Khadra Mohamed Abdalla v Minister for Immigration & Multicultural Affairs [1998] 1017 FCA

MIGRATION - appeal from Federal Court - review of decision of Refugee Review Tribunal ("RRT") - whether "well-founded fear of persecution" - consequences of mistaken finding of fact - whether existence of fact was material - consideration of RRT - whether reasonable to relocate - failure to observe procedure - whether failure to read submissions lodged with RRT.

Migration Act 1958 (Cth) ss 36, 430 and 476,

Migration Regulations Part 866 of Schedule 2

Administrative Decisions Judicial Review Act 1977 (Cth), s 5

1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol

Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212, applied

Randhawa v The Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, applied

Reg v Immigration Appeal Tribunal; Ex parte Jonah [1985] Imm. A.R.7, cited

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, cited

Periannan Murugasu v The Minister for Immigration and Ethnic Affairs (unreported, 28 July 1987 at 13), cited

Adan v The Secretary of State for the Home Department (1998) 2 WLR 702, distinguished

KHADRA MOHAMED ABDALLA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 56 OF 1998

BURCHETT, TAMBERLIN & EMMETT JJ

SYDNEY

20 AUGUST 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 56 of 1998

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

KHADRA MOHAMED ABDALLA Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGES: BURCHETT, TAMBERLIN & EMMETT JJ

DATE OF ORDER: 20 AUGUST 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1   The appeal is allowed;

2.  The orders of Beaumont J are set aside;

3.  The decision of the RRT is set aside and the matter is to be remitted to a differently constituted Tribunal for determination in accordance with law;

4.  The respondent to pay the costs of this appeal;

5.  The appellant to pay the costs of the application before Beaumont J.

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

NG 56 of 1998

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

KHADRA MOHAMED ABDALLA Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGES: BURCHETT, TAMBERLIN & EMMETT JJ

DATE: 20 AUGUST 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT

THE COURT:

This is an appeal from the judgment of Beaumont J delivered on 6 January 1998, which dismissed an application for a review of a decision of the Refugee Review Tribunal ("the RRT") affirming a decision of a ministerial delegate that the appellant was not entitled to a protection visa because she is not a refugee.

The criteria for the grant of a protection visa are found in s 36(2) of the Migration Act 1958 (Cth) ("the Act") and Part 866 of Schedule 2 to the Migration Regulations. Those provisions refer to the terms of an international convention, the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol ("the Convention"). Article 1 of the Convention defines a "refugee" 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 [her] nationality and is unable or, owing to such fear, is unwilling to avail [herself] of the protection of that country ..."

It is common ground that the relevant time for determining the question whether the appellant is a refugee is the date of the RRT decision; in this case 1 October 1997. There is no dispute that Somalia is the country against which the application must be considered.

At the commencement of the hearing before the Full Court, an application was made for leave to further amend the Notice of Appeal and also the Application for Review to the RRT. No prejudice was claimed on the part of the respondent and accordingly leave was granted to amend.

The substance of the amendments is that:

(i)  It is claimed that there was no evidence to justify the RRT decision which was said to have been based on the fact that the appellant came from the Gedo region in the south of Somalia. This claim is based on s 476(1)(g) of the Act which provides:

"476. (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a) ...

....

(g) that there was no evidence or other material to justify the making of the decision."

(ii) It is further claimed that procedures required by the Act to be followed under s 420 were not complied with and that there was, therefore, breach of s 476(1)(a) of the Act which provides:

"476. (1) ...

(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decisions were not observed."

(iii)       It is claimed that his Honour did not set out the reasons for decision in relation to material questions of fact and evidence on which the findings were based and that this contravened s 430 of the Act and therefore there was a breach of s 476(1)(a) of the Act.

Background

The basic facts can be briefly stated. According to her passport, the appellant is a 23 year old national of Somalia. She arrived in Australia on 17 June 1997. She claims fear of persecution in Somalia on the Convention ground that she is a member of a group in Somalia known as the "Marehan" clan. It is common ground that members of this clan control the Gedo region. She claims that the Marehan are despised by other Somali clans because Siad Barre, the deposed former President (until 1991), belonged to the Marehan clan and its members were perceived to have enjoyed unfair advantages during his rule.

It was further claimed by the appellant that as a Marehan woman alone in Somalia, she would face a real risk of rape and death from members of other clans if she was sent back to Somalia.

The RRT Decision

The RRT noted that the appellant appeared at the hearing on 25 September 1997, and that it was conducted with a Somali-English interpreter. Although the appellant was in receipt of advice in relation to the hearing, her adviser did not attend the hearing and she called no witnesses. The RRT then set out the relevant legislation and referred to the relevant case law as to the meaning of "persecution".

Under the heading "Claims and Evidence", the decision-maker states that the central relevant claim was that the appellant feared of persecution in Somalia because of membership of the Marehan clan. Reference is then made to the history which the RRT saw as "complicated" by a great number of misleading claims made at different times by the appellant. The material shows that the appellant admitted to giving inconsistent and false evidence as to her background and family in important respects. After listing the "lies" told by the appellant, the RRT concluded:

"Leaving out those matters not entirely answerable by the Applicant, there is more than sufficient evidence of deception in this application to convince the Tribunal that even the Applicant's new evidence about her situation in Dubai cannot be relied upon. The Tribunal is not satisfied that it is anywhere near the truth, let alone the whole truth as to the Applicant's history, prospects and concerns."

However, having made the above observations the RRT proceeded to approach the issue raised on the application in the following way:

"Pared down to its essentials, however, the Applicant's case is about being a Marehan who is afraid to return to Somalia. The Tribunal will endeavour to analyse the relevant evidence assuming that this claim, which no other available evidence disputes, were true."

The decision then continues:

"The Applicant claims she has no family in Gedo. This may be true. She claims that her clan controls Gedo. This claim is supported by a document cited in the primary decision in this case, which also indicates that Marehan have been resettling in Gedo in their thousands since the end of the civil war...

The Applicant claimed that although the Marehan control the Gedo region, other clans are frequently engaged in fighting against them, partly over long-standing scores dating back to from the Siad Barre era and partly due to competition for territory. The Applicant claimed that what she faces in Gedo is the risk of harm that might arise in the course of generalised pattern of civil unrest in Somalia.

The Marehan clan is armed with its own militia. It is a fully operational military player, linked to the Somali National Front, in the current state of civil unrest in Somalia...

The Applicant claims that she will be vulnerable to violence in Somalia because she is a woman. Although the potential instance of rape or other violence is not beyond the realms of possibility, the Applicant gave no evidence of there being any systematic course of action against unarmed Marehan women in Somalia and the Tribunal could not find any.

Given the perennial UNHCR statistics showing that most refugees are women and children, and given UNHCR's enhanced concern for women refugees in recent years, as evidence [sic] in vast number of its published plans and reports, the information about Gedo being a safe place for Marehan refugees would seem to indicate that it is generally safe for women. One recent report sighted by the Tribunal indicates that adult Marehan males face a risk of murder in Somalia, presumably because they are of fighting age ... but notwithstanding this detail and its apparently easy accessibility, the report identifies no similar concern regarding adult Marehan females, whose concerns about genital infibulation it does raise. Whilst lack of evidence of something is not the same as evidence of a lack of it, the Tribunal considers it difficult to conceive that large-scale Marehan refugee repatriation would continue in Gedo in a climate of serious danger to women and children."

After summarising the evidence in the above way, the Tribunal proceeded to list what are described as "Findings", which are as follows:

"Ultimately, the Applicant was not able to identify to the Tribunal any form of harm she might face in Somalia that would form part of a course of systematic action directed against her for any Convention-related reason.

More significantly, she stated that any harm she might face would arise out of the general pattern of civil unrest presently afflicting life in Somalia.

The Tribunal refers to paragraph 164 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (Geneva: UNHRC 1979). For the purposes of this jurisdiction, the Handbook is not a binding instrument but may be referred to as a useful guide. Its paragraph 164 states: `Persons compelled to leave their country as a result of international or national armed conflicts are not normally considered refugees under the... Convention'.

The Handbook at paragraph 98 indicates a reasonable exception: "Being unable to avail himself of ... protection implies circumstances that are beyond the will of the person concerned. There may, for example, be a state of civil war or other grave disturbance, which prevents the country of nationality from extending protection or makes such protection ineffective." What is clear in this exception, however, is that the state of war or civil war might in some circumstances be a condition that allows persecution of a person to occur unchecked by protective mechanisms that might otherwise be in place, but the state of war or civil war itself is not the form of persecution itself.

It was found in the case of Periannan Murugasu v MIEA (unreported, Federal Court, Wilcox J, 28 July 1987 at 13) that:

`The word `persecuted' suggests a course of systematic action aimed at an individual or a group of people. It is not enough that there be a fear of being involved in incidental violence as a result of civil war or common disturbances'.

This reasoning was adopted by McHugh J in Chan (at 430). A similar conclusion was stated in "Applicant A" (per Gummow J at 61):

`The first condition [which must be satisfied] is that a person be outside the country of nationality by reason of (`owing to') a fear of persecution which is well-founded ... This means that persons who are outside the country of nationality by reason of such causes as ... war ... cannot answer the requirements of [Article 1A(2)]'.

The specific reference to `war' in these judgments must logically pre-suppose that war will usually be fought by parties with identifiable and opposing political and strategic objectives, and therefore by parties holding, and imputing to their opponents, opposing political opinions: likewise, these judgments must logically allow that the parties contesting in a war may represent antagonistic ethnic groups or religious communities. The presence of these factors identifying and differentiating the antagonistic parties does not, however, turn war itself into persecution for the purposes of the Convention.

In discussing the evidence in Periannan Murugasu, Wilcox J also draws a clear distinction between patterns of persecution and patterns of communal violence even when communal violence results in serious harm (at 8). This means that recurring patterns of violence between groups within a community will not constitute persecution unless it forms a part of `a course of systematic conduct'.

The evidence in this case indicates a situation where the patterns of communal violence do not form part of `a course of systematic conduct' against the Marehan. Clearly, the Applicant claims fear of suffering harm within the recurring pattern of communal violence in Somalia but, according to the authorities cited, this is not persecution for the purposes of the Convention.

The Applicant's deceptions in this matter have greatly damaged its confidence in her as a reliable witness on any point in this matter. However, in all conscience it could not conclude this decision without attempting a proper consideration of the prospects of a Marehan woman facing return to Somalia. The Tribunal is aware of the fact that her return to Somalia might be impractical for the present and immediately foreseeable future due, again, to the patterns of communal violence in the country affecting access through Mogadishu airport, but not due to any Convention-related reason.

The Tribunal concludes on the evidence that the Applicant does not face a real chance of Convention-related persecution in Somalia. She is therefore not a refugee."

The Court now turns to consider the grounds of appeal.

First ground - error of fact

The first ground of appeal, which was not argued before Beaumont J, turns on the statements in the decision to the effect that the appellant claims she comes from Gedo, and that she has always claimed to have been a Marehan from Gedo.

To appreciate the point, it is necessary to recapitulate some of the findings and reasoning of the Tribunal. Under the heading "Claims and Evidence", the Tribunal included the following:

"The Applicant claims that she comes from Gedo in Somalia. ...

As noted, the Applicant claims that her family belongs to the Marehan clan. That group, she acknowledges, controls the Gedo region of Somalia in these post-civil war times. ...

Right up until a week before the RRT hearing, the Applicant denied ever having travelled to the UAE [the United Arab Emirates]. Her claims were substantially different from those after revision, although she always claimed to have been a Marehan from Gedo."

It was against this background that the Tribunal referred to the proposition that "Marehan have been resettling in Gedo in their thousands", and concluded that Gedo was "a safe place of return for Marehan refugees".

Notwithstanding submissions on behalf of the respondent, who explains those statements by reference to some parts of the material before the RRT and by reference to generalised statements by the appellant, we consider that the references to her Gedo origins and associations in the RRT reasons are clearly wrong.

It is not clear how the factual error about Gedo came to be made. It may have originated in an isolated reference by the appellant to the effect that:

"I can't move back to Gedo now because they know my home in Somalia will be (sic) leave us in peace". (Emphasis added).

Shortly after this remark by the appellant, the transcript of the hearing of the RRT states that the RRT member said:

"I have to look at what would happen if it were physically and administratively possible for you to be flown to Somalia, okay? And that comes down to what you say about being a Marehan in Gedo and having to deal with the inter-clan fighting. So although we have talked about all of these other issues today, my decision will focus on what would happen if you go back to Gedo."

Whatever the explanation for the mistake in understanding, it is clear that the appellant was not born in Gedo and was not claiming to have come from Gedo. It could not be said that she had always claimed to have been a Marehan in Gedo.

In fact her passport states that she was born in Burao, (which is far from Gedo), in 1974. Her five page submissions to the RRT, formulated in some detail by her adviser, and lodged with the RRT on 22 September 1997, which was several days before the RRT hearing, claimed that she was born in Burao and was 23 years old. It also asserted that she had lived in no other part of Somalia but Burao, which had been severely affected by clan fighting.

The question arises then as to the consequences of the mistaken finding by the RRT with respect to the appellant's association with Gedo.

In Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212, Black CJ, (with whom Spender and Gummow JJ agreed), had to consider the effect of a mistaken finding of fact. The decision-maker in that case had wrongly found that Curragh could have delivered goods at a significantly later date so as to enable the inclusion of Australian made gear cases. Curragh argued in that case that the decision-maker had based the decision on the existence of a particular fact which did not exist. The Chief Justice pointed out that the onus of proving the non-existence of a fact lies with the challenging party and such an onus may erect an insurmountable obstacle on some occasions. His Honour, however, decided that there was no evidence or other material to support the finding and that, therefore, the challenge should succeed. In his judgment he said, in reference to s 5(3) of the Administrative Decisions Judicial Review Act 1977 (Cth) at 220-221:

"Section 5(3)(b) does not require the identification of some single particular fact that may be said to be the foundation of the decision. A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion.

If a decision is in truth based, in the sense I have described, on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed whatever the relative importance of the fact. Accordingly, I agree with the conclusion of Lee J in Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363 at 374 that there is no reason to read s 5(3)(b) in a way that would limit its operation to a predominant reason for the decision under review."

The Court is satisfied in the present case that the statements as to the appellant's birth and association in Gedo were erroneous. The question then posed is whether the existence of this fact was material to the conclusion of the RRT that the appellant was not a refugee.

The respondent submits that the decision-maker did not treat the Gedo association as material to the ultimate decision. Several matters were referred to.

First, it is said that the reference to the appellant's "coming from Gedo" is not a finding that she was born in Gedo but is, rather, a finding that she had associations with areas in the general proximity to Gedo. Moreover, it is further said that the evidence does contain some material from which inferences might be drawn that she had some association with areas in or in proximity to Gedo. We are satisfied that this material is not sufficient to justify a conclusion that the appellant was a Marehan from Gedo and that she had always claimed to have been a Marehan from Gedo.

On a fair reading of the decision, it is apparent that the RRT attached considerable importance to the assumed Gedo origins and association of the appellant. There is reference, for example, to the appellant's statements that she had no family in Gedo and to the fact that her clan controls Gedo where thousands of Marehan have been settling since the end of the civil war. There are further references to Gedo, which show that her claim is being assessed against the circumstances in the Gedo region. There is also reference in the decision to material supporting the conclusion that Gedo is a safe place for a Marehan woman to return.

When considering whether there is a real chance of persecution to an applicant for refugee status upon return to a country, it is necessary to take account of the extent of any association between the appellant and the places in that country to which she might be returned.

In Randhawa v The Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, the Full Court had to consider the position of a Sikh from the Punjab region of India. The evidence was that the appellant could live safely in India outside the Punjab. The decision-maker decided against the appellant on his claim for refugee status on the basis that he previously lived outside the Punjab and that it would not have been unreasonable to expect him to return to a safe area outside the Punjab. In his judgment, the Chief Justice, with whom Whitlam J agreed, said at 443:

"If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of a country from which he or she has fled to relocate to another part of the country of nationality it may be said that, in the relevant sense, the person's fear of persecution in relation to that country as a whole is well-founded. I should add that this seems to me to be a better way of looking at the matter than to say, as the first and last sentences of par 91 of The Handbook suggest, that the fear of persecution need not extend to the whole territory of the refugee's country of nationality if under all the circumstances it would not have been reasonable to expect a person to relocate."

For the respondent, it is said that the findings of the RRT correctly addressed the issue; namely, whether, if the appellant were returned to Somalia, there would be a real chance of persecution on a Convention ground. However, we are unable to accept this submission because the emphasis in the reasons given for the decision is directed to the situation in Gedo and not to the position of the appellant in relation to Somalia as a whole.

The decision, in the present case, proceeds on the basis that although some areas of Somalia may be dangerous for the appellant, the Gedo region was generally safe for her. An erroneous premise that the appellant claimed to have come from Gedo is an important consideration bearing on this matter. For this reason it is probable that the factual mistake as to her always having claimed to be a Marehan from Gedo operated in a material way to influence the ultimate determination of the RRT that she was not a refugee. The principles set out in Curragh are applicable in the present case.

Furthermore, in our view, as a consequence of the reliance placed on the mistaken fact as to her association and origin, the RRT did not address the question whether it was reasonable to require her to locate in Gedo in circumstances where there was no significant evidence of previous or present association with Gedo, and given that the turmoil in the country makes uncertain her access to the place and the opportunities it might provide: cf Reg v Immigration Appeal Tribunal; Ex parte Jonah [1985] Imm. A.R.7, to which McHugh J referred as authoritative in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 431; Randhawa at 449-451.

Having regard to the foregoing, we conclude that the appellant has made good her case under s 476(1)(g) in that the decision was based, in part, on a fact and there was no evidence or material to support that fact.

Failure to observe procedures

The material before the Court indicates that detailed written submissions on behalf of the appellant were prepared by her adviser and were lodged before the RRT. These submissions stated that the appellant was born in Burao and left Somalia in 1988. They referred to the dangerous situation in Burao and quoted from specific sources as to the danger. The detailed submission to the RRT referred to and quoted at some length from the decision in Randhawa and argued the difficulty which the appellant would experience in any internal relocation if she were to move to Gedo. In particular, it was pointed out that:

"My client has never lived in the Gedo region, has no family or other support there, could not travel there safely or support herself and live safely if she went there."

A substantial amount of supporting material in the nature of newspaper and publicly available intelligence was enclosed with the submissions.

There is nothing in the review decision to which we were referred, which deals with the submissions lodged with the RRT on 22 September. In particular, those submissions negate any conclusion that the appellant has always claimed to come from Gedo. There is no reference to the appellant's birth in Burao in the RRT reasons, nor to the reasonableness of internal relocation. Both of these matters were of central importance according to the written submissions before the RRT.

In these circumstances, we are of the view that the RRT reasons failed to address a submission of central importance and the substance of the appellant's case before it. As a consequence the appellant has made good her claim under ss 430 and 476(1)(a).

The Court is satisfied that the reasons of the RRT do not set out the findings, evidence or material relating to the September submissions and in our view this was a contravention of the above provisions.

Persecution

The appellant submits that the decision-maker incorrectly interpreted and applied the law to the facts as found with respect to what may constitute "persecution" within the meaning of the Convention. In particular, the claim made is that the RRT erred in holding that the persecution had to consist of a systematic course of conduct.

The error is said to reside in categorising the harm, which may result to the appellant as a consequence of clan warfare in Somalia, as not being relevant to a Convention reason. The error is said to be indicated in the statement by the RRT that:

"The evidence in this case indicates a situation where the patterns of communal violence do not form part of `a course of systematic conduct' against the Marehan. Clearly, the Applicant claims fear of suffering harm within the recurring pattern of communal violence in Somalia but, according to the authorities cited, this is not persecution for the purposes of the Convention."

The reference to the need for a systematic course of action harks back to the remarks of Wilcox J in Periannan Murugasu v The Minister for Immigration and Ethnic Affairs (unreported, 28 July 1987 at 13), where his Honour said:

"The word `persecuted' suggests a course of systematic action aimed at an individual or at a group of people. It is not enough that there be a fear of being involved in incidental violence as a result of civil or communal disturbances."

This concept of systematic violence was taken up by McHugh J in Chan v The Minister for Immigration and Ethnic Affairs (supra) at 429-430 in the following passage:

"The notion of persecution involves selective harassment. It is not necessary, however, that the conduct complained of should be directed against a person as an individual. He or she may be `persecuted' because he or she is a member of a group which is the subject of systematic harassment...Nor is it a necessary element of `persecution' that the individual should be a victim of a series of acts. A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of the class, he or she is `being persecuted' for the purposes of the Convention. The threat need not be the product of any policy of the government of the person's country of nationality. It may be enough, depending on the circumstances that the Government has failed or is unable to protect the person in question from persecution..."

In substance the RRT decided, in the present case, that the recurring pattern of communal violence, which it found to exist in Somalia, did not amount to persecution because there was no systematic course of conduct. The requirement, in our view, was too widely expressed. Where there is a recurring pattern of violence towards a person on a Convention ground, there is no reason why such conduct may not constitute `persecution'. Clearly `persecution' involves more than a random act. To amount to `persecution' there must be form of selective harassment of an individual or of a group of which the individual is a member. One act of selective harassment may be sufficient. The fact that a recurring pattern can be loosely described as communal violence or even civil war does not mean that it cannot amount to `persecution'. It is necessary to examine the situation further in an attempt to determine the purpose which gives rise to the violence or danger.

The decision in respect of whether recurring communal violence amounts to `persecution' depends on whether there is a purpose behind the recurring pattern which is referrable to a Convention ground. In the present case, the RRT has found that the frequent fighting against the Marehan clan is partly based on settling long standing scores dating back to the Siad Barre regime and partly based on competition for territory. Insofar as the threatened oppression arises from the settling of scores with the Marehan as a clan, it can be concluded that the fighting was directed at them as a group which had the former president as a member. This, in our view, is within the concept of persecution. Competition for territory, depending on the circumstances, may also lead to persecution.

This precise question as to whether the present circumstances amounted to persecution was apparently not investigated before the RRT, presumably because the decision-maker formed the view that communal violence within the framework of a civil war is not a form of `persecution' within the meaning of the Convention. This approach, in our view, is not correct. Much will depend on the purposes for which the war is being fought. For example, if it is fought to eliminate or punish members of another clan, it may amount to `persecution' for a Convention reason.

The respondent referred to the recent decision of the House of Lords in Adan v The Secretary of State for the Home Department [1998] 2 WLR 702. This decision was referred to in support of a proposition that a state of civil war, in which widespread clan killing and torture takes place, will not give rise to a well-founded fear of persecution where the individual claimant is at no greater risk of adverse treatment than others who are at risk in the civil war for reasons of their clan and sub-clan membership. Their Lordships held that on the material in that case the applicant was not a refugee within the Convention.

Lord Lloyd (with whom all other members agreed) after reviewing the authorities, concluded (at 713) that:

"... where a state of civil war exists, it is not enough for an asylum-seeker to show that he would be at risk if he were returned to his country. He must be able to show ... a differential impact. In other words he must be able to show fear of persecution for Convention reasons over and above the ordinary risks of clan warfare."

At 714 his Lordship continued:

"Mr Adan's evidence was that members of his own sub-clan were particularly at risk because they had attacked a militia stronghold of the main opposing sub-clan. But I do not consider that this throws doubt on the tribunal's conclusion that all sections of society in northern Somalia are equally at risk so long as the civil war continues. There is no ground for differentiating between Mr Adan and the members of his own or any other clan."

It is evident from these observations that the decision in Adan turned on the particular evidence as to the circumstances of Mr Adan and the nature of the war in the north of Somalia at the relevant time. It is not in any way a controlling authority in relation to the present case. The question to be investigated before reaching a conclusion as to whether there is persecution in the present case which it raises is whether the evidence establishes that all sections of society are equally at risk so long as the civil war continues. In the RRT decision, this issue is not addressed.

The decision in Adan deals with what was apparently indiscriminate violence or oppression manifested towards all clans without any differential impact based on clan membership. In the present case the RRT was concerned with what the evidence indicates is the special position of the Marehan clan by reason of its association with the former regime. There is support in the findings of the RRT for the conclusion that the Marehan are in a different position as to risk in the civil war because of their identification with the former president.

In the present case, we consider that the approach adopted by the RRT was erroneous because it failed to accept that communal violence arising from the civil war could amount to persecution for a Convention reason. It is not correct to proceed on the basis that because a fear arises within a recurring pattern of communal violence in a civil war context therefore it cannot amount to `persecution' for a Convention reason.

Having regard to the above conclusions we are of the view that the appeal should be allowed. The orders of Beaumont J should be set aside. The application to the primary judge should be granted. The decision of the RRT should be set aside and the matter should be remitted to a Tribunal differently constituted for determination in accordance with law.

Turning to the question of costs, there is a general consideration which we note at the outset.

It is important, in administrative law matters, and perhaps especially where Australia's international obligations are concerned, to bear in mind that the executive government has a major interest in ensuring that special tribunals, as well as the machinery of decision-making generally, should function in accordance with law.

But, although the appellant has succeeded in relation to two questions, neither was raised before the primary judge. Indeed, no attempt was made to impugn his Honour's reasons for deciding as he did on the matters argued before him. There is no reason to assume that, had the matters raised before the Full Court been ventilated before the primary judge, his Honour would have come to a conclusion different from that reached by this Court.

The appeal, therefore, could have been avoided had the appellant raised before the primary judge the matters raised on appeal. It is clear, therefore, that unnecessary costs have been thrown away. On the other hand, the Minister resisted the appeal. In the circumstances, it would be appropriate that the respondent pay the appellant's costs of the appeal but that the order of the primary judge remain undisturbed so that the appellant must pay the costs of the proceedings before the primary judge.

I certify that this and the preceding (16) sixteen pages are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 20/08/98

Counsel for the Appellant: Mr T A Game SC

Solicitor for the Appellant: Kessels & Associates

Counsel for the Respondent: Mr G K Downes QC

Mr D H Godwin

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 9 July 1998

Date of Judgment: 20 August 1998