Elmi v Minister for Immigration & Multicultural Affairs [1999] FCA 469 (8 October 1999)

Last Updated: 15 November 1999

FEDERAL COURT OF AUSTRALIA

Elmi v Minister for Immigration & Multicultural Affairs [1999] FCA 469

MIGRATION - claim of refugee status - whether Tribunal erred in law

Migration Act 1958, s 476

SAHRA ELMI V MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 328 OF 1999

JUDGE: BEAUMONT J.

DATE: 8 OCTOBER 1999

PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 328 OF 1999

BETWEEN:	SAHRA ELMI Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	BEAUMONT J.
DATE OF ORDER:	8 OCTOBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.

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 328 OF 1999

BETWEEN:	SAHRA ELMI Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	BEAUMONT J.
DATE:	8 OCTOBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

1 This is an application for an order of review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal Member, Dr Peter Nygh, affirmed a decision of the delegate not to grant a protection visa. The matter had an earlier history in this Court on issues that are not presently material, to which I need not refer. The application for an order of review was drafted without the benefit of legal representation. It appears that it was prepared by Mr Jimale who is a relative of the applicant and who gave evidence before the Tribunal. Mr Jimale has no legal qualifications but also appears, with leave, for the applicant in the present application.

2 As might be expected in those circumstances, the application for an order of review is not expressed in language that would appropriately invoke the jurisdiction of the Court as a ground of review available under s 476 of the Migration Act 1958 ("the Act"). Rather, the application seeks, in terms and in its form, to re-adjudicate the issues before the Tribunal. Again, as might, in all the circumstances, be expected, given the absence of legal advice and legal representation, the matter proceeded before the Court at the hearing of the application in a similar vein.

3 In other words, although Mr Jimale seemed to appreciate that in order to justify the intervention of the Court by way of judicial review, an error of law had to be demonstrated, he was understandably in some difficulty endeavouring to articulate how, in the present case, any such error might emerge.

4 The background to the application is that the applicant claimed to face persecution by reason of her membership of the Hawadle clan in Somalia at the hands of either the Habir Gedir clan or some other major clan. Incidental to this claim, there was also propounded a claim that she feared persecution from such other clans by reason of an implicit political opinion which should be inferred from her membership of the Hawadle clan.

5 Her case before the Tribunal, in general terms, was that she faced persecution from her own clan by reason of her membership of the family and that this could be traced through the identity of her father who was a religious scholar who was opposed to war. She claimed that her family faced persecution by members of the Hawadle clan who would have seen her family as traitors. She also claimed before the Tribunal that she feared persecution as a member of a social group comprising young women in Somalia who lacked immediate family or clan support.

6 In its reasons, the Tribunal was unable to accept all of the applicant's claims in relation to her life experiences and, in that connection, some adverse credibility findings were made. However, some of the claims propounded by the applicant were accepted. The Tribunal accepted that the applicant was a Somali national, and a member of the Hawadle clan; and that she was born and lived in Mogadishu. There was some contention in the Tribunal as to the circumstances in which the applicant and her family fled from Mogadishu. The Tribunal accepted that it was possible that in 1993 or 1994 that this had occurred; and that it was due to the action of members of the Habir Gedir clan directed towards the applicant's clan.

7 The Tribunal found that it was likely that she fled to Bulohawo, although no finding could be made about how long she stayed there, or whether she was then with her parents or not. The Tribunal found that if her family went with her, they returned at some stage to Mogadishu and remained there until 1998. The Tribunal further found that the applicant left Bulohawo at some stage and went to Kenya. Life, the Tribunal found, had been peaceful for the applicant in Bulohawo, and it appears that she left because she was dissatisfied with the lifestyle there.

8 The Tribunal further found, however, that in mid 1998 the applicant's father and two brothers were kidnapped and presumably killed by fellow clansmen. At that time, the Tribunal found, the applicant's mother and some of her sisters fled either to Kenya or to a place near the border with Kenya. But the Tribunal did not accept that the applicant's family was captured by the Habir Gedir in 1993, nor that the men were led away to be killed during which the applicant managed to escape to her uncle's place and then from Mogadishu.

9 In terms of the general situation, the Tribunal found, in relation to the applicant's claim, that in 1993 she faced persecution from clans opposed to the Hawadle clan. This fear was not, however, well-founded any more, even if it might have been well-founded in 1993. In particular, the Tribunal found that her clan had a strong militia which had been successful in repelling its opponents even if, for a temporary period, those opponents may have held the upper hand.

10 At the same time, the Tribunal did accept that the applicant had a well-founded fear of harm in Somalia, given the well publicised troubles in that country. But as a matter of law, the Tribunal went on to conclude that a risk of this kind of generalised harm did not stimulate the operation of the 1951 Convention relating to the Status of Refugees. Specifically, in relation to her claim to face persecution by reason of her membership of the family, the Tribunal accepted that her father and two of her brothers had, as has been noted, kidnapped and presumably killed, but the Tribunal noted that there was no evidence that any harm was directed to female members of her family for that reason.

11 The Tribunal even further doubted whether any harm was directed at her family as a social group rather than as individuals who refuse to co-operate with the militia. So far as concerns the applicant's claim that she faced persecution by reason of her membership of the social group comprised by young women without immediate family to protect her, the Tribunal did not accept that she was without family in Somalia. There were, apart from the two brothers already mentioned, six other brothers.

12 Moreover, the Tribunal found that there was no evidence that young women, as such, faced persecution, notwithstanding that other weak and unprotected people faced risk of harm in the troubles, previously mentioned, in Somalia. On the question of relocation, if it were to arise, the Tribunal found that it was reasonable for the applicant to return to the Bulohawo region, in which she had lived safely and quietly for a period after 1993. It followed, the Tribunal held, that the applicant could avoid persecution within her own country making the need for international protection unnecessary.

13 In support of the application for review, Mr Jimale has taken the Court, in his written submission, to a number of sections of the Tribunal's reasons in which it is claimed that the Tribunal misunderstood or misquoted the evidence. It is unnecessary, for present purposes, to discuss the detail of this as today's transcript will speak for itself on the matter. Mr Jimale has now taken me to the passages concerned. In my opinion, there is no substance at all in any of the suggestions made on behalf of the applicant that evidence was misquoted or misunderstood. Rather, the position appears to be that, in truth, Mr Jimale has endeavoured to ask the Court to accept some new evidence on the points in question. That, of course, is not permissible in an application for judicial review.

14 It will suffice to say that I have read the reasons of the Tribunal as a whole and I have been unable to identify any reviewable error in its decision-making process.

15 I would only add that, in the course of his submissions, Mr Jimale referred me to another decision of the Tribunal (No. N98/24866), dealing with an application by a citizen of Somalia for a protection visa on the ground of refugee status, upholding the claim for refugee status. The Tribunal, in that case, made extensive reference to the troubles and abuses of human rights in Somalia, but that much was accepted by Dr Nygh in the present case.

16 In the other matter, as appears at page 11 of the reasons, a particularly significant consideration was that the applicant for refugee status in that case was a person having:

"... a particular personal and political profile as an adult male whose uncle was a minister and a member of the central policy body of the Barre regime (the SRC) and who was credibly said to have been prominently identified with persecution of opponents of that regime, and a leading member of the Majeerteen clan in particular. Other family members are also said to have served the Barre regime in senior positions."

17 It appears that those points were central to the reasoning of the Tribunal in that case. In any event, that decision was a decision on its own facts and cannot, of course, possibly lead to the conclusion standing alone that an error of law occurred in the present matter. In my opinion, no ground for review has been made out in the present case.

18 As I mentioned in the course of argument, the jurisdiction of the Court in these matters is a limited one. We have no executive function. The limits of our role are clearly explained in the reasons of recent decisions of the High Court and the explicit language of Parliament in the Act.

19 It follows that the application must be dismissed.

ORDERS

20 The application is dismissed.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate:

Dated: 12 November 1999

Applicant:	Mr Jimale appeared for the applicant
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 October 1999
Date of Judgment:	8 October 1999