Mwakaya v Minister for Immigration and Multicultural Affairs

[2000] FCA 814

FEDERAL COURT OF AUSTRALIA

Mwakaya v Minister for Immigration & Multicultural Affairs [2000] FCA 814

MIGRATION – refugee – whether well-founded fear of persecution – Kenyan national – membership of Kenyan Muslim party – detention and mistreatment by police in 1995 – arising from violent demonstrations – release on reporting conditions – departure from country contrary to reporting conditions – the well-founded fear of persecution for a Convention reason – review of Refugee Review Tribunal decision – no legal error disclosed – application dismissed.

Migration Act 1958 (Cth)

ABDALLA KHAMISI MWAKAYA v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W67of 2000

FRENCH J
16 JUNE 2000
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W67 OF 2000

BETWEEN:	ABDALLA KHAMISI MWAKAYA Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	FRENCH
DATE OF ORDER:	16 JUNE 2000
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The Applicant is to pay the Respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W67 OF 2000

BETWEEN:	ABDALLA KHAMISI MWAKAYA Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	FRENCH
DATE:	16 JUNE 2000
PLACE:	PERTH

REASONS FOR JUDGMENT

Factual Background:

1. Abdulla Khamisi Mwakaya is a citizen of Kenya who was born in Mombassa on 12 May 1970.  He is a Muslim and a member of the Digo clan.  He is unmarried, his parents are both deceased and he has two brothers and two sisters who are still living in Kenya.  Mr Mwakaya arrived in Australia as a stowaway on 4 September 1999.  On 1 October 1999 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  On 18 February 2000, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant a visa and on 23 February 2000 he applied for review of that decision to the Refugee Review Tribunal.  By a decision given on 7 April 2000, the Tribunal affirmed the delegate’s decision not to grant a protection visa.  Mr Mwakaya who is in immigration detention at the Port Hedland Detention Centre filed an application for an order of review of the Tribunal’s decision on 20 April 2000.

   The Applicant’s Evidence

2. In his initial interview upon arrival in Fremantle on 4 September 1999, Mr Mwakaya used the false name of Jamal Abdul Yusuf.  He claimed then that his nationality was Sudanese and that he had left Sudan because of “political fighting”.  He subsequently made application for a protection visa under his true name and received legal assistance for that purpose.  In a statutory declaration which accompanied the application he said he had given a false name and false information about his circumstances when interviewed upon arrival in Australia because he was “scared to talk about his past as he had been mistreated on the ship”.  When he had arrived in Australia he had spent a number of days hiding on the boat.  He was not sure what country he was in until the Immigration Officers came.  He did not trust them.

3. He said in the statutory declaration that he fled Kenya because he was persecuted on the ground of his political opinion and his religion.  Fighting had broken out in Kenya in 1993 between the opposition Islamic Party of Kenya (IPK) and the Kenya African National Union (KANU) party which was in government. He claimed to have been a member of the IPK since about 1991.  He used to help with the campaigns.  He would set up chairs at meetings, tell people to come in and hand around pamphlets.  His whole family were members of the IPK.  He said they were working to try to get a Muslim voice in Kenya and some justice and rights for Muslims.

4. Mr Mwakaya said his father was killed by police at the beginning of 1995.  He was a treasurer of the IPK and quite involved in it.  Police went to his family home and arrested his father at the beginning of 1995.  His elder brother was there at the time.  According to his elder brother, the police kicked his father in the chest in the house. He was taken to a police station and died on the way to hospital from the police station.  According to Mr Mwakaya, police tortured his father to death.

5. Mr Mwakaya himself was arrested by six policemen who came to his house in July/August 1995.  They were said to have pointed a gun at him, handcuffed him and taken with two friends, also in the IPK, to Likoni police station.  There he was put in a cell and with his friends was interrogated and tortured.  Police said that he and his friends were still young and wanted to know why would they had become involved in the IPK and its politics.  They would, according to Mr Mwakaya, says things like, “You know KANU has got power, he has got power you should follow.”  About six police were involved.  He said they had wires which they used to beat Mwakaya and his friends.  They would take off their victims’ trousers saying, “nyayo nyayo” meaning say you will follow.  According to Mr Mwakaya he still has a scar on his head and all over his body from this treatment.  They were kept in the police station, he says, for four days.  They were later taken to Shimo La Tewa prison and there kept in custody for about three weeks but not charged with anything.  The conditions were poor.  There were no toilets and nothing to sleep on.

6. According to Mr Mwakaya, Sheik Rashid Ballalla, then the leader of the IPK, and others secured their release in 1995 but on condition that they were required to report at the police station every day.  He did this for about one and a half months and then decided he had to leave the area as it was not safe.  He went to Lunga Lunga to stay with his grandmother.  He stayed indoors and did not go outside for about six months.  At some time he decided to start helping his grandmother on her farm.  People were asking about him.  He had kept his move to Lunga Lunga a secret back in Likoni.  After a while he became very worried that the police might start asking about him in Likoni.  Fighting  in the country was getting worse.  At the end of 1995 Sheik Ballalla had fled and IPK members were being killed and houses set on fire.  Mr Mwakaya said he knew he could never go back to Mombassa because he was in great danger as police would be looking for him and he had not reported to the police station as required.  He decided he would flee Kenya and travel to South Africa.  He had obtained a Kenyan passport in 1992.  He managed to get to South Africa in January 1997 and was given a one week visa.  In South Africa he applied for refugee status.  But because of the number of refugee applications the Immigration Department in South Africa said they would be taking people into detention and questioning them about their applications.  Ultimately, because Mr Mwakaya did not want to risk being sent back to Kenya he said he had decided to leave.  He went to Durban, arriving there on 28 July 1999 and on 22 August 1999 he stowed away on the ship which took him to Australia.  He claimed to be afraid of being returned to Kenya because he had been persecuted there by reason of his political opinion and his religion.

7. In addition to the statement in support of the application, a submission was made to the Department by Mr Mwayaka’s lawyers setting out Country Information in relation to Kenya.  Reference was made to case law on the question of what amounts to persecution for the purpose of the Refugees Convention and on the issues of relocation and effective prior protection.  The latter was to anticipate an argument that he could be returned to South Africa.

8. The reasons for decision indicate that there was no additional written submission made to the Tribunal.  However at an oral hearing before the Tribunal Mr Mwakaya said that when he left Kenya the IPK was still operating but he did not know what was happening politically in Kenya now.  He had left Kenya in December 1996.  When asked to provide the Tribunal with details of his arrest and the nature of the matters under investigation in 1995, Mr Mwakaya said he had been involved in demonstrations on behalf of the IPK.  There were problems in 1993 to 1995 and in 1995 he had been caught.  He was arrested inside a house with several people who had been involved in demonstrations.  He and his friends had been throwing stones at police and burning homes.  He had done this for revenge as police had attacked, so he needed to defend himself.  If the opportunity arose he and his friends would avenge the harm that had been done to them.  He was involved in many demonstrations between 1992 and 1995.  Many demonstrations had started from the Mosque after Friday prayers.  There was looting and burning of homes.  He spoke also to the Tribunal of fighting between KANU and IPK people. 

9. He told the Tribunal that the IPK was not recognised by the government who considered it a religious rather than a political organisation.  He was just a member and not a leader of the party.  He did not know anything about the United Muslims of Africa (UAM) even though he had heard about them.  He had not been paid to attend demonstrations.  All participants were volunteers as far as he was aware. 

10. The Tribunal put to Mr Mwakaya in relation to his being taken into custody in July to August 1995, that he had been treated fairly by police.  He said the police did not know that he had burned houses but they did know he was involved with an IPK group.  The Tribunal put to him that Country Information from the Department of Foreign Affairs and Trade indicated that many people charged in 1997 were acquitted and suggested that someone, like himself, who had been involved in 1995, would have even less to worry about as police would no longer be interested.  He said he would encounter difficulty if he returned to Kenya because he left in breach of the law.  The fact that he had run away from the country would make it bad for him.  Kenyan prisoners, he said, are not treated well.  He said he would be put in prison because he has no ID card and has lost all his documents.  He said he would have to go to prison if he returned as he left against the law and people who are deported are put in prison.  When the alternative of relocation was put to him, he said it is a risk to live in Kenya and because he was born in Mombassa and grew up there it would be hard to start elsewhere.

11. The Tribunal referred to extensive Country Information about Kenya.  An amendment to Kenya’s Constitution in November 1991 allowed Kenyans to join a political party of their choice and subsequently ten parties had been registered.  The first multi party elections were held in December 1992.  However, the Government had refused to register three political parties including the IPK.  It evidently refused registration of what it perceived as sectarian parties on the ground that this would contradict the spirit of the law.  The refusal to  register  the IPK resulted in political violence in coastal cities in Kenya and especially in Mombassa.  IPK continued to press its case and in the 1992 elections it aligned itself with another party, FORD-Kenya, and voted for its candidates in Mombassa who won two parliamentary seats there.  IPK spiritual leader, Sheik Ballalla was arrested several times.  He was charged with treason in 1992 and spent eight months in prison.  Although released in early 1993 he was twice rearrested during that year.  He demanded that President Moi’s government accept Muslims as equals.  Ballalla resigned from the IPK over a leadership dispute in October 1993 and then returned again to take control a month later.  In December 1993 the Kenyan government stripped him of his citizenship and refused to renew his passport which apparently left him stranded in Germany.  The Tribunal adverted to the history of a proposal for a tribal-based federal system of government in Kenya known as Majimbo.  The  idea, first promoted by the predecessor of the ruling Kenya African National Union, re-emerged in the early nineties and was associated with the rise of ethnic consciousness and discrimination and resulted in violent ethnic clashes.  Mr Mwakaya’s evidence at the hearing, the Tribunal found, was supported by Country Information indicating that there was a very serious complicated and violent situation in and around Mombassa and violent riots and demonstrations there in 1993-1994.

12. The Tribunal also cited the 1999 Country Reports on Human Rights Practices released by the Bureau of Democracy, Human Rights and Labour from the US Department of State on 25 February 2000.  It referred to an observation that the Kenyan government’s overall human rights record was generally poor and that serious problems remained in many areas.  While there were signs of improvement in a few areas the situation had worsened in others.  It cited the following:

    “Security forces committed an increased number of extrajudicial killings, and continued to torture and beat detainees, use excessive force, rape and otherwise abuse persons.  Prison conditions remained life threatening.  Police arbitrarily arrested and detained persons.  The Government arrested and prosecuted a number of police officers for abuses; however, most police who perpetrated abuses were neither investigated nor punished.  Lengthy pretrial detention is a problem, and the judiciary is subject to executive branch influence.”

    And further:

    “The Government repeatedly restricted freedom of assembly, and police used force to disperse demonstrators and protestors.  The Government restricted freedom of association.  Police disrupted public meetings, and security forces harassed and arbitrarily detained political dissidents, including opposition party legislators.”

    The Tribunal referred to reports of interference with the activities of religious groups and  in particular the shooting and killing of five unarmed worshippers at a Mosque and publication of a Government report accusing several religious denominations and other groups of satanism.  Allegations of use of excessive force and torture by police had been investigated during 1999 and several police officers prosecuted.  There were reports of arrests and beatings of opposition parliamentarians critical of President Moi.  The Tribunal said at p 20 of its reasons:

    “It is estimated credibly that during the 1990’s more than 400,000 persons were forced to relocate or were displaced within the country by ethnic violence, fear of ethnic violence, or dispossession.  Most of these expulsions occurred between 1991 and 1994; during those years, disproportionately many of the victims were members of the relatively prosperous Kikuyu and related ethnic groups who had lived outside the home regions of those groups.  Many of the victims were not only displaced but also dispossessed of land or businesses, and remain without restitution or compensation; several thousands were killed.  There is substantial evidence that senior members of the Moi Government organized and funded much of this ethnic violence and large-scale dispossession.  Some observers viewed this violent interethnic redistribution of wealth as a means of building or funding a political coalition to prevent the Kikuyus and related groups from regaining control of the State after the Government’s need for external financing forced it to accede in 1991 to donors’ demands to relegalize opposition parties and to hold multiparty elections in 1992.  Ethnic violence entailing somewhat smaller numbers of expulsions that victimized various ethnic groups including Luos and Luyhas occurred in the coastal region in late 1997 and in the Rift Valley region in early 1998; local authorities generally did little to stop this violence and appear to have instigated much of the 1997 violence in the coastal region.”

    The Tribunal’s Findings

13. The Tribunal accepted that Mr Mwakaya knew about events arising out of ethnic and political tension in Mombassa in the early 1990’s and that he was present there at the time of the events described between 1992 and 1996.  It found that he had left Kenya in December 1996 and had not returned since that time.  The Tribunal summarised the grounds upon which Mr Mwakaya based his claimed fear of return to Kenya thus:

    1.        he had been persecuted there for reason of his political opinion and religion;

    2.        he could not live safely anywhere in Kenya;

    3.        persecution of IPK members and Muslims continues;

    4.        he is afraid of being returned because he was ordered to and did not report to police;

    5.        he fled Kenya illegally.

    The Tribunal however was satisfied that Mr Mwakaya had not been persecuted and that there was no real chance that he would face persecution for reason of his religion upon his return to Kenya.  Nor was there evidence to suggest that he had encountered mistreatment amounting to persecution because of his Muslim religion.  The report on religious freedom referred to in the Country Information indicated, so the Tribunal found, that although there are difficulties for different religious groups in Kenya, they are not of such a nature that would give rise to a well-founded fear of persecution by reason of religion.

14. The Tribunal did not make a finding one way or the other about Mr Mwakaya’s claimed membership of the IPK party.  Rather it expressed itself thus:

    “If, as he claims, the applicant has been a member of the IPK party since about 1991 I note his profile in politics was low.”

    It observed that his activities involved helping with campaigns, setting up chairs for meetings, welcoming people and handing around pamphlets.  The Tribunal appears to have accepted that Mr Mwakaya’s father died in police custody in 1995. However it contrasted the applicant’s involvement with that of his father who was said to be a treasurer of the IPK.  The Tribunal went on:

    “The applicant, who has been away from Mombassa nearly 5 years, has had no current involvement in IPK and never had a significant political profile.  I do not accept that either his father’s death or his previous involvement in the IPK now gives rise to a well-founded fear of persecution for this applicant.”

    Reference was made to his involvement in demonstrations between 1992 and 1995, including the looting and burning of homes, fighting between KANU and IPK, throwing stones at police and other similar behaviour.  The Tribunal referred to Mr Mwakaya’s claim that he had been arrested in July 1995, mistreated and kept in custody for about three weeks without being charged.  It does not appear to have made an express finding that he was in fact arrested.  But it said:

    “Even if the applicant was required in 1995 upon release from detention to report to police every day I do not accept he was persecuted in the sense of the Convention.  Police told him they were still investigating and searching for evidence in relation to potential offences.  Given that it appears that he was identified by neighbours and informers and involved in antisocial activity but still released on bail I do not accept that he was detained for reason of his political opinion.”

    Accepting that he had been mistreated in detention, he had been released with only a condition that he report to police.  The Tribunal found that although in some circumstances a stringent reporting condition could amount to serious harm, in the particular circumstances of his case and in view of the events that occurred in Mombassa leading up to his arrest, such a condition did not give rise to a well-founded fear of persecution for him at the present time. 

15. Referring to the claim that Mr Mwakaya would be put in prison because he had no ID card and had lost all his documents and because he had left and people who are deported are put in prison upon return to Kenya the Tribunal said:

    “I cannot find evidence to support this claim.”

    Concerning Mr Mwakaya’s contention that he would encounter difficulty if he returned because of the circumstances of his departure in contravention of the law, the Tribunal said that even if he were to face a penalty for absconding on bail five years previously, it did not accept that there was evidence that he would face persecution in the Convention sense as a result.

1. As to the IPK, the Tribunal accepted that it is still not recognised by government as it is considered a religious, rather than a political, organisation.  This may amount to an inability to be involved in politics and to express a political opinion.  However, in the circumstances of this case, the Tribunal was of the view, based upon Country Information that the Muslim population of Kenya has other options that are exercised.  The IPK had worked through another group FORD to develop its political influence.  Despite the fact that IPK is not registered, members have a political arm through which they can express political opinions and take political action.  The Tribunal said:

   “I am satisfied that the applicant will have the ability to remain involved in the legitimate expression of his political opinion to the extent he was previously involved without difficulty upon return to Kenya.”

2. In any event, the Tribunal was satisfied that Mr Mwakaya could relocate to another part of Kenya should he feel unsafe in Mombassa.  It found him to be well-travelled and to have good survival skills.  Accepting that it would be hard to start elsewhere, that alone was not a Convention reason for not being able to relocate.

   Consideration of Tribunal Reasons

3. The application for an order of review was again in the common form used by persons held in detention at the Port Hedland Detention Centre.  The grounds of the application allege:

   “(a)The decision involved an error of law, being an error involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal or both.

   (b)The decision involved an error of law in that the Tribunal made findings of fact upon which its decision was based that were not rationally supported by probative evidence and that it failed to rationally consider the probative evidence that was before it.”

4. Mr Mwakaya, not being legally represented, was able to say nothing in advance of either of those grounds of review.  His oral presentation through an interpreter was limited in effect to assertions that he would suffer if returned to Kenya. 

5. I have given anxious consideration to the Tribunal’s reasons.  The Court cannot involve itself in merits review.  The identification of legal error, if it exists, is difficult in the absence of any legal representation for the applicant.  In this case I was concerned, as I indicated to counsel for the Minister in the course of the hearing, to be satisfied that the Tribunal had applied the correct test for determining whether there was a well-founded fear of persecution for a Convention reason.

6. In the end, although the reasons were not expressed with that precision which would have demonstrated clearly the application of the test, I am of opinion that the findings made and the analysis undertaken by the Tribunal was in accordance with the test for refugee status which it was required to apply under the Migration Act 1958 (Cth) and the Convention. No error of law having been disclosed, the application must be dismissed with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated:             16 June 2000

Counsel for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	Mr P Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 June 2000
Date of Judgment:	16 June 2000