1819629 (Refugee) - [2019] AATA 5749

1819629 (Refugee) [2019] AATA 5749 (4 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1819629
COUNTRY OF REFERENCE:                   Kenya
MEMBER:Christine Cody
DATE:4 May 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 May 2019 at 5:09pm
CATCHWORDS
REFUGEE – protection visa – Kenya – member of same family unit – Kikuyu – Mungiki –imputed involvement with outlawed organisation – PTSD – risk of fallout from allegations of sexual assault – decision under review affirmed
LEGISLATION

Migration Act 1958 (Cth), ss 5AAA, 36, 65 116, 424, 501
Migration Regulations 1994 (Cth), Schedule 2
CASES
BZADA v MIC and RRT [2013] FCA 1062
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155
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 on 5 July 2018 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 on 14 August 2017. He lodged protection visa application forms, and a statement, which can be summarised as follows:
·     The applicant was born in [year] in Nairobi, Kenya and is now [age] years old. Both his parents were Kenyan citizens.
·     He speaks, reads and writes in Swahili and English, and he speaks and reads in Kikuyu. He does not need an interpreter.
·     He is a Christian.
·     He lived all of his life in Kasarani district of Nairobi, until November 2013.
·     He undertook his schooling in Kenya, including [various qualifications].His occupation is [Occupation 1]. In Kenya he worked for [Occupation 2], in charge of [various tasks].
·     He married [in] 2014 in Nairobi, having commenced a relationship [in late] 2013.
·     His parents, two brothers and one sister reside in Kenya. He communicates with his family in Kenya at least once a fortnight by text message or social media [platforms].
·     His passport was issued in 2007, expiring in 2017.
·     He applied for a visa for [Country 1] and in support of his application, he informed the [authorities] that he wanted to enter [Country 1] to research the tourism business model. He was granted a visa to [Country 1] allowing him to enter between [August] 2014 until [January] 2015. While in [Country 1], he worked as an [Occupation 1] for a [company][1].
·     He left from Nairobi, Kenya[2] [in early] 2015, arriving in Australia [in early] 2015 as a visitor.
·     From April 2015 until April…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1819629 (Refugee)

Details

AGLC: 1819629 (Refugee) [2019] AATA 5749
Case: [2019] AATA 5749
Decision Date: 4 May 2019

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a Kenyan national. The applicant claimed to fear persecution in Kenya due to his ethnicity, his alleged association with the Mungiki organisation, and a risk of harm stemming from allegations of sexual assault. The Administrative Appeals Tribunal was required to determine whether Australia owed the applicant protection obligations.

The Tribunal was tasked with assessing the credibility of the applicant's claims and determining whether he had discharged the onus of providing sufficient particulars and evidence to establish his case. Specifically, the Tribunal had to consider whether the applicant's fear of harm was well-founded and for a Convention reason, and whether he faced a real risk of significant harm for the purposes of complementary protection. The Tribunal also considered the applicant's failure to attend a hearing and the implications for its ability to test and examine his claims.

The Tribunal affirmed the delegate's decision, finding that the applicant had not satisfied the statutory criteria for a protection visa. The Tribunal accepted that the applicant was a Kenyan national and that Kenya was the appropriate country of reference. However, it found that the applicant had not provided sufficient evidence to establish his claims of persecution. The Tribunal did not accept that ethnic Kikuyu in Kenya faced an ongoing risk of serious harm, nor that the applicant had a profile with the Mungiki organisation that would place him at risk. The Tribunal also found inconsistencies in the applicant's account of his movements and his claims of being in hiding, particularly in light of his travel history and employment. Consequently, the Tribunal concluded that any risk of harm to the applicant was remote and speculative.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There was no non-disclosure certificate on the Departmental file.The Delegate’s decision record The delegate noted that the applicant had said he did not have a chance to access supporting documents, which would be taken into account, and had sought a postponement until after his trial which was not granted. The delegate considered country information and did not accept that Kikuyu in Kenya face an ongoing risk of serious harm due to their ethnicity. The delegate noted that country information indicated that large numbers of people were affected by the violence perpetrated after the 2007 elections and so was prepared to accept that the applicant was forced to flee for a period of time. However, the 2013 elections were largely peaceful and, although there was some violence, this was not ongoing. The delegate noted country information that a person called [Mr A] who was a [certain position] for the political wing of the Mungiki was killed in [late] 2009. It was also noted that there is no evidence of their relationship other than the applicant having stated that he was an [uncle]. The delegate referred to the concern that the applicant had claimed to have fled to [Country 1] after his uncle’s death but that on his own evidence he could not have done so. The delegate noted that the applicant said that this was a mistake and he was in hiding in Kenya for those five years, however, having regard to his application form (travelling to [Country 2] and [Country 3] for tourism and work in 2013 and 2014 prior to his travel to [Country 1], as well as his study at [a] University between [2010] and [2012], and then his work as an [Occupation 1] in [Nairobi] between January 2012 and February 2014), the delegate did not accept that he was in hiding for five years between the time of his claimed uncle’s death and leaving for [Country 1]. The delegate did not accept any of the explanations as to why the applicant remained in the country for five years given the claimed constant threat of death and his fears, including that the applicant received information from the Mungiki to help him avoid the Cobra Squad. The delegate did not accept that the applicant was in hiding nor that he had any contact with Mungiki nor that he received any threats nor that he would be considered a Mungiki defector. The delegate noted that the applicant was a member of the largest religion and the largest ethnicity in Kenya. The delegate found that the applicant had no previous profile with the Mungiki and found the chance that he would face harm is remote and speculative. The delegate noted that in the written claims the applicant said that his father, [brother] and he were warned by the local administration chief that they risked being killed by the government as they were members of the Mungiki gang; the delegate did not accept that the applicant had satisfactorily explained how his brother has not been killed by the Cobra squad. The delegate did not accept that the applicant had the profile claimed. The delegate noted that even if the father had moved to the [another country] this was a relatively recent occurrence and the delegate considered that as the applicant’s brother and other family members have resided in Kenya then this casts doubt over the applicant’s claims to fear harm in Kenya due to his ethnicity, religion and claimed familial links with the Mungiki.

Ratio Decidendi

Legal Principle Established

The Tribunal has considered the information put to the applicant and his written responses. He also provided country material. CONSIDERATION OF THE CLAIMS AND FINDINGSCountry of reference The applicant produced his passport to the Department, who accepted that he was a Kenyan citizen and national, and assessed his claims against Kenya. The Tribunal is prepared to accept, for the purposes of this decision, that the applicant is a national of Kenya, and that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purposes of his complementary protection claims, is Kenya. Credibility of claims The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70). In the circumstances where an applicant does not attend a hearing to which he is invited, the Tribunal also notes the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.