CGS19 v Minister for Immigration and Anor

[2020] FCCA 2045

FEDERAL CIRCUIT COURT OF AUSTRALIA

CGS19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2045

Catchwords:
MIGRATION – Application for protection visa – adverse credibility findings made against applicant – no conflation of issues on the part of the Tribunal – no jurisdictional error demonstrated – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 65.

Cases cited:

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.

CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496.

DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Applicant: CGS19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 540 of 2019

Judgment of: Judge Egan

Hearing date: 23 July 2020

Date of Last Submission: 27 July 2020

Delivered at: Brisbane

Delivered on: 28 July 2020

REPRESENTATION

Counsel for the Applicant: Mr Williams

Solicitors for the First Respondent: Mr Kyranis, Solicitor of Sparke Helmore

Second Respondent: Submitting appearance save as to costs

ORDERS

1. The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

2. The Applicant have leave to file the Draft Amended Application emailed by the Applicant to the First Respondent and to Judge’s chambers on 27 July 2020, and that such Amended Application be treated as the Amended Application for Review for the purposes of the final hearing of the application before the court.

3. The Amended Application for Review filed by leave on 28 July 2020 be dismissed.  

4. The Applicant pay the First Respondent’s costs of and incidental to the application for review to be agreed or failing agreement to be taxed pursuant to Rule 21.11 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 540 of 2019

CGS19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Kenya who applied for a protection visa pursuant to the provisions of s. 65 of the Migration Act 1958 (Cth) (‘the Act’) on 14 August 2017.

2. On 4 May 2019, the Administrative Appeals Tribunal (‘the Tribunal’) affirmed a decision of the delegate to refuse to grant to the applicant a protection visa.

3. On 7 June 2019, the applicant filed an Originating Application for Review of the decision of the Tribunal. Prior to the handing down of judgment on the application for review before this Court, the Court granted leave to the applicant to rely upon an Amended Application sent by email to the first respondent and to Judge’s Chambers on 27 July 2020. Such Amended Application for Review is marked Exhibit 4. The grounds for review as set out in such Amended Application for Review were as follows:

   “Ground 1: The Tribunal misapplied the relevant principles, failed to give proper consideration to the applicant’s claims or there was an insufficient logical or evidentiary basis for the Tribunal to find that the applicant did not face a real risk of harm in Kenya

   1. The decision by the Tribunal was affected by jurisdictional error as the Tribunal either misapplied the relevant principles, or failed to give genuine, proper or realistic consideration to the applicant’s claims or there was an insufficient logical or evidentiary basis for the Tribunal to make the following findings (i) at [87], that the Tribunal failed to understand and examine the persecution of the applicant based on his membership of an ethnic group by conflating and failing to differentiate his membership of an ethnic group with membership of a criminal group, giving rise to jurisdictional error; (ii) at [31] and [171], that the Tribunal misapplied the relevant principles when making the adverse credibility finding; (iii) at [187] by failing to differentiate the complementary criterion from the refugee criterion.

   Particulars

   The protection claims

   a) At [24] of the decision record, the Tribunal found that the applicant is a citizen of the Republic of Kenya (Kenya) who claims protection in the Commonwealth of Australia (Australia) due to a real risk of harm for the reasons summarised at [2]-[4].

   4. If he returns to Kenya he will be killed for the following reasons:

   ·As a Kikuya he will be killed by members of non-Kikuyu tribes who for a long time viewed the Kikuya community as their enemy. Non-Kikuyu tribes have already started a wave of violence as a result of 8 August 2017 election and post-election violence. There have been sectarian killings in Kenya as a result.

   ….

   ·He will be killed by Kenyan police killing squads that target Kikuyu youth they suspect to be members or sympathisers of Mungiki. The authorities have never stopped extrajudicial targeted assassinations against Kikuyu youths they suspect of being Mungiki members and he fears he will be killed just like his uncle was killed.

   b) At [20], the applicant made a new claim before the Tribunal by way of email dated 12 July 2018, that he will face a real risk of harm if returned to Kenya because he was falsely charged with rape by Australian authorities, which was later withdrawn.

   The country information

   c) At [86], the Tribunal either misapplied, misunderstood, misconstrued the country information or did not give proper, genuine or realistic consideration to the country information and the application of the country information to the applicant’s claims lacked evident and intelligent justification.

   86. The Tribunal considered the country information he provided with his response, which included the following:

   ·An article from 2018 entitled “Mungiki: we’ll hunt you down to the last, state official warns” which indicates that 90 people connected to the gang “are in police custody”. The Commissioner warns that they have changed their name but are continuing to cause fear among residents and local populations including soliciting bribes, collecting protection money and making illicit liquor.

   ·An article from 2018 entitled: “Special squads sent to hunt for emerging Mungiki gang in Muranga”. This notes that police squads have been sent to investigate claims that Mungiki is re-emerging, as a result of reports that they have been extorting money from villagers and business people, the Inspector General of Police asks that victims of extortion should report to the police station for action.

   ·An article entitled “The trajectories of survival of the Mungiki youth in [omitted]” by Susan Kilonzo, 26 March 2012. She states that she takes an “extreme perspective” (p.230), and refers to discussions with six ex-sect members. This article suggests that (prior to and about the time the applicant claims his uncle was killed and he became wanted as a man associated with Mungiki) in 2007 Mungiki had organised itself to extort money from slum residents.

   Jurisdictional error

   d) At [87], the Tribunal accepted that the “evidence suggests that the Mungiki grew out of youth disaffection, many are non-literate youths who turned to crime and the group has been banned since 2002 as a result of their vicious criminal and murderous acts.” The Tribunal accepted that the “Mungiki have been used for political ends or they have political connections and/or on occasions they have sought legitimacy.” The Tribunal erred by finding that “…however, the evidence in the main is that they are a criminal group, who use criminal means, and membership of this group is illegal and a crime. This has been the case since 2002, well before the applicant claims to have been targeted by the authorities and in hiding from the authorities for his perceived or actual involvement with the Mungiki.”

   e) The Tribunal failed to understand and examine the persecution of the applicant based on his membership of an ethnic group by conflating and failing to differentiate his membership of an ethnic group with membership of a criminal group, giving rise to jurisdictional error.

   87. The Tribunal accepts that the evidence suggests that the Mungiki grew out of youth disaffection, many are non-literate youths who turned to crime and the group has been banned since 2002 as a result of their vicious criminal and murderous acts. Like with many political parties and agendas, organised groups can be used for political agendas. The Tribunal accepts that the Mungiki have been used for political ends or they have political connections and/or on occasions they have sought legitimacy; however, the evidence in the main is that they are a criminal group, who use criminal means, and membership of this group is illegal and a crime. This has been the case since 2002, well before the applicant claims to have been targeted by the authorities and in hiding from the authorities for his perceived or actual involvement with the Mungiki…

   The adverse credibility finding

   f) The finding by the Tribunal at [31] was affected by jurisdictional error as the Tribunal either misapplied the relevant principles, or failed to give genuine, proper or realistic consideration to the applicant’s claims or there was an insufficient logical or evidentiary basis for the Tribunal to make an adverse credibility finding against the applicant.

   31. Having considered the relevant evidence, the Tribunal has concerns about the applicant’s credibility and the veracity of his claims. For the reasons set out below, the Tribunal considers that the applicant’s evidence was inconsistent, changing and not credible about many aspects central, and relevant to, his background and claims. Taking these concerns into account, as well as the applicant’s failure to participate in a hearing to allow his claims to be tested in evidence, the Tribunal has found that it is not satisfied that important aspects of the applicant’s background and claims are true.

   The Tribunal’s findings under the refugee criterion

   g) The Tribunal erred at [171], by finding that “[o]n the basis of the adverse credibility finding the Tribunal does not accept that the applicant has experienced any of the adverse interest or harm or targeting claimed in Kenya, for any of the reasons claimed (as a young, educated, male, Christian, musician, of Kikuyu ethnicity, as a result of 2007/2008 postelection events, for reason of any family connections, as imputed Mungiki involvement, from Kenyan Police killing squads or any aspect of the Kenyan authorities, government, ruling Kikuyu elites, or from Mungiki or opposition supporters or non-Kikuyu tribes).

   171. On the basis of the adverse credibility finding the Tribunal does not accept that the applicant has experienced any of the adverse interest or harm or targeting claimed in Kenya, for any of the reasons claimed (as a young, educated, male, Christian, musician, of Kikuyu ethnicity, as a result of 2007/2008 post-election events, for reason of any family connections, as imputed Mungiki involvement, from Kenyan Police killing squads or any aspect of the Kenyan authorities, government, ruling Kikuyu elites, or from Mungiki or opposition supporters or non-Kikuyu tribes). It does not accept that he or his family experienced difficulties or harm in the 2007/2008 post- election violence. It does not accept that that the applicant was related to [omitted] nor anyone involved in the Mungiki nor that he or his father or brother were targeted or of adverse interest nor that he was questioned or threatened or harassed from any source (nor that his father fled to the USA in fear as claimed). The Tribunal does not accept that the applicant was involved or imputed to be involved in the Mungiki nor that he received tip-offs from the Mungiki in order to avoid police killing squads, nor that would he faces a real chance or real risk of being considered a defector by anyone. It does not accept that he lived in hiding or was in fear in Kenya nor that he left Kenya because of fear of harm. It does not accept that he has received threats or been the subject of adverse attention or interest since he left Kenya.

   The Tribunal’s findings under the complementary criterion

   a) Further, the Tribunal fell into jurisdictional error at [187] by failing to differentiate the complementary criterion from the refugee criterion and therefore by failing to examine and deal with the applicant’s claims in the context of the principles under the complementary criterion, as distinct from the refugee criterion.

   187. The Tribunal does not accept that the applicant has experienced any adverse interest as claimed nor that he has the profile claimed. It has accepted that he is Kikuya from [omitted] who will return to [omitted], that he is well-educated and qualified and intelligent and resourceful and has work experience as an accountant.

   It has also accepted that he is Christian, and a musician. It has found that he has family members in Kenya and it does not consider that he faces a real risk of not having access to work or accommodation. It does not accept that he or his family members have ever been a target of the authorities or killing squads and it does not accept that he faces a real risk of adverse attention or significant harm from the authorities. It notes that the Mungiki have been engaging in brutal conduct in the country and that the authorities have engaged in repression of Mungiki for many years. It has found that the applicant has not previously experienced harm at the hands of the Mungiki nor the authorities. It is not satisfied on the evidence before it that the applicant faces significant harm from these sources in the future. The Tribunal does not accept that because the applicant is a Kikuyu who will live in [omitted] and work and is a Christian who will attend church and is a musician and that he has been living in a western country and likes western concepts that he faces a real risk of significant harm. It also does not accept that he faces a real-risk of significant harm from other tribes because he is a Kikuyu, or from opposition supporters at election times or other times, or otherwise. It does not accept that people in Kenya are aware or that there is a real chance or a real risk that they will become aware that the applicant was charged with sexual assault and that the charged were then dropped and that this would lead, for any reason, to the applicant facing a real risk of significant harm, given the prevalent attitudes as referred to in the country information.

   Jurisdictional error

   b) It was not enough for the IAA [Tribunal] to simply dismiss the applicant’s claim for protection under the complementary criterion by applying the Tribunal’s findings under the refugee criterion. The Tribunal failed to appreciate that the considerations under the refugee criterion are different in kind to the considerations under the complementary criterion. As a consequence, the Tribunal failed to constructively review the applicant’s claims under the complementary criterion, giving rise to reviewable error.

   h) The Tribunal therefore erred at [188] by finding that it was not satisfied that the applicant faces a real risk of experiencing significant harm for any reason, including when considering his profile on a cumulative basis.”

4. The applicant’s relevant pre-protection visa application history, as gleaned from his protection visa application and an accompanying statement, was recorded at [2] of the reasons of the Tribunal as follows:

   ·“The applicant was born in 1990 in [omitted], Kenya and is now aged 28 years old. Both his parents were Kenyan citizens.

   ·He speaks, reads and writes in Swahili and English, and he speaks and reads in Kikuyu. He does not need an interpreter.

   ·He is a Christian.

   ·He lived all of his life in [omitted] district of [omitted], until November 2013.

   ·He undertook his schooling in Kenya, including a Bachelor of Commerce and Business Administration (Finance Option) at [omitted] (completed December 2012).

   ·His occupation is accountant. In Kenya he worked for an insurance broking company, in charge of payables and receivables in the accounting sector.

   ·He married on [omitted] in [omitted], having commenced a relationship on 12 December 2013.

   ·His parents, two brothers and one sister reside in Kenya. He communicates with his family in Kenya at least once a fortnight by text message or social media platforms such as WhatsApp.

   ·His passport was issued in [omitted], expiring in [omitted].

   ·He applied for a visa for Turkey and in support of his application, he informed the Turkish authorities that he wanted to enter Turkey to research the Turkish tourism business model. He was granted a visa to Turkey allowing him to enter between 11 August 2014 until 6 January 2015. While in Turkey, he worked as an accountant for a music recording company.

   ·He left from [omitted], Kenya on 8 January 2015, arriving in Australia on 9 January 2015 as a visitor.

   ·From April 2015 until April 2016 he worked in Alice Springs as a general manager at a radio station.

   ·From August 2015 until October 2015 he started studying at Charles Darwin University.

   ·At the time of signing his protection visa application he was working in an advertising business overseeing all of the business operations and in charge of creating sales at Scooter Promotions (Sydney).”

5. The applicant’s reasons for claiming protection were as summarised by the Tribunal at [3] of its reasons as follows:

   ·“He left Kenya for Turkey in December 2013 because he felt as a Kikuyu that his life was under threat from non-Kikuyu communities who despised them, and the government was unable to protect the Kikuyu communities as shown during the 2007/2008 post-election violence. He was not able to claim protection at that time in Turkey as Turkey was only processing cases from Syria and Iraq and Muslim countries.”

   ·He also left to avoid being killed by the Kenyan police killing squad which was targeting young Kikuyu who they believed to be suspected sympathisers or members of Mungiki. They also use this as a pretext to target Kikuyu youth.

   ·His uncle, [omitted], was a prominent member of the Mungiki group. The authorities wanted to kill him and his uncle for being Mungiki members.

   ·He did not seek help from the authorities as they were unable to protect Kikuya during post-election violence and he feared they would rather kill than protect him as they believed his family were supporters of Mungiki gang.

   ·He could not relocate because if he went to other Kikuyu areas those areas faced brutal killings by the Mungiki against youths who refused to join their ranks.”

1. The Tribunal summarised what the applicant claimed would happen to him if he returned to Kenya at [4] of its reasons as follows:

   ·“As a Kikuyu he will be killed by members of non-Kikuyu tribes who for a long time viewed the Kikuyu community as their enemy. Non-Kikuyu tribes have already started a wave of violence as a result of 8 August 2017 election and post-election violence. There have been sectarian killings in Kenya as a result.

   ·Whenever there is inter-ethnic violence which breaks out, Kikuyu like himself are always the main targets of other tribes.

   ·He will be killed by Kenyan police killing squads that target Kikuyu youth they suspect to be members or sympathisers of Mungiki. The authorities have never stopped extrajudicial targeted assassinations against Kikuyu youths they suspect of being Mungiki members and he fears he will be killed just like his uncle was killed.

   ·Kenyan authorities fan sectarian violence as a tool for maintaining political control and they often seek revenge against ordinary Kikuyu like the applicant against Kikuyu elites running the country. They targeted Kikuyu youths like himself on "false allegations that we belong to the outlawed Mungiki gang".”

Applicant’s Three Points of Claimed Jurisdictional Error

1. At the hearing of the Amended Application for Review, Mr Williams of Counsel on behalf of the applicant identified succinctly what he submitted were three respects in which the Tribunal fell into jurisdictional error.

2. The first claimed error was based upon the assertion that the Tribunal had conflated membership of an ethnic group in Kenya – namely as a person of Kikuyu ethnicity – with membership of a criminal organisation – namely the Mungiki gang. It was submitted on behalf of the applicant that the Tribunal erred by failing to find that the applicant would face serious harm if he returned to Kenya by reason of his Kikuyu ethnicity, quite apart from, and irrespective of, any finding by the Tribunal in relation to the Mungiki gang, and whether or not the applicant had close ties to it. It was submitted that the Tribunal had not properly evaluated or otherwise intellectually engaged in a consideration of whether there was a real chance that the applicant would suffer serious harm if he returned to Kenya as a result of his being a Kikuyu.

3. The second claimed error was based upon the submission that the Tribunal had, at [31] of its reasons, “misapplied the relevant principles, or failed to give genuine, proper or realistic consideration to the applicant’s claims or there was an insufficient logical evidentiary basis for the Tribunal to make an adverse credibility finding against the applicant”. [1] The Tribunal made findings at [31] of its reasons as follows:

   “[31] Having considered the relevant evidence, the Tribunal has concerns about the applicant's credibility and the veracity of his claims. For the reasons set out below, the Tribunal considers that the applicant's evidence was inconsistent, changing and not credible about many aspects central, and relevant to, his background and claims. Taking these concerns into account, as well as the applicant's failure to participate in a hearing to allow his claims to be tested in evidence, the Tribunal has found that it is not satisfied that important aspects of the applicant's background and claims are true.”

   It was further submitted under this category of claimed jurisdictional error that the Tribunal had erred by making the findings that it did at [171] of its reasons, which were as follows:

   “[171] On the basis of the adverse credibility finding the Tribunal does not accept that the applicant has experienced any of the adverse interest or harm or targeting claimed in Kenya, for any of the reasons claimed (as a young, educated, male, Christian, musician, of Kikuyu ethnicity, as a result of 2007/2008 post-election events, for reason of any family connections, as imputed Mungiki involvement, from Kenyan Police killing squads or any aspect of the Kenyan authorities, government, ruling Kikuyu elites, or from Mungiki or opposition supporters or non-Kikuyu tribes). It does not accept that he or his family experienced difficulties or harm in the 2007/2008 post- election violence. It does not accept that that the applicant was related to [omitted] nor anyone involved in the Mungiki nor that he or his father or brother were targeted or of adverse interest nor that he was questioned or threatened or harassed from any source (nor that his father fled to the USA in fear as claimed). The Tribunal does not accept that the applicant was involved or imputed to be involved in the Mungiki nor that he received tip-offs from the Mungiki in order to avoid police killing squads, nor that would he faces a real chance or real risk of being considered a defector by anyone. It does not accept that he lived in hiding or was in fear in Kenya nor that he left Kenya because of fear of harm. It does not accept that he has received threats or been the subject of adverse attention or interest since he left Kenya.”

   [1]        Ground 1(f) of applicant’s submissions filed on 28 January 2020.

4. The third claimed error was based upon the submission that the Tribunal at [187] of its reasons fell into error “by failing to differentiate the complimentary criterion from the refugee criterion and therefore by failing to examine and deal with the applicant’s claims in the context of the principles under the complimentary criterion, as distinct from the refugee criterion”. Paragraph [187] of the reasons of the Tribunal was as follows:

   “[187] The Tribunal does not accept that the applicant has experienced any adverse interest as claimed nor that he has the profile claimed. It has accepted that he is Kikuya from [omitted] who will return to [omitted], that he is well-educated and qualified and intelligent and resourceful and has work experience as an accountant. It has also accepted that he is Christian, and a musician. It has found that he has family members in Kenya and it does not consider that he faces a real risk of not having access to work or accommodation. It does not accept that he or his family members have ever been a target of the authorities or killing squads and it does not accept that he faces a real risk of adverse attention or significant harm from the authorities. It notes that the Mungiki have been engaging in brutal conduct in the country and that the authorities have engaged in repression of Mungiki for many years. It has found that the applicant has not previously experienced harm at the hands of the Mungiki nor the authorities. It is not satisfied on the evidence before it that the applicant faces significant harm from these sources in the future. The Tribunal does not accept that because the applicant is a Kikuyu who will live in [omitted] and work and is a Christian who will attend church and is a musician and that he has been living in a western country and likes western concepts that he faces a real risk of significant harm. It also does not accept that he faces a real-risk of significant harm from other tribes because he is a Kikuyu, or from opposition supporters at election times or other times, or otherwise. It does not accept that people in Kenya are aware or that there is a real chance or a real risk that they will become aware that the applicant was charged with sexual assault and that the charged were then dropped and that this would lead, for any reason, to the applicant facing a real risk of significant harm, given the prevalent attitudes as referred to in the country information.”

   It was further submitted by Mr Williams that an adverse credibility finding made by the Tribunal against the applicant could not “wash away” the applicant’s risk of suffering harm should he be returned to Kenya by reason of his ethnicity. It was submitted that “It was not enough for the [Tribunal] to simply dismiss the applicant’s claim for protection under the complimentary criterion by applying the Tribunal’s findings under the refugee criterion. The Tribunal failed to appreciate that the considerations under the refugee criterion are different in kind to the considerations under the complimentary criterion. As a consequence, the Tribunal failed to constructively review the applicant’s claims under the complimentary criterion, giving rise to reviewable error”. [2]

   [2]        Paragraphs (a) and (b) on pages 5 and 6 of applicant’s submissions filed on 28 January 2020 and

5. In submissions filed on behalf of the first respondent, it was submitted that the material before the Court indicated that the applicant claimed to fear harm from three distinct sources, namely from:

   a)Non-Kikuyu tribe/clan members who it was claimed wished to harm him because of his Kikuyu ethnicity. [3]

   b)The police who the applicant claimed had a killing squad which targeted young Kikuyu who were suspected to be members or sympathisers of the Mungiki gang – the applicant said that his uncle was a prominent member of the Mungiki group and that therefore the authorities would wish to kill the applicant as well as his uncle.

   c)Members of the Mungiki gang because he was a musician; because his father preached the Christian gospel; and because members of the Mungiki believed that he had defected from their gang. [4]

   [3] Court Book (CB) p. 24 – paragraph [76].

   [4]        CB p. 112.

6. It was also claimed by the applicant that even though he had been released from jail without conviction after having been arrested and charged in Australia on the charge of rape, members of the applicant’s community in Kenya would treat such incarceration as evidence of his guilt, thereby justifying his being assaulted or killed if he was to return.

7. As to the question of the applicant’s credibility, the first respondent submitted that there were thirteen (13) distinct bases upon which the Tribunal found, at [89] of its reasons, that the applicant was not a witness of credit, and at [168] of its reasons, that the applicant had exaggerated and fabricated accounts as to his background and past events, as well as his claimed fears, all of which the applicant had based his protection claims upon. The first respondent set out in its written submissions the thirteen (13) bases upon which the Tribunal had found that the applicant lacked credibility. [5] Those findings were as follows:

   [5]        See 15.1 – 15.13 of first respondent’s submissions filed on 28 January 2020.

   “15.1    He had claimed to have left Kenya in 2009 after his uncle was killed, but he actually remained in Kenya for five years after his uncle’s death (CB 334, [32]-[33]).

   15.2     His claims with respect to the Mungiki gang were evolving and unclear. The Tribunal noted that he claimed to have been both an affiliate and a target of the gang (CB 335, [34]-[36]).

   15.3     The applicant’s evidence to the department had changed depending on the type of visa for which he was applying at a given point in time (CB 335-336, [37]-[40]).

   15.4      He claimed to fear harm from non-Kikuyus communities but had also said that he had never been harmed or threatened by those communities (CB 336, [40]).

   15.5     He gave no explanation for why he did not attempt to escape to one of the East African countries that border Kenya if his life was in constant danger in Kenya (CB336-337, [41]-[43]).

   15.6     The applicant and his then partner had booked a trip to Kenya in 2015, which was inconsistent with his claims to fear harm in that country. His response to that aspect of the s 424A information request was found to be inadequate (CB 337-338, [44]-[47]).

   15.7       His visitor and partner visa applications contained evidence to the effect that he had a job whilst living in Kenya and that he had travelled out of the country on various occasions. His response to that aspect of the s 424A information request was also found to be inadequate (CB 337-338, [48]-[58).

   15.8     The applicant made no claims to fear harm in Kenya during his previous visa applications or in any correspondence to the department or to the lawyers that represented him during those previous applications. His response to that aspect of the s 424A information request was also found to be (CB 340-342, [59]- [65]).

   15.9     The applicant failed to disclose that he had a right to reside in Turkey, and the evidence he gave on the topic when it was put to him in the s 424A request was inconsistent (CB 342-344, [66]-[75]).

   15.10    The applicant had previously supplied a Kenyan Police Certificate to the department, which demonstrate a willingness on his behalf to engage with Kenyan authorities. His response to that aspect of the s 424A information request was also found to be inadequate (CB 344-346, [76]-[81]).

   15.11     The content of his protection visa application directly contradicted his subsequent claims to have been involved with the Mungiki gang (CB 346-347, [82]-[83]).

   15.12    The applicant told the department, when responding to a notice to cancel his bridging visa, that he had never had any troubles with the Kenyan authorities. His response to that aspect of the s 424A information request was also found to be inadequate (CB 346-348, [84]-[87]).

   15.13    Upon arrival in Australia the applicant lodged other visas instead of pursuing a protection visa. It wasn’t until those other visa applications failed that he lodged his protection visa application (CB 348-349, [88]).”

8. It was open on the evidence before the Tribunal for the Tribunal to make such findings. The Tribunal closely considered the applicant’s claims in the context of the evidence before the Tribunal before making the findings which it did. The Tribunal carried out a balancing exercise when it did so. The findings were soundly based and each had an evidentiary foundation justifying the making of such findings. It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal based upon such findings. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] and [135]:

   “[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   …

   [135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”

9. The Court does not accept the applicant’s submission that the Tribunal first fell into jurisdictional error by conflating the applicant’s membership of an ethnic group with whether or not the applicant had an association with a criminal organisation. The Tribunal had regard to inconsistencies in the applicant’s evidence. At [75] of its reasons, the Tribunal recognised inadequacies in the applicant’s evidence when it said as follows:

   “[75] Further, when the Tribunal had put to the applicant pursuant to s.424A of the Act the itinerary and e-ticket receipts for travel from Istanbul to [omitted] in August 2015, it noted that this ability to be in Turkey in August 2015 contradicted the claim in his protection visa application that his ability to enter Turkey had expired on 6 January 2015, before he came to Australia. In his written response the applicant claimed that this difference was irrelevant to his protection visa application; failure to provide an accurate date doesn't necessarily mean he intended to mislead the Australian government. As far as he was concerned his opportunity to be a permanent resident in Turkey was lost. He then claimed that "at all times the details of my visa status was clear to the Department, on the face of the documents I provided to the Department" (prior to his arrival in Australia). If the applicant believed this to be the case, it is not clear as to why he would have claimed in his protection visa application that his Turkish visa had expired prior to his arrival in Australia. The Tribunal considers that this indicated that he gave misleading information in his protection visa application about his Turkish visa, which indicated that he was prepared to give false information in order to remain in Australia, which undermines his credibility.”

10. The Tribunal logically approached its decision-making responsibilities by analysing all of the evidence, and weighing up such evidence, against the applicant’s claims. So much was evident from a reading of [87] of the reasons of the Tribunal where it was said:

    “[87] The Tribunal accepts that the evidence suggests that the Mungiki grew out of youth disaffection, many are non-literate youths who turned to crime and the group has been banned since 2002 as a result of their vicious criminal and murderous acts. Like with many political parties and agendas, organised groups can be used for political agendas. The Tribunal accepts that the Mungiki have been used for political ends or they have political connections and/or on occasions they have sought legitimacy; however, the evidence in the main is that they are a criminal group, who use criminal means, and membership of this group is illegal and a crime. This has been the case since 2002, well before the applicant claims to have been targeted by the authorities and in hiding from the authorities for his perceived or actual involvement with the Mungiki. The Tribunal considers that the evidence provided does not support the applicant's suggestion that no one except for a few select people would know that the applicant was being searched for and targeted as a Mungiki. While the Tribunal accepts that the applicant may not have been charged or have a conviction, it is his claim that he is a wanted man. If there were not the other difficulties with his evidence, the Tribunal would be prepared to accept that the applicant's response to the Department seeking his visa not be cancelled was because he was claiming that he had not been charged or convicted. However, the Tribunal considers that the above concerns show that the applicant is prepared to make claims to suit whichever application is ongoing, and it considers that if his protection visa claims were genuine and he was a hunted, wanted man because of his actual/imputed involvement with the criminally outlawed Mungiki group (and that he is recorded within the CID as being affiliated with Mungiki), he would not have asserted in his cancellation proceedings that he had never had trouble with the Kenyan authorities.”

11. The Tribunal’s findings were made by it after it had considered country information submitted to it by the applicant as well as other reports. [6] It cannot be said that the Tribunal, when so analysing the matters of relevance before it, failed to consider relevant material, or otherwise failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] - [27], where it was said:

    “[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

    [26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

    [27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”

    [6] [86] and [174] of the reasons of the Tribunal.

1. Having made adverse credibility findings against the applicant, the Tribunal did not accept the applicant’s claims that he was of any interest to anyone in Kenya who might cause harm to him because of any of his claimed reasons. At [171] and [172] of its reasons, the Tribunal contextually based its adverse credibility findings on an examination of the applicant’s claims where it said:

   “[171] On the basis of the adverse credibility finding the Tribunal does not accept that the applicant has experienced any of the adverse interest or harm or targeting claimed in Kenya, for any of the reasons claimed (as a young, educated, male, Christian, musician, of Kikuyu ethnicity, as a result of 2007/2008 post-election events, for reason of any family connections, as imputed Mungiki involvement, from Kenyan Police killing squads or any aspect of the Kenyan authorities, government, ruling Kikuyu elites, or from Mungiki or opposition supporters or non-Kikuyu tribes). It does not accept that he or his family experienced difficulties or harm in the 2007/2008 post- election violence. It does not accept that that the applicant was related to [omitted] nor anyone involved in the Mungiki nor that he or his father or brother were targeted or of adverse interest nor that he was questioned or threatened or harassed from any source (nor that his father fled to the USA in fear as claimed). The Tribunal does not accept that the applicant was involved or imputed to be involved in the Mungiki nor that he received tip-offs from the Mungiki in order to avoid police killing squads, nor that would he faces a real chance or real risk of being considered a defector by anyone. It does not accept that he lived in hiding or was in fear in Kenya nor that he left Kenya because of fear of harm. It does not accept that he has received threats or been the subject of adverse attention or interest since he left Kenya.

   [172] The Tribunal notes that the applicant claims that the government cannot protect the Kikuya communities and provides as an example the events from more than 10 years ago (postelection violence 2007/2008). The Tribunal accepts that there has been violence in Kenya in the past for example at election times, from the authorities, from Mungiki or other criminal gangs, or for political and other reasons. The Tribunal does not accept that the applicant has ever been targeted or harmed or experienced harm or threats for these reasons. The Tribunal notes that the applicant did not leave Kenya after that post-election violence; indeed he waited a further 8/9 years to leave. The Tribunal considers that the applicant is an intelligent, resourceful, well educated person with work experience who could have moved, even temporarily, to EAC countries if at any stage while he was in Kenya, his profile meant that he faced a real chance of serious harm or real risk of significant harm or a real lack of state protection. Instead, the applicant remained in Kenya, and engaged in studying for a Bachelor Degree, and thereafter applied for work and obtained work, and travelled in and out of Kenya when he wished.”

2. There is no merit to the applicant’s first claimed ground of jurisdictional error. The Tribunal was well aware of the distinction between matters relating to the applicant’s Kikuyu ethnicity as opposed to his actual or imputed involvement with the Mungiki gang.

3. As to the second claimed ground for jurisdictional error asserted by the applicant, the Court accepts the first respondent’s submission that the applicant has not demonstrated that the Tribunal failed to consider relevant evidence, misunderstood evidence, had regard to irrelevant considerations, or otherwise was illogical in the way in which it assessed the evidence before it. Although not beyond scrutiny, it is a high bar for an applicant to overturn adverse findings of credibility made logically and without obvious error. As was said by McKerracher, Griffiths and Rangiah JJ in CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [37] and [38]:

   “[37]… The fact that credibility is a matter for the Tribunal to determine as a question of fact does not mean that challenges to credibility are not open. This appeal illustrates three of a number of potential bases of challenge to credibility findings on well-established legal precedent. In the present appeal, the foundation for the challenge is on the basis of no logical or probative basis for the finding in relation to ground 1, illogicality and/or irrationality in relation to ground 2, and, in relation to ground 3, a lack of natural justice.

   [38] There are several other potential bases upon which credit findings can be challenged. Recitation of the expression that credibility is a matter par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis. While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as:

   (a) failure to afford procedural fairness;

   
   
   

   (b) reaching a finding without any logical or probative basis;

   
   
   

   (c) unreasonableness; and/or

   
   
   

   (d) jurisdictional error as discussed by Flick J in SZVAP.”

4. The Court further relies upon the joint judgment of Kenny, Kerr and Perry JJ in DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30] where it was said:

   “[30] The relevant principles can be summarised as follows.

   (1) …

   (5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].”

5. The Tribunal did not err in the way in which it approached its assessment of the applicant’s credibility. There is no merit to the applicant’s second claimed ground of jurisdictional error.

6. As to the applicant’s third claimed ground, it is clear that at [186] – [189] inclusive of its reasons, the Tribunal separately and distinctly dealt with the question of whether the applicant satisfied the relevant s. 36(2)(aa) complimentary criteria. It did not err in its appreciation of the different matters which it was obliged to have regard to in that regard, as compared with its consideration of the refugee criteria under s. 36(2)(a) of the Act. So much is clear from a reading of those paragraphs which were as follows:

   “[186] Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) (see Annexure A, which provides a summary of the relevant terms).

   [187] The Tribunal does not accept that the applicant has experienced any adverse interest as claimed nor that he has the profile claimed. It has accepted that he is Kikuya from [omitted] who will return to [omitted], that he is well-educated and qualified and intelligent and resourceful and has work experience as an accountant. It has also accepted that he is Christian, and a musician. It has found that he has family members in Kenya and it does not consider that he faces a real risk of not having access to work or accommodation. It does not accept that he or his family members have ever been a target of the authorities or killing squads and it does not accept that he faces a real risk of adverse attention or significant harm from the authorities. It notes that the Mungiki have been engaging in brutal conduct in the country and that the authorities have engaged in repression of Mungiki for many years. It has found that the applicant has not previously experienced harm at the hands of the Mungiki nor the authorities. It is not satisfied on the evidence before it that the applicant faces significant harm from these sources in the future. The Tribunal does not accept that because the applicant is a Kikuyu who will live in [omitted] and work and is a Christian who will attend church and is a musician and that he has been living in a western country and likes western concepts that he faces a real risk of significant harm. It also does not accept that he faces a real-risk of significant harm from other tribes because he is a Kikuyu, or from opposition supporters at election times or other times, or otherwise. It does not accept that people in Kenya are aware or that there is a real chance or a real risk that they will become aware that the applicant was charged with sexual assault and that the charged were then dropped and that this would lead, for any reason, to the applicant facing a real risk of significant harm, given the prevalent attitudes as referred to in the country information.

   [188] The Tribunal is not satisfied that the applicant faces a real risk of experiencing significant harm for any reason, including when considering his profile on a cumulative basis.

   [189] On the evidence presently before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case Kenya, there is a real risk that he will suffer significant harm for the purposes of s.36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).”

7. The decision of the Tribunal could not be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

8. There is no merit to the applicant’s third claimed basis of jurisdictional error.

9. The applicant has failed to establish jurisdictional error on the part of the Tribunal.

10. The Amended Application for Review is without merit and is dismissed.

11. The Court will hear the parties as to costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 28 July 2020

         at paragraphs [3] – [10] inclusive of applicant’s submissions filed on 28 January 2020.