Omar v Minister for Immigration & Multicultural Affairs [1999] FCA 1843

FEDERAL COURT OF AUSTRALIA

Omar v Minister for Immigration & Multicultural Affairs [1999] FCA 1843 MIGRATION – protection visa – RRT decision – whether reasons contained findings on material questions of fact – whether fear of persecution arising from political opinion which applicant may feel compelled to make on return to country of nationality is within the Convention definition of refugee

Migration Act 1958 (Cth) s 430(1)(c)(d) Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 applied Somaghi v Minister for Immigration (1991) 31 FCR 100 mentioned

YUSUF SHEIK OMAR v MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS NO. V 615 OF 1999

HEEREY J 23 DECEMBER 1999 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 615 OF 1999

BETWEEN: YUSUF SHEIK OMAR

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: HEEREY J

DATE OF ORDER: 23 DECEMBER 1999

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: The application is dismissed with costs, including reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 615 OF 1999

BETWEEN: YUSUF SHEIK OMAR

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: HEEREY J

DATE: 23 DECEMBER 1999

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant is a Somali national. He seeks an order to review a decision of the Refugee Review Tribunal (RRT) which affirmed a decision of the Minister's Delegate not to grant him a protection visa.

The applicant's case before the RRT 2 Somalia has been without a central government since 1991 following the collapse of the Siad Barre regime. Extensive fighting between warlords ensued. This in turn disrupted normal agriculture and commerce and resulted in widespread famine. The United States and later the United Nations intervened but withdrew in 1994. Somalia has separated into several regions under the control of various warlords. 3 The applicant was born in 1967 in a small village in the Mogadishu area. He is from the Qudub sub-clan of the Shikal clan. Somali society has traditionally been organised around clans and sub-clans. 4 The Shikal is a minority clan. Despite having lived in Somalia for a very long time there is a popular belief that Shikal originated from the Middle East. Even today they are regarded as foreigners and not "proper" Somalis. They suffered discrimination in employment under the Barre government and were "looked down upon in a derogatory way". The applicant's father was a religious leader. The applicant attended Islamic schools and became a teacher in the primary and secondary school system teaching Arabic and religion. 5 The applicant left Somalia in January 1990 and went to study in Khartoum, Sudan. In January 1991 civil war broke out in Somalia. In June 1991 the applicant returned briefly as part of a humanitarian mission arranged by Sudanese Muslim Welfare organisations. After three days, they were forced to flee when clan militias attacked their hotel. They managed to get to the airport and board a plane. A group of militia men then forced their way onto the plane. They told the mission leader there was a Shikal man on the plane who would have to be left behind. The applicant did not know if the militias knew that he was the Shikal they were looking for. They threatened to blow up the plane if the Shikal was not surrendered. Finally the mission leader managed to persuade the militias to accept a bribe of $3000 and let the plane go. 6 On return to Khartoum the applicant resumed his studies. In 1992 he commenced writing poetry. His poems strongly criticised the clan system, especially the way people perceived differences in each other based on clan membership which resulted in fighting and war. He photocopied his poems and distributed them among his fellow students. Some Somalis from the major clans threatened that he would "be targeted by them" when he returned to Somalia. They told him that they would send his poems to their clan leaders back in Somalia. 7 In mid-1993, after the United Nations troops were deployed, the applicant believed Somalia would be safer. He went from Sudan into Ethiopia to a town close to the Somali border. He there met some Shikal who said that the Shikal had been forced to scatter all over Somalia. They said they had heard about his poems and that he was wanted by the militias. They said the poems had increased the risk to the Shikal who were more likely to be seen as dissidents or critics. This was partly because of his poems, but also partly because the Shikal as a religious clan was seen as being guided by religious teaching and opposed to the clan war mentality. The Shikal told him that despite the United Nations presence it was still not safe to return to Mogadishu. So the applicant abandoned his plans to visit Somalia and returned to Khartoum. He continued his studies and poetry and also wrote articles in a student newspaper criticising clan leaders in Somalia. Again Somalis from other clans challenged him saying that he had betrayed Somalia by criticising the country in public. They threatened he would be punished upon return. 8 In October 1995 he wrote another article on women's rights and submitted it to a Somali youth magazine published in New Dehli in India. The magazine rejected the article, but Somalis in Khartoum came to hear of it. Again some of them threatened he would be "dealt with" when he returned to Somalia. 9 In 1996 the applicant went to study at the International Islamic University in Malaysia. He completed a Master's degree in Human Science in February 1999. He wrote some more articles but did not publish them, other than making copies and distributing them to fellow students. There were about twenty Somalis at the University and about sixty in total studying in Malaysia. While dealing with Somali issues, these articles were not critical of the clans. 10 In March 1998 a Somali businessman whom the applicant had asked to trace his family returned to Malaysia and told him the family was constantly moving around and could not return to their home in Mogadishu. The businessman warned him that it was not safe for him to return Somalia. Because of his clan and his career he would be targeted if he attempted to return there. 11 In May 1999 the applicant left Malaysia and went to Bangkok. There he met a Somali businessman who was also from the Shikal clan. In the words of the applicant: "He told me that in April my brother Mohamed had been killed by a group of Aideed's militia when fighting was occurring between the Islamic Court and General Aideed. He told me that my family had fled but he did not know where they were. Apparently the Court asked the local people to leave whilst the Court established its authority over the area. As they were leaving, many people about 30 people including my brother were killed and more than 100 wounded by General Aideed's militia. The people killed were mainly from minority clans because they did not have their own weapons. I do not know any more about why they were killed." 12 The businessman agreed to help the applicant find a safe country. He introduced him to other Somali businessmen who were also from minority clans. They told him how to make enquiries and how much it would cost and agreed they would finance the arrangements. These Somalis, who were staying illegally in Thailand, introduced him to an Indian agent who sold travel documents to Somalis. The applicant met the agent in a hotel one night and agreed to purchase an Australian travel document issued to a Somali national for US$500. He arrived in Australia on 4 June 1999. 13 The applicant's formal statement, prepared on his behalf by Refugee and Immigration Legal Centre Inc (RILC) and submitted to the Department on 16 June 1999, concluded as follows: "34. I have come to Australia because my life is in danger if I return to Somalia. I fear persecution for a combination of reasons being my membership of a minority and vulnerable clan which does not have the protection of any large clan. Additionally, I have expressed political and religious views publicly which have been transmitted to the clan leaders who consider me to be their enemy. The Somali clan leaders are not tolerant of people who criticise them. 35. Additionally Somali clan leaders have very long memories and always remember every wrong which has been done to them so the fact that my articles were provided to them several years ago does not mean that they would not still act upon them now. Finally educated Somalis with good minds like myself are persecuted because it is clear that any thinking person would align themselves against the madness and the violence of the clan fighting. I do not imagine that the clan leaders would spare my life for one minute if I was returned to Somalia." 14 In a submission to the RRT dated 23 September 1999 RILC summarised the applicant's case in essentially the same way. It was said that the applicant "1. Is a highly educated Somali with strong political views about the clan system which it is unreasonable for him to have to suppress back in Somalia. 2. Has published and distributed some of his writings and is known as an amateur Somali poet/writer, at least by ex-patriate Somalis. 3. Would automatically come to the attention of the ruling militia in Mogadishu who would investigate his background, if he were to be returned. 4. Has independent religious views which may cause difficulties for him in Somalia. 5. Is from a vulnerable minority clan. 6. Comes from the most dangerous part of the country."