AZAEY v Minister for Immigration
[2015] FCCA 1642
•16 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AZAEY v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1642 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal – applicant claiming persecution in Kenya by virtue of her membership of a particular social group – adverse findings as to credibility made by Tribunal – whether decision of Tribunal vitiated by apprehended bias –whether Tribunal failed to consider an integer of the applicant’s claim for protection – no jurisdiction error established. |
| Legislation: Migration Act 1958 (Cth), ss.65, 425, 474, 475 & 476 |
| Plaintiff 157/2002 v Commonwealth of Australia [2003] 195 ALR 24 Craig v South Australia [1995] 184 CLR 163 Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 Kioa v West (1985) 159 CLR 550 Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 Minister for Immigration & Citizenship v SZNVW (2010) 183 FCR 575 Re Refugee Tribunal & Anor; Ex parte H (2001) 179 ALR 425 SZRUI v Minister for Immigration Multicultural Affairs and Citizenship [2013] FCAFC 80 SZNVM v Minister for Immigration & Citizenship [2010] FCA 261 Re Minister for Immigration and Multicultural Affairs; Ex parte AB(2000) 177 ALR 225 VFAB v Minister for Immigration & Citizenship (2003) 131 FCR 102 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | AZAEY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | ADG 158 of 2014 |
| Judgment of: | Judge Brown |
| Hearing date: | 25 March 2015 |
| Date of Last Submission: | 25 March 2015 |
| Delivered at: | Adelaide |
| Delivered on: | 16 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms McGrath |
| Solicitors for the Applicant: | McDonald Steed McGrath |
| Counsel for the Respondents: | Ms Forrester |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 7 May 2014 be dismissed.
The Applicant pay the costs of the First Respondent fixed at the sum of SIX THOUSAND, FOUR HUNDRED AND FORTY-SIX DOLLARS ($6,646.00).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 158 of 2014
| AZAEY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for the issue of constitutional writs to quash a decision of the Refugee Review Tribunal (“the RRT”) made on 9 April 2014.
The applicant is a citizen of Kenya, who claims to be at risk of persecution in that country. On 5 February 2013, she applied for a protection (Class XA) visa “the visa” pursuant to the provisions of the Migration Act 1958 (Cth) (“the Act”).
The applicant’s ethnicity is Kikuyu. Her religious beliefs are Christian. She speaks Kikuyu, Swahili and English. She first arrived in Australia, on 27 January 2009, pursuant to a student visa.
On 30 May 2011, following the completion of her studies, she applied for a skilled graduate visa. Her application was unsuccessful, as was a subsequent review procedure in the Migration Review Tribunal, which was finalised on 14 January 2013.
The applicant’s claim for protection, in Australia, was supported by a letter written by her. In this letter, she indicated that female genital mutilation, “FGM” was a Kikuyu custom to which Kikuyu girls and women were subjected.
In particular, the applicant claimed that FGM was enforced by traditional leaders and clan heads of the Kikuyu, especially the Mungiki, a Kikuyu cult. It is the applicant’s case that she grew up in Kiambu, which she described as the Mungiki heartland and “real Kikuyu country where women have to follow tradition no matter what.”
It is further the applicant’s case that her parents, whilst she was growing up, sheltered her from FGM and she herself has not been subject to the practice. However, when she was seventeen years of age, it was rumoured in her village that she had not been circumcised and she became a laughing stock in her village. Thereafter, she claims to have lived in fear at the prospect of being captured by members of the Mungiki, who would take her into the bush and forcibly circumcise her.
The applicant further claimed that in the violence, which followed the 2007 Kenyan election, members of the Mungiki had been at large targeting young women, like the applicant, whom they raped, beat and forcibly circumcised.
In particular, she herself claimed to have been approached on 3 June 2007, by a gang of men, who introduced themselves as Mungiki soldiers, who indicated to the applicant that they knew that she herself had not been circumcised and as such, was a shame to Kikuyu customs and traditions.
The applicant claims that she was only able to extricate herself from this situation because of her familial connections. Her father is a local politician. However, the men advised the applicant that they would be back. Since this incident, it is the applicant’s case that she lived in constant fear, whilst in Kenya.
However, the applicant also asserted that the incident was a catalyst for her to become active, in her community, in challenging the Mungiki and their practices. As a consequence, the applicant claims that she was “labelled a rebel and targeted for rape and/or forced circumcision” because of her courageous challenge to the Mungiki, which she had launched in her Church and local youth group.
The applicant claims that she was attacked one evening in May 2008, whilst she was walking home. The person who attacked her said he had been sent by the Ngai, who is the supreme leader of the Mungiki in Kiambu.
He further indicated that the Ngai wanted to marry the applicant and produce “pure Kikuyu children” with her. The applicant claims that she was able to extricate herself from this situation but lived thereafter in constant fear until January 2009, when she left Kiambu to study in Australia.
The applicant claimed that she had not reported any of these incidents to the Kenyan police because the Mungiki had infiltrated the police in the area where she lived and accordingly, those in authority in Kiambu would not have been willing to protect her or bring her assailants to justice.
On 2 July 2013, a delegate of the Minister for Immigration & Citizenship[1] was not satisfied that the applicant was a person to whom Australia owed protection obligation pursuant to the provisions of the Refugees Convention.
[1] as the Department of Immigration & Border Protection was then known
The delegate had doubts about the applicant’s credibility, arising from responses made to her in interview, which the delegate characterised as being “beset with inconsistencies and implausibilities.”
The delegate also noted that there had been a delay in the applicant seeking protection. As a consequence of this decision, the applicant commenced proceedings in the RRT on 29 July 2013. She was invited to appear, before the Tribunal, on 23 December 2013, although this was subsequently re-scheduled to 13 February 2014.
Following the decision of the Minister’s delegate, the applicant, through her advisors, put more detailed submissions to the RRT as to why she should be granted the visa in question. In particular, it was submitted that the applicant had:
“A well-founded fear of persecution on the convention ground of membership of a particular social group. She is a woman at risk of being targeted by the Mungiki because she is a Kikuyu woman who is not circumcised.”[2]
[2] See casebook at page 62
It was further submitted that credible country information, in respect of Kenya, indicated that members of the Mungiki imposed violence, including FGM, on women and girls, other than those initiated into their sect, including female relatives of men who had taken the Mungiki oath. This country information also indicated that the Kenyan authorities provided insufficient protection for such individuals.
In her submission, the applicant identified herself as both having been approached by Mungiki men, for marriage, in which context she feared that FGM would be imposed upon her. Further, in her submission, the applicant also identified herself as having family members, who are Mungiki.[3]
[3] Ibid at page 66.
The applicant expanded, on this claim, in a statutory declaration completed on 4 February 2014. In this document, she claimed that her cousin was a Mungiki leader, who had sexually harassed her since she had been around nine years of age. She characterised her relative as a violent person of whom she had been fearful.
The applicant later indicated that she had not disclosed this information (concerning her cousin) on legal advice. She had apparently been advised that the late introduction of the issue might render it liable to be categorised as a self-serving concoction.
In her final submission to the RRT, the applicant’s claim for protection was outlined as follows:
“The applicant maintains her claims that while she lived in Kenya she was harassed and threatened because she is a Kikuyu woman who has not been circumcised. The applicant was outspoken about her FGM and tis along with her failure to conform made her the target of Mungiki in her village. The applicant claims that she is a target over and above other uncircumcised Kikuyu woman as she is related to a leader of the Mungiki.
The persecution the applicant fears involves serious harm and systematic and sustained violence at the hands of the Mungiki gang who have previously harassed and attempted to kidnap her.
The Kenyan Authorities are unable or unwilling to protect the applicant against this persecution as the applicant believes they are corrupt and those that have reported the Mungiki before have been murdered. She feels her father or any other male family member cannot protect her.”[4]
[4] Ibid at page 72
Accordingly, the applicant categorised herself as being liable to persecution because she was a member of a particular social group, namely a Kikuyu female, from Kiambu, who was uncircumcised and therefore liable to be a particular target of the Mungiki, a threat heightened by the fact that her cousin was a high ranking member of the sect.
The applicant attended the hearing before the RRT on 13 February 2014. During this hearing, she gave evidence and was questioned by the RRT, over a period of around ninety minutes. Subsequently, on 24 February 2014, through her advisor, the applicant requested a re-hearing with a new Tribunal member.
The applicant asserted that she had not been provided with a fair hearing but had been frequently interrupted by the member concerned, who had not allowed her a proper opportunity to respond.
This request was apparently not acceded to. On 9 April 2014, the RRT affirmed the decision not to grant the applicant the protection visa sought by her.
The applicable legal framework
The decision not to grant the applicant the visa is a privative clause decision as defined by section 474 of the Act. This stipulates that any administrative decision, relating to the granting or otherwise of a visa, pursuant to section 65 of the Act is a final and conclusive one. As such, it is not to be called into challenge or reviewed in any court.
However, the High Court of Australia in Plaintiff 157/2002 v Commonwealth of Australia[5] has held that the provisions of section 474 do not prevent judicial review of decisions of the MRT, which are affected by jurisdictional error or have been made in bad faith.
[5] See Plaintiff 157/2002 v Commonwealth of Australia [2003] 195 ALR 24
Accordingly, in refugee and migration cases, where it is established that an error of jurisdiction has occurred, pursuant to section 476 of the Act, this court has the same jurisdiction as the High Court under paragraph 75 (v) of the Constitution and may issue a prerogative writ quashing a decision, if an error of jurisdiction is demonstrated.
An administrative tribunal exceeds its powers and thus commits a jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a conclusion, in a way, that affects the exercise or purported exercise of the power conferred upon it.[6]
[6] See Craig v South Australia [1995] 184 CLR 163
The High Court has held that the failure of a tribunal, such as the RRT, to respond to a substantial, clearly articulated argument relying on established facts, propounded by an applicant before it, amounts to a failure to accord natural justice to that applicant, which amounts to a failure, on the Tribunal’s part, to exercise the jurisdiction conferred upon it.[7]
[7] See Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 at 394, 408
It is also clear that a failure to afford natural justice may also amount to a jurisdiction error under the Act. The requirements of natural justice, pertaining to the case in question, are to be determined within the relevant statutory context, which in this case is section 425(1), which requires the RTT to invite applicants, in proceedings before it, to give evidence and present arguments, relating to the issues arising in the relevant decision.[8]
[8] See Kioa v West (1985) 159 CLR 550
The applicant claims to be entitled to the protection of Australia because she is a refugee, as defined by article 1A(2) of the Refugee’s Convention which defines a refugee as any person who:
“… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
The application to the court
The applicant commenced these proceedings, within time, on 7 May 2014. Her application seeks that the decision of the RRT be quashed and a writ of mandamus be directed to it, requiring it to determine the application according to law.
The application discloses two grounds, which can be summarised as follows:
·The RRT fell into jurisdictional error because it failed to accord the applicant the hearing to which she was entitled pursuant to section 425 of the Act;
·The RRT failed to consider an explicitly articulated aspect of her claim namely her membership of a social group consisting of Kikuyu, uncircumcised females.
The first ground is based on the submission that the RRT was biased and therefore the hearing afforded to the applicant was not a fair and proper hearing as envisaged by section 425. Accordingly, it is submitted that the RRT did not properly exercise the jurisdiction conferred upon it.
In respect of the first ground, the applicant’s counsel Ms McGrath submits that the hearing between the Tribunal and her client was characterised by the following:
·Frequent interruptions by the Tribunal of the applicant;
·Derisive and dismissive laughter by the Tribunal;
·Displays of impatience and irritation;
·A general lack of sensitivity to the issues raised by the applicant, particularly in the context of FGM.
The second ground is based on the contention that the RRT did not consider a central aspect of the applicant’s claim for asylum in Australia, namely her evidence concerning her circumstances in Kenya, including her sex; uncircumcised condition; liability to be targeted by members of the Mungiki; and her status as a relative of a Mungiki member.
As such, it is submitted that the RRT did not properly exercise the jurisdiction conferred upon it and has thus fallen into jurisdictional error.
Ground One
Pursuant to section 425 of the Act, the Tribunal must invite an applicant to appear before it in order to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The Full Court of the Federal Court (Gray, Cooper and Selway JJ) in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR said as follows regarding the statutory obligation residing on the Tribunal to invite an applicant to a hearing:
“Pursuant to s 425 of the Act the Tribunal is under a statutory obligation to issue an invitation to an applicant to attend a hearing. That indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing for the purpose of giving evidence and presenting argument. The invitation must not be a hollow shell or an empty gesture. …”[9]
[9] See Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 at 560
The opportunity required to be proffered to give evidence and provide arguments must “real, meaningful and not merely formulaic.”[10] A failure, on the part of the Tribunal, to comply with the requirements of section 475 will invalidate the exercise of its jurisdiction.
[10] See Minister for Immigration & Citizenship v SZNVW (2010) 183 FCR 575
It is axiomatic that an invitation made by a biased Tribunal (whether actually so or reasonably perceived to be so) or one which has predetermined the issue before it will not be a real or meaningful one for the purposes of the Act. For obvious reasons, its invitation can only be regarded as a tokenistic one, as it begins and ends the proceedings in question with a mind closed to the claims of the applicant concerned.
The applicant contends that she was not accorded a fair hearing by the Tribunal, as it, at the very least, had the appearance of being biased against her. Essentially she contends that she did not receive a fair hearing from an impartial arbiter of her claims. The legal test to be applied to the issue was established by the High Court in Re Refugee Tribunal & Anor; Ex parte H.[11]
[11] Re Refugee Tribunal & Anor; Ex parte H (2001) 179 ALR 425
In the case, the High Court expressed the test as follows:
“…in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.”
In the case, the High Court noted the obvious differences between court proceedings, which are adversarial in nature and held in public; and administrative proceedings, such as the present proceedings, which are inquisitorial in nature and held in private.
In the latter type of matter, in order to discharge its functions, the Tribunal concerned must take an active role in the conduct of the proceedings, including the direct questioning of parties. It is in this context, very often, that issues of perceived bias, on the part of party being question, arise.
In Re RRT the High Court discussed the line to be drawn between a Tribunal’s duty, in discharging its administrative functions to vigorously test evidence, particularly in cases where credibility was in issue; and overly aggressive questioning of a person, which might cause an objective and fair-minded observer to consider that the process concerned was not a fair one, because the questioner involved had the appearance of having already made up his/her mind and, as such, nothing said or produced by the relevant applicant would sway the decision maker.
The High Court said as follows:
“Where … credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.
Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view.
In the present case, a fair-minded lay observer or a properly informed lay person, in our view, might well infer, from the constant interruptions of the male prosecutor's evidence and the constant challenges to his truthfulness and to the plausibility of his account of events, that there was nothing he could say or do to change the Tribunal's preconceived view that he had fabricated his account of the events upon which he based his application for a protection visa. In other words, a fair-minded lay observer or a properly informed lay person might well apprehend bias by the Tribunal against the male prosecutor.”[13]
[13] Ibid at [30] – [32]
A number of subsequent cases have placed a gloss on the applicable test for apprehended bias. In deciding the issue of ostensible or apprehended bias, the court determines the issue objectively. [14] In SZRUI v Minister for Immigration Multicultural Affairs and Citizenship Flick J summarised a number of authorities regarding ostensible bias as follows:
·Where the denial of procedural fairness relied upon is an alleged reasonable apprehension of bias on the part of the decision-maker, such an apprehension must be “firmly established”;
·Allegations of ostensible bias should not be too readily acceded to lest it encourage the parties concerned to seek to have their applications heard and resolved “by someone thought to be more likely to decide the case in their favour”;
·Any allegation of ostensible bias must be “distinctly made and clearly proved”;
·As such, it is not sufficient if a reasonable bystander “has a vague sense of unease or disquiet” about the proceedings concerned;
·In the context of judicial review of cases concerning apprehended bias, the reviewing court needs to apply “realistic criteria” to the determination of whether such bias has been demonstrated.[15]
[14] See SZRUI v Minister for Immigration Multicultural Affairs and Citizenship [2013] FCAFC 80 at [75]
[15] Ibid at [22]
However, as is clear from Re RRT it is not necessarily inappropriate for a tribunal member to indicate to any claimant concerned that their credibility or account of events is in question. An administrative decision-maker is entitled to vigorously test the account being advanced by a claimant.
In each case, where an allegation of reasonable apprehension of bias is made, a court conducting a review of the proceedings concerned must strike a balance between the necessary rigour required for an inquisitorial proceeding and the need to ensure that the community, as a whole, can have confidence that the proceedings concerned have been fairly conducted.
In SZRUI Flick J said as follows of this balancing exercise:
“Common to all bases upon which an argument as to a reasonable apprehension of bias is advanced for resolution is the concern of the reviewing Court to ensure that a balance is struck between justice being seen to be done and the need to ensure that such arguments are not too readily accepted. A balance must be struck between an administrative decision-maker discharging an inquisitorial role being free to question and even vigorously test an account of facts being advanced by a claimant as opposed to the decision-maker whose mind is made up before the entirety of the evidence has been advanced for consideration. An initial assessment that claims lack substance may prove to be ultimately well-founded; equally, however, there remain cases where an initial assessment may prove to be ill-founded and misconceived.
Where that balance is to be struck in any given case necessarily depends upon a myriad of circumstances, including the legislative context in which a decision is made and the ability of a claimant to adduce evidence or to substantiate claims being made. In the present legislative context, those circumstances include the inquisitorial function entrusted to the Tribunal and the recurring need to resolve in many cases questions as to the credibility of the claimant.”[16]
[16] Ibid at [32] – [34]
A Tribunal is entitled to express a tentative view as to the facts before it. Indeed such an expression may be helpful to the claimant concerned enabling him or her to respond to particular issues which are of concern to the relevant decision-maker. Where ostensible bias will be established is in a case in which a fair-minded observer is of the view that the decision-maker’s mind is closed and not opens to persuasion.
It has been held that “harsh tones” do not necessarily lead to an apprehension of bias.[17]Nor will occasional displays of impatience and irritation, whether justified or not. As Kirby J said in Re Minister for Immigration and Multicultural Affairs; Ex parte AB[18]:
“While sustained ill-temper can give rise to a reasonable apprehension of bias, momentary outbursts and misunderstandings in the often stressful world of adjudication must be tolerated, so long as they pass and do not affect the functions of the adjudicator.”
[17] See SZNVM v Minister for Immigration & Citizenship [2010] FCA 261 at [31]
[18] Re Minister for Immigration and Multicultural Affairs; Ex parte AB(2000) 177 ALR 225 at 230
Whether there is a reasonable apprehension of bias is a question of degree to be assessed in each case concerned, after an examination of the entirety of the proceedings concerned. It is not appropriate for individual sections of the proceedings to be examined in isolation.
In this context, it was agreed by the parties concerned in the current case that it would be inappropriate for me to rely on a transcript of the proceedings alone, as it was conceded by counsel for the Minister that this might not adequately convey the nuances of the proceedings between the applicant and the second respondent in this case.
Accordingly I was provided with an audio CD of the proceedings of 13 February 2014. It was also agreed by counsel for each of the parties that I should listen to the proceedings in private. I acknowledge, as is axiomatic, that I am not able to comment on the demeanour; facial expressions; or general body language; of the various actor in the proceedings before the RRT, as these aspects of the proceedings have not been recorded.
However, during the course of the review proceedings, held on 25 March 2015, a transcript of the Tribunal proceedings was provided to me, as an aide memoire and during the hearing each party highlighted various sections of the proceedings, which were of significance to their respective cases.
The proceedings occupied approximately one hour and ten minutes. They began with an announcement that the member had entered the hearing room. Accordingly one of the central issues in the case was apparent from the outset – the tribunal member was in one location; the applicant and her adviser in another. As a consequence, they conversed by electronic means.
The member initiated the hearing by welcoming the parties and providing an outline of how the proceedings would be conducted; what her role in them was; and in general terms, the consideration which applied to the determination of whether the applicant should be granted protection in Australia.
In my estimation, the member’s tone was gentle and even throughout her introduction. In addition and more importantly, it is my view that her tone retained this consistency throughout the proceedings as a whole. Apart from a natural inclination for her voice to have an upward inflection, at the end of her sentences, in my view, her tone remained neutral throughout the case.
After her introductory comments, the member asked the applicant if she was able to hear adequately. To which the applicant’s representative answered in the affirmative. Thereafter the member said as follows:
“Well if there’s any problems with the technology at any stage, please let me know too.”[19]
[19] See transcript at page 3
The next phase of the proceedings consisted of the member asking the applicant various questions about her background, which the applicant was able to answer uneventfully. Then the member asked an open but obviously important question, which axiomatically was central to the proceedings:
Tribunal member:
Can you tell me why you fear returning to Kenya?
[20] Ibid at page 6
Applicant:
I fear returning to Kenya because I suffered intimidation and threats when I started opposing the rituals of Mungiki and the female genital mutilation of women, so I got threatened a number of occasions, not necessarily what’s included in the submission. Like threatened so many times, including when I was doing voluntary work in the hospital. So, when I was about to come they actually told me, ‘go and don’t return’, so I feel very traumatised to go back.[20]
This question was asked, in my estimation, in a polite and neutral manner and the applicant was given an opportunity to put her case, in her own words, as she considered appropriate. It should be noted, as the applicant herself conceded, in this initial answer, relating to her claim for protection, she raised concerns which had not earlier been made in either her written submissions to the Tribunal or earlier to the Department. In particular, she claimed to have suffered threats on so many times including when she had done voluntary work in the hospital.
In response to this new claim, the member asked, in a neutral tone, the following lead-up question, which in my view, naturally followed the applicant’s statement:
Tribunal member:
So what sort of work were you involved in against female circumcision?
Applicant:
Sorry?
Tribunal member:
What sort of - you said you suffered intimation and threats because of your activities. What sort of activities were you engaging in?
Applicant:
I was actually involved in charge of (indecipherable) [21]patients and advising young people on how to keep pure until marriage and the dangers of - to avoid female genital mutilation, due to issues, complications when giving birth and stuff. So other than that, I was a leader in my job, so I took advantage of that and made sure that I created awareness as much as I could.
Tribunal member:
When did you start doing this?
Applicant:
I started – when I was in high school – I used to do it when I was in school over the 17 years, but I became active in around 2008 when I completed college. So then I had more time, so I used to be more active.[22]
[21] This is how the transcript reads verbatim. However, I myself could not distinguish what was said from the audio CD.
[22] Ibid at page 6
The applicant claims that the member cut off her answer to the question when did you start doing this? This is so, but when one listens to the audio of the hearing, in my view, it becomes apparent that this was done inadvertently. The member checks herself and continues.
Thereafter, in what follows, when the applicant is questioned about her role in the Christian Union and the nature of her lectures to students about the Mungiki, the parties do talk over one another. But in my view, this occurs accidentally, almost certainly as a consequence of the manner in which the hearing is being conducted over an electronic medium.
In particular, it should be noted that it is just not the member who speaks over the applicant but the contrary also occurs from time to time. However when the member does speak over the applicant, she not hector the applicant or, in my view, intentionally hamper her in the statements which she makes.
It is asserted that the member was rude in her tone to the applicant, particularly when she asked the question awareness about what, exactly in the context of her inquiring of the applicant what she meant when she said she wished to create awareness in the high school, which she attended. I did not find the question to be rude or intimidating in any way whatsoever. The applicant was able to answer it as follows:
“The dangers of female genital mutilation and getting rid of the Mungiki tradition and cultural thing.”[23]
[23] Ibid at page 7
As such, it does not appear to me to be any substance in the applicant’s contention that she was not able to put across the substance of her case. In my view, the member consistently asked open questions, which were designed to clarify aspects of the answers given by the applicant.
As previously indicated, her speaking tone has a natural tendency to have an upward inclination at the end of sentences, particularly sentences which have an interrogatory aspect. It is suggested that this was indicative of rudeness or disbelief on the part of the member. I reject that contention. There is nothing implicitly sinister in the way the member asked her questions.
In addition, although it is apparent that the circumstances of the hearing were not ideal, it is my view, that this did not lead to any obvious misunderstanding, which could not be readily corrected. In addition, it is my view that the member handled the problems arising with appropriate politeness.
In this context, whilst the applicant was answering a question concerning her travelling in connection with her church work, the following exchange occurs, which demonstrates, in my view, the member inadvertently interrupting the answer, then apologising and then facilitating the applicant to continue with her answer. There is nothing egregious about this behaviour, which follows the ordinary courtesy of electronic communications on an imperfect line.
Applicant:
…I was helping in religious activities in church and travelling -
Tribunal member:
So – sorry go on – and travelling where?
Applicant:
Travelling with the youth for retreats and camps.[24]
[24] Ibid at page 9
A similar incident occurs around thirty five minutes into the hearing, where the member again apologises for cutting in on the applicant’s answers. She explains her conduct in the following manner:
“I apologise if I’m coming in early, it’s just the delays. I think you’re finished so I continue, so I do apologise. There’s a delay with the transmission, so I’m sorry if I do interrupt you. Just continue if I do, I’m sorry.”[25]
[25] Ibid at page 15
One of the areas in which the member questioned the applicant concerned the alleged incident of 2007, during which the applicant claimed she had been able to extricate herself from a group of Mungiki thugs by invoking the name of her father. In this context, it is asserted that the member rudely asked the applicant about her father and his associations.
In my view, in what follows the member queries and tests the applicant’s account of the incident as, in my view, she was entitled to do, particularly in regards to the role of the applicant’s father’s in deterring the thugs. She does so through the application of open questions posed in what is a neutral and unemotional tone.
It might be said that the questioning is vigorous but only in the sense that it is persistent and the questioner is inclined to re-frame the questions she wishes to put. It is a testing process but not a hectoring or insulting interrogation.
In my view, it does not over-step the balance of what was appropriate conduct, by a decision-maker in assessing one of the central aspects of the claim for asylum, which in large part turned on an assessment of the applicant’s credibility.
Centrally, because of the nature of the questions, it cannot be said that the member has an obviously closed mind. She gives the applicant the opportunity to provide evidence to convince her (the Tribunal) as to why the mention of the applicant’s father would deter the Mungiki.[26]
[26] Ibid at pages 10 -11
This section of the hearing includes with the following exchange:
Tribunal member:
Did you report the incident to police?
Applicant:
I did not report to police.
Tribunal member:
Why not?
Applicant:
Because the government of Kenya is so corrupt.
Tribunal member:
But you’ve got a father who’s well known in politics, so you know, that might have assisted you in getting some form of protection or some help from the police, so why not report this incident to the police?[27]
It is asserted that this last question is a rude and sarcastic in tone. In my view, it is one designed to test the credibility of the applicant concerning a central aspect of her claim. The Tribunal was not obliged to accept the applicant’s account without challenge or uncritically. The question, either in its tone or persistence, does not cause me to think that the Tribunal is not conducting the hearing other than fairly. The applicant is given an opportunity to respond.
The Tribunal member also questioned the applicant about her claim of having been sexually assaulted, as a child, by a relative, who later became a Mungiki leader. Again, from my assessment of the audio recording, the tone of the member is level and the questions asked are open in respect of this topic.
In particular, the member asked the applicant how she had confronted her cousin about his behaviour. In this context, it is asserted that the member’s response to one of the applicant’s answers, namely “so you confronted him when you were 12 or 13” was characterised by a tone of disbelief. If so, such a tone was not readily ascertainable by me from the audio recording. Clearly, there is no such overlay in the comment itself. It is a question to which the applicant replies “yeah”.
The conversation then proceeds with the member re-stating one of the applicant’s earlier comments and asking “did he do anything else?” In response to this question, over a short period of time, the applicant discloses having fled from the person as a consequence of her fear of him. Accordingly, the applicant is able to put her concerns about her fear of the person concerned to the Tribunal.[28]
[28] Ibid at pages 16 - 17
At the conclusion of this portion of the interview, the member asked as follows:
Tribunal member:
Is there anything else about your experience in Kenya before coming to Australia that you wanted to tell me in relation to why you don’t want to – why you fear returning to Kenya?
[29] Ibid at page 17
Applicant:
I think that’s all. About Mungiki and my religious practice.[29]
The applicant submits that she made this later comment, which occurs around forty minutes into the hearing, is marked by a tone of resignation on the part of the applicant. The implication being that she had perceived that there was nothing she (the applicant) could stay which would influence the member concerned.
The interchange occurred after the applicant had had an opportunity to put her case to the member concerned. In my view, it is impossible to ascertain, from the audio hearing alone, whether the applicant was or was not resigned to the outcome.
The fact remains that if the applicant was so resigned, she expressed this emotion in response to a generalised request that she provide any further information which she considered was relevant to her claim for protection. An opportunity which the applicant chose not to take up.
Thereafter, following the applicant’s indication that she had nothing further to put about her case, the member began to raise concerns which she (the member) had about the applicant’s claims, particularly in terms of inconsistencies apparent to her in it. These included the fact that the applicant had only recently claimed to have been involved in opposing FGM from the time she was seventeen years of age.
However, her initial claim was that she had been first targeted by the Mungiki in 2007. The member expressed some difficulty in accepting, given what she knew of the Mungiki, including information in video form provided by the applicant herself, that they would have tolerated the applicant’s behaviour for a period in excess of six years.
There is no doubt that the member expresses her concerns categorically. In my view, she was entitled to put her concerns to the applicant, about apparent inconsistencies and what she (the member) regarded as implausible about the applicant’s account. It is also the case that the applicant was given an opportunity to respond to the member’s concerns, which she took up.
It is asserted that during this phase of the hearing, the member laughed, when she put to the applicant what she perceived to be an inconsistency regarding the Mungiki waiting until 2007 to approach the applicant in respect of marriage. The transcript of the hearing records the passage as follows:
Tribunal member:
Well I suppose the – and then waiting again until 2008 to approach you about marrying you um (laughs) again I have some difficulties accepting that Mungiki who don’t – who you spoke against, who you don’t follow their traditions would identify you as being someone that they would want to marry.
Applicant:
Yeah, but the thing is I do believe – what they hated was what I was doing. Because despite the fact that I was challenging their ways, I still remain a Kikuyu woman. I know their intention is - perhaps they would love to put me among their groups to make sure that they make me join them or they do whatever they want to do with me.
Tribunal member:
Well that’s the point that I’m trying to make, that (laughs) – I watched your video just before this hearing. A lot of it was untranslated but the English parts made it very clear how the Mungiki operate and how violent they are and if you were in their targets because you were engaged in activities which challenged them and which openly criticised them, as you claimed I have some serious doubts that they would let do that for a period of six or seven years, as you’re claiming today. It seems completely implausible in light of the information you’ve provided as well as the information that’s before me in how Mungiki operate. [30]
[30] Ibid at page 19
It is a significant thing to assert that a tribunal member audibly laughed during such an ostensibly serious statement. The sounds on the audio recording are transitory in nature. The sounds were not obvious laughs to my ears, being in my estimations, more analogous to a rapid exhalation of breath or a cough. Certainly, they did not appear to me examples of derisory bodily expressions.
I concede however that I have not had an opportunity to observe the facial expressions of the member concerned. However, the fact remains that the onus is on the applicant to establish the bias of which she complains. I do not believe that she has done so in respect of her allegation that the member laughed at her during the hearing.
The proceedings conclude in an unfortunate manner, when the applicant’s advisor raises a complaint that the member had stopped the applicant “quite a bit” which has raised implications that the applicant has not had an opportunity to put her case. The applicant is recorded as crying in the background.
The member once again apologises, prior to the proceedings being adjourned for approximately fifteen minutes, during which period the applicant apparently consults her advisor. On resumption, the member once again apologises for apparently cutting off the applicant and asks her if there is anything she wishes to add.
To this the applicant responds as follows:
“Yeah. Because I feel really bad, like I’m not believed what I’m saying and I really feel bad, because I already have qualifications to work as a scientist and if nothing happened to me, I have nothing to lose, I can still go back to Kenya and can still work for international companies, so I feel really bad.”[31]
[31] Ibid at page 23
In my assessment, although there were interruptions to the applicant’s evidence, these did not prevent the applicant putting her position or answering the questions adequately. The applicant may have been interrupted, but it was clearly inadvertent and not an intentional cutting off or obvious act of dismissal of the applicant’s evidence. This is apparent from the member’s apologises, which appear to me to have been sincerely offered.
The latter portion of the hearing consisted of the member putting to the applicant apparent inconsistencies and areas of her case considered to be implausible. In my view this is a necessary part of the inquisitorial process. The applicant did not acquit herself particularly well in this aspect of the proceedings.
However, in my view, this aspect of the proceedings does not lead to any apprehension of bias on the part of the member concerned. Nor, at its conclusion, does the applicant’s statement that she feels bad because it is her impression she has been disbelieved.
An applicant’s response alone cannot be indicative of ostensible bias. There is no doubt that the applicant was upset at the conclusion of the proceedings. The test for bias is in the reaction of an independent and objective person, who is properly appraised of the inquisitorial nature of the process concerned.
I am of the view that there are no reasonable grounds to conclude that the member in this case has disclosed any ostensible bias against the applicant concerned or behaved inappropriately towards her.
I acknowledge that subject matter of the applicant’s claim was sensitive. The applicant acknowledged this during the hearing, when she indicated that she found the process embarrassing and intimidating. I am unsure what more the member could have done to accommodate these concerns without abandoning her obligation to test the applicant’s claims with some degree of rigour.
Necessarily very many claims for asylum will contain sensitive material, which may be difficult for the applicant concerned to convey. However, this difficulty does not abrogate the Tribunal’s responsibility to test claims or tease out inconsistencies. In my view, in this particular case, the member concerned acquitted herself professionally.
At the conclusion of the hearing, the member asked the applicant’s representative if she had anything further to add. At this stage the advisor summarised the applicant’s various claims.
The Tribunal was alive to the perception that she might have behaved unfairly, albeit unwittingly, to the applicant, by interrupting her testimony, as a consequence of technical difficulties. In this context, she indicated that, once the applicant’s advisor had listened to the audio recording, the applicant could make any further submissions, which she deemed appropriate. No further submissions were made, although an application was made for a fresh hearing.
As is clear from such cases as VFAB[32] a reviewing court must look at the entirety of the hearing to determine whether the process is vitiated by any species of bias. In this context, the proceedings began with the Tribunal inviting the applicant to put her case. They concluded with the member putting issues to the applicant which caused her to doubt the veracity of the applicant’s case by virtue of inconsistency with earlier statement and general implausibility.
[32] VFAB v Minister for Immigration & Citizenship (2003) 131 FCR 102
It is incumbent in the latter process that the Tribunal concerned raises issues of credibility with the applicant concerned. Necessarily, this is a challenging process. In this case, the member indicated the reasons why she had difficulty accepting various assertions of the applicant as being true.
These included the late stage at which the matters were raised; inconsistency with other accounts provided; the member’s own knowledge of the Mungiki, in part based on evidence provided by the applicant herself; and general implausibility.
At each stage, the applicant was given an opportunity to comment on these matters and she did so. In my view, there was nothing begrudging or formulaic about these opportunities. Implicit in them was that the applicant was given the chance to sway the Tribunal’s mind.
In particular 1.3 filed in support of ground one of the application, the applicant asserts that the manner in which the member questioned her did not put the applicant on notice as to the precise nature of the issues to be determined … or conclusions that [might] be drawn by the Tribunal.
I do not think it can be said that the Tribunal did not properly apprise the applicant of the issues relevant to its decision making obligations. In addition, it is my view that the member, in the second phase of the proceedings, after the applicant had made her claims, indicated where she (the member) perceived difficulties in the applicant’s claim for protection in Australia.
The member was not obliged to accept uncritically everything the applicant had said in the first phase of the proceedings. To the contrary, in indicating where she considered areas of inconsistency and implausibility arose, she gave the applicant the opportunity to comment on these matters and so potentially assuage those concerns.
As such, I do not think it can be said that a fair-minded, fully informed lay observer could reasonably have formed the view that the Tribunal had formed an immutable view of the case, at any stage, which caused the proceedings to be vitiated by an apprehension of bias. For these reasons, I do not consider that ground one is made out.
Ground Two
In formal terms, the second ground of appeal reads as follows:
“The second respondent committed jurisdictional error in that it failed to make a finding regarding the applicant’s refugee-hood based on her ethnicity, religion and gender.”
In particulars provided to support this ground, the applicant asserts that because the Tribunal found her not to be a credible witness, it did not properly consider her claim for protection on the basis that she was an uncircumcised, Kikuyu woman, who was a Christian.
Essentially, the applicant contends that having rejected aspects of her claim on credibility claims, particularly her claim that she had been an activist against the Mungiki and FGM; her claims in respect of her cousin; and the incident of 2007; the Tribunal was still required to consider the central kernel of her claim for protection, namely that she was an uncircumcised Kikyu woman. As it did not do so, the Tribunal fell into jurisdictional error.
In this context, counsel for the applicant relies on the following passage from Minister for Immigration & Multicultural Affairs v Yusuf:[33]
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
[33] See Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 [24]
The authorities are clear that a failure to consider a claim, raised expressly or implicitly, on the material before a Tribunal, such as the RRT, is a clear jurisdictional error. In this regard, the applicant relies on Dranichnikov v Minister for Immigration & Multicultural Affairs[34] where the High Court (Gummow, Callinan JJ) said as follows:
“To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.”
[34] See Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389
In cases, where it is claimed that an applicant for refugee status belongs to a particular social group – as in the present case – the first step for the decision-maker concerned is to determine whether that group can constitute a social group for the purpose of the Refugees Convention. The second step is to determine whether the applicant concerned actually belongs to the social group claimed. This second step is a question of fact.[35]
[35] Ibid at [58]
It seems clear that the Tribunal followed this process. It found as follows:
“The Tribunal accepts that the applicant is a Kikuyu woman and that she has not been circumcised and that Kikuyu women, young Kikuyu women, Kikuyu women who have not been circumcised, or any combination, may constitute a particular social group in Kenya.”[36]
[36] See case book at pages 99 -100 [28]
Notwithstanding this finding, it is the applicant’s submission that the Tribunal did not properly consider whether she would suffer persecution as a consequence of her membership of this particular social group. The applicant contends that this ground was clearly articulated by her, in her various submissions to the Tribunal, included those made on hearing, but not properly considered because the Tribunal found her not to be a credible witness.
In Htun v Minister for Immigration & Multicultural Affairs Allsop J described the nature of the review function as follows:
“The requirement to review the decision [pursuant to the provisions of the Act] requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the jurisdiction embarked upon. The claims or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration… It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act … make it clear that the tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.”
The applicable principles, which apply to cases where it is asserted a jurisdictional error arises because it is said an administrative tribunal has failed to deal with an aspect of a claim which is said to be impliedly rather than expressly put are enunciated by the Full Court of the Federal Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2)[38] as follows:
“The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised on the material before it…There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case are not articulated…It has been suggested that an unarticulated case must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it…The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.” (citations omitted)
[38] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]
From this passage, I take it the Tribunal is required to consider all claims which appear expressly on the face of the material before it whether they are specifically articulated or not. However the Tribunal is not required to seek out such a ground in a creative manner. Accordingly the Tribunal is not required to consider a case which is not expressly made out or which does not arise clearly on the materials before him.
In this case, the reasons of the Tribunal occupy approximately twelve pages. The findings of the Tribunal can be summarised as follows:
·It did not accept that the applicant had been outspoken against either the Mungiki or FGM or that she was a political or religious activist. This finding was made on the basis of inconsistencies noted between her statement to the Department and what she said at hearing. [case book at 18]
·The Tribunal did not accept that the applicant had been speaking out against FGM since she was seventeen years of age. It reached this conclusion on the basis that it was deemed implausible that the applicant would be targeted by the Mungiki, in 2007, some six years after she had allegedly begun her activism, if this was the case. Such a scenario was also regarded as inconsistent with country information regarding the activities of the Mungiki. [case book at 19]
·The Tribunal also regarded it as implausible that the applicant would have continued with activism against FGM between 2007 and when she left Kenya, given the nature of the Mungiki. [case book at 20]
·The Tribunal regarded the applicant’s account of the incident of 2007 as implausible, particularly that the mention of her father’s name had persuaded her attackers to desist from targeting her. This was regarded as inconsistent with county information regarding the modus operandi of the Mungiki. [case book at 21]
·The Tribunal did not accept that the Tribunal had been approached by the Mungiki in 2008 as a marriage partner for their ngai. This claim was rejected on the basis that inconsistent accounts had been provided in respect of it. [case book at 22]
·The Tribunal did not accept claims raised by the applicant at hearing that she had been approached by a Mungiki leader whilst waiting for public transport outside the Nazareth Hospital in 2008. In this context, it was noted that the applicant had been in Australia for a number of years and had not previously raised this claim. [case book at 23]
As a consequence of these findings, the Tribunal found as follows:
“On the basis of the above findings, the Tribunal does not accept that the applicant spoke out against the Mungiki and their customs, traditions and practices, including FGM, or that she was political or religious activist. The Tribunal does not accept that the applicant has become the attention of the Mungiki in the past or that she has been harassed, intimidated and threatened, including an attempted kidnap asstated in the applicant’s adviser’s submission, by the Mungiki either because she is a Kikuyu woman, a Kikuyu woman who has not been circumcised, or because of an implied political opinion based on her alleged activities openly speaking against the Mungiki and FGM. The Tribunal does not accept that the applicant was seen as enemy number one by Mungiki hard core members because of her alleged political and religious activities in opposition to the Mungiki in her village or that she was warned never to return to Kenya or she would be dealt with. The Tribunal therefore does not accept that the applicant faces a real chance of persecution now or in the reasonably foreseeable future from Mungiki thugs, tribal elders, the police and powerful rich men who support Mungiki for these reasons.”[39]
[39] See case book at [24]
It is the function of the Tribunal, not the reviewing court, to be the finder of fact in respect of the applicant’s claims arising under the Act. This includes findings of fact regarding credibility. As McHugh J said in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [40] findings on credibility are a function of the primary decision maker “par excellence”.
[40] See Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]
The Tribunal has provided reasons as to why it has rejected the evidence of the applicant. In so doing, in my view, it has abided by the strictures laid down by McHugh J in Durairajasingham as follows:
“Whenever rejection of evidence is one of the reasons for the decision, the tribunal must set that out as one of its reasons. But that said, it is not necessary for the tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal.”
The Tribunal also rejected another significant aspect of the applicant’s claim, namely that her cousin was both a member and leader of the Mungiki. In this context, it was found to be implausible that the applicant’s former adviser would have advised her not to raise this aspect of her claim, given its centrality to the case presented by her, to the Tribunal, at hearing.
Accordingly, the Tribunal made the following finding of fact, which again, in my view, was a function which fell in its sole domain:
“… the Tribunal does not accept that the applicant’s life is in danger because of her alleged familial relationship with a Mungiki leader or that she is a target because her cousin is allegedly a Mungiki leader or member.”[42]
[42] See case book at [27]
It is in the context of the comprehensive rejection of the applicant’s case, regarding her targeting by the Mungiki in the past and her relationship with her cousin, that the court must consider the submission that the Tribunal did not consider a central integer of her claim, namely the fact that she was an uncircumcised Kikuyu woman, which exposed her to a real chance of persecution in Kenya.
In my view, the Tribunal did consider this aspect of the applicant’s claim but rejected it. It did so largely on the basis of country information available to it, particularly information available from the United Kingdom Home Office, but also on the basis of its finding that the applicant did not have any relatives amongst the Mungiki. In this context, the Tribunal accepted that relatives of Mungiki and defectors from the group were at risk of FGM.
According to information provided by the UK Home Office, FGM is performed mostly on girls aged 12 to 18 in Kenya and the practice declines with age. The practice is also said to be more prevalent in the North Eastern Province of Kenya, amongst Somalis; Kisii; and Maasai. The UK information noted that “uncircumcised women in Kenya, whether Gikuyu/Kikuyu or not, are not as such, at real risk of FCM.”[43]
[43] Ibid at [28]
In this context, the Tribunal found as follows:
“While the Tribunal accepts that the Mungiki advocate for FGM and in some cases forced FGM practices upon girls and women in its communities, on the basis of country information before it, including information submitted by the applicant’s adviser, the Tribunal finds that it is family members of the Mungiki members and defectors, particularly their wives, who are at risk of FGM. Based on the Tribunal’s findings that the applicant is not a family member of a Mungiki leader or member and that she has not come to the attention of the Mungiki in the past either because of her alleged activities speaking out against them, because she is not circumcised or for marriage, and the country information before it, including the information discussed above, the Tribunal does not accept that there is a real chance that the applicant will face serious harm in the form FGM or forced marriage for reasons of her membership of the particular social group of Kikuyu women, young Kikuyu women or Kikuyu women who are not circumcised, or any combination.”[44]
[44] Ibid at [29]
In my view, the Tribunal considered both the applicant’s personalised claims for protection, based on her relationship with her cousin and what she asserted had specifically happened to her in Kenya, and any implied or more generic claim, based on her gender and uncircumcised condition.
It rejected both aspects of the claim. The former largely on credit grounds, the latter on the basis of country information and particularly its finding regarding the prevalence (or lack thereof) of FGM amongst the social group to which it found the applicant belonged. As such I do not consider that ground two is made out.
Conclusions
In all these circumstances, I do not consider that the applicant had demonstrated any jurisdictional error in the decision of the Tribunal.
It must follow therefore that the application should be dismissed and the applicant should pay the first respondent’s costs fixed in the sum of $6,646.00.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and forty-two (142) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 16 June 2015
[12] Ibid at [28]
[37] Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42]
[41]Ibid at 422-423
10
12
2