The High Court has set aside a Refugee Appeals Tribunal decision refusing an asylum appeal and directed that the case be reconsidered. The court found it was more likely than not that the Tribunal had not addressed whether Somalia’s civil conflict would have a differential impact on the applicant as a member of the Ashraf clan. It made no finding on whether he qualifies for refugee status.
The anonymised applicant, identified in the judgment as A. M. S. J., said he was from Somalia, was born in 1950 and belonged to the Ashraf, described as a minority clan. He claimed to fear persecution by the Hawiye Clan Militia. The Tribunal accepted that he was Ashraf, but dismissed his appeal in May 2008 after considering country information indicating that minority clans were no longer being targeted as before.
The High Court said the absence of targeted attacks did not by itself answer whether the applicant faced a greater risk because of his clan membership. It considered the legal test in light of the civil conflict and evidence in country reports about minority groups’ vulnerability, including difficulties obtaining protection, accessing medical care and fleeing fighting.
The respondents argued that the Tribunal had considered differential impact, pointing to its references to the applicant being caught in crossfire and whether he was disproportionately affected. The court said that language was consistent with the test having been considered, but other passages suggested the Tribunal may instead have treated the absence of targeting as decisive. After reviewing the decision and the material before the Tribunal, the judge remained uncertain whether the specific question had received detailed consideration.
The judicial review had been allowed to proceed on the single ground that the Tribunal Member failed to consider the possible differential impact of the civil war on the applicant as a minority-clan member. The High Court concluded that, on balance, the Member probably had not applied that test. It therefore held that the Tribunal decision could not stand and ordered reconsideration. The judge expressed no view on what conclusion should follow when the differential-impact issue is specifically considered.