2001388 (Refugee)

[2020] AATA 4529

2001388 (Refugee) [2020] AATA 4529 (16 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2001388

COUNTRY OF REFERENCE:                   Kenya

MEMBER:Dr Colin Huntly

DATE AND TIME OF

ORAL DECISION AND REASONS:         16 July 2020 at 2:17 pm (WA time)

DATE OF WRITTEN RECORD:                16 September 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the decision under review with the direction that the applicant satisfies s.36(2)(aa) of the Act.

Statement made on 16 September 2020 at 8:07am

CATCHWORDS
REFUGEE – protection visa – complementary protection – member of a particular social group – culturally accepted violence against girls and women – female genital mutilation – country information – practice illegal but widespread – no effective state protection – born and raised in Australia – father faces retribution from criminal gang – itinerant lifestyle and lack of support networks – cumulative effect of risk factors – parents and sibling’s separate application – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5J(1)(a), 5L, 5LA, 36(2)(a), (aa), (2A)
Migration Regulations 1994 (Cth), 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 dependants.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 January 2020 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).

2. At the hearing on 16 July 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons.

   STATEMENT OF DECISION AND REASONS

3. Attached to this statement is a corrected transcript of the oral decision with reasons delivered to the applicant’s guardians in person at the hearing.

   DECISION

4. The Tribunal remits the decision under review with the direction that the applicant satisfies s.36(2)(aa) of the Act.

   Dr Colin Huntly
   Member

   
   

   -Corrected Transcript-

   ORAL DECISION OF MEMBER DR HUNTLY  [1.55 PM]

   INTRODUCTION

5. MEMBER: The criteria for a protection visa are set out in s.36 of the Act and Sch.2 to the Migration Regulations 1994. An applicant must either be a person in respect of whom Australia has protection obligations under the refugee criteria or on complimentary protection grounds.

6. Where relevant, the Tribunal has taken into account the policy guidelines prepared by the Department of Home Affairs on refugee law and complimentary protection together with any DFAT country information in accordance with Ministerial Direction No.84.

7. The applicant has appeared before the Tribunal on three occasions.  Firstly, on 10 March 2020, then on 14 May 2020 and again on 16 July 2020 to give evidence and present arguments. 

8. Appearing on behalf of the applicant are the applicant’s mother and father.  The applicant was represented in this application by a registered migration agent.  All hearings were held in the English language.

   BACKGROUND

9. The applicant applied for the grant of a protection visa in the prescribed form, dated 1 February 2019.  The application was consequently refused by a delegate of the Minister in a decision dated 20 January 2020, a copy of which was provided to the Tribunal by the applicant with their application for review. The applicant applied to the Tribunal for a review of the decision of the delegate dated 20 January 2020.

10. With consent of all the parties, this protection visa refusal was considered in association with that of the applicant’s parents and sibling (matter number 1910870) by me as the Tribunal, constituted in both matters.

    IDENTITY

11. According to the applicant’s birth record she was born in Australia to Kenyan parents on [Date].  The available evidence satisfies me that the applicant is a citizen of Kenya and I so find.  Accordingly, the receiving country for the purposes of the refugee and complimentary protection assessment for this applicant is Kenya.

12. For reasons that will be discussed below, it is unnecessary to address the question of whether or not she has a right to enter and reside in a third country for the purposes of s.36(3) of the Act.

    PROCEEDINGS BEFORE THE TRIBUNAL

13. At the first hearing with the Tribunal and again today I stated what documents I have in my possession.  It was confirmed at this second hearing that I had all the relevant material before me. 

14. At both the first and second hearings, I read aloud the summary of the claims for protection relating to the applicant from p.2, Part 4, of the delegate’s record of decision.  This takes the form of three dot points, namely:

    ·     The applicant claims that she was born in Australia to Kenyan born parents and has not experienced any harm in Kenya.

    ·     The applicant claims that she will be a victim of violence against women and girls if she is forced to return to Kenya.

    ·     The applicant also claims that she will be a victim of violence because of her family background and because the tribe she belongs to culturally accepts violence against women.

15. I asked the applicant’s guardians at the first hearing if this was a fair and accurate summary of the applicant’s claims for protection and they advised me that it was. 

16. I asked if there was anything the applicant’s guardians would like to add to those claims and the applicant’s guardians said “No”.  I asked if the applicant’s guardians were happy for me to proceed on the basis of the information I had before me and they said “Yes”.

17. I have had an opportunity to interview the family unit at two hearings on three occasions and I have found the answers to my questions to be credible and straightforward.  I have also had the benefit of some useful, comprehensive and relevant submissions made on behalf of the applicant by the agent acting for the family unit.

18. It has been put to me (on the basis of country information surveyed in those submissions) that the applicant faces a significant chance of enforced female genital mutilation.  This is a practice which is estimated to have been inflicted on approximately one-fifth of women in Kenya, calculated on a lifetime basis.  While this practice is theoretically against the law, it is, nevertheless, culturally accepted and reasonably endemic.

19. I also note that, in evidence given by the applicant’s guardians that I find to be credible, the family unit are the subjects of a degree of tribal retribution associated with the extended family of the applicant’s father having been involved in [a] criminal gang on the basis that he objected to his enforced recruitment into that criminal gang.

20. To a significant extent, the precise level of threat faced by the applicant’s father has not been established to my satisfaction.  However, I do accept that there is every reason to believe that the extended family of the applicant’s father is connected to the [criminal gang] and that, according to country information, this criminal gang does have a network of influence throughout the country.

21. I also note that the applicant’s mother and father (and therefore the applicant herself) have a cultural tribal connection to [a] clan-group which is dispersed widely throughout Kenya.  Although the applicant’s family unit does identify as ethnically [Clan], they do not have extensive networks of support and association within that clan-based community.  Indeed, I accept the evidence of the family that they choose not to participate to any significant degree in the Kenyan community within Western Australian society, where they currently live.  This is reflective of the degree of antipathy between this family unit and their traditional network of support within Kenya.

22. As a result of the family’s dislocation within Kenya, I find that, should they return to Kenya, they would likely be required to adopt an itinerant lifestyle; maintain a low profile; and, not be able to access the usual networks of support and protection within that country that an ordinary Kenyan citizen would expect to enjoy as a framework of informal protection and support.

23. With respect to the applicant, I have had regard to the country information surveyed by the applicant’s representative in addition to having regard to DFAT information relating to Kenya.  It is worth noting that DFAT has not prepared a country information report for Kenya.  However, in the alternative I have referred to the United Kingdom Home Office country information sources for Kenya.  In particular the Country Background Note: Kenya (Ver 2.0), May 2020, particularly at section 12 ‘Women’; and, Country Policy and Information Note Kenya: Female genital mutilation (FGM) (Ver 1.0), July 2017 generally.

24. The assessment of a foreseeable risk of harm to an applicant is an imprecise, but necessary, task for a decision maker.  In assessing the prospective exposure faced by a given applicant to harm in Kenya on her return, I am required to consider the applicant’s various risk profiles individually. 

25. In the first instance, when I consider the well-founded fear of persecution requirement at s.5J(1)(a) of the Act, I find it unhelpful and (in this particular instance) unnecessarily limiting to constrain my consideration of the applicant’s global risk profile to the technical confines of refugee criteria.  Clearly, there are problems in assessing the applicant’s risk of harm (real or perceived) in Kenya under race, religion, nationality or political opinion.  What remains under this criterion is ‘particular social group’.  However, bearing in mind the inherent and immutable characteristics of the applicant for the purposes of the statutory test at s.5L of the Act, it is difficult to identify an appropriate particular social group that would adequately account for the cumulative risk profile that I have been asked to consider by the applicant’s representative.  Accordingly, for the purposes of this assessment, it is my finding that the applicant does not meet the requirements of s.36(2)(a) of the Act because the harm feared does not fall within the terms of s.5J of the Act.

26. As is appropriate in such cases, I have then proceeded to consider the alternative, ‘complimentary protection’, criteria at s.36(2)(aa) of the Act.  The test that I must apply here is whether or not there are substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Kenya now, or in the reasonably foreseeable future, that she faces a real risk of significant harm.  Significant harm is defined at s.36(2A) of the Act in a manner that implies a standard of particularly grievous harm.

27. In assessing the potential of this applicant to face a real risk of significant harm on return to Kenya now, or in the reasonably foreseeable future, I have to firstly consider the various relevant risks individually.  As is discussed in the submission of the applicant’s representative (attached to a letter dated 4 June 2020) at [6], her status as a young female family member of those associated with [the criminal gang]; ‘the cultural practices in raising children which takes responsibility from parents and places it more broadly in the hands of community leaders’; and, particular vulnerabilities due to the fact that they are born and raised in Australia, are relevant individual risk profiles.

28. Also, given the findings referred to above relating to the applicant’s parents and guardians who are separately applicants for protection, I must consider the effect on the risk profile of the applicant if she was returned to Kenya if the family unit is required to live an itinerant lifestyle.  This would mean that immediate supervision of the applicant by her parents would likely be placed under significant pressure, particularly in the immediate period following any return.

29. Individually, I find that the risks applicable to each aspect of the applicant’s various risk profiles do not reach a level which constitutes a real risk of significant harm.  However, when the cumulative effect of these particular vulnerabilities and risk profiles is considered, I find that cumulatively due to these vulnerabilities, the applicant would face a real risk of significant harm now and in the reasonably foreseeable future on return to Kenya as articulated in the submissions of the applicant’s representative.

30. Given this finding, I am satisfied that on return to Kenya the applicant faces a real risk of significant harm now or in the reasonably foreseeable future.  Accordingly, the applicant satisfies the criteria at s.36(2)(aa) of the Act.

31. In considering whether or not this applicant would have access to effective and durable State protection, I have regard to the submissions on this matter by the applicant’s representative and have also referred to the available country information discussed above.  As discussed above, country information suggests that tribal retribution is tolerated and condoned by the authorities in Kenya. 

32. I further find that, notwithstanding the formal legal position in Kenya relevant to FGM, the reality on the ground in that country is that tribal customary practices are tolerated and condoned in a manner that is not consistent with international standards of effective State Protection with respect to FGM.  I find, therefore, that effective and durable State protection for the purposes of s.5LA of the Act would not be available or accessible to the applicant now or in the reasonably foreseeable future if she was returned.

33. With respect to effective third country protection I find that the cultural practices that are feared with respect to the applicant in Kenya are also endemic to the countries near to Kenya to which the applicant’s family might reasonably have resort.  It follows that effective third country protection is not available or durable to the applicant, and I so find.

    DECISION

34. The Tribunal remits the decision under review with the direction that the applicant satisfies s.36(2)(aa) of the Act.

    END OF ORAL DECISION  [2.10 PM]