2004066 (Refugee) - [2023] AATA 4321

2004066 (Refugee) [2023] AATA 4321 (20 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2004066
COUNTRY OF REFERENCE:                   Kenya
MEMBER:Katherine Harvey
DATE:20 September 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 September 2023 at 2:28pm

CATCHWORDS
REFUGEE – protection visa – Kenya – encouraged people not to vote in the 2007 election – campaigned against political corruption – refused to vote for Kikuyu candidate – targeted in post-2007 election violence by fellow Kikuyu – claims of threats and attempt to kill applicant – third degree burns from attack – unable to relocate as his tribesmen cover a wide geographical area – health and mental health claims – Australian partner – new claims of sexual abuse – credibility issues – delay in protection application – changing, inconsistent and contradictory evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 411(1)(c), 423A, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
GLD18 v MHA [2020] FCAFC 2
MIAC v SZQRB (2013) 210 FCR 505
SZRSN v MIAC [2013] FCA 751
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 February 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age]-year-old man who claims to be a citizen of the Republic of Kenya (Kenya). He arrived in Australia on a TU-572 student visa [in] July 2016 and applied for a protection visa on 4 July 2019.
On 20 February 2020 a delegate of the Minister refused the applicant’s visa application.
The review application
On 27 February 2020 the applicant applied for a review of the delegate’s decision. He provided the Tribunal with a copy of the delegate’s decision. The Tribunal is satisfied that the decision is reviewable under s 411(1)(c) of the Act.
On 1 September 2022 the Tribunal wrote to the applicant advising that it had considered all of the material before it relating to the application but was unable to make a favourable decision on that information alone.
The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 7 October 2022 and to provide all documents he intended to rely upon to support his case by 30 September 2022.
On 4 October 2022 the Tribunal wrote to the applicant advising that it was yet to receive a response from him and asked him to advise if he would be attending the scheduled hearing and providing further evidence.
On 4 October 2022…

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 2004066 (Refugee)

Details

AGLC: 2004066 (Refugee) [2023] AATA 4321
Case: [2023] AATA 4321
Decision Date: 20 September 2023

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a Kenyan national. The applicant claimed to have been attacked and severely burnt in Kenya in December 2007 by a mob from his own Kikuyu tribe, following his refusal to vote for a Kikuyu candidate in the presidential election and his public campaigning against political corruption. He alleged that the attack resulted in his cousin's death and left him with third-degree burns, requiring extensive hospitalisation. The applicant also raised health and mental health claims, and later introduced new claims of sexual abuse.

The legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution for a refugee nexus reason, or if he was owed complementary protection, or if he was a member of the same family unit as a person who met these criteria. Central to the determination was the applicant's credibility, given significant inconsistencies between his evidence provided to the Department, his evidence to the Tribunal, and his oral testimony. Specifically, the Tribunal had to assess the veracity of his claim that he was attacked by members of his own tribe, which contradicted his initial statement to the Department that he was attacked by the Kalenjin tribe.

The Tribunal found the applicant to be neither a credible nor a reliable witness. It noted significant inconsistencies in his evidence and found his oral testimony to be shifting and unpersuasive. While accepting that the applicant had scarring consistent with being burnt, the Tribunal gave greater weight to his initial statement that he was attacked by the Kalenjin tribe, rather than his later explanation that he blamed the Kalenjin to protect his own tribe. The Tribunal did not accept the applicant's explanations for the change in his account, concluding that he had not established a well-founded fear of persecution or a real risk of significant harm upon return to Kenya.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa, finding that he did not satisfy the criteria under section 36(2) of the Migration Act 1958.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Tribunal did not find the applicant to be a credible and reliable witness and for the following reasons has concluded that the decision under review should be affirmed. In reaching this view, the Tribunal has had regard to the significant inconsistencies between the applicant’s evidence to the Tribunal, his evidence to the Department and his other evidence, as well as the shifting and unpersuasive nature of his oral evidence at the hearing. Background The applicant’s personal details are set out in his application for protection. He is [age] years old and was born in Nairobi City, Nairobi Province, Kenya. He claims that he speaks, reads and writes English, Swahili and Kikuyu, that he belongs to the Kikuyu tribe and is a Christian. He listed his occupation as [an occupation] and claimed to have been unemployed and receiving support from friends from September 2017. The applicant claimed that in Kenya he was a self-employed [person] from June 2009 until April 2014, when he went to [Country 1] and worked as [an occupation] for 20 months until December 2015. In Kenya he completed a Diploma [and] withdrew from a [another course]. In Australia, he withdrew from a TAFE Higher Diploma in [a third course] in December 2016. He claimed to have been detained in Adelaide Immigration Transit Accommodation and that charges of assault, theft and breach of bail were pending. He lodged his application for a protection visa from detention. In his application he provided details of his mother and [brother] who live in Kenya. At the hearing he claimed that his father had died in 1993.Country of reference The applicant claims he was born in Nairobi, Kenya and is a citizen of Kenya. He provided a copy of the biodata page from his Kenyan passport and a copy of his Republic of Kenya certificate of birth. The Tribunal is satisfied that the applicant is a citizen of Kenya and that Kenya is the receiving country for the purpose of s 36(2)(aa) of the Act. Assessment of claims and evidenceHas the applicant experienced harm? At the second hearing, the applicant showed that he has scarring on his torso, arms and [and another area] that is consistent with being burnt. He said that he also has scarring on his legs. The Tribunal accepts that the applicant has extensive scarring that is consistent with being burnt. At the hearing, the applicant claimed that he visited his cousin [in] the Rift Valley, to celebrate the Christmas holidays and New Year’s in December 2007. He said on [date] December he and his cousin were attacked at his cousin’s small bedsitter by a mob of people talking in his mother tongue, which is Kikuyu. He said people broke the windows and smashed the door and entered the house. Then they told the applicant and his cousin to sit down and started questioning them about not supporting the Kikuyu candidate in the Presidential election. He said that they hit them with iron rods then the organiser then told everyone to leave and smashed a bottle with a cloth sticking out the top that smelt of petrol and the applicant caught on fire. He said he ran outside and was trying to roll and people were kicking him and he lost consciousness. The applicant said that he woke up in hospital in Nairobi and heard that his cousin had died, and he spent 18 months in hospital recovering.

Evidence

Evidence Before The Court

The Tribunal is satisfied that the applicant is a citizen of Kenya and that Kenya is the receiving country for the purpose of s 36(2)(aa) of the Act. Assessment of claims and evidenceHas the applicant experienced harm? At the second hearing, the applicant showed that he has scarring on his torso, arms and [and another area] that is consistent with being burnt. He said that he also has scarring on his legs. The Tribunal accepts that the applicant has extensive scarring that is consistent with being burnt. At the hearing, the applicant claimed that he visited his cousin [in] the Rift Valley, to celebrate the Christmas holidays and New Year’s in December 2007. He said on [date] December he and his cousin were attacked at his cousin’s small bedsitter by a mob of people talking in his mother tongue, which is Kikuyu. He said people broke the windows and smashed the door and entered the house. Then they told the applicant and his cousin to sit down and started questioning them about not supporting the Kikuyu candidate in the Presidential election. He said that they hit them with iron rods then the organiser then told everyone to leave and smashed a bottle with a cloth sticking out the top that smelt of petrol and the applicant caught on fire. He said he ran outside and was trying to roll and people were kicking him and he lost consciousness. The applicant said that he woke up in hospital in Nairobi and heard that his cousin had died, and he spent 18 months in hospital recovering. The applicant claimed that the people attacked him because he refused to vote for someone from his own tribe. He said that he knew the people from the marketplace where he had been hawking, that they were people that he used to see like the bus conductor, people who sell vegetables and some of his cousin’s neighbours. He said they would have discussions and the people would say, look man, he’s from our own tribe and the applicant would respond that the tribe is not the issue, that you vote for someone who does not have any integrity issues, who is not corrupt, someone who will help, someone who will not steal from the government. The applicant provided the Tribunal with a copy of the decision record. As discussed at the hearing, the delegate records ‘that during his initial detention interview (on 25 June 2009) the applicant discussed the above attack and stated that it was another tribe that attacked him, subsequently naming the tribe, “the Kalenjin”.’ When this was put to the applicant, he said that he did not want to make his tribe look bad. He said that he is loyal to his tribe. He said that it was a mob and the majority of people there were talking Kikuyu. He also said that he heard someone speaking Kikuyu, that his cousin was talking to them in Kikuyu and that he is 100 per cent sure that someone was talking in Kikuyu. The issue of the applicant’s changed story was raised again at the second hearing. The applicant repeated that it was Kikuyu who attacked him and said that he was trying to protect his people by blaming the Kalenjin. He also said he was concerned that if he went back to Kenya his tribe might say that he turned against them and he could be labelled a traitor. He said that he did not know the information would be kept confidential. When asked how he thought the information would get from Australia to Kenya he said that he thought it would go through the media. The Tribunal does not accept the applicant explanations for why his evidence changed from his initial detention interview. The Tribunal gives greater weight to the evidence of the applicant in his initial detention interview that he was attacked by the Kalenjin.

Decision

Reasons for decision

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 criterion in s 36(2).DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Katherine HarveySenior MemberATTACHMENT - Extract from Migration Act 19585 (1) Interpretation…cruel or inhuman treatment or punishment means an act or omission by which:(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;but does not include an act or omission:(c) that is not inconsistent with Article 7 of the Covenant; or(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:(a) that is not inconsistent with Article 7 of the Covenant; or(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:(a) for the purpose of obtaining from the person or from a third person information or a confession; or(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or(c) for the purpose of intimidating or coercing the person or a third person; or(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…receiving country, in relation to a non-citizen, means:(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.…5H Meaning of refugee(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.Note: For the meaning of well-founded fear of persecution, see section 5J.…5J Meaning of well-founded fear of persecution(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and(c) the real chance of persecution relates to all areas of a receiving country.Note: For membership of a particular social group, see sections 5K and 5L.(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.Note: For effective protection measures, see section 5LA.(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or(b) conceal an innate or immutable characteristic of the person; or(c) without limiting paragraph (a) or (b), require the person to do any of the following:(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;(ii)conceal his or her true race, ethnicity, nationality or country of origin;(iii)alter his or her political beliefs or conceal his or her true political beliefs;(iv)conceal a physical, psychological or intellectual disability;(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and(b) the persecution must involve serious harm to the person; and(c) the persecution must involve systematic and discriminatory conduct.(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:(a) a threat to the person’s life or liberty;(b) significant physical harassment of the person;(c) significant physical ill‑treatment of the person;(d) significant economic hardship that threatens the person’s capacity to subsist;(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.5K Membership of a particular social group consisting of familyFor the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and(b) disregard any fear of persecution, or any persecution, that:(i)the first person has ever experienced; or(ii)any other member or former member (whether alive or dead) of the family has ever experienced;where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.Note: Section 5G may be relevant for determining family relationships for the purposes of this section.5L Membership of a particular social group other than familyFor the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:(a) a characteristic is shared by each member of the group; and(b) the person shares, or is perceived as sharing, the characteristic; and(c) any of the following apply:(i)the characteristic is an innate or immutable characteristic;(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;(iii)the characteristic distinguishes the group from society; and(d) the characteristic is not a fear of persecution.5LA Effective protection measures(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:(a) protection against persecution could be provided to the person by:(i)the relevant State; or(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:(a) the person can access the protection; and(b) the protection is durable; and(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.…36 Protection visas – criteria provided for by this Act…(2)A criterion for a protection visa is that the applicant for the visa is:(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (a); and(ii)holds a protection visa of the same class as that applied for by the applicant; or(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (aa); and(ii)holds a protection visa of the same class as that applied for by the applicant.(2A)A non‑citizen will suffer significant harm if:(a) the non‑citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non‑citizen; or(c) the non‑citizen will be subjected to torture; or(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non‑citizen will be subjected to degrading treatment or punishment.(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.…

Ratio Decidendi

Legal Principle Established

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments 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 The issue in this case is whether the applicant has a well-founded fear of persecution for a refugee nexus reason, or if he is owed complementary protection, or if he is a member of the same family unit as a non-citizen who is a refugee or is owed complementary protection. The Tribunal did not find the applicant to be a credible and reliable witness and for the following reasons has concluded that the decision under review should be affirmed. In reaching this view, the Tribunal has had regard to the significant inconsistencies between the applicant’s evidence to the Tribunal, his evidence to the Department and his other evidence, as well as the shifting and unpersuasive nature of his oral evidence at the hearing. Background The applicant’s personal details are set out in his application for protection. He is [age] years old and was born in Nairobi City, Nairobi Province, Kenya. He claims that he speaks, reads and writes English, Swahili and Kikuyu, that he belongs to the Kikuyu tribe and is a Christian. He listed his occupation as [an occupation] and claimed to have been unemployed and receiving support from friends from September 2017. The applicant claimed that in Kenya he was a self-employed [person] from June 2009 until April 2014, when he went to [Country 1] and worked as [an occupation] for 20 months until December 2015. In Kenya he completed a Diploma [and] withdrew from a [another course]. In Australia, he withdrew from a TAFE Higher Diploma in [a third course] in December 2016. He claimed to have been detained in Adelaide Immigration Transit Accommodation and that charges of assault, theft and breach of bail were pending. He lodged his application for a protection visa from detention. In his application he provided details of his mother and [brother] who live in Kenya. At the hearing he claimed that his father had died in 1993.Country of reference The applicant claims he was born in Nairobi, Kenya and is a citizen of Kenya. He provided a copy of the biodata page from his Kenyan passport and a copy of his Republic of Kenya certificate of birth. The Tribunal is satisfied that the applicant is a citizen of Kenya and that Kenya is the receiving country for the purpose of s 36(2)(aa) of the Act. Assessment of claims and evidenceHas the applicant experienced harm? At the second hearing, the applicant showed that he has scarring on his torso, arms and [and another area] that is consistent with being burnt. He said that he also has scarring on his legs. The Tribunal accepts that the applicant has extensive scarring that is consistent with being burnt.