Jama v Minister for Immigration and Multicultural Affairs
[1999] FCA 977
•16 JULY 1999
FEDERAL COURT OF AUSTRALIA
Jama v Minister for Immigration & Multicultural Affairs [1999] FCA 977
IMMIGRATION - review of decision of Refugee Review Tribunal – Somali woman seeking refugee status - fear of persecution on grounds of clan membership - fear of persecution as a young single woman - whether finding that civil war is "traditional" conflict precludes finding of Convention-persecution - significance of unofficial protection in absence of a functioning state - whether applicant can be safely repatriated - whether there is any evidence to support a denial of refugee status
Migration Act 1958 (Cth), ss 476(1)(c), 476(1)(e), 476(1)(g), 476(4)(a)
Abdalla v Minister for Immigration and Multicultural Affairs [1998] FCA 1017, applied
Minister for Immigration and Multicultural Affairs v Abdi [1999] FCA 299, appliedKALTUN ISMAIL JAMA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 705 of 1998
MADGWICK J
SYDNEY
16 JULY 1999
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 705 of 1998
BETWEEN:
KULTUN ISMAIL JAMA
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
MADGWICK
DATE OF ORDER:
16 JULY 1999
WHERE MADE:
SYDNEY
SHORT MINUTES OF ORDER
THE COURT ORDERS THAT:
1.The application is allowed.
2.The matter is to be remitted to the Refugee Review Tribunal for determination according to law.
3.The respondent is to pay the applicant's costs.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 705 of 1998
BETWEEN:
KULTUN ISMAIL JAMA
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
MADGWICK
DATE:
16 JULY 1999
PLACE:
SYDNEY
REASONS FOR JUDGMENT
HIS HONOUR:
This is the case of a lone young single Somali woman who has no immediate family in her strife-torn homeland and is otherwise without protection there. She seeks haven, as a refugee, in our country. Her sincerity is not in doubt, so the case is another in the long series of such matters, of vital importance to the applicants, that trouble members of the Refugee Review Tribunal, judges of this Court and the High Court, and members of other courts and adjudicative bodies around the world.
The courts do not speak with one voice in these matters, despite the interpretation of a single international treaty being at the heart of such litigation. The subject matter and the wording of the Convention are apt to divide judicial opinion. It is a matter of self-criticism, as much as general observation, that individual courts and even individual judges cannot always ensure consistency. These are emotionally charged matters. Consciously or unconsciously, judges are tugged at by emotions and perceptions that may not be easily reconciled. On one hand, hearts not made of stone cannot fail to be touched by the lives of those who may, or may not quite, qualify as Convention-refugees. On the other hand, perhaps especially when considering the question of "social group", the inadmissible questions: "Where will it all end? How can we accept all such people?", often leap to mind and, one sometimes feels that the sense of alarm that they evidence is only successfully suppressed in the conscious mind. The legal necessity for such suppression, it should be unnecessary to say, arises because under the Migration Act nobody - Minister, Tribunal or Court - is authorised to deny a person a protection visa as a "refugee" on the ground that, if one particular person obtains such a visa then, to be consistent, many other similarly-placed people ought to be granted one too. The accomplishment of that legal necessity is not made easier by the baying of merely populist critics of reasoned judicial decisions. But to the extent that such criticism is not resolutely treated as the dross that it is, the law may be subverted. Added to this is the usual risk that one may not be able to entirely overcome, and in some cases even to acknowledge, one's own prejudices of sexism, classism, ethnocentrism, religious sympathies and antipathies and so on, that may have special opportunity to influence the outcome in refugee cases, with their "human rights" undertones. Finally, in this country, the usual tensions between courts and administrators are aggravated by the markedly liberal form of administrative review and the markedly illiberal form of judicial review adopted by the relevant statute.
These comments are intended to underline the importance of keeping firmly in mind that one is, in these cases, interpreting a great international humanitarian treaty, that the courts ought to strive for international comity, and that it is necessary, by conscious and constant renewal of one's determination, to resist what may appear to be either the bully-boy tactics or the siren call of populist sentiment, whether essayed by the yellow press or by political figures. The present is the sort of case where these self-strictures may be particularly apposite.
The applicant's case
In 1988, when she was 11 years old, the applicant fled with her family from Hargeisa in the north-west of Somalia, in what was formerly British Somaliland, to Ethiopia. Her family lived in "refugee camps" in Ethiopia under UNHCR auspices, and is still there. She came here in 1997 on the sponsorship of her then fiancé, himself a refugee from Somalia, who has since abandoned her for what he evidently sees as her excessive piety in her Muslim faith. She has no right to go back to Ethiopia.
Her case was initially put in two statutory declarations which including the following statements (re-arranged in order, to some extent):
"I was born on 1 February 1977 in Hargeisa, Somalia. I have seven full-siblings and 10 half-siblings, all of whom now reside in Ethiopia. My father and mother also reside in Ethiopia and prior to my coming to Australia I lived with my mother and unmarried full siblings in Addis Ababa. I am a member of the Isaaq clan, Musa Arra sub-clan. [In fact, the applicant's family belonged to the Musa Arra sub-clan, which itself formed a part of the Habr Yunis sub-clan, which in turn belonged to the Isaaq (or Isaak) clan].
My family left Somalia in 1988 during the first stages of the civil war when the then President of Somalia, Siad Barre, sent his forces to Hargeisa and the surrounding areas to crush opposition to his government from a number of tribal factions which had been formed, including the Somali National Movement which is dominated by the Isaaq clan.
…
I would be compelled to return to Somalia if removed from Australia. Both my parents and all my siblings reside in [Ethiopia], as well as many of my relatives, and I do not know of anybody in Hargeisa who I could live with and expect protection from.The war in Somalia continues and in my home town of Hargeisa there is still fighting between the so-called government forces of "President" Mohamed Ibrahim Egal and forces loyal to the former Somaliland president Abdirahman Ahmed Ali. Abdirahman Ahmed Ali is a member of the Musa Arra sub-clan and is opposed to the separation of north Somalia from south Somalia. Egal, who is currently in control of Hargeisa, advocates a separate state known as Somaliland and this is essentially the reason for the dispute between these two groups. As a young, unaccompanied woman I believe I would be at risk of persecution if returned to Hargeisa because my clan is currently being persecuted by clans loyal to President Egal. I do not believe it would not be possible for me to live anyway [anywhere?] in Somalia in safety."
"Most of my clan members used to live in either [Hargeisa] or Berbera. I cannot return to [Hargeisa] as it is being ruled by Mohamed Hashi Elmi who is [of] the same clan of Egal. The latest news from my family adds to my fears of returning to Somalia. This information indicates that there is fighting in Berbera where other members of my clan were living.
…
The remaining members of my clan have fled from Berbera, some went through [Hargeisa] to Ethiopia.
…
The Reer Baale are a sub clan of Isse Muse (Ciise Muuse) the clan of 'President' Mohamed Ibrahim Egal … These are the people who are targeting members of my clan - the Musa Arra.
…
Now that all my clan members have fled Berbera I could not go there. I fear that I cannot return to any part of Somalia in safety. I have no family members remaining in Somalia. There is no peace and no law and … as a single woman member of the Musa Arra sub-clan, I would not be protected."In her oral evidence before the Refugee Review Tribunal ("the Tribunal") the applicant said that there was fighting between the Habr Yunis (the "parent" subclan of her subclan, it will be recalled) and the Habr Awal subclan, that the Habr Awal were ruling the region, and that the Mayor of Hargeisa, her home town, is of the Habr Awal subclan.
The Tribunal's approach
The Tribunal accepted that the "applicant fears that she will be killed if she returns to Somalia as retaliation by the ruling subclan against her subclan" and that the Habr Yunis subclan was a "particular social group" within the meaning of the Convention (as, it seems, the Musse Arra subclan was also). However, the Tribunal took the view that, although "Somalia is in a state of civil war and … much of it is clan-based with shifting alliances", there was:
"no evidence before the Tribunal that supports the view that the Habr Yunis subclan Musse Arra is being persecuted for a Convention reason - the opposing clans are fighting over the control of North West Somalia"
(In the context, the term "no evidence" is best understood as meaning "insufficient evidence." In her reasons the Tribunal member stated that: “There is no evidence before the Tribunal that supports the view that the Habr Yunis sub-clan Musse Arra is being persecuted for a Convention reason”. However, as will appear, the evidence thereafter cited by the Tribunal was littered with examples of brutal clan-based conflict. There was nothing to indicate that the Musse Arra subclan of the Habr Yunis was treated differently from other Habr Yunis. There was positive and uncontradicted evidence from the applicant that the Musse Arra were opposed to the same forces and clans as were the Habr Yunis. Elsewhere, the Tribunal seemed to treat the applicant's membership of the Musse Arra and of the Habr Yunis as more or less interchangeable concepts.)
The Tribunal also accepted that "young single Somali females without protection" are a particular social group. As such, the Tribunal considered:
"she may be vulnerable to random violence for that reason. However, there is no evidence of a course of systematic harassment of this group in Somalia and I am not satisfied that the applicant will be persecuted for reasons of her being a single female without protection."
In any case, the Tribunal found that "protection is available to the applicant from either her clan or from the interim government in place in North West Somalia". The Tribunal accepted certain independent evidence, which she summarised as being that "there is relative stability in Hargeisa … [with] policemen and an army maintaining law and order". The Tribunal also accepted the UNHCR's analysis of the situation "that clan members may stay in safety in their own clan areas and that stability as well as law and order have returned to most of the territory". This evidence was apparently understood by the Tribunal member to indicate that safe conditions existed in Hargeisa, or at least in North West Somalia. A question arises as to whether any of this meets or is capable of meeting the applicant's point that her subclan is at risk from Habr-Awals.
Various legal attacks were made on the Tribunal's decision and reasoning. It is convenient to begin with those concerning possible persecution of the applicant because of her clan affiliation.
Persecution for reason of membership of the Habr Yunis sub-clan
As earlier indicated, the Tribunal accepted that the applicant was a member of the Habr Yunis sub-clan and that the sub-clan constituted a social group. The Tribunal also accepted that Somalia is in a state of civil war, the nature of which is clan-based with shifting alliances. However, the Tribunal rejected the nexus, posited by the applicant, between the applicant’s sub-clan and any harm that she may suffer. The Tribunal stated that:
“A power imbalance between warring groups … does not of itself convert the warfare into ‘persecution’ of the weaker and more vulnerable group unless the group is being systematically harassed for a Convention reason.
…
Where an applicant’s claims concern clan warfare it will be necessary to consider whether the fighting is aimed at establishing or maintaining power or establishing control over land or resources, which would generally not be persecution, or whether it can properly be regarded as part of a course of systematic conduct or harassment for a Convention reason.There is no evidence before the Tribunal that supports the view that the Habr Yunis subclan Musse Arra is being persecuted for a Convention reason. According to independent evidence the opposing clans are fighting over the control of North West Somalia.”
The Tribunal relied on the judgment of Wilcox J in Murugusu v Minister for Immigration and Ethnic Affairs [1987] FCA 414 to support this finding, and quoted the following passage:
"The word ‘persecuted’ suggests a course of systematic conduct aimed at an individual or at a group of people. It is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances.”
The Tribunal also noted the UNHCR Handbook advise that:
“Persons compelled to leave their country of origin as a result of international or national armed conflicts are not normally considered refugees under the 1951 Convention or 1967 Protocol.”
Thus, the Tribunal’s reasoning drew a clear distinction between hardship suffered “by reason of” conflict motivated by control over resources or territorial dominance (“traditional aims of warfare”) on the one hand, and systematic harassment “by reason of” a convention ground (“convention persecution”) on the other. This is a distinction now well established in migration case law: see for example Mohammed v Minister for Immigration and Multicultural Affairs [1998] FCA 1077, and Minister for Immigration and Multicultural Affairs v Abdi [1999] FCA 299. Having characterised the clan conflict in Somalia as a conventional military conflict, the Tribunal then concluded that any harm suffered by the applicant, if returned, was outside the ambit of the Convention.
However, whilst the distinction drawn between “traditional warfare” and “convention persecution” may be a useful one in analysing the source of an applicant’s feared harm, such categories of causation are not mutually exclusive. Therefore, a finding that the Somalian civil war was conducted in order to obtain control over territory or resources, does not preclude a finding that harm may have been concurrently caused for a Convention reason. In many conflicts the participants have both “traditional” and persecutory motives. There may also be wars that begin for “traditional” reasons, but which develop a persecutory element. This point was clearly made in Abdalla v Minister for Immigration and Multicultural Affairs [1998] FCA 1017. The Full Court stated:
“The fact that a recurring pattern can be loosely described as communal violence or even civil war does not mean that it cannot amount to ‘persecution’. It is necessary to examine the situation further in an attempt to determine the purpose which gives rise to the violence or danger. The decision in respect of whether recurring violence amounts to ‘persecution’ depends on whether there is a purpose behind the recurring pattern which is referable to a Convention ground… Competition for territory, depending on the circumstances, may also lead to persecution.”
A similar point was recently made in Adbi’s Case. At 13 the Full Court there said:
“The task of the decision-maker … must be to investigate the reasons underlying the war and the way it is conducted in order to ascertain whether it is based on a Convention ground … This responsibility cannot be curtailed by a conclusion that there is a state of war.”
A fair reading of the Tribunal’s reasons suggests that upon characterising the Somali conflict as “traditional” the Tribunal effectively foreclosed the possibility that the conflict may have also generated “Convention persecution.” This reasoning discloses an error in the Tribunal’s interpretation of the applicable law and thus an error under s 476(1)(e) of the Migration Act (Cth) 1958 (“the Act”).
Persecution for reason of membership of a social group of single young women
The Tribunal accepted that “young single Somali females without protection” did form a social group to which the applicant would belong if she returned to Somalia. However, the Tribunal did not accept that the applicant would be persecuted by reason of her membership of that group:
“I accept that the applicant is [a] young, single, woman without her immediate family and that as such she may be vulnerable to random violence for that reason. However, there is no evidence of a course of systematic harassment of this group in Somalia and I am not satisfied that there is a real chance that the applicant will be persecuted for reasons of her being a single female without protection.”
Reading this with the attitude of trying to understand what the Tribunal’s reasons really were, it seems to me that the point being made was that it is not because of the applicant’s membership of the particular, designated social group that she is in danger of serious harm, but because she is a vulnerable young woman. Other young (and, at least some older) women would also, no doubt, be vulnerable from time to time in Somalia. But nothing appeared to suggest that all women in circumstances of vulnerability constituted a social group, nor that its members were targeted because of their group membership. Hence, I see no legal error in the Tribunal’s conclusions in this respect. An error that was suggested by counsel for the applicant fastened onto an impermissible requirement of continuity of harassment that might be attributed to the Tribunal’s words. However, I do not think that that is what the Tribunal meant.
On this basis the issue of the applicant’s vulnerability in transit through Somalia at large, or Somaliland in particular, is legally irrelevant.
Available protection
I turn now to the Tribunal’s conclusion that "protection is available to the applicant from either her clan or from the interim government in place in North West Somalia". As counsel for the respondent observed, it would not matter that other errors may have been made if protection was available to the applicant. A correct finding that protection is available would preclude a finding that the applicant is a refugee.
The situation in Northern Somalia presents certain unusual features. It seems that the writ of her country of nationality, Somalia, no longer runs in the north-western part of it. Indeed so far as there are "authorities" there, they assert that "Somaliland", the former British Somaliland comprising the northern part of Somalia, is an independent nation. No other nation seems to recognise that claim. This seems to make a nonsense of the idea that, in the north-west, any Somali might "avail himself [or herself] of the protection of that country". According to Hathaway, the Convention's
"focus of analysis is the relationship between the claimant and [his or] her national government. Where there is no de facto freedom from infringement of core human rights in a particular region (for example, due to the actions of forces which make the exercise of national protection unviable), but the national government provides a secure alternative home to those at risk, the state's duty is met and refugee status is not warranted": (Hathaway J, The Law of Refugee Status 3rd ed Butterworths, Canada, 1996 at 133. Emphasis added. See generally pp 133-4).
However, if "protection", substantially of the kind which functioning states are expected to provide for their nationals, is available in an area of the country of nationality from some local force, whether a de facto local government or otherwise, it would seem to follow that there cannot be a "well-founded" fear of persecution.
However, in order to abate such a fear, one must be able to reach such an area of protection from outside the country of nationality. This is an obvious point, but one of significant logistical importance to a returning applicant. Depending upon where the "protected area" is located within the country this may be achieved by merely crossing an international border, by direct air flight (if available), sea voyage, or by surface travel through the country. In the last mentioned case, logic would require that a well-founded fear of persecution while travelling in the country of nationality, outside such a protected area, may render an applicant "unable" or "unwilling" to avail himself or herself of that country's protection.
The relevant piece of evidence upon which the Tribunal seems to have relied in this case was a UNHCR "Country Paper, North West Somalia" published in January 1996. It says that:
"The Habr-Awals [the supporters of those that the applicant’s subclan opposes] from Hartisheikh camps continue to [settle comfortably] in the Gabiley, Hargeisa and Berbera areas. The Issa and Garhaji clans, currently in conflict with the mainstream administration in Hargeisa, are mostly displaced but remain within their traditional clan settlements. It is worth noting that organized repatriation from Kenya to Sool and Sanaag regions took place through Berera without problems despite the heavy fighting around Hargeisa between November 1994 and early 1995." [emphasis added]
Further evidence, apparently accepted by the Tribunal, was this:
"William Sakataka [a UNHCR worker] stresses the fact that security in connection with repatriation of Somalis from abroad is jeopardised only if contact has not been made in advance to the existing authorities in Somaliland, as well as to the relevant clan elders ("garads") at the place of destination. He recommends that foreign immigration authorities intending to return Somalis to Somaliland adopt a so-called "regional approach", i.e. that they relate to the local situation in the country and not to the general conditions, and that repatriations are never made over the heads of the authorities. This last point was subsequently dealt with in no uncertain terms by Kyaw Zin Lha, Head Office for UNHCR in Hargeisa, who in very forceful language dissuaded any form of returning people to Somaliland without authorisation by the authorities."
…
Mohammed Hashi Elmi, Hargeisa's mayor, informed the delegation that he has divided the town into five districts with a view to keeping track of the distribution and numbers of returning refugees. He stated that every month several hundred families return to the town as a consequence of the improved security situation. Erasmus Morah, UNICEF, adds that many of these even belong to clans whose original home is not Hargeisa.UNHCR makes great efforts to ensure that refugees returning from UNHCR camps in Ethiopia remain in North West Somalia." [emphasis added]
There was other relevant evidence expressly or implicitly also accepted by the Tribunal, some of which pointed in a contrary direction (I have supplied the emphasis). By way of general background, a 1987 monograph, prophetically entitled "Somalia: Nation in Search of a State", was cited:
"A person … gives political allegiance first to his/her immediate family, then to his immediate lineage, then to the clan of his lineage, then to a clan-family that embraces several clans, including his own, and ultimately to the nation that itself consists of a confederacy of clan-families. Each level of segmentation defines a person's rights and obligations as well as his/her standing in relation to others. The segmentary law dictates, for example, that two lineages that are genealogically equidistant from a common ancestor should stand in an adversarial relationship to each other but should be drawn together as allies against the members of a third lineage whose genealogical lines fall outside of the common ancestor. The result is a society so integrated that its members regard one another as siblings, cousins, and kin, but also so riven with clannish fission and factionalism that political instability is the society's normative characteristic."
The Tribunal said:
"In the last few years there have been numerous reports of fighting between rival clans:
'On 16 November 1994, Reuters reported heavy fighting occurred in Hargeisa between Habr Awal militias loyal to Egal and Habr Yunis militias loyal to the region's former ruler Abdurahman Ahmed Ali "Tur". The fighting was believed to have resulted in "a great number of casualties on both sides". Twenty foreign relief workers abandoned the town.'
…
In spite of the ongoing fighting, a number of sources have described the situation in more positive terms…‘In the northwest of the country … the self-declared independent Somaliland has stayed relatively calm and struggles to rebuild and win international recognition.'
Africa Confidential reported on 31 March 1995 … that President Egal was in charge of Somaliland and that negotiations with disgruntled clans had begun. The report also indicated that Egal had made considerable achievements such as the creation of a functioning administration, including police, army and civil service. Government revenue was coming from the fast growing trade through Berbera, much of it destined for Ethiopia, and from taxes on the lucrative trade in qat, a narcotic leaf.
…
The Documentation, Information and Research Branch of the Canadian Immigration and Refugee Board reported the following in September 1996…'Since January 1996 there has been periodic fighting (usually outside of Hargeisa) between government troops and small factions opposed to the government of President Mohamed Ibrahim Egal … One of the factions, the Habr Younis, is reportedly aligned with supporters of General Aidid … In May 1996, however, a contingent of the Habr Younis fighters surrendered to the Somaliland government … On occasion humanitarian organizations have been attacked or have ceased operating because of the unstable security situation…'
4. Somali Refugees in Ethiopia
…
The largest inflow of Isaaq refugees from … northern Somalia happened in 1988 when the civil war in Somalia forced about 400,000 of them to flee to Ethiopia where they were mostly accommodated in UNHCR camps in the Somali region of Ethiopia…A large scale self-repatriation that began in 1990 and 1991, and the UNHCR-sponsored repatriation of Somali refugees from Ethiopia to North-West Somalia was suspended in 1994 due to the renewed fighting in the Hargeisa region in November that year.
…
Further outbreaks of fighting in Somaliland in March 1995 delayed the repatriation of Somali refugees from Ethiopia but in August 1996 UNHCR announced that 10,000 Somali refugees from Ethiopia will return to North-West Somalia. This program was to serve as a pilot project for a full program for 1997 which meant to involve 100,000 Somali refugees, out of 275,000 still … remaining in Ethiopia.
…
"in the North West conditions have steadily improved and indeed in terms of the governance of the country and security, the ameliorations have permitted the return to a considerable degree of normalcy - albeit within the context of traditional clan system and the socio-political environment in which it survives... Indeed, over the five years since the end of the civil war in Somalia particularly in 1995, political and humanitarian developments in the North West Somalia have, on the whole, been positive. Major trends - many still underway continue to influence the formalization of the socio-economic life in most of the region. These trends have over that period generated intense spontaneous returns to North West Somalia attesting to the fact that stability as well as law and order have returned in most of the territory…
…
UNHCR's security analysis of North West Somalia strongly stresses the clan allegiance and the fact that clan members may stay in safety in their own clan area. Thus UNHCR says that traditional clan areas in Somaliland guarantee the safety of returned Somalis in the country far more than the presence of ordinary security personnel (read police and similar). According to UNHCR this pattern also applies to those who return to the towns in order to settle as tradesmen (UNHCR Hargeisa:Country Paper, North West Somalia, 26 January 1996).Any fights between various clan factions - regardless of where they occur - are without exception short-lived and quite local. The traditional conflict-solving mechanisms are found to be intact, and reconciliation conferences are a current activity in Somaliland, according to the UNHCR."
A Canadian Refugee Board research paper stated:
"In a telephone interview on 24 April 1996, an anthropologist specialising in Somalia [at US University] stated that given the fact that Somali society is extremely male-dominated, a woman with no kinfolk, especially without male relatives, would have 'a very difficult time fending for herself.' Most economic resources are controlled by men, and women in this circumstance have difficulty finding a way to support themselves. Often they are forced to run tea stalls in the marketplaces or sell the narcotic, at, on the street.
A [US] political scientist … stated in a telephone interview on 25 April 1996 that no one has any security guarantees in Somalia. In general, it would be dangerous for a woman without kin because security is often dependent on the threat of retaliation by male members of the family and/or clan group. The political scientist added that there is no way to know how secure a person would be in Somalia, or how he or she might be treated upon return."
A background paper prepared by the United Nations High Commission for Refugees (October 1996) on "Refugees and Asylum Seekers from Somalia" included the following:
"Women and children
Human Rights Watch states that 'throughout the Somali conflict, rape has been used as a weapon of war by all the factions to punish rival ethnic factions' ... Although the number of rapes, abductions and force[d] marriages committed during the 1991-92 period was very high, the abuse is by no means limited to this period. The women most at risk seem to be the internally displaced, those who lack the protection of powerful clan structures and those of minority clans or ethnic groups. The limited protection and redress available to women is generally based on clan affiliation, which has led many women to support the Shari'a [sic] tribunals."
In an article which appeared in the "Refugee Survey Quarterly" in 1994 bearing the title "Women in Somalia" the following was said:
"According to one analyst, moving to another area within Somalia presents its own perils. Travelling internally at present is difficult, as it requires money that most Somalis, especially women do not have. The infrastructure is in disarray. Most importantly says one analyst, one must attempt to reach an area that is controlled by one own's [sic] clan; crossing the territory of another clan can be dangerous. For many Somalis, women in particular, alternative to remaining in an untenable situation is often to walk to one of the refugee camps located on the border of Somalia."
Putting it at its highest, in favour of her conclusions, all the evidence referred to by the Tribunal member, which she appears to have accepted, amounts to this:
·Despite outbreaks of fighting, conditions in North West Somalia had improved and there was a return to a "considerable degree of normalcy".
·Large numbers of Somali refugees in Ethiopia had been repatriated.
·The security situation in Hargesia was "stable" and reconstruction was under way. Returning Somalis could stay in safety "in their own clan area".
·All fighting between clan factions was "short-lived [this term needs explanation - see below] and local". "[T]hus" Habr-Awals could comfortably return to Hargeisa and Berbera.
·The Issa clan (this seems to include the applicant's subclan, the Habr Yunis) was in conflict with the mainstream administration in Hargeisa and was mostly "displaced" but remained within "traditional clan settlements".
·"Organised repatriation" had occurred through Berbera without problems, despite heavy fighting around Hargeisa "between November 1994 and early 1995" (fighting over such a period must therefore be comprehended within the term "short-lived" earlier quoted).
·It would be perilous to attempt repatriation of a Somali from abroad without "authorisation" by the local "authorities".
·The mayor of Hargeisa had accepted several hundred returning families, some of them from clans whose original home was not Hargeisa, in consequence of the improved security situation.
·The UNHCR was making great efforts to assist infrastructure projects, such as water supply, to ensure that erstwhile refugees who had fled to Ethiopia would not again leave North West Somalia.
·The Habr Yunis subclan, to which the applicant belongs, seems to have been a principal opposition force in Hargeisa to the forces and "authorities" supporting the de facto government of breakaway Somaliland.
·The only evidence from which an inference might conceivably be drawn that that subclan, as distinct from some (and probably many) others, was reasonably reconciled to such authorities, including the mayor of Hargesia, was that some ("a contingent") of the Habr Yunis fighters surrendered to the Somaliland government in May 1996. However, as late as September 1996, "periodic" fighting between government troops and "small factions", one of which was the Habr Yunis, was continuing. The fighting had commenced in January 1996.
It is only fair to acknowledge that the Tribunal member seems to have diligently researched conditions in Somaliland and Hargeisa. Nevertheless, it appears to me that the member has misapprehended either the evidence or the true subject for inquiry or both. There is, as I have indicated, one fragment of evidence that focuses on the matters relevant to the question at hand. Limited as it is, both as to content and extent, that material is incapable of amounting to evidence that could negate the proposition that there was a reasonable chance that the applicant would face persecution because protection from the ruling forces, hostile to her subclan, would not be afforded to her. The applicant's subclan was, on the latest information, still in armed, if episodic, opposition to the local de facto authorities, themselves based on hostile clans; the applicant had had uncles killed; she feared death or rape; rape is a common weapon used against members of hostile subclans. The other evidence of improved conditions in, and tolerated influx of former refugees to, Hargeisa furnished no basis for a conclusion that there was no reasonable chance that a member of the Habr Yunis would be persecuted either once living, or in the process of arriving, there.
That, in my view, amounts to an error reviewable in this Court. The case appears to fall within the ambit of s 476(1)(g) as limited by s 476(4)(a). Subsections (1)(g) allows for judicial review where "there was no evidence or other material to justify the making of the decision". However, this ground of review is limited to two circumstances, specified in subs 476(4), including paragraph (a) which states that:
"the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established."
This case seems to be an unusual instance in which the terms of para 4(a) are met. In general, it is for an applicant to put his or her claims and any supporting material before the Tribunal. It is for the Tribunal to decide, usually in practice after further inquiries, whether or not it is satisfied as to the matter which would require recognition of refugee status as being held by the applicant. In the usual case, s 476(4)(a) would only apply if there was no evidence to support some positive claim that the applicant was asserting (and an applicant would hardly be complaining that he or she wrongly had the benefit of a favourable finding) or some positive matter of lawful refutation of the claim, analogous to a defence to a cause of action, for example, that the applicant had committed a crime against humanity and is therefore disqualified from refugee status otherwise made out: see Article 1(F)(a) of the Convention..
In this case, as there was no question of actual disbelief of the applicant's own factual claims nor any reason to view them as inherently incredible, such factual claims naturally led to a conclusion that she had a well-founded fear of persecution. A decision that she should not have refugee status based on considerations of her safety could, in those circumstances, only be rationally made if there was other evidence from which the decision-maker could reasonably be satisfied that there was no reasonable chance that the applicant would not be persecuted. There was no such evidence: there was no evidence that the applicant, as a Habr Yunis, whatever the position of other refugees, could safely return to Hargeisa and there was no evidence that, as such, she could safely (or reasonably) go elsewhere in Somalia. The matter is, however, not merely one of an irrational or unreasonable decision, for which there is no remedy in this Court: s 476(2)(b). The Act implicitly requires, despite, s 476(2)(b) which deals only with remedy and not the Tribunal's duty, that decisions: be reasoned (see s 430(1)(b)); have regard to material questions of fact and findings concerning them (s 430(1)(c)) , and that such findings be based on evidentiary material (s 430(1)(d)). Moreover, in general, Parliament can safely be assumed to have intended that whim and caprice should not be permitted to rule where matters truly of life and death might be at stake.
The credible facts suggested by the applicant and much of the independent material pointed to a finding in her favour on the undeniably material question of her safety. In the circumstances, the Act required that an adverse decision to her be made only if a "particular matter", namely that there was no real chance that the applicant would not be protected, was established. Although the nature of the Tribunal's review is an inquisitorial one and rules of evidence apt for an adversarial process are neither binding on the Tribunal, (s 420(2)(a), nor necessarily of concern, in this instance the analogy of the well-recognised shift in the "evidential" burden of proof is, in my opinion, apposite. The analogy is founded on principles according with the duties that Tribunal members have under the Act and of the kind that I have just discussed. As indicated, there was in my view no evidence from which the decision-maker could reasonably have been satisfied of that "particular matter".
The second way in which an error has been made is by the Tribunal, in substance, addressing the wrong questions. The question was not whether many refugees might now safely be repatriated to Somalia. It was whether this applicant could. It was not whether some Habr Yunis in the Hargeisa area had surrendered to the opposing forces but, in circumstances where others were fighting on, whether there was any reasonable chance that, as a Habr Yunis, this applicant might be persecuted. Such an error would appear to me to be judicially reviewable under para (c) of s 476(1): "the decision was not authorised by this Act". The circumstances of this case amount to a constructive failure by the Tribunal to exercise its jurisdiction. The Tribunal did not consider the “real question which it was its duty to consider”: see Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559 at 577, per Brennan CJ, Dawson, oohey, Gaudron, McHugh and Gummow JJ, and such cases as Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 at 480 and 483.
The available material might (barely) maintain an inference that it was more probable than not that the applicant, as a Habr Yunis, would not be persecuted, but it could not sustain an inference that there was no reasonable chance of such persecution. Whether actual conditions on the ground in and around Hargeisa would assure the applicant, beyond a reasonable chance to the contrary, of safety was simply not addressed by the evidence.
For similar reasons that error, in my opinion, may also be reviewable by the Court under s 476(1)(e). It would appear to be an "incorrect application of the law to the facts as found" by the decision-maker to apply the relevant law both to facts as lawfully found and facts found in a manner that lacked statutory authorisation for want of any evidentiary basis and then to arrive at a conclusion as if the latter facts had been found in a way permitted by the statute.
Conclusion
For these reasons the application for review succeeds. The decision of the Refugee Review Tribunal will be set aside and the matter referred to the Refugee Review Tribunal for further consideration according to law.
I certify that the preceding thirty eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate:
Dated: 16 July 1999
Counsel for the Applicant: C Colborne Solicitor for the Applicant: Legal Aid Commission Counsel for the Respondent: N Williams with P Fury Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 18 November 1998 Date of Judgment: 16 July 1999
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