1708746 (Refugee)

1708746 (Refugee) [2022] AATA 2396 (14 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Mahalingam Sutharshan (MARN: 0961664)
CASE NUMBER:  1708746
COUNTRY OF REFERENCE:                   Somalia
MEMBER:Anne Grant
DATE:14 June 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 14 June 2022 at 10:13am
CATCHWORDS
REFUGEE – protection visa – Somalia – ethnicity – member of minority tribes – discrimination, killings of family members and internal displacement – accepted as refugee in third country – arrived in Australia on partner visa – tribal discrimination from wife’s family and community – relationship ceased and new relationship – country information – status of minority tribes – fragile state – state protection not available and relocation not reasonable – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(a), 65, 91R(1)(b)(c), 438
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Somalia, applied for the visa on 1 October 2013 and the delegate refused to grant the visa on 5 April 2017.
The applicant appeared before the Tribunal on 8 February 2022 and 3 March 2022 to give evidence and present arguments by video conference using the Microsoft Teams application. The first hearing was adjourned part heard because the applicant lost power at his home and the connection became unreliable. The resumed hearing on 3 March 2022 proceeded without incident. The Tribunal hearings were conducted with the assistance of an interpreter in the Somali and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearings.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly 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 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.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The issue in this case is whether the applicant is a refugee and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being returned to Somalia, there is a real risk that he will suffer significant harm.
The applicant’s written claims were contained in a statutory declaration lodged with his application for protection. In summary, the applicant claimed that:
·     He was born in Mogadishu, in Somalia.   He has [siblings]. His mother is from the Yibir tribe and his father from the Madhiban (or Midgan) tribe.
·     When the civil war broke out, the family moved to [Town 1]. The applicant was very young. After a while they moved back to Mogadishu but their home and business had been taken away by members of the Hawiye tribe.
·     They became homeless, and were used for slaves by the tribes who controlled Mogadishu. The Madhiban are a small minority in Somalia and face discrimination because of their tribe. They face consistent abuse and human rights violations. They are not allowed to own land or businesses and if they manage to, the controlling tribes believe they have the right to take it away. The Yibir tribe is persecuted even more.
·     Before the civil war, they had protection under the Siad Barre government and were able to own land and make a living. There was still discrimination, and they were not allowed to marry or mix up with other Somali tribes. After the civil war, it became more dangerous and his family were abused by the tribes living in Mogadishu.
·     The applicant witnessed his mother and sister being raped and tortured. He was forced to work hard labour alongside his father and brothers. They lived without enough food and were subject to being whipped if they complained.
·     One day, a group of Hawiye took his father, an older brother and uncles away. They never saw them again. The applicant and his brothers were hidden under blankets and so they were not taken as well. He was very young at that time. When the civil war worsened, the remaining members of his family fled from Mogadishu to [City].
·     In around 2005, his mother sent him to his aunt in [Country 1]. He arrived there [in] January 2005. He stayed there until June 2007 when he went back to Somalia to find his family, and bring them to [Country 1]. His aunt gave him the money to go back and find them. In [City], he was told they had gone back to Mogadishu. He went to look for them but was captured by Al Shabaab.
·     He was tortured by Al Shabaab who found out he was a Yibir. They suspected he was a spy for other militant groups. After five months, the prisoners in the Al Shabaab prison broke out due to an attack by another militant group. He got help and went back to [Country 1]. His aunt said there were too many Al Shabaab sympathisers in the area and that it was not safe for the applicant to stay there. She helped him to get to [Country 2] where he could live safely, make a living and support his family.   He was only in [Country 1] for 13 days that time, before he left again for [Country 2] on 29 November 2007. He passed through [Country 3] and [Country 4]. He arrived in [Country 2] [in] January 2008. He hid his identity and tribal name while he was travelling.
·     [In] January 2008, he was accepted as a refugee in [Country 2]. He worked [to] support himself and send money back to his family. He met his wife through relatives and they had a one year distance relationship via the internet. She then came to [Country 2], where they married. She then sponsored the applicant to Australia on a 461 visa. He arrived in Australia [in] November 2012.
·     The applicant thought that tribal discrimination would be left behind in Africa. However, after the first two good months, his wife faced a lot of pressure in her family and the community and they eventually found out that he was Yibir and Midgan. Their relationship was torn apart due to the discrimination within the Somali culture. Their marriage is forbidden and so she decided to kick him out of the house. He asked why she was rejecting him when she had known about his Midgan tribe. She said that he hadn’t told her that his ancestors were Jewish. He feels isolated because many Australian Somalians can’t even accept him for who he is.
·     If he returns to Somalia he fears that he will be again subjected to torture and persecution and would not be able to relocate safely within Somalia. He will be targeted by Islamic fundamentalists and other Arab tribal groups who have even more influence and networks in Somalia. Al Shabaab is strongly anti-Jewish and the Yibir have been targeted despite being Muslim themselves.
·     Government protection is not available anywhere in Somalia.
·     He cannot return to [Country 2] because his refugee status there was a temporary residence permit which is cancelled. He can’t go to [Country 5] because he is no longer in a relationship with his wife.
The Tribunal has listened to the interview between the delegate and the applicant. Significant concerns are held about the manner in which that interview proceeded. The delegate frequently challenged the interpreter, spoke over both the interpreter and the applicant, and also often interrupted the applicant’s evidence to dispute what she claimed was the plausibility of that evidence (even without hearing the whole of the applicant’s interpreted response.) So great are the Tribunal’s concerns about the integrity of the evidence gathered in that interview that it considers that the applicant was not actually given an opportunity to put his claims forward in a coherent or fair manner or to clarify aspects of his claims which the delegate believed to be inconsistent with each other or untruthful; and also that it would be manifestly unfair to consider answers given to the delegate as being inconsistent with the applicant’s written or later claims and evidence. At one point the applicant is accused of giving ‘many different stories’ and when he asks if he can clarify his evidence, the delegate tells him that he cannot and says that she will put ‘it all’ to him. The delegate then goes on to discuss the applicant’s time in [Country 2] and a notation on a departmental or consular post which says he had been in [Country 2] for 10 years, claiming that this was information that he himself had provided. (Whilst one notation does refer to him being in [Country 2] for 10 years, it is not clear where this information came from and could just as easily have been a miscalculation by the noting officer. Also, other notations on different posts correctly describe the applicant as arriving there in 2008; but this was not given any consideration by the delegate.) The confrontational approach taken by the delegate on this single point is difficult to understand given that the applicant’s status and time in [Country 2] was not reasonably in issue given the department’s own findings on this issue and on his identity and nationality.
In spite of the concerns held over the departmental interview, it must be noted that the applicant overall gave evidence to the delegate which was generally consistent with his written claims. He confirmed his mother and his father’s tribes (Yibir and Madhiban respectively). He described the family being displaced during and after the civil war. The applicant confirmed that his family originally lived in Mogadishu. He confirmed that his family moved away after his father was killed in 1990 by members of the Hawiye clan. He confirmed that his mother had a small stall in the street trying to make enough money to support the family. The family had a small [shop] for about two years but then it was taken away from them. His father had worked as [an Occupation] before he was killed. He confirmed that his mother and sister were raped by members of the Hawiye tribe.
The applicant also told the delegate that his mother and brother are living in [Country 1] now where they arrived after he had already left for [Country 2]. He repeated his claims that he is from lower tribes and will face discrimination and violence if he returns to Somalia and harm from Al Shabaab who will persecute him because of his Yibir heritage.
At hearing, the applicant gave the following evidence:
·He was born in Mogadishu in [Year], in an area called [Area]. He has [siblings]. Only one brother still lives in Somalia, and he lives in Mogadishu with his wife and children. The applicant sends him money because life is hard for him and there is not much work available to him. His brother has [an illness] and is very unwell. The applicant described his brother in Somalia as vulnerable, and as living without any protection from the tribes who would harm him. Another of his brothers lives in [Country 1] with his mother in a refugee camp. They have lived there since 2007. His other siblings are living overseas, in [Country 6] and [Country 7].
·His father was from the Madhiban Tribe and his mother from the Yibir Tribe. Both are persecuted African tribes. In Somalia, tribal identity is inherited from the patriarchal side so the applicant confirmed that he is considered a Madhiban. However, he claimed that this doesn’t mean that his Yibir heritage is ignored. The Yibir are the most oppressed and downtrodden tribe in Somalia. Both of his Tribal inheritances are tribes that are oppressed and faced injustice in Somalia. Other clans or tribes just take what they want from them, and use them as slaves.
·His father worked as [an Occupation] before the civil war. His father often claimed to be from a different, more ‘acceptable’ tribe, like the Maharan, in order to ensure he wasn’t forced to only do work that was associated with the Madhiban people, like menial labour or metal work. But even though the applicant’s father claimed to be from a higher tribe, his true tribal background became known and his father was still taken with his uncle and one of his brothers and killed when the applicant was only [a child]. This was during the civil war in Somalia. His father was not a member of any militia or armed force. He was just from a minority tribe and targeted for that reason. At various times his father had also worked with a small barrow, transporting things for others, and also sold items on the street. These are the type of lowly paid jobs that Madhiban usually do, as well as metal working. Other tribes just stole his business from him.
·After his father was killed, the family fled from Mogadishu to [Town 1]. After a period there, they moved back to Mogadishu but they couldn’t survive, so they went to [City]. Then they moved back again to Mogadishu. In Mogadishu, the applicant saw members of the Hawiye tribe rape both his mother and his sister. In 2005 things were very bad and his mother told him to leave. She herself left not long afterwards and slowly made her way through Somalia to [Country 1] because the family could not be safe in Mogadishu where the Hawiye clan was in control. She arrived in [Country 1] in 2007, after the applicant had already left for [Country 2].
·In 2005, his brother’s son, aged [age] years, was killed by Al Shabaab. At the time, he was studying at a religious college. He claimed that Al Shabaab members met with his nephew, and promised to give him some cash. They took him away, but when he found out he was to be forcibly recruited, he resisted and they murdered him. It wasn’t only him; this was happening to other young boys as well and this practice of recruiting them by promising money was well known. The applicant described Al Shabaab as terrorists. His nephew was taken by Al Shabaab around the same time that the applicant was fleeing from Mogadishu to [Country 1] for the first time. And by the time Al Shabaab killed his nephew, the applicant was in [Country 1], in a refugee camp ([Name]) with his Aunt.
·When the applicant went back to Somalia to look for his family in 2007, it was a very tough trip. From [Country 1], he hired a ride with money his Aunt gave him. This dropped him somewhere in Somalia, he can’t really remember the exact location, and he then walked to [Town 2]. From [Town 2] he met someone and told them his story. They helped him get to [City]. There was no news of his family there. Then from there, he got a lift from someone who understood him, towards Mogadishu, but before he got to his destination, he met with Al Shabaab.
·The Al Shabaab men threatened to kill him if he didn’t join them as a fighter. They said the alternative was that he was a spy sent as agent for someone. They questioned him about being a spy and tortured him. Sometimes they would hit him with an iron bar on the head, sometimes they banged him up against the wall. One time they locked him up for days with no food. They said he wasn’t going free until he gave them the facts. They demanded he tell them who he was spying for and his clan background. He told them about his tribes, but this didn’t satisfy them. When they found out about his Yibir mother, they seemed to reach a conclusion that he was definitely a spy. But before they could kill him, they had a fight amongst themselves. This gave him and two other prisoners a chance to escape. He had already discussed the situation with these other prisoners, and they had agreed that the terrorists were planning to kill them, and so they needed to run at the first opportunity. So, when the Al Shabaab fighters started fighting amongst each other, they grabbed the opportunity and fled together on foot. The town they first got to was near [Town 3]. The applicant then went back to [City], but there was still no sign of his family and he couldn’t find anyone he knew there. He walked back to [Town 2], asking for food and somewhere to sleep along the way, when he could. He was begging. It took him about a month to get to [Town 2]. He stayed there for some time and eventually met a person who he told his story and how he had suffered. That person helped to get him to the refugee camp in [Country 1].
·When he got to the refugee camp, his Aunt told him it was not safe for him there and told him to get out and establish himself. She gave him some money and he travelled to [Country 2], arriving there in early 2008. He applied for refugee status as soon as he arrived. He met someone in [Country 1] from Somalia and that person had a shop and needed some help. The applicant worked with him, selling [products]. He used to sleep in the shop itself. Some guys from the Somali community in [Country 2] introduced him to a woman, initially via telephone. At that time, she was in Somalia but she lived in [Country 5]. The applicant denied that the relationship was not genuine. He said that his intention was to have a genuine relationship. She was from the Majak clan, a dominant African clan. His friends in [Country 2] thought that the applicant was from another dominant clan (the Maharan clan.) This was the upper clan his father used to claim to be from, and so the applicant had continued using it in [Country 2]. His friends asked if he was interested in being introduced to someone and he was, so they made the connection. He and this woman struck up a relationship by phone and messages.
·The applicant said that his wife only came to know his true tribal heritage after they arrived in Australia. In Somalia and also in [Country 2], because of his Yibir and Madhiban heritage, if questioned about his tribe, he would say he was from the Maharan or some other upper clan. There is a risk in doing this because if that tribe were to find out you are wrongly claiming to be from their clan, they will attack you. But if you tell them the truth of being from a lower clan, other Somali people will have nothing to do with you.
·The applicant was asked how the different tribes know about their respective heritage when they meet. He responded that in Somalia they have been living side by side for a long time, and so they know ‘where everyone fits’. The applicant freely gave the alternative names used to describe his tribes, such as Yahar and Yibir, Madhiban, Midgan and Gaboye. Some (if not most) of these words have a disparaging meaning.
·The applicant claimed that if he returns to Somalia, he will face ongoing threats of harm (being killed or tortured) by Al Shabaab. They are so much stronger now than they were before. He also fears that he will face ongoing persecution (being killed or enslaved, degraded and tortured) by the dominant Hawiye clan who killed his father. They are still there. He will be unable to survive, or to earn a living.

The applicant provided a written submission to the Tribunal. In that submission, his representative put the following (in summary):
·Al Shabaab has become more powerful in Somalia than when the applicant was in Somalia, and target people who oppose them. The submission provided supporting news report articles about: a suicide bombing in Mogadishu (18 January 2022), a bomb blast in a School which killed at least 8 (26 November 2021), an Al Shabaab attack which killed 30 on 28 June 2021 in Galmadug, a report of Al Shabaab’s growing influence in Somalia (19 January 2022), an attack in a town near the capital by Al Shabaab which killed 7 (30 December 2021) and ‘Terrorism in Somalia – Al Shabaab continues deadly attacks’ as reported by the 2020 Global Terrorism Index, which suggests that Al Shabaab was responsible for 88% of all deaths in 2019.
The Departmental file contains a certificate under s.438 claiming that a large number of documents in the file are subject to non disclosure on the basis that they are ‘internal working documents’ of the Department. The Tribunal noted (and informed the applicant and his representative at hearing) that the documents included multiple copies of repeated requests for an identity assessment for the applicant which were finally resolved by the following advice on 1 February 2017:
In our view an identity assessment may not be required for this client due to the following:
1. The client's personal identity and nationality are not in dispute. He has consistently provided the
same name and date of birth, and has also provided a Somalian passport in the same name while in
[Country 2] ([named] post).
2. There is no information before the department to suggest he has used or is known by an alternate
identity.
3. His nationality is not in dispute. All information available (including the passport referred to above)
denotes the client as a Somalian.
4. His Somalian passport was accepted as genuine by both the [Country 2] authorities, and the
departmental officers for DIBP at [City, Country 2] post prior to his departure en-route to Australia on a
DFTA. In our view his statements about the passport being "fraudulent" are designed to distance
himself from the documents legitimacy.
5. His residence in different countries is inconsistent with regards to dates and locations, but that this
does not in itself call into question his identity and nationality. The countries he has mentioned both
have substantial Somali populations ([Country 2] and [Country 1]).
6. His tribal affiliation and religion are in dispute, as claimed in his PV application, and are very
questionable. However these are matters most appropriately dealt with by the PV case officer, as
his tribal affiliation or religion will not alter or impact on his nationality or identity. We cannot
determine if the client was questioned intensely about his claimed religion and tribe, but would recommend this action if doubts remain.
The applicant had authorised the Department to make enquiries of the [Country 2], [Country 1] and [Country 8] governments about his possible nationality. The delegate’s ‘briefing notes’ which are repeated multiple times in the documents covered by the certificate (as she sent multiple emails following up on the request) frame the applicant as one who lacks credibility and who has provided inconsistent evidence about his personal history. Her concerns (in summary) are about the applicant’s actual nationality, his travel from and to Somalia, his time in [Country 2], his tribal heritage and his relationship with his (first) wife. As noted above, she ventilated these concerns at the time she interviewed the applicant. Having listened to the interview, the Tribunal does not consider that the applicant was given a reasonable opportunity to outline his personal history, to present his claims or to explain how and why he made some errors in or was unable to be specific about some of the dates in his written claims.
The Tribunal considers that the information covered by the certificate (apart from that noted and quoted above in paragraph 17) has limited relevance to and should be given no weight in the review because the opinions and concerns of the delegate outlined in the file notations are restated in her decision statement. No weight will be given to the information and ‘concerns’ raised by the delegate in her multiple emails related to the identity assessment. However, the Tribunal considers that the information in the final assessment, as noted above, is potentially favourable to the applicant because it effectively confirms that the delegate’s concerns about his nationality and his stay in [Country 2] were unfounded and then invites her to question him closely about his claims and make her own assessment of those when she has done so.
The applicant was informed at hearing of the existence of the certificate and the proposed approach of the Tribunal to the information covered by the certificate. In light of this indication, the applicant’s representative did not wish to make submissions on the validity or otherwise of the certificate. The Tribunal determined that the certificate was valid and that the content of the information covered by the certificate would not be disclosed to the applicant, (due to having no relevance or weight in the consideration of this review) apart from the content of the final identify determination, as included above.
Also included within the documents claimed to be subject to non-disclosure is an allegation made on 25 July 2016 that the applicant was not genuinely separated from his first wife at the time he applied for protection, and also that he was not truthful about his tribal background.
Even if the applicant was not formally separated and living separately from his wife at the time he lodged his application for protection, it is noted that the marriage is clearly over now and the applicant is in a different relationship. The author does not provide any information about his personal history in Somalia which forms the subject of the claims before the Tribunal. The Tribunal considers that it is plausible that the applicant claimed that the marriage ended earlier than it actually did, but this does not rule out a volatile and unhappy relationship prior to their final separation, including reconciliation and separations. It is also plausible that a major contributing factor to the ending of the marriage as claimed by the applicant was the disapproval of his ex-wife’s family and his ex-wife herself of his Madhiban and Yibir heritage and a belief that he had misrepresented that heritage. Overall, the Tribunal places no weight on the allegations contained in the dob-in in assessing the applicant’s claims as they principally relate to the period after he arrived in Australia.
In the interview with the delegate, the means by which the applicant met and married his wife was raised with the applicant and it was put to him that if he was from the lower clans that he claims and his wife from a dominant claim, that the marriage would not be allowed by her family. The applicant was informed that the delegate believed (based on country information) that ‘investigations’ would be performed before the marriage could take place between the families, and that his true clan would then be discovered, and the marriage could never have taken place. Information from a different source, not before the Tribunal, was put to the applicant that in the first visa application, he and his wife had claimed that they had been introduced by family, formed a relationship over the internet and telephone and that they were in fact distantly related. The applicant’s evidence about this suggested that the people who introduced him were not family but were from the Maharan clan and his wife’s clan and thought that he was from the Maharan clan. Further, he claimed that it was actually true that one of his relatives had married one of her relatives in the past, but that marriage was a love marriage. He claimed that before the revolution, such marriages did happen from time to time. The delegate did not accept this to be true.
As noted earlier in this decision, the conduct of the interview with the applicant was problematic, and this part of the interview was particularly so. The Tribunal doesn’t accept that the applicant’s evidence about family relationships with his wife is reliable, but is unable to place any weight on that as evidence of him being untruthful, because of the argumentative manner in which that evidence was obtained. The Tribunal prefers his evidence that they met through friends who thought he was from a dominant clan, that they formed a relationship and that they married without his wife being aware of his partial Yibir heritage. Whilst it appears that she became aware at some stage of his Madhiban clan heritage, the Tribunal accepts his evidence that it was his ‘Jewish heritage’ that she considered too shameful once she became aware of it, and which poisoned their marriage.
Country Information.
The most recent Country Information Report for Somalia is dated 20 June 2017. In that report, DFAT describes the recent history of the country. Following three presidents between 1960 and 1969 (including one who was assassinated) Mohamed Siad Barre’s military led socialist government took power in 1969. Opposition to Barre’s regime led to the Somali Civil War, when Barre was overthrown by revel forces in 1991. Sporadic conflict has continued ever since, exacerbated by the formation of Islamist terrorist group Al Shabaab in 2006. DFAT also notes that in addition to decades of sustained and widespread conflict and political instability, Somalia is prone to severe drought and floods which has worsened the effects of the long running humanitarian situation. The internally displaced population is around 1.1 million and over 300,000 Somali refugees live in the [Location] refugee camp in [Country 1].
DFAT also notes that Somali society operates through a clan system which has greater influence over politics and communal relations than ethnicity. Leadership, security, governance, the justice system and access to credit, jobs and resources all revolve around clan affiliations. The main clans include the ‘noble clans’ such as the Hawiye, the Darod and The Dir. Since independence in 1960, the Darod and Hawiye clans have dominated Somalia’s political leadership.
According to DFAT, Somalia is highly volatile and security incidents and crime are a common feature of everyday life. Somalia is ranked first of 178 countries on the 2016 Fragile States index (since this report was written, according to the 2021 index, Somalia is still ranked 2^ndof 179 countries[1].) At the time of the report, Somalia was noted to be seventh on the global terrorism index but the most recent index (2021) has Somalia third.[2]
[1][1] Country Dashboard | Fragile States Index
[2] Global Terrorism Index | Countries most impacted by terrorism (visionofhumanity.org)
According to DFAT, violence against women, including domestic violence, rape, sexual abuse, exploitation and trafficking is widespread throughout Somalia. Somalia is not a party to the UN Convention on the Elimination of Violence against Women. Women without family and clan connections are more vulnerable to gender-based violence and have less access to justice than women who come from majority clans. “In addition to generalised gender-based violence, women in Somalia face sexual abuse perpetrated by all actors in the conflict: Somali security forces, al-Shabaab, AMISOM troops, and within clan militias and communities. In 2014, Human Rights Watch (HRW) published two reports, ‘Here, Rape is Normal: A five-point plan to curtail sexual violence in Somalia’ and ‘The Power these men have over us: sexual exploitation and abuse by African Union Forces in Somalia.”[3]
[3] DFAT Country Information Report, Somalia (13 June 2017) at 3.24.
In relation to the issue of protection from discrimination on the basis of a person’s tribe, clan, or caste, the Tribunal has regard to the following information from DFAT’s most recent report:
DFAT assesses that, in practice, the formal justice and security institutions in Somalia do not have the ability to provide effective protection for the majority of the community and, in some cases, state actors such as the Somali National Army (SNA) and the police are the perpetrators of human rights abuses. Civilian authorities do not have sufficient control of the security forces and impunity and corruption is widespread in Somalia, with very limited access to avenues of redress. The majority clans rely on their own militia and alliances with other clans for protection. Minor sub-clans have limited protection from clan militia and those outside the clan system (such as the Bantu) have none.[4] … Members of the police force often gain their positions on the basis of clan links and tend to offer more loyalty to their clan and familial affiliations, than to the government.
[4] As above, at 5.1
Usefully, the issue of clans in Somalia is addressed in depth in a recent UK Home Office Country Policy and Information Note entitled “Somalia: Majority clans and minority groups in south and central Somalia” published in January 2019.[5]
[5] Available here: somalia clans (publishing.service.gov.uk)
At 3.2.3 of the UK Home Office report referred to above, both the Yibir and the Midgan/Gaboye groups are described as minority groups in Somalia. The UK Home office references a 2014 Minority Rights Group International report which stated: ‘Though no precise figures are available, evidence suggest that minority groups make up a disproportionate part of the population of the overcrowded and unhygienic obbosibo [informal settlements] that run through the [Mogadishu]... More often than not, minority populations have ended up in Mogadishu after being displaced by conflict, hunger or land grabbing elsewhere, usually southern Somalia. Yet their lives in the capital’s informal settlements continue to be plagued by insecurity, sexual violence and discrimination, making it almost impossible for them to make ends meet. Furthermore, the forcible appropriation of their land by members of dominant clans makes returning home an unfeasible option.’
At paragraph 5.6.3 of the UK Home Office report, and referring again to the Minority Rights Group International Report it is noted that: ‘higher caste Somalis are forbidden to intermarry with Gaboye outcaste clans, upon penalty of becoming outcastes themselves. Indeed Somalis from the major clans routinely refuse to eat with Gaboye people. Without control of land, Gaboyes have faced economic marginalization. Without armed militias, they have been particularly vulnerable to attack by the militias of the larger clans, and Gaboye women face disproportionately greater danger of rape.’
UNHCR issued a position paper in May 2016[6] which reports:
‘Members of minority clans often lack vital protection and suffer pervasive discrimination. The same applies to others who, being displaced, find themselves outside their normal social clan structures and unable to rely on the protection and support generally extended by such social networks. For instance, Somali ethnic Bantus, as well as some other minority clans, reportedly continue to be highly vulnerable to discrimination, severe poverty, exclusion and marginalization, and are reportedly disproportionately subjected to killings, torture, rape, kidnapping for ransom, forced recruitment, bonded labour as well as looting of land and property with impunity by militias and majority clan members.’
[6] UNHCR Position on Returns to Southern and central Somalia – available here: UNHCR-Somalia-Returns-Advisory-May-20162.pdf
The conditions for minority groups in Somalia is further underscored by the United State Department of State in its 2020 Country Report on Human Rights Practices: Somalia[7] report where it noted:
Minority groups, often lacking armed militias, continued to be disproportionately subjected to killings, torture, rape, kidnapping for ransom, and looting of land and property with impunity by faction militias and majority clan members, often with the acquiescence of federal and local authorities. Many minority communities continued to live in deep poverty and to suffer from numerous forms of discrimination and exclusion. Some observers believed minority clans’ resentment over abuses made them more vulnerable to recruitment by al-Shabaab. Bantu advocacy groups stated the community’s isolation from the government’s security sector integration efforts pushed some Bantu youth into joining al-Shabaab.
[7] Somalia - United States Department of State
According to DFAT’s 2017 report, Al Shabaab conducts attacks on civilian and military targets and engages in abductions of citizens for money. The USDOS 2020 report includes the following information about security situation in Somalia during 2020:
Conflict during the year involving the government, militias, and al-Shabaab resulted in death, injury, and displacement of civilians. Clan militias and al-Shabaab continued to commit grave abuses throughout the country. Al-Shabaab committed the majority of severe human rights abuses, particularly terrorist attacks on civilians and targeted killings, including extrajudicial and politically motivated killings; disappearances; cruel and unusual punishment; rape; and attacks on employees of nongovernmental organizations and the United Nations. Al-Shabaab also blocked humanitarian assistance, conscripted child soldiers, and restricted freedoms of speech, press, assembly, and movement.
In relation to the possibility for citizens to relocate internally to avoid persecution, DFAT notes that an individual’s internal relocation options can be severely limited by a lack of financial resources or the absence of clan connections. “Somalis tend to reside in their clan area as it is their main, and often only, source of physical and social protection.” DFAT also notes that some may relocate to Mogadishu or urban centres for livelihood opportunities but this does not always result in better opportunities given the large number of internally displaced persons there. In addition, moving between areas in South Central Somalia requires traversing al-Shabaab controlled areas and roads.
There are many reports of Al Shabaab recruiting or abducting children to further their cause in insurgency. Those reports are consistent with the applicant’s description of his nephew being approached and later murdered whilst studying in an Islamic school.[8] As demonstrated by the documents attached to the applicant’s written submission, recent news reports reflect that the terrorist organisation continues to operate openly, continuing to stage bombings and acts of terror in Somalia, including in Mogadishu.[9]
[8] See for example, Somalia: Al-Shabab Demanding Children | Human Rights Watch (hrw.org) 14 January 2018.
[9] Female opposition MP among dozens killed in Somalia bombings | Global development | The Guardian 25 March 2022, Suicide bombing kills 14 in Somali restaurant | Somalia | The Guardian (20 February 2022) and Deadly suicide attack in Mogadishu claimed by al-Shabaab | Somalia | The Guardian (3 January 2021)
Assessment of the Applicant’s evidence
The delegate did not accept the applicant to be a credible witness. The Tribunal has already noted the concerns held about the conduct of the delegate’s interview.
The applicant was noted to be forthright and calm giving his evidence and he also freely admitted when the passage of time and his traumatic experiences affected his recall of specific dates, the names of places and that he may have confused timing of some events at various stages of the review. He also acknowledged that he acted with some dishonesty in the past, hiding his true tribal heritage from other members of the Somali community in both Somalia and in [Country 2]. However, the Tribunal notes that the key life experiences which form the basis for the applicant’s claims have been consistently put, and are plausible given that they are generally consistent with the country information outlined above.

The concerns expressed by the delegate about the applicant’s credibility on issues of import are not shared by the Tribunal.
The Tribunal accepts that the applicant’s tribal heritage is the Madhiban Tribe on his patriarchal side and the Yibir Tribe on his maternal side. The Tribunal accepts that he has occasionally (and particularly during his time in [Country 2]) presented himself as being from the Maharan Tribe and that he did so to avoid the negative perceptions and discrimination because of his actual tribal heritage.
The Tribunal accepts that the applicant’s family was displaced by the Somali civil war and relocated to and from Mogadishu a number of times, also living in [Town 1] and [City] over the period after the civil war and prior to the applicant leaving Somalia for the first time in 2005.
The Tribunal accepts that the applicant’s father, brother and other relatives were murdered by members of the Hawiye tribe during the civil war.
The Tribunal accepts that the applicant’s nephew was kidnapped and later murdered by Al Shabaab in 2005.
The Tribunal accepts that the applicant’s mother and sister were raped by members of a dominant tribe (the Hawiye), though the Tribunal cannot be sure when that occurred. The applicant’s evidence about the rapes was generally consistent, but his evidence about the timing was not. In his written claims and the interview with the delegate, the applicant appears to suggest that the rapes occurred when the applicant was very young – but his evidence at hearing appeared to reflect him being a young man at the time. The brutal attack on his mother and sister appears to have been a pivotal event in the applicant’s young life. In assessing this claim, the Tribunal has given consideration to the vulnerabilities of survivors of trauma, because in such cases separate traumatic events can become conflated and confused in a victim’s mind, leading to difficulty in establishing timelines. For that reason, the Tribunal does not consider the fact that there is some confusion about when these events occurred to be dispositive, to reflect poorly on the applicant’s credibility, or to support a finding that the incidents did not happen at all. It seems likely that the sexual assault of his mother and sister was the trigger in 2005 for his mother to send the applicant and his brother ‘away’ to [Country 1], out of fear and in a situation of escalating tribal violence, fearing that the Hawiye clan would target the young men in the tribe again. It also seems likely that it was the final motivating force that led the applicant’s mother and her remaining young children to finally leave Mogadishu and commence their slow, displaced journey to [Country 1]. That the applicant is unable to provide detail about their journey is unremarkable, given that he was on his own and experiencing significant trauma whilst he was in Somalia searching for them, and in light of the fact that he then left [Country 1] before they arrived there. The internal displacement of Somalians during and after the civil war is evident in the country information, both general and specific, as is the use of sexual assault during the conflict. The Tribunal accepts the applicant’s evidence about his family displacement over many years, their relocation and loss of livelihood, the sexual assault of his mother and sister and the murder of his nephew.
The Tribunal accepts that as members of the Madhiban Tribe, the applicant and his family faced discrimination, threats of and acts of violence as well as oppressive conditions throughout the applicant’s life in Somalia without any protection available to them from the government of Somalia, particularly during and after the Civil war. The Tribunal accepts that the applicant’s low social status due to his Madhiban Tribal heritage is considered by other tribes to be even lower than it would otherwise be because his mother’s tribe, the Yibir, suffers from an even lower ‘rank’ and experiences even greater persecution in Somalia.
The Tribunal also accepts that the applicant sought protection in [Country 2] in 2008 and lived there as a refugee until travelling to Australia in 2012 due to his marriage.
Is there a real chance that the applicant will suffer persecution in Somalia for any reason?
The country information suggests that young men from lower African tribes are regularly targeted by Al Shabaab for recruitment. Failing to comply with their demands can lead to physical assault and murder. Further, the country information is consistent with the applicant’s claims to fear ongoing discrimination and assault amounting to persecution at the hands of dominant tribes in Somalia due to his tribal heritage. The applicant has only one terminally ill brother living in Mogadishu and no other family or tribal support in the country. The Tribunal accepts that he would be vulnerable to being targeted by ruling tribes in the event he were to return to Somalia, regardless of where he were to locate himself. Further, the Tribunal accepts that there is a real chance that the applicant will be freshly targeted for recruitment or harm by Al Shabaab in the event that he returns to Somalia. Particularly when the accepted aspects of his personal profile and claims are considered cumulatively, the Tribunal is satisfied that there is a real chance that the applicant will face discrimination, violence, degrading conduct, and that he will, due to his tribal heritage, be prevented from earning an income sufficient to subsist if he returns to Somalia. At the time of writing this statement, Somalia faces another famine with reports of overburdened hospitals in Mogadishu, starving families and a growing drought.
The essential and significant reason for the persecution feared by the applicant is his ethnicity and his membership of the particular social groups of tribe members of the Madhiban and Yibir tribes; and because of his political opinion as a person opposed to the ideology and violence of the terrorist organisation Al Shabaab. These are all reasons described in the convention.
Does the real chance of persecution involve serious harm?
As required by s.91R(1)(b) of the Act, the persecution must involve serious harm. Being killed, subjected to discrimination, abuse and serious physical assault and abduction are all examples of serious harm. Similarly, being denied the opportunity to earn a living capable of enabling a person to subsist would involve causing the applicant serious harm. The persecution involves serious harm.
Does the persecution involve systematic and discriminatory conduct?
As required by s.91R(1)(c), the persecution must involve systematic and discriminatory conduct. The very nature of the persecution feared by the applicant is based on him being repeatedly and brutally targeted due to his tribal heritage and his opposition to Al Shabaab. The persecution involves systematic and discriminatory conduct.
Is the applicant able to access State protection from the harm he fears?
The country information, both general and specific, suggests that the government of Somalia is unable to provide effective protection to its’ citizens from Al Shabaab and inter-tribal violence. The applicant’s own personal and familial history demonstrates a failure of State protection for people who face intertribal violence or a threat from Al Shabaab. Further, the country information suggests that members of the Hawiye Tribe hold positions of influence within Somalia’s police, armed forces and government. In that context, the applicant’s tribal background would be an impediment to his receiving support and protection from the Somalian authorities, given that the persecutors are likely to be from within the ranks of those authorities themselves or with connections to them. The dominant tribes are integrated into the government and police forces and exercise influence throughout the country. In relation to attacks and abduction by Al Shabaab, the Tribunal considers that the Somali government is unable to provide its’ citizens with effective protection from the terrorist organisation despite some willingness to do so. Overall, the Tribunal finds that the applicant is unable to access State protection from persecution in Somalia.
Can the applicant relocate within Somalia to avoid the harm he fears?
The country information referred to above suggests that the real chance of persecution persists throughout Somalia, because the persecutors in this case operate throughout the country. The country information also suggests that without tribal and community support, relocation would be extremely difficult for the applicant and that he may struggle to find work sufficient to sustain himself in the event that he returns to Somalia without that family or tribal support. The Tribunal accepts that the applicant has no tribal or familial support and that he is unable to reasonably relocate within Somalia to avoid the persecution he fears.
Is third country protection available?
The applicant is a citizen of Somalia. The information before the Tribunal reflects that his refugee permit in [Country 2] expired in 2014 and that his former marriage to a woman from [Country 5] has ended. In any event, there is no information before the Tribunal which suggests that the applicant had (or has) a right to enter and reside in [Country 5]. The Tribunal finds that third country protection is not available.
Conclusion
The Tribunal concludes that the applicant is a refugee. He has a well-founded fear of persecution in Somalia because of the convention grounds of his ethnicity, because of his membership of the particular social group of Madhiban and Yibir Tribes, and also because of his political opinion as one who is opposed to Al Shabaab. The Tribunal considers that the authorities of Somalia would be unable to or would refuse to protect him if he faces attacks from members of dominant tribes or from Al Shabaab, wherever he was to locate himself in Somalia, particularly given the prominence of Hawiye tribal power brokers in Somalia’s governing and policing class. The Tribunal finds that the applicant is unable to access protection from the government of Somalia or any other authority within the country. He cannot reasonably relocate within the country to avoid the persecution he fears. The Tribunal considers that there is no action that the applicant can take to modify his behaviour which would lessen the real chance of persecution.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Anne Grant
Member

[2022] AATA 2396

14 June 2022

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