Minister for Immigration and Multicultural Affairs v Haji Ibrahim

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS   APPELLANT

AND

HUSSEIN MOHAMED HAJI IBRAHIM  RESPONDENT

Minister for Immigration and Multicultural Affairs v Haji Ibrahim
[2000] HCA 55
26 October 2000
S157/1999

ORDER

1.        Appeal allowed.

2.Orders 1 and 2 of the Full Court of the Federal Court of Australia made on 9 April 1999 be set aside.

3.In lieu thereof, order that the appeal to the Full Court of the Federal Court of Australia be dismissed.

4.        Appellant to pay respondent's costs of this appeal.

On appeal from the Federal Court of Australia

Representation:

J Basten QC with N J Williams for the appellant (instructed by Australian Government Solicitor)

T A Game SC with S J Gageler for the respondent (instructed by Legal Aid Commission of New South Wales)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

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".

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).

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 Abdi[1].  In the present case the Full Court said[2]:

   "As Abdi 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."

   [1](1999) 87 FCR 280.

   [2](1999) 94 FCR 259 at 264.

3. In Abdi[3], the Full Court had considered the possibility that one of the objectives of clan warfare may be "wiping out an opposing clan."

   [3](1999) 87 FCR 280 at 291.

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")[4].

    [4]The criterion for a protection visa is set out in sub-s (2).  For a protection visa to be issued:

    "the applicant for the visa [must be] a non-citizen in Australia to whom Australia has protection obligations under [the Convention]."

    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 life[5].  The clan which is central to this appeal is the Rahanwein which, according to information before the Tribunal, is numerically strong but militarily weak[6].  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].

    [5]See Samatar, Somalia:  a Nation in Turmoil, (1991) at 25-26.

    [6]Prunier, "Somalia:  Civil War, Intervention and Withdrawal (1990-1995)", (1996) 15 Refugee Survey Quarterly 35 at 48-49.

    [7]Prunier, "Somalia:  Civil War, Intervention and Withdrawal (1990-1995)", (1996) 15 Refugee Survey Quarterly 35 at 48-49.

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.

    [8]United States, Department of State, Somalia Country Report on Human Rights Practices for 1997, published at http://www.state.gov/www/global/human_rights/

    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 concerned[9].  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.

    [9]Hathaway, The Law of Refugee Status, (1991) at 101-105; Kälin, "Refugees and Civil Wars:  Only a Matter of Interpretation?", (1991) 3 International Journal of Refugee Law 435; cf von Sternberg, "The Plight of the Non-Combatant in Civil War and the New Criteria for Refugee Status", (1997) 9 International Journal of Refugee Law 169; Okoth-Obbo, "Coping with a Complex Refugee Crisis in Africa:  Issues, Problems and Constraints for Refugee and International Law", in Gowlland-Debbas (ed), The Problem of Refugees in the Light of Contemporary International Law Issues, (1996) 7 at 7-17.

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 kind[10].  Nor, as a matter of ordinary usage, does "persecution" necessarily involve conduct by members of a particular group against a less powerful group.

    [10]See footnote 9.

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 so, conduct of that kind, if it is engaged in for a Convention reason, is, in my view, persecution for the purposes of the Convention.  And that is so whether or not the conduct occurs in the course of a civil war, during general civil unrest or, as here, in a situation in which it may not be possible to identify any particular person or group of persons responsible for the conduct said to constitute persecution.

    The decision of the Tribunal

19. So far as is relevant to this appeal, the Tribunal found that Mr Haji Ibrahim is a member of the Rahanwein clan and, also, a member of the Dabarre sub-clan and that each is a social group for the purpose of the Convention.  It also accepted that his wife had been raped after she and Mr Haji Ibrahim were taken into captivity by members of another clan, the Marehan, when they identified themselves as Rahanwein.  And it is implicit in the findings of the Tribunal that there is a real risk that Mr Haji Ibrahim will come to harm at the hands of members of other clans or sub-clans if he is returned to Somalia.

20. The Tribunal accepted that there might be persecution in the context of a civil war, including the civil war in Somalia.  However, it held that there was nothing "in the experiences of [Mr Haji Ibrahim], or his clan, the Rahanwein, or his sub-clan, the Dabarre, which could be regarded as part of a course of systematic conduct aimed at members of either group ... for reasons of their membership of the group."  The Tribunal concluded that Mr Haji Ibrahim was "not differentially at risk for a Convention reason and that the harm he fears is by reason of the civil unrest in Somalia and not persecution for reasons of his clan membership ... over and above the ordinary risks of clan warfare."

    Subsequent proceedings:  the decision of the Full Court

21. So far as is presently relevant, Mr Haji Ibrahim sought review of the Tribunal's decision on the ground that it involved an error of law.  The error, it was argued, was in holding that there must be a systematic course of conduct to constitute persecution.  The application was dismissed and Mr Haji Ibrahim then appealed to the Full Court.  The Full Court allowed his appeal.

22. In the view of the Full Court, the Tribunal erred in the present case "in finding it 'difficult to identify any particular clan or subclan' which could be regarded as the victims of systematic persecution by any other group or groups, or as being subject to a differential impact which is over and above the ordinary risks of clan warfare, [and thus failing] to consider whether, if [Mr Haji Ibrahim] were to return to Somalia, he might be exposed to a real chance of persecution by reason of his membership of the Rahanwein clan."[11]  Additionally, the Full Court held that the Tribunal was in error in looking for "systematic conduct"[12], and, thus, impliedly holding that "persecution will not be shown to exist if there is only an isolated incident."[13]

    [11]Ibrahim v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 259 at 265 [22].

    [12](1999) 94 FCR 259 at 267 [28].

    [13](1999) 94 FCR 259 at 266 [25].

23. The Full Court set aside the decision of the Tribunal and remitted the matter to it to investigate, in accordance with its decision in Minister for Immigration and Multicultural Affairs v Abdi "the reasons underlying the [civil] war and the way it is conducted"[14].

    [14](1999) 87 FCR 280 at 290 [38].

    Error of law:  discrimination and differential impact

24. In a number of cases, this Court has emphasised that, for the purposes of the Convention, "[persecution] ... for reasons of race, religion, nationality, membership of a particular social group or political opinion" is conduct which is discriminatory on one or other of those grounds[15] and which is sufficiently serious to constitute persecution.  In cases where, for example, conduct is aimed at a particular religious group, its discriminatory nature may be so obvious that there is no necessity to characterise it as such or to analyse what is involved in the notion of "discrimination".  In a context of shifting clan allegiances and clan warfare, however, discrimination may be difficult to perceive unless the elements of what is involved in that notion are kept in mind.

    [15]See Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 74 ALJR 775; 170 ALR 553. See also Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559.

25. Before turning to an analysis of discrimination, it should be noted that it is difficult to escape the conclusion that, in a clan war, the actions of one clan against the members of another are actions which are taken, in the words of Art 1A(2) of the Convention, "for reasons of ... [their] membership of a particular social group", being the group constituted by that other clan.  Even so, action of that kind, even if it involves killing and torture, is not persecution for the purposes of the Convention, unless it discriminates in some way against the members of that other clan.

26. It was recently held by the House of Lords, in Adan v Secretary of State for the Home Department[16], that "a state of civil war whose incidents are widespread clan and sub-clan based killing and torture" does not give rise to a well-founded fear of persecution for the purposes of the Convention if the "individual claimant is at no greater risk ... than others who are at risk ... for reasons of their clan and sub-clan membership"[17].  Although there is no reference in Adan to discrimination, as such, that notion clearly provides the rationale for the decision in that case.  And to the extent that the decision in that case gives expression to a negative test of persecution, I respectfully adopt it.

    [16][1999] AC 293.

    [17][1999] AC 293 at 308, 311.

27. In Adan, the House of Lords also stated a positive test with respect to persecution.  Lord Slynn of Hadley said that, to establish refugee status, an individual who is caught up in a civil war must "show a well-founded fear of persecution over and above the risk to life and liberty inherent in the civil war."[18]  Similarly, Lord Lloyd of Berwick observed that a person claiming to be a refugee "must be able to show ... a differential impact ... he must be able to show fear of persecution for Convention reasons over and above the ordinary risks of clan warfare."[19]  And, of course, that was the criterion by which the Tribunal assessed Mr Haji Ibrahim's claim in this case.  That criterion is, in my view, deficient, albeit not for the reasons given in Abdi and applied by the Full Court in this case.

    [18][1999] AC 293 at 302.

    [19][1999] AC 293 at 311.

28. In Abdi, the Federal Court took a different approach from that taken in Adan.  In Abdi, the Federal Court said:

    "[W]e do not accept that a clan or race based war cannot, without some further and differential degree of risk, amount to persecution in the sense that an individual is selected out for persecution treatment because he is a member of a particular clan.  If evidence establishes, for example, that the objective of a war is to harm the opposing party for one or more Convention reasons, then 'persecution' will be made out ... The task of the decision-maker ... must be to investigate the reasons underlying the war and the way it is conducted in order to ascertain whether it is based on a Convention ground or has an objective which is covered by the Convention"[20].

    And, as earlier indicated, it was on the basis of what had been said in Abdi that the Full Court found error on the part of the Tribunal in this case.

    [20](1999) 87 FCR 280 at 290 [38].

29. It is convenient now to turn to the concept of discrimination which, as has been pointed out, is an essential feature of persecution for the purposes of the Convention.  Discrimination is not simply the different treatment of individuals or of classes of individuals.  There are two distinct aspects to discrimination.  The first, which needs no elaboration, is the different treatment of people who are not relevantly different[21]; the second is the treatment of people who are relevantly different in a manner that is not appropriate and adapted to that difference[22].  Treatment of the latter kind is usually, albeit inaccurately, referred to as indirect discrimination.  And it is usually identified on the basis of its different impact on different groups within the population.

    [21]See, for example, the discussion by Gaudron J in Street v Queensland Bar Association (1989) 168 CLR 461 at 571-572.

    [22]See Street v Queensland Bar Association (1989) 168 CLR 461 at 570-574 per Gaudron J; Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 478 per Gaudron and McHugh JJ.

30. For constitutional purposes, it has been accepted that conduct which does not properly take account of relevant differences constitutes discrimination[23].  The same view should be taken with respect to the Convention in its application in conditions of clan warfare.  And on that basis, if an individual can establish that conduct to which all are subject has significantly greater consequences for the group of which he or she is a member, then he or she may well establish a well-founded fear of persecution.  And in the case of clan warfare, where war is waged against members of a particular social group, namely a particular clan because they are members of that clan, he or she may well establish a well-founded fear of persecution for a Convention reason.

    [23]See Street v Queensland Bar Association (1989) 168 CLR 461 at 572-574 per Gaudron J; Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 478-480 per Gaudron and McHugh JJ.

31. Where, as here, it is necessary to apply the Convention in relation to a country riven by clan wars, it is not sufficient, in my view, to ask whether the person claiming refugee status faces risks "over and above the ordinary risks of clan warfare".  That can be illustrated by this case.  As already pointed out, there was material before the Tribunal to the effect that the Rahanwein are militarily weak.  As I will shortly explain, that may constitute a relevant difference between them and other clans caught up in the struggle in Somalia.

32. It may be that, because the Rahanwein are militarily weak, the consequences of clan warfare are so much greater for them that their plight is properly to be identified as persecution.  Or to put the matter another way, the "ordinary risks of clan warfare" for them may be so much greater than for others caught up in the clan-based conflict that they are at risk of persecution for reason of their membership of a particular social group, namely, the militarily weak Rahanwein.  However, it does not necessarily follow that, if the Rahanwein are militarily weak, their members are at greater risk than are members of other clans or sub-clans.  For example, it may be that the Rahanwein or the Dabarre are able to forge alliances with other clans or sub-clans so that they are at no greater risk than anyone else.  These matters should have been but were not investigated by the Tribunal.

33. In addition to asking itself whether the Rahanwein and the Dabarre were the victims of "systematic conduct aimed at [their] members" and whether they were "differentially at risk ... over and above the ordinary risks of clan warfare", the Tribunal should have considered whether clan warfare posed special problems for members of the Rahanwein and the Dabarre over and above those of the other clans caught up in the conflict, such that they are properly to be regarded as being at risk of persecution by reason of their membership of that clan or sub-clan.  Only if that further exercise is undertaken, can it be determined whether Mr Haji Ibrahim has a well-founded fear of persecution for a Convention reason.

    Conclusion

34. Although for reasons which differ from those adopted by the Full Court, that Court was correct in identifying an error of law on the part of the Tribunal.  The error is not that identified by the Full Court but it is, nonetheless, an error as to the meaning of the expression "well-founded fear of persecution" in Art 1A(2) of the Convention.  The error was in failing to recognise that undifferentiating conduct may constitute discrimination against persons who are different or who are differently circumstanced and, that, if that discrimination is sufficiently serious, it may constitute persecution for the purposes of the Convention.

35. The appeal should be dismissed.

36. McHUGH J.   The Minister for Immigration and Multicultural Affairs appeals against an order of the Full Court of the Federal Court.  That Court reversed the judgment of the primary judge, Katz J, who had held that the Refugee Review Tribunal had not erred in law in dismissing an application for a protection visa under the Migration Act 1958 (Cth) ("the Act"). The application had been brought by Hussein Mohamed Haji Ibrahim ("the applicant"). His entitlement to that visa depended upon whether he was a refugee for the purposes of 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)[24].  Relevantly, the Convention defines a refugee as a 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 ..."

    [24]Section 36(2) of the Act and Subclass 866 of Sched 2 to the Migration Regulations 1994.

37. Since 1991, Somalia has been in a state of civil unrest as a result of fighting between tribal clans.  The applicant is a Somali national who is a member of the Rahanwein clan.  After leaving Somalia in 1995, he reached Australia in late 1997 and applied for a protection visa, claiming that he was a refugee because he feared that other Somali clans including sub-clans of the Rahanwein would persecute him because of his membership of the Dabarre sub-clan of the Rahanwein clan.

38. Four issues arise in the appeal:

    .The differential impact principle.  Where an applicant for refugee status has fled from a country where a state of civil war or unrest exists, does fear of persecution require a risk of harm above that inherent in the ordinary risks of civil war or unrest?

    .Application of the differential impact principle.  Was the applicant's claim for refugee status rejected because the Tribunal erroneously applied the differential impact principle?

    .Motivation.  Did the Tribunal fail to make a finding as to the motivation for the detention in 1991 of the applicant and his family by members of a rival clan?  If so, did the Tribunal err in law in failing to do so?

    .Systematic conduct.  Did the Tribunal misdirect itself in law by holding that persecution for the purpose of the Convention required "a course of conduct demonstrating over time a systematic or methodical attack upon members of the [applicant's] clan"[25]?

    [25]Ibrahim v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 259 at 267 [28].

    The factual background

39. The applicant was born in Somalia in 1960.  Somalia's population is divided into clans and sub-clans.  The applicant is a member of the Waqbare sub-clan, a sub-clan of the Dabarre which is itself a sub-clan of the Rahanwein clan.  The Rahanwein clan is subdivided into two major sub-clans known as the Digil and the Mirifle.  The latter is the numerically larger sub-clan.  The Rahanwein, which is based in southern Somalia, is one of a number of clans in Somalia.  Another is the Darod clan.  Among the Darod sub-clans are the Ogaden and the Marehan.  Until 1991, Somalia was controlled by a dictator, Siad Barre, a member of the Darod clan.  Another clan is the Hawiye clan which has a sub-clan, Habir Gidir.  That is the sub-clan of the militia warlord, Hussein Aideed, whose activities are involved in this appeal.

40. After the overthrow of Siad Barre in 1991, civil unrest, if not civil war, broke out in Somalia.  Many clans formed armed militia groups and attacked other clan groups.  The applicant claimed that his sub-clan did not support any of these militia groups.  Although numerically larger, the Rahanwein clan appears to have been weaker militarily than some other clans.  At all events, the Dabarre sub-clan appears to have been militarily weak.  In the course of the clan fighting, thousands of Somalis were killed, dislocated or starved.  As a result in 1992, the United Nations intervened in Somalia with military forces.

41. Among the militia groups of the sub-clans were:

    .the Somali National Alliance led by Hussein Aideed based on the Habir Gidir sub-clan of the Hawiye clan;

    .the United Somali Congress led by Ali Mahdi based on the Abgal faction of the Hawiye clan;

    .the Somali Patriotic Movement led by Omar Jess based on the Ogaden sub-clan of the Darod clan;

    .the Somali National Front led by Omer Hagi Masale based on the Marehan sub-clan of the Darod clan;

    .the Somali Democratic Movement based on the Rahanwein which later split into two factions, one of which supported Aideed and the other which supported the United Nations forces;

    .the Rahanwein Resistance Army formed around 1995 also based on the Rahanwein.

42. When the civil unrest commenced, the applicant and his family lived in Baidoa, a city mainly populated by the Rahanwein, but controlled by Siad Barre's brother-in-law, a member of the Marehan sub-clan of the Darod clan.  He and his soldiers fled when a group led by Omar Jess of the Ogaden sub-clan of the Darod clan entered Baidoa, "destroyed everything and killed many people".  According to the applicant, Rahanwein forces later ousted Omar Jess.  But Marehan forces then returned to Baidoa and "took everything that was left".  The applicant's house was destroyed.  In May or June 1991, he and his wife left for Safarnooleys in another area.

43. On their walk to Safarnooleys, they met an armed group from the Marehan sub-clan.  After learning that the applicant was from the Rahanwein clan, the Marehan group took him and his family to a farm, telling him that he would be killed if he tried to escape.  He and others were forced to work on sorghum farms in the area.  Male prisoners were tied up at night; female prisoners, including the applicant's wife, were raped; other females were made to cook for their captors.  The Marehans killed some women.  The applicant and his family escaped in April 1992 when the Marehans were attacked by another group.  The applicant claimed that the Marehans shot many people who attempted to escape.

44. The applicant and his family reached Safarnooleys two days later to find that Hussein Aideed's forces were attacking the Marehans in that area and stealing livestock.  The applicant claimed that Aideed engaged in genocide against the Rahanwein, but the Tribunal did not accept his evidence on this point.  After the applicant's brother was killed, the applicant left for Dinsor, in the Baay region where some of his sub-clan, the Dabarre, lived.  He left his family with his sister-in-law.  An uncle advised him to leave because the Aideed forces had killed many of his relatives and their tribe had suffered "from the fighting between the other clans".

45. After leaving Dinsor, the applicant took a route to avoid the Marehan.  He eventually reached Dolo near the borders of Kenya, Ethiopia and Somalia in November 1992.  While in Dolo, he heard news that the Dabarre had been attacked by members of Mirifle sub-clans of the Rahanwein.  He said that his sub-clan and these sub-clans had been involved in disputes for a long time.

46. He left Dolo in 1995 and, with money given to him by his brother, he reached Thailand and, eventually, Sydney.  On arrival, he told immigration officials that he was a refugee.  He said:

    "If I am sent back to Somalia my life will be at risk.  Aideed's forces are in control of Baidoa.  My family's house was destroyed in Baidoa.  My brother was killed by Aideed's forces.  I was taken prisoner by the Marehan and my wife was raped by them.  The other Rahanwein tribes are against my tribe.  There is no safe place for me in Somalia."

47. The Tribunal found the applicant to be credible and accepted his account "of his and his clan's and sub-clan's experiences."  Upon these facts, the applicant made out a strong case for refugee status.  He was a member of a particular social group – either the Rahanwein clan or the Dabarre sub-clan.  The human rights of members of that clan or sub-clan have been and are likely to be interfered with to an extent that constitutes persecution for the purpose of the Convention.  Arguably it was and is membership of the clan or sub-clan that provided and provides the dominant reason for the potential persecution of the applicant.

48. The other view of these facts is that the Rahanwein and the Dabarre are seen by groups such as the Marehan and the Ogaden as rivals in the struggle for land and resources.  These groups attack anyone who opposes or is perceived to oppose their claims to the land and resources of Somalia.  It is opposition to their claims, not clan membership as such, which is the motivating force for any harm inflicted on the Rahanwein and the Dabarre.  On this view, the dominant reason for the killings, the imprisonments and the destruction of property of members of the Rahanwein clan and Dabarre sub-clan has been the need to ensure that the rival clans and sub-clans succeed in their struggle for the land and resources.  It is also a possible view of the facts that the Rahanwein women were raped for reasons of sexual gratification rather than their membership of the Rahanwein clan.

49. Accepting that the facts showed hypotheses inconsistent with persecution for a Convention reason, it was still open to the Tribunal to be satisfied that there was a real chance that the killings, the rapes, the imprisonments and destruction of the property of the Rahanwein and the Dabarre have been and will be inflicted, not because of military or economic necessity but because of the desire to terrify, punish or exact revenge on members of the Rahanwein clan or Dabarre sub-clan.  But after examining the facts, the Tribunal – which is the body charged with determining the merits of each application – was not so satisfied.  It held that, if returned to Somalia, the applicant would not face a real chance of persecution for Convention reasons.  The Tribunal concluded that the harm that the applicant fears arises from struggles for land and power and not because of his membership of any particular social group.  The Tribunal said:

    "The totality of the material before me, including the [a]pplicant's evidence and the independent evidence referred to in this decision, leads me to conclude that the harm the [a]pplicant fears is not persecution for reasons of his membership of the Rahanwein clan or his subclan of themselves but rather unsystematic warfare because of 'the instability, anarchy and murderous shiftings witnessed today in the Somali scene'.  These shifting allegiances are the consequence of power struggles between clans and subclans, including the [a]pplicant's own Rahanwein clan and the Digil subclan to which his further subclan the Dabarre belong. ...

    In this context of shifting allegiances it is difficult to identify any particular clan or sub-clan which can be regarded as being the victims of systematic persecution by any other group or groups, or as being subject to a differential impact which is over and above the ordinary risks of clan warfare.  Members of the Hawiye subclans, the Marehan and Ogaden subclans of the Darod and members of any other clan or subclan in that area are equally potential victims of the civil unrest in a pattern of shifting allegiances in the southern area of Somalia.

    What emerges from all the evidence is a picture of the ordinary risks of clan warfare, largely involving struggles for power and resources, in a context of instability and anarchy.  Members of all clans and subclans in this tragic turmoil are at risk and, while some may be more vulnerable than others, none of the material before me points to circumstances which would convert the conflict into persecution.  I am unable to discern anything in the experiences of the [a]pplicant, or his clan, the Rahanwein, or his sub-clan, the Dabarre, which could be regarded as part of a course of systematic conduct aimed at members of either group, including the [a]pplicant, for reasons of their membership of the group."  (emphasis added)

    Later the Tribunal concluded that:

    "I find that the Rahanwein, including the [a]pplicant's subclan, the Digil, have at different times been in alliance with and in conflict with different groups in a civil war in which interest groups shift according to the stakes at hand.  I therefore accept that the [a]pplicant may be at risk of harm in the pattern of shifting allegiances both inter and intra clan but, for reasons discussed above, find that this is because of the unstable situation in his country as a consequence of the civil unrest since 1991.

    I am not suggesting that persecution for a Convention reason never occurs, or could never occur, in the context of the civil war in Somalia.  However the [a]pplicant's circumstances lead me to find that he is not differentially at risk for a Convention reason and that the harm he fears is by reason of the civil unrest in Somalia and not persecution for reasons of his clan membership, or any other Convention reason, over and above the ordinary risks of clan warfare." (emphasis added)

50. In finding that the applicant "is not differentially at risk for a Convention reason" and that the harm that he fears is merely "the ordinary risks of clan warfare", the Tribunal applied a principle formulated by the House of Lords in Adan v Secretary of State for the Home Department[26], a case which also concerned Somalia.

    [26][1999] 1 AC 293.

51. In Adan, Lord Lloyd of Berwick[27] said[28]:

    "[W]here 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 what [counsel for the Secretary of State for the Home Department] calls 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." (emphasis added)

    [27]With whom Lord Goff of Chieveley, Lord Nolan, and Lord Hope of Craighead agreed.

    [28][1999] 1 AC 293 at 311.

52. Lord Lloyd appears to have been driven to this conclusion by the following concern[29]:

    "[I]f [counsel for the Secretary of State for the Home Department] is right, it involves drawing a line between the persecution of individuals and groups, including very large groups, on the one hand, and the existence of a state of civil war on the other.  [Counsel for the Secretary of State for the Home Department] accepts that protection under the Convention is not confined to individuals.  He accepts further that the persecution of individuals and groups, however large, because of their membership of a particular clan is very likely to be persecution for a Convention reason.  But he says that where there is a state of civil war between clans, the picture changes.  Otherwise the participants on both sides of the civil war would be entitled to protection under the Convention.  Indeed, as Simon Brown LJ pointed out, the only persons who would not be entitled to protection, on that view, would be those who were not the active participants on either side but were, as Simon Brown LJ [1997] 1 WLR 1107, 1120 put it, 'lucklessly endangered on the sidelines.' Simon Brown LJ found this unappealing. So do I. It drives me to the conclusion that fighting between clans engaged in civil war is not what the framers of the Convention had in mind by the word persecution.

    What then is the critical factor which distinguishes persecution from the ordinary incidents of civil war?" (my emphasis underlined; original emphasis in italics)

    The answer which his Lordship gave to this question was a "differential impact"[30].

    [29][1999] 1 AC 293 at 308.

    [30][1999] 1 AC 293 at 311.

    Grounds of appeal before the Full Court

53. At no stage before the proceedings reached this Court does the applicant appear to have argued that, in rejecting the applicant's claim, the Tribunal was wrongly influenced by the Adan test of "differential impact".  Before the Tribunal, the applicant appears to have accepted that Adan represented the law that the Tribunal had to apply.  It was its application rather than its formulation which was in issue.  Nor was the correctness of the Adan approach in issue before Katz J.  Furthermore, the Notice of Appeal to the Full Court contained only one ground:

    "His Honour erred in finding that the Tribunal's reference to a 'course of systematic conduct' in its statement of findings and reasons did not demonstrate that its decision involved an error of law, being an error involving an incorrect interpretation of the meaning of 'persecution' in Article 1A(2) [of] the Refugees Convention." (emphasis added)

54. Moreover, in this Court, the applicant did not file a Notice of Contention seeking to uphold the Full Court's order on the ground that the Tribunal had erred in law in applying Adan.  Despite the absence of a Notice of Contention, however, counsel for the applicant argued "that if Adan stands for any other proposition [than] that the differential impact means that you look for persecution feared by an applicant ... then it must be wrong."  Later, counsel said "that this whole notion of distinguishing persecution from ordinary risks of clan war and so forth sends the whole inquiry in the wrong place".  In his written submissions, the applicant had also contended "that the Tribunal required establishment of 'differential impact' in the (erroneous) sense ... that the applicant had to show that he was more at risk than others in the 'clan warfare'".  The Minister did not claim that these arguments or contentions were outside the issues raised by the appeal.  Nor did he contend that the applicant should have filed a Notice of Contention.  That being so, this Court must examine whether Adan correctly states the law concerning persecution in the context of civil unrest or war as is the case in Somalia.  It must also examine whether rejection of the applicant's claim for refugee status was based wholly or partly on an erroneous application of the Adan principle.

    Well-founded fear of persecution

55. Persecution involves discrimination that results in harm to an individual.  But not all discrimination amounts to persecution.  With the express or tacit approval of the government, for example, some employers may refuse to employ persons on grounds of race, religion or nationality.  But discriminatory though such conduct may be, it may not amount to persecution.  Other employment may be readily available.  The Convention protects persons from persecution, not discrimination.  Nor does the infliction of harm for a Convention reason always involve persecution.  Much will depend on the form and extent of the harm.  Torture, beatings or unjustifiable imprisonment, if carried out for a Convention reason, will invariably constitute persecution for the purpose of the Convention.  But the infliction of many forms of economic harm and the interference with many civil rights may not reach the standard of persecution.  Similarly, while persecution always involves the notion of selective harassment or pursuit, selective harassment or pursuit may not be so intensive, repetitive or prolonged that it can be described as persecution.

56. This Court has discussed the meaning of persecution on a number of occasions.  Most recently, in Chen Shi Hai v Minister for Immigration and Multicultural Affairs, a majority of this Court said[31]:

    "[T]here is a common thread linking the expressions 'persecuted', 'for reasons of' and 'membership of a particular social group' in the Convention definition of 'refugee'.  In a sense, that is to oversimplify the position.  The thread links 'persecuted', 'for reasons of' and the several grounds specified in the definition, namely, 'race, religion, nationality, membership of a particular social group or political opinion'[32].

    As was pointed out in Applicant A[33], not every form of discriminatory or persecutory behaviour is covered by the Convention definition of 'refugee'.  It covers only conduct undertaken for reasons specified in the Convention.  And the question whether it is undertaken for a Convention reason cannot be entirely isolated from the question whether that conduct amounts to persecution." (emphasis added)

    [31](2000) 74 ALJR 775 at 779-780 [24]-[25]; 170 ALR 553 at 559-560.

    [32]Article 1A(2).

    [33](1997) 190 CLR 225 at 232-233 per Brennan CJ, 257-258 per McHugh J, 284 per Gummow J. See also Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 568 per Burchett J, with whom O'Loughlin and RD Nicholson JJ agreed.

57. In Applicant A v Minister for Immigration and Ethnic Affairs[34], I said:

    "When the definition of refugee is read as a whole, it is plain that it is directed to the protection of individuals who have been or who are likely to be the victims of intentional discrimination of a particular kind.  The discrimination must constitute a form of persecution, and it must be discrimination that occurs because the person concerned has a particular race, religion, nationality, political opinion or membership of a particular social group."

    [34](1997) 190 CLR 225 at 257.

58. In Applicant A[35], Gummow J approved the discussion of persecution by Burchett J (with whom O'Loughlin and RD Nicholson JJ agreed) in Ram v Minister for Immigration and Ethnic Affairs[36]:

    "Persecution involves the infliction of harm, but it implies something more:  an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm.  People are persecuted for something perceived about them or attributed to them by their persecutors.  Not every isolated act of harm to a person is an act of persecution."

    [35](1997) 190 CLR 225 at 284.

    [36](1995) 57 FCR 565 at 568.

59. Gummow J said[37]:

    "In par (2) of s A the notion of 'fear of being persecuted' is confined by the use of the phrase 'for reasons of'.  This serves to identify the motivation for the infliction of the persecution and the objectives sought to be attained by it.  The reason for the persecution must be found in the singling out of one or more of five attributes, namely race, religion, nationality, the holding of political opinion, or membership of a particular social group."

    [37](1997) 190 CLR 225 at 284.

60. All these statements are descriptive rather than definitive of what constitutes persecution for the purpose of the Convention.  In particular, they do not attempt to define when the infliction or threat of harm passes beyond harassment, discrimination or tortious or unlawful conduct and becomes persecution for Convention purposes.  A passage in my judgment in Chan v Minister for Immigration and Ethnic Affairs[38] suggests that a person is persecuted within the meaning of the Convention whenever the harm or threat of 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 a class".  Read literally, this statement goes too far.  It would cover many forms of selective harassment or discrimination that fall short of persecution for the purpose of the Convention.  Moreover, it does not go far enough, if it were to be read as implying that there can be no persecution unless systematic conduct is established.

    [38](1989) 169 CLR 379 at 430.

61. Given the objects of the Convention, the harm or threat of harm will ordinarily be persecution only when it is done for a Convention reason and when it is so oppressive or recurrent that a person cannot be expected to tolerate it.  This accords with the discussion of what constitutes a "well-founded fear of persecution" in par 42 of the Handbook On Procedures And Criteria For Determining Refugee Status[39] issued by the Office of the United Nations High Commissioner for Refugees:

    "In general, the applicant's fear should be considered well-founded if he can establish, to a reasonable degree, that his continued stay in his country of origin has become intolerable to him for the reasons stated in the definition, or would for the same reasons be intolerable if he returned there." (emphasis added)

    [39]1979; re-edited 1992.

62. Dr Hathaway in his book The Law of Refugee Status[40] thought that the Canadian Immigration Appeal Board had "succinctly stated the core of the test" of persecution when it said that "[t]he criteri[on] to establish persecution is harassment, harassment that is so constant and unrelenting that the victims feel deprived of all hope of recourse, short of flight, from government by oppression."

    [40](1991) at 102.

63. A written submission to the Tribunal by the applicant's solicitor accepted that refugee status is granted only "as a last resort where national protection is not available."

64. The emphasis on the tolerability of the applicant's situation gives effect to the principal rationale for the Convention.  It was persecution on grounds such as race, religion, nationality and political opinion that led to the involuntary migration of large numbers of persons before and after the Second World War and which brought about the Convention.  The Convention should be interpreted against that background.  Given that background, the parties to the Convention should be understood as agreeing to give refuge to a person when, but only when, he or she "is outside the country of his [or her] nationality and is unable or, owing to such [well-founded] fear, is unwilling to avail himself [or herself] of the protection of that country".

65. Framing an exhaustive definition of persecution for the purpose of the Convention is probably impossible.  Ordinarily, however, given the rationale of the Convention, persecution for that purpose is:

    .unjustifiable and discriminatory conduct directed at an individual or group for a Convention reason

    .which constitutes an interference with the basic human rights or dignity of that person or the persons in the group

    .which the country of nationality authorises or does not stop, and

    .which is so oppressive or likely to be repeated or maintained that the person threatened cannot be expected to tolerate it, so that flight from, or refusal to return to, that country is the understandable choice of the individual concerned.

66. Neither the text, rationale nor purpose of the Convention or any decision of this Court entitles a decision-maker to reject a claim for refugee status merely because the applicant has failed to prove that, in a conflict such as that in Somalia, he or she is exposed to a risk of harm different from that of others caught up in that conflict.  No doubt, as a practical matter in such situations, the Tribunal will often find it difficult to determine whether the feared persecution is "for reasons" specified in the Convention or for military or economic reasons or other reasons.  But that is very different from holding that an applicant for refugee status must prove that he or she is exposed to a greater risk of harm than others caught up in the war or unrest.

67. It is also true, as the Minister argued, that not all harm inflicted by the government of a country in the course of a civil war or unrest is necessarily persecution for the purpose of the Convention.  That is because the harm may be justifiable as a measure carried out to achieve a legitimate object of the country.  In ApplicantA[41], I discussed the kinds of discriminatory conduct that may be justifiable and not amount to persecution even when done for a Convention reason.  It is of course true that, even when the conduct is that of the legitimate government of the country, it may be difficult to determine whether the conduct is persecution or is justifiable action because it is appropriate and adapted to achieving some legitimate object of the country of the refugee, such as its defence.  When General Sherman marched through Georgia in his swing to the sea during the United States Civil War, for example, he fed his army off the land and farms as it crossed the State and, when locals burned bridges to impede his progress, he ordered the burning of nearby houses[42].  He did this "to demonstrate the vulnerability of the South and make its inhabitants feel that war and individual ruin are synonymous terms" so that the South would quit and rejoin the Union[43].  If those circumstances arose today, it would be a nice question whether he had persecuted the people of Georgia for a Convention reason, despite his object of reuniting the North and South.

    [41](1997) 190 CLR 225 at 258-259.

    [42]Marszalek, Sherman:  A Soldier's Passion For Order (1993) at 301-303.

    [43]Marszalek, Sherman:  A Soldier's Passion For Order (1993) at 296.

68. Although issues of justification can be relevant in civil war contexts, it is difficult to see how they can have any relevance in the Somali context where there has been no legitimate or indeed any national government.  The object of the Convention is to provide refuge for those groups who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality[44].  Whatever legitimacy the actions of the various groups in Somalia may have, it is not grounded in the authority of a government.  In the type of conflict that has existed in Somalia, many of the groups may have felt that they were attempting to achieve objectives which, from their perspective, were legitimate.  But even so, it is unlikely that any group's actions were directed entirely towards legitimate objectives in an appropriate and adapted manner.  Legitimacy or justification are not concepts that seem to have had any relevance in the Somali context.

    [44]Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 258.

69. Because Somalia has had no government in any relevant sense, persons such as the applicant have had no protection from their country of nationality.  Where the State has disintegrated, as appears to have been the case in Somalia, so that there is no State to prevent the persecution of a person by private individuals or groups, that persecution will fall within the definition of refugee just as it would if an existing government had failed to protect that person from the persecution.  Given the objects of the Convention, I can see no reason for reading down the definition of refugee so that it applies only when the country of nationality has a government.  A person who otherwise satisfies the definition is a refugee when that person cannot avail him or herself "of the protection of [his or her] country", not its government.

70. The difficulties of determining whether harm inflicted in the course of a civil war amounts to persecution or has been done for a Convention reason are very great.  But despite these difficulties, I see no basis in the text of the Convention or otherwise for holding that, in conditions of civil war or unrest, a person can prove persecution only when he or she can establish a risk of harm over and above that of others caught up in those conditions.  There is nothing in the Convention definition of a refugee, nor any reason in principle or policy, that prevents members of various groups, each of which are involved in a conflict, from being refugees in the Convention sense.  The test of "differential impact", as propounded in Adan[45], finds no support in the text of the Convention and it should not be followed in Australia.  It is not the degree or differentiation of risk that determines whether a person caught in a civil war is a refugee under the Convention definition.  It is a complex of factors that is determinative – the motivation of the oppressor; the degree and repetition of harm to the rights, interests or dignity of the individual; the justification, if any, for the infliction of that harm and the proportionality of the means used to achieve the justification.  Even if the passage in Lord Lloyd's speech be read as no more than an emphatic statement that the applicant must prove more than harm resulting from the civil war – and I do not think that it was intended to be so limited – it departs from the language of the Convention and invites error.

    [45][1999] 1 AC 293 at 311.

71. Furthermore, contrary to what Lord Lloyd appears to have thought, not all participants on both sides of the civil war would be entitled to protection under the Convention if the differential impact test is rejected.  Article 1F of the Convention provides:

    "The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

    (a)he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

    (b)he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

    (c)he has been guilty of acts contrary to the purposes and principles of the United Nations."

72. Article 1F allows the Tribunal to refuse refugee status to applicants who, because of their conduct, ought not to have the benefit of the protection of the Convention.

73. In determining questions of refugee status in a civil war or civil unrest context, therefore, Australian courts and tribunals should avoid determining whether the "differential impact" of that war or unrest is greater for the applicant than for others.  They should also avoid asking whether the applicant has shown a "fear of persecution for Convention reasons over and above the ordinary risks of clan warfare".

74. Before determining whether the Tribunal erroneously applied the differential impact principle, it is necessary to deal with the grounds that form the basis of the Minister's appeal.

    The grounds upon which the Full Court held that the Tribunal had erred in law

75. The applicant's contentions before the Full Court were not limited to the one ground contained in his Notice of Appeal.  The Full Court concluded that the Tribunal had erred for two reasons.  First, the Full Court said that the Tribunal had correctly identified the need to identify the motivation behind the "clan based warfare" to determine if there had been, or might have been, persecution for a Convention reason[46].  But the Full Court said that the Tribunal had erred because it had failed to address "specifically whether the capture and retention of the [applicant] and his family were (as he asserted) driven by the intent to repress his particular clan"[47].  The Full Court also said that that error of the Tribunal had arisen because it had required "systematic persecution" of the members of the Rahanwein clan if the applicant were to succeed in his application[48].

    [46]Ibrahim v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 259 at 264 [18].

    [47]Ibrahim v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 259 at 264 [19].

    [48]Ibrahim v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 259 at 264 [19].

76. Second, the Full Court said that the Tribunal had erred because it had concluded that "unsystematic warfare without more is not persecution"[49].  The Full Court said that the Tribunal had "used the expression 'systematic conduct' as requiring a course of conduct demonstrating over time a systematic or methodical attack upon members of the Rahanwein clan for reasons of that clan membership before it would be satisfied that the [applicant's] claim would be made out."[50]  It "should have determined whether the particular experiences of the [applicant] were caused by persecution for Convention reasons"[51].

    [49]Ibrahim v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 259 at 266 [26] (original emphasis).

    [50]Ibrahim v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 259 at 267 [28].

    [51]Ibrahim v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 259 at 267 [28].

    The detention of the applicant and his family

77. In dealing with the detention of the applicant, the Full Court said that it was unclear whether the Tribunal found that the applicant and his wife were captured and restrained on the farm because they were Rahanwein or for some other reason[52].  The Full Court said that the Tribunal had to address the question why they were targeted.  This point was not raised before Katz J.  Nor was it raised by the Notice of Appeal to the Full Court.  Nevertheless, it was debated before and decided by the Full Court. 

    [52]Ibrahim v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 259 at 264 [20].

78. The Minister submits that the Tribunal did consider the motivation behind the particular incident.  The Minister relies on the following passage, which appeared in the Tribunal's reasons under the heading "The Applicant's Circumstances as a Member of a Clan":

    "The circumstances of the capture when the [a]pplicant and his wife identified themselves as Rahanwein therefore would have been the same if they had identified themselves as Abgal or Habr Gedir [sic] depending on the affiliations of the time."

79. The Minister asserts that:

    "[I]t is tolerably clear that the Tribunal concluded that the [applicant] and his wife were taken captive because they were in Marehan territory and they belonged to a clan that was at that time opposed to the Marehans in the conflict." 

80. The mere fact that members of the Marehan sub-clan would have detained members of two other clans "depending on the affiliations of the time" does not, of itself, mean that the incident did not constitute persecution for reason of the applicant's membership of a particular social group.  It is a possible view of this passage that the Tribunal was simply making the point that any person who belonged to or supported any clan, opposed to the Marehan, would be treated similarly to the way the applicant was treated.  On that view, the Tribunal was saying that the Marehan group perceived the applicant and his family as supporters of their enemy and that they were detained for that reason, just as any other person from an opposing clan would have been detained.  In other words, the Tribunal was saying no more than that the applicant's membership of his clan was not the reason that he and his family were detained.

81. Although it is possible that the Tribunal meant the passage to be understood in the sense set out above, the better view is that it was a direct product of applying the erroneous Adan principle.  Because the applicant's position could not be distinguished from that of a member of the Abgal or Habir Gidir sub-clans, the Tribunal impliedly found that he was not differentially at risk and that his detention did not constitute persecution.  In that respect, the Tribunal erred because it made a finding by applying an erroneous legal precept.

82. But was it necessary for the Tribunal to make any finding concerning the motivation for this incident?  The Minister submits that, contrary to the conclusion of the Full Court, the Tribunal was not required by law "to address specifically whether the capture and retention of the [applicant] and his family were (as he asserted) driven by the intent to repress his particular clan".  If this is so, and if the error did not otherwise affect its decision, this submission should be upheld.

83. In most cases, it is necessary for a Tribunal considering a claim for refugee status to make findings about past events that are alleged to constitute persecution.  That is because what has occurred in the past is ordinarily a reliable indicator of what is likely to occur in the future[53].  Past acts of persecution are usually strong evidence that the applicant will again be persecuted if returned to the country of his or her nationality.  But the relevance of past acts of persecution depends upon the degree of likelihood that they or similar acts will occur in the future.

    [53]Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575.

84. The applicant was detained from May or June 1991 until April 1992.  He lodged his application for a protection visa in January 1998.  Whether or not he had a well-founded fear of persecution for a Convention reason had to be determined no later than the date of the Tribunal's decision[54] and not as at the date of the 1991 incident.  Detention by an armed group of members of the Marehan sub-clan in May or June 1991 throws no real light on whether he would be likely to be persecuted by the Marehan or any other clan or sub-clan if he was returned to Somalia in 1998.  Indeed, the Tribunal had material before it that three of the militia group leaders, including Hussein Aideed, had signed an agreement to "plot the structure of a future Somali state and the transitional government that will create that state" and that a meeting of 26 Somali factions had agreed to hold a National Reconciliation Conference in June 1997.  However, this Conference apparently did not have the support of Hussein Aideed and there were "continuing armed clashes between rival militia groupings".  Leaving aside the possibility that the clan warfare would have ended if and when the applicant was returned to Somalia in 1998, the motivation of a group of Marehans then located near Safarnooleys in May or June 1991 throws no light on what they or other Marehan or other clans or sub-clans would be likely to do to the applicant in 1998.  If the political positions of the various clans had been stable, the motivation of this relatively small group of Marehans might arguably throw some light on what Marehans generally might do to the applicant seven years later, although I doubt that it would.  But given the shifting alliances, I do not think that a finding as to the motivation for this incident was so necessary that, by failing to find that motivation, the Tribunal erred in law.

    [54]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 386-387 per Mason CJ, 398-399 per Dawson J, 405-406 per Toohey J, 413-415 per Gaudron J, 432 per McHugh J.

85. This conclusion is strengthened by the way that the applicant conducted his case before the Tribunal.  It was not conducted on the basis that the incident at Safarnooleys was critical in determining whether he would be persecuted if returned to Somalia.  His case was put on a more general basis.  Although his evidence referred to the incident, neither the oral submissions on behalf of the applicant before the Tribunal nor the 13-page written submission filed by his solicitor after the oral hearing had concluded mentioned the incident.  The written submission asserted that the applicant:

    "... on the basis of his clan membership, may be imputed to hold political opinions by other rival clans and which are considered hostile by those clans.  A hostile political opinion may also be imputed to him due to his family's close association with the former government of Said [sic] Barre."

86. In conclusion, the solicitor submitted "that his political and civil status puts him differentially at risk should he be forced to return to Somalia and that there is no effective State protection available to him."

87. Given the conduct of the case, the evidence concerning the detention was not seen as so decisive or central to his claim that it required a finding as to its motivation.  It was part of the description – albeit a graphic one – of the consequences for individuals who were caught up in the unrest.  It is not even clear that the applicant relied on the risks inherent in the civil unrest as the persecution that he feared.  His case seems rather to have been one of being differentially at risk by reason of the military weakness of his clan or sub-clan and his family's association with the deposed dictator, Siad Barre.  Because that is so, the failure of the Tribunal to find the motivation for his detention was not a relevant error of law.  The Full Court erred, therefore, in finding that the Tribunal had erred in law in not finding the motivation for the Safarnooleys incident.

    Systematic conduct

88. The Full Court also held that Katz J erred in not finding that the Tribunal had erred in law by holding that "systematic persecution" is necessary to establish refugee status.

89. The Full Court said that[55]:

    "In the light of the observations in Guo^[[56]^], it is important to note that the expression 'systematic' may be used in alternative senses.  One sense is that of deliberate or premeditated or intended conduct, of acting or carrying out actions with a premeditated intent.  The other sense is that of habitual behaviour according to a system, regular or methodical.  Where those words have been used to indicate the former sense, there will be no error of law.  Where those words have been used to indicate a requirement that it is necessary to show a series of incidents or a course of conduct over time involving persecution, so that persecution will not be shown to exist if there is only an isolated incident, it will demonstrate an error of law on the part of the Tribunal.  Hamad is one case where such an error was demonstrated."

    [55](1999) 94 FCR 259 at 266 [25].

    [56]Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559.

90. An identically constituted Full Court[57] decided Minister for Immigration and Multicultural Affairs v Hamad[58] approximately two weeks prior to the decision in this case.  In Hamad, the Full Court said that "systematic" can be used in two senses[59]:

    "The phrase 'systematic conduct' can be, and often is, used in two senses – either to refer to the motive, or evidence revealing the motive for the acts of the perpetrator or alternatively to refer to a number of acts or the volume of acts which are necessary before persecution is established."

    [57]O'Connor, Tamberlin and Mansfield JJ.

    [58](1999) 87 FCR 294.

    [59](1999) 87 FCR 294 at 297 [17]. Their Honours said that I used the expression "systematic conduct" in the first sense in Chan.

91. Despite the Tribunal stating that, in an appropriate case, persecution includes "single acts of oppression", the Full Court held in this case[60] that the Tribunal had committed an error of law of the kind committed by the Tribunal in Hamad.  The Full Court said[61]:

    "The Tribunal's reasons show it regarded the civil war in Somalia as unsystematic, characterised by 'instability, anarchy and murderous shiftings' in clan alliances.  It is from that characterisation that the Tribunal proceeded to conclude that the members of the Rahanwein clan were not victims of 'systematic persecution' by any other group or groups.  The potential clan victims, it concluded, will vary from time to time as the alliances shift.  Consequently, it concluded in the passage in its reasons quoted above that neither the applicant personally or as a member of the Rahanwein clan had suffered 'a course of systematic conduct' aimed at them.

    Those reasons indicate, in our judgment, that the Tribunal used the expression 'systematic conduct' as requiring a course of conduct demonstrating over time a systematic or methodical attack upon members of the Rahanwein clan for reasons of that clan membership before it would be satisfied that the [applicant's] claim would be made out.  In the light of the decision in Hamad, we find that approach is erroneous.  The Tribunal should have determined whether the particular experiences of the [applicant] were caused by persecution for Convention reasons, and in the light of those findings it should have considered whether at the time of the determination of the application there was a real chance (as that term has been explained in Chan) of the [applicant] being persecuted by reason of his membership of the Rahanwein clan if he were to return to Somalia." (emphasis added)

    [60](1999) 94 FCR 259 at 266 [25]-[26].

    [61](1999) 94 FCR 259 at 266-267 [27]-[28].

92. The phrase "systematic conduct" has its origins[62] in the ex tempore judgment of Wilcox J in Periannan Murugasu v Minister for Immigration and Ethnic Affairs[63]. In the course of considering a submission by the applicant for judicial review that the decision of the decision-maker was unreasonable in the sense in which that word is used in s 5(2)(g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), Wilcox J said[64]:

    "[T]he fear must be one of being 'persecuted', for a particular reason.  The word 'persecuted' suggests a course of systematic conduct aimed at an individual or at a group of people.  It is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances."

    [62]See Mohamed v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 234 at 240.

    [63]Unreported, Federal Court of Australia, 28 July 1987. 

    [64]Unreported, Federal Court of Australia, 28 July 1987 at 13.

93. His Honour noted[65]:

    "[I]t is not essential to the notion of persecution that the persecution be directed against the applicant as an individual.  In a case where a community is being systematically harassed to such a degree that the word persecution is apt, then I see no reason why an individual member of that community may not have a well-founded fear of being persecuted."

    These comments were made in a context in which there was "no question" that "there had been incidents of violence in Colombo affecting members of the Tamil community" of which the applicant was a member[66].  The decision-maker had found that the applicant was not a refugee in the Convention sense.  Wilcox J said that the evidence did not justify a conclusion that the decision-maker's decision was unreasonable[67].

    [65]Unreported, Federal Court of Australia, 28 July 1987 at 13.

    [66]Unreported, Federal Court of Australia, 28 July 1987 at 1, 12.

    [67]Unreported, Federal Court of Australia, 28 July 1987 at 14.

94. I also referred to the notion of "systematic conduct" in Chan v Minister for Immigration and Ethnic Affairs[68].  In the course of explaining that it is not necessary that the conduct complained of be against a person as an individual, I said that a person "may be 'persecuted' because he or she is a member of a group which is the subject of systematic harassment"[69].  I supported this proposition by reference to Murugasu.  In the course of explaining that it is not a necessary element of "persecution" that an individual be the victim of a series of acts, I said[70]:

    "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 a class, he or she is 'being persecuted' for the purposes of the Convention."

    [68](1989) 169 CLR 379.

    [69](1989) 169 CLR 379 at 429.

    [70](1989) 169 CLR 379 at 430.

95. The use of the term "systematic conduct" has proved unfortunate.  Tribunals[71] have read it as meaning that there can be no persecution for the purpose of the Convention unless there was a systematic course of conduct by the oppressor.  That was not what I meant by using that expression in Chan.  I used it as a synonym for non-random, and I think that in Murugasu Wilcox J intended to use it in the same way. 

    [71]See eg Abdalla v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 11 at 20; Minister for Immigration and Multicultural Affairs v Hamad (1999) 87 FCR 294.

    Recent consideration of "systematic conduct"

96. Several cases have subsequently referred to these statements of Wilcox J and myself.  In Mohamed v Minister for Immigration and Multicultural Affairs[72], Hill J said[73]:

    "As will be seen, the word 'systematic' has found its way into case law on refugee status.  The present case displays the difficulty of taking language used in the context of a particular case by a judge and treating that language as itself a test and as a substitute for the statutory test."

    [72](1998) 83 FCR 234.

    [73](1998) 83 FCR 234 at 239.

97. In relation to my comments in Chan, Hill J said[74]:

    "It is evident from the passage above cited that his Honour was not suggesting that there needed to be a series of systematic acts against an individual before it could be said that that individual had a 'well founded fear' of persecution.  So much appears from the observation made by McHugh J at 430 that a single act of oppression may suffice to show persecution and that it is not necessary that there be a series of acts.  Where the fear of persecution is in respect of an applicant's membership of a group, acts of systematic harassment against the group will show the fear to be well founded.  There need not be any particular act in fact perpetrated against the individual.  Where the fear of persecution is in respect of an individual's political or religious beliefs the resolution of the question whether the fear is well founded will be assisted if it is shown that a course of systematic conduct has been actuated against that individual.  But it is not a necessary prerequisite for success in an application.  Evidence that individuals with a similar belief suffered discrimination amounting to persecution would likewise justify the conclusion that the individual's fear was well founded even if the individual himself or herself suffers only an isolated act of persecution or none at all.  There is no requirement in law that, for an application for refugee status to succeed, the applicant must show a series of coordinated acts directed at him or her which can be said to be not isolated but systematic."

    [74](1998) 83 FCR 234 at 241.

98. In Abdalla v Minister for Immigration and Multicultural Affairs[75], the Full Court of the Federal Court held that the Tribunal in that case had erred in holding 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."[76]  Their Honours held that this requirement was "too widely expressed."[77]  In their Honours' view[78]:

    "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 a 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." (original emphasis)

    [75](1998) 51 ALD 11.

    [76](1998) 51 ALD 11 at 20 (original emphasis).

    [77](1998) 51 ALD 11 at 20.

    [78](1998) 51 ALD 11 at 20.

    Meaning and legal status of "systematic conduct"

99. It is an error to suggest that the use of the expression "systematic conduct" in either Murugasu or Chan was intended to require, as a matter of law, that an applicant had to fear organised or methodical conduct, akin to the atrocities committed by the Nazis in the Second World War.  Selective harassment, which discriminates against a person for a Convention reason, is inherent in the notion of persecution.  Unsystematic or random acts are non-selective.  It is therefore not a prerequisite to obtaining refugee status that a person fears being persecuted on a number of occasions or "must show a series of coordinated acts directed at him or her which can be said to be not isolated but systematic."[79]  The fear of a single act of harm done for a Convention reason will satisfy the Convention definition of persecution[80] if it is so oppressive that the individual cannot be expected to tolerate it so that refusal to return to the country of the applicant's nationality is the understandable choice of that person.

    [79]Mohamedv Minister for Immigration and Multicultural Affairs (1998) 83 FCR 234 at 242.

    [80]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 430.

100. Given the misunderstanding that has arisen from using the term "systematic conduct", it is probably better to refrain from using it in a Convention context.  But if it is to be used, those who use it should make it clear that they are referring to "non-random" acts; otherwise, they run the risk of making a legal error.

     How did the Tribunal use the expressions "systematic conduct" and "unsystematic conduct"?

197. The Convention, which is rendered part of Australian law, must be construed according to its language but taking into account its international application to the wide variety of refugee situations that can arise throughout the world[220].  Only a proportion of "refugees", generically described, fall within the protection of the Convention as amended by the Protocol.  The language of those instruments falls short of affording protection to every victim of discrimination and abuse of human rights[221].  By the same token discrimination or abuse of human rights can often shade into persecution[222]. 

     [220]Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 251-256, 292-296.

     [221]R v Immigration Appeal Tribunal; Ex parte Shah [1999] 2 AC 629 at 660 per Lord Millett.

     [222]Informed observers have noted that this interpretation is in line with modern views on international law, whereas the restrictive interpretation, with its focus on the original intent of the drafters, reflects doctrines that have been largely superseded by other developments in international law:  see Kälin, "Refugees and Civil Wars:  Only a Matter of Interpretation?", (1991) 3 International Journal of Refugee Law 435 at 448, 451.  In this respect the interpretation of international treaties follows a course similar to that observed in many countries in the interpretation of national constitutions.  See also Eastman v The Queen (2000) 74 ALJR 915 at 957-959 [240]-[245]; 172 ALR 39 at 96-98; cf (2000) 74 ALJR 915 at 938-941 [145]-[158] per McHugh J; 172 ALR 39 at 69-74.

198. I do not agree that, because of the historical context in which it was originally drafted, the Convention should be narrowly interpreted to meet only refugee problems of the kind and number envisaged at the time the Convention was adopted in 1951[223].  The ambit of the Convention has been significantly expanded by the Protocol.  The Preamble to the Convention makes specific reference to the Charter of the United Nations and the Universal Declaration of Human Rights, each of which "have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination"[224].  This Court should not narrowly confine the operation of the Convention language.  That language, unusually for its time, focussed attention on personalised criteria concerning individuals[225].  These criteria enlisted international attention precisely because the personal safety and basic human rights of individuals were seriously jeopardised.  Deliberately, refugee status under the Convention, as amended by the Protocol, is "an extremely malleable legal concept which can take on different meanings as required by the nature and scope of the dilemma prompting involuntary migration"[226].  It is a serious mistake to confine the operation of the Convention definition of "refugee" by reference to supposed exclusions of those who flee from civil war or civil conflict[227].  It is an even more serious mistake to impose upon the Convention definition of "refugee" Eurocentric ideas which are not, and never have been, a necessary part of the operation of the Convention[228]. 

     [223]Goodwin-Gill, "Judicial Reasoning and 'Social Group' after Islam and Shah", (1999) 11 International Journal of Refugee Law 537 at 541-542; Kälin, "Refugees and Civil Wars:  Only a Matter of Interpretation?", (1991) 3 International Journal of Refugee Law 435 at 447.

     [224]This point was made by Brennan CJ in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 231. See also Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 74 ALJR 775 at 782-783 [46]; 170 ALR 553 at 563-564 referring to R v Immigration Appeal Tribunal; Ex parte Shah [1997] Imm AR 145 at 153 and [1999] 2 AC 629 at 646.

     [225]Hathaway, "The Evolution of Refugee Status in International Law:  1920-1950", (1984) 33 International and Comparative Law Quarterly 348 at 379.

     [226]Hathaway, "The Evolution of Refugee Status in International Law:  1920-1950", (1984) 33 International and Comparative Law Quarterly 348 at 380.

     [227]Toal, "Applications for Political Asylum by Somali Nationals and the 1951 Convention relating to the Status of Refugees:  The Decision of the House of Lords in SSHD v Adan", (1998) 12 Immigration and Nationality Law and Practice 94 at 94-95.

     [228]Kälin, "Refugees and Civil Wars:  Only a Matter of Interpretation?", (1991) 3 International Journal of Refugee Law 435 at 445-446.

199. Given its contemporary ambit, the Convention is not limited to providing protection to persons similar to the republican refugees in the aftermath of the Spanish civil war.  The civil conflict in Somalia may in some ways be more confusing and apparently more irrational to the Western mind, have even more ancient origins and be less "systematic" in its execution than the Spanish conflict and others in Europe before and since.  But this does not matter if, in the particular case, the applicant for refugee status establishes "persecution" affecting him or her, or a group of which he or she is a member, for Convention reasons. 

200. The Tribunal, in all material respects, accepted that Mr Haji Ibrahim was a credible witness.  It was accepted that his clan and sub-clan were, for the purposes of the Convention definition, a "particular social group"[229].  That group preceded and existed independently of the suggested persecution of its members of which Mr Haji Ibrahim complained[230]. The kind of conduct directed at Mr Haji Ibrahim was such that it might qualify as "persecution". But it still had to run the gauntlet of the two control mechanisms which limited the protection afforded by the Convention and the Australian law which gives it local operation. These control mechanisms were not applied to the facts of Mr Haji Ibrahim's application as the law requires. This was because the Tribunal became diverted by the supposed category of civil war and civil conflict and by the supposed necessity of "systematic conduct" as a prerequisite to "persecution". Such a category does not exist, as such, as a class excluded from the protection of the Convention and the Act. Such "systematic conduct" is not a requirement of the Act. It was a mistake of law to apply these two supposed qualifications to shackle the operation of the Convention in Australian law.

     [229]A similar conclusion was accepted by Katz J.

     [230]Hathaway, "The Evolution of Refugee Status in International Law:  1920-1950", (1984) 33 International and Comparative Law Quarterly 348 at 380; Hathaway, The Law of Refugee Status (1991) at 92; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 242 per Dawson J cited in R v Immigration Appeal Tribunal; Ex parte Shah [1999] 2 AC 629 at 662.

201. The Tribunal was therefore rightly required by the Full Court to reconsider the application to the facts, as found, of the Convention definition; but freed from the erroneous presuppositions.  The outcome in the Tribunal might eventually be the same.  But it would then be a decision freed from a significant legal error in the understanding of the Convention as it applies to refugees who happen to be fleeing from a civil war or civil conflict.  As Professor Goodwin‑Gill observes[231]:

     "Too often, the existence of civil conflict is perceived by decision-makers as giving rise to situations of general insecurity that somehow exclude the possibility of persecution.  A closer look at the background to the conflict, however, and the ways in which it is fought, will often establish a link to the Convention."

     [231]Goodwin-Gill, The Refugee in International Law, 2nd ed (1996) at 75 (footnotes omitted).  This approach is not only that now adopted in relation to refugees from civil war and civil conflict in Canada following Salibian v Canada (Minister of Employment and Immigration) [1990] 3 FC 250.  It also appears to be the approach of the United States agency charged with such decisions:  see von Sternberg, "The Plight of the Non-Combatant in Civil War and the New Criteria for Refugee Status", (1997) 9 International Journal of Refugee Law 169 at 178-180 citing Matter of H, Interim Decision 3276 (United States Board of Immigration Appeals, 1996).

     Order

202. The appeal should be dismissed[232].

     [232]It was a term of the grant of special leave that the Minister pay the respondent's costs in this Court. See the reasons of Gummow J at [156].

203. HAYNE J.   I agree with Gummow J that, for the reasons he gives, the appeal to this Court should be allowed and the consequential orders which he proposes should be made.

204. The question for the Refugee Review Tribunal was whether the decision of a delegate to the Minister to refuse to grant a protection visa should be affirmed, varied or set aside[233].  Because that question depended upon whether the "applicant for the visa is a non‑citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol"[234] its answer depended upon the text of the Convention and the Protocol.  Judicial and academic discussion of the effect of the text of the Convention and the Protocol, either generally or in its application to particular cases, may be very informative.  It may illuminate what may otherwise have been obscure about how it should apply in the instant case.  Of course, judicial decisions in this area must be given their proper precedential status and effect.  But in the end, it is the text of the Convention and the Protocol which must be applied, and (subject to the requirements of precedent) commentaries upon that text must not be accorded a status which denies the primacy of the instruments themselves.  Especially is that so given that prior judicial decisions or other discussions about the operation of the Convention and the Protocol must be understood in their proper context.  Particular decisions necessarily focus upon the application to the case at hand of the criteria adopted in the instruments to define those to whom Australia has protection obligations.

     [233]Migration Act 1958 (Cth), s 415.

     [234]Migration Act, s 36(2).

205. Expressions like "civil war" or "differential operation" are not used in the Convention or the Protocol.  It would obviously be wrong to attempt to supplant the Convention criteria with criteria derived from some conception of civil war as an apt description of events in the country of nationality of the applicant for a protection visa.  And although the expression "differential operation" may evoke some elements of the concept of "persecution", it too cannot supplant the criteria adopted in the Convention.  Terms like "civil war" and "differential operation" may be useful in explaining why, in a particular set of circumstances, a conclusion is reached about whether a person has a well‑founded fear of persecution for a Convention reason but such expressions cannot, and must not, be taken to state any general principle the content of which differs from what is to be found in the Convention and the Protocol.

206. Not only may the use of such terms serve to distract attention from the relevant questions, their use will often carry with them unintended and inapposite shades of meaning.  Thus, in the present case, the use of the expression "civil war" to describe the course of events in Somalia may suggest a degree of coherent organisation of groups, each of which was unified in pursuit of some identified political objective relating to the government of a nation state ordinarily organised along lines similar to those of other long‑established nation states.  But, as the reasons of Gummow J reveal, that is an inaccurate and incomplete description of events in Somalia.

207. The use of a term like "civil war" in the present context is, for the reasons just stated, either inaccurate or apt to mislead.  But there is another, equally fundamental, objection to introducing such a concept into the debate in the present case.  Its use presupposes that the Refugee Review Tribunal can, and should, conduct some analysis of political and social history of the country from which the applicant for protection has come for the purpose of classifying those events in some way and then deriving conclusions from that classification.  No satisfactory analysis of that kind can be made by a tribunal in the position of the Refugee Review Tribunal.  Its making would require information which the Tribunal does not have and cannot obtain.  And even if all the relevant information were available, that information would require analysis taking time and skills which the Tribunal does not have.  Further, it must be recognised that the analysis of social and political behaviour is necessarily imperfect, its results inevitably are open to reasonable dispute, and all too often, because of the nature of the subject matter being examined, an analysis will reveal little or no objective fact, but much about the subjective views of the analyst.

208. The Tribunal was not persuaded that the respondent in this matter had a well‑founded fear of persecution.  At first instance, Katz J rightly rejected the contention that the Tribunal's conclusion was attended by relevant error.  It is, then, as Gummow J points out, not necessary to consider in this case the more general questions presented by the analysis referred to by the English Court of Appeal in R v Secretary of State for the Home Department; Ex parte Adan[235], which seeks to distinguish between an "accountability" and a "protection" theory of interpretation of the Convention[236].

     [235][1999] 3 WLR 1274; [1999] 4 All ER 774.

     [236][1999] 3 WLR 1274 at 1288-1289; [1999] 4 All ER 774 at 787‑788.

209. CALLINAN J.   This is another case in which the Court has to determine whether an application for a protection visa was within Art 1A(2) of the Convention relating to the Status of Refugees[237] which applies in this country pursuant to s 36(2)[238] of the Migration Act 1958 (Cth) ("the Act") and Subclass 866 of Sched 2[239] of the Migration Regulations 1994 (Cth). The article relevantly provides that a person is a refugee 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".

     [237]Geneva, 28 July 1951.  As amended by the Protocol relating to the Status of Refugees, New York, 31 January 1967.

     [238]"36 Protection visas

     (1)   There is a class of visas to be known as protection visas.

     (2)A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol."

     [239]"Subclass 866    Protection

     …

     866.22     Criteria to be satisfied at time of decision

     866.221The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention." 

     Facts and Previous Proceedings

210. The respondent is a Somali national born on 1 July 1960.  He is a member of the Rahanwein clan and the Dabarre subclan.  He left Somalia in 1995 and travelled to Thailand where he lived until coming to Australia on 25 December 1997.  Other matters relevant to his personal circumstances are set out in the judgment of Gummow J.  He applied for a protection visa on 7 January 1998.

211. After rejection of that application by a delegate of the appellant, the respondent sought a review of the delegate's decision in the Refugee Review Tribunal.  The Tribunal affirmed the delegate's decision on 8 July 1998.

212. The respondent then sought to have the Tribunal's decision reviewed by the Federal Court.  Katz J who heard the respondent's application dismissed it on 15 October 1998.  The respondent then appealed to the Full Court of the Federal Court (O'Connor, Tamberlin and Mansfield JJ) which upheld the appeal on 9 April 1999.  It is against this decision that the appellant appeals to this Court on the following grounds:

     "1.       The Full Court of the Federal Court erred –

     (a)in holding that a person could invoke Australia's protection obligations under the Refugees Convention in circumstances where the serious harm feared in his country of nationality arose from a civil war where 'the reasons for the war are to harm on the basis of race or clan';

     (b)in formulating the test as depending on 'whether the reasons for the war are to harm on the basis of race or clan or whether the struggle is in substance directed to control of resources or to the assertion of dominance over territory', because –

     (i)       a clan-based civil war inevitably places individuals at risk of persecution on a Convention ground, namely race or membership of a particular social group; and

     (ii)it is not necessary that the Convention reason be the sole reason for the persecution.

     2.The Full Court erred in holding that the Tribunal had failed 'to address specifically whether the capture and retention of the appellant and his family were (as he asserted) driven by the intent to repress his particular clan' because:

     (i)       the very question identified was addressed by the Tribunal in a passage referred to by the Full Court in its judgment; and

     (ii)the Tribunal was not required by law to address that question.

     3.        The Full Court erred –

     (a)in holding that the Tribunal had erred in using the words 'systematic persecution' not in the sense of 'deliberate or premeditated or intended conduct' but in the sense of 'habitual behaviour according to a system';

     (b)in inferring that the Tribunal had used the phrase in this way, so as to preclude a finding of persecution where there was only an isolated incident, despite the fact that the Tribunal had expressly stated a contrary (and correct) understanding of the meaning of persecution; and

     (c)      in failing to hold that –

     (i)       the search for a course of conduct demonstrating that persecution was inflicted on a Convention ground was a legitimate, if not a necessary, approach to the Tribunal's task; and

     (ii)on any reasonable reading of the Tribunal's decision, it had 'determined whether the particular experiences of the appellant were caused by persecution for Convention reasons'."

213. In this Court the appellant advanced three main arguments:  that the Full Court erred in ascribing to Katz J a holding that in the circumstances the respondent's application must fail unless systematic persecution were established; that the Full Court erred in regarding the events in Somalia of which the respondent claimed to be a victim, namely conflict between clans and subclans over the control and exploitation of resources, as involving persecution for a Convention reason; and that the Full Court fell into further error in holding that Katz J should have decided whether the capture and detention of the respondent and his family by the Marehan clan were motivated by a desire to repress the Rahanwein clan of which the respondent was a member.

214. The lawless state of affairs in Somalia was hardly in dispute.  The Tribunal's description of them as being of "splits and shifting allegiances" of "instability, anarchy, and murderous shiftings" of "tragic turmoil" and as involving "[a] pattern of shifting allegiances both inter and intra clan" is apt, particularly so in light of the writings of an expert in these matters, Dr Said S Samatar, in his book Somalia:  a Nation in Turmoil[240] which was referred to by the Tribunal:

     "The law of lineage segmentation requires that political interest groups should be in a state of constant motion, expanding or contracting according to the stakes at hand.  The stakes may involve competition over grazing grounds for the herds, conflict over water-holes or, alternatively, struggle for the resources of the central state.  …

     Therefore the instability, anarchy and murderous shiftings [allegiances] witnessed today in the Somali scene are inherently endemic, deeply embedded as they are in the very warp and woof of the Somali world, both as individuals and as corporate socio-political units.  The splintering of the opposition movements to General Barre's rule into bewildering fragments – Somali National Movement, Somali Salvation Democratic Front, Somali Patriotic Front, United Somali Congress, Somali Democratic Alliance and a host of other Somali Somethings – reflect the schismatic nature of Somali society."

     [240](1991) at 25-26 (emphasis adopted).

215. It is against that background that the respondent's application, which was based substantially on his fear that the Marehan clan who, he said, had detained his family and him, had to be considered.  He also said that the Somali Patriotic Movement controlled by Omar Jess were bent on genocide of the Rahanwein clan to which the respondent belonged.

216. The role of the Federal Court in reviewing the decision of the Tribunal under s 476 of the Act[241] was a confined one and did not entitle the Court to undertake a review of the merits of the Tribunal's decision[242].  This is relevant to the third contention of the appellant with which it is now convenient to deal.

     [241]"Application for review

     (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)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

     (b)that the person who purported to make the decision did not have jurisdiction to make the decision;

     (c)that the decision was not authorised by this Act or the regulations;

     (d)that the decision was an improper exercise of the power conferred by this Act or the regulations;

     (e)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 by the person who made the decision, whether or not the error appears on the record of the decision;

     (f)that the decision was induced or affected by fraud or by actual bias;

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

     (2)The following are not grounds upon which an application may be made under subsection (1):

     (a)that a breach of the rules of natural justice occurred in connection with the making of the decision;

     (b)that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.

     (3)The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:

     (a)an exercise of a power for a purpose other than a purpose for which the power is conferred; and

     (b)an exercise of a personal discretionary power at the direction or behest of another person; and

     (c)an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

     but not as including a reference to:

     (d)taking an irrelevant consideration into account in the exercise of a power; or

     (e)failing to take a relevant consideration into account in the exercise of a power; or

     (f)            an exercise of a discretionary power in bad faith; or

     (g)any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c).

     (4)The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

     (a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

     (b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."

     [242]See Abebe v The Commonwealth (1999) 197 CLR 510 at 522 [18] per Gleeson CJ and McHugh J, 554 [114] per Gaudron J, 568-569 [157]-[160] per Gummow and Hayne JJ, 606 [284] per Callinan J.

217. The Full Court said that the Tribunal erred in failing to make an explicit finding why the Marehan had taken the respondent and his wife captive in 1991.  It was not sufficient, the Court said, for the Tribunal to find that members of other clans opposed to the Marehan at that time would also have been captured (if identified) while crossing Marehan territory:  if the respondent's clan was at that time "the subject of a persecutory focus"[243] then the fact that clan affiliations have changed between 1991, and the hearing and are constantly changing, did "not of itself exclude the motivation for that focus from being a Convention reason"[244].  If the motivation for mistreating the respondent and his wife in 1991 was a "Convention motivation" then that finding [245]:

     "would inform the Tribunal's consideration of the question whether at the time of the determination there was a real chance of the [respondent] being persecuted by reason of his membership of the Rahanwein clan if he were to return to Somalia."

     To fail to make a finding in this regard therefore, constituted, the Full Court held, an error of law[246].

     [243](1999) 94 FCR 259 at 265.

     [244](1999) 94 FCR 259 at 265.

     [245](1999) 94 FCR 259 at 266.

     [246](1999) 94 FCR 259 at 266.

218. That reasoning involves a misconception about the findings of the Tribunal.  In particular, the Tribunal found, in terms, that the harm that the respondent feared was not persecution by reason of his membership of either the Rahanwein clan, or of his subclan, of itself, but rather, unsystematic "warfare" because of "the instability, anarchy and murderous shiftings witnessed today in the Somali scene".

219. The Tribunal held that it was difficult to identify any clan which could be regarded as being the victim of targeted persecution by any other group or groups, or as being subject to a differential impact over and above the ordinary risks of clan warfare, or, as I would prefer, for reasons which will appear, clan conflict.

220. It is true that the Tribunal did say that the capture of the respondent and his wife and their subsequent maltreatment by the forces of another clan would have been the same if they had identified themselves as members of other clans, again, depending upon the affiliations at the time.  But that is not to say that the Tribunal did not have regard to the respondent's membership of the Rahanwein clan and the possibility of persecution on that account.  The Tribunal's affirmative finding was that the respondent was the victim of unsystematic warfare resulting from instability, anarchy and murderous shiftings.  That finding was not a finding of a Convention reason. 

221. The Full Court also held that the Tribunal erred in construing the word "persecution" and by the inappropriate importation of "systematic" to qualify it.  The Full Court referred to some earlier decisions in the Federal Court[247] which had considered the significance of the words "systematic persecution".  It was said that the expression could be used in either of two senses:  of deliberate, premeditated, or intended conduct, of acting or carrying out actions with a premeditated intent; or of habitual behaviour according to a regular or methodical system.  The Full Court held it was impermissible, and an error of law, to apply the expression as if it had the second of the two meanings.  This was their Honours' foundation for a conclusion that the Tribunal fell into error in holding that "unsystematic warfare without more is not persecution"[248].

     [247]Abdalla v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 11; Minister for Immigration and Multicultural Affairs v Hamad (1999) 87 FCR 294; Minister for Immigration and Multicultural Affairs v Abdi (1999) 87 FCR 280.

     [248](1999) 94 FCR 259 at 266.

222. In my opinion the Tribunal did not fall into error in this regard.  What the Tribunal did was to make a finding of fact that the turbulent and violent conditions which were prevailing in Somalia stemmed from instability, anarchy and murderous shiftings in clan allegiances, and not "Convention" persecution whether of a systematic kind or otherwise. 

223. The Tribunal did pay careful regard to the claims that were made by the respondent and the situation in Somalia.  Katz J held that it was not inappropriate for the Tribunal to introduce the word "systematic" as a qualifier of the word "persecution" if the former is used, as his Honour thought it was here, to distinguish between isolated instances of oppressive conduct and systematic attacks against the respondent or his social or other group.  Neither the Tribunal nor Katz J, in so holding, said or meant that persecution which was not systematic could not be persecution for a Convention reason.

224. In Adan v Secretary of State for the Home Department[249] the House of Lords considered the meaning of persecution for a Convention reason in the context of evidence before them of clan conflict in Somalia.  Lord Slynn of Hadley and Lord Lloyd of Berwick (with whom Lord Goff of Chieveley, Lord Nolan and Lord Hope of Craighead agreed) both made speeches in which they referred to a state of civil war in Somalia in circumstances in which law and order had broken down.  The same or similar expressions were used by the Tribunal and the Federal Court in this case.

     [249][1999] 1 AC 293.

225. Throughout the judgment of the Full Court in this case, their Honours referred to conditions in Somalia as conditions of "civil war"[250].  The use of these expressions in my respectful opinion involves a misdescription of what is occurring in Somalia.  Maraudings by clan chiefs in pursuit of territory and resources, ready to make and break allegiances at will, as frightening and dangerous as their conduct might be, does not have the character of a civil war which would usually have a clearly defined object and clearly defined sides.  However, I do not suggest that the case should be decided on any narrow, semantic basis.  There is a real distinction between, on the one hand, the situation in Somalia, and, on the other, the circumstances which gave rise to the Convention, and the language which came to be used in it which was designed to deal with those circumstances, of which the Office of the United Nations High Commissioner for Human Rights has written[251]:

     "At its second session in the latter part of 1946, the General Assembly established the International Refugee Organization (IRO).  The Organization took over the tasks of the United Nations Relief and Rehabilitation Agency (UNRRA).  It received a temporary mandate to register, protect, resettle, and repatriate refugees.

     The refugees came from some 30 countries – mainly Eastern European.  From July 1947 to January 1952, the IRO helped to resettle over 1 million refugees in third countries, repatriated 73,000, and made arrangements for 410,000 who remained displaced in their home countries."

     [250](1999) 94 FCR 259 at 260, 264, 265, 266.

     [251]Office of the United Nations High Commissioner for Human Rights, Fact Sheet No 20, Human Rights and Refugees, (1993) at 4.

226. The authors of the Convention were conscious of what had become common knowledge throughout the world:  that, in the course of two totalitarian regimes and wars between those and others, numerous nation states had become absorbed in centralist hegemonies in which any form of political dissent was met with vicious reprisals.  Unlike in Somalia where law and order appear to have broken down, there had been, and was, in much of Europe, too much order and almost all of it oppressive.

227. It does not necessarily follow that in no circumstances of a breakdown in law and order, or of an absence of any clear definition of sides and objectives, persecution for a Convention reason, could not be found to have occurred.  Nor should it be assumed that even if there are defined sides and objectives such that events could aptly be described as involving a civil war, a person or persons fleeing from the country in which it is being fought, would or would not necessarily attract status as a refugee under the Convention.  These cases will fall to be decided on their facts as and when they arise for determination.  However, here, the Tribunal made findings based on the facts of the case which excluded the existence of such a reason, and because the Tribunal made those findings the second submission of the appellant must be accepted, that the Full Court erred in treating the events in Somalia as events of persecution of the respondent for a Convention reason.  In short, the findings the Tribunal made on this matter excluded the existence of a Convention-based reason based on the capture of the respondent and his family:

     "The circumstances of the capture when the [respondent] and his wife had identified themselves as Rahanwein therefore would have been the same if they had identified themselves as Abgal or Habr Gedir depending on the affiliations of the time.

     …

     I am unable to discern anything in the experiences of the [respondent], or his clan, the Rahanwein, or his sub-clan, the Dabarre, which could be regarded as part of a course of systematic conduct aimed at members of either group, including the [respondent], for reasons of their membership of the group."

228. This case does not raise a question of the kind considered by the Court of Appeal in R v Secretary of State for the Home Department; Ex parte Adan[252]:  whether the classes of cases in which a claimant might obtain refugee status under the Convention are confined to cases in which the persecution alleged can be attributed to the State, or to a quasi-State authority as German law requires[253].  Nor is it necessary here to decide whether refugee status will be available if the State in question is unable to provide protection against factions tolerated or encouraged within the State.

     [252][1999] 3 WLR 1274; [1999] 4 All ER 774.

     [253]Henkel, "Who is a Refugee? – refugees from civil war and other internal armed conflicts", in Asylum Law:  First International Judicial Conference, (1995) 17 at 20-21. 

229. I would allow the appeal and join in the orders proposed by Gummow J.

     
     

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