Hagi-Mohamed v Minister for Immigration & Multicultural Affairs [2001] FCA 41 (5 February 2001)

Last Updated: 6 February 2001

FEDERAL COURT OF AUSTRALIA

Hagi-Mohamed v Minister for Immigration & Multicultural Affairs

[2001] FCA 41

MIGRATION - review of decision of Refugee Review Tribunal - whether applicant had a well-founded fear of persecution for reasons of his membership of a particular social group - where applicant claimed to fear persecution in Somalia for reasons of his clan affiliations - whether Tribunal erred in considering the motivation of the alleged persecutors and whether the civil war in Somalia had a differential impact on the applicant for reasons of his clan membership

Migration Act 1958 (Cth), s 476(1)(e)

Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55, considered

Abdalla v Minister for Immigration and Multicultural Affairs [1998] FCA 1017, referred to

AHMED-DAHIR HAGI-MOHAMED v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 243 of 1999

STONE J

5 FEBRUARY 2001

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 243 OF 1999

BETWEEN:	AHMED-DAHIR HAGI-MOHAMED APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	5 FEBRUARY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

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	N 243 OF 1999

BETWEEN:	AHMED-DAHIR HAGI-MOHAMED APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	STONE J
DATE:	5 FEBRUARY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1 On 15 November 1995, the applicant, Mr Ahmed-Dahir Hagi-Mohamed, a citizen of Somalia, applied to the respondent ("the Minister") for a protection visa to remain in Australia. The Minister's delegate ("Delegate") refused his application on 30 June 1997. The Refugee Review Tribunal ("Tribunal") upheld this refusal on 25 September 1998. Mr Hagi-Mohamed now applies under s 476(1) of the Migration Act 1958 (Cth) ("the Act") for review of the Tribunal's decision.

2 Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant is 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 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 TRIBUNAL'S DECISION

3 Having considered Mr Hagi-Mohamed's claims and evidence, the Tribunal decided that he was not entitled to protection under the Convention. The Tribunal rejected the applicant's claim to have a well-founded fear of being persecuted in Somalia by reason of his membership of, or affiliation with, certain clans or by reason of his being a homosexual and therefore a member of that social group. Mr Hagi-Mohamed has not sought to challenge the Tribunal's finding in relation to the ground of his homosexuality but did challenge the finding in so far as it related to his clan membership and affiliation.

4 Mr Hagi-Mohamed was born in Mogadishu, Somalia on 12 February 1965. He belongs to the Gibilade subclan of the Geledi clan. His mother belonged to the Hawadle subclan of the Hawiye clan. The Tribunal accepted that the Geledi clan lived predominantly in the Afgooye area in northern Mogadishu and that the Hawadle lived predominantly in the area of Beledweyne in the region of Hiran.

5 The Tribunal accepted independent evidence to the effect that Somalia consists of a confederacy of clan families and that each level of segmentation, comprising clans, subclans and subsubclans, defines a person's rights and obligations as well as his or her standing in relation to others. The Tribunal therefore found that the Geledi clan and the Hawadle subclan were both particular social groups for the purposes of the Convention.

6 The Tribunal accepted the evidence given by Mr Hagi-Mohamed regarding the war in Somalia and the consequent displacement and killings of members of his family. In particular, it accepted that these events and the consequent harm suffered by Mr Hagi-Mohamed could be of sufficient severity as to amount to persecution within the meaning of the Convention.

7 However, the Tribunal rejected the Applicant's claim that the motivation behind the persecution related to his membership of the Geledi clan. The Tribunal found that the motivation of General Aideed's militia was not to eliminate the Geledi clan but to take control of their land and resources. The Tribunal accordingly held that Mr Hagi-Mohamed was at risk, not because General Aideed's militia had any objection to the Geledi clan per se, but because they wished to appropriate the resources of the Geledi clan.

8 Mr Hagi-Mohamed also claimed that he was at risk of persecution because of his association with the Hawadle, his mother's subclan. He claimed that General Aideed declared the Hawadle to be an enemy in 1994 and that there was continuing fighting in Mogadishu. However, the Tribunal accepted independent evidence that some Hawadle lived in the north part of Mogadishu which is controlled by Ali Mahdi with whom the Hawadle had formed an alliance. The Tribunal also accepted independent evidence to the effect that the degree of mistreatment in an area depends on the nature of that person's clan relationship with the ruling warlord's group. The Tribunal concluded that Mr Hagi-Mohamed would not be persecuted in the north part of Mogadishu. The Tribunal also accepted evidence that the Hawadle controlled Beledweyne and, noting Mr Hagi-Mohamed's evidence that he had lived in both Mogadishu and Beledweyne, concluded that Mr Hagi-Mohamed could also live in Beledweyne.

GROUNDS FOR APPLICATION

9 The only ground in the application is that the Tribunal incorrectly interpreted the applicable law under section 476(1)(e) of the Act. The particulars given are:

1.1 The Tribunal misdirected itself when it said that the question was "whether or not there is evidence of a differential impact for reasons of clan membership in a particular case" in this case, membership of the Geledi clan, or the Hawadle clan. The question was simply whether he would be at risk of harm for either of those reasons.

1.2 The Tribunal addressed the wrong question in finding that General Aideed's militia was not attempting "to eliminate the Geledi clan but to take control of their land and resources". The Tribunal was embarking on an impermissible line of inquiry into the motivations behind the conflict, rather than focussing on the circumstances of the applicant in particular. [Emphasis in original]

1.3 The Tribunal did not understand the scope of the question it had to address, in relation to the applicant's fear of persecution as someone affiliated with various clans and subclans, when it found that the applicant could reasonably be expected to relocate to Beledweyne.

CONSIDERATION

10 The Tribunal's task was to determine whether the applicant, in the context of his previous experiences and of the situation which the Tribunal found to exist in Somalia, has a well-founded fear of persecution for a Convention reason should he be required to return to Somalia. In approaching this task, it is essential that the Tribunal concentrate on interpreting the language of the Convention and not be distracted by secondary tests or concepts which may lead the decision-maker into legal error; Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55 ("Ibrahim"). Ibrahim is central to the applicant's challenge to the Tribunal's decision and therefore it is necessary to examine it in some detail.

11 The case concerned a Somali national's unsuccessful claim to refugee status. The Tribunal's decision confirming the Delegate's refusal was challenged on the ground that the Tribunal erred in its interpretation of the term "persecution" in the Convention definition. This criticism had been accepted by the Full Federal Court but was rejected by a majority in the High Court. In allowing the appeal from the Full Court, Gummow J stated at [146] - [147] that,

"It does not advance the inquiry called for by the Convention definition to ask of a particular individual whether that person was to be differentiated from other members of the general population who were all at risk so long as the "civil war" continued. Nor does it assist to require the administrative decision-maker (here, the Tribunal) to determine the "objectives", as a matter of "reality" of "the war"... The dynamics of communal violence, civil conflict and disorder may obscure the boundaries between combat, crime and persecution. The reasons for a particular conflict may be virtually unfathomable.

The notions of "civil war", "differential operation" and "object" or "motivation" of that "civil war" are distractions from applying the text of the Convention definition."

12 Gleeson CJ agreed with Gummow J's reasons, but commented at [5] that,

"Depending upon the factual issues raised for examination, it may be helpful to consider whether conduct of a certain kind is "systematic", or whether treatment of a certain kind is discriminatory, or "differential". In the end, however, it is the language of the Convention which has to be applied."

13 Hayne J also agreed with Gummow J's reasons and commented at [205] that,

"Expressions like "civil war" or "differential opinion" are not used in the Convention or the Protocol. It would obviously be wrong to attempt to supplant the Convention criteria with criteria derived from some conception of civil war as an apt description of events in the country of nationality of the applicant for a protection visa. And although the expression "differential opinion" may evoke some elements of the concept of "persecution", it too cannot supplant the criteria adopted in the Convention. Terms like "civil war" and "differential operation" may be useful in explaining why, in a particular set of circumstances, a conclusion is reached about whether a person has a well-founded fear of persecution for a Convention reason but such expressions cannot, and must not, be taken to state any general principle the content of which differs from what is to be found in the Convention and the Protocol."

14 As Mr Jackson, counsel for the applicant, pointed out, although McHugh J dissented from the conclusions of the majority, his Honour also rejected the "differential impact" test stating at [70] that this test "finds no support in the text of the Convention and it should not be followed in Australia." McHugh J also agreed with other members of the Court that the Tribunal was not required to search for the "motivation" of the war but, importantly, pointed out, at [102] that the Convention requires that the Tribunal consider the motivation for the allegedly persecutory conduct. His Honour stated at [102] that:

"among the questions which the Tribunal should have asked were (a) what harm does the applicant fear on his return to Somalia? (b) is that fear well-founded? (c) why will the applicant be subjected to that harm? and (d) if the answer to (c) is "because of his membership of a particular social group", would the harm constitute persecution for the purpose of the Convention?"

[Emphasis in original]

15 McHugh J's position is not inconsistent with that of Gummow J and the other members of the Court who agreed with Gummow J's reasons. The extract from the judgment of Gummow J which I have quoted above shows that his Honour's criticism of an inquiry into motivation was directed to the wider issue of motivation for the "civil war" and not to the question of motivation for the alleged persecutory conduct. Indeed, it is difficult to see how a decision-maker could determine that an applicant had a fear of being persecuted for a Convention reason without considering the motivation for the alleged persecutory conduct.

16 Mr Jackson submitted that the Tribunal had made an error similar to that considered in Ibrahim in that:

(a) it had assumed that the applicant was required to prove that the situation in Somalia had a differential impact on him for reasons of his Geledi or Hawadle clan affiliation;

(b) it had focused on the motivation for the experiences suffered by the applicant rather than on the nexus between the alleged persecutors' perception of the applicant's clan affiliation and the harm inflicted.

17 In support of his claim, Mr Jackson referred to a number of statements by Tribunal. He referred to the Tribunal's reference to the decision of the full Federal Court in Abdalla v Minister for Immigration & Multicultural Affairs [1998] FCA 1017 ("Abdalla"). The Tribunal quoted the Court's comment that "[t]he decision in respect of whether recurring communal violence amounts to `persecution' depends on whether there is a purpose behind the recurring pattern which is referrable to a Convention ground". It concluded that,

"the motivation of General Aideed's militia was not to eliminate the Geledi clan but to take control of their land and resources. I accept the independent evidence set out in this decision which states that the Geledi `may be safe from bullets, but their harvest may not be safe from roving gangs'. This independent evidence is consistent with the applicant's own evidence to the Tribunal and negates any suggestion that it is for reasons of their membership of a particular social group, namely their own clan, that the Geledi are at risk of harm. I find that the reason for the harm suffered by the Geledi was their resources desired by the militias. The clan identity of the Geledi was not a motivating factor to General Aideed's militia."

18 Having made this finding the Tribunal again referred to Abdalla and to the Court's statement in that case of the question to be investigated. It is at this point that the Tribunal made the statement quoted in paragraph 1.1 of the particulars. The statement must be considered in context to understand fully the point that the Tribunal was making. The Tribunal said:

"The Court defines this question with reference to whether or not there is evidence of a differential impact for reasons of clan membership in a particular case. There is no evidence before me that the applicant will be at an increased risk of harm in Somalia for reasons of his Geledi clan membership now or in the reasonably forseeable future."

19 Mr Williams, counsel for the respondent, submitted that the Tribunal's statement is no more than a statement that the applicant does not face a real chance of persecution by reason of his clan membership. He submitted that the Tribunal neither articulated nor applied a test requiring a risk over and above ordinary risks of clan warfare. I agree with this interpretation. In my view, the Tribunal correctly directed itself when it stated that its task was to consider "whether the applicant is at risk of persecution in Somalia because of his clan membership". Having posed the correct question, the Tribunal then reviewed a number of decisions of this Court and of the High Court in a manner that indicated the Tribunal correctly understood both the Convention definition and the way in which it should be applied.

20 Mr Jackson also argued that the Tribunal had not methodically gone through the applicant's claims which really related to his affiliation to his mother's subclan, the Hawadle. In response, Mr Williams undertook a detailed review of the applicant's statutory declaration made in support of his application and the Tribunal's reasons. It is not necessary to go over all the points that Mr Williams made. However, this review did show that the applicant's own account of relevant events included a statements that the upheaval that followed conflict within the Hawiye involved indiscriminate killings. It also showed that the applicant had claimed that, although General Aideed resented the Hawadle withdrawing its support, he was looting all prosperous cities and not just those of the Hawadle.

21 Mr Jackson also submitted that the Tribunal's finding that the motivation of General Aideed's militia was not to eliminate the Geledi clan but to take control of their land and resources runs perilously close to the error identified in Ibrahim of inquiring into the motivation of those temporarily in the ascendancy. He relied on Gleeson CJ's comment at [7] that,

"As the clans and subclans in Somalia struggle for power and resources, it is inevitable that from time to time, and from place to place, some will be in the ascendancy and others will be vulnerable. In such a situation, an inquiry as to whether the motivation of those temporarily in the ascendancy is to harm their enemies rather than to secure the benefits of domination is unlikely to be fruitful."

22 However, it must be remembered that although a majority in Ibrahim states there is no need to show that the alleged persecutory conduct has a differential impact on the applicant or to establish the motivation for a civil war, reference to a differential impact or to motivation does not, of itself, create error. The Tribunal falls into error only if the use of these terms distracts it from its task of applying the words of the Convention. I find no indication that the Tribunal in this case was so distracted.

23 In paragraph 1.3 of the particulars, it was contended that when the Tribunal found that the applicant could reasonably be expected to relocate to Beledweyne, it did not understand the scope of the question it had to address. Mr Jackson criticised the Tribunal's cursory treatment of this issue and argued that it did not involve any serious attempt to grapple with the applicant's fear of persecution as someone affiliated with various clans and subclans. In my view, this criticism is not justified. The Tribunal had already found that the treatment suffered by the applicant was not by reason of his Geledi clan membership but because the aggressors sought to control resources. It also found on the basis of the independent evidence that the applicant would not be at increased risk of harm by reason of his affiliation with his mother's subclan, the Hawadle. The finding that the applicant could reasonably be expected to live in north Mogadishu or Beledweyne was based both on independent evidence and the applicant's evidence that he has lived in both Mogadishu and Beledweyne. These findings were open to the Tribunal and are not reviewable by this Court.

24 For the above reasons, I find that the Tribunal's reasons do not contain any error of law and therefore the application must be dismissed with costs.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated: 5 February 2001

Counsel for the Applicant:	Mr C Jackson
Counsel for the Respondent:	Mr N J Williams
	with Mr P G Bolster
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 October 2000, 3 November 2000
Date of Judgment:	5 February 2001