Njuru v Minister for Immigration & Multicultural Affairs

[1999] FCA 1003

FEDERAL COURT OF AUSTRALIA

Njuru v Minister for Immigration & Multicultural Affairs [1999] FCA 1003

RICHARD GICHOKI NJURU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Q 119 of 1999

DOWSETT J
21 JULY 1999

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 119 OF 1999

BETWEEN:	RICHARD GICHOKI NJURU Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	DOWSETT J
DATE OF ORDER:	21 JULY 1999
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 119 OF 1999

BETWEEN:	RICHARD GICHOKI NJURU Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	DOWSETT J
DATE:	21 JULY 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The applicant is a citizen of Kenya.  He arrived in Australia on 28 December 1996 and on 14 March 1997, lodged an application for a protection visa.  On 10 June 1998, a delegate of the Minister refused the application.  Application was made to the Refugee Review Tribunal, which Tribunal, on 22 March this year, refused that application.  This is an application to review that decision pursuant to the Migration Act 1958 (Cth). Only one ground was advanced in argument. The applicant gave evidence before the Tribunal of his having been arrested, detained and beaten whilst in Kenya, in the course of which attack his interrogator sought information from him concerning the activities of a political party described as the Ford-Asili Party, which at that time comprised the main opposition party in Kenya. It is alleged that the Tribunal did not assess whether those events had actually occurred and therefore, did not assess the critical aspect of the applicant's evidence.

2. There can be no doubt that this aspect of the evidence was critical to the applicant's case.  He asserted, and still asserts that he is entitled to be treated as a refugee because of his fear of persecution for either racial or political reasons.  In this case, the two different limbs merge because membership of the Ford-Asili Party is largely racially base.  The Kikuyu Tribe, of which the applicant is a member, would at the relevant time, have tended to support that party.  The Tribunal concluded that the applicant had no reasonable apprehension of persecution on either basis.  As much appears at p 19 and p 20 of the reasons. 

3. It is true that the Tribunal did not expressly decide whether the various incidents which I have mentioned had occurred.  However, there are references to the incidents in the reasons.  The applicant's allegations are outlined at p 5 and p 6.  At p 20, the Tribunal said (after making numerous criticisms of the applicant’s evidence):-

   The Tribunal concludes after looking at all these matters that some are fatal to his claim and although individually other matters may not be sufficient to draw the conclusion the applicant's account is untrue, when viewed in their entirety, they lead convincingly to the conclusion that the applicant's account is fabricated leaving the Tribunal no doubt this finding is correct.

   The Tribunal finds the applicant is a Kikuyu businessman who conducted Saric and Co, that Saric and Co was trading at the time he left Kenya.  The applicant is a registered supporter of Ford-Asili but has no political profile that would warrant adverse attention by the authorities in Kenya.  The applicant has not been the victim of racial violence in Kenya and there is no real chance he will be a victim in the reasonably foreseeable future.  The applicant was not targeted by Johnathon Moi's son and has not been interrogated and accused of terrorist activities.  The Tribunal is not satisfied the applicant has a well founded fear of persecution for any Convention ground ...

4. The Tribunal treated these specific allegations as being, in effect, the issues to be proven for the purpose of determining the applicant's status as a refugee.  In other words, if his evidence of these incidents had been accepted, it is likely that the Tribunal would have been willing to infer that he was indeed a political refugee or a refugee for racial reasons.  Conversely, if those matters were not established to the Tribunal's satisfaction, then it would not be satisfied as to such status.

5. The Tribunal first sought to form a preliminary view as to the likelihood of the incidents having occurred by reference to evidence often described as “country information” relating to conditions in Kenya.  It then attempted to assess the applicant's evidence.   This appears to be an entirely appropriate course to adopt.   Having regard to evidence available as to conditions in Kenya, the Tribunal drew two separate inferences.   One was that although there was evidence of discrimination against the applicant's tribe, it was unlikely that he could have a reasonable fear of such persecution because he had not, in the past, been subject to persecution for racial reasons.   It seems that the evidence of racial persecution concerned areas remote from where the applicant resided.

6. As to the question of persecution for political reasons, the Tribunal appears to have inferred from the country information that only people with a relatively high political profile were likely to be subjected to persecution for that reason.   The Tribunal concluded, having regard to the applicant's own evidence, that he did not fit that profile.   He claimed to be a member of the political party in question, but only for the purposes of effecting his registration as a voter.  That political party has declined in importance in recent years and for that reason too, it seemed unlikely that anybody would be concerned to persecute members.

7. Thus the Tribunal, acting on objective evidence, concluded that it was unlikely that the applicant would be persecuted for either racial or political reasons.  It then considered his evidence and found that there were a number of aspects to that evidence which were unsatisfactory.   Although some of them may have been of relatively minor significance, others were arguably more important.   Firstly, he had asserted that at some stage prior to his departure from Kenya, his business had been closed down.  However he was confronted with evidence that the business bank account was active thereafter.  His explanation was that he had bribed a bank employee to create this impression because he wished to convince the Australian authorities that he should be given a business visa.   Obviously, this explanation is far from convincing, although one cannot completely discount it.

8. Secondly, there was a letter forwarded to the Department of Immigration and Multicultural Affairs (“the Department”) from a Mr Oyelodi attesting to the applicant's long history of freedom-fighting or fighting for democracy in Kenya.   This was inconsistent with the applicant's own position which was that he had always had a relatively low profile.   He said that he had not asked Mr Oyelodi to write this letter, and that he had no input into its content.   Again, this is possible, but not particularly likely.

9. Thirdly, he had complained about persecution because he was in competition with a company said to be operated by the son of the President of Kenya.   He identified this company as “Signode”.  Information was obtained through the Australian mission which suggested that this was not the company to which the applicant was intending to refer.   He was told this and subsequently returned to the Department, saying that he had made an error as a result of a pronunciation misunderstanding and should have referred to a company called “Siginon”.   There was apparently such a company listed in material available on the Internet, and it appeared to have some association with the family of the President.

10. This material is, in some respects, ambiguous.   The Tribunal chose to infer that it was unlikely that the applicant would not have known the correct name of the company in question since he alleged that it was one of his competitors.   It seems also that he was very precise about the name when he first gave it to the various departmental officers.   It would have been open to the Tribunal to have accepted his explanation of a pronunciation error, but there was no compulsion to do so.  All in all, the error as to the name was probably a further basis for suspicion about the applicant's reliability as a witness.

11. There were a number of other aspects to the evidence which were doubted.   In particular, it seems that notwithstanding the applicant's being the subject of persecution, his wife continued for quite some time in government employment.   This, by itself, is a basis for considerable suspicion.  

12. There were a number of other factual matters dealt with by the Tribunal, but in the end, it is sufficient to say that there were several inconsistencies in his evidence, sufficient to raise considerable doubt about it.   In those circumstances, it is not surprising that the Tribunal chose not to act upon his evidence, particularly given the inferences which it had already drawn, at least in a tentative way, based upon the country information.  That information did not support the applicant's claims, and his own account did not stand up to close scrutiny.  The Tribunal was entitled to reject his evidence, including the evidence as to his alleged history of persecution and to infer that he did not have a reasonable fear of persecution for any Convention reason.  In those circumstances, he was not a refugee.  The application will be refused with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             21 July 1999

Counsel for the Applicant:

Mr B Mumford

Solicitor for the Applicant:

South Brisbane Immigration & Community Legal

Service Inc

Counsel for the Respondent:

Mr A Horneman-Wren

Solicitor for the Respondent:

Australian Government Solicitor

Date of Hearing:

21 July 1999

Date of Judgment:

21 July 1999