WZAUR v Minister for Immigration
[2017] FCCA 561
•20 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZAUR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 561 |
| Catchwords: MIGRATION – Judicial review – Protection (Class XA) Visa application – decision of Refugee Review Tribunal – Kenyan citizen – whether member of a gang declared a terrorist organisation in Kenya – whether evidence credible – effect on applicant’s credibility of delay in making application – Kenyan police orders to arrest – effect of failure of Tribunal to consider and parties to judicial review proceedings to address relevant Kenyan criminal procedure law – whether well-founded fear of persecution – whether decision considered country information and evidence on applicant’s gang membership – whether decision illogical or unreasonable where credibility findings based on finding concerning failure to apply for protection on entry into Australia – whether jurisdictional error. |
| Legislation: Criminal Code Act 1995 (Cth), Schedule, Division 11, Part 2.4 Criminal Procedure Code (Kenya), ss.2, 29, 30, 31, 89, 91, 100, 102, 134, 137, 296(2) Extradition Act 1988 (Cth) Migration Act 1958 (Cth), ss.36(2), 474, 476 The Prevention of Organised Crime Act 2010 (Kenya), ss.3(a) and (n), 4 |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALR 630; (2003) 75 ALD 630 ARG15 v Minister for Immigration & Border Protection [2016] FCAFC 174 Assistant Commissioner Condon v Pompano Pty Ltd & Anor [2013] HCA 7; (2013) 252 CLR 38; (2013) 228 A Crim R 237; (2013) 87 ALJR 458; (2013) 295 ALR 638 CQJ15 v Minister for Immigration & Border Protection [2016] FCAFC 146 FTZK v Minister for Immigration & Border Protection [2014] HCA 26; (2014) 88 ALJR 754; (2014) 64 AAR 15; (2014) 310 ALR 1 Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 Minister for Immigration & Border Protection v SZSNW [2014] FCAFC 145 Minister for Immigration & Citizenship v SZMDS [2010] HCA 16, (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 Minister for Immigration & Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 303 ALR 672; (2013) 136 ALD 41 Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; (2000) 75 ALJR 52; (2000) 176 ALR 219; (2000) 62 ALD 285; (2000) 21 Leg Rep 6 Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 Shrestha v Migration Review Tribunal [2015] FCAFC 87; (2015) 229 FCR 301; (2015) 321 ALR 356 SZNSW v Minister for Immigration & Anor [2009] FMCA 1233 SZQRW v Minister for Immigration & Citizenship [2012] FCAFC 164; (2012) 134 ALD 454 SZSFS v Minister for Immigration & Border Protection [2015] FCA 534 SZSZW v Minister for Immigration & Border Protection [2015] FCA 562 Thuraisamy v Minister for Immigration & Multicultural Affairs [1999] FCA 1632 Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 WZANF v Minister for Immigration & Anor [2010] FMCA 110 |
| Applicant: | WZAUR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 249 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 1 July 2015 |
| Date of Last Submission: | 1 July 2015 |
| Delivered at: | Perth |
| Delivered on: | 20 April 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Lochore |
| Solicitors for the Applicant: | AUM Legal |
| Counsel for the First Respondent: | Mr B Dube |
| For the Second Respondent: | Submitting appearance, save as to costs. |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the second respondent be changed to “Administrative Appeals Tribunal”.
That the parties confer with respect to the future conduct of these proceedings.
That the proceedings be adjourned to a directions hearing on a date to be fixed.
Costs reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 249 of 2014
| WZAUR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) to refuse the applicant a Protection (Class XA) visa (“Protection Visa”).
Background to the Judicial Review Application
The background to the Judicial Review Application is set out hereunder.
Personal
The applicant was born on 29 April 1988 in Busia, Kenya as a member of the Luo ethnic group and is a citizen of Kenya: CB 12-13.
Student visa
The applicant arrived in Australia on 24 January 2013 after being granted a TU572 Student Visa (“Student Visa”) on 23 October 2012: CB 78 and CB 292 at [12]. He had earlier departed Kenya on a valid Kenyan Passport: CB 78, CB 295 at [28] and CB 298 at [43].
On 23 August 2013 the applicant voluntarily attended the Department of Immigration and Border Protection (“Department”) to advise that due to a falling out with his sponsor, Ms Smith, she was no longer willing to support him and he was no longer living with her: CB 78.
On 27 August 2013 the applicant again spoke to the Department. The Department records the applicant requesting that the Student Visa be cancelled and that he wished to return home: Affidavit of Clare Amy Campbell made 19 March 2014, Annexure CAC-1, 7th page, final line (“Campbell Affidavit”).
On 28 August 2013 the applicant was interviewed by an officer of the Department. There are two Departmental records of this interview. They indicate that the Student Visa:
a)was voluntarily cancelled and the applicant was issued a bridging visa for two weeks on departure grounds. The applicant advised that he wished to return to Kenya but lacked the funds to purchase a plane ticket. The applicant was referred to the International Organisation for Migration (“IOM”): Campbell Affidavit, Annexure CAC-1, 8th page, first paragraph; and
b)was cancelled at the SMU counter and that the applicant did not wish to apply to the Migration Review Tribunal for a review of the cancellation of the Student Visa, and that he wished to go back to Kenya, but not to his home town. He was worried that he would be in danger as the local community provided money for his education expenses and he had not completed his education. The applicant advised that he did not have sufficient funds to purchase a plane ticket. The applicant was willing to talk to IOM and signed a consent form. The applicant agreed to email his bank statement to the Department the next day: Campbell Affidavit, Annexure CAC 2.
Immigration detention
The applicant was arrested by the WA Police on 12 September 2013 for public drinking and refusing to provide personal details, and was then placed into immigration detention on 13 September 2013, and interviewed by immigration officials the same day: CB 78.
Protection Visa and bridging visa applications
The applicant lodged the Protection Visa application on 24 September 2013: CB 1-53, and stated that he was seeking protection because:
a)if he were to go back to Kenya he would be executed by the terror gang that he used to be a part of: CB 18-19;
b)he had harmed innocent people, torched their houses against his will and suffered physical cuts on his arms: CB 19;
c)he had broken the blood oath and left the gang and would therefore be executed by the gang leader if he returned to Kenya: CB 19;
d)the community would not welcome him back because most of the families were left without homes and they are still angry, and that he will beaten to death by the community as most families were left without homes and most gang members are known: CB 19; and
e)the government would not give him a fair trial and would shoot to kill him and there was a government order to shoot to kill any gang member that they find: CB 19-20.
The applicant also applied for a bridging visa on 24 September 2013.
The applicant was interviewed on 27 September 2013 with respect to his bridging visa application: Campbell Affidavit, Annexure CAC3. In the interview the applicant said:
a)that he was part of a terror gang;
b)that he was unable to name the gang;
c)he was afraid to go back as he had left the gang when he left in January 2013 to come to Australia;
d)he had received news that the Chief of Police had issued a shoot to kill order and he became scared of going back;
e)his uncle had been killed;
f)that if he goes back he will be tortured;
g)that he does not know what he would do if his Protection Visa application was refused; and
h)that he does not have a house in Kenya to go to as his house was torched.
Delegate’s Decision
The applicant:
a)was interviewed on 23 October 2013 by the Delegate with respect to his Protection Visa application: CB 80; and
b)provided the Delegate with a map of Kenya and an article “The Trajectories of Survival of the Mungiki Youth in Nairobi” to the Delegate: CB 54-72.
In the Delegate’s Decision made on 4 December 2013 the Delegate refused the Protection Visa application: CB 73-92.
Application to the Tribunal for review of the Delegate’s Decision
On 20 December 2013 the applicant applied to the Tribunal for a review of the Delegate’s Decision: CB 93-98.
Prior to a hearing before the Tribunal the applicant provided the following documents to the Tribunal:
a)The Prevention of Organised Crime Bill 2010 (Kenya): CB 99 (“POC Bill”). (The Delegate had noted the passage of the POC Bill at CB 88, which thereby became the Prevention of Organised Crime Act 2010 (Kenya) (“POC Act”));
b)four printouts of internet media reports: CB 122-132;
c)an undated letter from a nurse at a medical reception service in Kenya concerning a very seriously injured gang member in her care: CB 133;
d)a Statutory Declaration deposed to on 5 December 2013 by one of the applicant’s brothers: CB 134-136;
e)a police order to arrest (“Police Arrest Order”) the applicant dated 20 May 2013 (“May 2013 Police Arrest Order”): CB 141;
f)a Police Arrest Order for the applicant dated 24 December 2013 (“December 2013 Police Arrest Order”): CB 142;
g)various country information: CB 143-268; and
h)a Statutory Declaration deposed to on an unclear date in 2014 by the applicant’s mother: CB 271-273.
The applicant appeared before the Tribunal by video link on 4 April 2014: CB 276. A transcript of the hearing of the Tribunal (“Tribunal Transcript”) hearing on 4 April 2014 is in evidence: affidavit of Rebecca Mercer-Gaunt affirmed 13 February 2015, Annexure A (“Mercer-Gaunt Affidavit”).
The Tribunal obtained a Document Examination Report in relation to the May 2013 and December 2013 Police Arrest Orders at [15(e) and (f)] above, but the examination was inconclusive: CB 280-283.
On 14 July 2014 the Tribunal Decision affirmed the Delegate’s Decision to refuse to grant the applicant a Protection Visa: CB 290 and CB 301 at [60].
Tribunal Decision
In the Tribunal Decision (at CB 290-312) the Tribunal found that:
a)it did not accept that a person in genuine fear of returning to their home would not take some steps to ensure their safety in the country to which they had fled: CB 296-297 at [37]);
b)it did not accept that if the applicant had been an active member and leader of the Angola-Msumbiji gang, leaving the gang as he claimed and being aware of the possible retribution for leaving, he would have delayed in seeking protection: CB 296-297 at [37];
c)it did not accept that the applicant told the Department that he needed protection but no one helped him: CB 296-297 at [37];
d)in light of the nature of his claims and taking into account his behaviour in willingly seeking to return to Kenya save for his financial circumstances, the Tribunal found that the applicant’s delay in seeking protection in Australia led it to find that he was not a credible witness and that his claims were not credible: CB 296-297 at [37];
e)it was not satisfied that the applicant was ever involved with the Angola-Msumbiji gang or any other criminal gang in Kenya: CB 297 at [38];
f)the applicant’s evidence was “rehearsed, inconsistent, general in substance and lacking in persuasive detail”: CB 297 at [38];
g)the information the applicant gave about the gang was general and lacking in detail and did not reflect his claimed involvement as a leader and reflected “readily available information” about the gang rather than specific knowledge: CB 297 at [38];
h)it did not accept that the applicant harmed any person or was involved in any attack or was involved in the drug trade as the Tribunal did not accept that the applicant was a credible witness: CB 297 at [40];
i)its concerns in relation to the delay involved in the Protection Visa being lodged and the ease with which the applicant was able to depart Kenya despite his alleged high profile involvement in a terrorist organisation led the Tribunal to conclude that the applicant was not a credible witness and also led it to give the affidavits of his mother and brother little weight as independent evidence of the applicant’s participation in any criminal gang in Kenya: CB 298 at [42];
j)it did not accept that someone with the alleged profile of the applicant within the Angola-Msumbiji or any other criminal gang on the Kenyan government’s watch list would be able to obtain a passport and successfully depart the country without incident: CB 298 at [43];
k)it did not accept that a Police Arrest Order would be issued 12 months after his departure from the country or would be “so vague in the nature of his crimes or be issued for crimes allegedly committed while he was absent from Kenya”, and did not accept that the Police Arrest Orders were issued by any authority as the Tribunal did not consider the applicant to be a credible witness and did not accept that he was ever associated with a criminal gang in Kenya: CB 299 at [46];
l)it did not accept that the applicant will be harmed by members of the community who he claims will not welcome him back and will beat him to death due to his previous involvement with the gang, because it did not accept that he was ever a member of a gang: CB 299 at [49];
m)it did not accept that there was a real chance that if the applicant returned to Kenya that he would be harmed by any gang or the police or authorities or any member of the community: CB 299 at [51];
n)there is not a real chance that the applicant will be persecuted for reasons of his membership of a particular social group, or any gang or for his political or imputed political beliefs or for any other Convention reason if he were to return to Kenya: CB 299-300 at [52];
o)it did not accept that the applicant faced a real chance of persecution for a Convention reason if he were to return to Kenya and thus, the applicant’s fear of persecution is not well-founded: CB 300 at [53];
p)it did not accept, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Kenya, there is a real risk that he will be killed by any gang or the police or the authorities or members of the community in Kenya: CB 300 at [54], or that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhumane treatment or punishment or that he will be subjected to degrading treatment or punishment: CB 300 at [55]); and
q)the applicant did not satisfy the criteria in s.36(2)(a) or (aa) of the Migration Act and the Delegate’s Decision not to grant the applicant a Protection Visa was affirmed: CB 300-301 at [57]-[60].
Judicial Review Application amended
By an amended Judicial Review Application filed 16 March 2015 (“Amended Judicial Review Application”) the applicant identified seven grounds of review. The applicant’s written submissions indicate that grounds 2 and 3 are not pressed. The applicant now relies on the remaining 5 grounds in the Amended Judicial Review Application. The grounds relied upon are set out and considered below.
Ground 1
Ground 1 is as follows:
1 The Tribunal made a jurisdictional error in finding that the applicant had, prior to applying for a protection visa, not alerted officials from the first respondent’s department to his concerns about returning to Kenya, thus leading it to draw conclusions about the applicant’s credibility in circumstances where the applicant had in fact raised those concerns.
Applicant’s submissions
The applicant’s submissions on ground 1 are as follows:
a)the issue here is at what point the applicant raised concerns about the danger he feared if he returned to Kenya;
b)the Tribunal at CB 295 at [31] recounts that the applicant, in response to being asked when he became fearful of returning to Kenya, said: “when his visa was cancelled”. The Tribunal records that the applicant claimed: “that he did tell the departmental staff that he was wanted in Kenya and could not go back but they did not believe him and gave him no advice”;
c)at CB 296 at [32] the Tribunal notes the applicant stated that “he told immigration the Kenyan government was looking for him” in connection with his gang activity;
d)the Delegate records that the applicant told her that when he approached the Department in August 2013 to cancel the Student Visa, he informed the client service staff that “he was afraid to return to Kenya”, but “no information regarding options or the availability of protection visas was communicated to him”: CB 83. The Tribunal notes this at CB 296 at [34];
e)the Tribunal found at CB 297 at [37] that once the applicant approached the Department the Tribunal “would have expected that if he did fear he would be seriously harmed if he returned to Kenya, he would have sought to apply for protection at this or an earlier stage”. Critically, in the same paragraph, the Tribunal specifically “does not accept that he told people in the Department but no one helped him”, and the Tribunal then concludes that: “the applicant’s delay in seeking protection in Australia leads it to find that he is not a credible witness and that his claims are not credible”: CB 297 at [37];
f)the Tribunal acknowledged that the applicant told the Delegate and the Tribunal that he had told the Department’s staff that he was worried about returning to Kenya when the Student Visa was first cancelled: CB 295-296 at [31]. This consistent evidence from the applicant is the first evidence that the issue was raised soon after or at the time of the Student Visa cancellation;
g)the Department’s records show only the barest of information about what he told the Department on 23 and 27 August 2013: see [5]-[6] above;
h)the Department’s records show: see [7](b) above, that on 28 August 2013 the applicant told the interviewer that he was “worried that he would be in danger” if he returned to his home in Kenya. While the interviewer records the applicant’s worry being related to money being provided for his education, it is unclear whether the point was clarified;
i)the only Departmental record of the interview on 13 September 2013 is an assertion that the applicant was “uncooperative and refused to complete the interview”: Campbell Affidavit, Annexure CAC-1, 8th page, second paragraph;
j)the fact that he raised his fear in a particular way: see [x] above, focused upon localised danger, does not change the fact that the Department’s own records show that what the applicant told the Delegate (see [7] above) was true: he did tell the Department back in August 2013 that he was afraid to return to Kenya;
k)while there may be grounds for questioning or criticising the expression of that fear, it is submitted that the evidence from 28 August 2013 record corroborates the applicant’s own testimony that he did tell the Department, around the time that his Student Visa was cancelled, that he feared returning to Kenya;
l)the Tribunal made a jurisdictional error in finding that the applicant was not a credible witness on the basis of his alleged delay in raising his fear of returning to Kenya, because it made this finding without considering the evidence from the Department’s documents that had not been provided to the Tribunal;
m)failing to consider relevant evidence that may have a significant impact upon the credibility of the applicant can be a jurisdictional error: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77] per Hill, Sundberg and Stone JJ (“VAAD”);
n)assessments of credibility are not necessarily linear: VAAD at [79] per Hill, Sundberg and Stone JJ;
o)it is impossible to know whether the Tribunal’s assessment of the applicant’s credibility in other respects may have been different if the Tribunal had fully and genuinely considered all the evidence that the applicant had raised with the Department at around the time of the Student Visa cancellation about his fear of returning to Kenya; and
p)it is not the case that a finding in relation to credit may never found a conclusion of jurisdictional error: Minister for Immigration & Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 303 ALR 672; (2013) 136 ALD 41 at [78] per Robertson J.
Minister’s submissions
The Minister’s submissions on ground 1 are as follows:
a)the Tribunal Decision states that “the Tribunal does not accept that he told people in the Department but no one helped him”: CB 296 at [37];
b)in the Tribunal hearing, the applicant stated (Tribunal Transcript at 19, lines 742-748):
Um, after, after, after my enrolment was cancelled by education provider I went to immigration department and informed them of like I cannot pay, I cannot pay for my school fees because I had no stable job here in Perth and my sponsor had withdrawn sponsorship, so I informed them and I told them that I want to cancel my visa and I also informed them that I cannot go back to Kenya because I’m wanted.
c)the Campbell Affidavit at Annexure CAC-2 contains a file note of the officer who interviewed the applicant on 28 August 2013, prior to the Protection Visa application being made, which relevantly states that:
He wishes to go back to Kenya. He advised that he doesn’t have sufficient funds to purchase a plane ticket. … He intends to go back to Kenya but not to his home town. He is worried that he would be in danger as the local community provided money for his education expenses and he hasn’t completed his education.
d)the Delegate’s Decision regarding the Protection Visa application was before the Tribunal and stated at CB 83 as follows:
… at no time did the applicant mention or refer to any fear of returning to Kenya during an interview for a Bridging visa held on 28 August 2013. The applicant stated at that interview that he did not have the financial capacity to purchase a plane ticket.
e)the applicant’s written submissions at [41] where it states “he did tell the Department back in August 2013 that he was afraid to return to Kenya” (original emphasis) does not represent what is recorded in the Campbell Affidavit at Annexure CAC-2. At most it could be said that it indicated worry on the part of the applicant of returning to his home town, but that he still intended to return to Kenya; and
f)it is suggested that failure to consider “relevant evidence” that may have a significant impact upon the credibility of an applicant can be a jurisdictional error. In the present case the “relevant evidence” does not demonstrate in any way that the applicant feared returning to Kenya for the reasons he subsequently alleged in his Protection Visa application so as to found an assertion that the subsequent findings regarding credibility were based on an erroneous conclusion. The particular circumstances in this matter are distinguishable from matters where jurisdictional error has been found to arise because of conclusions based on false factual premises: SZNSW v Minister for Immigration & Anor [2009] FMCA 1233.
Consideration – ground 1
Ground 1 asserts that the Tribunal made a finding that prior to applying for the Protection Visa the applicant had not alerted Departmental officials to his concerns about his return to Kenya.
At CB 296-297 at [37] the Tribunal said as follows:
The Tribunal has some concerns about the genuineness of the applicant’s fear of persecution and the credibility of his claims given the delay in which he sought protection. The Tribunal has considered his claim that he thought if he kept studying things may change but does not accept that that a person in genuine fear of returning to their home would not take some steps to ensure their safety in the country to which they had fled. The Tribunal notes the applicant arrived in Australia in January 2013 yet he did not apply for protection until September 2013 after his student visa had been cancelled and he was in detention. The Tribunal does not accept that if the applicant had been an active member and leader of the Angola-Msumbiji, leaving the gang as he claimed and being aware of the possible retribution for leaving, he would have delayed in seeking protection. He told the Tribunal he knew he was leaving for Australia where he would be safe, yet did not seek to apply for protection until he was held in detention. The Tribunal does not accept that he told people in the Department but no one helped him. He told the Tribunal his fear developed when he spoke to his brother but he also gave evidence that he spoke to his brother in June/July 2013 who told him the gang had destroyed their home looking for him. The applicant is an educated young man who approached the Department to cancel his visa, indicating a willingness to return home. In these circumstances it would have expected that if he did fear he would be seriously harmed if he returned to Kenya, he would have sought to apply for protection at this or an earlier stage. In the applicant’s circumstances, in light of the nature of his claims and taking into account his behaviour in willingly seeking to return to Kenya save for his financial circumstances, the Tribunal finds that the applicant’s delay in seeking protection in Australia leads it to find that he is not a credible witness and that his claims are not credible.
There was no finding by the Tribunal in the terms set out in ground 1, and what the applicant seems to rely upon is the Tribunal’s finding at CB 296 at [37] concerning those fears and what the applicant says he told Departmental officials, namely that:
The Tribunal does not accept that he told people in the Department but no one helped him.
The Tribunal’s factual findings were consistent with the manner in which the facts were set out by the Tribunal. In that regard the Tribunal:
a)set out the finding in the Delegate’s Decision that on 28 August 2013 the applicant told an officer of the Department that “he wished to return to Kenya but lacked the funds to do so”: CB 292 at [12];
b)set out the applicant’s protection claims in essentially similar terms to that set out above: see [9]-[11] above;
c)set out the Delegate’s concern that in the applicant’s dealings with the Department after seeking cancellation of his Student Visa “he never mentioned his fear of returning to Kenya and in fact indicated willingness to return but that he could not pay the airfare”: CB 293 at [16], and the applicant’s response that no one asked him and that it was not until he was in detention that he discussed his situation with a fellow detainee and found that he could apply for the Protection Visa: CB 293 at [16] and CB 296 at [34];
d)noted that the applicant told the Tribunal that he became fearful of returning to Kenya when his Student Visa was cancelled, and he further claimed to the Tribunal that he did tell officers of the Department that he was wanted in Kenya and could not go back, but they did not believe him and gave him no advice: CB 295 at [31];
e)noted that the applicant told the Tribunal that he told the Department that the Kenyan government was looking for him, in relation to his gang activities: CB 296 at [32]; and
f)noted that the applicant told the Tribunal that he did not apply for a Protection Visa earlier because he “thought if he kept studying things may change but when they fell apart he knew he could not return”: CB 296 at [33].
It was against the above background as set out by the Tribunal that the Tribunal found that it did not accept that the applicant told people in the Department about his concerns in respect to returning to Kenya but that no one helped him. Likewise, the Tribunal found that when the applicant did approach the Department he indicated a willingness to return “home” to Kenya, and that the Tribunal would have expected the applicant to have sought a Protection Visa at an earlier stage if he feared serious harm upon return to Kenya: CB 296-297 at [37].
The weight to be given to an applicant’s claims and evidence is also a matter for the Tribunal to assess as part of its fact-finding function: Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”); Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ. This Court cannot review the merits of the Tribunal Decision as to findings of fact, including those with respect to credibility, where the findings were open to the Tribunal, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; Wu Shan Liang at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. The determination of credit was a matter for the Tribunal: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407 at [67] per McHugh J. The Tribunal is not required to hold a positive state of disbelief before making credibility findings: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 559 per O’Connor, Branson and Marshall JJ.
With respect, ground 1 misrepresents what was found by the Tribunal. The Tribunal did not demur from the Delegate’s finding that the applicant raised with the officers of the Department his concerns about returning to his home locality in Kenya because funds had been raised for his education and he had not completed that education, and that he did so prior to making his Protection Visa application. What the Tribunal did not accept was that the claims now made (in part or whole), as set out at [9]-[11] above, to support the Protection Visa application were raised with the Department prior to the applicant making his Protection Visa application. In particular, the Court notes that the applicant did not appear to detail or rely upon his alleged membership of the Angola-Msumbiji gang or the activities of that gang in which he alleges he was involved, when the applicant initially spoke with officers of the Department. In making its findings the Tribunal clearly had regard to relevant material before it: see [19] above, including:
a)that although the applicant said he feared for his life before leaving Kenya, he made no Protection Visa application upon entry to Australia;
b)he did not make a Protection Visa application when told in June or July of 2013 by his brother that their house had been destroyed by the gang which was looking for him;
c)when the applicant applied for a cancellation of his Student Visa he indicated a preparedness to return to Kenya, albeit not to his home town, although he appeared to give as the reason for that that he had not completed his studies which had been funded by certain people in his home village;
d)the fact that no Protection Visa application was made until:
i)the Student Visa was cancelled; and
ii)the applicant had been taken into immigration detention following his arrest by the WA Police; and
e)the applicant’s Protection Visa claims.
The principles concerning the relevance of a delay in lodging an application for a Protection Visa constitutes a relevant consideration for the Tribunal in making findings of fact as to the applicant’s fear of persecution, and in otherwise assessing the applicant’s credibility: see Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at 349 per Heerey J where the Federal Court observed that the existence of a delay in making an application for a Protection Visa “was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s fear of persecution. It is a rational consideration open on the material.” Mere delay is not determinative of the inquiry for there may be good reasons for a delay, notwithstanding genuine and deep fears of persecution: Thuraisamy v Minister for Immigration & Multicultural Affairs [1999] FCA 1632 at [10] per Einfeld, Tamberlin and Wilcox JJ, and thus it was necessary for the Tribunal to consider the facts alleged by the applicant as an explanation for the delay, determine its view about those facts, and whether, having regard to the facts determined, they bore upon the credibility of the applicant’s claimed fear of any relevant harm.
The Tribunal approached the task of determining the facts and the applicant’s credit by reference to proper principles properly applied, and had proper regard to the evidence which bore upon the fact of the delay in applying for the Protection Visa, and, in turn, upon the applicant’s credit. This was not a case where it could be said that there was no evidence warranting the factual finding made by the Tribunal that the applicant did not raise his protection claims as now made with the Department prior to making the Protection Visa application. On the basis of the material set out above, that was a finding which was plainly open to the Tribunal, and one which required it to do no more than accept the written contemporaneous evidence of the officers of the Department instead of the evidence of the applicant given to the Tribunal a significant time later. The approach taken by the Tribunal and its conclusions as to the applicant’s credibility, and its rejection of his claim that he told an officer of the Department in August 2013 that he feared returning to Kenya generally, does not demonstrate any jurisdictional error on the part of the Tribunal.
For the above reasons, ground 1 reveals no jurisdictional error in the Tribunal Decision.
Grounds 4 and 5
Grounds 4 and 5 are as follows:
4 The Tribunal made a jurisdictional error by failing to consider an integer of the applicant’s claim for protection (CB 140), namely that he feared persecution for being a member of the Angola-Msumbiji gang.
5 The Tribunal made a jurisdictional error by failing to consider an integer of the applicant’s claim for protection (CB 140), namely that he feared persecution for being wanted by the Kenyan police in regard to robbery and violence committed as part of the Angola-Msumbiji gang in the Busia and Bugoma areas from 2007 until January 2013.
Applicant’s submissions
The applicant’s submissions in relation to ground 4 are as follows:
a)the Tribunal characterised the May 2013 Police Arrest Order: CB 141, as a charge of “being a member of the Angola-Msumbiji gang that killed people at Busia and Bugoma in the month of May”: CB 298 at [44];
b)the Tribunal acknowledged that the applicant had provided “a copy of a bill enacted to combat the activities of gangs in Kenya”: CB 293 at [18], which is an apparent reference to the POC Bill: CB 99, which was enacted without relevant changes by the Kenyan Parliament as part of the POC Act under which it is an offence to be a member of an organised criminal group: POC Act, s.3(a);
c)the Tribunal acknowledged that independent country information confirmed that Angola-Msumbiji is a banned terrorist organisation in Kenya: CB 298 at [43];
d)the Tribunal referred to the information provided to the Tribunal by the applicant that indicated that the authorities in Kenya were embarking on an active campaign to remove criminal gangs and punish those involved: CB 299 at [50];
e)the charge on the May 2013 Police Arrest Order specifically related to being a member of the banned terrorist organisation Angola-Msumbiji: CB 141 and CB 298 at [44];
f)the Tribunal did not accept that:
i)the Police Arrest Order would be issued after the applicant had departed the country;
ii)the Police Arrest Order would be so vague as to the nature of the applicant’s alleged crimes; or
iii)the Police Arrest Order would allege that the applicant committed a crime while he was absent from Kenya,
and raised doubts with the applicant about the authenticity of the Police Arrest Orders: CB 299 at [46];
g)this Court can take judicial notice of the existence of the Extradition Act 1988 (Cth) (“Extradition Act”) and many bilateral extradition treaties implemented by regulations under the Extradition Act;
h)extradition assumes that it is foreseeable that a warrant for a person’s arrest may be issued after the person has departed the country that is issuing the warrant;
i)no rational decision-maker could reasonably have drawn an adverse inference or based a factual finding on a conclusion that it was improbable that a warrant for a person’s arrest would issue for a person who has departed from a country;
j)this Court may have regard to Schedule 1, Form 1 to the Criminal Procedure Regulations 2005 (WA) for an example of an arrest warrant. The form there provides a similarly small space for the “Description of the offence” as in the May 2013 Police Arrest Order;
k)in view of this example, and in the absence of other evidence, it is submitted that the brief description of the offences on the Police Arrest Orders provide no basis for the Tribunal to draw any adverse inference;
l)the common law has long accepted that accessorial criminal liability can be attributed to persons who are not physically present at the scene of a crime. For the Commonwealth this extension of criminal liability has been codified in Division 11, Part 2.4 of the Schedule to the Criminal Code Act 1995 (Cth);
m)the offence alleged here, membership of an organised criminal group, is obviously one that is capable of being committed while in a physically different location to the criminal acts alleged to have been committed by the criminal organisation;
n)contrary to the Tribunal’s conclusions, there is nothing remarkable about a Police Arrest Order:
i)being issued after the applicant departed Kenya;
ii)not particularising alleged crimes; or
iii)alleging that a person is a party to an offence committed in a different location;
o)the Tribunal’s conclusions show such an ignorance of criminal procedure that the Tribunal ought to be taken not to have genuinely considered an integer of the applicant’s claim; and
p)the Tribunal failed to genuinely consider an integer of the applicant’s claims, namely that he feared persecution for being a member of the banned criminal organisation, Angola Msumbiji.
The applicant’s submissions in support of ground 5 are as follows:
a)the Tribunal sets out the change in the December 2013 Police Arrest Order (CB 142) as a charge of “robbery with violence in Busia and Bugoma”: CB 298 at [44]; and
b)otherwise, as for ground 4: see [35] above.
Minister’s submissions
The Minister’s submissions on grounds 4 and 5 are as follows:
a)ground 4 and 5 relate to the Police Arrest Orders which the applicant contends his mother sent to him in January 2014: CB 141-142;
b)the applicant’s claims for protection were summarised in the Tribunal Decision at CB 293 at [19] as follows:
The applicant told the Tribunal he fears returning to Kenya as he was an active member and leader of the Anglo-Msumbiji gang. He fears they will harm him if he returns as he left the gang despite taking a blood oath. He also fears harm from the police because he was a member of the group and has been identified as a member. The authorities will not protect him and he will be tortured and/or killed if he is detained.
c)the Tribunal noted the applicant “stated the [Police Arrest Orders] indicate that the police know he is a member of the gang and want to arrest him”: CB 293 at [20];
d)the Tribunal dealt with the Police Arrest Orders: CB 298-299 at [44]-[46], and concluded that it did not accept the Police Arrest Orders were issued “by any authority for the applicant’s arrest”: CB 299 at [46];
e)the Police Arrest Orders were relied upon by the applicant to corroborate two ‘integers’ of his claims for protection:
i)that he was a former member of the Anglo-Msumbiji gang; and
ii)that the police would persecute him for being a former member of the Anglo-Msumbiji gang.
Both those claims required the Tribunal to accept that the applicant had been a member of the Anglo-Msumbiji gang. The Tribunal did not accept that the applicant was or ever had been a member of that gang “or any other criminal gang or gang in Kenya”: CB 299 at [48];
f)the distinction must be drawn between a “failure to address a claim and its integers, on the one hand and errant fact finding on the other hand. It is the former and not the latter which … [gives] rise to jurisdictional error”: SZQRW v Minister for Immigration & Citizenship [2012] FCAFC 164; (2012) 134 ALD 454 at [42] per Jacobson, Siopis and Murphy JJ; SZSZW v Minister for Immigration & Border Protection [2015] FCA 562; and
g)in circumstances where the Tribunal was aware of, set out in detail and gave consideration to, the applicant’s claims and evidence (both oral and documentary): CB 299 at [48]-[49], but ultimately rejected them because of a disbelief as to the truthfulness of those claims, it cannot be said that the Tribunal failed to consider “integers” of the claim.
Grounds 4 and 5 – consideration
In the Tribunal Decision at CB 298-299 at [45]-[46] the Tribunal said as follows:
45.The Tribunal referred to the police orders to arrest and questioned why they would be issued sometime after he had left Kenya and left the gang. The applicant indicated that he was involved in looking for places to attack before he left the gang in 2012 and even though he was not in Kenya at the time, he was part of the group that attacked the village. The Tribunal indicated that the arrest order did not refer to a specific village but a large area and was told that even though he was not in Kenya at the time he knew it was going to happen. In relation to the second arrest order, even though he had not been in Kenya for nearly 12 months, the police thought he was part of this group and he was a leader.
46.The Tribunal does not accept that warrants for the applicant’s arrest would be issued sometime after his departure and in one case, 12 months after his departure from the country, or would be so vague in the nature of his crimes or be issued for crimes allegedly committed while he was absent from Kenya. The Tribunal raised with the applicant its doubts as to the authenticity of the arrest warrants and was told that his mother got everything for him. The Tribunal does not accept that the warrants were issued by any authority for the applicant’s arrest as the Tribunal does not accept the applicant as a credible witness and does not accept th[at] he was ever a member or associated with the Angola-Msumbiji or any other criminal gang in Kenya.
The Court was not taken to the relevant legislative provisions in relation to Police Arrest Orders under Kenyan law. Rather, the applicant argued by analogy to various provisions of Australian federal (in relation to extradition) and federal and state criminal procedure laws. In retrospect it is puzzling as to why no effort was made to deal with the relevant laws of Kenya, by either the applicant, or the Minister as a model litigant. Perhaps this might be accounted for by the fact that the Tribunal, also puzzlingly, failed to have regard to any relevant provisions of the laws of Kenya (which, for country information purposes, appear to be readily available: see (which was the source for the POC Bill provided to the Tribunal by the applicant: CB 99-121)). The arguably obvious necessity to consider relevant criminal procedural law in Kenya and the arguably ready availability of the relevant Kenyan law (as set out below) does raise for consideration whether or not the Tribunal had regard to “the latest information … available to it”: Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 at [45] per Kenny, Griffiths and Mortimer JJ (“MZYTS”), “attention” to which “is a core aspect of lawful formation of a state of satisfaction” by the Tribunal: MZYTS at [73] per Kenny, Griffiths and Mortimer JJ.
The Court notes that the Police Arrest Orders are, on their face, said to be made in accordance with the power under s.30 of the Criminal Procedure Code (Kenya) (“Kenyan CP Code”): CB 141-142. Section 30 of the Kenyan CP Code is preceded by s.29 which provides that a “police officer may, without an order from a magistrate and without a warrant, arrest” certain persons and released convicts including: “any person whom he suspects upon reasonable grounds of having committed a cognisable offence”: Kenyan CP Code, s.29(a). Section 30 then provides that:
An officer in charge of a police station may in the same manner arrest or cause to be arrested –
(a)any person found taking precautions to conceal his presence within the limits of the station under circumstances which afford reason to believe that he is taking those precautions with a view to committing a cognisable offence;
A “cognisable offence” is defined in s.2 of the Kenyan CP Code as “an offence for which a police officer may, in accordance with the First Schedule or under any law for the time being in force, arrest without warrant”.
Section 31 of the Kenyan CP Code deals with when a police officer deputes a subordinate to arrest without warrant, and provides as follows:
When an officer in charge of a police station requires an officer subordinate to him to arrest without a warrant (otherwise than in his presence) any person who may lawfully be arrested without a warrant under section 30, he shall deliver to the officer required to make the arrest an order in writing specifying the person to be arrested and the offence or other cause for which the arrest is to be made.
The Kenyan CP Code provides for means of arrest, charge or attendance at court of an accused person other than by way of Police Arrest Order.
Under s.89(1) of the Kenyan CP Code proceedings “may be instituted either by the making of a complaint or by the bringing before a magistrate of a person who has been arrested without warrant”. Section 89(4) of the Kenyan CP Code provides that:
The magistrate, upon receiving a complaint, or where an accused person who has been arrested without a warrant is put before him, shall, subject to the provisions of subsection (5), draw up or cause to be drawn up and shall sign a formal charge containing a statement of the offence with which the accused is charged, unless the charge is signed and presented by a police officer.
Section 89(5) of the Kenyan CP Code provides for a refusal to admit a complaint or charge if a magistrate is of the opinion that no offence is disclosed by a complaint or formal charge made or presented to the magistrate.
Section 90(1) of the Kenyan CP Code provides that a magistrate who has received a complaint and signed a charge in accordance with s.89 may issue either a summons or a warrant to compel the attendance of the accused person before a subordinate court having jurisdiction to try the offence alleged to have been committed, but provides that a warrant is not to be issued in the first instance unless the complaint has been made upon oath either by the complainant or by a witness or witnesses.
An accused person may be issued with a summons compelling them to appear at court, and the summons is to be in writing, in duplicate, signed and sealed by the presiding officer of the court or such other officer as the High Court of Kenya may from time to time by rule direct: Kenyan CP Code, s.91. Notwithstanding the issue of a summons, a warrant may be issued at any time before or after the time appointed in the summons for the appearance of the accused person: Kenyan CP Code, s.100. An arrest warrant must be under the hand of the judge or magistrate issuing it and bear the seal of the court: Kenyan CP Code, s.102(1). Section 102(2) of the Kenyan CP Code provides that:
Every warrant shall state shortly the offence with which the person against whom it is issued is charged, and shall name or otherwise describe that person, and shall order the person or persons to whom it is directed to apprehend the person against whom it is issued and bring him before the court issuing the warrant, or before some other court having jurisdiction in the case, to answer to the charge therein mentioned and to be further dealt with according to law.
The Kenyan CP Code otherwise maintains the traditional nomenclature of charges and informations as being the form of originating process to give a criminal court jurisdiction, and s.134 of the Kenyan CP Code provides that:
Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as maybe necessary for giving reasonable information as to the nature of the offence charged.
Section 137 of the Kenyan CP Code provides rules for the framing of charges and informations and relevantly provides as follows:
The following provisions shall apply to all charges and informations, and, notwithstanding any rule of law or practice, a charge or information shall, subject to this Code, not be open to objection in respect of its form or contents if it is framed in accordance with this Code–
(a)(i) Mode in which offences are to be charged – a count of a charge or information shall commence with a statement of the offence charged, called the statement of offence;
(ii)the statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and if the offence charged is one created by enactment shall contain a reference to the section of the enactment creating the offence;
(iii)after the statement of the offence, particulars of the offence shall be set out in ordinary language, in which the use of technical terms shall not be necessary: Provided that where any rule of law or any Act limits the particulars of an offence which are required to be given in a charge or information, nothing in this paragraph shall require more particulars to be given than those so required;
(iv)the forms set out in the Second Schedule or forms conforming thereto as nearly as may be shall be used in cases to which they are applicable; and in other cases forms to the same effect or conforming thereto as nearly as may be shall be used, the statement of offence and the particulars of offence being varied according to the circumstances of each case;
(v)where a charge or information contains more than one count, the counts shall be numbered consecutively;
The Second Schedule to the Kenyan CP Code provides for the forms of stating offences in informations, and in relation to robbery with violence, provides as follows:
Robbery with violence, contrary to section 296 of the Penal Code.
PARTICULARS OF OFFENCE
A. B., on the ……………day of ……………, 20 ………, in ……………District within the ………………..province, robbed C. D., of a watch, and at, or immediately before or immediately after, the time of such robbery did use personal violence to the said C. D.
Under the POC Act it is an offence to be a member of an organised criminal group: POC Act, s.3(a) punishable by a fine or up to 15 years imprisonment, or by life imprisonment if a person is killed by a member of any organised criminal group in the commission of the offence of being a member of an organised criminal gang which endangers the life of a person or causes serious damage to the property of any person: POC Act, ss.3(n) and 4. Under the First Schedule to the Kenyan CP Code a person accused of committing an offence punishable with death or imprisonment for more than ten years may be arrested without warrant.
The First Schedule of the Kenyan CP Code also provides that for the offence of robbery with violence under s.296(2) of the Kenyan CP Code, punishable by fines, imprisonment or death, an arrest may be made without warrant.
The Court is cognisant of the fact that neither the parties nor the Tribunal referred to the Kenyan CP Code. Arguably (and the Court appreciates that it has not yet heard argument from either of the parties in relation to this issue) the failure to have regard to the Kenyan CP Code might be a failure to have regard to a relevant consideration in relation to the Police Arrest Orders. When regard is had to the Kenyan CP Code:
a)the Police Arrest Orders appear to be no more than orders made by an officer in charge of a police station to another police officer to arrest a person in relation to a charge relatively briefly described;
b)Police Arrest Orders are:
i)not “warrants” as they were characterised by the Tribunal: CB 299 at [46]; and the Kenyan CP Code provides for various forms by which a person may be arrested, with the Police Arrest Order being the least formal of those procedures; and
ii)not “charges”, “informations” or “summonses” as those processes are characterised by the Kenyan CP Code;
c)a person arrested without warrant under a Police Arrest Order is brought before a magistrate who then frames the charge pursuant to s.89(4) of the Kenyan CP Code (and presumably having reference to the rules for the framing of charges under s.137 of the Kenyan CP Code), and had the Tribunal had regard to those provisions, the alleged vagueness in the nature of the crimes alleged in the Police Arrest Orders arguably becomes understandable, they being framed by an officer in charge of a police station, and not a magistrate who is required to formalise such a charge under s.89(4) of the Kenyan CP Code; and
d)when regard is had to, for example, the particulars of offence for robbery with violence contrary to s.296 of the Kenyan CP Code (robbery with violence being the cause to arrest the applicant specified in the December 2013 Police Arrest order), that being the formal means of stating an alleged offence, it is arguable that the Police Arrest Order does not need to descend into such particularity.
In the above circumstances the Tribunal was therefore incorrect in describing the Police Arrest Orders as “warrants” for the applicant’s arrest, and also arguably incorrect in asserting that the Police Arrest Orders would not be “so vague in the nature of his crimes”: CB 299 at [46], both being factors which seemingly led the Tribunal to doubt the authenticity of what it described as “the arrest warrants”, and thereby to doubt the applicant’s credibility: CB 299 at [46].
The Court also observes that the Police Arrest Orders appear to be in a form contemplated by the provisions of ss.29, 30 and 31 of the Kenyan CP Code, and that the Tribunal did not have regard to those provisions before determining that it did “not accept that the warrants were issued by any authority”: CB 299 at [46]. A consideration as to whether or not the Police Arrest Orders were orders which could be made under the Kenyan CP Code, and whether the Police Arrest Orders in the form that they appear at CB 141-142 might arguably conform with the apparent intention of the relevant provisions of the Kenyan CP Code (as explained above) might have been a relevant consideration for the Tribunal as part of its consideration as to whether the Police Arrest Orders were issued by the Kenyan Police. In that regard it is also relevant for the Court to observe that the Tribunal had regard to the fact that the Police Arrest Orders “did not refer to a specific village but a large area”, seemingly inferring that the Police Arrest Order ought to have referred to the specific village that the applicant said was attacked by the gang of which he was a member: CB 298-299 at [45]. The implied criticism by the Tribunal of the fact that the arrest order does not refer to a specific village, but a large area, might also be in error given that the May 2013 Police Arrest Order refers to the applicant being a member of the gang that “killed people at Busia and Bugoma”: CB 141 and the December 2013 Police Arrest Order refers to robbery with violence “within Busia and Bugoma”: CB 142. The Police Arrest Orders are stamped as being issued out of the Busia Police Station. Each Police Arrest Order refers to two places, specifically, and even if those places constitute “a large area”: CB 298-299 at [45], before any doubt could be cast upon the Police Arrest Orders on that basis some enquiry would need to be made as to whether or not the two specified places were “within the limits of the [Busia] station” for the purposes of s.30 of the Kenyan CP Code.
On the basis of the above matters it appears to be arguable that had the Tribunal had regard to:
a)the proper nature and form of the Police Arrest Orders; and
b)all of the relevant provisions of the Kenyan CP Code,
that the Tribunal’s assessment of the applicant’s credibility (which appears to have, at least in part, been made on the basis of issues related to the nature and form of the Police Arrest Orders) might have been different, and in those circumstances an issue arises as to whether a different result may have ensued: SZSFS v Minister for Immigration & Border Protection [2015] FCA 534 at [41] per Logan J (“SZSFS”); Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; (2000) 75 ALJR 52; (2000) 176 ALR 219; (2000) 62 ALD 285; (2000) 21 Leg Rep 6 at [5] per Gleeson CJ; [80] per Gaudron and Gummow JJ; [104] per McHugh J; [131]-[133] per Kirby J; [172] per Hayne J and [211] per Callinan J (“Aala”).
The Tribunal’s statement that it did not accept that the Police Arrest Orders for the applicant’s arrest would be issued sometime after his departure and in one case, 12 months after his departure from the country”: CB 299 at [46] is made without reference to any relevant country information or law. On its face, it lacks a logical and probative basis for the conclusion there reached, which again appears to be a conclusion which has impacted upon the applicant’s credibility. That what is said by the Tribunal is plainly wrong in relation to the circumstances in which a person may be accused of criminal offences in another country can be seen from the first three paragraphs of the judgment of the then Chief Justice of the High Court of Australia in Vasiljkovic v The Commonwealth of Australia & Ors [2006] HCA 40; (2006) 227 CLR 614; (2006) 80 ALJR 1399; (2006) 228 ALR 447 at [1]-[3] per Gleeson CJ (“Vasiljkovic”) which are as follows:
1. The plaintiff is, by naturalisation, a citizen of Australia. At the time of the hearing of this matter he was also a citizen of Serbia and Montenegro. He is accused of having committed, in 1991 and 1993, criminal offences against the Basic Criminal Code of the Republic of Croatia. Those offences are alleged to have been committed in the course of conflict between the armed forces of the Republic of Croatia and “armed Serbian paramilitary troops” of which the plaintiff was said to have been a commander. The alleged offences include torture and the murder of civilians and prisoners of war. On 12 December 2005, a County Court of the Republic of Croatia decided that there was a well-founded suspicion that the plaintiff had committed the alleged offences and that a motion requesting his interrogation should be granted. The decision, after reciting details of the alleged conduct of the plaintiff, recorded that “the suspect” had not been interrogated because he lived abroad and was “not available at the moment”. The decision also upheld a “motion concerning custody”.
2. On 17 January 2006, the Government of Croatia requested Australia to deliver the plaintiff to the Croatian authorities by way of extradition. The request enclosed a copy of the County Court Decision, and particulars of the alleged offences.
3. The plaintiff, who was born in 1954 in what was then the Federal People’s Republic of Yugoslavia, migrated to Australia in 1969 with his family, and took up Australian citizenship in 1975. If the allegations against him are true, he must have returned to his former homeland temporarily in 1991 and 1993, but he resides in Australia.
Before making a determination that the Police Arrest Orders were not issued by any authority it is arguable that the Tribunal ought to have considered and weighed the matters in relation to the Kenyan CP Code, and the not unusual circumstance of a person being charged with an offence after leaving a country, as is often the case when extradition is sought (Vasiljkovic being but one example). Had the Tribunal done so it would have had to consider:
a)whether the nature and form of the Police Arrest Orders were consistent with what was being asserted by the applicant having regard to the provisions of ss.29, 30 and 31 of the Kenyan CP Code; and
b)whether or not any alleged offence needed to be particularised in a detailed and formal manner in the Police Arrest Orders, having regard to the fact that Police Arrest Orders permitted arrest without warrant, and that the subsequent charging, and detail of the relevant charge, was a matter for a magistrate under s.89(4) of the Kenyan CP Code: cf. WZANF v Minister for Immigration & Anor [2010] FMCA 110 at [77] per Lucev FM.
Had the Tribunal done so, and had it arrived at different credibility findings (including neutral credibility findings) as a result, it may arguably have been forced to engage with the integers of the applicant’s claim. At the very least it might have required a re-consideration of the factual findings which have been made and the credit findings made insofar as those credit findings related to the findings concerning the Police Arrest Orders, and to then consider whether that warranted further consideration of other, or the overall, credibility findings.
Had the Tribunal had regard to the provisions of the Kenyan CP Code, and to the proper nature and form of the Police Arrest Orders, it appears arguable that to the extent that its credibility findings rested upon the nature and form of the Police Arrest Orders (including therein their authenticity) that those credibility findings might have been different, but might also arguably be open to attack as constituting jurisdictional error on the bases now explicated in cases such as CQJ15 v Minister for Immigration & Border Protection [2016] FCAFC 146 at [37]-[38] per McKerracher, Griffiths and Rangiah JJ; ARG15 v Minister for Immigration & Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry and Bromwich JJ. None of the above constitutes any suggestion that the applicant might ultimately be successful, but rather goes to ensuring that the rule of law is upheld: Aala at [132] per Kirby J.
Because the provisions of the Kenyan CP Code related to the Police Arrest Orders, and other associated provisions concerning the nature of arrest, warrants, summonses, charges and informations, were not considered by the Tribunal, nor put before this Court by the parties, the Court considers that procedural fairness requires that the parties be given an opportunity to address these issues, if it be necessary, before the Court makes any final determination on grounds 4 and 5 of the Judicial Review Application, or any final orders: Assistant Commissioner Condon v Pompano Pty Ltd & Anor [2013] HCA 7; (2013) 252 CLR 38; (2013) 228 A Crim R 237; (2013) 87 ALJR 458; (2013) 295 ALR 638 at [156] per Hayne, Crennan, Kiefel and Bell JJ and at [186] and [194] per Gageler J; Shrestha v Migration Review Tribunal [2015] FCAFC 87; (2015) 229 FCR 301; (2015) 321 ALR 356 at [54]-[57] per Mansfield, Tracey and Mortimer JJ. It is also for that reason that the Court has referred, in the preceding paragraphs to matters being “arguable”, the Court having made no final determination on these issues. The Court will therefore, in regards to grounds 4 and 5 of the Judicial Review Application make an order that the parties confer with respect to the future conduct of the matter, and that the matter otherwise be adjourned to a directions hearing on a date to be fixed.
Ground 6
Ground 6 is as follows:
6 The Tribunal made a jurisdictional error by:
(i) failing to consider specific factual information put forward by the applicant about his involvement with the Angola-Msumbiji gang in support of his claims for protection; and
(ii) finding that the applicant’s responses to its questions merely reflected readily available information
when there was no country information before the Tribunal from which the specific information provided by the applicant as to his involvement with the gang could have been sourced.
Applicant’s submissions
The applicant’s submissions in relation to ground 6 are as follows:
a)the Tribunal found the applicant’s responses to questions about his specific activities with Angola-Msumbiji were general, lacked detail and did not reflect his claimed involvement as a leader, and reflected readily available information about the gang rather than specific knowledge: CB 297 at [38];
b)the Tribunal held that the applicant was not a member of the Angola-Msumbiji gang or in any way involved with it: CB 299 at [46] and [48];
c)at CB 292-293 at [14], CB 293 at [17], CB 294-295 at [25]-[27] and CB 297 at [39] the Tribunal summarised the information provided to it by the applicant in response to its questions, which included details of:
i)formation, aims, organisational structure, leadership (with some names);
ii)activities of the gang, including which activities the applicant was personally involved with;
iii)his personal history in the gang, including the date and circumstances under which he joined, when, where and in what he was trained in, when he was promoted and what his responsibilities as a gang leader were; and
iv)specific attacks and incidents, including operational tactics and timelines; and
d)a review of the TT further establishes that the applicant provided detailed information regarding the activities, structure, and his personal involvement in the Angola-Msumbiji gang: Tribunal Transcript, pages 15-18, lines 553-738, page 25, lines 1040-1045 and pages 30-31, lines 1282-1335.
Minister’s submissions
The Minister’s submissions in relation to ground 6 are as follows:
a)this ground is essentially seeking review of the findings of facts and conclusions reached by the Tribunal and does not amount to an allegation of jurisdictional error;
b)the particulars of this ground acknowledge that the Tribunal summarised the evidence that the applicant provided to the Tribunal. At CB 297 at [38] the Tribunal made specific findings in relation to that evidence and as such the Court should not conclude that the Tribunal failed to consider such evidence: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALR 630; (2003) 75 ALD 630 at [47] per French, Sackville and Hely JJ (“WAEE”); and
c)while the applicant may have provided information about criminal gangs in Kenya that mentioned the Angola-Msumbiji only in passing, that information and the independent country information provided more information in respect of the behaviour of gangs in Kenya which bore remarkable similarity to the evidence provided by the applicant about his involvement: for example, CB 59, 61-63 and 68. Accordingly, the Tribunal’s findings were therefore open to it on the available evidence and should not be reviewed by the Court as no jurisdictional error arises in respect of ground 6.
Ground 6 – consideration
The Tribunal heard the applicant’s evidence, and in particular his claims to be a member of the Angola-Msumbiji gang, and his description of the activities of that gang: CB 292 at [14], CB 293 at [17]-[20] and CB 294-295 at [25]-[27], and also heard the applicant’s evidence that as a result of his leaving the gang, gang members were now looking for him, and had destroyed his home: CB 294 at [21] and CB 296 at [32]-[33] and [35]. The Tribunal also had regard to available country information concerning the gang, including the information provided by the applicant: CB 298 at [43]. The country information available to the Tribunal appears to have been not inconsiderable: see:
a)SM Kilonzo “The Trajectories of Survival of the Mungiki Youth in Nairobi” at CB 55-71;
b)the country information referred to in the Delegate’s Decision at CB 84-88, which included country information on the Angola-Msumbiji gang generally, and specific information concerning that gang from the Immigration and Refugee Board of Canada: CB 87, and country information specific to the Busia District, including the town of Busia, being the town from which the police issued the Police Arrest Orders: CB 86;
c)information by a UN special rapportur on extra judicial executions in Kenya: CB 143-151;
d)miscellaneous information concerning human rights, extra judicial killings, the activities of the Kenyan Police and government sponsored criminal gangs: CB 153-156; and
e)the United States Department of State 2012 Human Rights Report on Kenya: CB 152 and CB 157-215; and
f)what appears to be a further United States Department of State Report on Human Rights at CB 216-267.
The Tribunal afforded the applicant procedural fairness by putting to him the fact that it had difficulty in believing in his evidence concerning his involvement with the Angola-Msumbiji gang: CB 297 at [39].
The Tribunal considered the evidence “individually, cumulatively and in its entirety”: CB 297 at [38], and did not accept that the applicant was a member or involved with the Angola-Msumbiji gang or any other criminal gang in Kenya: CB 297 at [38]. The Tribunal had regard to the evidence given by the applicant, the country information, and the applicant’s manner of giving evidence before arriving at that conclusion. In the circumstances, the Tribunal was engaged in a fact-finding exercise with which this Court should not interfere: Wu Shan Liang at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. Moreover, it cannot be said that the Tribunal was lacking in country information relevant to the activities of the Angola-Msumbiji gang, or other criminal gangs, operating in Kenya, and dealt at some length with the evidence, referred to the country information, and made findings and drew conclusions concerning the applicant’s involvement in gang activities, and as such leaves no room to infer that it failed to deal with the issue: WAEE at [47] per French, Sackville and Hely JJ. Further, it is not, in any event, a jurisdictional error to fail to have regard to every particular piece of evidence, even if that were the case, which in the Court’s view it is not in this matter: WAEE at [46] per French, Sackville and Hely JJ.
In all of the above circumstances ground 6 is not made out and does not establish jurisdictional error in the Tribunal Decision.
Ground 7
Ground 7 is as follows:
7 In finding that the applicant was not entitled to protection, the Tribunal applied illogical reasoning, or in the alternative made a legally unreasonable decision, in relying on a conclusion that the applicant did not have a well-founded fear of persecution as he did not apply for a protection visa upon his first entry into Australia, and in doing so made a jurisdictional error.
Applicant’s submissions
The applicant’s submissions in relation to ground 7 are as follows:
a)the Tribunal:
i)applied illogical reasoning in finding that the applicant was not entitled to protection; or
ii)made a legally unreasonable decision;
b)in either case the flawed reasoning was that the applicant did not have a well-founded fear of persecution because he did not apply for a Protection Visa upon his first entry into Australia;
c)at CB 292 at [12] the Tribunal found that “shortly after his arrival” in Australia the applicant fell out with his sponsor Ms Smith and was unable to meet his education expenses;
d)the Department’s records show that the applicant advised the Department on 23 August 2013 that he had fallen out with Ms Smith and was no longer living with her: Campbell Affidavit, Annexure CAC1, and on 28 August 2013 that his sister was concentrating on her new baby and was no longer willing to support him: Campbell Affidavit, Annexure CAC2;
e)the Tribunal found that the “applicant arrived in Australia in January 2013 yet he did not apply for protection until September 2013 after his student visa had been cancelled and he was in detention”: CB 296-297 at [37], and that a person who genuinely feared persecution would not delay taking steps to secure their safety;
f)the Tribunal also concluded that this delay in seeking protection in Australia caused it to conclude that the applicant was not a credible witness: CB 296-297 at [37];
g)the conclusion in the preceding paragraph is illogical, or led to an unreasonable decision, in circumstances where:
i)the applicant was lawfully residing in Australia. He was actively pursuing his studies in Information Technology (Networking);
ii)until his financial support was withdrawn in July 2013 the applicant was safe;
iii)the applicant had no apprehension that the Student Visa was about to be cancelled and therefore that he may have to soon return to Kenya;
iv)once the Student Visa had been cancelled he made enquiries and learned more about the dangers he would face if he returned to Kenya: CB 295 at [31];
v)the applicant was unaware, prior to being detained in immigration detention, that he could apply for a Protection Visa; and
vi)he applied for a Protection Visa (without the aid of a lawyer or migration agent) within 2 weeks of becoming aware of the possibility; and
h)in these circumstances the Tribunal’s approach was an irrational basis for discounting the credibility of the applicant: SZSFS at [40] per Logan J, and the erroneous conclusion must have materially affected the outcome in view of the interconnected nature of the Tribunal’s conclusions as to credit: Minister for Immigration & Border Protection v SZSNW [2014] FCAFC 145 at [97] per Buchanan J; FTZK v Minister for Immigration & Border Protection [2014] HCA 26; (2014) 88 ALJR 754; (2014) 64 AAR 15; (2014) 310 ALR 1 at [97] per Crennan and Bell JJ.
Minister’s submissions
The Minister’s submissions in relation to ground 7 are as follows:
a)in Minister for Immigration & Citizenship v SZMDS [2010] HCA 16, (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248, Crennan and Bell JJ concluded at [135] (“SZMDS”):
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 that 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.
b)the applicant’s written submissions at [86] suggest that a number of factual elements establish the illogicality of the Tribunal’s conclusion that “a person who genuinely feared persecution would not delay taking steps to secure their safety”;
c)the difficulty with the premise to this ground is that it takes some elements of the circumstances of the matter and considers them in isolation to the whole context and all the factual circumstances upon which the Tribunal reached its conclusions. Those circumstances include:
i)the applicant had had discussions with his brother Hilary in June/July 2013 “who told him everything that had happened”: CB 294 at [24];
ii)the applicant told the Delegate that he was on a government “watchlist”, and told the Tribunal that the police and authorities were aware of his activities but that he was “shocked” how easy it was to leave the country: CB 295 at [29]-[30];
iii)the applicant sought cancellation of the Student Visa: CB 293 at [16];
iv)the evidence that the applicant told the Department that he wanted to return to Kenya, but not his home; and
v)the period between the Student Visa being granted and the departure to Australia and that the applicant felt “unsafe and insecure” in Kisumu: CB 296 at [35];
d)in all of those circumstances, and when the Tribunal Decision is read in its entirety, rather than by way of cherry-picking certain elements, it cannot be said that either “the decision to which the decision maker came was simply not open on the evidence or … there is no logical connection between the evidence and the inferences or conclusions drawn”; and
e)ground 7 does not establish jurisdictional error.
Ground 7 – consideration
In the Court’s view it was not illogical or unreasonable for the Tribunal to have regard to the failure of the applicant to seek protection upon entry to Australia. For reasons set out above: see [31]-[32] above delay in making an application for protection – or indeed making any inquiries as to the availability of protection – is a factor which warrants consideration in the determination of whether a person has a well-founded fear of persecution or a fear of significant harm if they are returned to their home country. In this case the Tribunal had regard to all of the circumstances in their context, including those circumstances posited by the applicant’s submissions, and the circumstances posited by the Minister’s submissions. The Tribunal had regard to the fact that there was no evidence that upon entry to Australia the applicant evinced a desire to seek, or to make any inquiries as to, the availability of protection beyond the grant of the Student Visa, in circumstances in which he might have been expected to do so, including the fact that he asserted that he was on government watch lists at the time that he left Kenya, and that in June or July of 2013 his brother updated him upon what was said to be the situation in Kenya, including the destruction of the family home by gang members. In the above circumstances, there was nothing illogical nor unreasonable in the Tribunal having regard to the applicant’s failure to seek protection upon entry to Australia, that being an issue which, in all the circumstances, is one to which a logical or rational person having regard to the same material might raise for consideration and might reach the same conclusion: SZMDS at [135] per Crennan and Bell JJ. Further, this issue was not of itself decisive as to the applicant’s credibility, it being only one of multiple reasons upon which the Tribunal concluded that the applicant lacked credibility: see CB 297 at [38] and [40], and subject to what is said in respect of grounds 4 and 5 above: CB 299 at [46].
In the above circumstances, ground 7 has not been made out and does not establish jurisdictional error in the Tribunal Decision.
Conclusions and orders
Noting that grounds 2 and 3 of the Judicial Review Application are not pressed, the Court has concluded that:
a)grounds 1, 6 and 7 of the Judicial Review Application have not been made out and do not establish jurisdictional error in the Tribunal Decision; and
b)the failure of the Tribunal in the Tribunal Decision, and of the parties in the proceedings in this Court, to address the relevant provisions of the Kenyan CP Code may necessitate the making of further submissions with respect to grounds 4 and 5 of the Judicial Review Application as to the disposition of, or further conduct of, these proceedings, and the Court will therefore order that the parties confer in that regard, and otherwise adjourn the proceedings to a directions hearing on a date to be fixed.
The Court will also order that the name of the second respondent be changed to “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2.
The Court will reserve costs.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 20 April 2017
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