Misbal Aydid Ahmed v Minister for Immigration and Multicultural Affairs

[1998] FCA 1732

FEDERAL COURT OF AUSTRALIA

MIGRATION – refusal of protection visa – challenge to facts found by Refugee Review Tribunal – procedures in connection with fact finding – existence of particular fact – no error of law or other ground of review made out

Migration Act 1958 ss 420(2)(b) and 476 (1)(a), (e) and (g)

MISBAL AYDID AHMED v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 309 OF 1998

WHITLAM J

17 DECEMBER 1998
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 309 of   1998

BETWEEN:	MISBAL AYDID AHMED
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
JUDGE:		WHITLAM J
DATE OF ORDER:		17 DECEMBER 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant pay the respondent’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 309 of 1998

BETWEEN:	MISBAL AYDID AHMED
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

JUDGE:	WHITLAM J
DATE:	17 DECEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of Somalia. She left that country in December 1990. From 1991 she lived with her children and extended family in India where, at least from 8 April 1992, they were recognised as refugees by the United Nations High Commissioner for Refugees (“the UNHCR”). On 1 August 1997 she arrived in Australia, apparently without her children or other family members, and on 25 August 1997 she applied to the respondent for a protection visa. That application was refused and she applied for a review by the Refugee Review Tribunal (“the Tribunal”). The Tribunal held a hearing on 11 February 1998, and on 16 March 1998 it affirmed the decision refusing to grant her a protection visa. That decision is the subject of the present application.

The grounds of review on which the applicant relies are those provided by pars 476(1)(a), (e) and (g) of the Migration Act 1958 (the Act). The applicant’s submissions purport to rely extensively on what was said by the majority in Eshetu v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 300. For the reasons given by the Full Court of this Court in Calado v Minister of State for Immigration & Multicultural Affairs [1998] FCA 1532, the most satisfactory approach is to follow that majority view notwithstanding my own misgivings about its correctness.

In addition to the reasons for decision of the Tribunal, there has been received in evidence a transcript of the Tribunal hearing on 11 February 1998, the Tribunal file and the file of the Department of Immigration and Multicultural Affairs (“DIMA”). Three affidavits, by Isnino Hajo Mohamed, Hawa Sheekh Omar and Awil Saleh, were also admitted subject to relevance.

The Tribunal proceeding

The applicant’s claim before the Tribunal

Before the Tribunal, the applicant advanced three distinct bases to ground her claim that she had a well-founded fear of persecution if she returned to Somalia. They were: as a member of the Ogaden sub-clan of the Darod clan (the Ogaden/Darod clan) she would be persecuted by members of other clans because of the role members of that clan played in supporting the former president of Somalia, Mr Siad Barre, who was deposed in 1990; the applicant’s husband killed another Somali man, a member of the Hawiye clan, and then fled in a dispute that she thought was over money; and as a single woman the applicant would be at risk of being raped or sexually assaulted by rival clan militias.

Material before the Tribunal

It is not necessary to describe all the material the Tribunal had before it. That material did, however, include two statutory declarations by the applicant. One, made on 22 August 1997, was sent to DIMA in support of her application to the respondent for a protection visa. The other, signed on 5 February 1998, was sent directly to the Tribunal in support of her application for review. In addition to these declarations, the Tribunal had a facsimile from the UNHCR, dated 29 January 1998, which confirmed that the applicant had been recognised as a refugee by the UNHCR in India and which summarised the claims she made when seeking that recognition.

The applicant gave oral evidence at the Tribunal hearing on 11 February 1998. Subsequently, on 20 February, the applicant’s migration agent, Ms Lyn Payne, sent written submissions in support of the applicant’s case to the Tribunal. Attached to those submissions were three statutory declarations by the deponents whose affidavits have been read in this proceeding. Each of them said that the applicant was a member of the Ogaden/Darod clan. On 23 February, Ms Payne also faxed to the Tribunal a letter from Mr Hassan Omar, President of the Ogaden Relief Association of Australia Inc, expressing his view that the applicant was from the Ogaden/Darod clan and describing the position of her people in Somalia.

Finally, the Tribunal had before it various reports relating to the civil war in Somalia. It made particular reference to a report entitled “The warlords make peace at last” from The Economist (14 February 1998, p 52). The thrust of all but one of these reports seems to have been that a peace agreement, entered into on 31 January 1998 by three Somali warlords, was likely to hold. The contrary report was sent to the Tribunal by Ms Payne on 5 March 1998 and described violence that occurred on 15 February 1998, at Afgoe, 30 kilometres south-west of the Somali capital, Mogadishu.

The Tribunal’s findings

The Tribunal made comprehensive and damning findings against the applicant’s credibility:

The Tribunal finds that the applicant is not a credible or trustworthy witness. There were several material and substantial contradictions and inconsistencies in her claims, that were not explained to the satisfaction of the Tribunal. Much of her testimony and many of her claims were simply not plausible or believable. In these circumstances, for the following reasons the Tribunal finds that her claims are not credible. … [T]he applicant’s specific fears are that she will be killed by the Hawiye people because of her Ogaden/Darod clan membership and the problems relating to her husband, and that she will be raped and killed by everyone in Somalia because she is a single woman, because of her clan affiliation and because she will be perceived to have a lot of money. Since the Tribunal has arrived at the conclusion that the applicant and her claims are not credible, it necessarily follows that these specific claims are not accepted. (pp 9-10)

The applicant’s claim to be a member of the Ogaden/Darod clan was rejected by the Tribunal on the basis of those findings. The Tribunal said:

As for the applicant’s claim that she fears persecution based upon her clan membership, the Tribunal does not accept this claim on the grounds that she is not a credible witness, and therefore the Tribunal finds that she is not a member of the Ogaden/Darod clan. (p 12)

It may be noted that the Tribunal was not only not satisfied that the applicant was from the Ogaden/Darod clan, but that she was not in fact a member of that clan.

The applicant’s claim that, owing to her husband’s conduct, she feared persecution at the hands of the Hawiye clan was rejected because the Tribunal did not believe her and also because such persecution would not be for a so-called Convention reason. The applicant’s claim to fear persecution as a single woman in Somalia was also rejected, in part, because she was not believed. In addition, the Tribunal held that the claim was not a strong one and that single women in Somalia were not a social group as that term is used in the Convention definition of refugee.

Having disposed of the applicant’s claims in this way, the Tribunal said that, even if its credibility findings against the applicant were wrong, a material change had occurred in the state of affairs in Somalia so that there was no longer any real risk of the applicant being persecuted if she returned there:

But even if the Tribunal has arrived at the wrong conclusion as to the applicant’s lack of credibility, it is nonetheless of the view that the applicant does not have a well-founded fear of persecution in Somalia as a result of the 31 January 1998 cease fire. Coupled with the Cairo and Sodere agreements, this cease fire has set the stage for a permanent and lasting peace in Somalia. As the … independent evidence indicates, these agreements allow for the creation of a central administration in Mogadishu, a cessation of conflict, the dismantling of roadblocks, the re-opening of the Indian Ocean port and the airport and a national reconciliation conference to set up a federal state and transitional government. The fact that there has [sic] been no recent reports of clan-based violence in Mogadishu, combined with the dismantling of roadblocks, the absence of any evidence before the Tribunal that the cease fire is not effective, and the optimistic report of The Economist that the cease fire will hold, suggests to the Tribunal that a substantial and durable change in conditions has occurred in Somalia since 31 January 1998 which removes any reasonably foreseeable risk to the applicant. This evidence suggests that the peace process in Somalia is effective and durable and the chances that inter-clan hostilities will resume in the reasonably foreseeable future is [sic] remote. …

The changes in Somalia since the 31 January 1998 cease fire indicate that there has been a material or substantial change in the circumstances in the country, such that a very high degree of real protection is once more viable in the applicant’s state of origin. …

The facts seem to be that peace has existed in Somalia since 31 January 1998, and the evidence before the Tribunal is such that the possibility of inter clan hostility resuming is remote. Accordingly, the applicant does not have a real chance of persecution if she were to return to Somalia and the Tribunal is not satisfied that she has a well-founded fear of persecution for a Convention reason. (pp 13-14)

The Tribunal concluded:

Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the [Convention]. Therefore the applicant does not satisfy the criterion … for a protection visa. (p 15)

The applicant’s challenges to the Tribunal’s decision

The applicant challenges only two of the Tribunal’s findings. First, she challenges the finding that she is not a member of the Ogaden/Darod clan (the clan membership finding). Second, she challenges the finding that there has been a material change of circumstances in Somalia removing any real chance of her persecution should she return to that country (the material change of circumstances finding). These findings were critical to the Tribunal’s decision.

It was accepted upon the hearing of the present application that the challenges to both findings must be successful for an order of review to be granted. As counsel for the applicant pointed out, the Tribunal made no finding about whether the applicant would have a well-founded fear of persecution for a Convention reason if she were from the Ogaden/Darod clan and there had been no material change of circumstances in Somalia.

The clan membership finding

Error of law: s 476(1)(e)

The applicant contends that the Tribunal adopted an erroneous approach to fact finding, revealing an error of law under s 476(1)(e) of the Act. It is said that rejecting the applicant’s evidence that she is a member of the Ogaden/Darod clan did not logically lead to the acceptance of the proposition that she was not of the Ogaden/Darod clan. The rejection of the applicant’s evidence only led to a finding that she had not established her membership of that clan.

This submission is said to be based on the reasoning of the majority in Eshetu. However, in that case, Davies J, with whom Burchett J agreed, said that the Tribunal’s erroneous approach to fact finding (namely, failing to inquire into, and to form a view about, certain matters) showed that it misunderstood the term “well-founded fear”. Importantly, it was that misunderstanding, not the erroneous approach to fact finding itself, that constituted an error of law. The erroneous approach to fact finding was merely an indicator of the error of law.

This case is different. Here the applicant does not suggest that the Tribunal’s erroneous approach to fact finding points to some error of law. Instead, she argues that the Tribunal’s erroneous approach is itself an error of law. There is nothing in Eshetu to support that argument.

Moreover, the words of s 476(1)(e) do not allow it. That provision says that an application for review of a Tribunal decision may be made on the ground that:

(e)    the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision.

Under s 476(1)(e) there must be an error in the interpretation of the applicable law or in the application of that law to the facts. An error in fact finding is not an error of either of these types. Indeed, s 476(1)(e) contemplates “the facts as found by the person who made the decision” standing, regardless of how they were found.

The error of law ground in s 476(1)(e) is expressly made narrower than that in s 5(1)(f) of the Administrative Decisions (Judicial Review) Act 1977 (the AD(JR) Act). The difficulty of deciding whether an arbitrary or unreasonable factual finding can constitute an error of law does not arise here: see, however, Australian Broadcasting Tribunal  v Bond (1990) 170 CLR 321 per Mason CJ at 358-60.

In any event, in case I am mistaken about the limited scope of s 476(1)(e), I shall consider the applicant’s challenge to the clan membership finding.

By rejecting the applicant’s evidence that she was a member of the Ogaden/Darod clan, the Tribunal said that it did not believe her when she claimed to be a member of that clan. That is certainly different from saying that the applicant was not a member of the Ogaden/Darod clan. Nonetheless, the reasons for which the Tribunal disbelieved the applicant might also support the finding that she was not, in fact, a member of that clan. If that is so, then the one conclusion may lead logically to the other and there would be no error in the Tribunal’s approach to fact finding. If, for instance, the Tribunal disbelieved the applicant solely because of her demeanour while giving evidence, it would be difficult to see how that could support a finding that she was not a member of the Ogaden/Darod clan. The applicant’s demeanour in the witness box could only go to her credibility, not her clan membership. On the other hand, if the Tribunal disbelieved the applicant because her evidence contained inconsistent statements about being a member of the Ogaden/Darod clan, that might well support a finding that she is not a member of that clan. The inconsistent statements could show a lack of the knowledge about clan life that one would expect from a clan member.

In the present case the Tribunal’s rejection of the applicant’s evidence on clan membership appears to be based on two general criticisms made of the applicant’s evidence as a whole. The first is that her claims contained contradictions and inconsistencies that were not satisfactorily explained. The second is that “much of her testimony and many of her claims were simply not plausible or believable”.

However, the respondent submits, more particularly, that the applicant was unable to give satisfactory answers, at the Tribunal hearing, to questions about her clan membership. Although no reference was made to this in the Tribunal’s reasons, the respondent says that it was the basis for both the Tribunal’s disbelief of the applicant and the finding that she was not from the Ogaden/Darod clan.

An examination of the transcript of the Tribunal hearing supports the view that the applicant was unable to give satisfactory answers to questions about her clan membership. Often the applicant had to be asked such questions a number of times before she offered a responsive answer. Even then her answers were vague and imprecise. She seems to have had difficulty answering questions on matters about which it might be thought a member of the Ogaden/Darod clan would probably have been aware, such as the characteristics of the Ogaden people and when the Ogaden war occurred. Of course, it must be remembered that the applicant had not lived in Somalia since late 1990. Nonetheless, the questions she was asked were not so difficult that this should have been a hindrance to her. In particular, her absence from Somalia is certainly not enough to explain her apparent lack of knowledge about the Ogaden people.

In my view, this inability to give satisfactory answers was capable of both discrediting the applicant’s testimony and supporting the finding that she is not a member of the Ogaden/Darod clan. Admittedly, the inability to give satisfactory answers was not specifically referred to in the Tribunal’s reasons. But the criticism that a large portion of the applicant’s testimony and claims “were simply not plausible or believable” is wide enough to encompass it. In the present case, there does not appear to be anything illogical about the Tribunal proceeding from its disbelief of the applicant’s claim that she was from the Ogaden/Darod clan to a finding that she was not from that clan. The applicant has failed to show that the Tribunal adopted an erroneous approach to fact finding in this respect.

Procedures not observed: s 476(1)(a)

The second basis for challenging the clan membership finding concerns the manner in which the Tribunal dealt with the evidence of three persons, Ms Isnino Haji Mohamed, Ms Hawa Sheekh Omar and Mr Awil Saleh, who attended the hearing to give evidence about the applicant’s identity.

At the start of the Tribunal hearing, the applicant offered to have these persons give evidence. However, at that stage, the Tribunal said that her identity was not in issue and that it, therefore, would not hear from them. As the hearing progressed, the applicant’s identity or, more precisely, her clan membership, did emerge as an issue. Responding to that development, at the close of the hearing, Ms Payne asked the Tribunal on the applicant’s behalf:

Would it assist the tribunal in establishing that [the applicant] is from the Ogaden tribe to collect [statutory declarations] from the three witnesses who were going to attest to her identity? That seems now to be in issue, at least her clan identity, which clan she’s aligned to. Would you like some evidence on that?

The Tribunal member replied:

Well, if you could give me some expert evidence on that. I don’t think – I don’t think three witnesses speaking of evidence about her clan membership is going to help you much but if you could get some expert evidence about her clan membership I would be happy to look at that.

After the hearing Ms Payne faxed statutory declarations from the named three individuals to the Tribunal. Each declaration stated that the applicant was a member of the Ogaden/Darod clan. The Tribunal, for its part, did not require them to give oral evidence, nor did it make any reference to their statutory declarations in its reasons for decision. The affidavits read on the present application verify the truth of the statutory declarations.

In the first place, the applicant argues that the Tribunal’s failure to take account of the statutory declarations in making its decision means that, in finding that the applicant was not a member of the Ogaden/Darod clan, it failed to act “according to substantial justice and the merits of the case”, as required by s 420(2)(b). She relies on the judgment of Wilcox J in Sun Zhan Qui v Minister for Immigration & Ethnic Affairs (1997) 151 ALR 505 at 549 to say that the ground of review in s 476(1)(a) of the Act is made out by this failure.

Second, the applicant submits that s 476(1)(a) is made out because, in its actions regarding the evidence of the three witnesses, the Tribunal failed to observe procedures that were “fair” or “just” or “directed to arriving at the ‘substantial justice and the merits of the case’”: Eshetu at 305 per Davies J. The actions of the Tribunal are separately identified as follows: not taking the statutory declarations into account; refusing to hear oral evidence from the three witnesses; pre-empting the effect of their evidence at the end of the hearing; and not seeking to test their evidence when the statutory declarations were received.

It is convenient to deal with the second submission first. It is said that the test to be applied to the Tribunal’s actions is whether they constitute a failure to apply procedures directed to achieving the objectives of s 420, especially “substantial justice and the merits of the case”.

However, not taking the statutory declarations into account was not a failure to observe a procedure under s 476(1)(a). In that provision, the term “procedure” relates to the way in which a proceeding is conducted: see De Motte v Minister for Immigration and Ethnic Affairs (1997) 74 FCR 440 at 448 per Tamberlin J. Discussing the equivalent provision in the AD(JR) Act, Wilcox J has said that a procedure is observed either before or after a decision is made: Our Town FM v Australian Broadcasting Tribunal & Anor (1987) 16 FCR 465 at 479-80. However, taking material into account is not concerned with the conduct of the proceeding, nor is it done before or after the decision is made. Rather, it is part of the actual mental exercise the Tribunal engages in at the point of making the decision. It is, therefore, not a procedure.

The distinction may be illustrated by contrasting failure to take the statutory declarations into account with failure to receive them at all. The latter is concerned with the conduct of the proceeding; it is essentially a question of what material the Tribunal will receive and is resolved before the Tribunal makes its decision in the case at hand. The former is concerned with the way the Tribunal uses the material before it and whether it gives different parts of that material no weight, some weight or even much weight. This has nothing to do with the conduct of the proceeding, it is concerned with the very making of the decision itself.

Section 476 of the Act supports this view. If taking material into account is a procedure then the operation of s 420(2) no doubt makes a failure to take relevant material into account a failure to observe a procedure within the meaning of s 476(1)(a). That is really what the applicant’s first submission amounts to in this case. Of course, this is identical to the common law judicial review ground of failure to take a relevant consideration into account. Yet, that ground is expressly excluded from the ground of review in s 476(1)(d) of the Act by s 476(3)(e). The exclusion effected by s 476(3)(e) would be rendered nugatory if failure to take a relevant consideration into account were to form part of the ground of review in s 476(1)(a).

Those other actions of the Tribunal identified by the applicant also do not offend s 476(1)(a). The fact that the Tribunal did not hear oral evidence on the applicant’s clan membership from the three persons was not a failure to apply procedures directed to arriving at substantial justice and the merits of the case; they were still able to give evidence in the form of their statutory declarations. Nor was pre-empting the effect of witnesses’ evidence a failure to apply such procedures. The Tribunal’s remarks did not discourage the applicant from submitting the witnesses’ statutory declarations and there is no allegation of bias against it. Finally, s 476(1)(a) is not made out by the Tribunal’s failure to “test” the evidence of the three declarants by requiring them to answer questions. The weight to be attached to their declarations is entirely a matter for the Tribunal.

As I noted above, the applicant’s first submission, to which I can now turn, relies on something Wilcox J said in Sun Zhan Qui. In that case, his Honour said (at 549) that failure, on the part of the Tribunal, to take relevant material into account when making a decision amounts to failure to “act according to substantial justice and the merits of the case”. “Applying Eshetu”, Wilcox J concluded, this failure to adhere to s 420(2)(b) “means that procedures required by the Act were not observed in connection with the making of the decision”. In other words, the ground of review in s 476(1)(a) is made out.

I am respectfully unable to agree with that statement. It does not, in my view, follow from the majority’s view in Eshetu. That view does not stand for the proposition that a failure to act according to substantial justice and the merits of the case necessarily means that s 476(1)(a) is made out. Rather, the majority in Eshetu said that in some cases a failure to adhere to s 420(2)(b) may amount to a failure to observe procedures under s 476(1)(a), while in other cases it may amount to an error of law under s 476(1)(e): per Davies J at 304-5 (Burchett J agreeing); Velmurugu v Minister for Immigration & Ethnic Affairs [1997] FCA 1395 per Davies J (Burchett J agreeing). Davies J has subsequently explained that a failure to adhere to s 420(2)(b) may not make out any s 476(1) ground of review at all: Guo Wei Zhi v Minister for Immigration & Multicultural Affairs (No 2) [1998] FCA 102; Nurinisa Jit v Minister for Immigration & Multicultural Affairs [1998] FCA 511.

In Sun Zhan Qui Burchett J (at 554) did express general agreement with Wilcox J’s judgment in that case but said this was subject to his own reasons. In those reasons, Burchett J clearly decided the case on the actual bias ground of review in s 476(1)(f) (at 562). In the alternative, he said the appeal succeeded on the error of law ground in s 476(1)(e) (at 562). His Honour made no mention of the part of Wilcox J’s judgment relied upon by the applicant.

In any event, the Tribunal did not fail to act according to substantial justice and the merits of the case by not taking into account the statutory declarations of the three witnesses. To show this, it is helpful to set out the important sections of each statutory declaration.

In the statutory declaration of Ms Mohamed paragraphs 2 to 6 are most important:

“2.I first met [the applicant] in August/September 1997 at a barbeque organised by St Vincent de Paul Society held at the Chinese Garden at Auburn.

3.We began talking and she told me that she was Ogaden. It is a Somali tradition to ask a person’s name and then ask their tribe. When she told me she was Ogaden we discussed her family and recent history and she told me that she had left Somalia in 1990. I asked [the applicant] about her family and she told me that she had not seen her family for a long time.

4.I left Somalia in 1993 and resided in Ifo camp in Kenya for three years. It was during this time that I came to know [the applicant’s] father, Aydid Ahmed Mire, who lived in the Ogaden section of Ifo camp. When [the applicant] told me that she had no news of her family for many years I asked her father’s name, his sub-clan, sub-sub-clan. When she told me his name and clans I asked her whether her father had a silver tooth because there was a man living nearby my family in Ifo who had the same name as her father. She answered yes and we discovered that I had been living in the same camp “suburb” as [the applicant’s] father.

5.We went on to talk about the other members of [the applicant’s] family who lived in the camp and I told her that I knew her step-mother, Fatima Malin Abdi, and her eldest step-brother, Mohamed Aydid Ahmed, who lived in the camp with her father.

6.Since our first meeting in August/September 1997 [the applicant] has visited my home on a number of occasions and we speak regularly on the telephone. I have no hesitation in stating that she is a member of the Ogaden tribe. …”

From the statutory declaration of Ms Omar, the important paragraphs are also 2 to 6:

“2.I do not recall when I first met [the applicant]. As a member of the Ogaden tribe I attended many events such as marriages, births and funeral which [she] also attended. As members of the same tribe we were obliged to attend these occasions and I recall seeing her at many of these.

3.When I first met [the applicant] I recall that she was in her second marriage. I knew her first husband as he was Ogaden. I have never met her second husband but am aware that he is Dolbahante.

4.The first last [sic] I saw [the applicant] was in early 1990 at the Benadir Hospital. We were both in hospital giving birth. I recall that [the applicant] gave birth to a son Mohamed.

5.In mid-1997 I was contacted Zahra Osman, a Somali woman living in Parramatta. She told me that an Ogaden woman had recently arrived in Australia and needed assistance. I telephoned my brother, Hassan Omar, the President of the Ogaden Relief Association, and we agreed that we had to assist her in any way we could. As members of the same tribe we have an obligation to assist.

6.I telephoned [the applicant] a few weeks after her arrival and we arranged to meet. It was not until I saw her that I realised I had known her in Mogadishu and that we had attended many social occasions together.”

Paragraphs 5, 11 and 12 are important from Mr Saleh’s statutory declaration:

“5.From approximately 1988 [the applicant’s brother] and I would occasionally go to the shop of [the applicant] which was three or four blocks from my uncle’s hotel. He introduced me to her and although we did not become friends I saw her regularly from this time until the time she left Somalia.

11.In the middle of 1997 I met [the applicant] again in Australia. She is a friend of a woman called Hawa who is a neighbour of mine in Auburn. Since our first meeting we have seen each other once every 3-4 weeks.

12.I can attest to the fact that I knew [the applicant and her brother] in Mogadishu and knew them to be Ogaden. [The applicant] has a very small accent which indicates that she is an Ogaden although it has become less distinguishable because she has spent her life in Mogadishu. …”

Each declarant was evidently quite close to the applicant. The statutory declarations all refer to incidents that have taken place in other countries, about which it cannot be supposed that the Tribunal member could usefully have asked them any questions. In those circumstances, and given that it already had evidence from the applicant herself from which it concluded that she was not a member of the Ogaden/Darod clan, the Tribunal did not fail to adhere to s 420(2)(b) by not taking the statutory declarations into account.

Both of the applicant’s challenges to the Tribunal’s clan membership finding fail. The ground of review in s 476(1)(a) is not made out.

No evidence: ss 476(1)(g) and 476(4)(b)

In this instance, the particular relevant fact is said to be that the applicant was not a member of the Ogaden/Darod clan. Although that finding is undoubtedly critical to the Tribunal’s decision, as I have already indicated there was, in my view, evidence before the Tribunal to support it. Thus, this basis of challenge to the Tribunal’s clan membership finding cannot succeed.

Whilst it would be possible to dispose of this application on the basis that the Tribunal’s finding that the applicant was not a member of the Ogaden/Darod clan is without reviewable error I turn now to the material change of circumstances finding.

The material change of circumstances finding

Procedures not observed: s 476(1)(a)

The first challenge to the finding that there has been a material change of circumstances in Somalia, removing any real chance of the applicant’s persecution should she return to that country, relies on the part of Wilcox J’s judgment in Sun Zhan Qui mentioned earlier. The challenge is essentially that, by failing to take into account a report of violence in Mogadishu, the Tribunal failed to act according to substantial justice and the merits of the case. Consequently, it is submitted, s 476(1)(a) is made out.

It follows from what I said earlier that I reject this submission on the basis that s 476(1)(a) is not made out even if the failure to take the report of violence into account was a failure, on the part of the Tribunal, to act according to substantial justice and the merits of the case. Nonetheless, as I did in relation to the equivalent challenge to the clan membership finding, I shall also deal with the submission on the assumption that s 476(1)(a) is necessarily made out by a failure to adhere to s 420(2)(b).

Taking that approach, I am still of the view that this challenge must fail. I do not accept that, by not taking the report of violence in Mogadishu into account, the Tribunal failed to act according to substantial justice and the merits of the case.

Central to the Tribunal’s material change of circumstances finding was a peace agreement signed by three Somali warlords on 31 January 1998. That was said to have been made possible by the Cairo and Sodere Agreements entered into by rival warlords in 1997. According to the Tribunal these agreements:

“allow for the creation of a central administration in Mogadishu, a cessation of conflict, the dismantling of roadblocks, the re-opening of the Indian Ocean port and the airport and a national reconciliation conference to set up a federal state and transitional government.” (p 13)

The Tribunal also sought to distinguish the 31 January 1998 peace agreement from the many previous ones that have failed. Referring to a report in The Economist (“The warlords make

peace at last”, 14 February 1998, p 52), the Tribunal said:

“This … report distinguishes between the 31 January 1998 cease fire and the many previous ones, referring to the significance of the Cairo Agreement, which plots the structure of a future Somali state and the transitional government that will create that state. This report is of the view that this latest cease fire will be effective for two important reasons: (1) ‘nearly everyone is fed up with war,’ and (2) the Cairo Agreement was signed by ‘two broad alliances that include most of Somalia’s main political clan-based groups.” (p 8)

In addition to the 31 January 1998 peace agreement, the Tribunal referred to a meeting on 3 March 1998 between two of the three warlords controlling Mogadishu “to discuss the formation of a joint authority to administer the city and the upcoming reconciliation conference”. That resulted in “[an] agreement to speed up the reconciliation process and produce coordinated radio broadcasts”.

Apparently, there was also a meeting of the National Salvation Council on 8 March 1998:

“to look at ways of overcoming obstacles to the implementation of the Cairo Agreement and the holding of the national conference. The meeting concluded with members agreeing to pacify and form a single administration for the Banaadir (Mogadishu and its environs) before the holding of the national conference.” (p 8)

My purpose in setting out this detail is to demonstrate that the Tribunal did not rush to its material change in circumstances finding. On the contrary, that finding was based on a considerable volume of information about the political situation in Somalia. Indeed, the Tribunal refers to nine separate reports on that topic in its reasons.

The substance of the Tribunal’s material change of circumstances finding also requires consideration. In my view, the Tribunal did not find that the 1998 peace agreement marked the end of all violence in Somalia. Rather, it was particularly concerned with the cessation of inter-clan violence since the applicant claimed she would be persecuted because she was a member of the Ogaden/Darod clan. This can be seen in the Tribunal’s conclusions that:

“the peace process in Somalia is effective and durable and the chances that inter-clan hostilities will resume in the reasonably foreseeable future is remote. …” (p 14)

and that:

“the evidence before the Tribunal is such that the possibility of inter clan [sic] hostility resuming is remote.” (p 14)

It also found that there had developed a genuine movement towards peace in Somalia, supported by the most crucial and powerful warlords. It did not find that there would no longer be any violence at all. That is evident from the finding that the 1998 peace agreement “has set the stage for a permanent and lasting peace in Somalia” (p 13) (emphasis added).

It is in this context that the report of violence which the Tribunal did not take into account must be considered. The report describes violence between “rival militiamen from one of Somalia’s main clans” 30 kilometres south-west of Mogadishu. In the violence four people are said to have died and five to have been wounded. The violence is reported to have occurred on 15 February 1998, that is, after the peace agreement was entered into on 31 January 1998.

At once a number of general points can be made about the report. First, it does not refer to inter-clan violence. It refers to violence within a clan. Secondly, it refers to a single outbreak of violence, not a general and ongoing resumption of fighting. Thirdly, it is only one brief article set against the more numerous and detailed reports on which the Tribunal relied. I think these points alone are sufficient to demonstrate that the Tribunal did not fail to act according to substantial justice and the merits of the case by not taking the report into account.

However, I should also address the applicant’s argument that the report is inconsistent with certain statements in the Tribunal’s reasons. The statements are:

“[n]either the applicant nor her adviser were able to present any documentary evidence to suggest that the present [31 January 1998] ceases [sic] fire is not effective.” (p 8)

and:

“there has [sic] been no recent reports of clan-based violence in Mogadishu.” (p 13).

I cannot accept that argument. I think that, considered in context, these statements refer to the resumption of ongoing inter-clan violence. There were no reports of such violence before the Tribunal. Of course, if my view of the statements is wrong and they refer to violence generally in Mogadishu, then they are not critical to the Tribunal’s material change of circumstances finding. Either way, there is nothing in this argument to suggest that the Tribunal failed to act according to substantial justice and the merits of the case by not taking the report into account.

Therefore, the first challenge to the material change of circumstances finding fails.

No evidence: ss 476(1)(g) and 476(4)(a)

In my view, there was sufficient evidence from which the Tribunal could be satisfied that there had been a material change of circumstances in Somalia. I have summarised that material in discussing the first challenge to this finding. This basis of challenge to the relevant finding also fails.

Error of law: s 476(1)(e)

The applicant’s final challenge to the material change of circumstances finding is that the material before the Tribunal was so incapable of satisfying the test for material change of circumstances that the test must be been incorrectly applied to the facts.

That test was laid down by Mason CJ in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 391 and, for the sake of completeness, I repeat it here:

While the question remains one for determination at the time of the application for refugee status, in the absence of facts indicating a material change in the state of affairs in the country of nationality, an applicant should not be compelled to provide justification for his continuing to possess a fear which he has established was well-founded at the time when he left the country of his nationality. This is especially the case when the applicant cannot, any more than a court can, be expected to be acquainted with all the changes in political circumstances which may have occurred since his departure. Those changes are a matter which, if they were to be relied upon, needed to be established and stated by the delegate in reasons.

This test was set out in full by the Tribunal in its reasons.

As I have already said, there was sufficient material before the Tribunal for it to find that there was a material change of circumstances.

Conclusion

In my opinion, both the clan membership and material change of circumstances findings have withstood the applicant’s several challenges. The attempt to attack the Tribunal’s fact finding by characterising incidents of its process and reasoning as involving errors of law has been entirely unsuccessful. No ground of review has been made out, and the application will 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 Whitlam

Associate:

Dated:             17 December 1998

Appearances

Applicant: R T Beech-Jones of counsel instructed by the Legal Aid Commission of NSW

Respondent: Mr Andras Markus of the Australian Government Solicitor

Dates

Date of hearing: 6 August 1998

Date of judgment: 17 December 1998