Osman v Minister for Immigration and Multicultural Affairs

[2000] FCA 1454

FEDERAL COURT OF AUSTRALIA

Osman v Minister for Immigration and Multicultural Affairs [2000] FCA 1454

MOHAMUD ABDI OSMAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 160 OF 2000

JUDGE:         WHITLAM J
DATE:           18 OCTOBER 2000
PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 160 OF 2000

BETWEEN:	MOHAMUD ABDI OSMAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	18 OCTOBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant 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	N 160 OF 2000

BETWEEN:	MOHAMUD ABDI OSMAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	18 OCTOBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application under s 476 of the Migration Act 1958 for review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 21 February 2000 affirming a decision not to grant a protection visa to the applicant.

2. The applicant is a citizen of Somalia, who arrived in Australia on 28 August 1999.  He lodged an application for a protection visa on 31 August 1999.

3. To be eligible for a protection visa, a person must be a refugee as defined in the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (together referred to as “the Convention”).  So far as is presently relevant, Art 1A(2) of the Convention defines a refugee as a person who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside of the country of his nationality and . . . owing to such fear, is unwilling to avail himself of the protection of that country”.

4. The applicant’s claims raised two Convention grounds of persecution: political opinion, and membership of a particular social group, namely his membership of a “sub-sub-clan” of the Shikhal clan.  The Tribunal decided that he did not have a well-founded fear of persecution by reason of either Convention ground.

5. The applicant does not challenge the Tribunal’s conclusion in respect of the Convention ground of “political opinion”. However, so far as the “particular social group” ground is concerned, he relies on par (e) of s 476(1) and alleges that:

   “(a)the Tribunal misinterpreted the causal nexus between “persecution” and the applicant’s membership of a “social group” within the meaning of the Refugee Convention;

   (b)the Tribunal both misinterpreted the Refugee Convention and incorrectly applied the Refugee Convention to the facts as found by the Tribunal in that it failed to find a “non Convention” reason for the risk of persecution which it found the applicant faces upon return to Somalia.”

6. In its reasons for decision the Tribunal referred in some detail to the applicant’s claims and to the evidence before it.  It then proceeded to state (at pp. 12-18) its findings of fact, and I shall set out an excerpt which contains the findings upon which the applicant relies:

   “. . .  I accept that the applicant is . . . a member of the Shikhal clan.  I find that the applicant is from Mogadishu, where he has resided for most of his life.

   I accept the applicant’s evidence that following the outbreak of the civil war in 1991 he and his father and some of his brothers fled Mogadishu, and that he spent around one year in a refugee camp on the Kenyan border.  I accept that the applicant returned to Mogadishu in 1992 with his second wife at the invitation of Mohamed Elmi who wanted to re-establish the applicant’s family business.  His father and the other brothers remained in Kenya.

   Despite earlier claims that he fled as it were back from the uncertainties of Kenya, based upon his oral and written evidence, I find that the applicant returned to Mogadishu of his own free will in order to re-establish the family business.  This was done with the assistance of a close and trusted friend, Mohamed Elmi Ahmed, who had remained in Mogadishu throughout the hostilities.  Mohamed Elmi is a member of the Habir Gedir clan.

   . . .  During the hearing of the current case, the applicant was referred to two country reports . . . [which] clearly state that whilst the Shikhal were to some extent targetted [sic] by the Hawiye in the early stages of the civil war, there now exists a harmonious relationship between the two clans, with the Shikhal existing under the protection of the Hawiye in Mogadishu.  . . . I find that the reports . . . accurately depict the relationship between the two clans and conditions in Mogadishu.

   I do not accept the applicant’s claim that he played no role in the re-commenced spare parts business and merely received part of the profits.  The request for the return of a family member by Mohamed Elmi must have been made for a reason.  Mohamed Elmi’s reason was, in my view, that he needed the assistance and expertise of the applicant or his father to re-start the business.  This is consistent with the above country information, which indicates that the Shikhal have continued to do business in Mogadishu under the protection of the Habir Gedir, a sub-clan of the Hawiye.  Mohamed Elmi was the acceptable “front man” for the business.  At the airport interview the applicant described himself as a “businessman” dealing in spare parts and wood.  He stated that the “people next door were against me being so”.  However, he was not speaking about 1991 but when he left in 1999.  I find that the applicant was in Mogadishu to conduct his business under the protection of the Habir Gedir from 1992 until shortly before he left in 1999.

   The applicant claims that he returned with an assumed identity.  I find that such an assumed identity would have been both useless and unnecessary.  I find that he was actively involved in the family business and that with his mother and other siblings in Mogadishu his presence and identity could not have been disguised for long.  He at all times had the drivers licence with him that could have disclosed his identity.  Since he had the protection of the dominant clan, that disguise was unnecessary.  Until 1997 it appears that his mother and two of his brothers lived undisturbed in Mogadishu and any harm they were alleged to have suffered came from another group in their own Shikhal clan and not from the Habir Gedir.  I find therefore that the applicant had the protection of the Habir Gedir, albeit at a price.  That price was a share of the profits of the business.

   The applicant claims that he was the victim of an incursion by armed men into his house in 1996.  He alleges that they were Habir Gedir who came looking for him.  I do not accept the claim that the Habir Gedir attacked the applicant.  In my view, the evidence indicates that the Habir Gedir in all likelihood knew who the applicant was, and I do not accept that they would have broken into his house demanding to know his true identity.  I have not accepted that the applicant was living in disguise and under an assumed name.  This is reinforced by the applicant’s retention of a licence bearing his true name, which he kept in the house and which would have been easy to find once the applicant fled leaving behind his family.  In the course of the evidence the applicant said that the intruders were looking for arms.  They found none and went away.  They took none of his property and caused nobody any harm.  He clearly was not too frightened for his safety when he moved only 2 kilometers [sic] away within the same suburb and still under the control of the Habir Gedir.  He remained there for another 3 years without any problems from the Habir Gedir.  I am not satisfied that he has a well-founded fear of persecution at the hands of the Habir Gedir by reason of his membership of the Shikhal clan.

   The applicant claims that in 1997 a sub-sub-clan of the Shikhal, the Mohamed Agane clan, attacked his mother and brothers because of their membership of the Elmi sub-sub-clan.  According to his statement of 14 September 1999 his principal fear is of being persecuted by that group.  As stated earlier, I have not been able to find any reference to the existence of such sub-sub-clans, but, despite some doubt, I accept that such groups exist and that fights between them have ensued in which people have been killed.  There is evidence to which I have referred, of fighting between Shikhal factions in April 1999, although it seems to have arisen out of a commercial dispute.  Such disputes have been settled by the elders of the clan.

   I accept that the applicant’s brothers were killed by members of the Mohamed Agane clan in 1997.  I also accept that his mother’s house was invaded and she herself injured by these people.  The applicant stated in his Statutory Declaration of 14 September 1999 that his family was a main target of the Mohamed Agane clan “because of our business connections”.   I accept that Mogadishu is a lawless place and that the wealthier Shikhal are exposed to extortion even by their own fellow clansmen.  Because of his business connections the applicant may well have fears for his safety but they are for reasons of his perceived wealth and not because of his imputed political views or clan membership.  Although I accept that in certain circumstances a family can constitute a social group and that in certain circumstances the “wealthy” as a class may be liable to persecution, actions undertaken against individuals or even kinfolk because of their business interests cannot be described as being “by reason of membership of a particular social group”.  The attack is by reason of their own individual characteristics: see Ram v MIEA (1995) 57 FCR 565 at 568 per Burchett J. In any event, whatever happened to his brothers and mother in 1997, it did not affect the applicant who remained in Mogadishu until 1999. His mother by all accounts remains resident in Mogadishu in the family home they have always occupied. She can be reached by telephone and there is no suggestion that she herself is at risk, apart from that one incident in 1997.

   . . .

   I accept the evidence by the applicant that his friend Elmi has been killed by persons unknown since the applicant left Mogadishu.  However, I cannot accept the very much third hand report of the alleged discussions that took place between the friend Elmi and the attackers.  By the reference to “that Shikhal” the impression was given that the attackers were non-Shikhal.  In that case and that place – south Mogadishu – they could only have been Habir Gedir.  It is not credible that the attackers would be focused on someone who had left the country and who did not constitute any threat to the Habir Gedir.  Apart from an argument in the remote past with Hussein Aideed, the applicant could not think of any reason why Aideed would seek to harm him.  If he did, there was plenty of opportunity between 1992 and 1999.  I cannot accept that Mohamed Elmi was killed for any reason connected with the applicant.  What the incident does illustrate is that Mogadishu remains a very lawless place for Habir Gedir, Shikhal and others alike.

   . . .

   In the light of the country information, I can understand that a person who can be described as one of the “wealthy Shikhal” running a business in Mogadishu wants to leave the uncertainties of that place.  According to the material cited above, which I accept, most of them have emigrated.  But they do not face persecution because they are Shikhal.  They face attack and extortion as individuals, like others such as the Habir Gedir Elmi, because they are seen to be wealthy and there is no reliable system for ensuring public safety.  I accept that the applicant has reasonable fears for his personal safety should he return there in the absence of an established government.  But he does not have a well-founded fear of persecution by reason of a Convention ground.”

7. The starting point of the applicant’s case for review is a submission that the Tribunal accepted that he had “a well-founded fear of persecution” within the meaning of the Convention.  I do not accept this submission.  The Tribunal showed by its reference to what Burchett J said in Ram that it was well aware that under the Convention persecution implies something more than the infliction of harm.  It found, quite simply, that the applicant had “reasonable fears for his personal safety” because he might face “attack and extortion”.  The Tribunal did not say that such apprehended conduct amounted to persecution.

8. Counsel for the applicant next submits that the Tribunal conceded that a group called “wealthy Shikhal” could be considered a “particular social group” within the meaning of the Convention.  I also do not accept this submission.  The Tribunal simply accepted that in certain circumstances the “wealthy” as a class may be liable to persecution.  It made no finding such as that which counsel submits was conceded. 

9. In my opinion, the Tribunal made neither of the findings of fact upon which the applicant’s case depends.  His counsel refers to the explanation of Ram in Perampalan v Minister for Immigration and Multicultural Affairs (1999) 84 FCR 274 at 282-3 in support of a contention that the Tribunal erred in excluding from the concept of persecution the extortion faced by “wealthy Shikhal”, such as the applicant, “because they are seen to be wealthy”. However, in Perampalan it had been found that extortion was directed at wealthy members of a particular race, whereas in this case the Tribunal expressly found that, “like others”, wealthy Shikhal face extortion “as individuals”. 

10. This case was argued shortly after the decision in Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 74 ALJR 775. Counsel for the applicant has recast his client’s case in order to rely on the kind of error identified in Chen Shi Hai in the application of the phrase “for reasons of” in the Convention definition.  Unfortunately for the applicant, the facts found by the Tribunal do not fit this mould.  I repeat: the Tribunal did not find that “wealthy Shikhal” were a particular social group for the purposes of the Convention.  The Tribunal held, in effect, that the conduct to which such persons are subjected was not undertaken for a Convention reason.  That emerges very clearly from the final paragraph in the above excerpt from its reasons.

11. Counsel for the applicant submits that the risk to personal safety faced by his client constitutes persecution.  He relies on what Lord Hoffmann said in R v Immigration Appeal Tribunal; Ex parte Shah [1999] 2 AC 629 at 653-654. It is true that in Chen Shi Hai the majority remarked (at 780) that the question whether conduct is undertaken for a Convention reason cannot be entirely isolated from the question whether that conduct amounts to persecution. However, even accepting for the sake of argument that the harm to which the applicant may be exposed in Somalia amounts to persecution (notwithstanding it was not expressly so labelled by the Tribunal), there is still entirely lacking in the present case what Kirby J called in Chen Shi Hai the “causative element” of the Convention definition.  Lord Hoffman’s analysis was pointedly not mentioned by the majority in the High Court, who once more emphasized “the common thread” linking the expressions used in the Convention definition.  In the present case the Tribunal specifically found that wealthy Shikhal, such as the applicant, “do not face persecution because they are Shikhal”.

12. The application will be dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam

Associate:

Dated:             18 October 2000

John D Fitzgerald of counsel appeared for the applicant.

Mr Andras Markus of the Australian Government Solicitor appeared for the respondent.

Date of hearing:	25 May 2000
Date of judgment:	18 October 2000