FEDERAL COURT OF AUSTRALIA Mohamad v Minister for Immigration & Multicultural Affairs [1999] FCA 688 OMAR MOHAMAD MOHAMAD v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 206 OF 1999 EMMETT J 19 MAY 1999 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 206 OF 1999 BETWEEN: OMAR MOHAMAD MOHAMAD Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: EMMETT J DATE OF ORDER: 19 MAY 1999 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed with costs. 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 206 OF 1999 BETWEEN: OMAR MOHAMAD MOHAMAD Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: EMMETT J DATE: 19 MAY 1999 PLACE: SYDNEY EX TEMPORE REASONS FOR JUDGMENT 1 The Applicant is a 37 year old married man from Somalia. He arrived in Australia on 8 October 1998 and applied for a protection visa on 15 October 1998. A delegate of the Minister refused that application on 19 November 1998 and the Applicant applied for a review of that decision by the Refugee Review Tribunal ("the Tribunal") on 25 November 1998. On 19 February 1999, the Tribunal confirmed the decision of the Minister's delegate. The Applicant has brought an application to this Court for a review of the decision of the Tribunal. That application was filed on 12 March 1999. 2 In his amended application of 11 May 1999, the Applicant specified the grounds of the application in the following terms: "The decision involved an error of law, being an error involving the incorrect interpretation of the applicable law or an error involving the incorrect application of the law to the facts as found by the Tribunal. Particulars: (a) the Tribunal incorrectly applied the law in relation to Refugees Convention based persecution, (b) the Tribunal incorrectly applied the law on the question of whether or not the Applicant had a well founded fear of persecution." Thus the Applicant relies only on section 476(1)(e) of the Migration Act 1958 ("the Act"). 3 In the course of submissions, counsel for the Applicant indicated that there were three claims made by the Applicant before the Tribunal, as follows: (1) The Applicant is related, as a cousin, to one who is known as General Morgan. The applicant was thus vulnerable to persecution by General Morgan's enemies. (2) The Applicant is a member of the Abrahim sub-clan and, as such, was vulnerable to persecution because: (a) General Morgan was a member of that sub-clan, and (b) the Abrahim sub-clan was perceived as weak. (3) The Applicant feared persecution from General Morgan himself because of his activities alleged as a member of the Somali Youth Movement. 4 Counsel for the Applicant indicated that for the purposes of the application, only the second of those claims would be pursued. It was said that the main thrust of the claims for the purposes of this application is that persecution as a result of the Applicant's membership of the Abrahim sub-clan was because General Morgan was identified with the clan and because the sub-clan is a weak clan and is perceived as such. 5 The Tribunal, in its reasons, stated the claims made by the Applicant in the following terms: "In essence, Mr Mohamad states that he fears he will be persecuted if he returns to Somalia because he is a member of the Abrahim sub-clan and a close relative of the 'warlord' Mahomed Said Hirsi, known as General Morgan and also because he has actively and openly opposed General Morgan." Counsel for the Minister did not accept that it was an issue before the Tribunal that the Applicant contended that the basis for persecution was his membership of a weak clan. 6 The Applicant in effect relied on two contentions. First, it was said that the Tribunal's finding in respect of the persecution of the Applicant is not so clear that it should not have asked itself the further question "what if this persecution had in fact occurred?" The Applicant claimed that he had been the victim of specific occurrences of actual persecution in 1998 but that the findings of the Tribunal in relation to that, it is asserted, were not clear. It was said on behalf of the Applicant that the findings of the Tribunal go no further than a statement that the Tribunal was "unconvinced" as to whether or not this actual persecution has occurred. Because it could not be said that the Tribunal had no real doubt as to the strength of its finding, the Tribunal should have asked the next question, that is "assuming the actual persecution in 1998 as alleged by the Applicant had occurred, does the Applicant have a well founded fear of persecution in the future?" 7 The second contention was formulated in a manner with which I had some difficulty. Counsel for the Applicant put it in this way. It was part of the claim by the Applicant that he feared persecution as a member of the Abrahim group sub-clan because it was perceived that the Abrahim were weak and that they could not defend its members. It was said that the Tribunal accepted the contention that there may be a perception that the Abrahim are weak. The Applicant then said that there was evidence that the Applicant feared persecution by virtue of his membership of the Abrahim clan which was perceived, as a group, to be a "soft target". The only reason that a persecutor would know that the Applicant is a 'soft target' is by virtue of his membership of a weak clan. The Tribunal correctly asked the first question, but did not consider the issue of how somebody would be identified as a "soft target". WHAT IF I AM WRONG? 8 The Applicant contended that the Tribunal should have asked itself the question, "what if I am wrong?" The possibility of asking such a question is the third level of refinement of the actual language of the Convention. 9 The basis for Australia affording protection to somebody in the position of the Applicant is that the Applicant has a well founded fear of being persecuted for Convention reasons. In Chan v The Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, Mason CJ said (at 389) that he agreed with the conclusion reached by McHugh J that: "a fear of persecution is 'well founded' if there is a real chance that the refugee will be persecuted if he returns to his country of nationality." Thus the first level of refinement of 'well founded' is that there must be "a real chance" of persecution. 10 The term 'real chance' has then been further refined. The current state of that refinement insofar as it is binding on me is probably to be found in Thevendram v The Minister for Immigration & Multicultural Affairs [1999] FCA 182. After referring to the reasons of Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259,the Full Court went on to say that: "It can be taken to be established that consideration by the RRT of whether a certain finding of fact was right or wrong: · is mandatory in respect of facts found on the basis that they are 'slightly more probable than not' […]; · is unnecessary when it appears that the RRT is of the view that the probability of error in its findings in relation to those fact was insignificant." 11 In that case, the Court considered that it was apparent that the Tribunal had no real doubt as to the correctness of its findings. From that, one might conclude that the third level of refinement of 'well founded' is that the Tribunal must either have no real doubt or be of the view that the possibility of error in its conclusions is insignificant. 12 The Applicant contended in this case that, upon examination of the reasons of the Tribunal, the Tribunal had not reached its conclusions with the necessary degree of certainty. It is desirable, therefore, to say something about the reasons given by the Tribunal for the conclusion which it reached in relation to the Applicant's application for review. 13 It is significant that under the topic "Reasons for Decision" the Tribunal indicated its awareness of the test laid down by the High Court in Chan's Case. The Tribunal said as follows: "To be eligible for a protection visa an applicant must be afraid to return to his or her country of nationality and there must be a real chance that he or she will face serious harm or discrimination or an abuse of their fundamental human rights in that country within the reasonably foreseeable future. ……………………………… The threat of harm need not be the product of government policy or activity; it may be enough that a government is unwilling or unable to protect them from persecution. […] In cases where the risk of persecution only exists in a particular area of the applicant's country of nationality, they will not be considered to be in need of international protection unless it is unreasonable to expect them to relocate to an area where they are not at risk of persecution." [emphasis added] 14 The Tribunal then referred specifically to the judgment of Sir Anthony Mason and of Dawson, Toohey and McHugh JJ in Chan's Case in relation to the concept of what was referred to as "well founded fear and real chance". That indicates an awareness in express terms on the part of the Tribunal of the task before it. 15 Later on in the reasons, the Tribunal made the following observation: "After considering all of the evidence, I have concluded that Mr Mohamed fled Somalia to avoid the general violence of the civil war. […] 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. ……………………………… 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." 16 After setting out its findings in relation to the background to the Applicant's application and the position generally in Somalia, the Tribunal made an assessment of the Applicant's claims. It accepted that the Applicant is a member of the Abrahim sub-clan. It also accepted that he was forced to flee Mogadishu in 1991 and that his family lived in Dobley and then in Kismayo and that he left Somalia in the manner asserted in 1998. However, for the reasons which the Tribunal set out thereafter, the Tribunal did not believe that the Applicant had been at risk of harm from General Morgan since 1994 because of the formation of the Somali Youth Movement. Nor did the Tribunal accept that the Abrahim sub-clan was at risk of harm because of General Morgan, nor that the Applicant himself was at risk of harm because he was General Morgan's cousin. The Tribunal was not satisfied that the Applicant was involved in the group called the Somali Youth Movement. There is no complaint about that finding in the application to this Court. 17 The Tribunal then considered the question of the Applicant's membership of the Abrahim clan and his relationship to General Morgan. The Tribunal expressed a conclusion as follows: "However I do not accept that he was singled out for attack by the 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." 18 The Tribunal then gave some reasons for that conclusion. The Tribunal found the Applicant's evidence, regarding the problems which he claimed to have experienced in 1998, unconvincing. Next, the Tribunal found that none of the sources suggested that the Abrahim sub-clan had been singled out for attack by other Majeerteen clans, the Marehan or anyone else who opposed General Morgan since 1991. The Tribunal was unable to find any mention of the Abrahim clan in any of the sources consulted except on diagrams setting out clan structures. 19 The Tribunal referred to a paper prepared for the Canadian Immigration and Refugee Board in 1995. That report indicated that the most consistent victims of conflict were small farmers of the area, the Bantu minorities, who had no organised militias and thus were largely defenceless. The Tribunal considered that it was significant that in that report no mention was made of the Abrahim sub-clan, nor was there any suggestion that any Majeerteen sub-clans or people close to General Morgan were particularly at risk. 20 In its ultimate conclusion, the Tribunal said: "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." 21 The Applicant's complaint is that the language used in those conclusions is that the Tribunal was "unconvinced" or "not satisfied" and that there was no express finding that the alleged acts of persecution in 1998 did not occur. It was asserted that the findings run together the question of whether those facts occurred, on the one hand, and whether, if they did occur, they were for a Convention reason. I do not consider that that matters. In circumstances where the Tribunal expressly indicated the criterion for determining whether or not there was a well founded fear, I do not consider that the language of the reasons exhibits any doubt as to that conclusion. 22 Accordingly, I do not consider that this contention should be accepted. The Tribunal has made a finding in unequivocal terms that it did not accept that the Applicant was singled out for attack because of his clan, nor that he or members of his clan had been singled our for animosity in the manner claimed in his submissions. "The manner in which he claimed" were the particular assertions of violence in 1998. 23 The instances of persecution which the Applicant claimed might be summarised as follows: (1) In 1992 his younger brother had been killed by members of the Ogaden clan because he was a cousin of General Morgan and a member of the Abrahim sub-clan. (2) In 1992 the Applicant was visited at his house by the Ogaden militia, shot in the leg and threatened with torture. (3) Following the departure of the United Nations forces from Kismayo in 1995, General Morgan warned the Applicant to cease his activities. (4) In 1998 there was conflict in Kismayo between General Morgan and the Marehan clan which then targeted the Abrahim sub-clan. The Marehan killed the Applicant's uncle, raped his uncle's daughter and abducted and beat the Applicant's son. 24 The first two matters were effectively accepted by the Tribunal. It is the fourth matter which was critical. I consider that a fair reading of the passage from the reasons which I have quoted above, namely that the Applicant was not singled out for animosity in the manner claimed in his submissions, is a clear rejection of the alleged persecution in 1998. That is precisely the finding which the Tribunal made as I have indicated, namely, that the evidence regarding the problems which he claims to have experienced in 1998 was unconvincing. I would therefore reject the application on that ground. WEAKNESS OF THE ABRAHIM SUB-CLAN 25 The second ground concerns the extent to which it can be said that, because the Abrahim clan is perceived to be a weak clan, there is persecution for a Convention reason because weakness is singled out for attack. Attention was directed to a passage in the reasons of the Tribunal as follows: "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 at 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 kind of attacks as other clans but suffering more because of their size and weakness." 26 It was contended on behalf of the Applicant that the Tribunal failed to consider whether it was the perception by stronger clans of the Abrahim as weak which motivated the persecution of its members because they belonged to a sub-clan which could not protect its members or retaliate. That was said to result in an incorrect application of the law. It was said that, on the facts as found, members of the Abrahim clan were at risk of persecution because, as a clan, they were identified as weak. It was then said that the perceived weakness of the Abrahim may have made its members more vulnerable to persecution by a more powerful clan based on a differential impact based on clan membership. 27 There is no express finding by the Tribunal that the Abrahim clan was a weak clan; nor was there an express finding that it was singled out and indeed there was an express finding to the contrary. Reference was made on behalf of the Applicant to a statement by the Tribunal as follows: "However, his family who are from the Abrahim sub-clan which was part of the Majeerteen clan have lived in the Kismayo area since early this century. Members of his sub-clan are not regarded as having a low status in Somalia but it is a small group and therefore seen as weak." [emphasis added] 28 Counsel for the Minister disputed that there was, in truth, a finding that the Abrahim sub-clan was a weak clan. The Minister contended that it was not the Applicant's case before the Tribunal that his sub-clan was weak and that it was persecuted because it was weak. On the contrary, the Minister contended, the case before the Tribunal was that the Applicant and his sub-clan were selectively targeted because of his and their association with General Morgan. That is certainly the way in which the Tribunal recorded the claims. 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. 31 The Minister contended that the Applicant's case before the Tribunal was that the warfare in question in Kismayo was one waged to obtain power, territory and resources. That assertion, I think, is borne out by the way in which the matter was presented on behalf of the Applicant to the Tribunal. Harm arising out of such a war may be disproportionately directed to those unable to defend themselves, whether they be individuals or smaller weak groups. A defenceless person in such circumstances, however, is not at risk by reason of membership of such a group but simply because he or she occupies the territory or has the resource which is sought by the persecutors. The fact that such a person is defenceless to resist the claim by the more powerful group and is unable to defend it does not render the conflict that might arise conflict for a Convention reason. It is a most unfortunate circumstance of human life that that be so. However, I do not consider that persecution of weak people in order to obtain what they have, because it is easier to recover what they have from them than from a stronger group, is persecution for a Convention reason. 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. It is only if the persecution is because of their membership of the particular group, as distinct from the fact that they have a resource or territory which is sought by the persecutors, that a Convention reason would be involved. Accordingly I do not consider that this ground succeeds. 33 It follows in my opinion that the application 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 Justice Emmett. Associate: Dated: 19 May 1999 Counsel for the Applicant: D. Jordan Solicitor for the Applicant: Legal Aid Commission of NSW Counsel for the Respondent: S. Lloyd Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 17 May 1999 Date of Judgment: 19 May 1999