks of camels and goats although nowadays some have moved to other occupations. COMMENT It is unlikely that the applicant would have experienced attacks from members of the Hawiye clan for the reason that the applicant is a member of the Abaskul clan. There is a complex relationship between different clans and to confuse the matter further intermarriage between clans is not unusual. In a given region, a particular clan may be higher up the social pecking order than another. This does not mean that higher ranked clan members will physically attack a member of a lower ranked clan simply because of the person's clan affiliation. To illustrate the peculiarities of Somali life the most intense fighting in Mogadishu at the moment occurs between two warlords who both belong to the same branch of the Hawiye clan. It is worth noting that there are other areas of Somalia where the Abaskul are more prominent." The Application for a Protection Visa 6 After the delegate's decision refusing Ms Yusuf's application, she appealed to the Tribunal. She gave evidence by interpreter to the Tribunal, to which it will be necessary later to refer in these reasons. 7 I now turn to the Tribunal's decision. In referring to the matters that grounded the applicant's apprehension, the Tribunal noted the following: "She said that she rarely ventured outside after the commencement of the civil war, but that on two particular occasions when she did so, she was soon after attacked by members of the Hawiye clan. She claims that the attacks on her occurred because the Hawiye clan was antagonistic to her own clan. She said that the first attack occurred a long time ago and that the second attack occurred about 20 months ago. She claims that she received several wounds in the attacks upon her as her assailants had swords and knives. She said that on each occasion she was assisted by neighbours who, like her attackers, were also of the Hawiye clan. She said that her husband ran away with the help of a neighbour and she does not know where he is now. She said that she would be alone and vulnerable if she were returned to Mogadishu. She claims that her Hawiye neighbours suggested that she leave Somalia as they would be unable to protect her in the future. The applicant claims that due to their membership of the Abaskul clan a sister and her three children were killed by Hawiyes in a bomb attack on their house in early 1991. She said that two other family members survived the attack because they were not at home at the time. She said at the hearing that she did not make all her claims at the outset as she was tired and her adviser said that she could take a rest and make later claims. She added that she tried to repress what had happened to her sister and her children. In a statement of 22 February 1999 the applicant said that she was unwell when preparing her initial statement and she was concerned about her children who were in the care of another person at the time." 8 In discussing the evidence and making its findings, the Tribunal set out the Department of Foreign Affairs and Trade advice I earlier referred to. Importantly, in so doing it italicised the observation: "The Abaskul are not the target of the Hawiye or any other clan because of their clan affiliation." 9 The Tribunal immediately went on to observe: "In view of the aforementioned information, and bearing in mind that on the two isolated occasions the applicant encountered problems, she was assisted by persons from the same clan as her attackers, the Tribunal concludes that the attacks against her were motivated by reasons other than race. The Tribunal notes that the applicant has been generally free from any harm in Mogadishu notwithstanding the continuation of the civil war. It notes, in particular, advice from DFAT that members of the Abaskul clan are not targeted by members of the Hawiye clan. That information from DFAT and the fact that the applicant was rescued from further harm by Hawiye neighbours when she twice came under attack, leads to a conclusion that it was not the applicant's clan membership that motivated the attacks upon her." 10 I would note that as in its narrative of the evidence, the Tribunal here does not refer to the attack upon her house or the circumstances of her husband's departure to Mogadishu. 11 Additionally, the Tribunal noted: "The applicant has provided no satisfactory explanation for omitting claims at the outset of her application for asylum that four family members were killed in a bombing incident in 1991. The claim is of such significance that the Tribunal does not accept the applicant, having fled Somalia specifically in order to seek asylum, would then have omitted any allusion to it at all in the initial stage of her application. In weighing all the material before it the Tribunal finds that the applicant has invented those claims. Even if the claims were found to be true they do not establish a well-founded fear of persecution for a Convention reason. That some family members were killed at the outbreak of a civil war does not indicate that the applicant, who remained in the same vicinity for almost a decade longer, would now or in the foreseeable future face a real chance of persecution for a Convention reason herself." In the event, as I have noted, the Tribunal found that the applicant and her children do not have a well-founded fear of persecution for a Convention reason. The application to this Court 12 A number of grounds have been advanced before me which I will consider separately.