Ahmed v Minister for Immigration & Multicultural Affairs [2000] FCA 1571

FEDERAL COURT OF AUSTRALIA

Ahmed v Minister for Immigration and Multicultural Affairs [2000] FCA 1571 MIGRATION – application for protection visa – well-founded fear of persecution in Somalia for reason of race, or alternatively, for reason of membership of a particular social group – review of the Refugee Review Tribunal's decision under s 476(1)(e) of the Migration Act 1958 (Cth) – the Tribunal found that a clan member was targeted for personal gains – whether the Tribunal failed to consider that there might be multiple effective causes for the harm feared.

Migration Act 1958 (Cth) s 36(2), s 476(1)(e), s 430(1) Migration Regulations 1994 (Cth) Sch 2, Subclass 866 Convention relating to the Status of Refugees (1951), Art 1 Minister for Immigration and Multicultural Affairs v Abdi (1999) FCA 299 referred to Omar Mohamed Mohamed v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia, Emmett J, 19 May 1999) [1999] FCA 688 not followed Minister for Immigration and Multicultural Affairs v Sarrazola (1999) 166 ALR 641 considered Rajaratnam v Minister for Immigration and Multicultural Affairs [2000] FCA 1111 applied MUSTAFE MOHAMOUD AHMED v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N174 OF 2000 MATHEWS J 8 NOVEMBER 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALESDISTRICT REGISTRY N174 OF 2000

BETWEEN: MUSTAFE MOHAMOUD AHMED

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MATHEWS J

DATE OF ORDER: 8 NOVEMBER 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1) The application is allowed. 2) The decision of the refugee Review Tribunal is set aside and the matter remitted to the Refugee Review Tribunal to be reconsidered according to law. 3) The respondent is to pay the applicant'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 WALESDISTRICT REGISTRY N174 OF 2000

BETWEEN: MUSTAFE MOHAMOUD AHMED

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MATHEWS J

DATE: 8 NOVEMBER 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT

Introduction 1 The applicant, Mr Ahmed, seeks judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 17 February 2000 in which the Tribunal affirmed a decision of the respondent's delegate that the applicant was not entitled to a protection visa. 2 In order to be eligible for a protection visa, an applicant must meet the criteria set out in s 36(2) of the Migration Act 1958 (Cth) ("the Act") and Subclass 866 in Sch 2 to the Migration Regulations 1994 (Cth). Both provisions require that the applicant for a protection visa be a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol ("the Convention"). Article 1 of the Convention defines a "refugee" as any 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 the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country …". 3 Mr Ahmed says that he has a well-founded fear of persecution for reason of his race, or alternatively his membership of a particular social group, namely the Bajuni Clan, a minority clan in Somalia.

FACTUAL background 4 The applicant arrived in Australia on 18 June 1998 using a forged United Arab Emirates (UAE) passport in a false name. He destroyed this passport after passing through immigration clearance. He later produced what he said was his Somali passport and his birth certificate. These showed that he was born at Kismayo on 10 January 1976. 5 On 23 July 1998 the applicant applied for a protection visa. In his application he made the following statement: "Why did you leave that country? I left Somalia in 1992 as I had to flee the increasingly volatile civil war. I fled by myself by boat from the port of Kismanyo to Yemen. I was 16 at the time. My family dispersed at this time and fled to alternate places. I made the decision to leave Somalia myself. My clan was being slaughtered. I am a member of the Baajuun Clan and the Baajuun Clan was being killed by the Majeerten Clan in open fighting. At the time of my departure in 1992 the Majeerten were committing most of the killings but other clans were involved in the inter-clan warfare. There was a major incident that made me as a sixteen year old decide to leave. I saw the body of my uncle who had been killed in the fighting and there were some clan members who were killed around this time that I was close to. I saw many fatalities during the fighting prior to my departure in 1992. I was having nightmares everyday, and I felt that I could be the next one to be killed. I was terrified. What do you fear may happen to you if you go back to that country? I fear ongoing persecution if I return to Somalia. I believe this fear is 'real' and 'substantial'. I am a member of the Baajuun Clan. They have lived predominantly in the south of Somalia around Kismanyo. There [sic] strength and numbers have been decimated as a consequence of the civil war. They are a low caste clan. There is no one that I could live amongst in my clan. I do not have any sense of protection in this region. Before the war clans co-existed and there was no animosity but now the clans are uncomfortable and tension exists. I have no family in Somalia, no home, and clan's[sic] have there [sic] own militia's [sic] and screen people from other clan's [sic] to test for animosity and difference. There is no formal government to provide protection for Somali clan members. The Baajuun have been so extensively decimated that they have no collective strength in Somalia. Thus if I returned to Somalia any part of the country I would be screened and I would be seen to be from the Baajuun Clan and more than likely executed or persecuted. The Baajuun clan is a low caste clan and this because of our lower status my fears are even greater. Many clans do not believe that the Baajuun clan is from the dominant Somali race and has its origins elsewhere. I would be identified in Somali as Baajuun because of my accent and I would be asked to cite my lineage and I could not because I am Baajuun. Who do you think may harm/mistreat you if you go back? Other clans would harm and mistreat me. Somalia has been broken up by the dominant clans and as a consequence armed militias patrol each area. There is no central government. Because of my clan and status I believe I face a real chance of persecution by other dominant clans in Somalia. I also believe I would no [sic] be protected by any one as there is a lack of central government and no organised police force." 6 In a later statement, dated 2 December 1998, the applicant said that when he left Somalia in 1992 he first went to Yemen. There he remained for about two years. In 1994 he walked from Yemen to the UAE where he lived for the next four years. There he managed to obtain work on the black market in Dubai. However he was fearful of coming to the attention of the authorities, as he had no legal status in the country. In due course he raised enough money to obtain a false passport and an airline ticket to Australia. He flew direct to Australia from UAE. He had lost contact with his parents and siblings, he said, and did not know whether they were alive or dead. 7 On 12 March 1999 a document examiner with the Department of Immigration and Multicultural Affairs reported on the authenticity of the passport and the birth certificate produced by the applicant. The examiner found that the passport was a genuine Somali passport but that, for various reasons noted in the report, there were reservations as to the authenticity of the birth certificate. 8 On 24 March 1999 the respondent's delegate refused the grant of a protection visa to the applicant. On 6 April 1999 the applicant sought review of this decision from the Tribunal. On 29 July 1999 he attended the Tribunal and gave evidence on his own behalf. On 17 February 2000 the Tribunal affirmed the delegate's decision not to grant him a protection visa.

The Tribunal's decision 9 The Tribunal in its decision set out the claims made by the applicant in his various statements and interviews. It also quoted extensively from independent material as to the situation in Somalia, particularly relating to the Bajuni clan. This material indicates that the Bajuni is a small group of approximately 3,000 to 4,000 people who are predominantly sailors and fishermen. They live in small communities along the southern coastline of Somalia. They are racially distinctive, with lighter skin and hair than other Somalis. Being a small clan, the Bajuni do not have their own militia and have no means of protecting themselves. The material indicates that during the fighting which took place when President Barre was ousted in 1991 the Bajuni were victimised by local clans and many fled to Kenya. 10 In its "Findings and Reasons" the Tribunal discussed the document examiner's reservations as to the authenticity of the applicant's birth certificate. As the passport was based on this certificate, the Tribunal found that it could not rely upon either document as evidencing the applicant's identity. However it was prepared to accept that he was a Somali national. 11 The Tribunal made generally unfavourable findings as to the applicant's credibility. It expressed reservations as to whether he was a member of the Bajuni clan at all. In this regard it pointed to a number of inconsistencies and anomalies in the accounts which the applicant had given of his background in Somalia. 12 However, the Tribunal went on to consider whether, in the event that it was wrong and the applicant was in fact a member of the Bajuni clan, he had a well-founded fear of persecution for a Convention reason should he return to Somalia. In this regard it made the following findings: "The independent evidence before the Tribunal and which I accept states that the Bajuni 'do not seem to have been targeted for personal or political attack during the fighting' and that 'because of their maritime mobility they have not been in as much danger as other Somali minorities'. Furthermore the independent evidence suggests that some Bajuni earned money transporting refugees from Brava and Kismayu in their fishing boats. The applicant in fact initially stated that he travelled to Yemen in this way although he later stated that the Bajuni were not engaged in such activities. However there is conflicting independent evidence before the Tribunal stating that the Bajuni may have been targeted by other Somali clans 'because of their lack of standing in traditional Somali genealogies'. Given this conflicting evidence I accept that the Bajuni encountered problems during the early stages of the conflict in Somalia. Independent evidence before the Tribunal and set out in this decision which I accept states that the Bajuni were previously vulnerable because of the presence of armed militia 'who typically steal their equipment and resell it at exorbitant prices' and 'sometimes their catch is taken away with little or no recompense'. As the Court states in MIMA v Abdi (1999) FCA 299: 'In many cases the basis for an applicant's fear will arise from a struggle relating to territory, property or power and not to warfare for reasons of clan or race where the objective is to harm a person because of clan membership. This may be so in Somalia where the existence of shifting alliances tends to indicate that the persecution under consideration at any particular time may not be directed towards clan membership as such, but rather to other considerations incidentally associated with clan membership such as control over land or resources.' In the case of Omar Mohamed Mohamed v MIMA (unreported, Federal Court of Australia, Emmett J, 19 May 1999) the applicant contended that he was subjected to selective harassment because he was a member of a weak clan. The Court held that persecution of small or weak groups was not, of itself, persecution for a Convention reason:- 'Harm arising out of such a war may be disproportionately directed to those unable to defend themselves, whether they be individuals or smaller weak groups. A defenceless person in such circumstances, however, is not at risk by reason of membership of such a group but simply because he or she occupies the territory or has the resource which is sought by the persecutors. The fact that such a person is defenceless to resist the claim by the more powerful group and is unable to defend it does not render the conflict that might arise conflict for a Convention reason. It is a most unfortunate circumstance of human life that that be so. However I do not consider that persecution of weak people in order to obtain what they have, because it is easier to recover what they have from them than from a stronger group, is persecution for a Convention reason.' I find that the purpose of the harm inflicted on the Bajuni was to gain resources and pecuniary interests and was not on the basis of clan or for any other Convention reason." 13 The Tribunal therefore found that the applicant did not have a well-founded fear of persecution for a Convention reason and affirmed the delegate's decision to refuse him a protection visa.

The Application to this Court 14 On 3 March 2000 the applicant applied for review of the Tribunal's decision pursuant to s 476 of the Act. The application for review was later amended so as to include only one ground, under s 476(1)(e) of the Act, namely that 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. The particulars in support of this ground were as follows: "(a) Having effectively asked the question, "What if I am wrong?" as to its finds of the applicant's lack of credit, the Tribunal erred in finding that harm "to gain resources and pecuniary interests" could not be persecution for a Convention reason. (b) The Tribunal did not consider the possibility of there being multiple effective causes to the harm feared. (c) the [sic] Tribunal failed to consider whether, despite their ability to physically return to the Kismayo region of Somalia, Bajani may currently or in the future be targeted because of "their lack of standing in traditional Somali genealogies", and or have their ability to support themselves removed by the actions of more powerful clans. (d) The Tribunal failed to consider whether increased vulnerability to harm satisfied the requirement of a causal nexus between that harm and a "Convention reason" (e) The Tribunal failed to consider whether any 'different' treatment received by the Bajuni was indicative of persecution for a Convention reason."

Issues for Consideration 15 It was the contention of Mr Karp, who appeared for the applicant at the hearing of this application, that the Tribunal made errors of law in its conclusions about what took place in the past and what might happen in the future. These involve different considerations, and therefore need to be discussed separately.

The past 16 As the passage quoted at par [12] indicates, the Tribunal concluded that the Bajuni had not been persecuted for a Convention reason. Rather, the Tribunal found that any harm inflicted upon the Bajuni was to gain resources and to advance pecuniary interests. Mr Karp submitted that this was an erroneous conclusion in that the Tribunal did not consider the possibility that there might have been multiple effective causes for the harm feared. In this regard he relied on Minister for Immigration and Multicultural Affairs v Sarrazola (1999) 166 ALR 641. In that case the Tribunal upheld the refusal of a protection visa on the basis that the harm which the applicant feared in her country of nationality was from criminals who were motivated by self-interest to recover money which they believed was owing to them by the applicant's deceased brother. The Tribunal was not satisfied that this harm arose for a Convention reason. The Full Court found that the Tribunal had made an error of law under s 476(1)(e) of the Act. It had erroneously adopted the approach that a finding that the criminals were motivated by a desire to recover money was inconsistent with a finding that they were motivated by a desire to harm the applicant for a Convention reason. In this regard the Tribunal had failed to recognise that a person may be motivated to persecute another for more than one reason. 17 In Rajaratnam v Minister for Immigration and Multicultural Affairs [2000] FCA 1111, a judgment which was delivered after I reserved judgment in the present case, the Full Court (Moore, Finn and Dowsett JJ) had this to say on the subject: "As this Court has indicated on several occasions, care needs to be taken when considering whether extortion has been practised upon a person for a Convention reason: see eg Minister for Immigration and Multicultural Affairs v Sarrazola (1999) 166 ALR 641 at 645-646. The need for this is apparent enough. In the usual case of extortion the extorting party will be acting for a self-interested reason (ie to gain an advantage for himself or herself, or for another). In this sense, his or her interest in the person extorted can always be said to be personal. What needs to be recognised, though, is that the reason why the extorting party has that interest may or may not have foundation in a Convention reason. The extorted party may have been chosen specifically as the target of extortion for a Convention reason, or may have become the subject of extortion because of the known susceptibility of a vulnerable social group to which he or she belongs, that social group being identified by a Convention criterion. Or, conversely, the person may have been selected simply because of his or her perceived personal capacity to provide the particular advantage sought and for no other reason or purpose. Likewise in the course of practising extortion on a person, self-interested action may be taken against the extorted party for the benefit and/or protection of the extorting party. Again it can be said that in taking such action, the extorting party's interest in the effect of it on the other is a "personal interest". But depending on whether the extortion itself is being practised for a reason that includes a Convention reason, the action in its setting may nonetheless be relevantly persecutory in character. In a particular setting, then, extortion can be a multi-faceted phenomenon exhibiting elements both of personal interest and of Convention-related persecutory conduct. For this reason the correct character to be attributed to extorsive conduct practised upon an applicant for refugee status is not to be determined as of course by the application of the simple dichotomy: "Was the perpetrator's interest in the extorted personal or was it Convention related?" In a given instance the formation of the extorsive relationship and actions taken within it can quite properly be said to be motivated by personal interest on the perpetrator's part. But they may also be Convention-related. Accordingly any inquiry concerning causation arising in an extortion case must allow for the possibility that the extorsive activity has this dual character." (par [46]-[48]) 18 It is the applicant's submission that the Tribunal in this case made precisely the error referred to by the Court in the passage just quoted, by applying the dichotomy: "Was the perpetrator's interest in the extortion personal or convention related?" In other words the Tribunal assumed that an affirmative answer to one hypothesis would denote a negative answer to the other. 19 It is relevant here to return to the material which was before the Tribunal in this case. On all accounts the Bajuni have different racial characteristics and a different racial background from other Somali groups. The applicant's case was that he feared persecution in Somalia because he is a Bajuni. As such, it was equally open for him to claim that he feared persecution by reason of his race or by reason of his membership of a particular social group, both being Convention grounds. In the circumstances of this case it makes little difference which ground he relied upon. The Convention definition of a refugee will be satisfied if he has a well-founded fear of persecution for reason of his membership of the Bajuni clan. 20 In finding that the harm inflicted upon the Bajuni was not Convention related, the Tribunal quoted a passage from the judgment of Emmett J in Mohamed as supporting the proposition that "persecution of small or weak groups is not, itself, persecution for a Convention reason." If that passage does support that proposition, then it is difficult to see how it can stand with the Full Court judgment in Rajaratnam (quoted above at par [17]). 21 A close reading of the Tribunal's decision in this case satisfies me that there is substance in the applicant's criticisms of the Tribunal's reasoning process. The Tribunal treated its affirmative finding that the Bajuni were victims of extortion as denoting that there was no Convention reason for harming them. This constituted an error of law under s 476(1)(e) of the Act.

The future 22 The Tribunal's conclusion that the Bajuni did not suffer Convention related harm in the past was the primary basis upon which it found that the Applicant did not have a well-founded fear of persecution for a Convention reason. In addition, the Tribunal went on to find that, in any event, the position of the Bajuni has "changed significantly", with the result that the applicant should now be able to return to live in the Kismayo region of Somalia. It did so in the following passage: "Furthermore, although according to the independent evidence set out in this decision, in 1995 the situation for the Bajuni was still considered precarious and they were not being repatriated, the independent evidence set out in this decision as to the situation in 1998, indicates that the position of the Bajuni has changed significantly. According to Country Information Report No.28/99 dated 22 January 1999 several hundreds of Bajuni voluntarily returned to Kismayu as they were "able to negotiate an agreement which allowed their return with local warlords". Accordingly, I find that the applicant, as a Bajuni/Bijuni would be able to return to live in the Kismayo region as other Bajuni have returned there and moreover, I find that as a member of the Bajuni the applicant is not at risk of being persecuted for a Convention reason as I have already found that the harm directed at the Bajuni in the past was for resources and pecuniary gain and not for a Convention reason." 23 The Country Information Report dated 22 January 1999 referred to in the Tribunal's decision was, relevantly, as follows: "In December 1998 there has also been a voluntary return of several hundreds of the Bijuni people from Kenya. These are a minority group of primarily fisherpeople who live in the Kismayo region. They were able to negotiate an agreement which allowed their return with local warlords. They preferred to return to Somalia rather than comply with a Kenyan government edict that they move to a refugee camp at Kakuma in the remote desert northwest of Kenya." 24 The applicant submitted that the Tribunal wrongly assumed that because some Bajuni had returned from Kenya to the Kismayo region, rather than move to a desert refugee camp, they did not have a well-founded fear of persecution. This, it was submitted, was an unwarranted assumption. The question remained, and needed to be answered, whether the Bajuni had a well-founded fear of persecution for a Convention reason. The mere fact that some Bajuni chose to return to Somalia was not determinative of that issue. 25 The proposition underlying this submission is patently correct. It does not at all follow that, because some Bajuni chose to return to Somalia rather than go to a camp in Kenya, they did not have a well-founded fear of persecution in Somalia. Still less does it follow that the applicant does not have a well-founded fear of persecution in Somalia because of the repatriation of some Bajuni who were able to negotiate an agreement with local warlords. 26 In the result, the ground of review has been made out. The decision of the Tribunal will be set aside and the matter remitted for determination according to law. The respondent is to pay the applicant's costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mathews.

Associate: Dated: 8 November 2000

Counsel for the Applicant:

Solicitor for the Applicant: Mr L Karp

Counsel for the Respondent: Ms R M Henderson

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 24 July 2000

Date of Judgment: 8 November 2000