Khadra Mohamed Abdalla v Minister for Immigration & Multicultural Affairs [1998] FCA 25 (6 January 1998)

FEDERAL COURT OF AUSTRALIA

Migration - application for judicial review of decision of Refugee Review tribunal - "persecution" - whether persecution has to be a "systematic course of conduct" - whether military action targeted against civilians for a Convention reason constitutes persecution - whether harm from inter-clan warfare was relevant to the Convention - whether s 420 of Migration Act 1958 is a procedural requirement.

Migration Act - ss 36(2) and 420

Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 - appl.

"Applicant A" v Minister for Immigration and Ethic Affairs [1997] HCA 4; (1997) 142 ALR 331 - appr.

Periannan Murugasu v Minister for Immigration and Ethnic Affairs, unreported, Federal Court of Australia, 28 July 1987 - appr.

Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 - dist.

Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621 - foll.

Velmurugu v Minister for Immigration and Ethnic Affairs Davies, Burchett and Whitlam JJ, 5 November 1997, unreported - foll.

KHADRA MOHAMED ABDALLA V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 864 OF 1997

JUDGE: BEAUMONT J.

PLACE: SYDNEY

DATE: 6 JANUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 864 of 1997

BETWEEN:	KHADRA MOHAMED ABDALLA Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	BEAUMONT J.
DATE OF ORDER:	6 JANUARY 1998
WHERE MADE:	SYDNEY

ORDERS:

1. The application 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	NG 864 of 1997

BETWEEN:	KHADRA MOHAMED ABDALLA Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	BEAUMONT J.
DATE:	6 JANUARY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

This is an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") finding that the applicant, Ms Khadra Mohamed Abdalla, is not a "refugee" for the purpose of the Migration Act 1958 ("the Act"), and affirming a decision by the Minister's Delegate that the applicant was not entitled to Australia's protection under the Act.

The criteria for the grant of a protection visa are set out in s 36(2) of the Act and Part 866 of Schedule 2 to the Migration Regulations. Those provisions pick up the terms of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol. The relevant part of Article 1 of the Convention defines a "refugee" as 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 [her] nationality and is unable or, owing to such fear, is unwilling to avail [herself] of the protection of that country..."

The applicant is a national of Somalia who arrived in Australia on 17 June 1997. She claimed fear of persecution in Somalia on the Convention-related grounds of her membership of a particular clan, known as the Marehan clan. She acknowledged that this group controls the Gedo region of Somalia in these post-civil war times, however she claimed that the Marehan clan is despised by other clans because Siad Barre, who ruled Somalia until the civil war unseated him in 1992, was one of its members. The applicant, her parents and her siblings moved to the United Arab Emirates ("UAE") in 1988 (that is, before the civil war). She claimed that the prospects of her being seriously harmed were exacerbated because she will be regarded as a single woman without family in Somalia. The applicant further claimed that she will be placed under duress by her father in an arranged marriage in the UAE, that the marriage was never formally recognised under UAE law, and that her husband used to mistreat her, criticising her over a past relationship she had with an outcaste clan member there. This claim referred to events in the UAE, which, as has been seen, is not the applicant's country of origin. However, since the applicant's husband is Somali, the Tribunal considered the implications of his ever residing with her in Somalia. The applicant's claims were therefore considered by the Tribunal in the context of the Convention-related factors of "race" and "membership of a particular social group".

As the Tribunal noted in its reasons, a complication in this matter was the great number of misleading claims made at different times by the applicant. Her claims changed considerably over the life of her application for a protection visa.

THE TRIBUNAL'S REASONS

In order to understand the basis for the claim for judicial review, it will be necessary to refer, inevitably at some length, to the relevant reasons of the Tribunal.

In considering the meaning of the concept of "persecution" for the purposes of the Convention the Tribunal said:

"The applicant's fear must be fear of being persecuted. The term `persecution' is not defined by the Convention, but not every threat of harm or interference with a person's rights for a Convention reason constitutes `being persecuted'. Persecution necessarily involves `some serious punishment or penalty or some significant detriment or disadvantage' (Chan [v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379] per Mason CJ at 388). It may be less than a threat to life or freedom and may include, in appropriate cases, serious violations of human rights (Dawson J at 399-400) and `[m]easures `in disregard' of human dignity' (McHugh J at 430).

`Persecution' involves `selective harassment' whether `directed against a person as an individual' or `because he or she is a member of a group which is the subject of systematic harassment', although the applicant need not be the victim of a series of acts since a single act of oppression may suffice. `As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is `being persecuted' for the purposes of the Convention' (Chan per McHugh J at 429-430; see also Mason CJ at 388). Further, persecution implies `an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation ... for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors' (Ram v MIEA & Anor [1995] FCA 1333; (1995) 57 FCR 565 ... at 568) ...

The term `for reasons of' serves to identify the motivation for the infliction of the persecution and the objectives sought to be attained by it. `The reason for the persecution must be found in the singling out of one or more of five attributes, namely race, religion, nationality, the holding of political opinion, or membership of a particular social group' (`Applicant A' & Anor v MIEA & Anor [1997] HCA 4; (1997) 142 ALR 331... per Gummow J at [375]). The words `for reasons of' require a causal nexus between the actual or perceived Convention reason and the well-founded fear of persecution; it is therefore not sufficient that a person identify with a Convention reason (say, `a particular social group') and also have well-founded fear of persecution (`Applicant A' per Dawson J at [340])."

After analysing the evidence in support of the applicant's claims, the Tribunal made the following observations on the credibility of those claims, referring to their changes, as previously noted:

"The Tribunal finds, on the evidence, that the Applicant has contrived her father's situation in order to argue that she has no right of return to the UAE and would have to return to Somalia, as she claims her parents have had to do, if she does not obtain protection in Australia. In this construction, the only thing giving her a right or obligation to return to the UAE is her place in an abusive marriage that the UAE authorities have not even formally recognised.

Since the Tribunal is not required to assess the Applicant's claims in the context of the UAE, but rather in the context of Somalia, her apparent manipulation and contrivance of facts in relation to her parents' and her own right of abode in that country may be considered a side issue. However, it goes to the Applicant's overall credibility ... The Tribunal is unsatisfied as to the Applicant's credibility on this issue, which may reasonably have implications for its overall findings in this matter.

The Tribunal will only briefly reiterate all the lies told and admitted by the Applicant in the past: her history; her marriages; her age; her six children (actually none); her claimed illiteracy; her time of departure from Somalia; her reasons for departure; her journey; the wallet found on her person when she arrived in Sydney; how and where she obtained it; her familiarity with its owner, or lack of it; and her treatment by various parties for various claimed reasons."

The Tribunal added:

"Leaving out those matters not entirely answerable by the applicant, there is more than sufficient evidence of deception in this application to convince the Tribunal that even the Applicant's new evidence about her situation in Dubai cannot be relied upon. The Tribunal is not satisfied that it is anywhere near the truth, let alone the whole truth as to the Applicant's history, prospects and concerns.

Pared down to its essentials, however, the Applicant's case is about being a Marehan who is afraid to return to Somalia. The Tribunal will endeavour to analyse the relevant evidence assuming that this claim, which no other available evidence disputes, were true.

The Applicant claims she has no family in Gedo. This may be true. She claims that her clan controls Gedo. This claim is supported by a document cited in the primary decision in this case, which also indicates that Marehan have been resettling in Gedo in their thousands since the end of the civil war...

The Applicant claimed that although the Marehan control the Gedo region, other clans are frequently engaged in fighting against them, partly over long-standing scores dating back to... the Siad Barre era and partly due to competition for territory. The Applicant claims that what she faces in Gedo is the risk of harm that might arise in the course of generalised pattern[s] of civil unrest in Somalia.

The Marehan clan is armed with its own militia. It is a fully operational military player, linked to the Somalia National Front, in the current state of civil unrest in Somalia ...

The Applicant claims that she will be vulnerable to violence in Somalia because she is a woman. Although the potential instance of rape or other violence is not beyond the realms of possibility, the Applicant gave no evidence of there being any systematic course of action against unarmed Marehan women in Somalia and the Tribunal could not find any.

Given the perennial UNHCR statistics showing that most refugees are women and children, and given UNHCR's enhanced concern for women refugees in recent years, as evidence[d] in a vast number of its published plans and reports, the information about Gedo being a safe place of return for Marehan refugees would seem to indicate that it is generally safe for women. One recent report sighted by the Tribunal indicates that adult Marehan males face a risk of murder in Somalia, presumably because they are of fighting age (`Somalia" survey in Lawyers' Committee for Human Rights, Profiles of Country Conditions and Asylum Claims [1995]), but notwithstanding this detail and its apparently easy accessibility, the report identifies no similar concern regarding adult Marehan females, whose concerns about genital infibulation it does raise. Whilst lack of evidence of something is not the same as evidence of a lack of it, the Tribunal considers it difficult to conceive that large-scale Marehan refugee repatriation would continue into Gedo in a climate of serious danger to women and children."

The Tribunal went on to conclude that the applicant -

"was not able to identify to the Tribunal any form of harm she might face in Somalia that would form part of a course of systematic action directed against her for any Convention-related reason.

More significantly, she stated that any harm she might face would arise out of the general pattern of civil unrest presently afflicting life in Somalia."

The Tribunal next cited the observations of Wilcox J in Periannan Murugasu v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 28 July 1987, at 13) that:

"The word `persecuted' suggests a course of systematic conduct aimed at an individual or at a group of people. It is not enough that there be [a] fear of being involved in incidental violence as a result of civil or communal disturbances." (Emphasis added).

The Tribunal noted that this approach had been adopted by McHugh J in Chan's case (at 430). The Tribunal also cited the following observations of Gummow J in Applicant A (at 374):

"The first condition [which must be satisfied] is that a person be outside the country of nationality by reason of (`owing to') a fear of persecution which is well founded... This means that persons who are outside the country of nationality by reason of such causes as... war... cannot answer the requirements of [Article 1A(2)]."

The Tribunal went on to say:

"The specific reference to `war' in these judgements must logically pre-suppose that war will usually be fought by parties with identifiable and opposing political and strategic objectives, and therefore by parties holding, and imputing to their opponents, opposing political opinions; likewise, these judgements must logically allow that the parties contesting in a war may represent antagonistic ethnic groups or religious communities. The presence of these factors identifying and differentiating the antagonistic parties does not, however, turn war itself into persecution for the purposes of the Convention.

In discussing the evidence in Periannan Murugasu, Wilcox J also draws a clear distinction between patterns of persecution and patterns of communal violence even where communal violence results in serious harm (at 8). This means that recurring patterns of violence between groups within a community will not constitute persecution unless it forms part of `a course of systematic conduct'.

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 Marehan. 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."

Finally the Tribunal stated:

"The Applicant's deceptions in this matter have greatly damaged its confidence in her as a reliable witness on any point in this matter. However, in all conscience it could not conclude this decision without attempting a proper consideration of the prospects of a Marehan woman facing return to Somalia. The Tribunal is aware of the fact that her return to Somalia might be impracticable for the present and immediately foreseeable future due, again, to the patterns of communal violence in the country affecting access through Mogadishu airport, but not due to any Convention-related reason."

THE APPLICATION FOR JUDICIAL REVIEW

By her further amended application for an order of judicial review, the applicant claims that relief ought to be granted on the following grounds:

* That the decision involved errors of law being an incorrect interpretation of the Convention.

* That the decision involved errors of law being an incorrect interpretation and application of the Convention to the facts as found by the Tribunal.

* That the Tribunal erred in law by failing to observe procedures which it was required by law to observe, in that it failed to act according to substantial justice and the merits of the case.

* That there was no evidence or other material to justify the making of the decision.

CONCLUSIONS ON THE APPLICATION FOR JUDICIAL REVIEW

It will be convenient to deal in turn with each of the grounds relied upon by the applicant.

Ground 1: That the decision involved errors of law being an incorrect interpretation of the Convention

On behalf of the applicant, it is submitted that the Tribunal misconstrued the true meaning of the term "persecution" where used in the Convention by adding a qualification or gloss to the Convention criterion of "well-founded fear of persecution" which was not justified by the terms of the Convention definition in Article 1A(2). Specifically, it is said on behalf of the applicant, the Tribunal misunderstood the authorities in holding that the persecution had to be a "systematic course of action".

In my opinion, there is no merit in the applicant's argument. As has been seen, the Tribunal accepted properly that it was bound by the statements of principle in this area made by McHugh J in Chan, Gummow J in Applicant A and Wilcox J in Periannan Murugasu. (See also, to similar effect, the observations of Davies J in Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 405.) The Tribunal cited extensively from these three authorities and there is no reason to suppose that it did not apply them.

It should, in any event, be noted that McHugh J himself referred to "a course of systematic conduct" in explaining the notion of "persecution" in Chan. His Honour first said (at 429):

"The notion of persecution involves selective harassment. It is not necessary, however, that the conduct complained of should be directed against a person as an individual. He or she may be `persecuted' because he or she is a member of a group which is the subject of systematic harassment."

After referring to several authorities including Periannan Murugasu, McHugh J went on to say (at 430):

"Nor is it a necessary element of `persecution' that the individual should be the victim of a series of acts. A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is `being persecuted' for the purposes of the Convention. The threat need not be the product of any policy of the government of the person's country of nationality. It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution." (Emphasis added).

In my opinion, the Tribunal's reference to "a systematic course of conduct" or "action" was intended to pick up the exposition by McHugh J in the present context. As such, that reference was impeccable.

Ground 2: That the decision involved errors of law being an incorrect interpretation and application of the Convention to the facts as found by the Tribunal

In support of this ground, reliance is placed, in particular, upon material before the Tribunal in the form of a report of the Economist Intelligence Unit Limited, dated 2^nd quarter 1997. In that report, one of many before the Tribunal, there is a description of the circumstances in which a number of Somalis have successfully sought refugee status in the United States.

However, when the passage relied upon is seen in its full context, the applicant's argument cannot be sustained. The full passage is as follows:

"The economy

Some refugees begin to return from Ethiopia -

The first families involved in the pilot programme to return 10,000 Somali refugees from Ethiopia left their camp in February, following agreement between the Ethiopian government and the UN High Commissioner for Refugees (UNHCR) in January (1st quarter 1997, page 44). The UNHCR announced on February 18 that 35 families were driven in trucks from the Teferi Bir refugee camp in north-east Ethiopia to the border with the self-styled Somaliland Republic. Each family had received nine-months' food supplies and the equivalent of $30 for their repatriation.

- but others seek asylum elsewhere

At least 4,500 Somalis living in refugee camps in Kenya are to be given leave to enter the USA this year, a spokesman for the Kenyan International Office for Migration (KIOM) announced on February 4. Medicines for the selected refugees, currently resident in two camps in Mombasa, were due to begin in March. The refugees will follow about 6,500 Somalis who left for the USA in 1996. Other Somalis have found their way to South Africa, which has become a popular destination for African asylum seekers, particularly Nigerian nationals. According to one source, applications from 1,021 Somali refugees seeking asylum in South Africa were still pending at the end of January. Other expatriate Somalis have been less fortunate. In a report from Saana on March 27, about 30 Somalis who were attempting to enter Yemen illegally were said to have drowned after being forced to jump from their boat near the Yemeni shoreline. According to a UNHCR spokesman, about 250 others who managed to swim to shore were taken to a refugee camp at Jahine, which now holds nearly 6,000 Somalis."

Reliance is also placed by the applicant upon observations made by Davies J in Muralidharan (above) to the effect that where military action is targeted against civilians for a Convention reason, then such persons may be within the terms of the Convention. Again, I cannot accept the applicant's submission that the Tribunal erred in applying these principles. As Wilcox J pointed out in Periannan Murugasu (at 13), and as Davies J noted in Muralidharan (at 405), questions of degree are involved in this exercise. It is true that in Muralidharan, Davies J went on to hold that the findings of fact of the Tribunal in that case were so brief, at least in relation to the risk of encounters with government forces, that the Court could not identify what were the facts which the Tribunal took into account, with the result that a judicial review was granted (see at 406). However, those observations cannot, in my view, be applied in the present case. Not only did the Tribunal in this matter give full and detailed reasons for its conclusions but, as has been noted, the present matter was very much complicated by the significant changes made in the basis, and in the nature, of the claim for protection being advanced on behalf of the applicant.

It is also submitted on behalf of the applicant in the present connection, that the Tribunal incorrectly interpreted and applied the Convention as to what constitutes persecution by characterising harm from inter-clan warfare as not being relevant to the Convention. Again, I have difficulty in accepting the submission. The question is, as I have said, one of fact and degree. In my view, the Tribunal appreciated the true nature of the legal question that needed to be addressed, but found, on the facts, that protection was not justified. There can accordingly be no scope for judicial review on this account.

Ground 3: That the Tribunal erred in law by failing to observe procedures which it was required by law to observe, in that it failed to act according to substantial justice and the merits of the case

I am prepared to accept, for present purposes, that I should follow the reasoning of the majority in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621 and Velmurugu v Minister for Immigration and Ethnic Affairs (Davies, Burchett and Whitlam JJ, 5 November 1997, unreported) in support of the proposition that s 420 of the Act is a procedural requirement, which is mandatory in its operation, and that it has an operation separate and apart from the probative-type provisions of s 476(2) and (3) of the Act (see also, Qui v The Minister for Immigration and Ethnic Affairs, Wilcox, Burchett and North JJ, 23 December 1997, unreported). On behalf of the applicant, a submission was sought to be developed that there had been several errors made by the Tribunal that fell within s 420. However, upon analysis, these submissions were, as a matter both of form and of substance, arguments which sought to do no more than to re-agitate findings of fact and the merits. None of these errors could, in my view, have been said to have had any procedural character. The constraints imposed upon the jurisdiction of this Court in this area, both under the general law and, more recently, by statute, are now well known and understood. Any attempt to re-agitate the facts is impermissible in principle.

Ground 4: That there was no evidence or other material to justify the making of the decision

Again, in my view, this argument can be dealt with summarily as another attempt to invite the Court to embark upon the impermissible function of reviewing the merits and the facts. These are matters within the exclusive domain and responsibility of the Tribunal.

ORDERS

I order that the application be dismissed with costs.

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont

Associate:

Dated: 6 January 1998

Solicitor for the Applicant:	McDonells Solicitors
Counsel for the Respondent:	David Godwin
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 December 1997
Date of Judgment:	6 January 1998