Minister for Immigration v Haji Ibrahim

• Jurisdiction: Australia Federal only
• Court: High Court
• Judgment Date: 26 October 2000
• Date: 26 October 2000

Australia, High Court.

(Gleeson CJ; Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ)

Minister for Immigration and Multicultural Affairs

and

Haji Ibrahim1

Aliens Entry Asylum Refugees Geneva Convention Relating to the Status of Refugees, 1951 Definition of a refugee Persecution by non-State actors Persecution in the context of a civil war Somalia Clan-based conflict Whether applicant required to demonstrate fear of persecution setting him apart from others Whether violence against members of other clans sufficient Membership of a particular social group

War and armed conflict Civil war Definition Clan-based conflict in State where no functioning government Somalia Whether reference to civil war appropriate Refugees Whether applicant for refugee status has well-founded fear of persecution The law of Australia

Summary:The facts: The applicant, a national of Somalia, entered Australia and claimed refugee status. The evidence was that there was no functioning government in Somalia at the relevant time and that fighting was taking place between a number of different sub-clans. The applicant maintained that he had a well-founded fear that, if returned to Somalia, he would be persecuted by members of other sub-clans because of his membership of his sub-clan. His application for a protection visa on the basis of his claimed refugee status was refused by the Minister for Immigration. On an application for review, the Refugee Review Tribunal concluded that his fear of persecution was not for reasons falling within Article 1 of the Geneva Convention Relating to the Status of Refugees, 1951 (the Refugee Convention) but rather was the consequence of the civil unrest occurring in Somalia. On appeal, the Federal

Court upheld that decision but it was reversed by the Full Court.2 The Minister appealed to the High Court of Australia

Held (by four votes to three, Gaudron, McHugh and KirbyJJ dissenting): The appeal was allowed.

(1) The term refugee in the Refugee Convention, as imported into Australian statute law, was to be construed by giving the words used their ordinary meaning but bearing in mind the Convention as a whole, its context, object and purpose. The right of asylum was a right of the State, not of the individual. While the individual was entitled to seek asylum, international law did not guarantee that he would be successful and did not confer a right of entry into a State in order to seek asylum. The definition of refugee had been a matter of compromise between States and subsequent practice did not establish any agreement regarding its meaning (paras. 13643).

(2) The Refugee Convention did not confer any general right of asylum upon classes or groups of persons suffering hardship but only upon individuals who had a well-founded fear that they would be persecuted for one of the reasons laid down in the Convention. References to civil war were inappropriate in the context of Somalia and distracted attention from the personal circumstances of the applicant. The fact that a civil conflict was clan-based did not of itself make its victims the victims of persecution for reasons of membership of a particular social group (paras. 14350, 2058 and 2217).

(3) It was unnecessary in this appeal to determine the extent to which persecution by non-State agents might make someone a Convention refugee (paras. 1515).

Per Gaudron J (dissenting): The Refugee Convention did not require that the applicant had been or would be persecuted, only that he have a well-founded fear of persecution on one of the Convention grounds. That persecution need not come from agents of the State. In a civil conflict between different clans or sub-clans, it was difficult to escape the conclusion that the actions of members of one clan against members of another constituted persecution for reasons of their membership of a particular social group (paras. 1333).

Per McHugh J (dissenting): (1) The Convention protected persons from persecution, not discrimination, and not all forms of infliction of harm constituted persecution. It followed that not all harm inflicted by a government in the course of civil war or unrest was necessarily persecution for the purposes of the Convention. Nevertheless, it was not necessary that, in conditions of civil war or unrest, a person could establish persecution only if they could establish a risk of harm over and above that suffered by others caught up in those conditions. Nor was it necessary that the source of persecution had to

be the State. In Somalia no one could have had any expectation of protection from the State (paras. 5574)

(2) While it was better not to use the term systematic conduct, if it were employed it should be made clear that an applicant did not have to establish that he had been the victim of something equivalent to the methodical persecution inflicted by the Nazis (paras. 88104).

Per Kirby J (dissenting): There was no basis for differential treatment of persons claiming refugee status who had fled a civil war. The question in such a case, as in all refugee applications, was whether the applicant had a well-founded fear of persecution for a Convention reason. The Full Court had been correct to find that the applicant had such a fear (paras. 177200).

The following is the text of the judgments delivered in the Court:

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.

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, in Minister for Immigration and Multicultural Affairs v. AbdiUNK.23 In the present case the Full Court said:24

3. In AbdiUNK,25 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.

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 the Migration Act 1958 (Cth) (the Act).26

Somalia: Background Facts

11. Somalia has had no central government since 1991. Various regions have, at various times, come under the control of different clanbased 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 life.27 The clan which is central to this appeal is the Rahanwein which, according to information before the Tribunal, is numerically strong but militarily weak.28 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.29

12. The shifting clan...