1924119 (Refugee) - [2022] AATA 5058

1924119 (Refugee) [2022] AATA 5058 (8 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:1924119

COUNTRY OF REFERENCE: Kenya
MEMBER:Susan Hoffman
DATE:8 December 2022
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 08 December 2022 at 8:07am

CATCHWORDS

REFUGEE – protection visa – Kenya – Federal Circuit Court remittal – particular social group – former gang member – fear of gang revenge – fear of killing – police targeting gang members – orders to arrest – election violence – attack on family home – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5A, 5H, 5J – 5LA, 36, 65, 91, 411, 417, 429, 499
Migration Regulations 1994, Schedule 2

CASES

CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14
Daher v MIEA (1997) 77 FCR 107
MIMAC v SZRHU (2013) 215 FCR 35

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 dependants.

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 24 September 2013. The delegate refused to grant the visa on 4 December 2013 (the delegate’s decision).
3.The applicant sought review of the delegate’s decision with the Refugee Review Tribunal (RRT). The RRT decided on 14 July 2014 to affirm the delegate’s decision (the RRT decision).
4.The applicant’s case was referred for consideration of the exercise of the Minister’s discretion in accordance with s.417 which, if successful, could mean he could remain in Australia. According to a departmental file note dated [in] August 2014, it was found that the case did not satisfy the requirements for consideration of the exercise of the Minister’s discretion.
5.The applicant sought judicial review of the RRT decision, initially on seven grounds. In a decision dated 20 April 2017, the Federal Circuit Court (FCC) recorded that grounds 2 and 3 were not pressed and that grounds 1, 6 and 7 were not made out and did not establish jurisdictional error. With regard to grounds 4 and 5, Judge Lucev stated that the failure of the RRT, and of the parties to the judicial review process, to address the relevant provisions of the Kenyan Criminal Procedure Code (Kenyan CP Code) might necessitate further submissions. The proceedings were adjourned.[1]
[1] WZAUR v Minister for Immigration & ANOR [2017] FCCA 561
6.In a decision dated 16 August 2019, the FCC decided that grounds 4, 5, 8 and 9 were made out and established jurisdictional error on the…

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.

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Details

Case: [2022] AATA 5058
Decision Date: 8 December 2022

CaseChat Overview and Summary

The applicant, a former gang member from Kenya, sought review of a decision by the Minister to refuse to grant a protection visa. The matter had been remitted to the Federal Circuit Court by the Federal Court. The applicant claimed he feared persecution in Kenya due to his past association with a gang, specifically fearing revenge from the gang and targeting by the police who were arresting gang members. He also cited fears arising from election violence and an attack on his family home.

The court was required to determine whether the applicant had established that he would, if returned to Kenya, be a refugee within the meaning of section 5(1) of the *Migration Act 1958* (Cth). This involved assessing whether the applicant's fear of harm was well-founded and whether the harm feared constituted persecution for reasons of membership of a particular social group, namely former gang members, or for reasons of political opinion, or for other reasons that engaged Australia's protection obligations.

Her Honour Susan Hoffman affirmed the decision under review. The court found that the applicant's fear of harm from the gang was not well-founded, as there was insufficient evidence to establish that the gang would seek revenge against him. While acknowledging the risk of police targeting gang members, the court determined that this did not amount to persecution for reasons of membership of a particular social group or political opinion. The court also found that the general risk of election violence and the attack on his family home did not, in themselves, establish a well-founded fear of persecution for a Convention reason.

Orders