Omar v Minister for Immigration & Multicultural Affairs [1999] FCA 1843

MIGRATION - protection visa - RRT decision - whether reasons contained findings on material questions of fact - whether fear of persecution arising from political opinion which applicant may feel compelled to make on return to country of nationality is within the Convention definition of refugee

Migration Act 1958 (Cth) s 430(1)(c)(d)

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 applied

Somaghi v Minister for Immigration (1991) 31 FCR 100 mentioned

YUSUF SHEIK OMAR v MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

NO. V 615 OF 1999

HEEREY J

23 DECEMBER 1999

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 615 OF 1999

BETWEEN:

YUSUF SHEIK OMAR Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE: HEEREY J

DATE OF ORDER: 23 DECEMBER 1999

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

The application is dismissed with costs, including reserved costs.

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 615 OF 1999

BETWEEN:

YUSUF SHEIK OMAR Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE: HEEREY J

DATE: 23 DECEMBER 1999

PLACE: MELBOURNE

REASONS FOR JUDGMENT

1. The applicant is a Somali national. He seeks an order to review a decision of the Refugee Review Tribunal (RRT) which affirmed a decision of the Minister's Delegate not to grant him a protection visa.

The applicant's case before the RRT

2. Somalia has been without a central government since 1991 following the collapse of the Siad Barre regime. Extensive fighting between warlords ensued. This in turn disrupted normal agriculture and commerce and resulted in widespread famine. The United States and later the United Nations intervened but withdrew in 1994. Somalia has separated into several regions under the control of various warlords.

3. The applicant was born in 1967 in a small village in the Mogadishu area. He is from the Qudub sub-clan of the Shikal clan. Somali society has traditionally been organised around clans and sub-clans.

4. The Shikal is a minority clan. Despite having lived in Somalia for a very long time there is a popular belief that Shikal originated from the Middle East. Even today they are regarded as foreigners and not "proper" Somalis. They suffered discrimination in employment under the Barre government and were "looked down upon in a derogatory way". The applicant's father was a religious leader. The applicant attended Islamic schools and became a teacher in the primary and secondary school system teaching Arabic and religion.

5. The applicant left Somalia in January 1990 and went to study in Khartoum, Sudan. In January 1991 civil war broke out in Somalia. In June 1991 the applicant returned briefly as part of a humanitarian mission arranged by Sudanese Muslim Welfare organisations. After three days, they were forced to flee when clan militias attacked their hotel. They managed to get to the airport and board a plane. A group of militia men then forced their way onto the plane. They told the mission leader there was a Shikal man on the plane who would have to be left behind. The applicant did not know if the militias knew that he was the Shikal they were looking for. They threatened to blow up the plane if the Shikal was not surrendered. Finally the mission leader managed to persuade the militias to accept a bribe of $3000 and let the plane go.

6. On return to Khartoum the applicant resumed his studies. In 1992 he commenced writing poetry. His poems strongly criticised the clan system, especially the way people perceived differences in each other based on clan membership which resulted in fighting and war. He photocopied his poems and distributed them among his fellow students. Some Somalis from the major clans threatened that he would "be targeted by them" when he returned to Somalia. They told him that they would send his poems to their clan leaders back in Somalia.

7. In mid-1993, after the United Nations troops were deployed, the applicant believed Somalia would be safer. He went from Sudan into Ethiopia to a town close to the Somali border. He there met some Shikal who said that the Shikal had been forced to scatter all over Somalia. They said they had heard about his poems and that he was wanted by the militias. They said the poems had increased the risk to the Shikal who were more likely to be seen as dissidents or critics. This was partly because of his poems, but also partly because the Shikal as a religious clan was seen as being guided by religious teaching and opposed to the clan war mentality. The Shikal told him that despite the United Nations presence it was still not safe to return to Mogadishu. So the applicant abandoned his plans to visit Somalia and returned to Khartoum. He continued his studies and poetry and also wrote articles in a student newspaper criticising clan leaders in Somalia. Again Somalis from other clans challenged him saying that he had betrayed Somalia by criticising the country in public. They threatened he would be punished upon return.

8. In October 1995 he wrote another article on women's rights and submitted it to a Somali youth magazine published in New Dehli in India. The magazine rejected the article, but Somalis in Khartoum came to hear of it. Again some of them threatened he would be "dealt with" when he returned to Somalia.

9. In 1996 the applicant went to study at the International Islamic University in Malaysia. He completed a Master's degree in Human Science in February 1999. He wrote some more articles but did not publish them, other than making copies and distributing them to fellow students. There were about twenty Somalis at the University and about sixty in total studying in Malaysia. While dealing with Somali issues, these articles were not critical of the clans.

10. In March 1998 a Somali businessman whom the applicant had asked to trace his family returned to Malaysia and told him the family was constantly moving around and could not return to their home in Mogadishu. The businessman warned him that it was not safe for him to return Somalia. Because of his clan and his career he would be targeted if he attempted to return there.

11. In May 1999 the applicant left Malaysia and went to Bangkok. There he met a Somali businessman who was also from the Shikal clan. In the words of the applicant:

"He told me that in April my brother Mohamed had been killed by a group of Aideed's militia when fighting was occurring between the Islamic Court and General Aideed. He told me that my family had fled but he did not know where they were. Apparently the Court asked the local people to leave whilst the Court established its authority over the area. As they were leaving, many people about 30 people including my brother were killed and more than 100 wounded by General Aideed's militia. The people killed were mainly from minority clans because they did not have their own weapons. I do not know any more about why they were killed."

12. The businessman agreed to help the applicant find a safe country. He introduced him to other Somali businessmen who were also from minority clans. They told him how to make enquiries and how much it would cost and agreed they would finance the arrangements. These Somalis, who were staying illegally in Thailand, introduced him to an Indian agent who sold travel documents to Somalis. The applicant met the agent in a hotel one night and agreed to purchase an Australian travel document issued to a Somali national for US$500. He arrived in Australia on 4 June 1999.

13. The applicant's formal statement, prepared on his behalf by Refugee and Immigration Legal Centre Inc (RILC) and submitted to the Department on 16 June 1999, concluded as follows:

"34. I have come to Australia because my life is in danger if I return to Somalia. I fear persecution for a combination of reasons being my membership of a minority and vulnerable clan which does not have the protection of any large clan. Additionally, I have expressed political and religious views publicly which have been transmitted to the clan leaders who consider me to be their enemy. The Somali clan leaders are not tolerant of people who criticise them.

35. Additionally Somali clan leaders have very long memories and always remember every wrong which has been done to them so the fact that my articles were provided to them several years ago does not mean that they would not still act upon them now. Finally educated Somalis with good minds like myself are persecuted because it is clear that any thinking person would align themselves against the madness and the violence of the clan fighting. I do not imagine that the clan leaders would spare my life for one minute if I was returned to Somalia."

14. In a submission to the RRT dated 23 September 1999 RILC summarised the applicant's case in essentially the same way. It was said that the applicant

"1. Is a highly educated Somali with strong political views about the clan system which it is unreasonable for him to have to suppress back in Somalia.

2. Has published and distributed some of his writings and is known as an amateur Somali poet/writer, at least by ex-patriate Somalis.

3. Would automatically come to the attention of the ruling militia in Mogadishu who would investigate his background, if he were to be returned.

4. Has independent religious views which may cause difficulties for him in Somalia.

5. Is from a vulnerable minority clan.

6. Comes from the most dangerous part of the country."

The RRT decision

15. The RRT gave its decision on 11 October 1999. The reasons contain a careful and detailed analysis of the applicant's claims extending over 33 pages. A substantial part of the reasons are taken up with the consideration of inconsistencies in the material before it especially concerning the status of the Shikal clan and its relationship with the more powerful Hawiye clan. The RRT closely considered available information, much of it conflicting, and sought to reconcile the differences within that information and to apply it to the applicant's case. It concluded that the Shikal are part of the Hawiye and are not a repressed minority group. The RRT accepted the advice of the Department of Foreign Affairs and Trade to the effect that there is a Shikal community living in relative safety in Mogadishu under the protection of another part of the Hawiye clan. The RRT concluded the applicant did not face a real chance of persecution on account of membership of his clan.

16. The RRT also addressed aspects of the claims which were specific to the applicant which involve some assessment of his credibility. It accepted some aspects of these claims but rejected others. It accepted that he had written poetry, articles and a manuscript for a book. On the other hand it did not accept that his views had been disseminated in Somalia or that he had developed a political profile in Somalia such that there was a real chance that he would be persecuted for reasons of political opinion or religion. Because the alleged failure to make findings on material questions of fact in relation to the applicant's political writings and their consequence for him in terms of persecution were at the forefront of the applicant's case in this Court I shall set out a fairly lengthy passage from the RRT's reasons:

"Firstly the Tribunal is not satisfied that anyone in Somalia would know of his poetry. Whilst the Tribunal notes the article submitted on the importance of poetry in Somalia, in relation to the poetry he wrote in 1992 - "the Poor People" and the "Thousand Massacred" appears to have been amongst this - the applicant claimed that it was published in Somalia it appears without his knowledge. In the Tribunal's view it is far fetched that hand written poems given to his friends to distribute amongst class mates would be published in newspapers in Somalia. It is even more far fetched that someone whilst fleeing the problems there would be stopped by some militia and questioned about the poems. It is in addition far fetched that he would learn at the border in 1993 that he should not return because his fame as a result of the poetry he had distributed amongst his friends would cause him problems.

Secondly if he really did distribute poetry that offended the major clans, the Tribunal would have thought he would have had problems in Sudan. His evidence that those upset did not wish to harm their own position or that the university authorities kept a good eye on him which prevented him from coming to harm is not accepted by the Tribunal. His evidence that he was told he would be harmed when he returned is also not accepted by the Tribunal. In the Tribunal's view the applicant has fabricated this evidence to try and give himself a political profile he does not have. If he wrote poetry that upset major clans he would have in the Tribunal's view come to some harm in Sudan.

In addition the Tribunal also considers it far fetched that poetry he allegedly wrote in 1992 would cause him problems in 1999.

In relation to the article that he wrote in 1993 called "People who have a childish mentality", the applicant claims that it was published in "African Message". However he was not able to produce this, claiming he had lost his copy in his travels. Given this the Tribunal does not accept that he had such an article published. The Tribunal also considers that the possibility that any article published in an overseas university newspaper would cause him problems in 1999 as being entirely remote. Again if he was challenged about his article by members of major clans, and it was desired to harm him, the Tribunal considers it would have happened then. His evidence that he would be punished upon his return is not in the Tribunal's view plausible.

In relation to his article about women's rights in Islam that was rejected for publication, the Tribunal does not accept that this indicates he has become well known or that others would have threatened he would be dealt with if he returned to Somalia. Again the Tribunal considers this possibility to be far fetched. The same would apply to the articles that he wrote whilst in Malaysia and his book. The Tribunal does not accept that there is any credible evidence that he would be at risk should he return to Somalia as a result of any such writings.

When the Tribunal considers the applicant's claims in relation to his writing, the Tribunal has reached the conclusion that his evidence about what would happen to him if he now returned as a result of this is far fetched. The applicant is, in the Tribunal's view, not a famous poet, writer or commentator on Somali society. In the Tribunal's view he would have developed no political profile in Somalia during his many years of study overseas. As the Tribunal does not accept that the applicant's views have been disseminated in Somalia, it does not accept that they will lead to a real chance of persecution for reasons of political opinion or religion."

17. The RRT dealt with the claim as to the killing of the applicant's brother as follows:

"The significant claim however that the applicant makes is that his brother has been killed as a result of some fighting between the Islamic court and Aideed's militia. In considering this claim he was told of it by a Shikal businessman in Malaysia. This person the applicant admitted played some role in the applicant's travel to Australia using fraudulent documents. Whilst the Tribunal is not bound by the rules of evidence, the Tribunal is not prepared to rely on the applicant's statement that his brother has been killed, when he has learned this from a businessman in Malaysia who has played some role, even if only one of introducing the applicant to others, in his subsequent illegal travel. In the Tribunal's view the source of this claim, and its apparent suspect reliability, makes it impossible for it to accept it. The Tribunal is not satisfied that a brother of the applicant was killed in the circumstances claimed.

The Tribunal also notes that, if it is wrong about this, it is not apparent from the applicant's claims that his brother was killed because [sic - presumably `of'] his clan or for any other Convention reason. His description of this occurring during a dispute between an Islamic court and Aideed's militia, a dispute in which his brother was not involved, points to his brother being innocently caught up in some fighting. To say, as the applicant has, that in addition the people who were killed were from minority clans, or that his brother was killed because he was Shikal, is not, in the Tribunal's view consistent with the way the applicant described the problem as occurring."

Discussion of the applicant's claim for review by this Court

18. Counsel for the applicant said that the RRT did not make findings on material questions of fact and failed to refer to the evidence or other material on which such findings of fact were based (Migration Act 1958 (Cth) s 430(1)(c) and (d)) because it failed to deal with the risk of persecution on the applicant's return to Somalia on the basis of his expression of strongly held political views on the clan system.

19. As I think is clear from the passages already quoted from the RRT's reasons, this contention is not borne out by a reading of those reasons. The approach the RRT took was in my opinion completely in accordance with the principles laid down in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559.

20. It was put in the alternative that if the applicant were to return to Somalia he would be forced to suppress or conceal his views. It is fair to say that this argument was advanced before the RRT. As well as being touched on in the first of the summarised claims already referred to (see par 14 above), RILC also said:

"We submit that it is more likely that the applicant will continue to express his views were he to return to Somalia as he has done so in the past. It is likely that this will bring him to the attention of local militias, even if the Tribunal did not accept that he has ever come to the attention of militias in the past. We believe that this fundamental right of the applicant should not be denied. We submit that a writer or poet will have stronger claims under this ground than most."

21. Counsel for the Minister did not argue that the RRT made findings of fact as to this contention. Rather, he contended that such a possibility would not constitute persecution within the meaning of the Convention. On this basis, the question was not material and there was thus no obligation on the RRT to make a finding about it. Counsel argued that the RRT must assume that, as an applicant for refugee status, he would on return to Somalia take reasonable steps for his own protection. Otherwise it could not be said, as the Convention requires, that he is unable or, owing to his well-founded fear, unwilling to avail himself of the protection of his country of origin.

22. I accept this argument. I think it gained some force from counsel's reliance on Guo. There are similarities in that the High Court pointed out (at 576) that once the Tribunal had no real doubt that its findings both as to the past and future were correct, it would have been "irrational" to have found that the applicant nevertheless had a well-founded fear of persecution (at 576). However it is true that in Guo the specific point that spontaneous voluntary future expression of political opinion might provoke persecution was not raised.

23. Counsel for the applicant referred to Hathaway, The Law of Refugee Status, at 150 where it is said:

"Where home authorities have no actual knowledge of a claimant's convictions, it is sufficient to show that her views could reasonably lead to a clash with those in positions of power:

`Due to the strength of his convictions, however, it may be reasonable to assume that his opinions will sooner or later find expression and that the applicant will, as a result, come into conflict with the authorities. Where this can reasonably be assumed, the applicant can be considered to have fear of persecution for reasons of political opinion.'

Since political expression is a core human right, the claimant must enjoy a reasonable expectation of tolerance of peacefully articulated views. It is therefore inappropriate simply to discount the risk of harm on the ground that the claimant could avoid detection by keeping silent. This position has yet to be fully acknowledged in the Canadian case law. In the recent case of Wai Chee Lee, for example, the Board dismissed the claim of a Chinese national who would face serious consequences for the expression of his pro-capitalist political views:

`The Board rejects the contention that the fear of the consequences of expressing political opinions is synonymous with a fear of persecution for political opinion ... Mistreatment by reason of political activity or fear of mistreatment if political views were to be expressed are not, ipso facto, grounds under the Convention or the Act for claiming refugee status. The United Nations Convention and the Immigration Act, 1976, are not charters of political rights.'

This reasoning is at odds with the human rights context within which refugee law was established, and is inexplicably unsympathetic to persons who demonstrate the courage to challenge the conformism of authoritarian states. Since the purpose of refugee law is to protect persons from abusive national authority, there is no reason to exclude persons who could avoid risk only by refraining from the exercise of their inalienable human rights." (The first of the two quotations is from UNHCR Handbook, p 20)

24. Although the Canadian decisions referred to are not presently available to me, from what is said of them in Hathaway their reasoning seems consistent with the language of the Convention. Moreover, I do not quite understand Hathaway's reference to courage. Courage is not an element in the Convention definition of refugee. In any event, somebody who on the Hathaway approach, obtains refugee status without having come to the notice of persecutors in his or her country of nationality would not be demonstrating courage (or the lack of it). Such a person would ex hypothese, not be returned to his or her country of nationality and would not be subject to any abusive national authority.

25. The Convention definition of refugee necessarily requires an existing, present, unconditional, fear of persecution for one or more of the specified reasons if the asylum-seeker's were to be returned to his or her country of nationality. Of course that fear may be founded on matters and circumstances that have arisen in the country of nationality since the asylum-seeker left it. The asylum seeker may then become a refugee sur place: Somaghi v Minister for Immigration (1991) 31 FCR 100 at 116-118. And political opinion need not necessarily be actually held by the asylum-seeker; it is sufficient if it is imputed to him or her by the persecutor: Guo at 571. But there must be existing facts and circumstances founding a fear that persecution of this kind may occur. The language of the Convention definition does not extend to asylum-seekers who at the time of application have no foundation for fear, only fear that if they are returned to their country of nationality, and if they do something else, they will suffer persecution. A fear of persecution based only on what may be the unspecified reaction of others to unspecified future conduct of the asylum-seeker is no more than conjecture or surmise: cf Guo at 57.

26. Counsel for the applicant also argued that the RRT's reasons did not include material findings of fact on the claim of fear of persecution on the ground of religious belief. However religious belief or practice as such did not figure prominently, or indeed at all, in the applicant's case. The RRT in effect treated it as being one aspect of his political beliefs. This was appropriate given the way the applicant's case was put.

27. It was said that the RRT did not look at the applicant's claims cumulatively. However the RRT did at the conclusion of its detailed reasons say that "taking all of the applicant's claims and the available information into account" and "having considered the evidence as a whole" it was still not satisfied that the applicant was a person to whom Australia had protection obligations. The meticulous way in which the RRT went about its task persuades me that this statement was a reflection of what the RRT in fact did, and not merely a ritual formula.

28. Finally, counsel for the applicant said that there was no evidence to base the finding as to the lack of belief in the applicant's claim as to the brother's death. It was said that the RRT rejected evidence on the most tenuous link of the informant to illegal activity. In my opinion this was a distinct question of fact, clearly raised and clearly dealt with by the RRT. Its decision is not reviewable on that ground.

Conclusion

29. The application will be dismissed with costs, including reserved costs.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated: 23 December 1999

Counsel for the Applicant: J A Gibson

Solicitor for the Applicant: Victorian Legal Aid

Counsel for the Respondent: S G E McLeish

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 14 December 1999

Date of Judgment:

23 December 1999