1929727 (Refugee) - [2024] AATA 1106

1929727 (Refugee) [2024] AATA 1106 (31 January 2024)

DECISION RECORD

DIVISION: Migration & Refugee Division
CASE NUMBER: 1929727

COUNTRY OF REFERENCE: Kenya

MEMBER:  Karen Vernon
DATE:  31 January 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 January 2024 at 6:52pm

CATCHWORDS

REFUGEE – protection visa – Kenya – particular social group – victim of domestic violence – imputed political opinion – opposition to the Mungiki – threat of public circumcision – fear of physical assault – renewed hope in the political process in Kenya – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 56, 65, 423, 425, 499
Migration Regulations 1994, Schedule 2; r 1.12

CASES

Iyer v MIMA [2000] FCA 1788
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559 at 596
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 35 ALD 1
Subramaniam v MIMA (1998) VG310 of 1997
Sun v MIBP [2016] FCAFC 52

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.

In accordance with s 431 of the Migration Act 1958 (Cth), the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant.

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 Home Affairs on 11 October 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (Act).

Visa and migration history

The applicant was born in Kenya in [specified year]. The applicant is not a citizen of any other country and does not have the right to enter or live in any country other than Kenya.
On 5 March 2015, the applicant was granted a 12 month [tourist] visa expiring on 5 March 2015. The applicant first travelled to Australia [in] March 2015 on a valid Kenyan passport. According to departmental movement records, the applicant:
a.departed Australia [in] June 2015;
b.arrived in Australia [in] July 2015;
c.departed Australia [in] September 2015;
d.arrived in Australia [in] October 2015;
e.departed Australia [in] December 2015.
On 27 July 2016, the applicant was granted a [Student] visa expiring on 15 February 2018. She travelled to Australia [in] August 2016 on a valid Kenyan passport.
On 28 January 2018, the applicant applied for a [Work] visa, which was refused on 9 March 2018.
Following the refusal of her [work] visa, the applicant applied for a…

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 1929727 (Refugee)

Details

AGLC: 1929727 (Refugee) [2024] AATA 1106
Case: [2024] AATA 1106
Decision Date: 31 January 2024

CaseChat Overview and Summary

The applicant, a Kenyan national, sought review of a decision affirming the refusal of her protection visa application. The dispute centred on whether she held a well-founded fear of persecution based on her membership in a particular social group, imputed political opinion, or a real chance of suffering significant harm. The matter was heard by Karen Vernon.

The court was required to determine if the applicant's fear of returning to Kenya was well-founded. Specifically, the court had to consider whether she belonged to a particular social group, such as victims of domestic violence or those opposed to the Mungiki sect. Additionally, the court needed to assess whether she held an imputed political opinion due to her opposition to the Mungiki, and if she faced a real chance of public circumcision or other physical assault. The court also had to consider the impact of any perceived delay in her application and the current political climate in Kenya.

The court affirmed the decision under review, finding that the applicant had not established a well-founded fear of persecution. While acknowledging the applicant's account of domestic violence and her opposition to the Mungiki, the court found that these circumstances did not meet the threshold for protection. The court noted that the applicant's fear of public circumcision was not supported by evidence, and her fear of physical assault was not sufficiently particularised or linked to a protected ground. The court also considered that the applicant had delayed in making her protection claim and that there was renewed hope in the political process in Kenya, which diminished the likelihood of her facing persecution.

The court ordered that the application for review be dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I listened to the applicant’s interview with the Department on 4 September 2019. Her account of her protection claims was very similar to her evidence before the Tribunal.Evidence at the hearing The applicant gave evidence at the hearing which was generally consistent with her personal statement of June 2019. The applicant was born in Nairobi on [date] and raised in [District 1], Kiambu Province, Kenya. She is of Kikuyu and Bantu ethnicity, and of [denomination]. Her parents are both deceased. The applicant [has number] siblings. [Specified siblings] live in [District 1], and [a] brother lives in [Country 1]. Her siblings all have children of their own. The applicant continues to maintain contact with her siblings. The applicant completed her school education in [District 1] [between specified years]. In [year] she completed an [course] at [a named college]. The applicant worked in [industry 1] in Nairobi between [specified years]. She married in 1998 and had her first child, a daughter named [Daughter A] in [year]. The applicant divorced her first husband in 2003. [Daughter A] is now living in Australia with the applicant. After her divorce, the applicant returned to live in [District 1]. She took a job as an [occupation 1] at [Church 1], [District 1] in 2003. The applicant worked in the [Position 1’s] office where she did administrative and pastoral care duties. She established a church youth group for young people in the community. When school was in term, youth came on weekends, but in school holidays, they came 2 to 3 times a week. It started as a [group 1] for primary school children then it evolved into a youth group for older kids. According to the applicant, in 2003, many local children often did not go on to high school, mainly for financial reasons. Youth who didn’t go to school would hang around doing nothing, and some of them would get recruited by the Mungiki, who the applicant described as a gang within the Kikuyu ethnic group. The applicant claimed that Mungiki members do not openly say they are Mungiki, but everyone knows they are a part of this group. They collect protection money from shop owners. If they need someone threatened, they will use people from another village to do it. The applicant claimed the Mungiki do not want Kenyans being westernised or following western ways so they brainwash young people by giving them a cause to believe in, with promises that one day the Mungiki will be in power and they will all be rewarded as followers. They are involved in illegal activities such as drugs, crime and intimidation. Young people in Kenya who end up joining the Mungiki find they cannot leave the gang. The applicant married her second husband in 2011. Their child, a daughter named [Daughter B], was born in [year] and is now [age] years old. Up until late 2023, [Daughter B] was living in [District 1] with one of the applicant’s [siblings] whilst attending school. The applicant had been paying her [sibling] for [Daughter B’s] upkeep in Kenya. In late 2023, the applicant’s second husband removed [Daughter B] from the applicant’s [sibling’s] care and the applicant does not know where they are living.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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