Minister for Immigration and Multicultural Affairs v Haji Ibrahim

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ,Gaudron J,McHugh J,Gummow J,Kirby J,Hayne J,Callinan J
• Judgment Date: 26 October 2000
• Neutral Citation: 2000-1026 HCA A,[2000] HCA 55
• Docket Number: S157/1999
• Date: 26 October 2000

[2000] HCA 55

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

S157/1999

Minister for Immigration and Multicultural Affairs

Appellant

and

Hussein Mohamed Haji Ibrahim

Respondent

Migration Act 1958 (Cth), ss 36(2), 476(i)(e).

Migration Regulations 1994 (Cth), Sched 2, Subclass 866.

Convention relating to the Status of Refugees (1951), Art 1A(2).

Minister for Immigration and Multicultural Affairs v Haji Ibrahim

Immigration — Refugees — Protection visa — Clan-based conflict in Somalia — Whether persecution on Convention grounds — Use of terms ‘civil war’, ‘civil conflict’ and ‘systematic persecution’ — Whether Convention definition permits or requires examination of the ‘motivation’ for or ‘objects of’ a ‘civil war’ or ‘civil conflict’ or demonstration of a ‘differential operation’ upon an applicant's social group.

Words and phrases — ‘persecution’ — ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’.

1 Gleeson CJ. I have had the benefit of reading in draft form the reasons for judgment of Gummow J. I agree with the orders proposed by his Honour, and with his reasons for those orders.

Gleeson CJ

2 The decision of the Full Court of the Federal Court in this case reflected the earlier decision of the Full Court, constituted by the same members, inMinister for Immigration and Multicultural Affairs v Abdi1. In the present case the Full Court said2:

‘AsAbdi indicates, it is necessary to consider the motivation of the civil war giving rise to the “ordinary risks of clan warfare”. It may well be that the motivation of particular clan warfare is to persecute members of a clan by reason of that membership, as distinct for example from establishing control over land or resources.’

3 InAbdi3, the Full Court had considered the possibility that one of the objectives of clan warfare may be ‘wiping out an opposing clan.’

4 The Refugee Review Tribunal was criticised for failing to pursue this line of investigation in the present case.

5 As Gummow J has observed, the expression ‘civil war’ may be a misleading description of the situation in Somalia as described in the evidence. A better description may be anarchy. Depending upon the factual issues raised for examination, it may be helpful to consider whether conduct of a certain kind is ‘systematic’, or whether treatment of a certain kind is discriminatory, or ‘differential’. In the end, however, it is the language of the Convention which has to be applied.

6 Katz J held that there was nothing in the reasoning of the Tribunal which revealed any error of principle in the approach taken to the facts of the present case. Much of the reasoning is explained by the way the respondent's case was argued, and by the nature of the evidence before the Tribunal. The Tribunal considered and rejected the respondent's claim that the maltreatment he and members of his family suffered was the consequence of a genocidal policy directed towards his clan. It was concluded, in relation to one instance, for example, that the perpetrators ‘came to steal livestock, and tied up and killed those who were taking care of the livestock’. This involves an invasion of

human rights, but, without more, it does not amount to persecution for a relevant reason.

7 Persecution and disorder are not mutually exclusive. The existence of disorder may provide the occasion of, and perhaps the opportunity for, persecution of an individual or a group. In such a case, the ground of the persecution may or may not be a Convention ground. Nothing in the reasoning of the Tribunal was inconsistent with that. As the clans and subclans in Somalia struggle for power and resources, it is inevitable that from time to time, and from place to place, some will be in the ascendancy and others will be vulnerable. In such a situation, an inquiry as to whether the motivation of those temporarily in the ascendancy is to harm their enemies rather than to secure the benefits of domination is unlikely to be fruitful. The distinction, in a context of the kind revealed by the evidence in the present case, lacks practical content.

8 Katz J was right to conclude that there was no error in the approach taken by the Tribunal.

9 Gaudron J. The facts and the history of these proceedings are set out in other judgments. I shall repeat them only to the extent necessary to make clear my reasons for concluding that the appeal in this matter should be dismissed.

Gaudron J

10 The sole question raised in this appeal is whether, in allowing an appeal from Katz J, the Full Court of the Federal Court erred in finding reviewable error on the part of the Refugee Review Tribunal (‘the Tribunal’). The Tribunal affirmed a decision by the Delegate of the Minister for Immigration and Multicultural Affairs that the respondent, Mr Haji Ibrahim, who is a Somali citizen, is not a refugee 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 1967 (together referred to as ‘the Convention’) and, thus, is not entitled to a protection visa pursuant to s 36 of theMigration Act 1958 (Cth) (‘the Act’)4.

Somalia: background facts

11 Somalia has had no central government since 1991. Various regions have, at various times, come under the control of different clan-based militias and different war lords supported, from time to time, by different clans and sub-clans. Clan allegiances are continuously shifting and, seemingly, this is a persistent feature of Somali life5. The clan which is central to this appeal is the Rahanwein which, according to information before the Tribunal, is numerically strong but militarily weak6. There was other information before the Tribunal to the effect that, traditionally, the Rahanwein had never been fighters and that some of its members, at least, are ‘sedentary peasants’7.

12 The shifting clan allegiances and the political anarchy in Somalia have resulted in ‘the killing, dislocation, and starvation of thousands of Somalis’8. The general situation was described by the Tribunal as one of ‘civil unrest’ or ‘civil war’ and the struggle between the various groups in Somalia as ‘clan warfare’. Although the Tribunal's use of these terms is entirely understandable, they, perhaps, fail to convey an entirely accurate picture of the widespread chaos in Somalia or of the tragic consequences for its people.

The Convention: persecution

13 Until comparatively recent times, the Convention has fallen for application in relation to people who fled persecution that was authorised or condoned by the government of the country concerned9. The application of the Convention to persons who have fled a country, such as Somalia, which has no central government and in which it is difficult, if not impossible, to identify any dominant person or group involves the challenge of the unfamiliar.

14 The Convention defines a ‘refugee’, in Art 1A(2), as any person who:

‘owing to 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’.

The difficulty in applying the Convention definition of ‘refugee’ in circumstances such as those in Somalia lies in recognising what, in those circumstances, is involved in the notion of ‘persecution’.

15 It should at once be noted that a person who claims to be a refugee, as defined in Art 1A(2) of the Convention, has only to establish a ‘well-founded fear of being persecuted’. That is usually established by evidence of conduct

amounting to persecution of the individual concerned or by evidence of discriminatory conduct, amounting to persecution, of others belonging to the same racial, religious, national or social group or having the same political opinion. And to establish that the conduct in question is ‘for reasons of’ race, religion, nationality, etc, the individual concerned may seek to establish that that conduct is systematic, in the sense that there is a pattern of discriminatory conduct towards, for example, persons who belong to a particular religious group.

16 The Convention does not require that the individual who claims to be a refugee should have been the victim of persecution. The Convention test is simply whether the individual concerned has a ‘well-founded fear of persecution’. Nor does the Convention require that the individual establish a systematic course of conduct directed against a particular group of persons of which he or she is a member. On the contrary, a well-founded fear of persecution may be based on isolated incidents which are intended to, or are likely to, cause fear on the part of persons of a particular race, religion, nationality, social group or political opinion.

17 A second matter should be noted with respect to the Convention definition of ‘refugee’, namely, that, as a matter of ordinary usage, the notion of ‘persecution’ is not confined to conduct authorised by the State or, even, conduct condoned by the State, although, as already pointed out, the Convention has, until recently, usually fallen for application in relation to conduct of that kind10. Nor, as a matter of ordinary usage, does ‘persecution’ necessarily involve conduct by members of a particular group against a less powerful group.

18 As a matter of ordinary usage, the notion of ‘persecution’ includes sustained discriminatory conduct or a pattern of discriminatory conduct against individuals or a group of individuals who, as a matter of fact, are unable to protect themselves by resort to law or by other means. That being...