1501362 (Refugee)

1501362 (Refugee) [2015] AATA 3229 (31 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1501362
COUNTRY OF REFERENCE:                  Kenya
MEMBER:Carolyn Wilson
DATE:31 July 2015
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 31 July 2015 at 10:26am

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Kenya applied for the visa [in] February 2013 and the delegate refused to grant the visa [in] September 2013.
The Tribunal, differently constituted, affirmed the decision of the delegate on 18 June 2014. The application was remitted to the Tribunal by consent order [in] January 2015 on the following basis: ‘The Second Respondent failed to consider country information being from the Kenyan Gender and Governance Programme’s report ‘Mungiki Terror on Unmarried Women Continues’ described in the Applicant’s post hearing submissions dated [in] February 2014. This information was material to the credibility of the Applicant’s claim to fear harm for being a member of a particular social group, namely women who had refused a demand of Mungiki member to marry.’
The applicant appeared before the Tribunal on 4 June 2015 to give evidence and present arguments.
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly 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 of 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.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant is a [age] year old woman from Kenya. She arrived in Australia in June 2009 as the holder of a Student visa. She returned to Kenya three times for holidays.
The applicant made the following claimed in her written application for the Protection visa:
·‘I was enrolled in a [a] College… from October 2004 to February 2005…During this period I befriended [Mr A] and he tried to date me but I was not up for it. We remained as friends until shortly before I had to leave Kenya for Australia in mid-2009 when we had to part ways.
·‘During my last visit to Kenya in 2012/2013 I met [Mr A] who asked me to marry him. As it is, I plainly declined the proposal…He clearly didn’t take it well as he said he would forcefully make me his wife with or without my consent.
·‘It wasn’t until late that he confessed to me about his membership with the Mungiki, a political religious group that is also criminal and has been banned in Kenya. It is after learning all these he told me that, I gave him my refusal. He kept insisting that I have to be with him and undertake the oath of the sect then go through female genital mutilation.
·‘I personally haven’t got any problem going back to Kenya…But my last visit there after coming into contact with [Mr A] has put some kind of unexplainable fear in me so much that I am afraid of ever visiting back….He personally did not threaten me with any harm or form of punishment but from his body language I could tell what he meant. This is what scares me now as I do not know exactly what it is he has to do with me or may intend to do….
·‘I highly believe there is a chance or two that I might be at harms way if he ever gets information that I am around the country after my refusal to marrying him. According to what I have seen happening to people who simply defected from the group or those who failed to join it…So many killings have taken place where body parts of the victims have been found in different locations’.
The delegate refused the application because they found the applicant to be unconvincing and inconsistent when interviewed about her claims. They did not accept [Mr A] was a violent criminal with an intention to harm her, noting he had never harmed her in the past and had not attempted to stop her from leaving Kenya for Australia. They did not accept the applicant faced a real chance of serious harm or real risk of significant harm from [Mr A].
The applicant applied to the Tribunal for review in October 2013. As part of that application she provided a statutory declaration providing more detail on her claims and responding to the delegate’s decision:
·She was customarily married to a [named man]. Although he was included as a secondary applicant in her first student visa, he did not come with her to Australia and they formally separated when she returned to Kenya in 2010.
·She returned to Kenya for holidays in April 2011, December 2011 and December 2012. She returned from her latest trip in February 2013.
·She first met [Mr A] around 2005 or 2006 when she would see him at the bus stop when she was going to college. They would talk and developed a casual friendship. He asked her to be in a relationship in around 2006 or 2007 but she refused. They continued to run into each other until she left Kenya in 2009 and he continued to ask her to be in a relationship.
·She did not see [Mr A] again until her last trip. It was late January or early February 2013 when she ran into [Mr A]. He demanded she marry him and became threatening when she refused. For the first time he revealed he was a leader in the Mungiki and said ‘no one says no to us’. She immediately feared for her life because of her knowledge of the Mungiki and their violent reputation.
·After this incident there was an attempted break-in by a gang at [a relative]’s house. She believes they were trying to look for her but they went to the wrong house. She felt she was no longer safe at her [relative]’s house and so moved in with a friend until departing for Australia.
·She did not tell her family about the incident with [Mr A].
The representative submitted the applicant feared persecution for reason of her membership of the following particular social groups:
·People who have refused the demands of Mungiki group members;
·People who have refused to join the Mungiki group
·Unwed women who have refused the marriage proposal of a Mungiki member
·Women who have refused the marriage proposal of a Mungiki member
·People who have been threatened by a Mungiki member.
The applicant provided a report from a psychologist [Ms B in] February 2014. [Ms B] assessed her as suffering from Post-Traumatic Stress Disorder, anxiety and depression. [Ms B] advised the applicant required urgent and regular treatment for her mental illness, including psychological and pharmacological intervention.
The first Tribunal, differently constituted, affirmed the delegate’s decision on the basis her claims were not credible and that they had been concocted for the purpose of the application.
The applicant sought judicial review in the Federal Circuit Court. As referred to above, the matter was remitted by consent from the Court on the basis the Tribunal had not considered a country report that was said to be material to the credibility of her claims,
On review the second time the applicant, although assisted by a registered migration agent, did not provide any pre-hearing submissions or further evidence and did not advise of any change in circumstance. However when the applicant presented at hearing it was obvious there had been a significant change in her circumstances, as she brought [a] baby with her. When questioned the applicant said she had married an Australian citizen in October 2014 and they had had a child together. When asked if she had applied for a Spouse visa she said she had not, as she still had her ongoing Protection visa application.
The applicant confirmed she has still not told anyone in Kenya about the alleged incident with [Mr A]. She said she did not want to put her family at risk, as they might try to do something. When asked if her family has had any contact or trouble with the Mungiki she said no, but the Mungiki are everywhere. The Tribunal raised with her the credibility findings of the previous Tribunal Member and asked if she wanted to comment on any of his findings. She said she had no comment to make. The applicant also said she did not have anything to add to what she has already provided to the Department and the previous Tribunal.
The Tribunal raised with the applicant the basis for the consent remittal, and noted it did not have a copy of the relevant report and had been unable to find it using the link provided by the representative in February 2014. The representative undertook to provide a copy of the report, and did so following the hearing.
The Tribunal asked the applicant if she had received counselling or other treatment for any mental illness. She said no, she is just depressed and stressed but she does not have a mental illness. The Tribunal put to the applicant that it would likely give little weight to the report she previously provided from a psychologist. The Tribunal put to the applicant that it was giving little weight to the report because she had only met with the psychologist once and the report was done on the assumption that the applicant provided accurate details of her past. The Tribunal also put to the applicant that as someone who worked in the [health industry], she should have understood the need for treatment. Her lack of treatment might indicate she did not have the mental illnesses that were claimed in the report.
The Tribunal invited the representative to make any oral submissions and similarly to the applicant he said he had no submissions to make. With both the applicant and her representative advising they had nothing to say or add to the matter, the Tribunal concluded the hearing after a relatively short time. However, following the hearing the representative provided written submissions addressing a number of issues. The Tribunal considered whether this indicated the applicant in fact had wanted to say more at the hearing but there was nothing in the written submissions requesting a further hearing and no post hearing statement or statutory declaration from the applicant with anything further to add.
The representative took issue with the Tribunal’s indication of the weight it would give to the report of [Ms B]. He submits [Ms B] is a fully qualified psychologist who is experienced in assessing clients who have experienced trauma. He submits her diagnoses and conclusions are well-founded, and that it is unreasonable to dismiss such a comprehensive report based on the frequency of the consultation. He submits [Ms B] expressly addressed the issue of credibility within the report and made. He submits her failure to obtain treatment could be explained by avoidance behaviour, which is a symptom of PTSD. He also submits financial problems were a barrier to obtaining treatment. He submits there is an abundance of evidence that people working in the health care industry do not seek help and indeed face barriers to obtaining help.
The Tribunal has considered the representative’s submissions, but still has concerns about the weight to be given to the report. The applicant met only once with [Ms B] to enable a report to be prepared. [Ms B] was not her treating psychologist. [Ms B] notes in the report she has proceeded on the basis the information given to her by the applicant was accurate. The applicant took no steps to obtain the treatment [Ms B] said was so urgently required. Whilst [Ms B] diagnosed her with serious mental health issues this has not prevented the applicant from continuing to work. The applicant mentioned feelings of depression and stress in the hearing, but the Tribunal has taken this to be a description of negative feelings and stressors in life, which no doubt would be exacerbated by her uncertain visa situation, rather than an admission she suffers from mental illness. In fact, the applicant told Tribunal she does not suffer from a mental illness. The Tribunal notes the applicant has medical training as a [occupation], and it notes the submission that people employed in the health care industry have high rates of mental health issues yet face barriers to accessing help. However the Tribunal does not accept her lack of interest in pursuing treatment and her denial that she has a mental illness are to be explained as typical behaviour of health care employees or as symptoms of avoidance due to her alleged mental illness. The Tribunal does not accept financial problems were a barrier to obtaining treatment, noting the applicant did not even seek advice or treatment such as anti-depressants from a General Practitioner. The applicant has engaged with medical care recently when having a child, which also would have been an opportunity for her to tell midwives or doctors of any mental health issues. The Tribunal finds the applicant has not sought treatment following the report of [Ms B] because the applicant does not believe that she requires it. The Tribunal would give more weight to a report prepared by a psychologist who had spent time working with an applicant rather than a one off appointment to prepare a report. The Tribunal considers the report was prepared merely to support the Protection visa application and gives it little weight as supporting or corroborative evidence.
The representative submitted the applicant was not provided with an interpreter at her interview with the delegate and therefore the credibility findings against her from that interview are fundamentally flawed. He acknowledges she did not want an interpreter at the hearing before the Tribunal, but this was because she realised her English was as good as the available accredited interpreters In Adelaide. The Tribunal’s observation of the applicant at hearing was that she does have a good level of English, and notes she has studied and worked in Australia since 2009 and that her partner is English speaking. However, the Tribunal does not feel it is in a position to judge the level of her English [in] August 2013 when she was interviewed by the delegate and therefore gives no weight to any inconsistencies arising from that interview.
The representative submits that apart from the concerns about the psychologist’s report, no further credibility concerns were raised with the applicant at the hearing. However, the Tribunal considers the applicant is on notice from both the delegate’s decision and the previous Tribunal decision that the credibility of her claims is squarely in question, and in fact, put this to the applicant at the hearing. When asked by the Tribunal to comment on the findings by the previous Tribunal about her credibility she said she had no comment to make.
The Tribunal, like the delegate and the previous Tribunal, has concerns about the credibility and plausibility of the applicant’s central claims. She claims that after having known [Mr A] since 2005, and after trying to date him and many past overtures from him to form a relationship, that on a random encounter in 2013 he told her he was with the Mungiki and he would force her to marry him. However, she told no-one in Kenya about this and there is no evidence he has come looking for her since that encounter. She has no other knowledge that he is even a member of the Mungiki, apart from an alleged threat when she refused to marry him.
There are significant inconsistencies in her account (not taking into account the delegate’s interview). In her original application she said they tried dating but she was not interested so they just remained friends. She said when he threatened her in 2013 he said she would have to take the oath to join the sect and would be forced to undergo FGM. She says he told her he was a member of the Mungiki. In her written statement provided to the Tribunal she presents [Mr A] as less of a friend and merely someone she would see at the bus stop. She makes no mention of them trying to date. Although she says they are from the same village she doesn’t’ even know his surname. She also makes no mention of him threatening her that she would be forced to take the sect’s oath or that she would have to undergo FGM. She also begins to describe [Mr A] as a leader in the Mungiki, whereas there was no mention of him claiming to be a leader in her description of the encounter in 2013 in her original application.
The applicant claims there was an attempted break-in by a gang at her [relative]’s house a few days after her chance meeting with [Mr A]. The applicant concluded it must have been the Mungiki looking for her but that they went to the wrong house. The Tribunal considers this is mere speculation. There is no evidence and indeed no claim, that [Mr A] or people associated with the Mungiki have ever tried looking for the applicant at her [relative]’s house or any other address she may be at. There is no evidence anyone in the applicant’s family has been approached by [Mr A] or the Mungiki. The Tribunal is not satisfied an attempted break-in at the [relative]’s house had anything to do with [Mr A] looking for the applicant.

The Tribunal has considered the Kenyan Gender and Governance Programme’s report ‘Mungiki Terror on Unmarried Women Continues’. The representative submits this supports the plausibility of the applicant’s claims as it is evidence of the way Mungiki members target single women. The women in the article were targeted in a different way to the applicant. They were identified by the Mungiki in their town as young professional working women who were unmarried and whom they were going to assign husbands to. The applicant’s claim is that [Mr A] has been interested in forming a relationship with her since 2005, yet took no steps to force her into a relationship until the alleged threat in 2013. The Tribunal is not persuaded that because some women in Kenya have been targeted and seriously harmed by the Mungiki because they refused to marry, that it necessarily follows that the applicant’s claims about [Mr A] are credible. The applicant’s claim is that a man she knew casually, who had never forced himself upon her before and who knew her to be in a customary marriage, demanded marriage when running into her by chance some 4 years or more after last seeing her. Such an opportunistic proposal is quite different from the calculated targeting detailed in the Kenyan Gender and Governance Programme’s report. Further, whilst accepting the Mungiki have targeted young professional single women in Kenya as described in the report, the applicant is in fact a married woman with a child. If she were to return to Kenya now she would not fit the demographic that is being targeted by the Mungiki in this way.
The Tribunal finds it inherently implausible that someone she had casually known since 2005 would wait so long and then make such a threatening proposal at a chance meeting in 2013. The Tribunal finds it significant that the applicant did not tell her family in Kenya about the incident and no-one in her family has ever had any contact with or received threats from [Mr A] or members of the Mungiki. The Tribunal considers there has been no contact from [Mr A] or the Mungiki because the event never happened. The Tribunal considers the inconsistencies noted above are further evidence the claim has been fabricated. The Tribunal finds the applicant will not be targeted for reason of her membership of one or more of the particular social groups identified by the representative, because the Tribunal does not accept she refused a marriage proposal from a Mungiki member, or has ever been threatened or targeted by them, or that she has ever been asked but refused to join the Mungiki.
On consideration of all the evidence before it, the Tribunal finds there is not a real chance the applicant would be targeted by [Mr A] or the Mungiki should she return to Kenya in the reasonably foreseeable future. The Tribunal finds the claimed fear of persecution should she be returned to Kenya is not well-founded.
Complementary protection
The applicant has claimed to fear significant harm in being forced to marry and join the Mungiki against her will, being forced to undergo FGM, or being physically harmed for refusing the marriage proposal. For the reasons given above, the Tribunal does not accept there is a real risk the applicant would be targeted for such harm by [Mr A] or members of the Mungiki if she returned to Kenya.
The Tribunal is not satisfied on the evidence before it that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Kenya, there is a real risk she will suffer significant harm. The Tribunal finds the applicant does not meet the criterion for complementary protection.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Carolyn Wilson
Member

[2015] AATA 3229

31 July 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction