1508759 (Refugee)

[2018] AATA 5007

1508759 (Refugee) [2018] AATA 5007 (16 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1508759

COUNTRY OF REFERENCE:                  Kenya

MEMBER:Denis Dragovic

DATE:16 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 October 2018 at 11:20am

CATCHWORDS

REFUGEE – protection visa – Kenya – political opinion – former Mungiki gang member – race – Kikuyu – threats from Mungiki gang for leaving – siphoning money – state protection – fear of arrest and torture – fear of killing – ethnic based violence – internal relocation – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Kenya, applied for the visa on 8 May 2014 and the delegate refused to grant the visa on 15 June 2015. The delegate determined the applicant to be a citizen of Kenya. Without any information to the contrary and having sighted the applicant’s Kenyan passport I accept that the applicant is Kenyan.

3. The delegate refused to grant the visa. He found that the applicant did face a real chance of serious harm but that relocation within Kenya was a reasonable option.

4. The applicant appeared before the Tribunal on 26 July 2018 to give evidence and present arguments.  

   RELEVANT LAW

5. 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.

   Refugee criterion

6. 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).

7. 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.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. 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).

17. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

19. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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

20. Summary of claims: The applicant is [an age] year old former stand over man who led a small cell within the well-known Mungiki gang in Nairobi. He was involved in violence including at arms’ length the death of others. During his tenure he siphoned money from the gang which he subsequently used to pay for his education in Australia. He fears returning to Kenya for fear of harm from Mungiki for having abandoned them and the possibility that they will discover that he had siphoned funds.

21. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Evidence and findings of fact

22. The applicant claims that he was associated with an outlawed gang called Mungiki since [year]. In [year] he became a leader of a small group of [Mungiki] members. Above him there was a level of leadership who would assign tasks. He would go to meetings when they were present along with others who he didn’t know. The meetings sometimes covered topics related to the entirety of Nairobi and other times just a local area. At these meetings he would receive instructions while at other times he would get instructions from emissaries of the top people who would also take the money he had collected. As a member of Mungiki during the 2002 elections he played a part in supporting the candidate, Uhuru, who the outgoing President, Moi, had endorsed. President Moi had brought in the Mungiki to campaign for Uhuru and to intimidate voters to support him against the ethnic Kikuyu candidate, Mwai Kibaki, who went on to win the election.

23. The applicant stated that he is from the Kikuyu tribe. He said that he has [specified family members]. [Specified siblings] are married and living in Nairobi; the other lives near their home. [Details of family members deleted.] His father lives in their family home. 

24. Prior to joining Mungiki the applicant worked for a [workplace] for five years and then was without a job for two years before picking up a new job working in the market for a few years. He then lost his job and became [an occupation] and then started [related duties]. Later he bought his own [equipment] and worked in Nairobi.

25. The applicant was married in 1999. He travelled to Australia in March 2006 on a [Student] visa. He was granted a further Student visa, the most recent of which ended [in] August 2011. He was granted a [further temporary] visa [in] August 2012, which expired [in] February 2014. He applied for a protection visa [in] February 2014. His studies while in Australia began with a [qualification] in [a field], graduating in 2006, followed by [specified qualifications].

26. He stated that to enforce the decisions of the Mungiki they would sometimes have to kidnap, beat up or even kill people. He explained that their method was to intimidate people. So Mungiki would set examples of what happens when ignoring them. They would first beat them up and if they didn’t acquiesce they would be killed. He acknowledged that he had instructed that people be dealt with. He said that the more aggressive you are the more fear you create. He explained that he had to maintain order and that sometimes this led to others taking actions that they interpreted to be what needed to be done and that other times when following through with maintaining orders conflict may escalate and someone could be killed.

27. He described two incidents that he was personally involved in. The first was when he was asked to collect a driver who refused to see the leader. The driver was beaten to an extent that he was hospitalised but according to the applicant was ‘okay’ afterwards. The other incident involved a confrontation at a bus station which led to smashed windscreens but no harm. He claims that he had never personally killed anyone.

28. According to the applicant the Moi government provided money, weapons and transport to help them carry out their work. He didn’t believe that it was legal. He would receive money from a Member of Parliament, who has since passed away in [year], by going to his house and picking it up in cash. This money was used to help move people around during the election. He would simply ask for money and he would get it without having to account for it. That’s how he was able to keep some for himself.

29. Following the 2002 election and a government crackdown on the Mungiki, the applicant was arrested in [year] and detained for three days, during which he was interviewed about Mungiki but was not charged with anything. His claims are supported by country information.[1] Fearing the reaction that leaders in Mungiki would have to news about his arrest, in particular that he may have become an informant, he fabricated a story saying that he was arrested because [details deleted]. At this stage the applicant began his plans to leave Kenya. He wanted to leave because he feared that the infighting in Mungiki would lead to his siphoning money being discovered and because the Minister for Internal Security at the time, whose relative had been killed by Mungiki, passed a shoot to kill order on any member of Mungiki, a claim supported by country information which he provided. He did not inform his then wife about why he wanted to leave or that he was a member of Mungiki.

    [1] [Deleted.]

30. In 2005 he was arrested again but this time they had evidence of him being associated him with Mungiki. He admitted it to the police and reached an agreement with them to allow him to continue to remain in the community, at a time when he was looking after his [relative] who was ill and subsequently passed away, on the condition that he provided inside information about Mungiki. But he didn’t. He instead provided false leads.

31. The applicant claims to have siphoned approximately [amount] Kenyan shillings from the funds given to the Mungiki during the 2002 elections. He claims to have brought the money to Australia and deposited it in [a named bank] (he provided [bank] statements showing $[amount] in his account in 2008). He said that he wasn’t sure if someone knew about the siphoning of money but it is a possibility. He used the money for living expenses and to pay for an education for himself in Australia, eventually completing a [higher qualification].

32. In 2006 he and his then wife travelled to Australia for the reason of his wife being accepted into further studies in Australia. The applicant claims that his ex-wife learned of his role with Mungiki in 2007. She then returned to Kenya initially saying that her intent was to return to collect the children and take them to Australia but then she came back without them and explained that she didn’t want to stay in Australia. She returned to Kenya three days later.

33. The applicant withheld applying for a protection visa because he claims that he believed he would have to quit his studies and that his migration agent provided alternative pathways to remain in Australia. As a result the applicant remained on a student visa, then in 2011 he applied for a [further temporary] visa but being unable to find work he went back to studies and a student visa, which allowed him to complete a [higher qualification] in 2012. It wasn’t until February 2014 that he submitted a valid protection visa application.

34. The applicant claimed to have applied for a Kenyan passport twice. He chose not to apply a third time because he was asked for further information by the Embassy to Nairobi. Correspondence was provided by the applicant dated [in] February 2014 from the Kenyan Embassy in Australia noting that the applicant had submitted an application for a passport and that it had been sent to Nairobi for processing, which usually took eight weeks. Subsequent correspondence dated [in] July 2014 submitted by the applicant states that the Kenyan Department of Immigration requested that he complete the application form again, include a copy of his birth certificate and national ID and to send it through to the Embassy. He told the Tribunal that he did. Further correspondence dated [in] March 2015 once again asked him to complete another form which was attached to the email from the Embassy. He did not complete this form nor pursue this further.

35. The reason he gave the Tribunal that he didn’t respond is that he had applied for his original passport through an agent and as such suspects that maybe it wasn’t legitimate and so he doesn’t have an actual passport file upon which he could apply for a renewal. I asked why he hadn’t called the Embassy to clarify. He said that he doesn’t know. He doesn’t think that it’s the government blocking him or someone from Mungiki in the government. I asked why he didn’t call Nairobi to check what the issue was. He responded that he didn’t know why he didn’t. The applicant has not pursued this matter in all of the possible ways to determine what the reason was for his trouble in accessing a passport. Based upon the information he has provided I find that his issues with accessing his passport are bureaucratic and not related to being known by, and of interest to, authorities or members of the Mungiki working within the government.

36. The applicant has a Kenyan ID card which is valid and has no expiry date.

37. The applicant said that his relatives know that he is living in Australia.

38. I accept the above narratives as fact unless where otherwise stated.

    Claim of fear of harm from Mungiki

39. Country information published in 2005 with information relevant to the time the applicant was an active member described the sect as:

    The sect has approximately two million members (Episcopal News Service 13 Feb. 2003; BBC 11 Feb. 2003; WEA RLC 24 June 2004) from the Kikuyu tribe (ibid.; People's Daily Online 7 Jan. 2003). Its Rift Valley coordinator claimed that approximately 40 per cent of Rift Valley inhabitants were Mungiki sympathizers (Le Monde diplomatique Jan. 2005, 21). According to the International Religious Freedom Report 2004, the exact number of cult members is unknown (15 Sept. 2004, Sec. II). However, corroborating sources indicated that the sect "draws a significant following from the unemployed and other marginalized segments of society" (ibid.; see also Le Monde diplomatique Jan. 2005, 20; Episcopal News Service 13 Feb. 2003; WEA RLC 24 June 2004; Religious Liberty Prayer Bulletin 30 June 2004). In its January 2005 issue, Le Monde diplomatique reported that the Mungiki cult was one of the most powerful militias operating among the 143 shanty towns surrounding the city of Nairobi, which 60 per cent of the population has crammed into, and where the sect has [translation] "privatized the law" and is enforcing [translation] "street justice" (20).[2]

    [2] Canada: Immigration and Refugee Board of Canada, Kenya: The Mungiki (Munguki) cult, including its organizational structure, its leaders, its criminal activities, and the state protection available to victims of this cult (June 2002-February 2005), 23 February 2005, KEN43322.FE, available at: 25 July 2018]

1. Current information is very mixed. A 2018 Bertelsmann Stiftung report noted that the Mungiki are ‘now divided and largely defunct.’[3] Another refers to them having rebranded under different names and groups.[4] A recent newspaper article from the Central region reports the government’s Central Region Coordinator announcing intelligence that there is a resurgence of activity by the Mungiki.[5]

   [3] "BTI 2018 Country Report Kenya", Bertelsmann Stiftung , 22 March 2018, CIS7B83941568

   [4] Akello Odenyo, ‘The rise of Mungiki: Politicians financing 116 criminal gangs’, SDE, April 2018, [accessed on 25 July 2018]

   [5] Miriam Musyoki, ‘Central Region Police Issue Alert on Return of Feared Mungiki Sect,’ Kenyans.co.ke, 16 March 2018, [accessed on 25 July 2018]

2. Regarding the government’s current stance towards former Mungiki members:

   In January 2017, Rigathi Gachagua, a former personal aide to President Kenyatta, was reported to have ‘pleaded with ex-Mungiki adherents to register as voters in the ongoing mass national listing’. He ‘said the former members of the criminal group are shying away from the exercise fearing that government agencies will use the data to trace them’, and that ‘followers of the outlawed group are afraid that security agencies will trace them over past crimes’. Mr Gachagua said that they were ‘reformed people and engage in active nation building activities like farming and boda boda. The notion that they will be traced and arrested by security agencies after registering is misleading’.[6] Kenya’s President Kenyatta subsequently ‘directed chiefs not to arrest reformed former Mungiki members seeking to collect identification cards’. He said ‘those who were in the banned Mungiki sect and have since reformed should be free to collect their documents’.[7]

   [6] >

   The applicant claims that people who have tried to leave Mungiki have been killed by beheading. Countering this view is research published in 2005 that ‘75% of the Mungiki followers had abandoned the movement’.[8] The applicant argued that Mungiki don’t leave. He acknowledged some examples being made public but only for public relations. He said that they have set up political parties and other associations but only as fronts.

   [8] Norway: Landinfo - Country of Origin Information Centre, Kenya: Mungiki - Abusers or abused?, 29 January 2010, available at: [accessed 25 July 2018]

3. I put to him that were the Mungiki after him in the years following his departure they would have gone to his relatives to ask where he is. He said that they don’t do that. When they started they used to force recruitment, then it changed to voluntary recruitment and a part of this change was that they didn’t involve families. Now he understands that they do follow up with family and put pressure on family. He persisted that they wouldn’t have done so because there was an unwritten agreement of keeping families away from it. I put to him that by leaving Mungiki the rules didn’t apply to him and so they wouldn’t have been bound by it. He confirmed that they haven’t approached any of his family. He suggested that they could have approached some of his friends, but he wouldn’t know as he doesn’t have any contact with them.

4. I note that the applicant has stated that they do involve the family now and yet his family has not been involved. I find that the applicant’s family would have been approached by the Mungiki if they were after him in the years following his departure from Kenya. This adds weight to the view that he is no longer on the radar of the Mungiki.

5. On the other hand the applicant can be described as a former mid-level leader within Mungiki who siphoned money from the organisation and then abandoned the group. I accept that this would have posed a real risk to him at the time of his departure from Kenya in 2006. But 12 years on the applicant has changed, the leaders have changed and the organisation has changed. Does the risk to the applicant remain a real chance of serious harm in the reasonably foreseeable future? I find that it does, despite there being no evidence of Mungiki following up with his family, for the reason that the applicant, were he to return to Nairobi, would inevitably cross paths with some of his former associates. Word would quickly travel that he was back and any lingering institutional memory, which may not have instigated action against his family to pursue him, would revive the question of his disappearance. They would know that he was detained by the police a year prior to his departure. It would be known, either through his ex-wife or from his new friends after his return that he had acquired [qualifications] while living in Australia. It would be known that Australia is an expensive place. Questions would be raised about how he managed to find the means to pay for his lifestyle. Question would be raised about the timing of his disappearance. While only possibilities, they are such that the outcome leads to what is described as a real chance, or as the courts have described one that is not remote or insubstantial or a far-fetched possibility. For this reason I accept that the applicant faces a real chance of serious harm in the reasonably foreseeable future if he is to return to Nairobi.

6. Country information regarding state protection is limited, with the following from 2013 on this matter summarised here:

   The senior researcher mentioned in the IRBC response also referred to there being, ‘at particular moments, a high level of collusion between politicians and the Mungiki, most often during elections’, while ‘Professor Maupeu noted that relations between the Mungiki and the government often change from cycles of collaboration (usually before elections) to police “persecution” (usually after elections)… However, the senior researcher stated that, given the dissipated nature of the Mungiki and their many factions, it is difficult to know how close the relations are between the government and the Mungiki’. There was also ‘difficulty in identifying and evaluating state protection available to victims of the Mungiki, given the “blurred lines” between the Mungiki, the police, and the government’. The senior researcher noted ‘that victims often do not trust authorities as many Mungiki members are part of the police, or Members of Parliament’, and ‘that protection from the police is given only when politicians give consent, and consent can depend on whether politicians need the Mungiki or are “clamping down on them”… Further, the senior researcher added that Kenyan police appear to be less willing to protect people if they are defectors from the Mungiki’.[9]

   [9] ‘Kenya: The Mungiki sect, including organizational structure, leadership, membership, recruitment and activities; the relationship between the government and sects, including protection offered to victims of devil worshippers and sects, such as the Mungiki (2010-October 2013)’, Immigration and Refugee Board of Canada, KEN104594.E, 15 November 2013, CXC28129413442 

7. Based upon this country information and evidence which I have accepted from the applicant noting collaboration between the Mungiki and the government, I find that the applicant would be unable to access effective state protection for the reason that country information suggests collaboration between some elements of the government and the Mungiki.

   Claim of fear of harm from the authorities

8. The applicant has stated that the only reason the police were after him before was because he was a member of Mungiki not because he was a criminal. I accept this. He fears that because he had provided incorrect information to them in order to buy time before he left for Australia that they will now try to find him and harm him as retribution.

9. Considering that the applicant was able to remain at large without being charged and convicted of any crimes before legally departing Kenya on a passport under his own name I find that the applicant was not wanted by authorities for reasons of having broken any crimes. I also find that his association with Mungiki being over 12 years old would make his knowledge of them obsolete and as such would not be of interest to them as an informant was he to return.

10. As for whether the police would be pursuing him for ‘duping’ them with false information, I note that he remained for a period of approximately a year after his arrest and before his departure to Australia. During this period he claims to have provided false information to the police. Yet at no stage during this period did they discover that it was false or if they did they did not act upon it. As they took no action then, I find that they would not 12 years later for reasons of the period of time that has passed.

11. I also note country information has indicated that the government responsible for the shoot to kill order has changed and the minister for that decision has since passed away. There is no information that there exists currently a shoot to kill order against members of Mungiki.

12. For these reasons I find that the applicant does not face a real chance of serious harm or a real risk of significant harm from authorities if he is to return to Kenya.

    Relocation

13. Having found that the applicant faces a real chance of serious harm in Nairobi I now turn my mind to considering relocation to other parts of Kenya.

14. The applicant claims that the Mungiki have an ability to harm people throughout Kenya. He said that the money he had, in Kenyan standards, made him rich and if relocating was safe he would have relocated then—a fact that I accept, but the test is a forward looking test, meaning, 12 years later, would he be able to relocate such that he does not face a well-founded fear of persecution.

15. I asked how anyone would find him if he moved to another area in Kenya. He said that the Mungiki work in the transport business and as such have a reach throughout Kenya. He added that the Kikuyu (his tribe) are everyone’s enemy as they are seen as oppressing other tribes. He noted that the 2007 campaign slogan by the opposition group was ‘42 against 1’ in reference to there being 42 other tribes. He described the 2007 post-election violence as being about flushing out the Kikuyu.

16. He admitted that the Mungiki didn’t have influence in the Luo area but that would create other problems for him as an ethnic Kikuyu. I put to him country information that says that Mungiki are influential only in limited areas of the Rift Valley, Central and Nairobi.[10] He said that he knows that they are influential everywhere because they control the transport business giving them reach everywhere. While I accept that Mungiki can travel everywhere it is a different question as to where they are influential or in numbers such that they could pose a risk to the applicant. For these reasons when considering relocation I consider areas outside of Nyanza (Luo area), Rift Valley, Central and Nairobi provinces (those remaining are Western, Coast, North Eastern and Eastern).

    [10] Kenya: KEN42841– Mungiki – Women – Female Genital Mutilation (FGM)

17. He acknowledged that other Kikuyu move around all parts of the country except the Luo area. He said that these people relocate and live by working on the land. He explained that there are tribes that co-exist alongside the Kikuyu but nevertheless, the Kikuyu are hated. I put to him that being hated doesn’t mean that they will face violence to which he responded that the 2007 post-election violence is an example of where the Kikuyu were flushed out. I put to him that by his own admission Kikuyu live throughout the country yet he claimed that he couldn’t, to which he then clarified that he could with ‘no problems’ except for those times ‘you can’t foretell such as 2007’. While I acknowledge that there are instances of ethnic based violence which the applicant could be swept up in, I find that the chance of such violence occurring and the applicant being harmed by it to be remote. As the applicant acknowledged and no evidence arises from the material available the Kikuyu can live and work without problems in other parts of the country. For this reason I find that the applicant would not face a real chance of serious harm for reasons of his tribe if he was to relocate from Nairobi to another part of Kenya other than Nyanza province (predominantly Luo tribe).

18. I explained to him that the question then became whether there is a real chance that he would be identified as an ex-Mungiki. I put to him that he worked with a small number of people 12 years ago, he has physically aged, they as an organisation and membership have changed over the years, and as such the chance wasn’t high. He responded that in the 2002 general election he was responsible for ferrying hundreds of people to election spots in Nairobi and as such he believes that he could be known to a lot of people. I put to him that he didn’t talk to people when he organised for their movement and that he simply drove them or coordinated their movement. He acknowledged that he isn’t necessarily known to them all but he said it was ‘a lot of people’. Considering that the time that he was most widely known was 16 years ago and even then it was to a limited group of people centred in a particular area of Nairobi including those he transported, those who worked for him and those he stood over/harmed, and considering that no one has approached his family pursuing him over this period I find that the applicant would not be identified by Mungiki networks was he to relocate outside of Nyanza, Rift Valley, Central and Nairobi provinces. For this reason I find that the applicant would not face a real chance of serious harm from the Mungiki if he was to relocate.

19. I have also considered other forms of harm that the applicant may face. I asked what type of work he could get in Kenya. He said that he hasn’t been there for such a long time that he isn’t sure. Job hunting in Kenya is different to how it is done here. He said that you need someone who can make introductions and get a job. He said that it would be difficult for someone of his age to find work. I acknowledge that the applicant is [age] years old and that job hunting is different in Kenya than in Australia. But considering that the applicant has stated that other Kikuyu migrate and the applicant has [qualifications] from Australia I find that the applicant would not face harm through the process of establishing himself economically in another part of Kenya.

20. I offered the applicant the opportunity to provide a post-hearing submission. Noting that he was not represented I summarised the case to date adding that I accepted his relationship with Mungiki and was focused on relocation and third country protection. With regards to relocation I recapped by stating that there are areas that Mungiki are not involved in, he could go to those areas, he has an education and is single and skilled and he could find work. The applicant responded immediately by explaining that he wouldn’t be able to find any new evidence and instead responded by reiterating what he had said before. No other reasons were given which he saw as preventing him from relocating.

21. Despite the applicant’s sordid past and having seemingly at the time acted without remorse, I found him now to be a credible witness. He was visibly anguished by his actions, he had tried to remedy them by seeking a new life, pursuing his ambition of becoming educated and holding a job. His time in Australia can be summarised as hard working, law abiding (police checks were provided) and aspiring for a better life. I accept the applicant’s genuine fear of being killed for his past wrongs at the time that he left Kenya. But it is the duty of the Tribunal to take a forward looking approach and consider whether such actions can be objectively grounded. In doing so I found that they were but not if he was to move to another part of Kenya. The remaining question then is whether it would be reasonable of the Tribunal to expect him to make such a move. I note that he is single, a member of the dominant tribe, highly educated and skilled. English is the national language in Kenya and he is proficient in it; as such the applicant would not face linguistic challenges. The regions that I identified he could relocate to are numerous and have direct international connections and as such would not need to transit through Nairobi (Moi International Airport).

22. I note that he has proven himself to be very resourceful both in Kenya and Australia. In Kenya he found work in various ways including establishing his own business. In Australia he pursued an education despite his age and found work in [an industry]. He applied and remained in Australia under a [temporary] Visa. A description of his resourcefulness would not be complete without mentioning his skills as a standover man in the Mungiki and his ability to siphon money without being caught.

23. I acknowledge that the applicant would not have family to whom he could go to, but nor did he have family living in Australia when he relocated. He established himself in a foreign country and has remained here for a dozen years. I find that he could similarly re-establish himself socially in his own country.

24. I acknowledge that the applicant would face a worsening economic situation both when compared to the situation he lives in in Australia as well as that which he had while living in Nairobi. But I do not accept that he would be unable to earn a living or find accommodation.

25. I have also considered the possibility of ethnic violence occurring as discussed at [57] but find that the likelihood of such an event happening in the location that he chooses to return to is so low that its influence in the consideration of reasonableness of relocation is minimal. Similarly when considering the fear of Mungiki I find that being in an area where they are not present would not infringe upon his actions in any way such as could influence the reasonableness of his relocation.

26. In considering these reasons collectively I find that relocating would be reasonable.

27. As such 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).

28. 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). As has been found above, the applicant does face a real risk of significant harm upon return to Nairobi. But was he to relocate I found that he would not face a real chance of serious harm and that it would be reasonable for him to do so. For the same reasons I find that it would be reasonable for him to relocate to other provinces within the receiving country of Kenya where there would not be a real risk that he would suffer significant harm as per s.36(2B)(b). As such the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

29. 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 criteria in s.36(2).

    DECISION

30. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Denis Dragovic
    Senior Member