Elmi, Eyman v Minister for Immigration and Multicultural Affairs

[1998] FCA 1457

FEDERAL COURT OF AUSTRALIA

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 756  of   1998

BETWEEN:	EYMAN ELMI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	HILL J
DATE OF ORDER:	19 NOVEMBER 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 756 of 1998

BETWEEN:	EYMAN ELMI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	HILL J
DATE OF ORDER:	19 NOVEMBER 1998
WHERE MADE:	SYDNEY

REASONS FOR JUDGMENT

The Applicant, Ms Elmi, applies to the Court pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”) for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) affirming the decision of the Respondent Minister to refuse to grant to her a protection visa.

Ms Elmi is a citizen of Somalia.  She arrived in Australia on 19 January 1998 with no passport claiming that she was, within the meaning of the 1951 United Nations Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees, a refugee as defined in Article 1A(2) of that Convention.  She subsequently lodged an application for a protection visa, which application was refused by a delegate of the Minister.  In the result, she sought review by the Refugee Review Tribunal of that decision.  On that review, the question for determination was whether the Tribunal was satisfied that the Applicant was a person to whom Australia had protection obligations under the Convention as amended by the Protocol.  Article 1A(2) of the Convention as so modified defines a refugee as a person who:

“… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;  or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

The Applicant’s initial story on arrival was that she was a housewife (though single) at a refugee camp and belonged to the “Bafadi” group.  She said that she had left Afgoi and travelled on foot for five weeks to get to the Mombasa Camp and had left Mombasa two months before arrival in Australia with her relative, staying on the way in a couple of countries of which only Malaysia remained in her memory.  She said that her relative put her on the Lauda Air flight to Australia.

In her original application for a protection visa, the Applicant claimed that she belonged to the Begedi tribe who had been traditionally discriminated against.  She referred to incidents said to have happened to her father and incidents of rape and theft.  She claimed that in the preceding two months before arriving in Australia she had been in Italy and that her agent had let her travel with him on his passport from Somalia to Italy but that she had destroyed her passport at the airport.  She said she had been in Kenya with her family but left there to avoid being deported. 

Subsequent inquiries indicated details of apparent falsehood.  Apart from her name, which information suggested was different from the name in which she had applied for a visa, it appears that she had been a resident of Italy with permission of entry until 30 November 1998.

The Applicant’s agent then faxed information saying that she had resided in Italy since June 1992 with a temporary residence there but that that right of residency ended when the employer, for whom she worked as a domestic, died.  The agent advised another name and different date of birth.  Later that was corrected so that her real name was on the original application but a false name had been used in Italy.  Inquiries of the Australian Embassy in Rome produced further discrepancies.

The Applicant’s case before the Tribunal was that she belonged to the Begedi clan who had settled around Afgoi and were involved in farming and business but in 1992, travelling with a family in which she was passed off as one of the children, she had gone to Italy via Kenya where she had spent two weeks but had never been in a refugee camp.  When pressed for details of her stay in Italy, she said that she worked as a domestic aide.

It is unnecessary to consider in detail various other discrepancies that arose in the course of the hearing.  Having regard to these and other discrepancies, it is not surprising that the Tribunal began its findings and reasons with a heading “Credibility”.  In the interests of brevity, I abstain from setting out all that the Tribunal said.  It suffices to quote the following passages:

“I am unable to know from the information provided by the applicant whether any of her claims are true, she has changed aspects of her history on several occasions as is obvious from detail provided by her.  It is impossible to assess what is true and what is not and I am not reasonably able to make a positive finding on any of her claims.  Overall I consider that she was not a credible witness.

I am prepared to accept that the applicant is Somalian and that she arrived in Italy in early 1992 to work as a domestic, and that she did this until early 1998.  I also accept that she has knowledge of her family though I cannot be reasonably satisfied as to what that knowledge may be.  I also accept that she did not apply for refugee status in Italy (as indicated on her permesso).  The remainder of her claims I do not accept.

I accordingly cannot be satisfied on the basis of the evidence given by the applicant that she has a well-founded fear of persecution for reasons of a Convention ground.”

Had the Tribunal ended its reasons there, it is difficult to see how any error requiring judicial review could possibly be made out.  The Tribunal then said:

“Having stated that however, I consider that the applicant’s position and status in relation to Italy and Somalia should be commented on.”

The Tribunal proceeded to consider both countries. 

Its discussion on the position in Italy can be shortly summarised.  The Tribunal felt unable to decide whether the Applicant had or had not destroyed her passport.  If she had not, and assuming she had no re-entry permission, she would have had difficulty returning to Italy.  If she had destroyed the passport, then there would be difficulties in obtaining a new one, although the Tribunal felt it would be possible on application from the Consulate General of the Somali Democratic Republic following which it would be necessary to apply for a re-entry visa.

The Tribunal finally on this point considered that the difficulty created by the possible destruction of the passport should not be allowed to assist her.  The Tribunal was of the view that the sole reason for destroying the passport, like her reasons for evasion and telling conflicting histories, was a belief that she could “create a pretext of invoking a claim”.

The Tribunal then returned to the Applicant’s claims relating to Somalia.  It prefaced its remarks by saying:

“As stated above I am unable to make any reasonable findings on the applicant’s evidence relating to what she has said about Somalia.”

The Tribunal then discussed the position of the clan to whom the Applicant claimed to belong, namely in the light of various material to which the Tribunal made reference.  It referred to the situation of ongoing clan warfare and civil unrest and to comments which I made in Mohamed Dahir Mohamed v Minister for Immigration and Multicultural Affairs (unreported, 11 May 1998) on the war and references I made in that case to Adan v Secretary of State for the Home Department [1998] 2 WLR 702. The Tribunal concluded, no doubt correctly, that it was necessary to consider the Applicant’s individual circumstances and that it would be up to the Applicant to show that apart from the clan warfare she fell within the definition in the Convention for consideration as a refugee.

Next the Tribunal turned to the question of relocation of the Applicant to some other part of Somalia.  The Tribunal rejected the proposition that the whole of Somalia was in a state of constant warfare and unsafe.  After referring to a number of reports and studies, the Tribunal said:

“The applicant is a young woman, who is educated to year 8 in Somalia, she has lived and worked in a foreign country for several years and speaks Italian.  I do not know, given my findings on credibility, whether she has any clan relationships in north-east Somalia.  I consider that despite this she would be able to live there and earn a living – though this may not be in work which she would choose for herself.  I am satisfied given independent evidence that such an opportunity would be available to her.

For these reasons I am satisfied that the applicant is able to, and that it is reasonable to expect her to relocate to the north-eastern region of Somalia.”

At the time the application was originally filed with the Court it would seem the Applicant was unrepresented.  She is now represented on a pro bona basis by counsel and I propose to give leave that the application as originally filed be amended in accordance with a document entitled “Amended Application for an Order of Review” which I have initialled and placed with the papers.  In the amended application there are four grounds for review.  These can be summarised as follows:

1. The Tribunal failed to make an unambiguous finding as to whether it accepted that the Applicant belonged to the Begedi tribe or clan, a matter fundamentally important to the Applicant’s case and, in respect of which, the Tribunal was obliged to state its findings in unambiguous terms having regard to s 430 of the Act.

1. That in rejecting the claim that the Applicant did not have a well founded fear of persecution in Somalia because of membership of her clan, the Tribunal failed to make findings as to the situation faced by Begedians in Somalia or reveal its reasoning process.

1. It was said that the Tribunal failed to act fairly or justly according to substantial justice in not having drawn to the attention of the Applicant a number of matters before making findings.  The matters in question concerned her ability to obtain another Somali passport from the Consulate General of the Somali Democratic Republic, the finding that she had destroyed her Somali passport to create a pretext for making a claim for refugee status and reliance on information never brought to her attention in finding that she could relocate to the north-east of Somalia.

1. That the Tribunal made errors of law in incorrectly interpreting the Convention definition of refugee or applying it by requiring that the Applicant show that she was at greater risk than other members of her clan and that the risk of harm she faced was over and above that arising from civil or clan warfare and in incorrectly interpreting or erroneously applying the law relating to relocation by failing to consider whether the Applicant would be able to safely make her way to the north-east of Somalia.

The parties requested that I dispense with an oral hearing and instead receive written submissions from both sides in order to obviate the expense of a hearing.  In the result, I have been assisted by detailed submissions filed by counsel for both the Applicant and the Minister and I am grateful for them.  By agreement, the parties excluded from the written submissions at this stage questions concerning reasonable relocation and return to Italy.  These questions would only arise if I were to determine the matter in a particular way.  The object of deferring these matters was again to minimise the costs of the parties.

I propose now to consider the Applicant’s submissions excluding from them the issues which the parties agreed to defer.

Failure of the Tribunal to make a finding of fact whether it accepted that the Applicant belonged to the Begedi tribe or clan

The starting point of the submission is that the Tribunal made comments on the situation of the Applicant in Somalia.  In this section the Tribunal gave information about the Begedi clan and discussed background information from the Department of Foreign Affairs and Trade concerning reer Hamar people.

It perhaps unduly truncates the written submissions to summarise them by saying that ultimately it was said that the Applicant was entitled to know why the Tribunal reached its conclusions by being informed of intelligible reasons.  This required, so it was submitted, express findings rather than discussions where the Tribunal dealt with questions on particular bases.

With respect to the submission, once the Tribunal found, as it did, that the only evidence it accepted from the Applicant was that she was Somalian and that she had arrived in Italy but otherwise that it could not accept the remainder of her claims, it is clear that there was no conclusion that could be reached by the Tribunal whether she was or was  not  a  member of  the Begedi clan.  Further, no conclusion was open to it  other  than  that it was  not satisfied that she had a well founded fear of persecution for a Convention reason.

A fair reading of the Tribunal’s discussion of the situation in Somalia was posited, generally speaking, on the basis that she was, as she claimed, a member of the Begedi clan.  The fact that the Tribunal accepted that the Applicant and her family encountered difficulties during the civil war, although no details of specific attacks visited upon them were provided, hardly takes the matter anywhere.  But in the discussion the Tribunal did  not state a conclusion that she was a member of the Begedi clan for, in not accepting her evidence,  it  could not do so.

Not remarkably, the Tribunal found that the Applicant would face difficulties if she returned to Somalia having regard to the clan warfare and civil war in that country.  A fortiori, not knowing what clan she belonged to, or anything about it, it is hard to see how civil war itself could on any view of the matter constitute persecution.  I accept, and I do not think that it is inconsistent with anything I said in Mohamed,  that persecution for a Convention reason can arise in a country which is engaged in civil war:  cf Abdalla v Minister for Immigration and Multicultural Affairs (unreported, 20 August 1998, Burchett, Tamberlin and Emmett JJ) (special leave to appeal to the High Court applied for) but that cannot arise in the present circumstances.  As counsel for the Minister said in his submissions:

“In the present case, the Tribunal was unable to accept the Applicant’s claims about her clan identity and any position her alleged clan may have found itself in.  As such, the Tribunal could consider only the position of a person caught in a civil war who is not subject to any special or differential impact.”

Whether the Tribunal erred in failing to find that ongoing clan warfare and civil unrest could not amount to a fear of persecution

For the Applicant it is submitted that the Tribunal failed to address the Applicant’s claim that she was at risk of being killed or raped because she was of the Begedi clan.  It is said that the failure of the Tribunal to do so was explicable on the basis that it erroneously considered that such persecution would fall outside a Convention reason.  So it is said that the Tribunal incorrectly interpreted the Convention definition of “refugee”.

However, as I have already said, where nothing at all is known (other than the few matters enunciated) about the Applicant including what clan she belonged to, her case that she feared persecution for a Convention reason, that being membership of a particular clan, could hardly succeed.  No one could doubt that killings, torture, rape and matters of that kind can constitute persecution.  There is nothing in the Tribunal’s reasons that suggests otherwise.  But it was unnecessary for the Tribunal to address the question of whether the Applicant was at risk of being killed or raped because she was of the Begedi clan because it was unable to determine, due to her own lack of credibility, whether she was or was not of that clan.  No error of law is thus demonstrated.

Failing to observe procedure in finding as to persecution

The Applicant’s submissions under this heading are really in the same category but stated in a different way.  The submission is that the Tribunal erred by failing to reveal an intelligible process of reasoning for its conclusion that the Applicant did not have a well founded fear of persecution because she was Begedi.

It may be said that the Tribunal might well have made such a finding if it had been able to find that she was a Begedi.  However, the Tribunal made it clear that it was unable, because of the lack of credibility of the Applicant, to make any findings at all other than those to which reference has already been made.  A fortiori, the Tribunal could not then be satisfied that Ms Elmi had a well founded fear of persecution because she was Begedi because of the simple reason that the Tribunal was not satisfied that she was Begedi.  Reference to the position of minority groups vulnerable to abuse by dominant clans, marginalisation of reer Hamar and other difficulties could hardly support her case having regard to the Tribunal’s inability to make findings of fact.

I accept without any difficulty that failure to provide adequate reasons would constitute a reviewable error but the reasons for the Tribunal’s decision are plain for all to see.

Having regard to my views on the issues that have been raised in the written submissions, I think that it is relatively clear that questions of reasonable relocation and return to Italy do not arise.  Even if the Tribunal erred on these matters, and I do not suggest that it did, the Applicant’s application for review would be bound to fail.

I will hear, immediately after these reasons are published, any argument on the question of whether I should make final orders.  In the meantime I indicate merely that the orders I would propose to make are that the application be dismissed and the Applicant pay the Minister’s costs.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill

Associate:

Dated:            19 November 1998

Counsel for the Applicant:	Mr C Colborne
Counsel for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 October 1998
Date of Judgment:	19 November 1998