2113682 (Refugee) - [2024] ARTA 634

2113682 (REFUGEE) [2024] ARTA 634 (13 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2113682
Tribunal:General Member B Butler
Date:13 November 2024

Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(b)(i) of the Migration Act.

Statement made on 13 November 2024 at 1:09pm
CATCHWORDS
REFUGEE – protection visa – Kenya – ethnicity – Indian – discrimination, attacks, electoral violence and bribery – business owner perceived as wealthy – member of neighbourhood watch group harassed, detained and beaten by police – mental health – inconsistent claims and evidence – country information – relatively stable political situation – general socio-economic conditions, including for Indians – protection visa application and review application made with wife and child – relationship ceased, intervention order and reviews separated – wife and child accepted as refugee – applicant as member of family unit of child – intervention order not relevant consideration – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5CA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (b)(i), (2A), 65
Migration Regulations 1994 (Cth), rr 1.03, 1.12(3)(a), (4)(b)(i), Schedule 2
CASES
AWC21 v MHA [2022] FCA 1568
GLD18 v MHA [2020] FCAFC 2
SZRSN v MIAC [2013] FMCA 78; [2013] FCA 751
SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362
WZARI v MIMAC [2013] FCA 788
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

The applicant is a [Age]-year-old man who is a national of Kenya of Indian ethnicity. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant him a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 9 January 2017. The applicant’s wife and son were also included in the visa application. The delegate refused to grant the visa on 17 September 2021.
On 7 October 2021, the applicant, his wife and their son together lodged an application for review of the delegate’s decision with the former Administrative Appeals Tribunal (the AAT).
On 6 September 2024, the AAT was informed that the applicant and [Ms A]’s relationship had broken down, a Family Violence Final Intervention Order had been made on 9 July 2024 with the applicant’s wife and son as protected persons (which ceased on 8 December 2024), and that [Ms A] and her son were living separately from the applicant. [Ms A] also appointed a different representative for herself and her son, and requested that her and her son’s review applications be separated from the applicant’s review application.
Given the circumstances, the review applications were separated. This review application before me concerns [the applicant]…

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 2113682 (Refugee)

Details

AGLC: 2113682 (Refugee) [2024] ARTA 634
Case: [2024] ARTA 634
Decision Date: 13 November 2024

CaseChat Overview and Summary

In the matter of 2113682, the applicant, an Indian national, appealed against the decision of a delegate of the Minister for Immigration and Border Protection to refuse his application for a protection visa. The applicant alleged that he faced discrimination and persecution in Kenya due to his Indian ethnicity and perceived wealth. The case was heard by the Administrative Appeals Tribunal (AAT) in Australia, which was required to determine whether the applicant had a valid claim for a protection visa.

The primary legal issue before the AAT was whether the applicant would suffer treatment amounting to serious harm if returned to Kenya. This involved assessing the applicant's claims of discrimination, attacks, and harassment due to his Indian ethnicity and perceived wealth, as well as the general socio-economic conditions for Indians in Kenya. The Tribunal also had to consider the applicant's mental health, the consistency of his claims, and the country information provided regarding Kenya.

The AAT found that while the applicant had presented credible evidence of discrimination and attacks against Indians in Kenya, there were inconsistencies in his claims and evidence. The Tribunal noted that Kenya had a relatively stable political situation and that the general socio-economic conditions for Indians were not uniformly dire. The AAT also considered that the applicant's current representative had not been involved in the original visa application, which may have contributed to the inconsistencies. Given these factors, the Tribunal was not satisfied that the applicant would suffer significant harm if returned to Kenya.

However, the AAT did not consider the applicant's status as a member of the family unit of his child, who had already been accepted as a refugee. The Tribunal concluded that the delegate had erred in not considering this aspect and that the decision should be remitted to the delegate for reconsideration in light of this new information.

The AAT remitted the decision to the delegate for reconsideration, taking into account the applicant's status as a member of the family unit of his child. The Tribunal did not make any final orders in this matter, as the case needed to be returned to the delegate for further assessment.

Orders

Orders of the court

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Background

Background to the litigation

The applicant was represented in relation to the review. The representative attended the Tribunal hearing.BACKGROUNDEvidence before the Department The applicant had a representative when he lodged his protection visa application. This was a different representative from his current representative. In his protection visa application, the applicant set out his protection claims, which are summarised as follows:·He left Kenya in 2008 as the security situation was deteriorating and discrimination was increasing against Indians. He had to remain in lockdown at his house during elections. Indians were also targeted in a terrorist attack in Kenya. He didn’t want to raise his child in an unsafe place, so he decided to leave Kenya.·The situation became worse the year the visa application was lodged (2017). The applicant’s brother told him not to return to Kenya as it is not safe. Indians are targeted and harmed by criminal gangs because they are seen as wealthy.·Indians also face discrimination and harm from the authorities. He did not seek help from the authorities as they are corrupt.·He was threatened and mugged at gunpoint for his wallet in 2005.·He was also caught up in violence during the elections in 2008. When he was returning home from work, protesters threw stones at his car and were holding machetes. He believes he is at greater risk of harm as an Indian.·There is no safe place for Indians in Kenya, and it happens all over the country.·He fears being harmed by criminal gangs, terrorists and the Kenyan authorities if he returns to Kenya. He also fears being required to pay a bribe at the airport because Indians are targeted. In a statutory declaration dated 28 May 2018, the applicant provided further details about incidents of harm he claimed to have experienced in Kenya, which are summarised as follows:·During 2008, there were significant protests around the general election period. Protests can become violent. He was returning home from work with his father when the protests started. The protests became violent and the police came. He and his father had to hide. Protesters threw stones at their car and were holding machetes. There was an office building nearby and they ran into the building and waited there for four to five hours. He believes they are at greater risk because they are more easily identified.·Indians in Kenya are targeted for being wealthy, and so are at a greater risk of being held up by criminal gangs and the police. People are paid cash on a Friday or Saturday and gangs know this and frequently rob Indian businesses. The husband of one of his school mates was shot dead in an incident the year before.·In 2011, in another incident, the watchman of their flat was kidnapped by four men with AK-47s along with two other tenants. They rent out their flat to Indians, and this couple were kidnapped and robbed.·He was detained in 2003 or 2004 and had to pay money to secure his release.·His father has passed away. His father had a business which was doing very well, and he had a lot of money. He thinks this is why his family have been singled out for attention by the authorities of Kenya. He also had an uncle who was deported from Kenya for speaking out against the government when the applicant was very young.·His sister in law’s uncle owned a [business] and was killed in 2006 by thugs hired by an employee. The employee was injured at work and was not satisfied with the compensation offered, and so he hired thugs to kill the uncle because he was wealthy.·He was subjected to attention in 2015 when he returned to Kenya for his father’s funeral. He had to pay a bribe at the airport. He also had to pay a bribe on his way back from India. He thinks he is targeted because he is an Indian.·In 2015, he had to pay a bribe to a traffic cop. He was also targeted on another occasion on a public bus and mugged for his phone, gold chain and money.·His friend was recently subject to an attempted robbery.·The situation has become worse over the last 15 years for Indians and business owners, who are subject to racism and discrimination by the government and general public. He doesn’t think he can relocate as Indians are targeted throughout the country.

Evidence

Evidence Before The Court

The delegate found that [the applicant] would not suffer treatment amounting to serious harm in Kenya, and was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Kenya, there was a real risk he would suffer significant harm.Evidence before the TribunalPre-hearing material Before the hearing, the representative provided a submission, which I have considered. The applicant provided a statutory declaration dated 11 October 2024, which provides further details on his claims for protection. This is summarised as follows:·The applicant and his wife separated [in] August 2024. He is going through a difficult time in his life due to the breakdown of his marriage, his uncertain status in Australia and the fear of returning to Kenya. He also fears being separated from his son.·His circumstances have affected his mental health. He has been feeling depressed, anxious and suicidal. He has been receiving support.·He does not have Indian citizenship or a right to live and reside in that country.·Indians are discriminated against in Kenya, despite having lived there for generations, and are perceived as outsiders. Indians are also targeted because they are perceived as wealthy. The Indian community owns a lot of businesses, and Indian-Kenyans are disproportionately targeted for violent crimes such as robberies and kidnappings.·His father’s business was successful and they were targeted for robberies on several occasions. He worked for his father’s business from 2002 to 2008. He was personally present on two occasions when his work vehicle was held up by criminals demanding they hand over workers’ salaries to them. The first time was in 2005. Six men approached him with AK-47 guns and demanded the money. He hesitated and one of the men held the gun close to his head. His father told him to give them the money. The second time it happened was in 2006. He didn’t hesitate to give them the money the second time. They reported these incidents to the police but no action was taken.·In approximately 2003, he joined a neighbourhood watch group. It was set up by an Indian ex-police officer named [Mr B], and its purpose was to address crime perpetrated against Indians in the [Suburb 1] area of Nairobi. It was called the [Group name]. He signed up to join the group with two of his friends, [Mr C and Mr D]. The three of them made [a] Division of the group. They would patrol the area in pairs in a car, and if they saw any incidents they would report them to a special division of the police called the ‘Flying Squad’, with which [Mr B] had established a relationship. He reported a number of crimes, including a carjacking, a robbery at a shop, and the kidnapping of an Indian man. Some crimes they saw themselves and others were reported to them, and they reported them to the police. Despite [Mr B]’s relationship with the police, the police did not take action.·After joining the neighbourhood watch group, he started being harassed by the police, who threatened him and told him to stop his involvement with the group. He thinks that the police officially agreed to receive reports from the group, but the police are corrupt and many police are involved in criminal activity themselves or taking money from criminals. He believes that the corrupt officers did not want their criminal involvement to be uncovered.·The applicant also referred to the 2003 incident in which he claimed that he was detained by police and assaulted, and the 2005 incident in which his car was stopped by plainclothes police and was eventually allowed to leave (these incidents are summarised above). After the 2005 incident, he left the neighbourhood watch group as he considered it was too dangerous and he was putting himself and his family in danger. Other members of the group also had similar experiences and decided to leave. The group was disbanded because [Mr B] recognised it was too dangerous to continue.·He claimed that the harassment and threats continued. On numerous occasions the police stopped him and said that they knew he was part of the neighbourhood watch group. He told them he was no longer part of the group but the did not care, they demanded money and because of who his father was (with a successful business), he was a target.·He married his wife in [Year] in India. They returned to Kenya in May 2006. He hoped that because he had been away for a little while, the police would have forgotten about him, but the threats and harassment continued. After his son was born in [Year], he decided they should flee the country and he looked for visa options.·The election violence of 2008 further strengthened his conviction that his family was not safe in Kenya.·He referred to incidents in 2015 when he returned to Kenya and was required to pay bribes and also other incidents involving Indian-Kenyans (noted above in the summaries of his earlier statutory declaration).·He did not realise that applying for a protection visa was an option earlier, and that is why he did not apply for a protection visa until 2017.·He fears harm from the authorities and criminal gangs in Kenya because of his Indian ethnicity and because he has lived in Australia, and therefore he would be perceived to be wealthy. He also thinks he will be targeted by the authorities because he has been targeted in the past, and because they perceive him as someone who wants to expose their illegal activities. He also fears that he could be targeted by terrorist groups that target non-Muslims.·He cannot obtain protection from the authorities as they want to harm him, and he cannot relocate as Indians are targeted throughout the country.The hearing

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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