Minister for Immigration & Multicultural Affairs v Abdi [1999] FCA 299 (26 March 1999)

Last Updated: 26 March 1999

FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural Affairs v Abdi [1999] FCA 299

MIGRATION - appeal from Federal Court - review of decision of Refugee Review Tribunal ("RRT") - persecution for a Convention reason in a clan based civil war in Somalia - whether persecution requires something over and above risk of harm in a civil war based on a Convention reason - not necessary to apply differential approach where persecution is in the context of a civil war - revenge not of itself persecution for a Convention reason - significance of question whether applicant is a combatant or non-combatant

WORDS AND PHRASES - "persecution for a Convention reason"

Convention Relating to the Status of Refugees 1951

Protocol Relating to the Status of Refugees 1967

Migration Act 1958 (Cth)

Adan v Secretary of State for the Home Department [1998] UKHL 15; [1998] 2 WLR 702, not followed

Jahazi v Minister for Immigration and Ethnic Affairs (1995) 61 FCR 293, followed

Abdalla v The Minister for Immigration and Multicultural Affairs (1998) 51 ALD 11, cited

Magyari v Minister for Immigration and Multicultural Affairs [1997] FCA 417; (1997) 50 ALD 341, cited

Dr Said Samatar, Somalia: A Nation in Turmoil, A Minority Rights Group Report

Goodwin-Gill, The Refugee in International Law, 1996 2^nd ed, Clarendon Press: Oxford

Professor Hathaway, The Law of Refugee Status, 1991, Butterworths: Toronto

Prakash Shah, Rewriting the Refugee Convention: The Adan Case in the House of Lords (1998) 12 Immigration & Nationality Law & Practice, 100

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v ABDULLAH SHEIKH MOHAMED ABDI

NG 1197 OF 1998

O'CONNOR, TAMBERLIN & MANSFIELD JJ

SYDNEY

26 MARCH 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1197 OF 1998

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Appellant
AND:	ABDULLAH SHEIKH MOHAMED ABDI Respondent
JUDGES:	O'CONNOR, TAMBERLIN AND MANSFIELD JJ
DATE OF ORDER:	26 MARCH 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed with costs.

2. The matter is remitted to the RRT for further reconsideration in accordance with law.

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 1197 OF 1998

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Appellant
AND:	ABDULLAH SHEIKH MOHAMED ABDI Respondent

JUDGES:	O'CONNOR, TAMBERLIN AND MANSFIELD JJ
DATE:	26 MARCH 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from a judgment of Wilcox J setting aside a decision of the Refugee Review Tribunal ("the RRT") on the basis that it fell into error of law in incorrectly applying the law to the facts.

2 The legal issues for consideration on this appeal arise in the context of civil or clan warfare in Somalia, which has been in a state of civil war over the past decade.

3 The relevant grounds of appeal are as follows:

"4. His Honour ought to have found that the applicant's claims related solely to warfare or clan warfare and were outside the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol.

5. His Honour wrongly construed the phrase "fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion" in Article 1 of the Convention.

6. His Honour ought to have followed the decision of the House of Lords in Adan v The Secretary of State for the Home Department [1982] 2 WLR 702 and held that an application for refugee status must show fear of persecution for Convention reasons over and above the ordinary risks of clan warfare.

7. The Full Court ought to decline to follow Minister for Immigration and Multicultural Affairs v Abdullah [1998] FCA 56, or, alternatively, to distinguish the decision.

4 The short question raised by the application is whether the respondent is a "refugee" within the meaning of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees. Article 1A(2) of the Convention as amended provides that "refugee" is a term which applies to 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 fear, is unwilling to avail himself of the protection of that country..."

5 The appeal raises to two questions. The first is whether the RRT erred in applying a requirement that in a clan war context something over and above the risk of harm inherent in the civil war was required to be shown. Second, whether the RRT erred in its treatment of the evidence relating to the respondent's fear of revenge. A question is raised in the Notice of Appeal as to the question of relocation, but in view of our decision on the first question it is not necessary to determine this question.

6 The respondent is a citizen of Somalia who arrived in this country on 24 February 1998. The next day he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) ("the Act"). On 24 March 1998 a delegate of the Minister refused a protection visa and on 27 March 1998 the applicant sought review of that decision.

7 After referring to the relevant case law concerning the definition of a "refugee" and the law relating to relocation, the RRT examined the claims and evidence proffered on behalf of the respondent. The RRT accepted that the respondent is a national from Somalia from the Darod sub-clan known as Waiten and that his father was involved in a leadership or land struggle involving the Darod sub-clans and that as a result he was killed and the applicant was injured. The RRT also accepted that the respondent lived in Mogadishu and Jilib for some time and that he left Mogadishu in late 1997 from the International Airport. It was also accepted that the respondent subjectively fears returning because of the civil war in the country and the continuing problems which flow from that conflict.

8 The claims of the applicant are fully set out in the decision and it is not necessary to repeat them. It is, however, important to note that the member found that there was aspects of the applicant's history which raised serious concern as to his credibility. Specific examples are given of evidence which cast doubt on the truthfulness of his claims. This finding was based on inconsistencies and perceived evasiveness in his recounting his history. The specific finding was that the applicant was evasive and less than truthful in the evidence which he gave and that he was not a credible witness.

The RRT decision

9 Leaving aside for the moment the question of relocation the relevant part of the RRT reasoning is as follows:

"To be a refugee within the meaning of the Convention an applicant must have a well-founded fear of persecution for reasons of a Convention ground. Implicit in the definition is a consideration of the definition as a whole, and consideration of each element. If a person fears harm which may amount to persecution for any other reason than a Convention ground such will not result in them being a refugee within the meaning of the Convention. Similarly, if another aspect of the definition is not met their claim will not succeed. What the applicant fears is revenge resulting from the deaths of people in an inter sub-clan leadership dispute, also he fears the ongoing clan warfare and state of civil unrest in his country. In the applicant's case neither fall within the Convention definition. In Periannan Murgasu v MIEA (unreported, Federal Court of Australia, Wilcox J, 28 July 1987), his Honour stated (at 13):

The word "persecuted" suggests a course of systematic conduct 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 or communal disturbances.

In essence in Somalia the current instability and conflict is caused by clan and sub-clan based civil war where what people fear is being caught up in the fighting between the different groups (whose allegiance and alliance is continually shifting as discussed in various reports and discussed in Somalia: a Nation in Turmoil, A Minority Rights Group Report cited above). This is inherent and understandable in such a civil war situation, and also given the context of shifting clan alliances. In the applicant's case he is also concerned, apart from this wider warfare, with the dispute within his clan over leadership and a land dispute. He is concerned about revenge that may flow from this.

To fall within the Convention definition however a person must show that they are at a greater risk than other members of their clan or society than the risk of harm which would be caused by civil or clan warfare itself. In essence they must show that apart from the civil war or clan warfare that they fall within the definition of a Convention refugee as defined under Article 1A(2) of the Convention. Essentially what the applicant fears is returning to a country which is in a state of civil or clan warfare. This is understandable but not sufficient to establish persecution for a Convention reason. Being at risk or effected by civil or clan war is not by itself sufficient in an applicant [sic] for a protection visa. A person must be able to establish that they would be differentially at risk. They must be able to show "fear of persecution for convention reasons over and above the ordinary risks of clan warfare" as stated by Lord Lloyd of Berwick, in Adan v Secretary of State for the Home Department, House of Lords, [1998] UKHL 15; [1998] 2 WLR 702. His Honour in that decision stated:

...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 ... 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.

That decision was agreed with and cited by His Honour Hill J, in Mohammed Dahir Mohamed v MIMA, unreported, Federal Court of Australia, 11 May 1998. His Honour stated:

Where a country is engaged in a civil war, acts committed against its nationals as a result of that war do not as such constitute persecution for a Convention reason. Were it otherwise as fortunes fluctuated in such a war, both sides would at some stage be able to claim refugee status.

The applicant has not on the accepted evidence established, nor would independent evidence support, that he or his clan would be at any differential risk of harm.

It is also insufficient that the applicant fear revenge from persons over deaths in a leadership or land dispute for the reasoning as discussed by O'Loughlin J in Magyari v MIMA (unreported, Federal Court of Australia, 22 May 1997), where the applicant was a passenger in a motor vehicle that was involved in an accident in which a young gypsy boy suffered serious injuries. In that case the applicant feared revenge from the gypsies. His Honour stated:

[The applicant] has been hounded by the gypsies because of what he, in their perception, has done. They see him as the party, or one of the parties, responsible for the injuries that the child has suffered. The applicant's alleged fear derives from these circumstances which have nothing whatsoever to do with any of the five convention reasons. The gypsies are not concerned with his race, religion or nationality, or with his membership of any social group or with his political opinion. Rather they are concerned to exact some form of retribution from him for what has happened to the child...
If the applicant has a well founded fear of being persecuted by the gypsies ... the Tribunal was correct in concluding that the fear has no connection with any of the convention reasons.

The applicant fears revenge from other sub-clan members over deaths that occurred when his father was killed. They, as in the above cited case, are interested in revenge, and the exacting of retribution, they are not motivated as required by the Convention definition and the words `for reasons of' as contained in the Article 1A(2) definition.

I am accordingly not satisfied that the applicant has a well-founded fear of persecution for reasons of a Convention ground in the foreseeable future." (Emphasis added)

The Judgment of Wilcox J

10 His Honour set aside the RRT decision. He considered that the RRT decision had not addressed the claims advanced by the applicant. He accepted the respondent's argument that the RRT erred by treating the existence of a state of civil war as an answer to the claim of persecution. He considered that Mr Abdi claimed more than risk of harm from the fact of civil war, namely a risk of persecution because he is a Darod. He held that these claims were not properly evaluated and were down-graded by the Tribunal which had treated all claims as being no more than fear of being caught up in a civil war. He also thought that the evidence of Mr Abdi about every clan targeting any clan who is smaller and weaker than their clan must be a reference to the members of the targeted clan so that those persons were targeted because they were members of the particular social group constituting the clan. This was, in his Honour's view, a claim of persecution for a Convention reason and much more than a claim of the ordinary risks of warfare, even clan warfare.

11 His Honour referred to the House of Lords' decision in Adan v Secretary of State for the Home Department [1998] UKHL 15; [1998] 2 WLR 702 where Lord Slynn said at 705:

"Looking, however, 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 well founded fear of persecution over and above the risk to life and liberty inherent in the civil war." (Emphasis added)

12 His Honour took the view that when the RRT spoke of "the clan warfare which is continuing" it failed to appreciate the distinction drawn by Lord Slynn. The Tribunal in its decision stated (at 15) that:

"In essence in Somalia the current instability and conflict is caused by clan and sub-clan based civil war where what people fear is being caught up in fighting between the different groups." (Emphasis added)

13 This, in his Honour's view, was a misstatement of the nature of the fears held by the respondent which in fact were that within the context of the civil war environment, he would be persecuted by reason of his membership of the Darod clan.

14 Then his Honour considered that the decision was in error in assuming that it was necessary for a person threatened with persecution as a member of a particular social group to show that he or she was affected differentially from other members of the group in the sense that he or she was exposed to a risk greater than or different to other members of the group. This was because his Honour considered that it was sufficient if a group of which a person is a member is the subject of selective harassment based on a Convention reason. If the persecution is directed at the group then every member of the group is affected and it is not necessary to show within the group a differential or greater risk.

15 In relation to the "revenge" question, his Honour considered that the member fell into the error of treating all fears of revenge as falling outside the Convention. The Tribunal decision on this point states (at 16):

"The applicant fears revenge from other sub-clan members over deaths that occurred when his father was killed. They, ...., are interested in revenge, and the exacting of retribution, they are not motivated as required by the Convention definition and the words `for reasons of' as contained in the Article 1A(2) definition."

16 It is said that this is an error because it demonstrates that the decision-maker considered that revenge could never amount to persecution whereas the true position is that revenge, if motivated by a Convention reason can amount to persecution. His Honour considered that the RRT decision failed to consider whether Mr Abdi's fear arose out of his membership of a group of people identified in the Convention or was purely personal. For reasons which we set out below we do not consider that the RRT was in error in relation to the revenge question.

17 On the question of relocation, his Honour held that the Tribunal failed to put material before the respondent concerning the information which it held about the north-east region, and that by failing to do so the Tribunal had not acted in accordance with its own specific undertaking to give him an opportunity to respond to adverse information, with the consequence that this matter ought be referred back to the RRT. The position adopted by the Minister on the appeal was that if this Court on appeal considered the decision of the RRT was flawed in other respects, no objection would be taken to the question of relocation being remitted to the Tribunal for further consideration.

Country information

18 In its decision the RRT sets out the relevant country information on Somalia. Briefly, that information discloses that in October 1969 Major General Mohamed Siad Barre by coup d'etat became head of state. He carried out a great number of reforms in relation to land and attempted to eliminate corruption and clan divisions. However, in the 1980s the country experienced severe drought and the economy collapsed thereby weakening his position and ability to control the clans. President Barre later resorted to ruthless suppression of the opposition from 1989 onwards. His power thereafter deteriorated and in late 1990 the Government controlled little outside of Mogadishu. The President then sought to take advantage of inter-clan rivalry, but this led to a full scale uprising, causing him to flee the country in 1991 as it descended into civil war. Since that time Somalia has been without a centralised government and inter-clan warfare has been rife. There were interventions by the United Nations in 1995 and the evidence indicates that human rights abuses continued with tens of thousands of civilians being killed, especially in Mogadishu. To date, no national judicial system prevails and the judiciary which remains relies on a combination of traditional and customary justice in Islamic law. There is little freedom of movement with clan militia controlling check points across the country. Hundreds of deliberate and arbitrary killings, scores of politically motivated detentions, and other ill-treatment, have been repeatedly reported. Many of those killed have been non-combatants in deliberate shelling of areas by opposing clan factions.

19 The country material indicates that at least since 1991 there have been shifting alliances and violent clashes between clan and sub-clan groups. In a paper referred to in the RRT decision entitled Somalia: a Nation in Turmoil, A Minority Rights Group Report, August 1991. Dr Said Samatar, a professor of African history at Rutgers University and a Somali citizen, suggests that after the withdrawal of the colonial power from Somalia, the Somalis lost a major focal point in the sense of a "common enemy" and that this led to a reversion to clan division. The report of Dr Samatar, although published in August 1991, provides a useful insight into the ongoing problems in Somalia. According to the summary in the RRT decision, Dr Samatar considered that there were four main obstacles to the attainment of social peace and stability in Somalia. These are summarised in the RRT decision (at 8) as follows:

"First, the concept of `lineage segmentation, the humpty dumpty of Somali civil and political relations'. He explains that this state results in a fluid concept of political interest groups which `should be in state of constant motion, expanding or contacting according to the stakes at hand. The stakes may involve competition over grazing grounds for the herds, conflict over water-holes or, alternatively, struggle for the resources of the central state'. He cites a passage from A Pastoral Democracy by Dr. Lewis in which the author describes the concept of lineage segmentation as resulting in `literally one does not have a permanent enemy or a permanent friend, only a permanent context. Depending on a given context, a man - or a group of men, or a state, for that matter - may be your friend or foe. Everything is fluid and everchanging.' The current political and social turmoil in Somalia characterised by `instability, anarchy, and murderous shiftings' the author sees as `inherently endemic, deeply embedded as they are in the very warp and woof of the Somali world, both as individuals and as corporate socio-political units.' The author also cites three other major obstacles to the attainment of social peace and political instability. Second, the absence of individual guilt and the concept of heer - of collective guilt and reward - where an aggrieved party was entitled to take vengeance on any member of the culprits kin, and collective compensation was payable (the dia or mag system). Third, the traditional size and scale of the social polity where problems were solved by elders and notables, its demise under the colonial administration, and the failure in recent times of the Somalis to `develop a political culture capable of running the new state, or of articulating the method and means by which the state should relate to the society of clans at large'. And, fourth, the rise to power of Siad Barre as former President a man from a small clan who rose through the colonial administration and was not from a senior family whose ability to become President was a reflection of his ability to possess coercive power in the form of the army." (Emphasis added)

20 It is worth noting from this material that typically many of the conflicts which arise between the groups turn on disputes as to access to territory, to water holes, and to resources, which is not unsurprising in a poor and predominantly agricultural society fragmented into clans and sub-clans some of which are nomadic.

21 The RRT accepted that Somalia was in a state of civil or clan warfare. However, this description is somewhat ambiguous and calls for further examination. In order to appreciate what is covered by such civil or clan warfare, it is essential for a decision-maker to look beyond the existence of a state of war and to determine whether the war is directed to objectives such as securing power, property and access to resources, or whether in reality it is directed against persons or groups because of race, religion or group membership. Unless attention is focussed on the reasons for the war, it is difficult, if not impossible to determine whether the antagonism is based on Convention grounds. It is not enough to dismiss an application simply on the basis that there is a war without looking at the motivations or purposes involved. Civil wars vary greatly in character and objectives. Of course, it is not necessary that the Convention ground should be the sole reason for the fear: see Jahazi v Minister for Immigration and Ethnic Affairs (1995) 61 FCR 293 at 299. This is because the adoption of a sole purpose test would render the Convention protection largely ineffectual.

Civil War - the need for differential risk

22 When considering the claimed refugee status of an applicant who has fled from a country in a state of civil war in a clan-based society, complex considerations will arise in deciding whether the risk of persecution is for a Convention reason. This is especially so in those instances where the civil war or state of anarchic violence involves clan, sub-clan, or sub-tribal disputes as is clearly the case in Somalia. On the one hand if too broad an approach is taken, all members of each warring group may be able to claim that they are being persecuted on racial or other Convention grounds simply because they belong to a warring group. Decision-makers on refugee applications have sometimes taken the view that civil wars, which result in a general state of indiscriminate violence or general danger and insecurity, may preclude the existence of persecution for a Convention reason. Such an exclusionary approach can result in the application of an erroneous general principle which is to the effect that because a state of civil war or violent anarchy prevails in a country no Convention based reason can exist. This view, on the authorities, is too simplistic.

23 The special features of refugee claims in circumstances of civil war have not escaped the attention of learned commentators: Goodwin-Gill, in his work The Refugee in International Law, (1996) 2^nd ed at 75, points out that resolution of the question whether there is a Convention reason calls for a closer look at the background to the conflict, and the ways in which it is fought. Professor Hathaway in "The Law of Refugee Status" at 188 accepts that a civil war directed against a religious group in particular, or other social group, would be persecution under the Convention.

24 The question as to the existence of Convention based persecution in the context of clan warfare in Somalia was recently considered by the House of Lords in Adan v Secretary of State for the Home Department [1998] UKHL 15; [1998] 2 WLR 702.

25 This decision is of considerable importance in the present matter because the decision-maker in the RRT referred to and directly applied the principles accepted by the House of Lords in Adan as to what is referred to as "differential risk". The respondent submits that the decision-maker thereby erred.

26 In the Adan matter, the decision of the United Kingdom Immigration Appeal Tribunal under review, was that the applicant was at no greater risk than others arising from the state of civil war in Somalia, and it therefore allowed the appeal by the Secretary of State. An appeal was then taken to the Court of Appeal which, by majority, allowed the appeal but unanimously held that all those who might be identified with the interests of either side in the relevant Somalian hostilities were "potential refugees". This latter holding was, in turn unanimously over-ruled on appeal to the House of Lords. Their Lordships upheld the approach taken by the Tribunal and decided that killing and torture which were incidental to a clan and sub-clan based civil war did not give rise to a well-founded fear of being persecuted within the Convention definition because in such a case an asylum seeker was at no greater risk of such ill treatment by reason of his clan or sub-clan membership than others at risk in the war.

27 The principal speeches were those of Lord Slynn and Lord Lloyd. The remaining three members of the House concurred in the speech of Lord Lloyd.

28 Lord Slynn (at 704-705) said:

".... in principle it must be accepted, that there can be persecution of a group and that the individual in the group does not have to show that he has a fear of persecution distinct from, or over and above, that of his group.
...
Looking, however, 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, 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 to life and liberty inherent in the civil war. The line may be a fine one to draw...." (Emphasis added)

29 It is noted that Lord Slynn was referring to a civil war in which the parties were struggling to gain power. He does not refer to a war in which the selective harassment was based on religion or race.

30 Lord Lloyd addressed the question at 710, where he said: "He [counsel for the Secretary] accepts further that the persecution of individuals and groups, however large, because of their membership of a particular clan is very likely to be persecution for a Convention reason. But he says that where there is a state of civil war between clans, the picture changes. Otherwise the participants on both sides of the civil war would be entitled to protection under the Convention. Indeed, .. the only persons who would not be entitled to protection on that view, would be those who were not the active participants on either side, but were, ... lucklessly endangered on the sidelines. ... It drives me to the conclusion that fighting between clans engaged in civil war is not what the framers of the Convention had in mind by the word persecution.

What then is the critical factor which distinguishes persecution from the ordinary incidents of civil war? ...If an asylum-seeker can show that he is being targeted for Convention reasons, other than his membership of one of the warring clans, then he might qualify for refugee status." (Emphasis added)

31 His Lordship continued at 713: "I conclude from these authorities, and from my understanding of what the framers of the Convention had in mind, that 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 ... 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.

... the difficulty of establishing the facts does not undermine the principle that those engaged in civil war, are not, as such, entitled to the protection of the Convention so long as the civil war continues, even if the civil war is being fought on religious or racial grounds." (Emphasis added)

32 The last of the above extracts suggests that in the view of their Lordships, even if clan or race based persecution is established, the fact that it arises in the context of a civil war precludes those so targeted from Convention protection without more being shown.

33 When it came to analysing the particular circumstances of Mr Adan, Lord Lloyd (at 714) accepted the Tribunal's conclusion of fact that all sections of society in northern Somalia were equally at risk so long as the civil war continued. His Lordship concluded that there was no treatment which differentiated between Mr Adan and other members of his clan. In other words on the facts the position was that there was an absence of selective harassment on a Convention ground. The claim of Mr Adan was that members of his sub-clan were particularly at risk because they had attacked a militia stronghold of the main opposing sub-clan. This was not considered to throw doubt on the conclusion that all sections of society in northern Somalia were equally at risk so long as the civil war continued. We note that their Lordships in the two principal judgments derived some comfort in noting that there was no question of Mr Adan being returned to Somalia because he and his wife had been granted "exceptional" leave to remain in the United Kingdom on humanitarian grounds.

34 This decision was considered by the Full Federal Court in the case of Abdalla v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 11, which also concerned an applicant from Somalia. The Court held in Abdalla that the clan of which the applicant was a member was in fact in a different position as to risk in the civil war from other clans. In view of this acceptance it was not necessary for the Court to express any concluded view as to the correctness of the statements made in Adan.

35 The Full Court in Abdalla, after quoting from Adan, said (at 21): "It is evident ... that the decision in Adan turned on the particular evidence as to the circumstances of Mr Adan and the nature of the war in the north of Somalia at the relevant time. It is not in any way a controlling authority in relation to the present case. The question to be investigated before reaching a conclusion as to whether there is persecution in the present case ...is whether the evidence establishes that all sections of society are equally at risk so long as the civil war continues. In the tribunal decision, this issue is not addressed.

The decision in Adan deals with what was apparently indiscriminate violence or oppression manifested towards all clans without any differential impact based on clam membership..."

36 The reasoning of the House of Lords in Adan has attracted criticism on the basis that their Lordships have unreasonably limited the protection given by the Convention by attempting to distinguish between refugees from a civil war and other refugees: see "Rewriting the Refugee Convention: The Adan Case in the House of Lords" (1998) 12 Immigration & Nationality Law & Practice, 100, by Prakash Shah.

37 In approaching the question of persecution in the context of a civil war, it is important to keep firmly in mind the wording of the Convention definition. The definition makes no reference to any different approach being adopted where the persecution exists in the context of civil war. There is no exclusion. The relevant question raised by the language of the definition requires a determination, on the evidence, of whether the harm or detriment is for a Convention reason. In the present case there appears to be a risk of serious harm in Somalia even to bystanders and those on the sidelines who are incidentally caught up in what might be called the "cross-fire". This, however, is not sufficient. The evidence must go further and disclose a Convention connection between the persecution of the applicant or the clan to which he belongs and the risk of harm. This in turn calls for a consideration, so far as can be determined on the evidence, as to the purpose and nature of the war, the way it is conducted, and the objectives sought to be achieved by the war.

38 In relation to Adan, we do not accept that a clan or race based war cannot, without some further and differential degree of risk, amount to persecution in the sense that an individual is selected out for persecution treatment because he is a member of a particular clan. If evidence establishes, for example, that the objective of a war is to harm the opposing party for one or more Convention reasons, then "persecution" will be made out. It is somewhat odd to suggest that claimants are precluded from refugee status solely on the ground, for example, that a conflict based on race or religion which gives rise to the fear, can be described as a "war". The task of the decision-maker in these circumstances must be to investigate the reasons underlying the war and the way it is conducted in order to ascertain whether it is based on a Convention ground or has an objective which is covered by the Convention, namely: race, religion or other stated reason. This responsibility cannot be curtailed by a conclusion that there is a state of war.

39 It is difficult, with respect, to see the basis on which a superadded requirement of "greater risk", "differential risk" or "risk over and above that arising from clan warfare" can be derived as a criterion for application of the Convention definition where the war is based on race or religion rather than for example a quest for property, power or resources. For example, once it is established that a person is at risk of being killed or tortured in a war by reason of clan membership, in circumstances where that is one of the objectives of the war one might properly ask what further degree of danger or exposure needs to be established before the required nexus with a Convention reason is made out? Given the purpose of the Convention and the well-settled principle that a broad, liberal and purposive interpretation must be given to the language, it is difficult to see the reason why a "second tier" of "differential" or superadded persecution should be imposed on an applicant for refugee status.

40 If their Lordships in Adan intended that the reference to clan warfare meant warfare engaged in between clans or sub-clans for reasons such as the acquisition of dominance or power, the control of territory, or to obtain access to resources, then the broader statements of their Lordships, would, in our view be in accordance with accepted principles. Indeed, Lord Slynn (at 705), speaks of a type of civil war which is a struggle to gain power. He does not refer to a civil war which is necessarily concerned with racial or religious considerations. However, in contrast to the approach of Lord Slynn it is evident that Lord Lloyd, and the other three members of the House who concurred in his judgment, intended to impose the additional and undefined requirement of some form of fear of harm "over and above" that "ordinarily incidental" to a civil war, even where the civil war is fought on racial or religious grounds. In our view, there is no basis for the imposition of this additional requirement of differential treatment either in the language or objectives of the Convention.

41 A concern is evident in Adan that extension of Convention protection to persons involved in a civil war would lead to a flood of applications for refugee status. This does not necessarily follow. In many cases the basis for an applicant's fear will arise from a struggle relating to territory, property or power and not to warfare for reasons of clan or race where the objective is to harm a person because of clan membership. This may be so in Somalia where the existence of shifting alliances tends to indicate that the persecution under consideration at any particular time may not be directed towards clan membership as such, but rather to other considerations incidentally associated with clan membership such as control over land or resources. Nevertheless, in the present case there has been a failure to address this matter.

42 In our view the statements made in Adan travel beyond the requirements of the Convention by imposing additional or differential requirements where the civil war in question is based on racial or clan grounds and not grounds such as a struggle for power or dominance, the acquisition of territory, the appropriation of property or the acquisition of access to strategic resources or facilities. In the latter examples examples where the civil war is not directed to racial persecution, it is necessary, of course, to establish the existence of selective harassment on a Convention ground, whereas in the former example such a ground is already present because the civil war is properly characterised as race based.

43 It is evident from the discussion in the RRT decision of the accepted evidence under the headings "Findings and Reasons", that the decision-maker focused on looking for something "over and above" the existence of a civil war and thereby failed to direct his attention to the question whether the civil war itself was actuated by, or pursued for, a Convention reason. The approach taken was that everyone in a country engaged in civil war is at risk of injury and that it is necessary to find something "more" to establish refugee status. However, as discussed above, the existence of the war itself may be sufficient if, for example, it can be said to be aimed at wiping out an opposing clan. In such a case all members of the clan may be at risk for a Convention reason and are therefore within the definition. This situation may be rare but nevertheless such wars do occur. Two recent examples are the civil wars in Rwanda and earlier the civil war in Cambodia. Where a war is truly characterised as being clan based, then in our view the Convention requires that considerations must be given to the question whether the reasons for the war are to harm on the basis of race or clan or whether the struggle is in substance directed to control of resources or to the assertion of dominance over territory. The failure to look to the reasons for the war and to demand something "over and above" the existence of a state of war is a source of error because it eliminates a critical step in the process, namely analysis of the objective and conduct of the war. By applying the gloss on the Convention set out in Adan's case the decision-maker in the present matter has fallen into error. We reach this view giving full weight to the warning of the High Court that an unduly rigorous approach must not be taken on judicial review to a decision of an administrative tribunal.

Revenge

44 Fear of revenge, without more, will normally not be sufficient to amount to persecution for a Convention reason. For example, a fear of revenge for the killing of a member of another group will usually not be sufficient unless it can be shown that the retaliation is linked with a racial, religious or other Convention reason. Of course, if it can be shown to be related to such a purpose then the fear of revenge may well come within the definition. But that is not this case. The evidence which the RRT accepted was that the appellant's father was involved in a leadership or land struggle involving the Darod sub-clans and as a result was killed and the applicant was injured. The RRT finding was that he claimed a fear of returning to Somalia because of the possibility of revenge from the other Darod sub-clans. During the hearing of the appeal we were handed part of the transcript before the RRT. This confirms that the relevant conflict was between the father of the applicant and other elders of the Ogaden clan about leadership, and that his father was targeted because he disagreed on the question whether the Ogaden should fight another clan, the Mujutin. The respondent also said in evidence that the particular interest in his sub-clan, the Waiten, on the part of the alleged persecutors, was to be explained in relation to a land conflict.

45 There was evidence before the RRT that the "revenge" of which the applicant speaks arose out of the killings which occurred at or after the time his father was killed. The fear which he says he holds is based on and arises as a consequence of his kinship to his deceased father.

46 On this material, in our view, it was open to the RRT to conclude that the fears arising from the death of his father were leadership and land related, rather than for a Convention reason. The reference to Magyari v Minister for Immigration and Multicultural Affairs [1997] FCA 417; (1997) 50 ALD 341 does not support a conclusion that there was any error of law in the analysis of the evidence on this submission. That decision simply provides a specific and clear example of non-Convention related revenge.

Non-combatant

47 The respondent submitted that the RRT failed to appreciate the distinction between a non-combatant in a country undergoing civil or clan warfare having been selected for injury on the ground of clan membership, as compared with a person being caught up indiscriminately in violence surrounding civil or clan warfare.

48 We do not accept this submission. The issue is not whether, in the context of clan or clan related or civil war, an individual or group is a combatant or a non-combatant but rather whether he or she or the group are exposed to the risk of selective harm for a Convention reason. Nothing of relevance flows from the characterisation of a person as being a combatant or non-combatant without more. It is, of course, relevant whether the person is targeted or is a non-group member who is exposed to collateral harm.

49 Of course, where a person who is not targeted for a Convention reason, is exposed to danger because a civil or clan war is taking place, the fear of harm, which that person may entertain, is not within the Convention. For example, the authorities indicate that a non-warring group which fears collateral harm in a civil war based on hostilities between two other groups could not claim to be within the Convention because the group is not targeted for racial or other Convention reasons, although, of course, the fear of such incidental harm may be accepted as a subjective fear. However, that does not mean that there is any relevant distinction to be drawn between combatants and non-combatants.

Relocation

50 The position taken by the Minister on this question is that if the matter is to be remitted to the RRT on other grounds, then the Minister will not seek to resist remission of this question for further consideration on the basis of findings with respect to the relocation issue. Accordingly, this question should be reconsidered before the RRT.

Conclusions

51 For the reasons given the appeal is dismissed with costs.

52 The matter is remitted to the RRT for further reconsideration in accordance with law.

I certify that the preceding fifty-two

(52) paragraphs are a true copy of the

Reasons for Judgment herein of the Court.

Associate:

Dated: 26 March 1999

Counsel for the Applicant:	J Basten QC F Backman
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	M Smith C Colborne
Solicitor for the Respondent:	Kessels and Associates
Date of Hearing:	2 March 1999
Date of Judgment:	26 March 1999