Omar Mohammed Hussein v Minister for Immigration & Multicultural AffairsIRS [1998] FCA 1399 (3 November 1998)

Last Updated: 5 November 1998

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - Refugees - "persecution" - inter-clan warfare in Somalia - whether applicant's fear was of harm by reason of his membership of clan or by reason of incidental violence as a result of inter-clan violent competition for dominance - whether Refugee Review Tribunal ("RRT") should have confronted applicant and his witnesses with that distinction - whether RRT had allowed applicant to give the whole of the evidence he wanted to give - whether RRT should have "controlled" witness - whether RRT failed to state reasons.

Migration Act 1958 (Cth) ss 420, 425, 430, 476

Periannan Murugasu v Minister for Immigration and Ethnic Affairs (unreported, FCA/Wilcox J, 28 July 1987), followed

Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379, applied

Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225, applied

Khan v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 602, applied

Ram v Minister for Immigration and Ethnic Affairs [1995] FCA 1333; (1995) 57 FCR 565, applied

Adan v Secretary of State for the Home Department [1998] UKHL 15; [1998] 2 WLR 702, followed

OMAR MOHAMED HUSSEIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 587 of 1998

LINDGREN J

SYDNEY

3 NOVEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 587 of 1998

BETWEEN:	OMAR MOHAMED HUSSEIN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	LINDGREN J
DATE OF ORDER:	3 NOVEMBER 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The decision of the Refugee Review Tribunal dated 29 May 1998 be affirmed.

2. The applicant pay the respondent's 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	NG 587 of 1998

BETWEEN:	OMAR MOHAMED HUSSEIN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	LINDGREN J
DATE:	3 NOVEMBER1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

The applicant applies under s 476 (1) of the Migration Act 1958 ("the Act") for review of a decision of the Refugee Review Tribunal ("RRT") dated 29 May 1998 affirming a decision of a delegate of the respondent ("the Minister") not to grant him a protection visa. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant for it be a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, "the Convention"). Article 1A (2) of the Convention provides that a refugee is 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 a 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, is unable or, owing to such fear, is unwilling to return to it."

The applicant's case is that he is outside the country of his nationality, Somalia, and is unwilling to return because of a well-founded fear of being persecuted for reasons of his membership of a particular social group, namely, a small clan called the "Balcad" (I have also seen references to the "Balad" but, like the RRT, I will use the former term).

PROCEDURAL BACKGROUND

The applicant arrived at Sydney Airport on 11 January 1998 without a passport. He was taken into immigration detention. On 21 January 1998 he applied, through his solicitors, for a Protection Visa (866). A delegate of the Minister refused the application on 4 February 1998. On 9 February 1998, the applicant applied to the RRT for review of that decision.

The RRT conducted a hearing on 22 February 1998, when the applicant was assisted by an interpreter. Evidence was also given by two witnesses, one of whom knew the applicant and his family in Somalia, and the other of whom knew the applicant's family but not the applicant in Somalia. As noted above, on 29 May 1998 the RRT affirmed the delegate's decision not to grant a protection visa. The applicant filed his present application for review on 17 June 1998.

THE APPLICANT'S CLAIMS

The applicant's claims were set out in a two page written statement made on 19 January 1998 in support of his application for a protection visa, a one page written statement made on 19 February 1998, that is, three days before the RRT hearing, and the oral evidence he gave at the hearing itself.

In his statement made on 19 January 1998, the applicant claimed to have been born in Somalia in October 1972 and to be a member of the Balcad clan or sub-clan, which is part of the Darod tribe or clan. (I will continue to refer to the Balcad as a "clan"). The applicant claimed that his clan, the Balcad, lived together with the Ogaden clan in the town of Jilib in the lower Juba region of Somalia.

The events with which the case is immediately concerned are alleged to have occurred since the fall of the Siad Barre Government in 1991. Since that time, there has been no national Government in place in Somalia.

According to the applicant, in 1991 the Hawiye clan warlords came to the Jilib area and fighting broke out between the Hawiye on the one hand and the Ogaden and Balcad on the other. Although the Hawiye did not come to fight the Balcad, the Balcad were drawn into the fighting. The applicant's two brothers, their wives, and his brother in law were killed and his father was shot in both legs.

The applicant said that after he was shot, his father told the applicant to flee lest he be killed. His father said that the applicant would be at particularly great risk as the Hawiye were targeting grown men. The applicant therefore fled to Kismayo, leaving his wife and the rest of his family behind, as he considered it would be even more dangerous for them to travel than to remain in Jilib. The applicant stayed in Kismayo for ten days and received money from friends there. There was fighting in Kismayo and the applicant caught a boat to Mozambique, where he worked for two and a half years. When he had saved enough money, he entered South Africa illegally with some other people. They were caught and detained for two nights. When the applicant told the authorities that he was from Somalia, he was released and told he could remain in South Africa for six months. He was taken to Johannesburg where he traded in goods to earn a living.

The applicant claims that at the end of the six months, he obtained a false Australian passport for US$600, and that he travelled to Sydney where he disposed of the passport on arrival.

In his second statement made on 19 February 1998, the applicant claimed that his brother who was killed in 1991, Adbul Rahman Hussein, had worked for the Siad Barre government, "obtaining and gathering information for the government as to clan movements and fighting". The applicant stated that he believed that part of the reason why this brother was killed in 1991 was that he was regarded as a spy. According to the applicant, he feared that his relationship with a "spy" might make it "more dangerous" for him to return to Somalia. He added that his other elder brother and his brothers' wives were also killed "at this time".

This evidence was supplemented by the applicant's oral evidence before the RRT. The applicant was asked why it was, if the Hawiye came to Jilib in 1991, he did not leave until 1994. The applicant explained that not all the incidents he had described happened in 1991 and that some had happened as late as 1994. He said that the Hawiye began the fighting in 1991. He confirmed that his two brothers and their wives were killed "at the same time" (in 1991 according to his statement of 19 February 1998) when the family home was struck in a bazooka attack. He added that his brother-in-law was killed and his father injured in separate incidents.

He went on to say that the reason the family home was "hit" was that his brother had been a spy for the government which had encouraged members of small clans to "tell [the government] the news, what they hear, and who came to the place and that sort of thing". He later added something not mentioned in either statement. This was that he personally had been in the house at the time of the bazooka attack and had been struck in the back of the neck with a bayonet by one of the Hawiye who wanted to see if he was still alive. In relation to the death of his brother in law, the applicant's evidence is not clear but appears to be to the effect that his brother in law was killed when the Hawiye captured the area in which the applicant's family lived and shot those who were suspected of having links with the previous Government. I say "appears" because in the same context in the transcript the applicant also refers to his "brother" and it may be that the point about having links to the government was made in relation to his brother, Abdul Rahman Hussein, and not about his brother in law.

The applicant also gave evidence that the Balcad, which consists of only some fifty families, had been protected in the past by the larger Ogaden clan or, when it was in power, by the Government. However, since the Government fell, the Balcad had been oppressed by the Ogaden, who had required members of the Balcad to fight in the Ogaden militia in return for protection. The Ogaden had also taken livestock and other property from the Balcad. It was pointed out to the applicant that this was the first occasion (his giving of oral evidence before the RRT) on which he had claimed that the Balcad had been oppressed by the Ogaden. FINDINGS AND REASONS OF THE RRT The RRT set out the following passage from the US State Department Country Reports on Human Rights Practices 1997 (Somalia): Somalia has been without a central government since its last president, dictator Mohamed Siad Barre, fled the country in 1991. Subsequent fighting among rival faction leaders resulted in the killing, dislocation, and starvation of thousands of Somalis and led the United Nations to intervene militarily in 1992.

Serious fighting among rival clans continued in Mogadishu, in the region outside of Baidoa, and in the area around Kismayo. The violence had a minimal effect on the balance of power between the various factions. Mogadishu faction leaders Ali Mahei, Hussein Aideed, and Osman Atto signed peace accords to prevent combat between the rival factions, but disagreements remained about how to govern the capital area. Leading Somalis launched several serious efforts to advance the reconciliation process. The leaders of over two dozen groups formed the National Salvation Council (NSC) in January in an attempt to establish a national government. This group did not include Hussein Aideed. Until December, the group had failed to agree on the future governance of the country. In a conference in Cairo, Egypt in December, all parties except two signed the so-called "Cairo Declaration." The Declaration provides for a 13-person Council of Presidents, a prime minister, and a national assembly. A National Reconciliation Conference in early 1998 in Baidoa is scheduled to negotiate further details, including appointments .....

... Warring factions continued to commit violations of humanitarian law, including the killing of civilian noncombatants. Sporadic fighting in the Mogadishu area between pro- and anti-Aideed militia led to numerous of [sic] civilian deaths and hundreds of wounded. Numerous combatants also lost their lives. Both sides shelled targets located in densely populated neighbourhoods or areas controlled by civilians.

In March interclan fighting in Galgudud region resulted in the deaths of 10 persons; an additional 18 were wounded. In Mogadishu in April, 17 persons were killed. From August through December, at least 2 dozen persons died as a result of fighting within the Abgal clan, the dominant group in North Mogadishu and Lower Shabelle.

Intermittent combat in North Mogadishu between militia loyal to faction leader Ali Madhi and militia of his rival Sheikh Ali Dherre, leader of the Shari'a court, was responsible for at least one dozen deaths during the year."

The RRT accepted that the applicant was a member of a small clan which lived in the lower Juba region of Somalia along with the Ogaden. It found that shortly before the applicant's departure from Somalia, there was inter-clan fighting between the Hawiye and Ogaden clans, that in the course of that fighting a shell hit the applicant's family home killing a number of the applicant's family members, and that the applicant himself was not in the house at the time. The RRT did not, however, accept that the applicant or his family were targeted by the Hawiye because his brother was perceived to be a "spy". Nor did it accept, if it was true that the Ogaden exploited the Balcad by, for example, stealing their land or cattle, that the applicant himself was at risk of being so exploited. (It did not make any finding as to the applicant's claims that his father was shot in the legs and that his brother in law was killed in a separate incident.)

The RRT considered that the incident in which the applicant's family members were killed, which it described as "incidental violence as a result of interclan conflict", made the applicant fearful and caused him, on his father's advice, to leave Somalia. The presiding Member continued: "I accept that, as a young Somali male he may still be at risk of being caught up in incidental violence as a consequence of interclan conflicts and to that extent there is a basis for his fear.

I also accept that there is no centralised protective authority in Somalia and lawlessness and lack of access to protection from violence in Somalia can not be dismissed as remote or insubstantial. However, in this case such situations could not reasonably be said to affect the Applicant for Convention-related reasons.

The Applicant is not able to satisfy me that any form of harm he might face in Somalia would form part of a course of systematic action directed against him for reasons of his clan membership or any Convention-related reason."

The RRT referred to the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (1979), Periannan Murugasu v Minister for Immigration and Ethnic Affairs (unreported, FCA/Wilcox J, 28 July 1987), Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at 430 (McHugh J), and Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 at 283 (Gummow J) for the distinction between "persecution" and the effects of civil war or other violent communal disturbance. The RRT concluded: "The evidence in this case indicates a situation where the patterns of communal violence do not form part of `a course of systematic conduct' against the Balcad. Clearly, the Applicant claims fear of suffering harm within the recurring pattern of communal violence in Somalia but, according to the authorities cited, this is not persecution for the purposes of the Convention.

The Tribunal concludes on the evidence that the Applicant does not face a real chance of Convention-related persecution in Somalia. He is therefore not a refugee."

GROUNDS OF APPEAL

The applicant's amended application for an order of review filed on the hearing on 13 August 1998 set out five grounds of review as follows: "1. The procedures required by s 425 of the Migration Act 1958 to be observed in connection with the making of the Tribunal decision were not observed in that the Tribunal conducted its hearing in a manner that prevented the Applicant from presenting his evidence fully [s 476(1)(a)].

Particulars

(1) At no stage was the Applicant given a reasonable opportunity to give his evidence about important aspects of his case. For example, he was not given a reasonable opportunity to give evidence about -

(a) The nature and extent of the Hawiye attack in 1991 on Jilib and whether the Hawiye had targeted any particular clans or groups during that attack.

(b) What might have happened to the Applicant in 1991 if the Hawiye had realised he was still alive and, if that may have been serious harm, what was likely to have motivated the Hawiye; and

(c) When and in what circumstances the Applicant's father was shot in the legs and what, if anything motivated the attack.

(2) The Tribunal failed to control the Applicant's second witness effectively and failed to obtain from him the evidence he could give about the Applicant's family and the problems that members of it may face in Somalia.

(3) The Tribunal failed to put to the Applicant or the 2 witnesses one of the issues on which its decision turned. That issue was whether the harm the Applicant might face in Somalia might be due to incidental and random violence or motivated, in part, because of his clan. The effect of s 425 was to give the Applicant and his witnesses the right to give evidence in person to the Tribunal on that issue and the Tribunal never gave them that opportunity.

2. The Tribunal's decision involved an error of law being either an incorrect interpretation or an incorrect application of the meaning of persecution in the definition of refugee [s 476(1)(e)].

Particulars

All the witnesses and the only source of other information relied on by the Tribunal were of the opinion that people from small clans were at risk of abuse or harm in Somalia. This clearly raised a significant issue as to whether the Applicant was at risk of persecution in Somalia because of his clan. The Tribunal failed to address any of this evidence and this [sic] only explicable in terms of the Tribunal have [sic] misconstrued what constitutes persecution.

3. Procedures that were required by the Migration Act 1958 to be observed in connection with the making of the Tribunal decision were not observed in that the Tribunal failed to refer to the evidence and sets [sic] out its reasons and findings, in accordance with s 430 [s.476(1)(a)].

Particulars

The information from the Applicant, the 2 witnesses and the US State Department report about small clans and minority raised a substantial point, which the Tribunal failed to address. Because of its failure to do so, the Tribunal's reasons are unintelligible. The Applicant has been left in the dark as to why the Tribunal rejected his claim that he was liable to be persecuted because he comes from a small clan.

4. Procedures that were required by the Migration Act 1958 to be observed in connection with the making of the Tribunal decision were not observed in that the Tribunal failed to act according to substantial justice and the merits of the case, in accordance with s 420 [s 476(1)(a)].

Particulars

The Tribunal's [sic] fundamentally misunderstood the evidence the Applicant gave at the Tribunal hearing about what happened to members of his family in Somalia and, as a result, the Tribunal failed to address the real issues raised by the Applicant's evidence.

5. Procedures that were required by the Migration Act 1958 to be observed in connection with the making of the Tribunal decision were not observed in that the Tribunal failed to rationally consider the probative evidence that was before it. [s 476(1)(a) and (e)]

Particulars

The Particulars are the same as those stated under 3. and 4. above."

REASONING

1. Failure to observe procedures - s 425 of the Act

1.1 Failure to give the applicant a reasonable opportunity to put his evidence fully

The applicant submits that the RRT adopted an inquisitorial approach, seeking specific pieces of information from the applicant or clarification of perceived inconsistencies in his evidence. He submits that Member's questioning dominated the hearing to such an extent as to deny him the opportunity of giving all his evidence, and that this amounted to a denial of substantial justice contrary to par 425 (1) (a) of the Act.

Subsection 425 (1) provides that where the RRT is not prepared "on the papers" to make "the decision or recommendation on review that is most favourable to the applicant", it: "(a) must give the applicant an opportunity to appear before it to give evidence; ..."

Non-observance of par (a) gives rise to the ground of review provided for in par 476 (1) (a), that is, "that procedures that were required by [the] Act ... to be observed in connection with the making of the decision were not observed". Subsection 425 (2) provides: "Subject to paragraph (1) (a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review."

The applicant submits that he was not given a reasonable opportunity to give evidence about the matters particularised in subpars 1 (1) (a), (b) and (c) set out above. In substance, those matters go to the motivation which the Hawiye had for attacking and killing members of the applicant's family, and have for attacking and killing the applicant himself. Such evidence would have been relevant to the question whether the harm which the applicant feared was part of a systematic targeting of the Balcad as such.

In his written submissions, which I have found most helpful, Mr Colborne of counsel for the applicant referred to two purposes of a hearing by the RRT as being, first, to afford the applicant the opportunity to give all his relevant evidence, and, second, to enable the RRT to question the applicant for the purpose of clarifying issues. He submitted: "It is a denial of substantial justice and the applicant's right under s 425(1)(a) if the questions for these other purposes dominate the proceedings so as to deny the applicant the opportunity to give all his evidence in person to the Tribunal. This is what happened here."

But in my opinion, the applicant was given an adequate opportunity to give evidence about the substance of the matters referred to in subpars 1 (1) (a), (b) and (c), and, more generally, to say all that he wanted to say before the RRT.

The Member took quite some time at the beginning of the hearing to explain to the applicant that the Convention does not protect people from every kind of harm, and that in order to be a refugee a person must fear persecution because of his or her race, nationality, religion, political opinion, or membership of a particular group or class of people.

The Member then proceeded to question the applicant on various matters contained in his statements. He asked questions directed to clarifying the nature of the harm the applicant claimed the Balcad suffered. The RRT also asked questions relating to the motivation of those whom the applicant feared: "Q83 .... it seems to me what you are saying there is your brothers were killed because of fighting between the Hawiye and the Ogaden people. Is that what you were saying here? --- That's correct. That's what I said. This is true."

"Q105 Okay. So let me ask you this: when you ran away from Somalia what was it that you were frightened could happen to you? --- I was scared that they might kill me or harm me myself.

Q106 Why would they kill you or harm you? --- Because they just clan - only God just hasn't written for me to die, but I came very close to that. All the time this place was hit with this flying bomb. I was in the house, I could have died. When they were shooting up and they killed everyone where I was and they were sorting out who's dead and who's not this is (indistinct).

Q107 Okay. This flying bomb that you are talking about do you mean from an aeroplane or was it a hand bomb, a grenade? --- A bazooka, it was a bazooka.

Q108 Okay.--- It's also a normal thing that the militia carried with them.

Q109 And these were fired by the Hawiye people? --- Yes, Hawiye have shot it."

"Q146 What do you believe would happen if you went back to Jilib now? --- You mean me?

Q147 Yes. --- I just have a belief that I would be killed.

Q148 Who do you believe would kill you and why? --- Two reasons my belief is standing on, that someone might associate myself with my brother and the work he used to do and someone will believe that my family have done something to them and will take revenge on me.

Q149 And you said there were two reasons. That's one reason, what's the other reason? --- And the other reason is I don't believe someone like my clan could live there without being some sort of government or something being established.

Q150 You mean someone from the Balad [sic] clan? --- No what I mean is government like here, like in Australia, someone does something he would go to court.

Q151 I see what you are saying. You mean because there is no law and order you could be killed. --- Yes."

When the RRT had finished its questioning, the following exchanges occurred:

Q164 I don't have any further questions. Is there anything else you want to tell me before I talk to your witnesses? --- Can I ask you a little I want to ask?

Q165 Do you want to tell me anything? --- Yes, I want to tell you something.

[The hearing was temporarily suspended then resumed.]

Q166 What do you want to tell me? --- When I came here I was confused, very confused. For a long time now always I was not sure what happened to me. I'm not sure about where I would end up. I want also to tell you that I have seen a lot of blood, killing of my brothers and these have affected me myself. What I want to say is there may be discrepancies in my application, but these discrepancies and some of things which are not mentioned didn't happen on purpose, they just happened because of the things that happened to me."

It appears to me that the applicant was given a fair, adequate and reasonable opportunity to give evidence about all the important aspects of his case, including the nature of his fear and his understanding of the motivation of those whom he feared. In these circumstances, I do not think that the RRT failed to comply with the requirements of s 425 of the Act in the first respect particularised.

1.2 Failure to control the applicant's second witness

The applicant's second witness, Mr Mukhtar, gave wide ranging evidence. He said that he had just arrived back in Australia from Africa where he had unsuccessfully attempted to enter Somalia. He said that "warlords" still controlled Somalia and were importing drugs to give to young Somalis whom they would try to recruit into their militias. He also said that Somalia was in such a state of "total anarchy" that "generally no Somali has ever peace". He claimed to have heard that some Somalis who had been returned to Somalia from Australia had been shot, although he did not have any details. The presiding Member allowed a week for him to provide details. As well, the Member said that he would make inquiries of the Australian High Commission in Nairobi. According to the RRT's Reasons for Decision, Mr Mukhtar provided no further details and the Commission was not able to confirm his claim.

The applicant complains that the RRT failed to obtain from Mr Mukhtar "the evidence that he could give about the Applicant's family and the problems that members of it may face in Somalia". The RRT let Mr Mukhtar give whatever evidence he wished to give. The submission is that the RRT should have put to Mr Mukhtar (and to the applicant) the precise issue whether the harm which the applicant would face in Somalia "would be due to incidental and random violence or [be] motivated, in part, because of his clan." I address this issue below, but indicate now that I do not accept the submission that the RRT was bound to put the issue in that way to those from whom it was obtaining information.

1.3 Failure to put to the Applicant or the witnesses one of the issues on which the RRT's decision turned

The applicant complains that the RRT failed to put to him or his witnesses the question whether the harm which he would or might face in Somalia would be due to incidental and random violence, or would be, at least in part, because of his clan. The failure to do so is said to be a non-compliance with ss 425 (set out earlier) and 426. Section 426 provides: "(1) ... the Tribunal must notify the applicant:

(a) that he or she is entitled to appear before the Tribunal to give evidence; and

(b) of the effect of subsection (2) of this section.

(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.

(3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice."

It seems to me that subs (3) tends against the applicant's submission. The RRT was not required to obtain oral evidence from persons nominated by the applicant. In the light of this, it is hard to see why the RRT, by reason of its having decided to obtain such evidence from a person nominated by him, was required to obtain it by the particular method of putting to that person a particular issue, even one on which the Member's decision might ultimately be found to turn. The RRT's role is not to direct attention to weaknesses in an applicant's case, and it is required only to adopt a reasonable and fair procedure: Khan v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 602 (FCA/FC) at 604 per Wilcox J, referring to Broussard v Minister for Immigration, Local Government and Ethnic Affairs (1989) 98 ALR 180 (FCA/Gummow J) at 189.

In this case, the RRT did in fact seek to extract from the applicant's first witness, Mr Bashar, some evidence as to whether violence against Somalis was clan-related. The relevant passage is as follows: "Q200 As a small clan what sorts of problems do you have? --- At the moment we are in the state in Somalia that clan is the dominant thing. There is no central government or something like that, it is only clan. If the clan is strong enough it will be recognised as a clan, if they are not - so if they are not even those whom they live with for generations would not spare them because you have to be born from the strong clans to gain some self-respect. If you be in the (indistinct) two things are just open for you. One is to join the militia so he can get (indistinct) or you have to run away. If you don't want to do that you go outside. Apart from that there is no way you can live there if you aren't very strong and fighting it. I just want to say lastly, not many people are saying that there is peace and everything will be all right in Somalia, people are talking, but that is only the (indistinct) it is always the (indistinct) saying there would be initiatives, that there would be a grievance, but the reality in the clan is totally different."

"Q209 And what was the problem that made you leave? What was your particular problem, just shortly? --- My clan couldn't defend me, no-one could defend me and my clan was not big in numbers. If I couldn't defend myself and my clan wasn't able to do so then I had to go somewhere which I was assured."

Although similar questions were not asked of the applicant's second witness, Mr Mukhtar, he was given an opportunity to say whatever he "wanted to talk about" in favour of the applicant.

As is shown by the passages set out in the preceding section of these Reasons for Judgment, the applicant himself was afforded the opportunity to give evidence about the nature and motivation for the infliction of the harm that he feared, and was given an outline of the elements of the definition of a "refugee" at the beginning of the hearing. True, the RRT did not attempt to articulate, for the benefit of the applicant or either of "his witnesses", the distinction drawn in the cases between persecution and harm resulting from civil war. But in my opinion, it was not obliged to do so. Indeed, to put the issue to the applicant or "his witnesses" in that way might have led to the giving of evidence suspected of being biased in his favour, and the RRT would have been entitled to find the answer unhelpful in its quest to ascertain the true position.

In my view, the "non-observance of required procedures" ground is not made out in the present respect either.

2. Incorrect interpretation or application of the term "persecution" in the definition of "refugee"

The present case raised the often difficult distinction between fear of persecution by reason of membership of a particular social group and fear of incidental violence arising from civil war or other violent civil disturbance.

The RRT noted that the applicant claimed that he feared "persecution in Somalia for reasons of his clan group". As the passage from the applicant's evidence before the RRT set out earlier shows, he also claimed that he feared persecution by reason of his brother's activities as a spy for the former Siad Barre Government. That claim was made for the first time in a statement made by the applicant three days before the hearing and was made again at the hearing. The Member rejected it. Before me, the applicant did not seek to challenge that rejection.

The applicant does, however, complain that the RRT ignored the issue whether members of small clans in Somalia, such as the Balcad, faced or were liable to face persecution from large clans.

The applicant complains that the RRT seems to have conceived of the "course of systematic conduct" which it accepted as central to the notion of persecution, as requiring "planned and coordinated persecution of the sort found in Nazi Germany". He submits that it should have considered whether he "faced systematic persecution consisting of the disparate acts of people [members of the large clans] adhering to the norms of clan values and behaviour". He submits further that: "The evidence and information before the Tribunal pointed to an element of an attitude [this expression is derived from the judgment of Burchett J in Ram v Minister for Immigration and Ethnic Affairs [1995] FCA 1333; (1995) 57 FCR 565 at 568] on the part of members of large clans and their militiamen that leads to abuse of members of small clans. This information points to abuse that is systematic in that it is not random but directed at minorities because of the particular social group to which they belong."

The RRT made the factual finding that the applicant was "at risk of being caught up in incidental violence as a consequence of interclan conflicts". It also found that the applicant had not shown: "that any form of harm he might face in Somalia would form part of a course of systematic action directed against him for reasons of his clan membership or any Convention-related reason."

In other words, the Member's conclusion was that the harm the applicant faced was not directed at him because of his membership of a clan, but was a by-product of the general "lawlessness and lack of access to protection from violence" consequent upon the collapse of the Siad Barre Government in 1991. I do not think that the RRT, in using the word "systematic", meant to suggest that the applicant was required to show that the harm he faced was organised or planned or coordinated in any way. Rather, when read as a whole, the passage in question is simply in conformity with the requirement referred to by Burchett J in Ram, that there must be "an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm". That, after all, is the essence of the requirement that persecution be "for reasons of" one of the matters specified in the Convention definition of "refugee".

The well established distinction referred to by the RRT and the RRT's manner of expression were in conformity with the publication and the authorities to which it referred. The RRT referred to the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (1979) which states (at par 98): "Persons compelled to leave their country as a result of international or national armed conflicts are not normally considered refugees under the Convention."

According to Wilcox J in Periannan Murugasu v Minister for Immigration and Ethnic Affairs (unreported, 28 July 1987) (at 13), "[T]he word persecuted suggests a course of systematic action aimed at an individual or a group of people. It is not enough that there be a fear of being involved in incidental violence as a result of civil war or communal disturbances".

In Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379, McHugh J said (at 429): "[t]he notion of persecution involves selective harassment". See too - Khadra Mohamed Abdalla v Minister for Immigration and Multicultural Affairs (unreported, FCA/Beaumont J, 6 January 1998) at 7-8; on appeal (unreported, FCA/FC, 20 August 1998) at 14-16; and Mohamed v Minister for Immigration and Multicultural Affairs (unreported, FCA/Hill J, 11 May 1998) at 17.

Reference may also be made to the decision of the House of Lords in Adan v Secretary of State for the Home Department [1998] UKHL 15; [1998] 2 WLR 702, a case which also involved a Somali refugee-claimant. In concluding that Mr Adan was not a refugee as defined in the Convention, Lord Lloyd, with whom Lords Goff, Nolan and Hope agreed, said (at 713): "where a state of civil war exists, it is not enough for an asylum-seeker to show that he would be at risk if he were returned to his country. He must be able to show what Mr Pannick [counsel for the Secretary of State] calls a differential impact. In other words, he must be able to show fear of persecution for Convention reasons over and above the ordinary risks of clan warfare."

His Lordship referred to the decision of the Canadian Federal Court of Appeal in Saliban v Canada (Minister of Employment and Immigration) (1990) 73 DLR (4^th) 551 in which that Court said (at 558): "a situation of civil war in a given country is not an obstacle to a claim provided the fear felt is not that felt indiscriminately by all citizens as a consequence of the civil war, but that felt by the applicant himself, by a group with which he is associated, or if necessary by all citizens on account of a risk of persecution based on one of the [Convention] reasons . . ."

His Lordship considered that there was "no ground for differentiating between Mr Adan and the members of his own or any other clan" and therefore that Mr Adan was not a refugee.

Lord Slynn delivered a concurring judgment in which he said: "Looking ... at the language of the Convention and its object and purpose I do not consider that it applies to those caught up in a civil war when law and order have broken down and where, as in the present case, every group seems to be fighting some other group or groups in an endeavour to gain power. In such a situation what the members of each group may have is a well founded fear not so much of persecution by other groups as of death or injury or loss of freedom due to the fighting between the groups. In such a situation the individual or group has to show a well founded fear of persecution over and above the risk of life and liberty inherent in the civil war. The line may be a fine one to draw in some situations but I agree with my noble and learned friend that the Immigration Appeal Tribunal was entitled in the present case to find that such persecution over and above the risk of the civil war was not established".

The RRT considered whether the applicant in particular faced harm by reason of his brother's being a spy, and thought not. It also considered the applicant's new and late claim that the Balcad were exploited by the Ogaden. It expressed "strong doubts" about this claim, and, in any event, thought that the alleged acts of exploitation (stealing of land and cattle) would not impact on the applicant, who had made no claim to have been exploited in the small business which, according to the evidence, he and his family conducted in a street stall in Jilib.

But the facts that the RRT referred to a well established distinction and used forms of expression associated with it do not necessarily dispose of the applicant's submission. I have, in fact found the present aspect of the case the most difficult.

The case which emerged on the hearing was that the motivation for the violence which the applicant feared was of more than one kind. First, as noted earlier, there was the "spying brother" claim which the RRT rejected, and which may be put to one side.

Second, there was the claim of oppression in the form of stealing of land and cattle, by the Balcad's "protector" clan, the Ogaden, which, as noted above, the RRT also rejected. On the hearing before me, the applicant did not seem to attack this rejection either.

Third, there was the position of small clans generally. The applicant told the RRT that the small clans were dependent on the large clans or, when it was in power, the Government, for protection. He said: "Prior to this government even came - as I was told prior to this government being born, when the clans were fighting inter-clan wars, all minority clans has been divided between the larger clans."

Again, he said: " ... the minority clans who came under big clans, almost all the big clans, if they go to war they force the smaller minority clans to fight for their cause otherwise they get angry and (indistinct)"

The following exchange occurred: "Q83. ... So it seems to me what you are saying there is your brothers were killed because of fighting between the Hawiye and the Ogaden people. Is that what you were saying here?

A (INTPRTR) That's correct. That's what I said. This is true..."

The applicant's answers to Questions 149, 150 and 151 set out earlier were to the effect that in the absence of a national Government in Somalia, members of a small clan like the Balcad cannot live safely. Again, the implication is that they must identify themselves with a larger clan and suffer the risk of violence from those who fight that larger clan.

It seems to me that the RRT was correct in concluding that in these circumstances, the applicant's fear was not of persecution by reason of his membership of either his particular clan, the Balcad, or of the group describable as "small clans generally" (I assume, without deciding, that the latter describes "a particular social group" for the purpose of the Convention definition of a refugee"). The RRT did not refer expressly to small clans generally as a "particular social group" relevant to the applicant's claim, but its reasoning and findings were inconsistent with the his fearing persecution by reason of his membership of such a group. The evidence that "no Somali has any peace" and that members of small clans must either join the militia of a large clan or flee, serves to emphasise that small clans (and therefore their members) are not singled out for harsh treatment by the larger ones. Another way of expressing the position is to say that there is no ill will or adverse attitude towards small clans generally or the Balcad in particular; rather, they are simply not able to defend themselves against, and must perforce align themselves with, larger clans that are engaged in a violent power struggle with one another.

An imperfect analogy is available. National conscription into active military service, although it may give rise to a well-grounded fear of harm, is not persecution of a nation's able-bodied young people the subject of the conscription. The applicant seems to be in no better position with respect to the Convention definition.

The RRT was entitled to conclude, as it did, that the applicant's fear was of "incidental violence as a consequence of interclan conflicts" (emphasis supplied) and that, " ... the Applicant claims fear of suffering harm within the recurring pattern of communal violence in Somalia but, according to the authorities cited, this is not persecution for the purposes of the Convention."

I do not think that the RRT erred in interpreting the Convention test of persecution or in applying that test to the facts as found by it.

3. Failure to refer to the evidence and to set out reasons and findings

The applicant complains that the RRT failed to comply with subs 430 (1) of the Act, which provides: "Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a) sets out the decision of the Tribunal on the review; and

(b) sets out the reasons for the decision; and

(c) sets out the findings on any material questions of fact;

and

(d) refers to the evidence or any other material on which the findings of fact were based."

He refers to the decision of a Full Court of this Court in Dornan v Riordan (1990) 24 FCR 564 in which the Court said (at 573): "the law appears to us to be that a substantial failure to state reasons for a decision, in the circumstance that a statement of reasons is a requirement of the exercise under the statute of the decision-making power, constitutes an error of law. In Re Poyser and Mills' Arbitration [1964] 2 QB 467 at 477-478, Megaw J said:

`.... Parliament provided that reasons shall be given, and in my view that must be read as meaning that proper, adequate reasons must be given. The reasons that are set out must be reasons which will not only be intelligible, but which deal with the substantial points that have been raised....'".

The applicant's complaint is that the RRT's Reasons for Decision do not address the issue whether the applicant was liable to be persecuted because he came from a small clan. However, as I have said earlier, I think that the RRT did consider the issue whether the applicant faced harm by reason of his belonging to a small clan, thought that he did not, and considered instead that the harm which the applicant and other members of such clans faced was simply an aspect of the widespread fighting in Somalia. I do not think the RRT's reasons are "unintelligible" or that the applicant has been "left in the dark as to why the RRT rejected his claim". I therefore do not think the RRT failed to comply with the procedures laid down in subs 430 (1) of the Act.

4. Failure to act according to substantial justice and the merits of the case

The applicant submits that the RRT misunderstood his evidence as to what happened to his family, and so failed to address the real issue raised by his evidence. The RRT seems to have based its account of the applicant's evidence on his evidence as contained in his written statements only. It seems to have thought that the applicant described two incidents: one, in which his two brothers and sisters-in-law were killed when the shell hit their house while the applicant and his father were elsewhere; and a second, in which the applicant's father was shot in the legs while running.

The applicant's oral evidence was rather different. He gave evidence of three incidents. In the first, his two brothers and their wives were killed by a shell when the applicant was also present in the house, and as the Hawiye moved through the house to kill any survivors, they bayoneted the applicant in the neck to see if he was still alive. In the second incident, the applicant's "brother-in-law" (or brother) was rounded up and shot in the street because he was thought to have had links with the former Government. In the third, his father was shot in the legs while running.

The Minister submits that the RRT did not misunderstand the applicant's evidence but simply preferred his written to his oral evidence. This explanation may be correct, although, if it is, one might reasonably expect that the RRT would have recorded in its Reasons that it was relying on one rather than the other.

However, and in any event, it is difficult to see how the alleged misapprehension was, as the applicant submits, "the foundation on which the decision was built". The only additional matters were: first, the applicant's presence in the house when it was hit by the bazooka and the associated bayoneting of him; and, second, the independent shooting of his brother in law in the street. The former additional evidence does not have any bearing on the central issue: the motivation for the attacks: the RRT did not find that the applicant would not be in danger of being harmed if he returned to Somalia. In relation to the latter additional evidence, as noted earlier, it is not clear that the applicant was saying that his brother in law was suspected of having links to the former Government. Such a claim was not made elsewhere. It may be that the Member, who, after all, heard the answer, took this evidence as relating to the applicant's brother, Abdul Rahman Hussein. Further, the applicant did not claim that he would be targeted by other clans because: (a) his brother in law was a spy; (b) he personally was or would be suspected of being a spy (otherwise than by association with his brother, Abdul Rahman Hussein); or (c) small clans had assisted the former Government. This evidence could not, therefore, be seen as bearing on the conclusion to which the RRT came, that the applicant faced harm by reason of the general disorder in Somalia and not by reason of his membership of the Balcad clan or of the group "small clans generally", or by reason of the collusion (actual or imputed) of his brother or anyone else with the former Government.

Ground 4 is not established.

5. Failure to consider the probative evidence that was before it

The particulars given in support of this ground are the same as those given in support of grounds 3 and 4 discussed above. For the reasons given in relation to those grounds, I do not think that ground 5 is made out.

CONCLUSION

The decision of the RRT should affirmed.

I certify that this and the preceding twenty-one (21) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren

Associate:

Dated: 3 November 1998

Counsel for the Applicant:	Mr C Colborne
Solicitor for the Applicant:	McDonells, Solicitors
Solicitor for the Respondent:	Mr G Peek of the Australian Government Solicitor
Date of Hearing:	13 August 1998
Date of Judgment:	3 November 1998