FEDERAL COURT OF AUSTRALIA Ibrahim v Minister for Immigration & Multicultural Affairs [1999] FCA 374 MIGRATION – application for judicial review of decision of the Refugee Review Tribunal refusing a protection visa – Somali applicant – nature of well-founded fear of persecution in civil war – "clan based warfare" – whether communal violence in times of civil unrest may constitute persecution – whether applicant had a well-founded fear of persecution – whether Tribunal failed to consider the motivation for the alleged persecutory conduct – meaning of "real chance" – whether Tribunal failed to consider likelihood of persecutory conduct upon return – Tribunal's approach to the nature of evidence necessary to establish persecution – meaning of "unsystematic" – type of conduct required to constitute systematic persecution – whether the particular experiences of the appellant were caused by persecution for Convention reasons – whether there was a real chance at time of determination that appellant would be persecuted by reason of his membership of the Rahanwein clan if he returned to Somalia. Migration Act 1958 (Cth) s 476(1)(e) Abdalla v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 11 considered Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 applied Chopra v Minister for Immigration and Multicultural Affairs (1997-1998) 49 ALD 534 considered Jahazi v Minister for Immigration and Ethnic Affairs (1995) 61 FCR 293 considered Minister for Immigration and Ethnic Affairs v Abdi (Full Court, unreported, 26 March 1999) applied Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 considered Minister for Immigration v Hamad (Full Court, unreported, 26 March 1999) considered Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 considered Murugasu v Minister for Immigration and Ethnic Affairs (Wilcox J, unreported, 28 July 1987) considered HUSSEIN MOHAMED HAJI IBRAHIM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NG 1138 OF 1998 O'CONNOR, TAMBERLIN & MANSFIELD JJ SYDNEY 9 APRIL 1999 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 1138 OF 1998 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT BETWEEN: HUSSEIN MOHAMED HAJI IBRAHIM Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGES: O'CONNOR, TAMBERLIN & MANSFIELD JJ DATE OF ORDER: 9 APRIL 1999 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal is allowed. 2. The matter is remitted to the Refugee Review Tribunal for rehearing. 3. The respondent pay to the appellant costs of the appeal to be taxed. 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 NG 1138 OF 1998 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT BETWEEN: HUSSEIN MOHAMED HAJI IBRAHIM Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGES: O'CONNOR, TAMBERLIN & MANSFIELD JJ DATE: 9 APRIL 1999 PLACE: SYDNEY REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from a decision of a judge of the Court which upheld a Refugee Review Tribunal decision refusing a protection visa. 2 The appellant is a Somali born on 1 July 1960. He is a member of the Rahanwein clan and of the Dabarre subclan. He is yet another of the tragic victims of the civil war which has prevailed in Somalia since the collapse of the Siad Barre Government in 1991. He and his family fled Baidoa soon after the fighting commenced there when the civil war broke out. 3 The fighting in Baidoa shortly after the break out of the civil war led to the appellant's house being destroyed. He and his wife and young son left to go to another area called Safarnooleys. On the way, they were confronted with another group of people (the Marehan clan) where they were apparently enslaved, and made to work on a farm. During that period the appellant's wife was raped. IM April 1992, they escaped from that area, and made their way to Safarnooleys where the appellant's brother was staying. Later in that year, the Safarnooleys area was attacked, and his brother killed. The appellant left to get help, leaving behind his wife and by then two sons. He has not seen them since, nor since then has he heard of his parents or his siblings, other than a brother in Japan who had left Somalia prior to 1991 to study. He remained in the Bay region in Dinsor for a time, and then moved to Dolo bordering the Kenyan and Ethiopian borders with Somalia. IM February 1996, with the assistance of his brother in Japan, he arrived in Thailand. On 25 December 1997, again with the assistance of his brother, he came to Australia. 4 On 7 January 1998 the appellant applied for a protection visa under the Migration Act 1958 ("the Act"). It is necessary for him to establish that he is a refugee as defined in the Convention Relating to the Status of Refugees (Geneva, 28 July 1951) as amended by the Protocol Relating to the Status of Refugees (New York, 31 January 1967) ("the Convention"): s 36(2) of the Act and Pt 866 of Sch 2 to the Migration Regulations. Article 1A(2) of the Convention provides that a person is a refugee 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; …" 5 The appellant's application was rejected in turn by a delegate of the respondent, and on review by the Refugee Review Tribunal ("the Tribunal"). He appealed from the decision of the Tribunal to this Court. On 15 October 1998, a judge of the Court dismissed that appeal. 6 The above description, although not in all detail explicitly the subject of findings by the Tribunal, appears to have been accepted by it. It expressly accepted the appellant's account of his and his clan's and subclan's experiences. It is plain that the Tribunal accepted that subjectively the appellant had a fear of being persecuted were he to return to Somalia, and that the type of harm which he feared was of sufficient gravity to constitute persecution under the Act. It also appears that the Tribunal, at least by inference, accepted that his fear was "well-founded": Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. The Tribunal identified the crucial question for its decision as whether the appellant's fear of persecution was for a Convention reason, or whether the harm he faces if he were to return to Somalia is "the consequence of civil unrest and not Convention based." The applicable principles 7 In Minister for Immigration and Ethnic Affairs v Abdi (Full Court, unreported, 26 March 1999) the Court said at par 37: "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. 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 is 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." and at par 43: "Where a war is truly characterised as being clan based, then in our view the Convention requires that considerations must be given to the question whether the reasons for the war are to harm on the basis of race or clan or whether the struggle is in substance directed to control of resources or to the assertion of dominance over territory. The failure to look to the reasons for the war and to demand something "over and above" the existence of a state of war is a source of error because it eliminates a critical step in the process, namely analysis of the objective and conduct of the war." 8 That decision accords with the approach of the Full Court (Burchett, Tamberlin and Emmett JJ) in Abdalla v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 11, where the Court said at 20: "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 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." 9 Where that purpose is referable to a Convention ground, the person holding the well-founded fear of being mistreated so as to be persecuted may qualify as a refugee under the Act. It is not necessary that the Convention reason be the sole reason for the persecution. As French J said in Jahazi v Minister for Immigration and Ethnic Affairs (1995) 61 FCR 293 at 299: "To require that a feared persecution arises solely for a Convention reason would be to narrow the scope of the protection artificially. It would be an inadequate response to the possible varieties of and excuses for the oppression of target groups within a repressive society." The Tribunal's reasons 10 The Tribunal expressly proposed for itself the question whether or not any harm the appellant faces if he were to return to Somalia would amount to persecution for reasons of his membership of either the Rahanwein clan or the Dabarre subclan. It accepted that each of those groups constituted a particular social group for the purposes of the Convention. 11 The appellant before the Tribunal put his case in three ways. He claimed that he would be persecuted for a Convention reason namely: 1. he is a member of the Rahanwein clan, which clan is being persecuted or targeted in the course of the civil war; 2. he is a member of the Dabarre subclan, which is being persecuted or targeted in the course of the civil war by another subgroup of the Rahanwein clan, the Mirifle clan; and 3. he is a member of a particular family, which is being persecuted or targeted in the course of the civil war by opponents of the former Said Barre Government because his uncle was a minister in that government. 12 The second and third grounds were rejected by the Tribunal as the facts alleged were not made out. They are not pressed on this appeal. It is not necessary to address them further. 13 It is the Tribunal's conclusion in relation to the first of those grounds with which the applicant joins issue. The Tribunal concluded that the applicant: "… is not differentially at risk for a Convention reason and that the harm he fears is by reason of the civil unrest in Somalia and not persecution for reasons of his clan membership, or any other Convention reason, over and above the ordinary risks of clan welfare." [AB 208] 14 The Tribunal observed: "It should be noted, too, that the fact that a civil conflict is clan-based does not of itself make its victims the victims of persecution for reasons of membership of a particular social group. In the first place, as the above authorities indicate, unsystematic warfare without more is not persecution (cf Chopra v MIMA, unreported, Lockhart J, 5 December 1997, where it was held that the violence between the Hindu and Muslim communities in India was not persecution because it did not form part of a course of systematic conduct). In the second place, fighting which is aimed at establishing or maintaining power or establishing control over land or resources would generally not be persecution for reasons of membership of a particular social group, even if the violence particularly affects members of certain clans or groups (cf Periannan Murugasu at 14). As Burchett J explained in Ram, there is a common thread linking the words "persecuted" and "for reasons of" and the attributes, "race, religion, nationality, membership of a particular social group or political opinion". Burchett J explained that the common thread between these provisions was motivation which was implicit in the very idea of persecution, was expressed in the phrase "for reasons of" and which fastened upon the victim's attribute of race etc. The victim is persecuted because of that attribute." 15 Having considered the appellant's claims, and independent evidence concerning Somalia, the Tribunal concluded: "The totality of the material before me, including the Applicant's evidence and the independent evidence referred to in this decision, leads me to conclude that the harm the Applicant fears is not persecution for reasons of his membership of the Rahanwein clan or his subclan of themselves but rather unsystematic warfare because of "the instability, anarchy and murderous shiftings witnessed today in the Somali scene". These shifting allegiances are the consequence of power struggles between clans and subclans, including the Applicant's own Rahanwein clan and the Digil subclan to which his further subclan the Dabarre belong. Against this background today's foes can be tomorrow's allies. The Applicant's representative has agreed, "today's friend is tomorrow's enemy" and conceded that the head of the Applicant's sub clan could possibly have been in an alliance with Aideed at one time and been killed by him after that alliance ended. In this context of shifting allegiances it is difficult to identify any particular clan or sub-clan which can be regarded as being the victims of systematic persecution by any other group or groups, or as being subject to a differential impact which is over and above the ordinary risks of clan warfare. Members of the Hawiye subclans, the Marehan and Ogaden subclans of the Darod and members of any other clan or subclan in that area are equally potential victims of the civil unrest in a pattern of shifting allegiances in the southern area of Somalia. What emerges from all the evidence is a picture of the ordinary risks of clan warfare, largely involving struggles for power and resources, in a context of instability and anarchy. Members of all clans and subclans in this tragic turmoil are at risk and, while some may be more vulnerable than others, none of the material before me points to circumstances which would convert the conflict into persecution. I am unable to discern anything in the experiences of the Applicant, or his clan, the Rahanwein, or his sub-clan, the Dabarre, would could be regarded as part of a course of systematic conduct aimed at members of either group, including the Applicant, for reasons of their membership of the group." The matters argued on the appeal 16 It was contended that that passage demonstrates two errors of law on the part of the Tribunal. The first is an incorrect application of the law to the facts as found by the Tribunal, contrary to s 476(1)(e), and the second is an incorrect interpretation of the applicable law also contrary to s 476(1)(e). We shall deal with them in turn. 17 The Tribunal noted that the Rahanwein clan, like other clans, has been involved in split and shifting alliances in Somalia over a long period. It found that the Rahanwein clan, under the Somalia Democratic Movement ("SDM") or factions of the SDM, had variously supported the opposing forces or factions of the Hawiye clan led by Aideed of the Habir Gedir subclan, or by Ali Madi of the Abal subclan. The capture and detention of the appellant and his wife whilst they were fleeing Baidoa and when they identified themselves as Rahanwein, the Tribunal concluded, were not an illustration of persecution for a Convention reason because the circumstances would have been the same if they had identified themselves as from the Abgal or Habir Gedir clans "depending on the affiliations of the time". Thus, in its conclusion, the Tribunal found that the appellant's circumstances did not expose him "differentially" to risk for a Convention reason "over and above the ordinary risks of clan warfare". 18 As Abdi indicates, it is necessary to consider the motivation of the civil war giving rise to the "ordinary risks of clan warfare." It may well be that the motivation of particular clan warfare is to persecute members of a clan by reason of that membership, as distinct for example from establishing control over land or resources. The mere fact that a civil conflict is "clan based" does not make its victims the victims of persecution. The Tribunal correctly identified the need to identify the motivation behind the 'clan based warfare' to determine if there has been, or may be, persecution for a Convention reason. 19 It is in applying that test that the Tribunal, in our view, has fallen into error. That error involves the failure to address specifically whether the capture and retention of the appellant and his family were (as he asserted) driven by the intent to repress his particular clan, and also arises because the Tribunal required there to be "systematic persecution" of the members of the Rahanwein clan if the applicant were to succeed in his application. 20 It is unclear whether the Tribunal found that the appellant and his wife were captured and restrained on the farm because they were Rahanwein or for some other reason. The fact that the same events may also have occurred if they were members of some other clan does not really address the question of why the events occurred in this case. If the warring clans at the time meant that the Rahanwein clan was affiliated with certain other clans, so that members of that clan and of the clans of their affiliates were vulnerable to capture and retention and abuse, the question still needs to be addressed as to why those persons were being targeted, that is the purpose of that focus by their opponents and the objectives sought to be achieved by their opponents. The Tribunal, in our judgment, has not taken that step. If the Rahanwein clan was at the relevant time the subject of a persecutory focus given the then affiliations, the fact that clan affiliations may shift, even frequently, does not of itself exclude the motivation for that focus from being a Convention reason. It may be that the shifting alliances to which the Tribunal referred meant that such an incident in 1991 would not give rise to a well-founded fear of persecution by reason of membership of the Rahanwein clan in 1996 (when the application was heard): see Minister for Immigration & Ethnic Affairs v Singh (1997) 72 FCR 288 at 291-294. Shifting alliances may simply mean that persecution directed at one clan at one point in time by reason of membership of a particular clan may not give rise to a well-founded fear of persecution by reason of that membership at another point in time. There is no natural antipathy between the proposition that membership of a clan may be a reason for being targeted during civil war on the one hand, and instability, anarchy and murderous shiftings in a clan based conflict on the other. There may be a small clan, drawn in to a conflict by reason of its desire for self preservation, which is nevertheless being persecuted provided that the reason for the persecution is the membership of that clan and not some other reason. It may be the case that the smaller clans, by reason of their size, may be the victims of power struggles between clans and subclans more frequently, albeit that the source of the harassment or persecution is not consistently the same clan or subclan. The fact that "today's foes can be tomorrow's allies" as the Tribunal observed, does not mean that at a particular point in time, conduct was not directed towards membership of the Rahanwein clan by reason of that membership. 21 In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 574-575 said: "The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future." 22 The Tribunal in our judgment, in finding it "difficult to identify any particular clan or subclan" which could be regarded as the victims of systematic persecution by any other group or groups, or as being subject to a differential impact which is over and above the ordinary risks of clan warfare, has failed to consider whether, if the appellant were to return to Somalia, he might be exposed to a real chance of persecution by reason of his membership of the Rahanwein clan. That is because it appears not to have considered the motivation for the alleged persecutory conduct in 1991. If it were for a Convention reason at the time, then that finding would inform the Tribunal's consideration of the question whether at the time of the determination there was a real chance of the appellant being persecuted by reason of his membership of the Rahanwein clan if he were to return to Somalia. 23 The expression "real chance" conveys the notion of a substantial as distinct from a remote chance, but not necessarily one involving more than a 50 per cent of persecution occurring: see eg. per Mason CJ in Chan at 389, and McHugh J at 429. Within the shifting alliances to which the Tribunal refers, the question for the Tribunal was whether there was a real chance (in the way in which that term has been defined by the High Court in Chan) that, if the appellant were to return to Somalia he would be exposed to persecution by reason of his membership of the Rahanwein clan. In our judgment, the Tribunal's focus on the fact of the shifting alliances meant that it did not address the question whether that incident, in the course of clan warfare, occurred for a Convention reason. 24 The second error concerns the Tribunal's approach to the nature of the evidence necessary to establish persecution. 25 In Minister for Immigration & Multicultural Affairs v Hamad (Full Court, unreported, 26 March 1999) the Court has considered the significance of the use of the words "systematic persecution" in certain decisions as they pertain to the test for refugee status. As the Court there noted, that expression appears to have been introduced in the reasons for judgment of Wilcox J in Murugasu v Minister for Immigration and Ethnic Affairs (unreported, 28 July 1987) and its history has been discussed in other cases referred to in Hamad. In the light of the observations in Guo (above), it is important to note that the expression "systematic" may be used in alternative senses. One sense is that of deliberate or premeditated or intended conduct, of acting or carrying out actions with a premeditated intent. The other sense is that of habitual behaviour according to a system, regular or methodical. Where those words have been used to indicate the former sense, there will be no error of law. Where those words have been used to indicate a requirement that it is necessary to show a series of incidents or a course of conduct over time involving persecution, so that persecution will not be shown to exist if there is only an isolated incident, it will demonstrate an error of law on the part of the Tribunal. Hamad is one case where such an error was demonstrated. 26 In our view the Tribunal fell into a similar error in its reasons in this matter. The Tribunal, in its consideration of the authorities, concluded that "unsystematic warfare without more is not persecution". It is unclear what the Tribunal meant by the expression "unsystematic". It referred to the decision of Lockhart J in Chopra v Minister for Immigration & Multicultural Affairs (1997-1998) 49 ALD 534, but that expression was not used by Lockhart J in that case. That decision turned simply upon the finding of the Tribunal that there was no connection between that applicant's political activities or his membership of the Hindu community, and the three incidents of harassment to which he referred. It concluded that that applicant's experience could not realistically be attributed to a plot by Muslims to harm him. The particular grounds upon which the application for review was based, in the light of those factual findings involved the application of settled principles. The decision did not concern issues of the sort the Tribunal had to address in the present matter. 27 The Tribunal's reasons show it regarded the civil war in Somalia as unsystematic, characterised by 'instability, anarchy and murderous shiftings' in clan alliances. It is from that characterisation that the Tribunal proceeded to conclude that the members of the Rahanwein clan were not victims of 'systematic persecution' by any other group or groups. The potential clan victims, it concluded, will vary from time to time as the alliances shift. Consequently, it concluded in the passage in its reasons quoted above that neither the applicant personally or as a member of the Rahanwein clan had suffered "a course of systematic conduct" aimed at them. 28 Those reasons indicate, in our judgment, that the Tribunal used the expression "systematic conduct" as requiring a course of conduct demonstrating over time a systematic or methodical attack upon members of the Rahanwein clan for reasons of that clan membership before it would be satisfied that the appellant's claim would be made out. In the light of the decision in Hamad, we find that approach is erroneous. The Tribunal should have determined whether the particular experiences of the appellant were caused by persecution for Convention reasons, and in the light of those findings it should have considered whether at the time of the determination of the application there was a real chance (as that term has been explained in Chan)of the appellant being persecuted by reason of his membership of the Rahanwein clan if he were to return to Somalia. 29 Accordingly this appeal should be allowed and the matter remitted to the Tribunal for rehearing. The respondent should pay to the appellant costs of the appeal to be taxed. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 9 April 1999 Counsel for the Appellant: Mr M Smith with him Mr N Poynder Solicitors for the Appellant: Legal Aid Commission of NSW Counsel for the Respondent: Mr N Williams with him Ms S McNaughton Solicitors for the Respondent: Australian Government Solicitor Date of Hearing: 4 March 1999 Date of Judgment: 9 April 1999