Federal Court of Australia

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1 [Home] [Databases] [WorldLII] [Search] [Feedback] Federal Court of Australia You are here: AustLII >> Databases >> Federal Court of Australia >> 2001 >> [2001] FCA 1222 [Database Search] [Name Search] [Recent Decisions] [Noteup] [Context] [No Context] [Help] Weheliye v Minister for Immigration & Multicultural Affairs [2001] FCA 1222 (31 August 2001) Last Updated: 31 August 2001 FEDERAL COURT OF AUSTRALIA Weheliye v Minister for Immigration & Multicultural Affairs [2001] FCA 1222 MIGRATION - appeal from decision of Refugee Review Tribunal - refusal to grant protection visa - error of law - whether young Somali women particular social group - whether Shari'a law against adultery law of general application - whether law applied and administered in Somalia in discriminatory manner. Migration Act 1958 (Cth): s 476(1)(e) Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 referred to Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293 considered Minister for Immigration and Multicultural Affairs v Cali [2000] FCA 1026 considered Z v Minister for Immigration and Multicultural Affairs [1998] FCA 1578; (1998) 90 FCR 51 applied Minister for Immigration and Multicultural Affairs v Darboy (unreported, Moore J, 6 August 1998) referred to Ram v Minister for Immigration and Ethnic Affairs [1995] FCA 1333; (1995) 57 FCR 565 referred to Minister for Immigration and Ethnic Affairs v Respondent A [1995] FCA 1305; (1995) 57 FCR 309 considered KHAALI HAASHIM WEHELIYE v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS V 370 of 2001 GOLDBERG J 1/17

2 31 AUGUST 2001 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 370 of 2001 BETWEEN: KHAALI HAASHIM WEHELIYE AND: Applicant MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: GOLDBERG J DATE OF ORDER: 31 AUGUST 2001 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The decision of the Refugee Review Tribunal on 14 May 2001 is set aside. 2. The applicant's application for review of the decision of the delegate of the respondent to refuse to grant the applicant a protection visa is remitted to the Refugee Review Tribunal, differently constituted, for determination according to law. 3. The respondent pay the applicant's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 370 of 2001 BETWEEN: KHAALI HAASHIM WEHELIYE AND: Applicant MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: GOLDBERG J DATE: 31 AUGUST 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT Introduction 1 The applicant has applied pursuant to Pt 8 of the Migration Act 1958 (Cth) ("the Act") for judicial review of the decision of the Refugee Review Tribunal ("the Tribunal") made on 14 May /17

3 affirming the decision of the delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"), on 28 February 2001 to refuse to grant the applicant a Subclass 866 (Protection) visa. 2 The applicant, a citizen of Somalia, arrived in Australia on 19 January She was interviewed by immigration officers at Melbourne Airport, but was not willing to tell them on which airline she had entered Australia or under what name. She had no passport or any documents confirming her identity and she was taken into immigration detention where she has been held since. On 30 January 2001, the applicant lodged an application for a Subclass 866 (Protection) visa with the Department of Immigration and Multicultural Affairs. The criteria for the grant of a Subclass 866 (Protection) visa are set out in Pt 866 of Sch 2 to the Migration Regulations 1994 ("the Regulations") and in s 36 of the Act. 3 A criterion for the grant of a protection visa is that, at the time of the decision to grant the visa, the Minister is satisfied that "the applicant is a person 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 ("the Convention"): cl of Sch 2 of the Regulations. Article 1A(2) of the Convention defines a refugee as any person who: "...owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself to the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." The applicant's claims Interview on entry into Australia 4 On arrival in Australia on 19 January 2001, the applicant was interviewed by immigration officers at the airport. She stated that her name was Khaali Haashim Weheliye and that she was born in Mogadishu on 1 October Immigration staff traced the applicant's movements into Melbourne as being under the name of Fatuma Mohamed Ahmed, using an Australian passport in that name and arriving on a flight from Bologna in Italy. 5 The applicant said that she left Somalia because her parents had forced her to marry a wealthy man because of the poverty in Somalia. She did not want to marry him and the marriage lasted only six months, during which time she continued to see another man who had been her boyfriend for two years. Her husband had found them in bed together and had taken them to the Islamic Court where they both had been sentenced to death by stoning. The applicant's boyfriend's brother and some friends helped them escape from the Court to the countryside where they met a friend who made arrangements to get her out of Somalia. Protection Visa Application 6 In her application for a protection visa, the applicant claimed that she was of Somali nationality and a Muslim from the Reer-Xama or Reer-Maanye ethnic group. She claimed protection under the Convention for reasons of the death penalty which had been imposed upon her by an Islamic Court for adultery. She had destroyed the false passport on which she was travelling while she was on the 3/17

4 plane. She claimed that all her family lived in Somalia and that she had lived in Mogadishu with her parents in the suburb of Abdiaziz. Her parents had pushed her into marrying a wealthy man who was about 60 years of age. She was told of the marriage the day before the ceremony. Her husband abused her and forced her to have sex with him. She had a boyfriend at the time of her marriage and they resumed their relationship after the marriage. 7 On or about 10 October 2000, her husband came home to find her in bed with her boyfriend. He called his bodyguard and driver. The couple's hands were tied and they were blindfolded. They were taken immediately to the Shari'a Court. Her husband, his bodyguard and the driver all swore that they had caught her in the act of adultery and she was sentenced to death by stoning and her boyfriend was sentenced to receive 100 lashes. The difference in the penalty was because she was married and he was not. 8 The applicant said that her boyfriend's brother helped her and her boyfriend escape. They were taken to a remote village were they found a mediator to help them leave Somalia. About three months later, the mediator returned and said that they were to leave the village that night and fly out of the country. However, only the applicant left the village with the mediator who accompanied her to Italy and kept her documents. After one week in Italy, she flew directly to Australia. The mediator went with her to the airport counter, gave the applicant her boarding pass, ticket and passport and told her to keep the passport in her bag and to go later to the plane's toilet and destroy it, which she did. The applicant claimed that after she arrived in Australia she was very confused and she did not remember what questions she was asked or what she answered. Department of Immigration interview 9 The applicant told the departmental officer that she was a member of the Reer Hamar clan, which was a small minority clan with no power. She said that she was married in May 2000 and repeated her claims in relation to her marriage problems. She was divorced at the same time as she was sentenced by the Court because her adultery dissolved her marriage. Her boyfriend was not allowed to accompany her overseas in case people recognised them. The applicant said that she had no residency rights in any other country but had passed through countries in transit on the way to Australia. The agent who helped her escape from Somalia told her that Italy did not give asylum to Somalis and that it was important that she be sent to another country and he gave her a forged passport. 10 In a submission made after the interview, the applicant's adviser re-stated the claims made by the applicant. It was submitted that the applicant was a member of a weak and powerless clan and that it was for that basic reason that she was forced into marriage. It was said that she faced persecution for reasons of her race. 11 It was submitted that the law which was applied to the applicant was not one of general application as the law and the penalty for adultery was not applied generally and indiscriminately. It was also argued that the applicant was a Muslim, but was not a believer in the Muslim faith, and so it could not be said that the imposition of the death penalty on her by a religious court was imposed because she had acted contrary to Shari'a law, but not contrary to her own religious beliefs. 12 The applicant's adviser submitted that the applicant was a member of a particular social group of "young Somali women" or "young Somali women without a male protector". He referred to Minister for Immigration and Multicultural Affairs v Cali [2000] FCA 1026, in which North J found at [45] that there was evidence upon which the Tribunal was entitled to rely in that case that women in Somalia were singled out as targets of sexual violence. 4/17

5 Tribunal Hearing 13 At the Tribunal hearing, the applicant stated that both her parents were members of the Reer Hamar clan which was a low caste minority clan based in Mogadishu and did not share in any power. The sub-clan to which she belonged was of the lowest category and there was no protection from the major clans, but there was sometimes protection from particular important figures. Her boyfriend was a member of the Reer Hamar clan, but her husband was Abgal. Her husband married her to have children. She said that legally it was her father's right to arrange her marriage. She knew adultery was against the law, but she did not believe in that law. 14 The Tribunal put to the applicant its doubts in respect of her account of the escape from the court and she said that her boyfriend's half-brother was a militia leader and that was why they were able to be released. The half-brother was from a major clan on the mother's side. The Tribunal also put to the applicant that it seemed implausible that her boyfriend's half brother would help her leave the country and not his own relative. She said that it was more difficult for her as her boyfriend only faced a whipping. She said that the cost of getting someone out of the country and arranging for false passports and air travel was not such a problem for a militia group as they took a lot of loot. The applicant stated that she had never had a Somali passport and did not know how the mediator obtained an Australian passport for her. The only time that she had the document in her hand was when she left Rome. She said that she did not stay in Italy, but was taken to a room and left there until her flight from Italy was ready. The agent had taken her by train to Bologna. When it was put to her again that the trip she was describing was one which would take a lot of funds, she repeated that it was money that came from her boyfriend's half brother and that it would have come from looting. 15 The applicant was asked again why her boyfriend's half brother would spend so much money on her and not on getting his close relative out. She said that her boyfriend was on the list to leave, but the agent had a female passport and so that was why she had come. She told the Tribunal that she did not know from what airport she left Somalia because she was not in a good state of health at the time. The plane had travelled first to Dubai and then to Italy. The applicant said that she could not live in some other area of Somalia as she would not be safe anywhere in the country. She was afraid that her former husband would try to get her because she had damaged his dignity, she was from a minority clan and he had paid money to her father. She had no brothers to protect her and her father was poor and old. Post Hearing Submission 16 The applicant made a post hearing submission of 23 April 2001 in which she repeated her claims. The applicant said that she could be found to be a refugee on the grounds of her fear of persecution for reasons of her membership of a particular social group. It was claimed that in Somalia there was no central government and no effective law and the risk to women was well documented. As a young woman in Somalia she could face persecution. She added her ethnicity or race as a basis for being a refugee given her membership of the Reer Hamar clan. 17 The submission responded to information put to the applicant at the hearing before the Tribunal that there were no recent reports of the use of harsh physical punishments by Shari'a courts. The applicant submitted that some regions had established local courts which depended on the predominant local clan and associated factions and that in Mogadishu the five Islamic courts that were aligned with subclans might not be administering harsh punishments but the militias associated with them did so. It was argued that as there was no national judicial system and no central government, there was no system of fair trials by an independent judiciary. The Shari'a courts in north Mogadishu had a reputation for contravening the norms of Shari'a law, such as the right to 5/17

6 counsel and witnesses. 18 It was argued that the applicant's evidence was that there were not three witnesses to her adultery, and that her husband was the only witness. The other people who gave evidence were employees of her former husband and they gave false testimony. The law was not applied generally but in a discriminatory manner. The Shari'a law discriminated against women, given that evidence from a woman was not worth as much as evidence from a man. Somalia was an overwhelmingly patriarchal society where women were systematically subordinated and laws were not applied uniformly across the country. The Tribunal's reasoning 19 The Tribunal set out relevant principles of law which applied to the applicant's claims and set out the applicant's claims and the evidence in relation to them. The Tribunal was not satisfied that the account given by the applicant of her circumstances in Somalia and her escape from Somalia were true. The Tribunal said (at 15): "The Applicant has consistently claimed that she was forced to flee Somalia because she was convicted by a religious court of adultery and was to be punished by stoning. This is not implausible in itself as on occasions Shari'a law and punishments are invoked; it is the details given by the Applicant and the aspects of her claim about which she has been consistently vague that have raised sufficient doubts about her situation for this Tribunal to be unwilling to accept her account as true." 20 The Tribunal found that the applicant gave false information in claiming that she had not spent time in any other country when in fact she had spent at least some days in Italy. The Tribunal found that her failure to mention her Italian stay was deliberate and not simply a failure of memory or understanding and that this was a deliberate attempt to ensure that she was not sent back to Italy. 21 The Tribunal was satisfied that the applicant could have sought protection in Italy as she gave evidence that she was there for some days. The Tribunal said that it had not investigated whether the applicant could now re-enter Italy as the question of protection in Italy was not central to the decision because it did not accept that the applicant was a Convention refugee vis-à-vis Somalia. 22 The Tribunal accepted that the applicant had a subjective fear of returning to Somalia, which was still subjected to random militia violence and was struggling to put a national government in place. The Tribunal then considered the applicant's claims that she feared persecution for reasons of her race/ethnicity, her religion and her membership of a particular social group. 23 The Tribunal accepted that the applicant entered into a marriage which was not of her own choosing, but it was not satisfied that the applicant's clan featured as a significant element in the marriage. The Tribunal was satisfied that the applicant and her family members had not suffered persecution for reasons of their clan affiliation and that this would not be a reason for persecution of the applicant now and in the forseeable future should she return to Somalia. 24 The Tribunal rejected the submission that the applicant could be regarded as having suffered persecution, or faced in the future a real chance of persecution, for reasons of her religion. The Tribunal said that the fact that she offended against the law of the religion to which she belonged, and laws of longstanding and of which she was well aware, did not make her a refugee for religious reasons. 25 The Tribunal then turned to the third Convention ground advanced by the applicant which was 6/17

7 that of membership of a particular social group. The Tribunal noted that this ground was "variously stated but included the terms young, Somali and woman". The applicant submitted that it was an act of persecution that she was forced into a marriage she did not want. The Tribunal accepted that she married at her family's behest and that her family benefited from this financially. The Tribunal said that if her husband abused her badly, then her unwillingness and his violence accumulated to a finding that she suffered persecution from and in that marriage. However, as that marriage was over and she was a divorced woman, she no longer had to accept abuse as part of that marriage. 26 The Tribunal questioned the credibility of the applicant's account. The Tribunal said that it was plausible that a young Somali woman was pushed into a marriage with an older, wealthy man, who had failed to have children by his other wives, and that a young woman had an affair with a man of her own age group. However, the Tribunal found the applicant's account less compelling when read in the light of her claims about her escape from the Shari'a court and from Somalia and her journey to Australia. The Tribunal reasoned (at 18 to 19): "The Applicant has consistently stated that she was pushed into a marriage with an older, wealthy man who abused her and that she resumed a relationship with a boyfriend and as a consequence was convicted of adultery. While, as stated in the previous paragraph, this is not an implausible scenario, the Applicant's account of its aftermath are unconvincing and are not accepted by the Tribunal.... The Tribunal has not had so much difficulty in accepting that she might have been caught in adultery. However, it finds her account of her rescue and escape from Somalia implausible." 27 The Tribunal was not satisfied that the applicant was rescued from a court house in Mogadishu, taken to a remote village, housed and fed for some weeks and then given all she needed to leave Somalia. The Tribunal concluded that it was not satisfied that the applicant had been an open and honest witness, but it noted that a lack of candour did not necessarily mean that the applicant was not a person in need of protection. 28 Accordingly, the Tribunal went on to assess whether the applicant met the Convention definition of refugee in terms of "her membership of a particular social group as a young Somali woman". The Tribunal concluded that punishment for adultery was not a Convention-based form of persecution. It found (at 21) that: "The law against adultery is one of general application in Somalia. While there might well be variations in its application, given the collapse of any national legal structure, this is not a hidden or haphazard law or one that relies on the existence of a national legal system for its enforcement." The Tribunal found that the court conviction was not an act of discrimination or persecution for a Convention reason against the applicant. The options open to her husband after finding her in bed with another man were to pretend it had not happened, to divorce her immediately without disclosing the reason or to publicise the reason by laying charges against her. It was his personal decision to lay charges against her and that the court acted on those charges could not be seen as in itself discriminatory. The Tribunal concluded that if the applicant's account was accepted, then she could face severe punishment if she returned to Somalia, but this punishment would not be for a Convention reason. 7/17

8 29 The Tribunal then considered the submission that, in any case, the applicant was a refugee simply by virtue of the fact of being a young Somali woman. The Tribunal reasoned (at 22): "The Federal Court has agreed that a young Somali woman might be part of a particular social group (MIMA v Cali [2000] FCA 1026 (3 August 2000) North J). That was in a matter of a single woman without male protection. The Tribunal is satisfied that the peculiar facts of this case are different. The Applicant is, she has claimed, a divorced woman who was protected by a militia leader. Also her father, even though elderly, is still alive so it cannot be said that she is a person without any males around her. The sexual violence the Applicant claimed had been perpetrated against her by her husband, from whom she is now divorced. She made no claim to have been a victim of such assaults in the past decade, a time known to have been particularly hard on women in Somalia. The Tribunal does not find that she is a member of a particular social group of young Somali women as that described in Cali. It also is not satisfied that a group can be made of `married Somali women' or `divorced Somali women' and applied to this particular case." 30 The Tribunal concluded that even if it accepted the applicant's primary claim, it was satisfied that she did not face a real chance of persecution for a Convention reason. The review 31 The applicant relied upon the following grounds of review: * The Tribunal fell into error of law as it misdescribed the particular social group to which the applicant belonged and incorrectly distinguished the decision in Minister for Immigration and Multicultural Affairs v Cali (supra) by limiting the particular social group of young Somali women to young Somali women without male protection. The applicant relied on s 476(1)(e) of the Act. The applicant submitted that the Tribunal considered the social group to which the applicant belonged to be that of "a single woman without male protection". It was said that the group was, rather, single young Somali women and that the issue of whether they were "without male protection" was not an element in the definition of the group but was directed to the issue whether the member of the group might suffer persecution in the future. Because the Tribunal mis-stated the definition of the group it did not address correctly the issue whether the fear of persecution of the applicant if she returned to Somalia was justified. * The Tribunal failed to interpret correctly and/or apply the test for determining whether the applicant had a well-founded fear of persecution on the grounds of her membership of a particular social group by misstating the effect and application of the principles regarding laws of general application in the circumstances of the case and in relation to the consequences of her adultery. The applicant relied on s 476(1)(e) of the Act. The applicant submitted that the Tribunal incorrectly defined what was a law of general application as it did not apply the principle that a law of general application was one applying throughout the whole of the country to the whole population. It was said that the Tribunal directed its attention to whether the law was applicable to the applicant, rather than to whether it was a law which applied, and was administered, throughout the whole country. The applicant placed particular emphasis on the Tribunal's finding (see par 28) that Somalia's national legal structure had collapsed and that the law under which the applicant was convicted was not a law that relied on the existence of a national legal system for its enforcement. 8/17

9 Did the Tribunal fail to apply the correct test in determining whether the applicant had a well founded fear of persecution as a member of a particular social group being young Somali women? 32 The applicant claimed that if she were returned to Somalia, she feared persecution as the sentence of stoning may be carried out and even if the sentence were not carried out, she feared persecution as a member of the social group of young Somali women. The applicant submitted that the Tribunal fell into error of law as it misdescribed the particular social group to which the applicant belonged and incorrectly distinguished the decision in Minister for Immigration and Multicultural Affairs v Cali (supra) by limiting the particular social group of young Somali women to young Somali women without male protection. Because the Tribunal erroneously found that she was not a member of that particular social group, it never addressed the question of whether she had a well founded fear of persecution by virtue of being a member of that social group. The applicant contended that the relevant social group was young Somali women and there was no additional requirement of absence of male protection. 33 The Minister submitted that the Tribunal did not identify or consider the social group as young Somali women without protection. The Minister said that the Tribunal referred to the group as young Somali women when setting out the applicant's claim and addressed that claim. The Minister contended that the Tribunal correctly referred to Cali in the context of defining a relevant social group, which in Cali was young Somali women, and then noted as a fact that the applicant in Cali was without male protection, whereas the applicant here had male protection. The Minister said that the Tribunal referred to Cali because the applicant stated in her submission that she was concerned because she was a young Somali woman without male protection. The Tribunal used Cali analogously in terms of the facts and did not misapply the definition of the relevant social group. 34 In Cali, North J found that the relevant social group was young Somali women and that the absence of male protection was not part of this definition, but was a factor that the Tribunal considered in determining whether the applicant in that case had a well founded fear of persecution. This is clear from the following passage at pars [37] to [38] of the decision: "... the Tribunal correctly determined the existence of the particular social group first and then separately considered the nature of the persecution feared. The particular social group found by the Tribunal was young Somali women. It was in assessing the likelihood of harm that the Tribunal looked to the absence of male protection. The absence of male protection was not an element which the Tribunal saw as defining the particular social group. The absence of male protection was a factor the Tribunal used as part of the measure of the degree of risk faced by this member of the group. Thus, this ground of challenge also fails." His Honour applied the well-settled principle that a particular social group is not defined by reference to the fear of persecution itself: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 242, 263; Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293 at 299; Islam v Secretary of State for the Home Department [1999] UKHL 20; [1999] 2 AC 629 at In Chen Shi Hai v Minister for Immigration and Multicultural Affairs (supra) the majority of the High Court (Gleeson CJ, Gaudron, Gummow and Hayne JJ) said at 299: "It was held in Applicant A that the `common thread' which links `persecuted', `for 9/17

10 reasons of' and `membership of a particular social group' in the Convention definition of `refugee' dictates that `a shared fear of persecution [is not] sufficient to constitute a particular social group'. To treat it as sufficient would be to ignore the several parts of the definition for, as McHugh J pointed out: `Allowing persecutory conduct of itself to define a particular social group would, in substance, permit the `particular social group' ground to take on the character of a safetynet. It would impermissibly weaken, if it did not destroy, the cumulative requirements of `fear of persecution', `for reasons of' and `membership of a particular social group' in the definition of `refugee'. It would also effectively make the other four grounds of persecution superfluous.' Based on that consideration, it was held in Applicant A that persons who opposed China's `one-child policy' and feared enforced sterilisation did not, on that account, constitute `a particular social group' for the purposes of the Convention." 36 The Tribunal initially identified and addressed the correct description of the particular social group of which the applicant claimed to be a member. It said (at 18): "The third Convention ground advanced by the Applicant was that of membership of a particular social group. This was variously stated but included the terms young, Somali and woman." It also said (at 21): "There remains the assessment as to whether she meets the Convention definition in terms of her membership of a particular social group as a young Somali woman." When the Tribunal came to reach its finding on this ground, it commenced its analysis by saying (at 22): "The Tribunal has considered the submission that, in any case, she is a refugee simply by virtue of the fact of being a young Somali woman." But then the Tribunal fell into error. It observed that in Cali the Court agreed that a young Somali woman might be part of a particular social group (see par 29). But the Tribunal wrongly distinguished the decision in Cali by saying "That was in a matter of a single woman without male protection". As North J made clear in the passage extracted at par 34 above, the particular social group was "young Somali women" and the absence of male protection was not an element in the definition of the particular social group. The element of absence of male protection, rather, went to the issue of the degree of risk faced by the particular member of the group. 37 The Tribunal then said that it was "satisfied that the peculiar facts of this case are different" and set out factors relating to why the applicant was not a single woman without male protection, including that she was a divorced woman who was protected by a militia leader and that as her father was still alive, it could not be said that she was a person without any males around her. 38 The Tribunal then concluded by stating its reasoning in relation to the applicant's claim to be a member of a particular social group, namely a young Somali woman, that it did not find that the applicant was a "member of a particular social group of young Somali women as that described in Cali". However, the Tribunal had earlier in the paragraph set out its understanding of Cali, namely that the particular social group there under consideration was "a single woman without male 10/17

11 protection". The reasoning of the Tribunal whereby it did not correctly identify the particular social group resulted in an error of law within s 476(1)(e) of the Act. It defined the group by reference to an element involved in the applicant's fear of persecution and the reason for that fear. In so doing, the Tribunal precluded itself from addressing the issue of the likelihood of harm to the applicant and the foundation for her fear of persecution because she was a member of that particular social group of young Somali women. The Tribunal did not, after addressing the issue whether the applicant was a member of a particular social group, go to the next stage and consider the issue of whether the applicant's claimed fear of persecution as a member of that social group was justified. 39 The Minister submitted that in the passage set out at par 29 above, after considering the issue of protection by the applicant's father, the Tribunal addressed other matters which would be comprehended by a class of young Somali women, namely the question of sexual violence. The Tribunal found that the applicant was now divorced from her husband whom she claimed had perpetrated sexual violence against her and that she made no claim to have been a victim of sexual assaults in the past decade. The Minister contended that there would have been no need for the Tribunal to discuss this matter if it had characterised the social group as young Somali women without male protection, and that this supported the inference that the Tribunal looked at the social group as young Somali women. 40 I reject this submission. The Tribunal's focus in the relevant passage was on whether the applicant would have male protection on her return to Somalia because of the male protection she had before she left Somalia. The Tribunal's analysis in this passage was in the context of whether the applicant was a member of a particular social group; it was not in the context of whether, being a member of the particular social group, she was likely to suffer persecution if she returned to Somalia. 41 The Minister contended, in the alternative, that even if the Tribunal had mischaracterised the relevant social group, the Tribunal found that the applicant would not have a real chance of persecution upon her return to Somalia, for any reason, including her membership of the relevant social group. I reject this submission because by misdescribing the social group, the Tribunal precluded itself from considering the causal link between the persecution feared by the applicant and the applicant's membership of the particular social group of young Somali women. The error of law contributed to the decision reached by the Tribunal: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 384. Did the Tribunal fail to interpret correctly or apply the test for determining whether the applicant had a well-founded fear of persecution by misstating the effect and application of the principles regarding laws of general application? 42 The applicant submitted that the Tribunal fell into error of law by failing to interpret correctly or apply the test for determining whether the applicant had a well-founded fear of persecution by misstating the effect and application of the principles regarding laws of general application. In dealing with the issue of persecution in the form of punishment by stoning to death on the basis of the applicant's membership of a particular social group, the Tribunal relied upon the existence of a law of general application to find that the applicant did not have a well founded fear of persecution in relation to the consequences of her adultery. The applicant submitted that in arriving at this conclusion, the Tribunal wrongly found that the punishment for adultery was a law of general application in Somalia, or alternatively, failed to appreciate that when it was applied in the process of reaching a conviction, it operated discriminatorily in the sense of the trial and sentencing process. 43 The applicant referred to the following passage in the Tribunal's reasons (at 21): 11/17

12 "The Tribunal has considered the decision of the Minister's delegate that punishment for adultery is not a Convention-based form of persecution. The Tribunal also has arrived at this conclusion The law against adultery is one of general application in Somalia. While there might well be variations in its application, given the collapse of any national legal structure, this is not a hidden or haphazard law or one that relies on the existence of a national legal system for its enforcement." The applicant submitted that if a law did not rely on the existence of a national legal system for its enforcement, it could not be a law of general application. It was said that the fact that the offence was well known to be an offence resulting in severe punishment and not hidden or haphazard did not make the law against adultery and the penalties for breaching it a law of general application. 44 The Minister submitted that the primary question for the Tribunal was an assessment of whether the motivation for the prosecution, conviction and sentencing of the applicant was selective or discriminatory for a Convention reason. The Minister contended that persecution implied an element of motivation for the infliction of harm which was linked to membership of a particular social group and was not attracted where harmful acts were done purely on an individual basis because of what the individual has done. It was said that in such circumstances the Convention reason of membership of a social group was not attached: Ram v Minister for Immigration and Ethnic Affairs [1995] FCA 1333; (1995) 57 FCR 565 at The Minister contended that the motivation for the prosecution, conviction and sentencing was not Convention based. The Tribunal found that the applicant was discovered with her boyfriend by her husband who had options which included to pretend that it had not happened, to divorce her immediately without disclosing the reason or to publicise the reason by laying charges against her. The Tribunal found that the prosecution of the applicant was the applicant's husband's personal choice, that once the Court was seised of the complaint, the Court was obliged to apply the law on adultery and the trial process did not disclose any Convention motivation for the conviction and sentencing. 46 In order for feared persecution to entitle a person who fears the persecution to be considered a refugee, the persecution must be discriminatory. In Ram v Minister for Immigration and Ethnic Affairs (supra) Burchett J said at 568: "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. Consistently with the use of the word `persecuted', the motivation envisaged by the definition (apart from race, religion, nationality and political opinion) is `membership of a particular social group'. If harmful acts are done purely on an individual basis, because of what the individual has done or may do or possesses, the application of the Convention is not attracted, so far as it depends upon `membership of a particular social group'. The link between the key word `persecuted' and the phrase descriptive of the position of the refugee, `membership of a particular social group', is provided by the words `for reasons of' - the membership of a particular social group must provide the reason. There is thus a common thread which links the expressions `persecuted', `for reasons of', and `membership of a particular social group'. That common thread is a motivation which is implicit in the very idea of persecution, is expressed in the phrase `for reasons of', and fastens upon the victim's membership of a particular social group. He is persecuted because he belongs to that 12/17

13 group." 47 The relevance of a person being punished under a law of general application is that it is said that although the punishment may be severe, it is not occurring for a discriminatory reason but, rather, because a person has broken a law of the land which applies to all the population. In Applicant A v Minister for Immigration and Ethnic Affairs (supra), McHugh J said (at 258): "Persecution for a Convention reason may take an infinite variety of forms from death or torture to the deprivation of opportunities to compete on equal terms with other members of the relevant society. Whether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct. It depends on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group. Ordinarily, the persecution will be manifested by a series of discriminatory acts directed at members of a race, religion, nationality or particular social group or at those who hold certain political opinions in a way that shows that, as a class, they are being selectively harassed. In some cases, however, the applicant may be the only person who is subjected to discriminatory conduct. Nevertheless, as long as the discrimination constitutes persecution and is inflicted for a Convention reason, the person will qualify as a refugee. Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution. Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group. Thus, a law providing for the detention of the members of a particular race engaged in a civil war may not amount to persecution even though that law affects only members of that race." The proposition that the enforcement of a law of general application does not necessarily result in persecution which is discriminatory was stated by the majority of the High Court (Gleeson CJ, Gaudron, Gummow and Hayne JJ) in Chen Shi Hai v Minister for Immigration and Multicultural Affairs (supra) at 301: "Laws or policies which target or apply only to a particular section of the population are not properly described as laws or policies of general application. Certainly, laws which target or impact adversely upon a particular class or group - for example, `black children', as distinct from children generally - cannot properly be described in that way. Further and notwithstanding what was said by Dawson J in Applicant A, the fact that laws are of general application is more directly relevant to the question of persecution than to the question whether a person is a member of a particular social group. In Applicant A, McHugh J pointed out that `[w]hether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct [but]...on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group. In that context, his Honour also pointed out that `enforcement of a generally applicable criminal law does not ordinarily constitute persecution.' That is because enforcement of a law of that kind does not ordinarily constitute discrimination." 13/17

14 This decision demonstrates that a law will not be a law of general application if it applies only to a particular section of the population. 48 Although it might be said that the decision to prosecute, convict and sentence the applicant was not discriminatory in the sense that the relevant law against adultery covered her circumstances, it was still necessary to determine whether that law applied throughout the country and to all the population in the sense that it was applied and enforced throughout the land in a non-discriminatory way. 49 The Minister submitted that Shari'a law was recognised in Somalia as a general law, that it was applied in a general, non-discriminatory fashion and was not a hidden or haphazard law, or one which relied on the existence of a national legal system for its enforcement. The Minister contended that the law against adultery was well known in Somalia and known to the applicant. The applicant knew that she was in breach of the law and it was a law that was applied in a general manner. The Minister said that the applicant in her submissions and evidence before the Tribunal claimed that adultery was part of the family law, family law was always dealt with by Shari'a law and that in Shari'a courts frequently there was no legal representation and under Shari'a law, women and men could be stoned if they committed adultery. The Minister referred to several references in the material before the Tribunal which indicated that executions did take place under Shari'a law, that the right to representation and to appeal did not exist in those areas which applied traditional and customary judicial practices or Shari'a law and that the trials were not fair, but were arbitrary and summary. 50 The applicant submitted that the law under which the applicant was punished was not a law of general application because it was not a law which applied throughout the whole of Somalia. The applicant referred to material before the Tribunal which demonstrated that there was no national judicial system functioning throughout the country. However, whether a law is a law of general application turns on identifying those members of the population to whom it applies and upon whom it is administered, rather than on its geographic applicability and the extent of its application throughout the country. 51 There are two aspects to a consideration of whether punishment under a law of general application may constitute persecution for a Convention reason because it is discriminatory. The first aspect is to determine whether the law is in fact of general application and is not a law which targets or applies only to a particular section or group of the population. The second aspect is to determine whether, if the law is of general application to the whole of the population, it is nevertheless applied and administered in a discriminatory manner. 52 This second level of consideration has been addressed in a number of authorities. In Z v Minister for Immigration and Multicultural Affairs [1998] FCA 1578; (1998) 90 FCR 51 Katz J accepted as correct the approach of Beaumont, Hill and Heerey JJ in Minister for Immigration and Ethnic Affairs v Respondent A [1995] FCA 1305; (1995) 57 FCR 309. Their Honours said at 319: "Since a person must establish well-founded fear of persecution for certain specified reasons in order to be a refugee within the meaning of the Convention, it follows that not all persons at risk of persecution are refugees. And that must be so even if the persecution is harsh and totally repugnant to the fundamental values of our society and the international community. For example, a country might have laws of general application which punish severely, perhaps even with the death penalty, conduct which would not be criminal at all in Australia. The enforcement of such laws would doubtless be persecution, but without more it would not be persecution for one of the reasons stated in the Convention. 14/17

15 The foregoing may seem a truism, but it needs to be kept firmly in mind because some of the reasoning in the authorities does disclose a tendency to argue that the more abhorrent the persecution is, the more likely it is that the targets of that persecution are members of a particular social group." 53 Katz J pointed out that the High Court affirmed on appeal the decision of the Full Federal Court in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 and that Dawson J, who with McHugh and Gummow JJ comprised the majority, cited this passage from the judgment of the Full Federal Court and approved it (at 245). Katz J noted that McHugh J took a somewhat different approach from that of Dawson J to the issue of the enforcement of a generally applicable criminal law and that Gummow J did not specifically refer to the question whether the enforcement of generally applicable criminal laws can involve either persecution for a Convention reason or persecution simpliciter. Katz J found nothing in the judgment of the majority of the High Court in Applicant A which compelled him to depart from the approach of Beaumont, Hill and Heerey JJ and he accepted that approach as correct. Katz J continued at 58: "I turn now to a discussion of the fact that Beaumont, Hill and Heerey JJ, in their approach to the question whether enforcement by a country of one of its prohibitory criminal laws of general application could involve persecution for a Convention reason, sounded a warning note. That warning note was that such enforcement would not, without more, involve persecution for a Convention reason. Their Honours did not identify those additional features which, in their view, would render enforcement by a country of one of its prohibitory criminal laws of general application persecution for a Convention reason. However, I infer that what they had in mind was either selective prosecutions under the relevant law, the criterion of selection of persons for prosecution being those persons' race, religion, nationality, membership of a particular social group or political opinion, or the imposition of punishments on persons convicted under the relevant law, such punishments being greater than they would otherwise have been by reason of the convicted persons' race, religion, nationality, membership of a particular social group or political opinion." Katz J concluded that the Tribunal had not been compelled on the material before it to find that the prosecution of the applicant on his return to Iran would be selective or that the punishment would be discriminatory. 54 In Minister for Immigration and Multicultural Affairs v Darboy (unreported, Moore J, 6 August 1998), Moore J set aside a decision of the Refugee Review Tribunal, in substance, because the Tribunal did not address the question whether a law of general application was applied in a discriminatory manner. 55 In Chen Shi Hai v Minister for Immigration and Multicultural Affairs (supra), the majority of the High Court recognised that the fact that a person was likely to suffer punishment under a law of general application was not the end of the inquiry. Their Honours said at 559: "To say that, ordinarily, a law of general application is not discriminatory is not to deny that general laws, which are apparently non-discriminatory, may impact differently on different people and, thus, operate discriminatorily. Nor is it to overlook the possibility that selective enforcement of a law of general application may result in discrimination. As a general rule, however, a law of general application is not discriminatory." 15/17