Mohamed v Minister for Immigration and Multicultural Affairs

[1999] FCA 305

FEDERAL COURT OF AUSTRALIA

Mohamed v Minister for Immigration & Multicultural Affairs [1999] FCA 305

MIGRATION - appeal from decision of primary judge setting aside Refugee Review Tribunal (“RRT”) decision refusing refugee status – whether primary judge erred in finding that RRT had complied with s 430 of the Migration Act 1958 (Cth) (“the Act”) – whether primary judge misconstrued s 420 of the Act – whether primary judge erred in finding that RRT had not required appellant to show she suffered systematic harassment in order to establish a well founded fear of Convention-based persecution – whether primary judge erred in finding that RRT had not required appellant to show she was persecuted solely for a Convention-based reason

Migration Act 1958 (Cth), ss 420, 430

RUKHIYAH FARRAH MOHAMED v
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 946 of 1998

O'CONNOR, TAMBERLIN and MANSFIELD JJ
SYDNEY

26 MARCH 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 946 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	RUKHIYAH FARRAH MOHAMED Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGES:	O’CONNOR, TAMBERLIN and MANSFIELD JJ
DATE OF ORDER:	26 MARCH 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondent’s 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 946 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	RUKHIYAH FARRAH MOHAMED Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGES:	O’CONNOR, TAMBERLIN and MANSFIELD JJ
DATE:	26 MARCH 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the judgment of Madgwick J given on 3 September 1998 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“RRT”) made on 16 April 1998.  This decision affirmed the decision of a delegate of the respondent not to grant the appellant a protection visa.

   GROUNDS OF APPEAL

2. The grounds of appeal, summarised, are:

   1.His Honour erred in finding that the RRT had complied with s 430 of the Migration Act 1958 (Cth) (“the Act”).

   2. His Honour misconstrued s 420 of the Act.

   3.His Honour erred in law in finding that the RRT had not required the appellant to show she had suffered systematic harassment in order to establish a well founded fear of Convention-based persecution.

   4.His Honour erred in law in finding the RRT had not required the appellant to show she was persecuted solely for a Convention-based reason.

   BACKGROUND

3. The appellant is a national of Somalia.  She and her family lived in Mogadishu and are members of the Ashraf clan.  The Ashraf are a minority group in Mogadishu but are a respected because they are regarded as religious leaders.   The appellant's father, a successful trader, bribed others to protect himself, his family and business after the civil war began, but stayed in Mogadishu.

4. The appellant described two incidents which had happened to her and her family while in Somalia.

   1.During a trip away from Mogadishu in 1993 the appellant and her family were brutally attacked.  The appellant was wounded with a knife and raped.  The appellant believed the attackers were from another clan (the Hawiye) and the motive was because they were not of the same clan.

   2.In mid 1997, the appellant's father and two brothers were killed during a "home invasion".  They were robbed and the appellant believed this attack was "clan motivated".

5. This latter incident led to the appellant leaving Somalia at the urging of her mother. She arrived in Australia after staying for a time in Italy.

6. The appellant appeared in person to present her appeal.  She did not, directly, address the grounds of appeal referred to above preferring to raise a number of factual matters relating to her circumstances, her fear of returning to Somalia, and her treatment by authorities in Australia.

7. She has married while in detention and is at present carrying a child.  Understandably she does not wish to take this infant, when born, back to Somalia.  She fears that without protection not available since the death of her father, she will be at great risk.

8. Her experiences, both at the airport when dealing with immigration and at the RRT, were recounted to the Court to show she had been misunderstood in her claims.   Her major complaint was that the matters relied on by the RRT to form the view that, as a member of the respected Ashraf clan, she would not be persecuted by reason of her clan membership, was not correct.

9. She said that the Ashraf were not respected any more in Somalia and that the incidents she and her family had been involved in in Somalia were clan-based violent attacks.

10. All these submissions were directed at the actual findings of the RRT and invited merits review.

11. The respondent's submissions addressed the matters which had been raised before Madgwick J. It was argued that a failure to refer to some of the material which contradicted the findings made, did not amount to an error law as a breach of s 430 of the Act. His Honour had come this conclusion.

12. At 13 of the reasons for judgment his Honour said:

    "Her case is that she reasonably feared persecution for reasons of membership of a particular social group.  The social group suggested is the Ashraf clan.  But none of the material in question supports the view that members of that clan are singled out for ill-treatment for reasons of their membership of that clan.  It is not because they are Ashraf that they may be discriminated against but because, on the applicant's own case, in the applicant's precinct within Mogadishu, they are not Habr Gedir.   It does not appear possible to identify any other "particular social group" as being relevant:  there is nothing to indicate that persons who are simply not of the Habr Gedir clan (or subclan) within a particular Mogadishu precinct are a "cognisable" group within society (c.f. Applicant A v Minister for Immigration and Multicultural Affairs (1997) 142 ALR 331 at 341 per Dawson J). Further, it is only the fact of their persecution which might cause them to have any of the characteristics of such a group, and that is not enough: the group must be identifiable as such before the persecution:  ibid."

13. Neither argued the respondent had the appellant demonstrated an absence of "procedural fairness" arising under s 420. She had been, his Honour found, properly made aware of the case she had to meet in relation to independent information relating to her clan and she addressed it at the RRT hearing.

14. Having heard the appellant the RRT at 13 of its reasons concluded:

    "I have considered the Applicant's circumstances up until the time of the attack.  Although she has claimed that her family faced harassment because of their clan membership, I find this is not supported by the independent evidence concerning her clan which is respected in Somalia, the opinion of an expert that they are not targeted for reasons of membership of that clan or her own account."  (emphasis added)

15. In relation to Ground 3 which asserts the RRT had required the appellant to demonstrate systematic harassment as a requirement to establish persecution his Honour said at 18-19:

    "After I had reserved this decision, a Full Court of this Court gave judgment in Abdalla v Minister for Immigration and Multicultural Affairs (unreported, Burchett, Tamberlin and Emmett JJ, 20 August 1998).   The Full Court held that a person could be persecuted, in the relevant Convention sense, where the alleged persecution arose out of communal violence.   The Full Court distinguished on the facts a contrary finding by the House of Lords in Adan.   However, the Full Court made it clear that whether such violence amounts to persecution "depends upon whether there is a purpose behind the recurring pattern which is referrable to a Convention ground".  In that case, the applicant, who was also from Somalia, was a member of the same clan as that of the former President.  The Full Court held that, where there was evidence that the applicant's clan had been targeted because of the connection with the former regime, that was within the concept of persecution.
    
    

    However, that is not the situation here.  Unlike Abdalla, the Tribunal was not saying that communal violence arising from civil war could not, in general, amount to persecution for a Convention reason.  Furthermore, unlike the situation in Abdalla, there was no evidence before the Tribunal to suggest that there was any reason why the Ashraf would be specifically targeted in such a way that it could be said that they were persecuted for a Convention reason.  The Tribunal's conclusion, and an available inference from some of the evidence, was that, in fact, the Ashraf were less likely to be specifically targeted because they appeared to hold a position of respect in the general community."

16. We agree with his Honour’s conclusions as to the proper approach to this issue and they disclose no error of law.  Nor does his conclusion in relation to Ground 4, in finding that the RRT had not required the appellant to be targeted solely for a Convention reason.  We are not persuaded that there was any error of law or principle in the RRT decision or in the reasons given by the primary judge.

17. We entirely agree with his Honour’s description of the appellant’s personal circumstances as “tragic”.  As noted earlier she is pregnant and has now been held in detention in Australia for over one year and she is presently faced with the prospect of return to a country where it is accepted as a fact that she was subjected to violent attack and rape and subsequently the murder of her father and two brothers.  In these respects her particular situation is exceptional and no doubt this will be taken into account before a final decision is made at the administrative level to deport her to Somalia.

18. His Honour described this appellant's personal circumstances as tragic and we agree.  Her current situation is very difficult and she faces an uncertain future.  However, nothing put to us, or as we are able to surmise, his Honour, discloses an error of law on the part of the RRT, nor in the reasons of his Honour.

19. The appeal is dismissed with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices O'Connor, Tamberlin and Mansfield.

Associate:

Dated:             26 March 1999

Appellant:	Self-Represented
Counsel for the Respondent:	R Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 March 1999
Date of Judgment:	26 March 1999