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Minister for Immigration & Multicultural Affairs v Jama [1999] FCA 1680

Publisher Australia: Federal Court
Publication Date 3 December 1999
Citation / Document Symbol FCA 1680
Cite as Minister for Immigration & Multicultural Affairs v Jama [1999] FCA 1680 , FCA 1680, Australia: Federal Court, 3 December 1999, available at: http://www.refworld.org/docid/3ae6b7604.html [accessed 3 September 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

MIGRATION - whether persecution for reasons of membership of a particular social group - clan fighting in Somalia - whether Tribunal directed attention to future situation in Somalia

Migration Act 1958 (Cth), ss 476(1)(c), 476(1)(e), 476(1)(g), 476(3)(e), 476(4)(a)

Abdalla v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 11, approved

Minister for Immigration and Multicultural Affairs v Abdi (1999) 87 FCR 280, approved

Adan v Secretary of State for the Home Department [1999] 1 AC 293, cited

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, discussed

Applicant A v Minister for Immigration and Ethnic Affairs (1977) 190 CLR 225, cited

Periannan v Minister for Immigration and Ethnic Affairs (unreported, Wilcox J, 28 July 1987), cited

Mohammed v Minister for Immigration and Multicultural Affairs [1998] FCA 1077, referred to

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, cited

Western Television Ltd v Australian Broadcasting Tribunal (1986) 12 FCR 414, cited

Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511, cited

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v KALTUN ISMAIL JAMA

N 755 OF 1999

BRANSON, SACKVILLE and KIEFEL JJ

SYDNEY

3 DECEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 755 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Appellant

AND:

KALTUN ISMAIL JAMA Respondent

JUDGES: BRANSON, SACKVILLE and KIEFEL JJ

DATE OF ORDER: 3 DECEMBER 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1.  The appeal be dismissed.

2.  The appellant pay the respondent's costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 755 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Appellant

AND:

KALTUN ISMAIL JAMA Respondent

JUDGES: BRANSON, SACKVILLE and KIEFEL JJ

DATE: 3 DECEMBER 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT

BRANSON & SACKVILLE JJ:

INTRODUCTION

1. The appellant ("the Minister") appeals from a judgment of a Judge of this Court which set aside a decision of the Refugee Review Tribunal ("the Tribunal") affirming a decision of a delegate of the Minister not to grant to the respondent Kaltun Ismail Jama ("Ms Jama") a protection visa under the Migration Act 1958 (Cth) ("the Act").

2. For present purposes, Ms Jama is entitled to be granted a protection visa if the relevant decision-maker is satisfied that she is a person to whom Australia has protection obligations under the 1951 Convention Relating to The Status of Refugees, as amended by the 1967 Protocol Relating to The Status of Refugees (together "the Refugees Convention").

3. Australia has protection obligations under the Refugees Convention to Ms Jama if she is a person who:

"... owing to a 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 [her] nationality and is unable or, owing to such fear, is unwilling to avail [herself] of the protection of that country ...."

FACTS

4. Ms Jama is a citizen of Somalia. She arrived in Australia on 24 February 1997 and lodged an application for a protection visa on 30 June 1997.

5. The Tribunal found Ms Jama to be a credible witness and accepted her account of her circumstances.

6. Relevantly, Ms Jama's circumstances are that she is a member of the Musa Arra sub-clan of the Habr Yunis sub-clan of the Isaaq clan. In 1988, when Ms Jama was eleven years of age, her family fled from their home in the town of Hargeisa in north-west Somalia, seeking protection in a refugee camp in Ethiopia. The Tribunal was satisfied that Ms Jama has no right of return to Ethiopia.

7. The Tribunal recorded that Ms Jama feared that she would be killed or raped if she returned to Somalia, in consequence of retaliation by the ruling sub-clan against her sub-clan. Since the Tribunal expressly accepted Ms Jama's account, it must have accepted that she did have these fears. The Tribunal appears also to have been satisfied that Ms Jama feared that, as a young, single, unaccompanied woman without relatives in Somalia, she would be vulnerable to attack if she returned to Somalia because of the status of women in that country.

8. The Tribunal was satisfied that the Isaaq clan, of which the Habr Yunis is a sub-clan, is "a particular social group" in Somalia within the meaning of the Refugees Convention, and that "young single Somali females without protection" are also such a social group. The Tribunal accepted the independent evidence available to it which revealed that Somalia is in a state of civil war with much of the conflict clan-based and involving shifting alliances.

9. It identified the first question for its consideration as "whether there is a real chance that the applicant would be persecuted for reasons of her clan membership should she return to Somalia."

10. The Tribunal observed that:

`A power imbalance between warring groups ... does not of itself convert ... warfare into "persecution" of the weaker and more vulnerable group unless the group is being systematically harassed for a Convention reason.'

It reasoned:

"Where an applicant's claims concern clan warfare it will be necessary 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 or harassment for a Convention reason.

There is no evidence before the Tribunal that supports the view that the Habr Yunis subclan [Musa] Arra is being persecuted for a Convention reason. According to the independent evidence the opposing clans are fighting over the control of North West Somalia."

11. As to Ms Jama's fears concerning her status as a young, single woman without protection, the Tribunal said:

"I accept that the applicant is [a] young, single, woman without her immediate family and that as such she may be vulnerable to random violence for that reason. However, there is no evidence of a course of systematic harassment of this group in Somalia and I am not satisfied that there is a real chance that the applicant will be persecuted for reasons of her being a single female without protection."

12. Further the Tribunal concluded:

"I ... accept the independent evidence ... which states that the UNHCR's analysis of the situation is that clan members may stay in safety in their own clan areas and that stability as well as law and order have returned to most of the territory. I find that there is protection for the applicant and systems in place for her repatriation to Hargeisa.

No State or government can ensure the complete safety of all its citizens against all forms of harm, mistreatment or even death. I find that protection is available to the applicant from either her clan or from the interim government in place in North West Somalia."

REASONS OF THE PRIMARY JUDGE

13. The learned primary Judge concluded (at [15]) that:

"A fair reading of the Tribunal's reasons suggests that upon characterising the Somali conflict as `traditional' the Tribunal effectively foreclosed the possibility that the conflict may have also generated `Convention persecution.' This reasoning discloses an error in the Tribunal's interpretation of the applicable law and thus an error under s 476(1)(e) of the [Act]."

14. His Honour found no error in the Tribunal's approach to Ms Jama's claim to have a well-founded fear of persecution by reason of her membership of the social group comprising young, single, Somali women without protection.

15. As to the Tribunal's conclusion that "protection is available to the applicant from either her clan or from the interim government in place in North West Somalia," the learned primary Judge, as we understand his reasons, concluded that the Tribunal had erred, in effect, by failing to consider whether Ms Jama would be able in safety to reach her own clan's area in north-west Somalia were she to return to Somalia from Australia.

16. His Honour also held that the Tribunal had "addressed the wrong question". He considered that the evidence before the Tribunal might have supported an inference that Ms Jama probably would not be persecuted by reason of her membership of the Habr Yunis clan. However, it could not sustain an inference that there was no reasonable chance of such persecution. Although it is not entirely clear, his Honour may have intended to hold that the Tribunal had failed to engage in the necessary consideration of future conditions in north-west Somalia and thus failed to consider whether there was a real chance that the appellant would suffer persecution in the future for a Refugees Convention reason, were she to be returned to Somalia.

CONSIDERATION

17. In our view, the learned trial Judge was right to conclude that the Tribunal proceeded on the basis that there was a dichotomy between fighting "aimed at establishing or maintaining power or establishing control over land or resources" (which his Honour referred to as "traditional warfare") and persecution for a Refugees Convention reason. In other words, the Tribunal approached the question by regarding the two alternatives as mutually exclusive. A natural reading of the Tribunal's reasons, set out in par 10 above, indicates that the Tribunal considered that it followed from the independent evidence that the opposing clans were fighting over the control of north-west Somalia, that there could be no persecution of members of the Habr Yunis sub-clan for a Refugees Convention reason. This interpretation is reinforced by the Tribunal's reliance on a quotation from the UNHCR Handbook, par 164, suggesting that

"[p]ersons compelled to leave their country of origin as a result of international or national armed conflicts are not normally considered [to be] refugees...".

18. The Tribunal did not ask whether the clan-based fighting, accepting that it related to control over north-west Somalia, had an objective additional to the acquisition or control of territory, or whether the objectives of the fighting might be indirectly advanced by acts likely to be destructive of the morale of members of Ms Jama's sub-clan. This could be the case, for example, if acts were directed at non-combatant sub-clan members. In short, the Tribunal did not ask whether the clan-based conflict gave rise to a real chance that members of the sub-clan, including Ms Jama, would be singled out for persecutory treatment because of their clan membership.

19. Full Courts of this Court in Abdalla v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 11, at 20, and Minister for Immigration and Multicultural Affairs v Abdi (1999) 87 FCR 280, at par 38, have held that no dichotomy of the kind referred to in par 17 above exists. Each of the decisions was published after the date of the Tribunal's decision and so could not have been taken into account by the Tribunal. On 10 September 1999, the High Court granted special leave to appeal in Abdi, in part because the Full Court declined to follow the reasoning of the House of Lords in Adan v Secretary of State for the Home Department [1999] 1 AC 293. However, it was not contended that it would be appropriate for this Court to decline to follow the approach taken by the Full Court in Abdi.

20. In Abdalla, at 20-21, the Full Court said:

"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 to 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. ... 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. .... It is not correct to proceed on the basis that because a fear arises within a recurring pattern of communal violence in a civil war context therefore it cannot amount to `persecution' for a Convention reason."

21. In Abdi, the Full Court said, at pars 37 and 38:

"In approaching the question of persecution in the context of a civil war, it is important to keep firmly in mind the wording of the Convention definition. The definition makes no reference to any different approach being adopted where the persecution exists in the context of civil war. There is no exclusion. The relevant question raised by the language of the definition requires a determination, on the evidence, of whether the harm or detriment is for a Convention reason. .... The evidence must ... disclose a Convention connection between the persecution of the applicant or the clan to which he belongs and the risk of harm. This in turn calls for a consideration, so far as can be determined on the evidence, as to the purpose and nature of the war, the way it is conducted, and the objectives sought to be achieved by the war.

In relation to Adan, we do not accept that a clan or race based war cannot, without some further and differential degree of risk, amount to persecution in the sense that an individual is selected out for persecution treatment because he is a member of a particular clan. If evidence establishes, for example, that the objective of a war is to harm the opposing party for one or more Convention reasons, then `persecution' will be made out. 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."

22. In our view, his Honour correctly concluded that the decision of the Tribunal involved an error of law, being an error involving an incorrect interpretation of the applicable law (s 476(1)(e) of the Act). The Tribunal did not seek to determine, as the authorities now make plain that it should have, whether having regard to the purpose and nature of the clan-based warfare, the way it is conducted and the objectives sought to be achieved by the warfare, it was satisfied that Ms Jama's fear of persecution for reasons of her clan membership was well-founded.

23. There is a second and independent reason for holding that the Tribunal made an error of law. The Tribunal stated the general principles governing the construction of the Refugees Convention in unexceptionable terms. Yet when considering whether Ms Jama's subjective fear of persecution by reason of her membership of the Habr Yunis sub-clan was well-founded, the Tribunal made findings which appear to be limited to past events. Thus in the passage already quoted, the Tribunal concluded that the "opposing clans are fighting over the control of North West Somalia" and that there was no evidence "that supports the view that the...subclan is being persecuted for a [Refugees] Convention reason" (emphasis added). Later the Tribunal accepted independent evidence "that clan members may stay in safety in their own clan areas and that stability as well as law and order have returned to most of the territory".

24. Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 makes it clear that a logical starting point for the consideration of whether an applicant's fear of persecution is a well-founded fear is provided by the circumstances giving rise to his or her fear (Mason CJ, at 387; Dawson J, at 399; Toohey J, at 405 and 408; Gaudron J, at 413-415; McHugh, at 429). However, the objective facts to be considered in reaching a determination as to whether the applicant's fear is well-founded are not confined to those which induced the fear. A judgment must be made as to what may happen in the future, including any change in current circumstances. The crucial question is whether the applicant's fear of future persecution for a Refugees Convention reason is well-founded. There may be no current risk of persecution on a Refugees Convention ground, yet a change in circumstances may readily be foreseen that would create a significant risk of persecution on such a ground.

25. Chan also makes clear that a fear may be well-founded even though persecution is unlikely (see especially per Gaudron J, at 415, and McHugh J, at 429). Consideration must be given to whether there is a real chance that the applicant will be persecuted for a Refugees Convention reason if he or she returns to the country of his or her nationality. A real chance may be less than a fifty per cent and may perhaps be as low as a ten per cent chance (see Chan, especially per Mason CJ, at 389, and McHugh J, at 429).

26. Ms Jama claimed before the Tribunal that her clan was being targeted in north-west Somalia by the ruling clan in that area. She indicated that, for this reason, she feared being killed or raped because of her clan membership. The Tribunal accepted "that Somalia is in a state of civil war and that much of it is clan-based with shifting alliances." The Tribunal also found that there were "continuing skirmishes" between clans in and around Hargeisa, but that any fights were "shortlived and quite local". The Tribunal referred to, but did not comment on, evidence of a background paper prepared by the UNHCR in October 1996 which accepted that

"throughout the Somali conflict, rape has been used as a weapon of war by all the factions to punish rival ethnic factions". (Emphasis added.)

Those women most at risk were said to be the internally displaced, those who lacked the protection of powerful clan structures and those of minority clans.

27. It is of some importance that the submission to the Tribunal made on behalf of Ms Jama specifically argued that, although there had been improvement in conditions in some areas of Somalia, it could not be said that the improvements were so substantial and durable as to remove any risk to Ms Jama should she return to Somalia. The submission contended that, even if the situation in the north-west had become generally stable, there was more than a remote chance that Ms Jama would face persecution in the future by reason of her membership of the Habr Yunis sub-clan.

28. The Tribunal recorded the substance of this submission, but did not address it. The reasons of the Tribunal demonstrate that it considered the evidence touching on the extent and purpose of the fighting between clans in north-west Somalia at and before the date of the decision. But there is nothing to show that the Tribunal directed its attention to the circumstances likely to prevail in north-west Somalia (the self-declared Republic of Somaliland) in the foreseeable future.

29. In particular, the Tribunal did not consider whether the fluid situation it described (even if relatively stable by Somali standards), might change so as to expose Ms Jama to a real chance that she would suffer serious harm by reason of her clan membership. As evidence cited by the Tribunal itself showed, the Republic of Somaliland in 1997 had rejected the so-called Sodere agreement which called for the reunification of Somalia. It was under pressure from other Somali factions to renounce its bid for secession. In these circumstances, bearing in mind that the relative stability in north-west Somalia involved "continuing skirmishes" between clan fighters, it might have been thought that the prevailing conditions were not guaranteed to continue unchanged. And if they changed for the worse, Ms Jama might have been thought to be at risk of serious harm inflicted by reason of her membership of her sub-clan.

30. Of course, none of this is to suggest that the Tribunal was bound on the evidence to make any such finding. But a fair reading of the Tribunal's reasons indicates that it failed to address the question. In this respect, there is a contrast between its reasons for rejecting Ms Jama's claim that she had a well-founded fear of persecution as a member of a particular social group comprising single females without protection, and those for rejecting her claim to have a well-founded fear of persecution as a member of her sub-clan. The Tribunal specifically found that there was no real chance that Ms Jama would be persecuted for reasons of her being a single female without protection. It made no such specific finding about the chances of future persecution as a member of her sub-clan.

31. The failure of the Tribunal to give proper consideration to whether Ms Jama has a well-founded fear of persecution on grounds of her clan membership should she return to Somalia renders irrelevant, in our view, the somewhat curiously expressed finding of the Tribunal, referred to in par 12 above, concerning the availability of protection to the applicant in north-west Somalia. The issue for the Tribunal's determination was whether her established subjective fear of persecution for reasons of her clan membership was well-founded. The likely availability of protection from either her clan or the interim government upon her return to Somalia was a factor, but not necessarily in a strife-torn country, a decisive factor, in the determination of that issue.

32. The Tribunal's failure to consider the circumstances that might prevail after Ms Jama's return to Somalia (should she not be granted a protection visa) involved a further error of the kind referred to in s 476(1)(e) of the Act.

33. For the above reasons, the appeal should be dismissed with costs.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Branson & Sackville.

Associate:

Dated: 3 December 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N755 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT

BETWEEN:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Appellant

AND:

KALTUN ISMAIL JAMA Respondent

JUDGE: BRANSON, SACKVILLE, KIEFEL JJ

DATE: 3 DECEMBER 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT

KIEFEL J:

34. The applicant for refugee status, the respondent to this appeal, is a citizen of Somalia, born in Hargeisa in north-west Somalia. (I shall continue to refer to Ms Jama as "the applicant"). The applicant's family left Somalia in 1988 during the initial stages of the civil war when forces were sent, by the then President, to Hargeisa and surrounding areas to crush opposition to his government. Her family were cared for in refugee camps in Ethiopia and they remain there. The applicant came to Australia on 24 February 1997, sponsored by her then fiancee. That relationship did not continue and the applicant applied for a protection visa.

35. The criterion for such a visa is that the applicant be a person to whom Australia owes protection obligations. This is established by reference to the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (ss 36 and s 5(1) Migration Act 1958 (Cth) and Reg 866.221 Migration Regulations 1994). Article 1A(2) of the Convention defines a refugee as any 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."

36. The Refugee Review Tribunal did not consider that the applicant's fear of harm, should she return to Somalia, could be said to be based upon a Convention reason. Rather the acts characterised by her as persecution of her group were the actions of opposing clans fighting over the control of north-west Somalia. The Tribunal also held that stability had returned to most of the country and it was satisfied that protection was available to the applicant and there were systems in place for her repatriation to Hargeisa. Whilst accepting that the applicant was also part of a social group, namely young, single Somali women without immediate family in the country, and that she was vulnerable to random violence for that reason, the Tribunal was not satisfied that there was a real chance that she would suffer persecution.

37. His Honour, the primary Judge, identified a number of errors in the Tribunal's reasoning with respect to the basis of the attacks upon the applicant's clan and the availability of protection, but none concerning the likelihood of persecution on account of the applicant being a single, unprotected, woman. This latter issue was not addressed on the appeal. His Honour set aside the decision of the Tribunal.

The Tribunal's Reasons

38. The applicant was accepted as a witness of truth by the Tribunal. It made findings consistent with that evidence and with the independent evidence, received by way of reports. The independent evidence referred to the Issak Peoples of whom there were eight clans. Of the Issak, the Habr Awal is the largest clan. Two of its sub-clans, relevant for present purposes, are the Saad Musse and the Issa Musse. Another clan, the Habr Yunis, has the sub-clan Musa Arra. The applicant gave evidence that she was a member of that clan and sub-clan. (I should add that the terms "clan" or "sub-clan" were used interchangeably). She said that fighting occurred between the rival clan militia of the Habr Awal and Habr Yunis and also that the sub-clan Reer Baale of Issa Musse, which was loyal to the so-called government forces of "President Egal", was targeting her clan.

39. The applicant said that she feared that she would be killed, or raped, if she returned as she had no protection and that "every man carries a gun". She was vulnerable and there could be retaliation against her by the sub-clan that is fighting her sub-clan. The Tribunal recorded the following submissions made on her behalf:

"It was submitted on behalf of the applicant that there has been no substantial change in the situation in Somalia since the applicant left nor is there a national stable government which is capable of protecting her. It was submitted that the situation in Somalia generally remains mercurial and despite the advent of a limited degree of peace in some areas of the country there is still no central recognised government. It was also submitted that the country remains in control of various clan-based militias and the protection available depends on the strength of that person's clan and the territory that clan controls. It was submitted that the applicant's subclan, the Habr Yunis has largely fled the north-west of Somalia and so can offer her no protection."

40. The Tribunal referred to the numerous reports of fighting between rival clan militia "in the last few years". The reports referred to events occurring through to late 1995. This confirmed fighting in that period between the Habr Awal and the Habr Yunis, the second being loyal to the region's former ruler; skirmishes around Hargeisa; declarations of war against President Egal by the clans; and clashes between rival forces south of Hargeisa. Despite this, it was said that a number of sources had described the situation in more positive terms and that the north-west of the country had stayed relatively calm. A report of March 1995 also indicated that President Egal had created a functioning administration which included police and a civil service and later references were made to the establishment of a judiciary. In September 1996, it was reported that there had been periodic fighting, usually outside Hargeisa, between government troops and small factions opposed to the government of President Egal. The UNHCR reported, in January 1996, that conditions in north-west Somalia had steadily improved, in terms of governance of the country and security, and that over the five years since the end of the civil war, and particularly in 1995, political and humanitarian developments in the region had been positive. The security situation in Hargeisa was characterised as "stable", with reconstruction of buildings proceeding without delay. The UNHCR's security analysis of north-west Somalia strongly stressed clan allegiance and advised that clan members may could in safety in their own clan area. Fights between various clan factions, regardless of the location were reported as short lived, and quite local, and that traditional conflict-solving mechanisms remained in place. A senior field officer reported to the UNHCR in January 1996 that security in connection with repatriation of Somalis from abroad is jeopardised only if contact was not made in advance to the existing authorities in Somaliland, in addition to the relevant clan elders at the place of destination. A country report for the second quarter of 1997 referred to a new peace accord created in January 1997 and the creation of the National Salvation Council, which had the support of 26 Somali factions, but that armed clashes between rival militia groups had been reported in recent months.

41. In a statutory declaration dated 29 January 1998, the applicant declared that she had received recent information about family members, who were still living in Somalia, from an uncle. He advised that members of the sub-clan of Issa Musse were fighting with members of her clan and that three of her uncles living in Berbera, had been killed. She said that most of her clan members used to live in either Hargeisa or Berbera, but that Hargeisa was now being ruled by the clan loyal to Egal. The information, she said, indicated that there was fighting in Berbera where other members of her clan were living.

42. With respect to the applicant's claim relating to her clan membership, the Tribunal accepted that there was inter-clan fighting between the two sub-clans of the Issak clan, the Habr Yunis and Habr Awal, and that most of her clan had fled Hargeisa and that the Habr Awal maintained power in the area. It was accepted that there are, however, members of the Habr Yunis sub-clan remaining in Somalia.

43. The Tribunal referred to the requirement that persecution must be feared because of the person's membership or perceived membership of a particular social group: Applicant A v Minister for Immigration and Ethnic Affairs (1977) 190 CLR 225, and that persecution involves a course of systematic conduct aimed at the individual or group. It was not sufficient that there was fear of being involved in incidental violence as a result of civil or communal disturbances: Periannan v Minister for Immigration and Ethnic Affairs (unreported, Wilcox J, 28 July 1987). The Tribunal then went on:

"The applicant claims that her clan is being persecuted by the clan which holds the power in North West Somalia. I note and accept the independent evidence ... which states there are continuing skirmishes between the Habr Yunis and the Habr Awal in and around Hargeisa, but ... any fights between the clan factions are `shortlived and quite local'.

Where an applicant's claims concern clan warfare it will be necessary 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 or harassment for a Convention reason.

There is no evidence before the Tribunal that supports the view that the Habr Yunis subclan Musse Arra is being persecuted for a Convention reason. According to the independent evidence the opposing clans are fighting over the control of North West Somalia."

44. The Tribunal had earlier made the following reference:

"I accept the independent evidence ... that Somalia is in a state of civil war and that much of it is clan-based with shifting alliances. A power imbalance between warring groups however, does not of itself convert the warfare into "persecution" of the weaker and more vulnerable group unless the group is being systematically harassed for a Convention reason."

45. The Tribunal also concluded that protection was available to the applicant from her clan or from the interim government in north-west Somalia. In that respect, it referred to the submission that she would have difficulty integrating in north-west Somalia because she had no immediate family and had not lived there for some time, but accepted the independent evidence that there was relative stability in Hargeisa and that there were policemen and an army maintaining law and order. The Tribunal accepted the independent evidence of the UNHCR's analysis of the situation, that clan members could stay in safety in their own clan areas and that stability, as well as law and order, had returned to most of the territory. There was, it found, protection and systems in place for the applicant's repatriation to her former home.

The Trial Judge's decision

46. His Honour did not accept the Tribunal's finding that there was "no evidence" to support the view that the applicant's sub-clan was being persecuted for a Convention reason. In his Honour's view the evidence to which the Tribunal had referred "was littered with examples of brutal clan-based conflict". His Honour considered that the Tribunal's reasoning drew a clear distinction between hardship suffered "by reason of" conflict motivated by control over resources or territorial dominance, which his Honour described as "traditional aims of warfare" on the one hand, and systematic harassment "by reason of" a Convention ground, and observed that the distinction was now well established in migration case law, referring to Mohammed v Minister for Immigration and Multicultural Affairs [1998] FCA 1077, and Minister for Immigration and Multicultural Affairs v Abdi (1999) 87 FCR 280. His Honour went on, however, to observe that though a distinction might be drawn between "traditional warfare" and "convention persecution", the categories are not mutually exclusive, and the fact that the Somalian war was being conducted in order to obtain control over territory or resources does not preclude a finding that harm may have been concurrently caused for a Convention reason. There may be both traditional and persecutory motives. Wars that begin for traditional reasons may develop a persecutory element: Abdalla v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 11. His Honour concluded that the Tribunal's characterisation of the Somali conflict as "traditional" (his Honour's term) "effectively foreclosed the possibility that the conflict may have also generated `Convention persecution'". The error was considered by his Honour to be one under s 476(1)(e) Migration Act, namely one which involved an incorrect application of the law to the facts.

47. As to the question of availability of protection, his Honour referred at length to the evidence to which reference had been made by the Tribunal and then set out what it appeared to amount to. I do not propose to detail his Honour's conclusions. Whilst acknowledging that the Tribunal appeared to have diligently researched conditions in Somaliland and Hargeisa, it nevertheless appeared to his Honour, that it had misapprehended either the evidence or the true subject for enquiry, or both.

48. In his Honour's view the limited material did not amount to evidence:

"... that could negate the proposition that there was a reasonable chance that the applicant would face persecution because protection from the ruling forces, hostile to her subclan, would not be afforded to her."

49. His Honour went on:

"The applicant's sub-clan was, on the latest information, still in armed, if episodic, opposition to the local de facto authorities, themselves based on hostile clans; the applicant had had uncles killed; she feared death or rape; rape is a common weapon used against members of hostile subclans. The other evidence of improved conditions in, and tolerated influx of former refugees to, Hargeisa furnished no basis for a conclusion that there was no reasonable chance that a member of the Habr Yunis would be persecuted either once living, or in the process of arriving, there."

His Honour, in this respect, considered that the error disclosed was that referred to in s 476(1)(g), namely that there was no evidence or other material to justify the making of the decision. That ground limits review to two circumstances, the relevant limitation being referred to in subs 4(a):

"(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a) the person who made the decision was required by law to reach that decision only if a particular matter was established and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established;

 ...."

50. His Honour held that whilst in the usual case that provision would only apply if there was no evidence to support some positive claim asserted by the applicant, here there was no question of disbelief of the applicant's own factual claims and they led naturally to the conclusion that she had a well founded fear of persecution. His Honour went on:

"A decision that she should not have refugee status based on considerations of her safety could, in those circumstances, only be rationally made if there was other evidence from which the decision-maker could reasonably be satisfied that there was no reasonable chance that the applicant would not be persecuted".

51. His Honour held there was no such evidence and that, relevantly, there was no evidence that, having regard to her particular circumstances, her membership of the Habr Yunis clan, she could safely return to Hargeisa, whatever the position of other refugees; and there was no evidence that she could safely go elsewhere in Somalia. His Honour recognised that he had applied, as appropriate, a shift in the evidential burden of proof.

52. The second error identified by his Honour under the heading of "Available Protection", was that the Tribunal had addressed the wrong question. This was held by his Honour to come within s 476(1)(c), which provides a ground for review where the decision is not one authorised by the Act. Alternatively, his Honour considered that the Tribunal had been guilty of a constructive failure to exercise its jurisdiction: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 577. The correct questions identified by his Honour were whether this applicant could be safely repatriated to Somalia, not whether many refugees might now be; and whether (more widely), there was any reasonable chance that, as a Habr Yunis this applicant might be persecuted.

53. His Honour added that the available material might, barely, maintain an inference that it was more probable than not that the applicant would not be persecuted, but it could not sustain an inference that there was no reasonable chance of such persecution and "whether actual conditions on the ground in and around Hargeisa would assure the applicant, beyond a reasonable chance to the contrary, of safety was simply not addressed by the evidence". His Honour considered that that error may also be reviewable under s 476(1)(e) because there was an incorrect application of the law to the facts as found.

54. The Minister appeals from his Honour's decision.

The Appeal

55. The Full Court in Abdi's case held that the fact that civil war is taking place does not exclude the possibility that persecution, in its Convention sense, can also occur. Their Honours identified that (290):

"The relevant question raised by the language of the definition requires a determination, on the evidence, of whether the harm or detriment is for a Convention reason. In the present case there appears to be a risk of serious harm in Somalia even to bystanders and those on the sidelines who are incidentally caught up in what might be called the "cross-fire". This, however, is not sufficient. The evidence must go further and disclose a Convention connection between the persecution of the applicant or the clan to which he belongs and the risk of harm. This in turn calls for a consideration, so far as can be determined on the evidence, as to the purpose and nature of the war, the way it is conducted, and the objectives sought to be achieved by the war."

56. I accept that if the Tribunal had made a finding that there was clan warfare and that, therefore, no question of persecution of the applicants could arise, the Tribunal would have failed to address the question the Convention definition requires and an error of law would be disclosed. In my respectful view, however, that is not the approach the Tribunal took. Whilst neither Abdi nor Abdalla's cases were referred to by the Tribunal, it does not therefore follow that an incorrect approach was taken to the evidence, or that wrong questions were posed having regard to that evidence. In my view, it is apparent that the Tribunal did not exclude from its consideration the prospect that one of two warring groups might nevertheless be persecuted. This appears most clearly from the reference in the last of the passages from the Tribunal's reasons set out above (at par 11).

57. In Abdi's case, the Full Court identified some enquiries which might elucidate why a clan was at risk of, or in fact suffered from, harm and whether that was for a Convention reason. Included were enquiries as to the nature and purpose of the war, the objectives apparently sought to be achieved by it and the manner in which it was conducted. Whether consideration of these matters is necessary in a given case, however, depends on the evidence before the Tribunal. In this case, as the Tribunal's reasons disclose, it was the state of the evidence which foreclosed the prospect of a conclusion of persecution.

58. The Tribunal found, on the independent evidence, that there was fighting as between "government" troops and those opposed to the government, and as between various clan factions. Clans had loyalties to different leaders. The Issa Musse, the clan which had recently been involved in fighting with the applicant's clan, was described as being loyal to "President" Egal. There were references to territory being controlled by clans. As to the nature or purpose of the fighting, the Tribunal found, as it was entitled to, that it was for control of north west Somalia. Further, inter-clan hostility was described in terms of short-lived skirmishes.

59. The Tribunal concluded that there was no evidence that the applicant's clan was being persecuted for a Convention reason and, with respect to his Honour, a view that the clan-based conflicts were brutal does not amount to evidence of persecution. The applicant's reference to her clan being "targeted" by the sub-clan, a matter which the Tribunal noted, cannot amount to evidence of persecution. More is required than the identification of the applicant's clan as the intended recipient of hostilities. Further, in neither case would a failure to have taken those facts into account have furnished a ground of review (see s 476(3)(e)). I should also add that the further observation by his Honour, that "rape is a common weapon used against members of hostile subclans", if it were intended as an example of evidence available to the Tribunal, with respect to the nature or type of the hostilities directed to women members of the applicant's subclan because of their membership of that group, was not founded upon the evidence; which was to the effect that the risk of rape was more general and had to do with a woman being unprotected by her clan. No point, in this connexion, was sought to be advanced on the appeal and, as I have earlier noted, his Honour did not find the applicant to be at risk from persecution because of her status as an unprotected woman.

60. This is not a case where it could be said that the Tribunal failed to address some cogent facts put forward by the applicant or an argument as to whether the facts disclosed persecution for a Convention reason. The submissions were to the effect that the applicant was at risk as a member of her clan because it opposed the self-declared government, and lacked a strong power-base. The Tribunal approached the matter on that basis and considered the applicant's claim for refugee status as a member of that clan or sub-clan. However, neither the facts put forward, nor the independent evidence obtained by the Tribunal, satisfied the Tribunal that there was a systematic course of conduct inherent in the hostilities engaged in against members of the applicant's clan because of their membership of that group. The motives and purposes were otherwise. In my respectful view, it was not open to his Honour to conclude that the finding that there was no evidence of persecution for a Convention reason could be ignored.

61. It is necessary to add that if there was an issue on this appeal as to whether there was a real chance of risk of harm to the appellant at some time in the future, it is my view that it was not a question which the Tribunal was required to address having regard to the evidence or the submissions. Whilst the situation, in north-west Somalia was, in some respects, characterised as fluid there was nothing put forward to suggest possible changes in the motives or purpose of the opposing clans or forces. Indeed, the argument put forward for the applicant, principally in connexion with the issue of the availability of protection, was that little had changed and, inferentially, little would.

62. Because of the conclusion I have reached on the question whether the Tribunal's reasoning concerning the risk of persecution was in error, it is not necessary for me to deal with the question which might follow, whether there was protection available to the applicant from that risk. There was however one aspect of his Honour's reasoning on that question which seemed to me to address the issue of persecution and it is therefore necessary to deal briefly with it.

63. His Honour held, in connexion with the application of s 476(1)(g) and s 476(4)(a), that since the applicant had been accepted as a truthful witness, the conclusion that she had a well-founded fear of persecution was obliged. From that point, his Honour reasoned that other evidence was necessary to negate that evidence, before the Tribunal could conclude that there was no real chance that she would be persecuted. There are, with respect to his Honour, a number of errors in such an approach. At a factual level, the acceptance of a witness as credible does not amount to acceptance of their evidence as correct, nor does it convert that evidence to evidence sufficient to establish refugee status. Another difficulty with such an approach is that it is not reflected in s 476(4)(a). The concern of that provision is the satisfaction of statutory preconditions, upon which the exercise of the decision-making power depends: Western Television Ltd v Australian Broadcasting Tribunal (1986) 12 FCR 414, 429; Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511.

64. In my view the appeal should be allowed and his Honour's orders set aside, with costs.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated: 3 December 1999

Counsel for the Appellant: Mr N J Williams with Mr P R McGuire

Solicitor for the Appellant: Australian Government Solicitor

Counsel for the Respondent: Mr G J L Scragg

Solicitor for the Respondent: Legal Aid Commission of NSW

Date of Hearing: 17 November 1999

Date of Judgment: 3 December 1999

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