2008756 (Refugee) - [2024] ARTA 895

2008756 (REFUGEE) [2024] ARTA 895 (4 DECEMBER 2024)
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2008756

Tribunal:General Member S Nyabally
Place:Melbourne
Date:4 December 2024
Statement made on 11 December 2024 at 12:49pm

CORRIGENDUM
Date of Corrigendum: 11 December 2024

Pursuant to s 114 of the Administrative Review Tribunal Act 2024 (Cth), the following alteration is made to the statement of reasons for the decision:
1.Paragraph [66] of the decision is omitted.

DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2008756
Tribunal:General Member S Nyabally
Date:4 December 2024

Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 04 December 2024 at 1:56pm
CATCHWORDS
REFUGEE – protection visa – Somalia – ethnicity and returnee from Western country – Madhiban tribe – member of minority tribe considered inferior – father and uncle killed and mother and siblings in refugee camp in another country – fear of harm from militia and other tribes – study in other countries and returns to home country – relationship ceased and partner visa application refused – post-traumatic stress and mental health treatment – long residence overseas and no family or support in home country – discrepancies in family composition and travel history – reasonable explanation and no adverse inference drawn – country information – minority tribes disproportionately at risk and state protection not available – treaty right to enter and reside in neighbouring countries limited in practice – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (c), (2), (5), 5LA(1), 36(2)(a), (3), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
AGA16 v MIBP [2018] FCA 628
MIMAC v SZRHU (2013) 215 FCR 35
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Subclass 866 Protection (Class XA) visa (protection visa) under s 65 of the Migration Act 1958 (Cth) (the Act).
APPLICATION FOR REVIEW
The applicant first arrived in Australia [in] March 2012 as the holder of a Prospective Marriage (subclass 300) visa. He has not subsequently departed Australia.
On 9 May 2012, the applicant applied for Partner (subclass 820/801) visas, based on his marriage to his (now estranged) wife. The subclass 820 visa was granted on 27 June 2012, and expired on 15 April 2015. The subclass 801 visa was refused on 2 April 2015.
The applicant applied for the protection visa on 6 May 2015. The delegate refused to grant the protection visa on 18 May 2020.
The applicant applied for review of the delegate’s decision on 25 May 2020. By operation of law, on 14 October 2024 the review application was taken to have been lodged with the Administrative Review Tribunal.[1]
[1] On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal on 26 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of the applicant’s representative and an interpreter in the Somali and English languages.
CLAIMS AND EVIDENCE
Before the Department
The applicant claims to be a [Age]-year-old Somali citizen who was born and raised in Mogadishu, Somalia. In a 2018 statutory declaration provided to the Department, the applicant claimed that he was from the Madhiban (also known as the Midgan)[2] clan, a minority tribe considered to be inferior in Somalia. The applicant’s father was murdered by political opponents in [Year], and his younger brother died when the applicant was about 3 or 4 years old. The applicant’s mother and [remaining siblings] live in a refugee camp in [City 1, Country 1].
[2] also spelled: Madhibaan, Madiban, Mahdiban, Madibhan; also known as Gaboye, Gabooye, Gabooyo, Midgan, Midgaan, and Musse Deriyo. See the Research Directorate, Immigration and Refugee Board of Canada, ‘Djibouti: Situation of members of the Madhiban caste, including treatment by society and authorities; state protection and services’, DJI104633.E (25 October 2013), available at Martin Hill, ‘No Redress: Somalia’s Forgotten Minorities’, Minority Rights Group International (2010), available at p8.
When he was about 16 years old, the applicant, his mother and surviving siblings fled Somalia by truck, settling in a refugee camp in [City 1]. While living in the refugee camp, a friend of the applicant’s father named [Mr A] paid for him to attend school. In 2001, [Mr A] assisted the applicant to obtain a visa to study in [Country 2]. The applicant lived in [Country 2] from 2001 to 2009, and in [Country 3] from 2009 to 2012, before travelling to Australia.
The applicant claimed (amongst other things) that if he returned to Somalia, he would be killed by the Al Shabaab militia and/or people of other clans because he was a Madhiban, he would be easily identifiable as a returnee from the West, and because he had no contacts and no tribal protection in Somalia. He would be unable to obtain protection from the authorities because the government had no power, and he could not relocate because he had no contact with any friends or relatives in Somalia, and it was impossible to live anywhere in Somalia without clan protection.
In their decision record, the delegate did not accept that there was a real chance or risk that the applicant would be harmed for the above reasons. Relevantly, the delegate accepted that the applicant came from the Madhiban minority group, but did not accept that he had no immediate or extended family members in Somalia as claimed. The delegate found that the applicant had given inconsistent information about his family composition, and did not accept as plausible his claim that his mother and siblings lived in [Country 1], as they had evidence that the applicant regularly transmitted money to Somalia. While the delegate accepted that the applicant may experience some degree of marginalisation or discrimination as a Madhiban, it was not satisfied that this would amount to persecution or significant harm. The delegate was not satisfied that the applicant would have no support network in Somalia, and placed weight on country information which stated that there was no evidence that people outside the dominant clans (such as the Madhiban) were systematically subjected to violence in the applicant’s home city of Mogadishu.
The applicant has provided a large amount of information to the Department and Tribunal, including:
·oral evidence given at his protection visa interview and the Tribunal hearing;
·a statutory declaration declared on 8 November 2018;
·a written statement dated 30 August 2024; and
·a psychosocial report prepared by the applicant’s counsellor, [Mr B], dated 30 August 2024.
Where relevant, the applicant’s submissions and evidence are considered in the Tribunal’s findings below.
CRITERIA FOR A PROTECTION VISA
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, he or she 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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Protection Obligations
Section 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. They provide as follows:
Protection obligations
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that
(a) the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A) Also, subsection (3) does not apply in relation to a country if:
(a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.
This means that where a non-citizen has a right to enter and reside in any country apart from Australia, Australia is taken not to have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s 36(4), (5) or (5A) are satisfied, in which case the s 36(3) preclusion will not apply.
The Full Federal Court in MIMAC vSZRHU (2013) 215 FCR 35 has held that the term ‘right’ in s 36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.
In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully given to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s 36(3) does not apply because of the operation of s 36(4), (5) or (5A).
Mandatory considerations
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds. The applicant does not claim to be a member of the same family unit of a person in respect of whom Australia has protection obligations.
For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Country of nationality
The applicant has provided a copy of his passport from Somalia. He has consistently claimed to be from Somalia. There are no apparent concerns with the applicant’s identity. The Tribunal is satisfied that the applicant is a citizen of Somalia. The Tribunal is satisfied that Somalia is his receiving country and has assessed his claims against that country.
Background
The applicant was born on [Date] in Mogadishu. He was one of [Number] children. He is of Madhiban ethnicity and Sunni Muslim religion.
The applicant, his mother and siblings remained in Somalia after his father’s death in [Year], but moved homes frequently for their safety. In [Year], the applicant’s uncle was killed in what the applicant believed to be a politically-motivated attack. His uncle’s murder was the catalyst for his family’s departure from Somalia. The applicant and his family travelled to [City 1] in [Year]. He has no ongoing contact with anyone in Somalia, and does not know if he has any extended family remaining there.
The applicant completed his secondary education in [Country 1] in [Year]. He moved to [Country 2] in 2001, where he completed a Bachelor of [Subject]. The applicant moved to [Country 3] in 2009 to complete further study, residing there until 2012.
On 1 March 2012, the applicant was granted a Prospective Marriage visa sponsored by his (now estranged) wife, [Ms C]. He arrived in Australia on 21 March 2012, and married [Ms C] on 12 April 2012. The applicant and [Ms C] subsequently separated, and the applicant’s Partner (Residence) (subclass 801) visa was refused on 2 April 2015.
The Tribunal accepts the above matters to be true.
The applicant’s claims for protection
In his 2018 statutory declaration and 2024 statement, the applicant has consistently claimed (amongst other things) that if he returns to Somalia, there is a real chance that he will be seriously harmed because he is from the minority Madhiban tribe, because of the significant time he has spent living in a Western country, and because of his lack of a family or social network in Somalia.
At the hearing, the applicant explained that he has returned to Somalia 3 times since his family fled in [Year].[3] The first time was in 2001, where he remained in Somalia briefly prior to his travel to [Country 2]. The second time was in 2003, when [Mr A] encouraged the applicant to return to the north of Somalia to try and visit his family in [City 1]. The applicant travelled from [Country 2] to [Country 4], then to Hargeisa in Somaliland. He remained in Hargeisa for 3 days, but was unable to see his mother over that period as he was stopped at the [Country 1] border and prevented from entering the country. The third time was in 2004, when [Mr A] again encouraged the applicant to try and see his mother. The applicant travelled to Hargeisa and remained there for about 2 weeks while he attempted to reunite with his mother and siblings. After about 2 weeks in Hargeisa, the applicant was approached by someone who told him that it was not safe for him to stay in the area. The applicant was fearful of the warning, which triggered memories of his father’s murder, and departed Hargeisa without seeing his family.
[3] The delegate’s decision record identifies some discrepancies in the applicant’s travel history. As with his family composition, the Tribunal accepts that any inconsistencies are attributable to errors by [Ms C] in completing his subclass visa application forms, and accepts his travel and residence history to be that outlined in these reasons.
In 2007, the applicant learned that [Mr A] had been killed. At the time, [Mr A] and his wife were living between [Country 4] and [Country 2]. The applicant was told that [Mr A] had returned to visit Mogadishu when he was killed by Al Shabaab militants.
In the interview with the Department, the applicant was asked about his claim that his mother and siblings lived in [City 1]. The delegate observed that the Department had evidence of money transfers from the applicant to his mother and sister in Somalia, which they believed was evidence that he had family residing in Somalia. The applicant’s consistent explanation was that it was very difficult to send money to [City 1], so he would arrange for money to be transferred to [Town], a small town in northern Somalia. His mother and sister would pay someone to help them cross the border to Somalia to collect the money, or alternatively to go and collect the money from [Town] and bring it to the [Country 1] border. The Tribunal accepts this explanation.
The Tribunal asked the applicant why he believed he would be harmed if he returned to Somalia. The applicant replied that he would easily be identified as a foreigner and would become a target because he was alone with no support, wherever he went in Somalia. He could not live in Mogadishu, as the government only had limited control over the city and only the wealthy or well-connected could afford to pay for protection. He could not move elsewhere within Somalia, as people would recognise that he was not from the area and would view him suspiciously, such as when he was warned by a stranger in Hargeisa in 2004. Things would only become worse once people learned that he was Madhiban.
Previous application for refugee status

At the Department interview, the applicant gave evidence that he had applied to the UNHCR for refugee status when he first arrived in [Country 2], but disengaged from the process after he was granted a student visa in [Year] and never received an outcome. The Tribunal accepts this evidence.
FINDINGS
In the Department’s decision record, the delegate expressed concerns about the applicant’s family composition, namely perceived inconsistencies in the dates of birth of his siblings and the addition of 2 siblings in his subclass 300 visa application. The applicant has provided consistent oral evidence that those persons were erroneously added by [Ms C], who completed his subclass 300 visa application forms. The Tribunal accepts the applicant’s explanation for these errors and accepts his family composition to be that outlined in these reasons.
The delegate’s decision also raised concerns about the applicant’s travel history, and in particular the inconsistencies between his written and oral evidence of his residence between [Year] and 2001. When the delegate put these concerns to the applicant at the interview, the applicant explained that his lawyer may have misunderstood his evidence when preparing the visa application. He and his lawyer were only able to meet via telephone, and his evidence may have been confusing as he was very stressed at the time because of his relationship breakdown and subclass 801 visa refusal. The Tribunal accepts this explanation. In making this finding, the Tribunal has placed weight on [Mr B]’s psychosocial report, and in particular the symptoms of trauma identified in [Mr B]’s assessment. While the applicant’s account of past events may not have seemed credible to the delegate, studies have shown that reactions to trauma are unique, and responses to trauma are influenced by personality, coping style, language and culture.[4] The Tribunal finds that the inconsistencies in the applicant’s evidence do not undermine their credibility and draws no adverse inferences.
[4] Amina Memon, ‘Credibility of Asylum Claims: Consistency and Accuracy of Autobiographical Memory Reports Following Trauma’, Applied Cognitive Psychology 26 (2012), p 677.
The Tribunal accepts that the applicant is a member of the Madhiban tribe. The Tribunal also accepts the applicant’s account of his father and uncle’s murders and the family’s decision to flee Somalia in [Year]. This evidence is supported by country information, which indicates that many Madhiban were routinely raped, expelled from their homes, kidnapped and killed following the 1991 coup.[5] The Tribunal also accepts the applicant’s evidence about his education in [Country 1], his departure for [Country 2] in 2001, and his subsequent return to Somalia in 2003 and 2004 in an attempt to reunite with his family in [Country 1].
[5] Professor Asha A. Samad, ‘Brief Review of Somali caste systems – Statement fo the Committee on the Elimination of Racial Discrimination), SAFRAD – Somali Association (August 2002), available at p4.
The Tribunal accepts that the applicant has not resided in Somalia for almost 30 years, having fled with his family in [Year]. The Tribunal also accepts that the applicant has spent over 10 years living in Australia, that the surviving members of his immediate family live in [Country 1], that [Mr A] was killed by Al Shabaab in 2007, and that the applicant has no ongoing contact with any friends or relatives who may still reside in Somalia. Accordingly, the Tribunal accepts that the applicant would be returning to Somalia as a single Madhiban man from a western country with no support network.
The Tribunal also accepts the medical evidence about the applicant’s current mental health. The Tribunal places weight on [Mr B]’s assessment that:
Overall, I have observed [the applicant] to find it exceptionally difficult to speak about his past in Somalia. … [the applicant] continues to be adversely affected by stressors that are clinical attributes of posttraumatic stress. His psychological presentation is consistent with the events he reported on during his adolescence in Somalia. I believe that he would currently only be able to give fragmented accounts of events from his childhood and adolescent years.[6]
[6] Psychosocial report of [Mr B] dated 5 June 2024.
The Tribunal accepts that if he were to return to Somalia, the applicant may be disproportionately affected by any adverse treatment inflicted on him due to his vulnerable psychological state.
Country information
In a 2022 publication, the UNHCR reported that Somalia’s political and social system is largely clan-based, and the traditional clan structure may define whether a person has, inter alia, protection against violation of their rights, access to services, access to justice mechanisms, or any type of social safety net.[7] In general, persons from minority groups may struggle to access reliable livelihoods and are generally unable to hold important positions in businesses or in the government. The Somali armed forces are reportedly made up mostly of persons from majority clans, and there are no minority group members in any senior positions.[8]
[7] UNHCR, ‘International Protection Considerations with Regard to People Fleeing Somalia’, (September 2022), available at p 69 (and articles cited therein).
[8] ibid, p 70-71 (and articles cited therein).
The Madhiban are a minority tribe in Somalia. Traditionally, Madhiban were hunters, shoemakers, tanners, well diggers and water carriers for their hosts. The European Union Agency for Asylum (EUAA) reports that the Madhiban experience both official and societal discrimination in Somalia:
They are considered ‘unclean by dominant clans and experience discrimination as a consequence. State institutions, which are dominated by majority group members, do not offer protection to [Madhiban] for injustices and violations they experienced (including sexual violence, looting or physical assaults), especially in Somaliland and southern Somalia. … Furthermore, the [Madhiban] lack access to formal education (except Islamic learning), to economic resources and are largely politically excluded. Intermarriages between them and members of majority groups are shunned.[9]
[9] EUAA, ‘Country Guidance: Somalia, Common analysis and guidance note’ (August 2023), available at p109.
The availability of State protection in Somalia is hampered by internal divisions within the country, which have limited the capacity of successive governments to expand their rule much beyond Mogadishu. This effectively requires Somalians to rely on support from patrilineal clan relatives for protection, gaining access to resources, jobs or justice.[10] The US Department of State reports that:
Minority groups, often lacking armed militias, were 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 lived in deep poverty and suffered from numerous forms of discrimination and exclusion.[11]
[10] European Asylum Support Office, ‘Country of origin information report – Somalia: Targeted profiles’ (September 2021) available at p59
[11] US Department of State, ‘Country Reports on Human Rights Practices for 2023 – Somalia’ (22 April 2024), available at p42.
Even if state protection is available within Somalia, authorities have been unwilling to provide effective protection to minority clans such as the Madhiban:
MRG’s research indicates that minorities in Puntland have little chance of obtaining justice if they complain of crimes against them or are accused of crimes and arrested. Police, who invariably belong to majority clans, commonly refuse to investigate complaints by minorities, support the majority side against a minority person (particularly if the complaint is against a police officer), and hardly ever investigate allegations of rape.[12]
[12] Martin Hill, above n 2, p21.
The country information also underscores the importance of clan protection. Such protection may be provided from one’s own clan or from another clan, and the level of protection will correspond to different scales of social closeness. Minority clans and returnees may face discrimination due to their lack of connections and alliances with powerful clans.[13] For example, the United Nations’ Human Rights Council has reported that reconciliation initiatives undertaken by State authorities, civil society organizations and traditional clan elders using traditional justice practices discriminate against minority clans and women.[14]
[13] Schweizerische Fluchtlingshilfe, ‘Somalia: Die Minderheirengruppe der Gabooye/Midgan’ (5 July 2018), available at p4.
[14] UN General Assembly, ‘Situation of Human Rights in Somalia’ (14 July 2021), A/HRC/48/80, p 8 [23].
The risks faced by Madhiban in Somalia are more pronounced for those returning from Western countries. Reports suggest that returnees from abroad who have acquired types of behaviour perceived as ‘Western’ may be viewed adversely by both Al-Shabaab militants and by Somalian society generally.[15]
[15] European Asylum Support Office, above n 10, p48 (and sources cited therein).
Does the applicant satisfy the refugee criterion for protection?
The Tribunal has accepted that the applicant would be returning to Somalia as a single Madhiban man without family or social support networks, who has lived in Australia for over a decade.
On the basis of the country information discussed above, the Tribunal accepts that if he returns to his home area of Mogadishu, there is a real (or more than remote) chance that the applicant would be identified as Madhiban and/or a returnee from abroad who has acquired types of behaviour that may be viewed as ‘Western’, on the basis of his protracted (30-year) absence from Somalia, 10 years of which was spent living in a Western country, and his lack of family or social connections in Somalia. The Tribunal accepts that if he were so identified, there is a real chance that the applicant would be harassed, robbed, targeted for kidnapping for ransom or assaulted. The Tribunal also accepts that the applicant will be unable to rely on patrilineal or majority clan protection from the harm he fears, due to his lack of clan connections in Somalia.[16]
[16] Discussed at [45], [47] above.
The Tribunal accepts that the harm may include a threat to his life or liberty, significant physical harassment and/or significant physical ill-treatment, such as would constitute serious harm for the purposes of s 5J(5). The Tribunal also considers that the seriousness of the harm suffered would be exacerbated by the applicant’s personal vulnerabilities (as identified in [Mr B]’s report), namely his psychological trauma caused by past violence.[17] Taking these considerations into account, the Tribunal is satisfied that any future harm or even threats of harm the applicant may experience could amount to serious harm as contemplated in the Act.
[17] AGA16 v MIBP [2018] FCA 628.
The Tribunal considers that the harm the applicant fears is for the combined reasons of the applicant’s (Madhiban) race and his membership of a particular social group, being ‘returnees from Western countries’: s 5J(1)(a). The Tribunal considers that the group of ‘returnees from Western countries’ is distinguishable by common physiological or behavioural characteristics (such as dress, language or demeanour), and that the common characteristics or attributes are not a shared fear of persecution. Moreover, the Tribunal finds that the applicant’s identity as a Madhiban and his status as a returnee from a Western country are immutable characteristics incapable of modification: s 5J(3)(b).
Effective State protection
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).
As discussed at [‎43]-[‎46] above, country information indicates that in Somalia, State protection is not effective for members of minority clan members who do not have connections and alliances with majority clan members. The Tribunal accepts that Somalian State institutions are unlikely to offer protection to Madhiban clan members such as the applicant, either by refusing to investigate complaints, or by siding with the perpetrator if they are from a majority or affiliated clan. The Tribunal finds that effective protection measures are not available to the applicant in Somalia.
Does the harm feared by the first applicant extend to all areas of Somalia?
The Tribunal has considered whether the applicant faces a real chance of serious harm in all areas of Somalia: s 5J(1)(c).
As noted above, the applicant has no family or other support networks anywhere within Somalia. The Tribunal accepts the applicant’s evidence, which is consistent with independent country information, that the difficulties he would face as a Madhiban with ‘Western’ attributes or behaviour would exist in all parts of Somalia. In reaching this conclusion, the Tribunal has had regard to:
· Al-Shabaab’s control of vast swathes of Somalia, and its operations targeting so called ‘spies’ of the ‘apostate’ [Western] regime. The Tribunal considers that there is a real chance that the applicant may be targeted in Al-Shabaab-controlled territory, on the basis that militants may infer from his ‘Western’ attributes and behaviour that he is a spy; and
· the applicant’s evidence of his 2004 travel to Hargeisa, when he was approached and told that it was not safe for him to remain there. This evidence, coupled with EUAA and MRG’s reports of the discrimination encountered by minorities in Somaliland and Puntland,[18] lead the Tribunal to find that there is a real chance that the applicant would also be harmed in the northern provinces of Somalia.
[18] EUAA, above n 9, p 109; Martin Hill, above n 2, p21.
In these circumstances, the Tribunal accepts that the real chance of harm to the applicant exists across all areas of Somalia.
The Tribunal is therefore satisfied, on the basis of all of his circumstances, that the applicant faces a real chance of serious harm in all areas of Somalia. The essential and significant reasons for that harm are the applicant’s Madhiban race and his membership of a particular social group, being ‘returnees from Western countries’.
Right to enter and reside in a third country
Even where an applicant is found to be a person in respect of whom Australia has protection obligations, they will not be eligible for a protection visa if they have a right to enter and reside in another country where protection is available to them. The right referred to in s 36(3) must be a presently existing right, and not a right that could be acquired at a later point in time.
[Country 1]
The Tribunal accepts the applicant’s evidence that he and his family travelled to [Country 1] in [Year], that the applicant lived in [Country 1] for approximately 5 years before departing to [County 2] in 2001, and that his mother and surviving siblings still remain in [Country 1]. There is no evidence before the Department or Tribunal to suggest that the applicant and his family’s initial entry and stay in [Country 1] was lawful, or that they have been granted a visa or other document conferring a right to enter and/or reside in [Country 1]. The Tribunal is not satisfied on the evidence before it that the applicant has an existing right to enter and reside in [Country 1].
East African Community
On 4 March 2024, Somalia became a full member of the East African Community (EAC), a regional intergovernmental organisation of 8 Partner States: The Republic of Burundi, the Democratic Republic of the Congo, the Republic of Kenya, the Republic of Rwanda, the Federal Republic of Somalia, the Republic of South Sudan, the Republic of Uganda, and the United Republic of Tanzania.
The EAC states that the right of movement of people is one of the pillars of regional integration of the EAC.[19] The Treaty establishing the EAC requires Partner States to agree to adopt measures to achieve the free movement of persons and to agree to conclude a Protocol on the free movement of persons, labour, services and right of establishment and residence at a time to be determined by the Council.[20] While considerable efforts have been made towards fostering the movement of persons and goods within the EAC, the implementation of the Treaty’s objectives has been hampered by corruption, a lack of proper institutional frameworks and coordination mechanisms, and an absence of complaints mechanisms or information about migration and trade processes.[21] Somalia’s efforts towards implementation are further hampered by the “constant friction between the Somali federal government and member states” and the asserted independence of its autonomous regions.[22] The Tribunal is not satisfied on the country information before it that the applicant has an existing right to enter and reside in any EAC member state.
[19] See East African Community, ‘Pillars of EAC Regional Integration’, Treaty for the Establishment of the East African Community, Article 104.
[21] East African Community, ‘A Simplified Guide for Micro and Small-Scale Women Cross Border
[22] Bashir Mohamed Caato, ‘Somalia has joined the EAC regional bloc. What happens next?’, Al Jazeera, (29 November 2023), available at

In those circumstances, at present, the Tribunal is not satisfied that s 36(3) applies to the applicant.

CONCLUSION

For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).

DECISION

The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:

·s 36(2)(a) of the Migration Act.
Representative: Mr Erskine RODAN
Date of hearing: 26 September 2024

ATTACHMENT - Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:

(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36 Protection visas – criteria provided for by this Act

…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

Traders and Service Providers within the East African Community (EAC)’, (December 2016); International Organisation for Migration, ‘Comparative Study on the Free Movement of Workers in Select East African Community Countries: Burundi, Kenya, Rwanda and the United Republic of Tanzania’ (2018), available at