Salad v Minister for Immigration & Multicultural Affairs

[1999] FCA 987

FEDERAL COURT OF AUSTRALIA

Salad v Minister for Immigration & Multicultural Affairs [1999] FCA 987

MIGRATION – review of a decision of the Refugee Review Tribunal (“RRT) – whether the RRT erred in determining whether applicant had a well-founded fear of persecution.

Migration Act 1958 (Cth) s430(1)(c)

Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, referred to

Kopalapillai v Minister for Immigration and Multicultural Affairs (unreported, 8 September 1998, O’Connor, Branson and Marshall JJ), applied

Minister for Immigration v Rajalingam [1999] FCA 719, applied

FADUMA AHMED SALAD v THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

V 42 of 1999

MARSHALL J
MELBOURNE
22 JULY 1999

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 42 OF 1999

BETWEEN:	FADUMA AHMED SALAD Applicant
AND:	THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	MARSHALL J
DATE OF ORDER:	22 JULY 1999
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs of the appeal including reserved costs, if any.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 42 OF 1999

BETWEEN:	FADUMA AHMED SALAD Applicant
AND:	THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	MARSHALL J
DATE:	22 JULY 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The proceeding before the Court is an application under the Migration Act 1958 (Cth) (“the Act”) to review a decision of the Refugee Review Tribunal (“RRT”).

2. The decision, the subject of the application, was made by the RRT on 15 January 1999. The RRT determined that the applicant, Ms Salad, was not a person to whom Australia has protection obligations under 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 1968 (“the Convention”).

   Background

3. Ms Salad is a citizen of Somalia. She entered Australia on 21 October 1998 with her young child. She gained entry into Australia by use of a false passport. Ms Salad applied for a protection visa. A delegate of the respondent refused to grant a protection visa on 24 November 1998. Ms Salad applied to review that decision by application to the RRT filed on 30 November 1998. The RRT’s 15 January 1999 decision affirmed the decision of the delegate. Ms Salad filed her application for an order for review in the Court on 3 February 1999.

4. Ms Salad was legally represented before the RRT. It was contended on her behalf that she feared persecution for a Convention based reason if she was returned to Somalia. The reason advanced was that she was a member of a particular sub-clan, the Hassan Salah, members of which it was alleged are liable to be persecuted by members of other clans in Somalia.

   The RRT’s Findings

5. The crucial material findings of the RRT may be described as follows:

   ·    Ms Salad is a Somali national who is a member of the Hassan Salah sub-clan of the Arab Saalax clan

   ·    the Hassan Salah is not part of any of the six major clans in Somalia

   ·    Ms Salad’s father and brother were killed and her sister was raped during the civil war in 1991

   ·    while in recent times there has been a reduction in the level of inter-clan warfare some inter-clan fighting still occurs in various locations including Baidoa

   ·    Ms Salad comes from Baidoa

   ·    while specified clans are often at the centre of violent clashes innocent civilians are frequently victims of those clashes

   ·    the Hassan Salah sub-clan is not one of the clan groups involved in the fighting in Baidoa

   ·    the Hassan Salah sub-clan had been associated with the Darod clan loyal to former President Barre but has since been disowned by the Darod clan

   ·    Ms Salad left Somalia and went to Kenya in 1991 following the fall of President Barre

   ·    Ms Salad returned to Somalia in 1994

   ·    Ms Salad’s mother and younger sister remained in Somalia in the interim without being harmed, however they claimed they remained inside their home during that period

   ·    some of Ms Salad’s family members were victims of the Hawiye clan in 1991 because the Hassan Salah sub-clan was perceived by the Hawiye to be allied to the Darod clan

   ·    since being disowned by the Darod clan the Hassan Salah sub-clan have not been participants in any of the inter-clan violence, although as innocent civilians they continue to be the victims of such violence

   ·    should Ms Salad return to Somalia she could be the innocent victim of inter-clan fighting but she would not be a target of selective harassment on account of her membership of the Hassan Salah sub-clan

   The Applicant’s Contentions

6. Mr Gibson of counsel appeared for Ms Salad. He contended that the RRT erred in determining whether Ms Salad had a well-founded fear of persecution in the sense discussed in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR (at 379, 389, 398, 407 and 429) if she returned to Somalia. Two related errors were said to have been made. They were described as follows:

   1)The RRT imposed a requirement that one must be a participant in clan warfare to have a well founded fear of persecution based on sub-clan membership.

   2)The RRT failed to consider that Ms Salad was a member of an unprotected sub-clan, which had been disowned by one of the major clans.

7. A further error identified by Mr Gibson in the RRT’s reasoning process was the RRT’s failure to reasonably speculate as to the chance of persecution on Ms Salad’s return to Somalia on a consideration of all the material before the RRT.

8. An additional major ground advanced by Mr Gibson raised an issue that was not raised by the RRT but was an issue which Mr Gibson contended should have been apparent to the RRT after considering the material it had at its disposal about conditions in Somalia. The ground referred to was that Ms Salad had a well-founded fear of persecution on return to Somalia on account of her membership of a particular social group. That social group being “women in Somalia”.

9. In support of that later submission Mr Gibson referred the particular difficulties faced by women in Somalia by reference to:

   ·    a document entitled ‘Report on the Nordic fact-finding mission to Mogadishu, Somalia, 28 May – 13 June 1997’, and

   ·    two US Department of State Country Reports on Human Rights Practices for 1997

10. One of the later reports said that:

    “Women suffered heavily disproportionate levels of violence in the civil war and in the strife that followed. During the year, however, there were again no reports of systematic attacks on women in connection with the continuing civil strife.” (Emphasis supplied).

11. The other US report referred to:

    “…societal discrimination against women, and the mistreatment of women and children, including the nearly universal practice of female genital mutilation (FGM).”

12. The Nordic fact-finding mission report referred to professional and business difficulties faced by women in Somalia and to the disproportionate number of women killed in the civil war.

13. Mr Gibson submitted that given the RRT’s role as a specialist tribunal and its wealth of knowledge concerning Somalia it should have been apparent to it that women in Somalia are at risk for a Convention based reason if returned to Somalia. Specifically Mr Gibson submitted that the RRT was obliged to determine the substantive issue raised by the material before it. Accordingly it was submitted that contrary to s430(1)(c) of the Act the RRT did not set out its findings on a material question of fact, namely, was the applicant at risk of persecution for a convention based reason by virtue of her sex if returned to Somalia?

14. Mr Gibson also submitted that a s430(1)(c) issue arose in respect of the first errors of the RRT identified by him and noted at par 13 above. However he effectively conceded that if the Court did not agree that such errors had been made Ms Salad could not avail herself of s430(1)(c) of the Act to advance her case.

    The Respondent’s Contentions

15. Mr Mosley appeared for the respondent. It was submitted by him that when the RRT’s reasons were considered as a whole and read fairly it was clear that a finding had been made that members of the Hassan Salah clan were not targeted by other clans. Mr Mosley contended that it was wrong to characterise the RRT’s reason as being focussed on the need for one’s clan or sub-clan to be a participant in violence to have the requisite well founded fear of persecution. Mr Mosley also said that the RRT did not fail to consider that Ms Salad’s sub-clan had been disowned by the Darod clan but specifically took that matter into account.

16. In determining that the Hassan Salah were not targeted by other clans Mr Mosley submitted that the RRT had determined that notwithstanding that the Hassan Salah were not involved in, or were not the subject of violence, they may be subject to harm as innocent victims of clashes between other groups.

17. Mr Mosley submitted that “women in Somalia” did not constitute a particular social group for the purposes of the Convention. If he was in error in so submitting he contended that there was no evidence of persecution of Ms Salad by reason of her membership of that particular social group. Mr Mosley further contended that the RRT had no obligation under s430(1)(c) of the Act to set out its finding on this issue as it was not a relevant issue before the RRT having regard to the material before it.

    Conclusions

18. On the issue regarding women as a particular social group, the Court is prepared to assume, for the purposes of these reasons for judgment, that women in Somalia do constitute such a group for the purposes of the Convention. However the material identified at par 9 above concerning the difficulties faced by women in Somalia does not support the contention that women are persecuted in Somalia because they are women. In fact the emphasised portion of one of the US Department of State Country Reports suggests to the contrary. More particularly, as Mr Mosley submitted, there is no evidence that Ms Salad is at risk of persecution on return to Somalia because she is a woman. The RRT did not err by failing to so find.

19. The obligations of the RRT under s430(1)(c) of the Act accordingly do not arise with respect to this issue. It was not in any real sense an issue of significance on the material before the RRT in the context of an assessment of whether there was a real chance of persecution for a Convention based reason should Ms Salad return to Somalia.

20. It is the Court’s view that the other issues raised by the applicant essentially amount to an attempt to engage the Court in a review of the merits of the application before the RRT. Ms Salad’s difficulty in contending that the well founded fear test was misapplied lies in the fact that properly considered the RRT’s decision did examine whether the Hassan Salah sub-clan members were at risk apart from their lack of direct participation in the inter-clan violence. In particular the RRT stressed that the sub-clan members “were not being targeted by other clans” and hence were less at risk than those who were participants.

21. Further the unprotected status of the Hassan Salah sub-clan may also be described as “unaligned” in circumstances where its previous alignment had led to violence being inflicted upon its members by the Hawiye clan members, who perceived the Hassan Salah to be in league with the Darod clan.

22. The Court discerns no error of law in the RRT’s reasoning process having regard to the RRT’s references to the Hassan Salah’s lack of involvement or participation in the inter-clan warfare. No error of law arises from the RRT’s approach to the Hassan Salah being disowned by the Darod clan. The RRT was not satisfied of the validity of the applicant’s claim for a protection visa having regard to its perception of whether Ms Salad’s fear of prosecution was well founded. In so far as it approached its task in the context of the well founded fear test it is the RRT’s satisfaction of the merits of each case that is relevant and not that of a judge on review to this Court. See Kopalapillai v Minister for Immigration and Multicultural Affairs (unreported, 8 September 1998, O’Connor, Branson and Marshall JJ). The Court agrees with Mr Mosley that no s430(1)(c) issue arises in respect to this aspect of Ms Salad’s case. The RRT set out its findings on the material questions of fact that relate to the position of a person in Somalia who belongs to the Hassan Salah sub-clan.

23. The Court also rejects Mr Gibson’s submission that the RRT failed to reasonably speculate regarding the chance of Ms Salad’s persecution on return to Somalia on a consideration of all the material before the RRT. It is the Court’s view that the RRT’s findings that the applicant was not objectively at risk of such persecution were firm findings and not in any sense tentative or equivocal such that it was open to suggest that the RRT had any doubt that its findings were correct. See Minister for Immigration v Rajalingam [1999] FCA 719 at pars 56 and 109 per Sackville J, with whom North J agreed, and at par 137 per Kenny J.

24. Consequently it is the Court’s view that the application be dismissed with costs, including reserved costs if any.

    Order

    1.The application be dismissed.

    2.The applicant pay the respondents costs including reserved costs, if any.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:      22 July 1999

Counsel for the Applicant:	Mr J Gibson
Solicitor for the Applicant:	Victoria Legal Aid
Counsel for the Respondent:	Mr W Mosley
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 June 1999
Date of Judgment:	22 July 1999