Summary of holding
The RRT erred in its legal approach to evaluating Hagi-Mohamed’s claim as a member of the Hawadle clan, and the appeal was allowed on this basis. The other grounds of appeal were not sustained. The matter was remitted to the RRT for determination in accordance with the law.
The Court made the following important points in its judgement:
- Fear of persecution based on protected ground must be considered before evaluating possibility of relocation. The RRT erred by sidestepping the question of whether Hagi-Mohamed was at risk of persecution by reason of his membership in the Hawadle clan and ‘jumping’ straight to a consideration of whether he could safely relocate to another region within Somalia (para. 11).
- Contemplation of internal relocation must be addressed in accordance with correct legal principles. The RRT erred by failing to consider whether Hagi-Mohamed would face any practical difficulties in gaining access to, or living in, one of these regions or whether it would be reasonable for him to return to them. The court reviewed Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 and found that
“…the existence of enclaves in which members of the Hawadle clan are not currently exposed to persecution would only operate to defeat the appellant’s claim if it were reasonable in all the circumstances for him to have recourse to those enclaves.” (para. 12).
- Hagi-Mohammed’s experience as a member of social group was too remote from that of other members of that group. The court agreed with the RRT in holding that Hagi-Mohamed’s experience as a member of the Geledi clan was found to be too remote to constitute a fear of persecution, as opposed to the experiences of Geledi clan members who were dispossessed of their land. Hagi-Mohamed was an economist and resident of Mogadishu; he was not a pastoralist whose land was taken in the distant region of Afgooye (para. 8).
- The denial of natural justice is not a reviewable ground under s. 476(2)(a) of the 1958 Migration Act. Although the government obtained an expert opinion about the likelihood of persecution of homosexual men in Somalia, and relied upon that opinion without making it available to Hagi-Mohamed, under the Act the court did not have jurisdiction to review this issue (para. 17).
Potential takeaways for future climate migration litigation
- Internal relocation. Climate-based migrants making claims for protection may face similar attempts by host governments to reject their claims based on a perceived ability to relocate internally. This decision rejects erroneous reasoning about internal relocation in assessing protection claims and highlights the importance of carefully evaluating the reasonableness of internal relocation.
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