Ibrahim, Hussein Mohamed Haji v Minister for Immigration and Multicultural Affairs

[1998] FCA 1292

FEDERAL COURT OF AUSTRALIA

CATCHWORDS

IMMIGRATION – refugees – application for refugee status – definition of “refugee” – whether well-founded fear of persecution – Migration Act 1958 (Cth)

JUDICIAL REVIEW – role of the Court in judicial review – whether Tribunal “incorrectly interpreted the meaning of ‘persecution’ within the meaning of the Refugees Convention” – “course of systematic conduct” – whether Tribunal’s decision involved an error of law- whether Tribunal’s finding of general credibility should lead it to accept all statements by applicant – whether necessary for Tribunal specifically to refer to “political opinion” in order to make a finding on that ground.
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Chan Yee Kin v The Minister for Immigration and Ethnic Affairs, 169 CLR 379

Roda Kabail, Nasir Ahmed Barud and Muna Ahmed Barud v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia, Burchett J, 3 September 1998)

Mohamed Dahir Mohamed v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia, Hill J, 11 May 1998)

Rukhiyah Farrah Mohammed v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia, Madgwick J,  3 September 1998)

Perannian Murugasu v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Wilcox J, 28 July 1987)

Migration Act 1958 (Cth) – ss 430, 476(1)(a) & (e)
Article 1A(2) of the Convention relating to the Status of Refugees, 28 July 1951

HUSSEIN MOHAMED HAJI IBRAHIM v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
NG 689 of 1998

KATZ J
SYDNEY
15 OCTOBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 689  of   1998

BETWEEN:	HUSSEIN MOHAMED HAJI IBRAHIM APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	KATZ J
DATE OF ORDER:	15 OCTOBER 1998
WHERE MADE:	SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

The application be dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 689 of 1998

BETWEEN:	HUSSEIN MOHAMED HAJI IBRAHIM APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	KATZ J
DATE:	15 OCTOBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Section 486 of the Migration Act 1958 (Cth) (“the Act”) confers on this Court jurisdiction with respect to “judicially-reviewable decisions”. Among the decisions which are reviewable by this Court in the exercise of that jurisdiction are decisions of the Refugee Review Tribunal (“the Tribunal”) (see paragraph 475(1)(b) of the Act).

In this proceeding, judicial review of such a decision is sought.

The decision concerned is one which was made by the Tribunal on 8 July 1998. It affirmed a decision which had been made by a delegate of the Minister for Immigration and Multicultural Affairs on 15 January 1998, refusing to grant to Mr Haji Ibrahim a protection visa for which he had applied on 2 January 1998.

(I note that in some of the documents before the Court, the applicant’s name is spelt “Hagi Ibrahim”, rather than “Haji Ibrahim”; for convenience, I will use throughout these reasons the latter spelling, which appears on the application for an order of review originally filed in the proceeding.)

At the date of the decisions of both the delegate and the Tribunal, Mr Haji Ibrahim was a Somali citizen. He had arrived in Australia on Christmas Day, 1997, having travelled here under a false name from Thailand, where he had apparently been living for about two years. He had made no application for refugee status while living in Thailand, apparently because he expected such an application would fail.

In substance, the Tribunal affirmed the delegate’s decision because it professed itself unsatisfied that Mr Haji Ibrahim possessed a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” if he should then return to Somalia.

The words just quoted come from Article 1A(2) of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (“the Refugees Convention”), as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (“the Refugees Protocol”). The quoted words are part of the definition of a “refugee” for the purpose of those international instruments.

Australian migration legislation required the Tribunal to construe and apply those words in the Refugees Convention, as amended by the Refugees Protocol, as part of Australian domestic law: see, in particular, subsections 36(2) and 415(1) of the Act and clause 866.221 of Schedule 2 to the Migration Regulations.

Of the grounds of review by this Court of a judicially-reviewable decision (which grounds are primarily set out in subsection 476(1) of the Act), the three relied on in the (amended) application for an order of review filed in the present proceeding (setting them out in the order in which they both appeared in that (amended) application and were argued in writing and also orally by counsel for the parties) were: first, that the Tribunal’s decision involved an error of law, being an error involving an incorrect interpretation of the applicable law (paragraph 476(1)(e) of the Act); secondly, that the Tribunal’s decision involved an error of law, being an error involving an incorrect application of the law to the facts as found by the Tribunal (again, paragraph 476(1)(e) of the Act); and, thirdly, that procedures that were required by (relevantly) the Act to be observed in connection with the making of the decision were not observed by the Tribunal (paragraph 476(1)(a) of the Act).

So far as the first ground of review is concerned, it was submitted in the written submissions for Mr Haji Ibrahim that the Tribunal had “incorrectly interpreted the meaning of ‘persecution’ within the meaning of the Refugees Convention, s. 36 of the Act, and reg. [sic] 866 of the Migration Regulations”.

(It may be noted here that the word “persecution” does not actually appear in Article 1A(2) of the Refugees Convention; instead, the phrase “being persecuted” does. However, nothing turns on that difference in terminology. The word is intended to convey the same idea as does the phrase in the present context, as is apparent from Article 1C(4) of the Refugees Convention, which speaks of that Convention’s ceasing to apply to a person falling under the terms of Section A if he has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of (not “being persecuted”, but) “persecution”.)

Proof that the Tribunal had incorrectly interpreted the meaning of “persecution” was submitted in the written submissions to reside in the fact that the Tribunal had “repeatedly made reference [in its statement of findings and reasons] to a requirement that for there to be ‘persecution’ there must be a ‘systematic’ course of conduct …”

It was further submitted in the written submissions that the “requirement that there be a systematic course of action does not correctly state the test for persecution …”

(All of the submissions referred to above as appearing in the written submissions for Mr Haji Ibrahim were repeated in substance at the oral hearing of the proceeding.)

The circumstances which lay behind the taking of this ground of review are as follows.

There is no dispute that Mr Haji Ibrahim, who was born in Somalia, is a member of the Rahanwein clan and of one of its subclans, the Dabarre. There is also no dispute that between 1992 and 1995 Somalia was in a state of civil war, having been without a central government since 1991. Before the Tribunal, Mr Haji Ibrahim asserted that a number of particular events had occurred in Somalia between 1992 and 1995, both whilst he was in that country and after he had left it in 1995 and was either in Ethiopia or in Thailand (it is not clear to me which). According to Mr Haji Ibrahim, those particular events had amounted to persecution of persons, including himself, for reasons of their membership of the Rahanwein clan or its Dabarre subclan, which clan and subclan were each said to be a “particular social group” for relevant purposes. Those particular events gave rise in Mr Haji Ibrahim, it was claimed, to a fear, which was well-founded, that, if he should then return to Somalia, he would again be persecuted for reasons of membership of one or other of those particular social groups.

The Tribunal did accept that the Rahanwein clan and its Dabarre subclan were each a “particular social group” for relevant purposes. However, contrary to Mr Haji Ibrahim’s case, the Tribunal concluded that it was not satisfied that the particular events to which he had referred had amounted to persecution of persons, including himself, for reasons of their membership of either the Rahanwein clan or its Dabarre subclan. It followed that the Tribunal was not, as a result of those particular events, satisfied that Mr Haji Ibrahim possessed a well-founded fear of being persecuted for reasons of membership of either of those particular social groups if he should then return to Somalia.

The essence of the Tribunal’s conclusion on this aspect of the matter, exemplifying the use of language complained of for Mr Haji Ibrahim, appeared in the following passage from its statement of findings and reasons,

“What emerges from all the evidence is a picture of the ordinary risks of clan warfare, largely involving struggles for power and resources, in a context of instability and anarchy. Members of all clans and subclans in this tragic turmoil are at risk and, while some may be more vulnerable than others, none of the material before me points to circumstances which would convert the conflict into persecution. I am unable to discern anything in the experiences of the Applicant, or his clan, the Rahanwein, or his sub-clan, the Dabarre, which could be regarded as part of a course of systematic conduct aimed at members of either group, including the Applicant, for reasons of their membership of the group.”

Having set out a passage from the Tribunal’s statement of findings and reasons which exemplifies the use of language complained of for Mr Haji Ibrahim, I should now also, for the sake of completeness, set out an earlier passage from the Tribunal’s statement of findings and reasons, in which it had discussed in a general way the meaning of the notion of “persecution” for present purposes. When contemplating the passage quoted above, I consider it appropriate to do so in the light of that earlier passage. In the earlier passage, the Tribunal had said,

“Harm or threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group which is subjected to systematic harassment, amounts to persecution if done for a Convention reason. In appropriate cases it may include single acts of oppression …”

For the reasons given below, I do not accept that the Tribunal’s reference to “a course of systematic conduct” in the passage from its statement of findings and reasons first quoted above demonstrates that its decision involved an error of law, being an error involving an incorrect interpretation of the meaning of the notion of  “persecution”, as it is used for present purposes.

A number of recent decisions of this Court have been concerned with the use by the Tribunal in its statement of findings and reasons in the present context of the word “systematic”.

One such decision was that of Hill J in Mohamed Dahir Mohamed v Minister for Immigration and Multicultural Affairs (unreported, 11 May 1998), a case, like this, involving a Somali national.

In the course of his reasons for judgment in that case, Hill J noted (at 8) that the “intrusion” (his Honour’s word) of the word “systematic” into the test for refugee status appeared to have had its origin in the reasons for judgment of Wilcox J in Perannian Murugasu v Minister for Immigration and Ethnic Affairs (unreported, 28 July 1987). After referring to the factual circumstances of the latter case, Hill J then quoted (at 8-9) the relevant passage from the reasons for judgment of Wilcox J in it and mentioned (at 9) that, in Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 429-30, McHugh J had referred with approval to the relevant passage from the reasons for judgment of Wilcox J, in the context of a discussion of the meaning of “persecution”. Hill J then (at 9-10) set out what McHugh J had said in Chan’s Case and continued,

“It is evident from the passage above cited that his Honour was not suggesting that there needed to be a series of systematic acts against an individual before it could be said that that individual had a ‘well founded fear’ of persecution. So much appears from the observation made by McHugh J at 430 that a single act of oppression may suffice to show persecution and that it is not necessary that there be a series of acts. Where the fear of persecution is in respect of an applicant’s membership of a group, acts of systematic harassment against the group will show the fear to be well founded. There need not be any particular act in fact perpetrated against the individual. Where the fear of persecution is in respect of an individual's political or religious beliefs the resolution of the question whether the fear is well founded will be assisted if it is shown that a course of systematic conduct has been actuated against that individual. But it is not a necessary prerequisite for success in an application. Evidence that individuals with a similar belief suffered discrimination amounting to persecution would likewise justify the conclusion that the individual’s fear was well founded even if the individual himself or herself suffers only an isolated  act of persecution or none at all. There is no requirement in law that, for an application for refugee status to succeed, the applicant must show a series of coordinated acts directed at him or her which can be said to be not isolated but systematic.”

(The passage I have just quoted from the reasons for judgment of Hill J was subsequently quoted with approval by Burchett J in Roda Kabail, Nasir Ahmed Barud and Muna Ahmed Barud v Minister for Immigration and Multicultural Affairs (unreported, 3 September 1998) (at 5-6) and by Madgwick J in Rukhiyah Farrah Mohammed v Minister for Immigration and Multicultural Affairs (unreported, [also] 3 September 1998) (at 17).)

Later in his reasons for judgment in the Mohamed Dahir Mohamed Case, Hill J applied the remarks of his which I have quoted above to the circumstances of the case before him, saying (at 11-12),

“In some parts of the Tribunal’s reasons reference by the Tribunal to ‘systematic actions’ is used in a way which could not be the subject of criticism. For example, the Tribunal clearly refers to the fact that evidence does not support the:

‘impression of a systematic program on the part of all the Abgal [subclan of the Hawiye clan] towards all the Hilibi [subclan of the Hawiye clan].’

Clearly where the issue is whether a particular act is persecution for membership of a particular group evidence that there is a systematic attack on that group will be most relevant to the issue of persecution. However, there are other instances where the Tribunal’s approach suggests that, for the applicant to succeed, it would be necessary in law to show the acts of persecution complained of by the applicant are themselves not isolated examples but part of a systematic attack against the applicant. If the issue is framed in terms of whether these acts are part of a systematic attack against the group to which an applicant belongs there can be no quarrel with the use of the word ‘systematic’.”

The words of Hill J which I have just quoted, in particular, the last sentence thereof, appear to me to be equally applicable to the passage from the Tribunal’s statement of findings and reasons in the present matter which I have set out above and which exemplifies those of which complaint has been made because of their use of the word “systematic”.

I turn now to the second ground of review relied on for Mr Haji Ibrahim, namely, that the Tribunal’s decision involved an error of law, being an error involving an incorrect application of the law to the facts as found by the Tribunal.

The argument made for Mr Haji Ibrahim in respect of this ground of review had, in effect, four steps logically.

The first was to draw attention to the making by the Tribunal in its statement of findings and reasons of two statements in the course of setting out its findings of fact: first, that Mr Haji Ibrahim’s account of his experiences in Somalia was “generally [internally] consistent”; and, secondly, that Mr Haji Ibrahim was “credible”.

The second was to draw attention to the fact that the Tribunal had stated, in terms, that it did not accept Mr Haji Ibrahim’s assertions as to two particular matters of fact: first, that the aim of a certain warlord’s forces when they attacked and looted a particular city “was to commit genocide on the Rahanwein”; and, secondly, that the aim of another warlord’s forces when they came to a particular area had been the same.

The third step was to argue that, the Tribunal having found that Mr Haji Ibrahim was credible and his account of his experiences in Somalia generally internally consistent and the Tribunal having only stated in terms that it did not accept two particular assertions of fact of his, it followed that the Tribunal must be assumed to have accepted as accurate all of his other (relevant) assertions of fact, including those relating to the existence in others of a persecutory state of mind when they had engaged in certain acts harmful to members of the Rahanwein clan or its Dabarre subclan.

The fourth and final step was to argue that, it being required to be assumed that the Tribunal had accepted as correct Mr Haji Ibrahim’s assertions of fact relating to the existence in others of a persecutory state of mind when they had engaged in certain acts harmful to members of the Rahanwein clan or its Dabarre subclan, it followed that the Tribunal had incorrectly applied the law relating to persecution in the context of the Refugees Convention and Protocol to the facts as necessarily assumedly found by it, thereby committing an error of law within the meaning of paragraph 476(1)(e) of the Act.

I reject the third step in the argument set out above and therefore necessarily reject the fourth one as well.

In the Mohamed Dahir Mohamed Case, to which I have already referred above, Hill J spoke, among other things, about the role of this Court in judicial review, saying (at 11),

“The role of a court in judicial review must of necessity involve an exercise of restraint. Administrative tribunals operate often with considerable constraints both of time and resources. Although generally directed by statute to give reasons and find facts, the real world in which tribunals operate dictates that a court reviewing those reasons must give them what has been called a ‘beneficial construction’. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ quoted with approval the language of the full court of this Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287:

‘The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’

Hence in approaching the question of whether the Tribunal in the present case made an error of law which vitiated its decision … I do so recognising not only the difficulties which face tribunals of this kind in adjudicating upon matters which come before them but also the need for judicial restraint which the High Court counsels.”

It may be appropriate to add here that, in Wu’s Case (at 272), their Honours had also quoted with approval a second proposition from Pozzolanic’s Case, namely, that a court should not be “concerned with looseness in the language … nor with unhappy phrasing” of an administrative decision-maker’s statement of reasons. They had then continued,

“These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.”

To my mind, the third step in the argument which I have set out above cannot be accepted consistently with the approach to judicial review just outlined, by which approach I am obviously (and contentedly) bound.

The Tribunal’s two specific findings that Mr Haji Ibrahim was credible and that his account of his experiences in Somalia was generally internally consistent cannot, as was sought to be done for Mr Haji Ibrahim, be construed as qualified only by the Tribunal’s explicit negative findings about Mr Haji Ibrahim’s assertions regarding genocidal intent in connection with two events and in isolation from the rest of the Tribunal’s relevant findings. To do so would mean imputing to the Tribunal, merely because of some “unhappy phrasing” in its statement of findings and reasons, findings of fact plainly inconsistent with others which it actually made and which represented the core of its approach to the aspect of Mr Haji Ibrahim’s case presently under discussion.

Of course, the Tribunal could (and perhaps, in the interests of greater clarity, should) have explicitly qualified those two specific findings about Mr Haji Ibrahim and his account of his experiences in Somalia by saying, for instance, that both of them were subject to what was to be said thereafter on particular matters or that both of them were limited to what Mr Haji Ibrahim had asserted about physical events of which he had personal knowledge and about his own state of mind. However, I am satisfied that the Tribunal’s failure to do so cannot be used against the Tribunal as it is being sought to be used — to permit it so to be used would represent a triumph of “strict constructionism” in a field in which that approach has no place, as both the High Court and this Court have made clear.

I turn now to the third ground of review relied on for Mr Haji Ibrahim, namely, that procedures that were required by the Act to be observed in connection with the making of the decision were not observed by the Tribunal.

As to this ground of review, during the course of oral argument, I asked counsel for Mr Haji Ibrahim to identify the precise provision or provisions of the Act which he submitted required a certain procedure to be observed in connection with the making of the decision, which procedure had not been observed by the Tribunal. In response, he identified one provision only, paragraph 430(1)(c) of the Act. That provision required the Tribunal to set out, in its statement of findings and reasons, its findings on all material questions of fact.

The circumstances which lay behind the taking of this ground of review are as follows.

It was part of Mr Haji Ibrahim’s case before the Tribunal that a cousin of his father’s, whom he described as his “uncle” in Somali terms, had been a Minister in the government of the former Somali President, Siad Barre (who had fled the country in 1991). The “uncle” had first become a Minister in the late 1970s, had served in three Ministries and was the Minister for Culture and Higher Education when the Siad Barre government fell.

Further, according to Mr Haji Ibrahim, he himself had engaged in tertiary studies in Somalia, while his brother had been awarded a scholarship to study overseas, arranged by their “uncle”.

(I should note here that the information in the preceding two paragraphs was set out at greater length in the Tribunal’s statement of findings and reasons.)

During the oral hearing before the Tribunal, a person representing Mr Haji Ibrahim had made submissions on his behalf. One of the matters on which that representative had made submissions was whether any fear of being persecuted on returning to Somalia which Mr Haji Ibrahim possessed was for a reason set out in the Refugees Convention. Omitting an immaterial interjection by the Tribunal and guessing at some words said in the transcript of the hearing to have been indistinct, I set out verbatim what the representative is reported to have said relevantly,

“I think finally the identifying perhaps the convention reasons there’s a number of possibilities whether his subclan is probably a Dabare [sic] subclan.  There’s the member of the family who was basically associated with the former Siad Barre regime. And who has also gained benefits not just for himself but for his brother who went to study in China and is now in Japan. Also as an educated person in his own right might place him at more risk because he might stand out from the population and therefore be clearly identified as someone who might have gained some benefits. There certainly haven’t been any universities that I know of operating since the civil war…. So they would assume that he has gained some benefit prior to the civil war in Somalia. So I think for these reasons whether it’s on account of political opinion or race as a member of a clan or as a member of a social group, I think he’s differentially at risk and at risk of being [persecuted. Internal flight] is not available and I think on looking at the persecution he’s already suffered and it’s likely that there’s a real chance that he would face some form of persecution if he was put back into that place where he came from, Somalia.  That’s the case.”

Later, in written submissions made to the Tribunal on Mr Haji Ibrahim’s behalf, it had been said, among other things, when discussing the existence of a Convention reason for his fear of being persecuted, that “[a] hostile political opinion … [might] … be imputed to him due to his family’s close association with the former government of Said [sic] Barre”.

Still later, Mr Haji Ibrahim’s solicitor, in his ultimate communication to the Tribunal, wrote that he took the opportunity to remind the Tribunal of submissions made at the oral hearing, particularly, that Mr Haji Ibrahim,

“… is the [sic] member of a particular social group of well educated persons, and a member of a family which benefited under the former regime of President Said [sic] Barre. This makes him differentially at risk because he obtained that education under the former regime and therefore may be implicated as someone who benefited from that regime. Furthermore, the Tribunal is aware that his brother was sent to China to study. Scholarships were not given on merit criteria, but clan-based dependent upon allegiance to Said [sic] Barre.”

In its statement of findings and reasons, under the general heading “Findings and Reasons”, the Tribunal began to deal with that aspect of Mr Haji Ibrahim’s case which I have set out above.

It first summarised his case relevantly as being that he was “differentially at risk for reasons of membership of a particular social group of well-educated persons and a member [scil, membership] of a family which had an allegiance to and benefited under the former regime of  President Siad Barre”. The language used in that summary obviously closely approximates that of Mr Haji Ibrahim’s solicitor in his ultimate communication to the Tribunal.

The Tribunal then described the most crucial question before it as being whether Mr Haji Ibrahim’s fear was one of persecution “for a Convention reason” or whether instead any harm he faced was the consequence of civil unrest. Among the potential Convention reasons it identified as applicable was Mr Haji Ibrahim’s “membership of a particular social group of well-educated persons, or membership of a family which was allied to and benefited under the former regime of President Siad Barre”, again using language closely approximating the language used by Mr Haji Ibrahim’s solicitor in his ultimate communication to the Tribunal.

Then, under the subheading, “Membership of … his ‘uncle’s’ family”, the Tribunal referred to Mr Haji Ibrahim’s representative’s having “submitted that he is at risk of differential harm because of his level of education and his relationship to his uncle, who was allied to Siad Barre”, referring yet a third time, it would appear, to the language used by Mr Haji Ibrahim’s solicitor in his ultimate communication to the Tribunal.

The Tribunal then rejected that submission, saying among other things,

“I am not satisfied on the evidence before me that the Applicant faces a ‘real chance’ of persecution for reasons of his membership of his ‘uncle’s’ family…. Moreover, even if I were to accept that ‘well-educated persons and a member of a family which benefited under the former regime of President Siad Barre’ could be regarded as a particular social group, which I very much doubt, I am not satisfied that the Applicant has suffered or will suffer for reasons of membership of such a group.

…

I am not suggesting that persecution for a Convention reason never occurs, or could never occur, in the context of the civil war in Somalia. However the Applicant’s circumstances lead me to find that he is not differentially at risk for a Convention reason and that the harm he fears is by reason of the civil unrest in Somalia and not persecution for reasons of his clan membership, or for any other Convention reason, over and above the ordinary risks of civil warfare.”

It was in the circumstances described above that it was submitted for Mr Haji Ibrahim that the Tribunal had not set out, in its statement of findings and reasons, its findings on all material questions of fact, having omitted to set out its findings of fact on the questions whether Mr Haji Ibrahim possessed a fear, which was well-founded, of being persecuted for reasons of political opinion if he should then return to Somalia.

In dealing with this submission, I return again for guidance to the reasons for judgment of Hill J in the Mohamed Dahir Mohamed Case. In that case, his Honour said (at 14),

“For an applicant to succeed on review in setting aside the decision of a tribunal for failure to comply with s 430, it is obvious that there must be a substantial failure to comply with the section before a ground of review is made out. Particularly the Court should not impose upon the Tribunal a standard of perfection in both fact finding and process of reasoning which is unattainable. Section 430 and sections in other Acts of similar purport give legislative guidance to a Tribunal of its obligation to so construct its reasons that a party to the dispute before a Tribunal can comprehend why it was that the Tribunal reached the conclusion it did and can consider whether to seek judicial review of the decision or appeal it. Likewise the reasons provide the framework in which a judicial review of the decision may proceed by informing the Court of the process adopted by the Tribunal in reaching its conclusion.”

(The passage I have just quoted from the reasons for judgment of Hill J was subsequently quoted with approval by Madgwick J in the Rukhiyah Farrah Mohammed Case, also already referred to above (at 12).)

Adopting the approach set out above (which is, of course, consistent with that taken by the High Court in Wu’s Case), I have concluded that the Tribunal did not breach its obligation under paragraph 430(1)(c) of the Act to set out, in its statement of findings and reasons, its findings on all material questions of fact.

It is true that the Tribunal did not, in terms, express the conclusion that it was not satisfied that Mr Haji Ibrahim possessed a well-founded fear of persecution for reasons of political opinion if he should then return to Somalia. However, I do not consider, in the circumstances, that that was necessary — certainly, I do not consider that a failure to do so could be described as a “substantial” one.

There are two reasons why I take that view.

First, it is not clear to me, given the various things said on his behalf at various stages which I have set out above, that Mr Haji Ibrahim’s case ultimately included a claim of well-founded fear of being persecuted specifically for reasons of political opinion.

Secondly, however, if it did, then the Tribunal, by its expressed conclusions that Mr Haji Ibrahim was “not differentially at risk for a Convention reason” (my emphasis) and that the harm he feared was “by reason of the civil unrest in Somalia and not persecution for reasons of his clan membership, or for any other Convention reason, over and above the ordinary risks of civil warfare” (again, my emphasis) had expressly (in the sense of plainly, clearly or explicitly: see, eg, Donnelly v Edelsten (1992) 34 FCR 556, 560-61 (Ryan J)) stated its lack of satisfaction that Mr Haji Ibrahim possessed a well-founded fear of being persecuted for reasons of (relevantly) political opinion.

I reach the conclusion just expressed the more comfortably because it appears to have been Mr Haji Ibrahim’s claim, at least at the Tribunal’s oral hearing, if not ultimately, that the facts which he had established were equally capable of being characterised as a well-founded fear of being persecuted for reasons of any one of three of the Convention reasons, namely, race, membership of a particular social group or political opinion. In a context in which such a claim had been made, the Tribunal’s references to an absence of risk of persecution “for a Convention reason” and to an absence of risk “for reasons of … clan membership … or … any other Convention reason” are more likely to have been directed to an absence of risk of persecution for reasons of (relevantly) political opinion than to have been mere “window dressing”.

In sum, the Tribunal is not required in the present matter to have used, in terms, the words “political opinion” before it will be taken to have set out its findings of fact on the “political opinion” issue.

In all the circumstances, Mr Haji Ibrahim’s application for judicial review of the Tribunal’s decision must be dismissed with costs.

I certify that this and the preceding seventeen (17) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz

Associate:

Date:               15 October 1998

Counsel for the Applicant:	Mr N Poynder
Solicitor for the Applicant:	Legal Aid Commission of NSW
Counsel for the Respondent:	Mr N Williams and Ms S McNaughton
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	2 October 1998
Date of Judgment:	15 October 1998