The facts as submitted by the complainant
2.1
The complainant is a member of the Dabarre sub-clan of the Rahanwein clan. His uncle was a Minister for
Higher Education of the former Siad Barre regime. Upon the outbreak of clan violence in 1991, the complainant
and his family resided in Baidoa, largely populated by Rahanwein, but controlled by Siad Barre’s brother in law, a
member of the Marehan sub-clan of the Darod clan. According to the complainant, a competing sub-clan
destroyed the city, killing many, only for Rahanwein forces to return, followed by pillaging Marehan forces.
2.2
Following the destruction of the complainant’s house, Marehan forces detained the complainant and his
wife. Upon learning they were Rahanwein, they were taken prisoner and forced to work on local farms. The
complainant alleges that his wife was raped, but they escaped in April 1992. After the death of his brother at the
hands of the forces of a militia warlord, Hussain Aideed, of the Hawiye clan, the complainant and his wife reached
an area where some of his Dabarre sub-clan lived and where he left his family. He departed the area as Aideed
forces had killed many relatives. In November 1992, close to the national border, the complainant heard that his
Dabarre sub-clan had been attacked by another sub-clan of the Rahanwein. In December 1994, he heard that his
uncle, the former Barre Minister, had died at the hands of Aideed forces.
2.3
On 25 December 1997, the complainant reached Sydney, Australia, via Thailand, without valid
documentation. From that point he has remained in immigration detention. On 2 January 1998, the complainant
applied for a “protection visa” (refugee status) and was granted legal representation. He claimed to fear treatment
amounting to persecution in Somalia (torture or execution) on the basis of either his race, or alternatively on the
basis of his nationality, political opinion or membership of a particular social group due to his clan membership and
familial ties to a political figure of the former Barre government. On 15 January 1998, the complainant’s application
was refused.
2.4
On 8 July 1998, following a hearing with the complainant on 9 April 1998, the Refugee Review Tribunal
(RRT) refused his application for review of the first instance decision. The RRT found the complainant to be
credible and accepted his account of his clan’s and sub-clan’s experiences. However, it found that the human rights
violations he feared were not ‘persecution’ within the meaning of the 1951 Convention relating to the Status of
Refugees, since he was, instead, a victim of civil war.
2.5
On 15 October 1998, the Federal Court of Australia dismissed the complainant’s application for review of
the RRT’s decision. On 9 April 1999, the Full Federal Court upheld the complainant’s appeal against the Federal
Court decision. On 26 October 2000 a majority of the High Court upheld an appeal by the Minister of Immigration
and Multicultural Affairs against the decision of the Full Federal Court, and affirmed the RRT’s decision.
2.6
On 30 November 2000 and 2 February 2001, the Department of Immigration and Multicultural Affairs
rejected applications for a discretionary Ministerial waiver under the Migration Act of the RRT decision.
The complaint
3.1
The complainant contends that there are substantial grounds to believe that he will be subjected to torture
if returned to Somalia, placing the State party in breach of its obligations under article 3 of the Convention. He
states that there is no safe place for him in Somalia, as Mogadishu airport and Baidoa are controlled by Aideed’s
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