WZARD v Minister for Immigration - [2012] FMCA 920

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZARD v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 920

MIGRATION – Application for protection visa – judicial review of Refugee Review Tribunal decision which affirmed delegate’s decision not to grant the applicant a protection visa – Kenyan national – alleged fear of persecution on account of his religion or imputed membership of a sect.

Migration Act 1958 (Cth), ss.36 & 476

Craig v The State of South Australia [1995] HCA 58
Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476

Applicant:

WZARD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

PEG 130 of 2012

Judgment of:

Lindsay FM

Hearing date:

2 October 2012

Date of Last Submission:

2 October 2012

Delivered at:

Perth

Delivered on:

2 October 2012

REPRESENTATION

The Applicant:

In person

Counsel for the First Respondent:

Mr L. Nguyen

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

That the application for an adjournment of the hearing by the Applicant is refused.
That the Application for Review filed on 15 June 2012 do stand dismissed.
That the Applicant pay the Respondents’ costs of and incidental to the proceedings fixed in the sum of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 130 of 2012

WZARD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for orders by way of judicial review in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) not to grant the applicant a protection visa. To be more precise, the decision of the Tribunal was to affirm the decision of the delegate of the Minister not to grant the applicant a protection visa.
The applicant came to Australia on a student visa in October 2006 and except for a period when he returned for his father’s funeral in Kenya in September of 2007, he has lived in Australia since that time. His mother lives in Tanzania, having, as I understand the material, fled there after the death of his father in 2007, although he is not certain as to the whereabouts of his siblings, that is, whether they continue to live in Kenya or live outside of that country.
The applicant applied for a protection visa on 6 May 2011. His application in this Court was filed on 15 June 2012. In its terms, it does not allege that the decision of the Tribunal was vitiated by jurisdictional error, but I am prepared to proceed upon the basis of an assumption that in respect of the grounds that are identified, it is intended to allege that the making out of those grounds would constitute a finding in relation to jurisdictional error in relation to the Tribunal’s determination.
Pursuant to s.476 of the Act this Court has the same jurisdiction as the High Court in relation to migration decisions. That expression migration decisions is one that is defined with a high degree of precision in the Act and essentially means, apart from a few exceptions which are not germane to the circumstances of this case, a privative clause decision or a purported privative clause decision, and that being the case, relief will only be able to be granted if the decision of the Tribunal can be said to have been vitiated by jurisdictional error. I do not propose to go into any description in these Reasons as to what it is that constitutes jurisdictional error; that is best described in High Court decisions such as Craig v The State of South Australia [1995] HCA 58 and, in relation to protection visa applications, in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.
The applicant was represented by a migration agent up to the point at which the Tribunal made its determination and since then, he has been self-represented and the application was filed by him. It seeks a writ of mandamus directed to the Tribunal or the Minister – I am prepared to infer the Minister - requiring them to determine the applicant’s application according to law. The grounds are as follows:
(1) The fact that they did not consider my the freedom of worship that I will be deprived;
(2) Also the fear I have for being persecuted, not only as to be mistaken as a Mungiki, but for my religious beliefs as well;
(3) People disappearing and later on found dead in the forest shot several times as was the case with my late father.
The applicant was given an opportunity when Lucev FM made procedural orders in July to amend his application. He has been unwillingly or more likely, unable, to do so, given his self-represented status. He was also ordered to file and serve written submissions, an outline of argument and he has not done that.
The Minister has fulfilled his obligations pursuant to those procedural orders to file and serve a summary of his argument.
I was asked at the outset of today’s hearing to adjourn the application on the basis that the applicant told me he would seek legal advice. I do not think there is any utility in the adjournment. The applicant has had a period of approaching four months since he filed his application to secure legal advice. He has not been able to do that. He told me that he is presently, under the terms of his visa, which I assume is some form of bridging visa, not permitted to work.
He did not give me any basis for inferring that his circumstances will change in any subsequent adjournment and there is nothing else he put to me to indicate that if I did adjourn the matter, he would not be in precisely the same position when the matter returned for hearing; that is, that the Minister, having fulfilled his obligations and ready to proceed, and with the applicant unrepresented and with his application itself unamended and with no outline of submission filed. There would be no utility in the adjournment. It seems to me appropriate to proceed to determine the matter today.
In response to some questions I asked the applicant, he made some oral submissions in support of the grounds that are set forth in his application.
Turning to the first ground, that is, the one that deals specifically with the question of freedom of worship and therefore, freedom of religion. The applicant is a Thaaist. As to what the tenets of that religious belief are, they are described at [76] to [80] of the Tribunal’s reasons. It is a splinter from a Thaai fraternity, also known as the Tent of the Living God (I am drawing this from [77] which, in turn, is drawn from country information to which the delegate referred).
That particular religion drew upon Kikuyu traditional values as alternatives to the materialism of the mainstream Christian churches (this is from a source that is referenced in [77]). [80] indicates, again emphasising the fact that they have come out of the Kikuyu ethnic group, which is the majority ethnic group in Kenya, that they are a religious sect who advocated a return to the worship of the Kikuyu God and the Tribunal’s understanding of the general nature of the religion was that it was animist in nature, although that may be simplifying that somewhat.
The Thaaiis and the religious practice itself has no affiliation, formal or otherwise, with the Mungiki which is variously described as a cult, a street gang, a political force or a criminal organisation (I am looking at [64] of the Tribunal’s reasons in giving it that description). The Mungiki, according to the country information, grew out of the Thaai religion but the leaders of the Thaai religion have expressly repudiated the sect and its criminal activity and have disassociated themselves from it and that is something that is referred to at [79] of the Tribunal’s reasons.
So having devoted some attention in its reasons to identifying what the Thaai religion was, the Tribunal has then considered what the state of the country information was with respect to religious freedom in Kenya and of course, had regard to the applicant’s own experiences in that regard. The summary of the country information in relation to religious freedom generally is set out at [81] to [83] of the Tribunal’s reasons and it can be generally be summarised as being the case that people are, generally speaking, free to practice their religion in Kenya.
The applicant’s own experiences, that is, his own experience of religious worship, is a matter that is addressed at [41] of the reasons. The Tribunal says as follows:
The Tribunal asked the applicant whether he had been harmed because of his religion in the past. He replied that he had not. The Tribunal asked the applicant why he thinks it would be different now if he were to return to Kenya; he replied that in case [sic] he is mistaken by the illiterate police as being Mungiki and because there is not freedom of worship.
So the summary of the applicant’s own experiences and taken together with the country information indicated that there was not, it seems to me, any reasonable alternative on the basis of the material before the Tribunal to find that there was no basis for a claim of fear of persecution on the grounds of religion or worship practices in terms of paragraph 1 of the grounds of the application. But I think that passage I read out, that passage from [41], the answer to the Tribunal when he was asked about his experiences, really indicates what the applicant’s point is in relation to this topic – it is not so much a claim as to be a fear of being persecuted because he is a Thaai, it is a fear of being persecuted because he will be mistaken as a Mungiki.
I have indicated that the Mungiki members appear to have grown out of the persons associated with a Thaaist religion, notwithstanding that the sect has been repudiated by the religion and Mungiki are, it appears from the country information, indentified by the dreadlocks that they wear which is a habit of hairstyle preferred by the applicant and this was the subject of an express finding by the Tribunal. The wearing of dreadlocks was acknowledged by the applicant not to be a tenet of his religion or a required observance but his own personal preference for hairstyle and it is that circumstance taken together with the association the authorities make between Mungikis and Thaais, or the practice of the Thaaist religion, that he says puts him at risk of persecution.
So I think that that is the better understanding of the point that he makes in relation to religious persecution. It is linked up with this imputation that on account of his religion and his hairstyle, he will be mistaken for a Mungiki and that will have consequences for him in terms of his ability to practice his religion.
As to what Mungiki are, that is dealt with at [62] to [68] of the Tribunal’s reasons and I do not propose to recite that. They are clearly an organisation that are involved, or are understood by the state authorities, being both arms of the police force, as being involved in criminal activity and, in particular, in extortion in relation to those who earn their living by driving matatus or the informal bus or small coach or van carrying services that operate, both within Nairobi and also in outlying areas.
That specific matter, that is, the extortion of matatu drivers by Mungiki in Kenya, is addressed at [69] to [74] of the Tribunal’s reasons and it is a matter that some time is spent on because the applicant’s father was a leader of what might be described as a guild organisation of the matatu drivers.
The applicant’s father lost his life in the period leading up to the 2007 Kenyan election, and it is the applicant’s view that he was killed by the police and it is his view that he was killed on account of what was his imputed association with the Mungiki, notwithstanding that the Mungiki were the organisation that was causing such difficulty in terms of extortion of the members of the organisation which the applicant’s father represented.
It appears on the basis of the material before the Tribunal, the press clipping and the like, that there was a reasonable basis for the applicant drawing the inference that his father was murdered and a companion of the father was also murdered and that they were murdered because of this imputed association with the Mungiki. First of all, that it was because of that and secondly, that they were murdered by state agents. It is not possible to make a finding in relation to that. I am simply observing that the applicant’s views in relation to that would appear to be views which are reasonable for him to hold.
The question of this linkage by the police of Mungiki and Thaaist is specifically addressed by the Tribunal at [75] and there appear to be isolated references to circumstances in which that has happened. There is a specific reference to an incident, on the basis of the country information, where a person suspected of being a Mungiki was fatally assaulted by authorities in September 2008 and that he was arrested after the authorities had spotted his dreadlocks. They demanded that he shave his dreadlocks; he denied being a Mungiki member; said he was a member of the Thaaist spiritual movement; he claimed the dreadlocks were part of his faith and that that particular person was fatally assaulted by the police.
The heart of this issue, that is, the linkage of the fear of persecution on account of his religion and the issue of the link the authorities make between Mungiki and Thaaist is specifically addressed by the Tribunal at [120] of the reasons:
Despite the applicant not expressly articulating it himself, the Tribunal considered that there appears to be a claim arising on the facts that the applicant fears harm for reason of his imputed membership of the particular social group which can be characterised as the ‘Mungiki’. That is, he fears harm for reason of him being imputed to be a Mungiki due to his physical appearance and religion.
There is then a citation of a passage from a decision of Morato by Lockhart J in the Federal Court, and then a reference to the decision of Applicant A in paragraph 121.
So the Tribunal, in my view, has clearly been alert, even though the argument was not expressly articulated by the applicant or his agent, as to the true way in which the fear of persecution for religious affiliation was being promoted. It was, in truth, a fear that arose because of what would be regarded as his imputed membership of Mungiki on account of the religious views that he held, and to a lesser extent so the claim went on account of his mode of hairstyle.
Having addressed the issue, the Tribunal comes to a conclusion in relation to these matters at [125] where it says:
The Tribunal finds that while the wearing of dreadlocks by the applicant may to some extent elevate the risk of being mistaken as a member of the Mungiki, based on an assessment of the country information before the Tribunal, and the Tribunal’s view that the reported number of mistaken targeting of Mungiki by police is relatively insignificant in the overall scheme and magnitude of the law enforcement against Mungiki activities, the Tribunal is not satisfied that there is more than a remote chance that the applicant would be targeted for serious harm for reasons of being mistaken to be a member of the Mungiki. Put another way, the Tribunal accepts that country information does indicate that police in Kenya have shot and killed Mungiki suspects in Kenya, however, the country information, on the assessment by the Tribunal, does not indicate that the risk of serious harm for this reason is anything more than remote and therefore does not amount to a real chance of serious harm amounting to persecution.
Then in [126] the Tribunal correctly identifies that the issue of state protection does not arise because on the applicant’s case, properly articulated, it is a case of persecution by state agents.
So I am satisfied that the Tribunal has, firstly, understood the nuanced way in which this argument was being put and, to some extent, the Tribunal has put the argument in a much more meaningful form than either the applicant or his advisors did. But I am also satisfied that the way in which the Tribunal went about the consideration of this issue was not infected by jurisdictional error and that the conclusion it reached in relation to the issue was reasonably open to it.
Having identified the imputed group membership which gives rise to the fear of persecution, the Tribunal, on the basis of the country information and, to some extent, the applicant’s own account of his experiences, has come to the conclusion that the risk is not of such magnitude as to constitute more than a remote chance that he would be targeted for serious harm.
The issue is not whether or not I agree with the conclusion the Tribunal came to. The issue is whether I can find, in the way that the Tribunal dealt with the issue, any failure to exercise the jurisdiction or any exceeding of the jurisdiction and I am unable to do so.
I am not satisfied that jurisdictional error attends the way in which the Tribunal dealt with the issue, either of fear of persecution on grounds of religion per se, or that it fell into jurisdictional error by the way in which it considered this imputed membership of the social organisation of Mungiki for the reasons associated with religion to which I have referred.
With ground three, as set out in the application, it is very difficult to understand what actually is being promoted. There is simply a reference to the applicant’s awareness of what has happened in Kenya since his departure especially, based, I suppose, both upon his interactions with people when he returned for his father’s funeral and also on his awareness of material from country information and the like. He makes a reference to people being found dead in the forest, shot several times and that, of course, was the appalling experience of his father and of his father’s companion. So to the extent that I understand what is being put in ground three, it is directing my attention to the way in which the Tribunal dealt with the issue of political violence generally and especially violence perpetrated by members of the police force. The country information summarised by the Tribunal indicated that both arms of the Kenyan police force are notorious for corruption.
But again, on the applicant’s own account he had no political profile. He was not himself a member of the professional organisation or an officer of the professional association or the guild of which his father was a leader. He had no political profile himself before his departure and he has achieved no political profile since, either in Australia or in the period in which he returned to Kenya and there is no basis, in my view, for the Tribunal inferring that he would be a person who would come to the attention of the authorities.
I have already dealt with the aspect of the matter as it relates to his imputed membership of the Mungiki and dealing with the combined effect of grounds one and two, so I am not dealing with that here. I am dealing with, what I am taking to be is an unarticulated argument about a fear of persecution because of the general level of political violence or police sponsored violence in Kenya and there is nothing, in my view, about the applicant’s own account of his experiences or in the country information which would ground any reasonable fear of persecution for a Convention reason in those circumstances.
The applicant’s advisers themselves, before the Tribunal, downplayed this aspect of his claim, that is, the aspect that related to his father’s fate, and to some extent before me this afternoon in his brief submissions the applicant did the same. But leaving aside the extent to which they regard the matter as significant, and just looking at the issue on its merits, I am unable to identify any jurisdictional error in the way in which the Tribunal evaluated that issue.

The Tribunal went on, having not found a ground for interfering with the delegate’s decision that the applicant was not owed protection obligations, to consider the applicant’s circumstances from the perspective of s.36(2)(aa) of the Act. Section 36 deals with protection visas. Subsection (1) establishes that class of visas. Subsection (2) says:
A criterion for a protection visa is that the applicant for the visa is
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;
and significant harm is a matter that is defined in subsection (2A).
So the Tribunal gave discrete consideration to these provisions of s.36, and evaluated the country information and the material advanced by the applicant, and the other information available to him from that perspective, and came to a conclusion which is made at [131] that there is not substantial grounds – which is the expression used in s.36(2)(aa) – for believing that there was a real risk the applicant would suffer significant harm if he were to return to Kenya.
The harm which the Tribunal apprehends that the applicant may suffer at the hands of the police is described by the Tribunal as being remote, and it is clear that the rejection of the entitlement to a protection visa on the subsection (2)(aa) grounds was based upon the same evaluations of the factual matters that were advanced in respect of the protection visa itself, and I am unable to identify any jurisdictional error associated with the way the Tribunal went about that particular task.
In all of the circumstances, then, there being no jurisdictional error made out, the order of the Court is that the application for review will be dismissed.
I note one further matter.
The Tribunal proceeded upon the basis that the decision of the High Court in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 was authority for the proposition that asylum seekers are not required, nor can they be expected, to take reasonable steps to avoid persecutory harm. Having understood the High Court decision in that way, the Tribunal proceeded upon the basis of not expecting the applicant to modify or conceal an attribute or behaviour, and the Tribunal came to its conclusions on the basis of having formed that view of the decision and that view of that factual issue.
I am not at all certain that the Tribunal has properly understood the application of the decision of the majority of the High Court in that case to the facts of this case. The majority decision was on the basis that asylum seekers were not required to take steps to avoid persecutory harm, and that in distinguishing between, in this case, homosexuals who would behave discreetly or non-discreetly, the Tribunal distracted itself from the principal task, which was to consider whether there was a reasonable fear of harm for a Convention reason.
But in any event, having elected to deal with the issue as the Tribunal did, whatever the correctness of its understanding of that decision, it is not an interpretation of the ratio of the case which operated to the detriment of the applicant; on the contrary, it was an interpretation that could only have been favourable to the outcome of the applicant’s case.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Date: 18 October2012