WZAUR v Minister for Immigration and Anor (No.2)
[2019] FCCA 2234
•16 August 2019 (and delivered by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZAUR v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2019] FCCA 2234 |
| 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 –– Kenyan police orders to arrest – whether failure to consider relevant Kenyan criminal law and criminal procedure – whether conclusion that police arrest order would not be issued 12 months after applicant departed Kenya was without evidentiary foundation or lacking in a logical and probative basis or plainly wrong – whether failure to consider an integer of the applicant’s claim namely a fear of persecution for being a member of a gang – whether failure to consider an integer of the applicant’s claim of a fear of persecution for being wanted by the Kenyan police. |
| Legislation: Criminal Procedure Code (Kenya), ss. 29, 30, 31, 36, 89, 137, 296(2) Federal Circuit Court of Australia Act 1999 (Cth), s.75 Migration Act 1958 (Cth), ss.36(2), 422B, 425, 474, 476 The Prevention of Organised Crime Bill 2010 (Kenya) |
| Applicants in V 722 vMinister for Immigration & Multicultural Affairs [2002] FCA 1059 The Shorter Oxford English Dictionary on Historical Principles, Vol I (Oxford: Clarendon Press, 1973) |
| 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 dates: | 1 July 2015 and 20 April 2017 |
| Date of Last Submission: | 24 January 2018 |
| Delivered at: | Perth |
| Delivered on: | 16 August 2019 (and delivered by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
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
That a writ of certiorari issue quashing the decision of the second respondent made on 14 July 2014.
That a writ of mandamus issue requiring the second respondent to re-hear the application for review made by the applicant on 20 December 2013 according to law.
| 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 Act1958 (Cth) (“Migration Act”) of a decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” (which appears in the Court Book (“CB”) at CB 290-312) 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”).
The Court delivered Reasons for Judgment on 20 April 2017 in WZAUR v Minister for Immigration & Anor [2017] FCCA 561 (“WZAUR (No.1)”) which resulted in grounds 4 and 5 of the Judicial Review Application filed on 16 March 2015 remaining on foot. In WZAUR (No.1) at [72(b)] per Judge Lucev the Court concluded that:
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 made orders on 13 November 2017 (“November 2017 Orders”) giving leave for the applicant to file a further amended application and further affidavit. Pursuant to the November 2017 Orders the applicant filed:
a)a further amended Judicial Review Application on 20 November 2017 (“Further Amended Judicial Review Application”) which contained a further two grounds, being grounds 8 and 9; and
b)an affidavit affirmed 24 August 2017 (“Applicant’s August 2017 Affidavit”).
The applicant filed written submissions on 12 December 2017 addressing the four grounds now relied upon, namely, grounds 4, 5, 8 and 9 of the Further Amended Judicial Review Application. The Minister filed written submissions in reply on 24 January 2018.
Background to the Judicial Review Application
The background to the Judicial Review Application and Tribunal Decision was set out in WZAUR (No 1) where reference was made to the following matters:
a)the applicant’s personal details: WZAUR (No 1) at [3] per Judge Lucev;
b)the circumstances of the grant and cancellation of the applicant’s student visa: WZAUR (No 1) at [4]-[7] per Judge Lucev;
c)the circumstances of the applicant’s arrest and placement in immigration detention: WZAUR (No 1) at [8] per Judge Lucev;
d)the lodgement of the Protection Visa and bridging visa applications in September 2013: WZAUR (No 1) at [9]-[11] per Judge Lucev;
e)the Delegate’s Decision: WZAUR (No 1) at [12]-[13] per Judge Lucev;
f)the nature of the application to the Tribunal for review of the Delegate’s Decision: WZAUR (No 1) at [14]-[18] per Judge Lucev; and
g)the findings in the Tribunal Decision: WZAUR (No 1) at [19] per Judge Lucev.
The above matters need not be repeated in full here, but ought to be taken as being incorporated in these Reasons for Judgment.
Background to the Further Amended Judicial Review Application
By way of background to the Further Amended Judicial Review Application and the grounds now relied on the Court sets out the following lengthy extract from WZAUR (No 1) at [38]-[59] per Judge Lucev:
Grounds 4 and 5 – consideration
38. 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.
39. 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.
40. 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;
41. 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”.
42. 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.
43. 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.
44. 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.
45. 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.
46. 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.
47. 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.
48. 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;
49. 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.
50. 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.
51. 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.
52. 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.
53. 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].
54. 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.
55. 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”).
56. 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.
57. 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.
58. 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 [sic – CQG15] 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.
59. 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.
Grounds of the Further Amended Judicial Review Application
Grounds 4, 5, 8 and 9, being the grounds the subject of orders in WZAUR (No 1) (grounds 4 and 5), and new grounds now relied upon by the applicant (grounds 8 and 9), are set out and considered below.
Consideration
Jurisdictional error required
The Tribunal Decision may be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24. An error may constitute a jurisdictional error where the Tribunal identifies a wrong issue; asks the wrong question; ignores relevant material; or relies on irrelevant material, in a way that affects the Tribunal’s exercise or purported exercise of power, thus resulting in a decision exceeding, or a failure to exercise, the authority or powers given to the Tribunal under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
In certain circumstances a denial of procedural fairness may constitute jurisdictional error in the Tribunal Decision: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”); Migration Act, s.422B.
The applicant must make out his case of jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424 at [15] per Jagot J.
The Court has no jurisdiction to engage in merits review, and fact-finding is a matter for the Tribunal, and is not reviewable by this Court if the findings of fact 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; 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, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). The weight to be given to an applicant's claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The Court bears in mind that the applicant was self-represented at the Tribunal Hearing and the Court has remained alert to the possibility of error in the Tribunal Decision: MZAIB v Minister for Immigration & Border Protection & Anor [2015] FCA 1392; (2015) 238 FCR 158 at [112] per Mortimer J.
Grounds 8 and 9
It is convenient for the Court to deal with grounds 8 and 9 before grounds 4 and 5.
Ground 8
Ground 8 is as follows:
8. The Tribunal made a jurisdictional error by failing to have regard to the latest information.
Particulars
a) The Tribunal ought to have considered the relevant Kenyan criminal procedure law; and
b) By failing to consider Kenyan criminal procedure, the Tribunal failed to have regard to a relevant consideration when it considered the Police Arrest Orders.
Applicant’s submissions
The applicant’s submissions in relation to ground 8 are as follows:
a)the Tribunal ought to have considered Kenyan criminal procedure: WZAUR (No 1) at [39] per Judge Lucev;
b)the Criminal Procedure Code (Kenya) (“Kenyan CP Code”) was a relevant consideration in relation to the Police Arrest Orders;
c)the Tribunal had before it a copy of The Prevention of Organised Crime Bill 2010 (Kenya): CB 99 (“Organised Crime Bill”). The Organised Crime Bill was marked with the website apparently used by the National Council for Law Reporting to disseminate the laws of Kenya with the apparent authority of the Attorney General of Kenya;
d)while the applicant claims no special knowledge or expertise, he does affirm that he believes to be a reliable source: Applicant’s August 2017 Affidavit at [2];
e)the Applicant’s August 2017 Affidavit annexes a copy of the Kenyan CP Code as Annexure ZO-1, which he obtained from 174 of the Evidence Act 1995 (Cth) (“Evidence Act”) sets out ways to adduce evidence of a foreign law:
(1) Evidence of a statute, proclamation, treaty or act of state of a foreign country may be adduced in a proceeding by producing:
(a) a book or pamphlet, containing the statute, proclamation, treaty or act of state, that purports to have been printed by the government or official printer of the country or by authority of the government or administration of the country; or
(b) a book or other publication, containing the statute, proclamation, treaty or act of state, that appears to the court to be a reliable source of information; or
(c ) a book or pamphlet that is or would be used in the courts of the country to inform the courts about, or to prove, the statute, proclamation, treaty or act of state; or
(d) a copy of the statute, proclamation, treaty or act of state that is proved to be an examined copy.
(2) A reference in this section to a statute of a foreign country includes a reference to a regulation or by-law of the country.
g)at page 4 of the Applicant’s August 2017 Affidavit, being the first page of Annexure ZO-1, there is a crest and title of “The Republic of Kenya - Laws of Kenya”. The subtitle is “Criminal Procedure Code - Chapter 75”. At the bottom of the page there is a reference “Revised Edition 2015 [2014]”, and the words “Published by the National Council for Law Reporting with the Authority of the Attorney General” and appear thereafter;
h)the manner of entitling the Kenyan CP Code set out in the preceding sub-paragraph is comparable to the Evidence Act which starts with Australia’s coat of arms (which incorporates “Australia”), an edition reference, and at the bottom an indication that the version is “Prepared by the Office of Parliamentary Counsel, Canberra”;
i)there is a sufficient basis for the Court to conclude that Annexure ZO-1 to the Applicant’s August 2017 Affidavit is a copy of the Kenyan CP Code produced “by the authority of the government” of Kenya, within the meaning of that phrase in s.174(1)(a) of the Evidence Act;
j)alternatively, that in the absence of contradictory expert evidence, Annexure ZO-1 is an edition of the Kenyan CP Code that appears to be from a reliable source: Applicants in V 722 vMinister for Immigration & Multicultural Affairs [2002] FCA 1059 (“V 722”); Re Tang [2017] VSCA 171; (2017) 52 VR 786 at [63]-[65] per Kyrou and McLeish JJA; MindShare Communications Ltd v Orleans Investments Pty Ltd [2000] FCA 521 at [37] per Katz J; Darc Rasmussen v Eltrax Systems Pty Ltd & Ors (No.4) [2006] NSWIRCom 225 at [39]-[41] per Marks J;
k)the applicant adopts the summation in WZAUR (No 1) at [52] per Judge Lucev;
l)the Tribunal erred in not having regard to ss.29, 30 and 31 of the Kenyan CP Code before determining that it did “not accept that the warrants were issued by any authority”: CB 299 [46];
m)the Tribunal ought to have considered whether the Police Arrest Orders: CB141-142, were consistent with what one might expect in light of the Kenyan CP Code, and supports the analysis by the Court in WZAUR (No 1) at [54] per Judge Lucev;
n)the applicant, endorsing the reasoning in WZAUR (No 1) at [55] and [58] per Judge Lucev submits that had the Tribunal had regard to:
i)the provisions of the Kenyan CP Code; and
ii)the proper nature and form of the Police Arrest Orders,
the Tribunal’s credibility conclusions might well have been different, and that this demonstrates jurisdictional error: ARG15 v Minister for Immigration & Border Protection [2016] FCAFC 174; (2016) 250 FCR 109; (2016) 154 ALD 221 (“ARG15”) at [83] per Griffiths, Perry and Bromwich JJ;
o)by failing to consider the Kenyan CP Code the Tribunal failed to have regard to a relevant consideration when it considered the Police Arrest Orders;
p)as:
i)the Delegate was able to find out about Kenyan law from country information: CB 12; and
ii)the applicant had adduced information that referenced an English language website giving easy access to authorised versions of Kenyan statutes: CB 99-121, the Tribunal was on notice that information about Kenyan law could likely be obtained without difficulty: Azzi v Minister for Immigration & Multicultural Affairs [2002] FCA 24; (2002) 120 FCR 48; (2002) 195 ALR 166 at [101]-[103] per Allsop J;
q)in circumstances where the Tribunal was considering making adverse credibility findings based upon principles it assumed formed the basis of Kenyan law, the Tribunal ought to have sought further information on Kenyan criminal procedure by either or both:
i)requesting additional country information through the Tribunal’s resources, including the Department, and through it, if necessary, the Department of Foreign Affairs and Trade; or
ii)requesting additional information from the applicant;
r)if information about Kenyan criminal procedure is significant enough to assume as the basis for an adverse credibility finding, it is significant enough to trigger the Tribunal’s duty to inquire, in circumstances where the Tribunal was on notice that information about Kenyan law could likely be obtained without difficulty; and
s)by undertaking its task without having regard to the Kenyan CP Code, the Tribunal failed to undertake its statutory task based upon adequate information, and accordingly the Court can infer that the Tribunal did not form the state of satisfaction required of it: Minister for Immigration & Border Protection v MZYTS & Anor [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 (“MZYTS”) at [45] and [72]-[73] per Kenny, Griffiths and Mortimer JJ.
Minister’s submissions
The Minister’s submissions in relation to ground 8 are as follows:
a)it is not in dispute that in deciding to affirm the Delegate’s Decision not to grant the applicant a Protection Visa, the Tribunal did not have regard to the Kenyan CP Code, and in particular did not have regard to the provisions of ss. 29, 30 and 31 thereof dealing with Police Arrest Orders, as referred to in WZAUR (No 1) at [54] per Judge Lucev;
b)in all the circumstances, and having regard to the Tribunal’s reasons for its adverse finding as to the applicant's credibility, the Tribunal was not legally bound to make inquiries regarding the provisions of the Kenyan CP Code and provisions dealing with Police Arrest Orders, and its failure to do so does not amount to jurisdictional error;
c)it may be accepted, as stated in WZAUR (No 1) at [58] per Judge Lucev, that credibility findings may be open to attack as constituting jurisdictional error: CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413 (“CQG15”) at [37]-[38] per McKerracher, Griffiths and Rangiah JJ and ARG15 at [83] per Griffiths, Perry and Bromwich JJ.
d)in CQG15 the Tribunal had found that the appellant was not a witness of truth, and his account of the events on which his protection claims were based was false, based upon a number of findings of incongruities and inconsistencies in respect of which the Tribunal had stated that “[t]aken separately by themselves, none of the concerns about the [appellant’s] credibility would necessarily be determinative of that issue”: CQG15 at [23] per McKerracher, Griffiths and Rangiah JJ.
e)in CQG15 at [58] per McKerracher, Griffiths and Rangiah JJ the Full Court of the Federal Court acknowledged that the appellant’s statements of principle could be fully accepted, but observed that it “is largely a question of ascertaining whether the application of principle, by reference to the findings made in this particular case, demonstrates error of the kind to which the appellant points” (emphasis added). The Full Court of the Federal Court was referring to the appellant's first two grounds of appeal alleging that this Court had failed to find that the Tribunal fell into jurisdictional error in determining without a logical and probative basis that all of the appellant's evidence was false, when such a finding was illogical and/or irrational: CQG15 at [35] per McKerracher, Griffiths and Rangiah JJ;
f)in CQG15 at [59] per McKerracher, Griffiths and Rangiah JJ that one of the difficulties in the appellant’s arguments was the conclusion reached by the High Court 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, particularly (“SZMDS”) at [131] per Crennan and Bell JJ where it was stated that if reasonable minds could differ as to the conclusions to be drawn from the evidence, logicality or rationality or unreasonableness could not arise simply because one conclusion had been preferred to another possible conclusion;
g)in CQG15 at [60] per McKerracher, Griffiths and Rangiah JJ the Full Court of the Federal Court referred to Minister for Immigration & Border Protection v SZUXN [2016] FCA 516 (“SZUXN”) in which the Federal Court referred to the relevant principles: see SZUXN at [52] per Wigney J, referring to Minister for Immigration & Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 303 ALR 672; (2013) 136 ALD 41 (“SZRKT”) at [148] per Robertson J, that for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, and it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions;
h)in CQG15 the Full Court of the Federal Court per McKerracher, Griffiths and Rangiah JJ:
i)stated at [62] that it was open to the primary judge to find that the implausibility and inconsistencies identified by the Tribunal should not be described as “minor”;
ii)stated at [64] that at the very most reasonable minds could differ about the conclusion at which the Tribunal arrived based upon matters the Tribunal identified, but that was not sufficient to establish illogicality or irrationality in the legal sense;
iii)concluded at [66] that there was ample foundation for the Tribunal to reach the conclusion that the appellant was not a witness of truth; and
iv)concluded at [67] that for all those reasons, ground 1 and ground 2 could not succeed.
i)the Tribunal’s reasoning in CQG15 may be contrasted with the Tribunal’s reasoning in this matter. Here, the Tribunal did not make a number of findings as to incongruities and inconsistencies in the applicant's evidence as to the Police Arrest Orders said to have been issued because of his involvement in the Angola-Msumbiji gang, not one of which would give rise to an adverse finding of credibility, but which when taken as a whole could result in such an adverse credibility finding. Rather, the Tribunal concluded that the applicant was not a credible witness and that his claims concerning the Angola-Msumbiji gang were not credible, on bases independent of its findings regarding the Police Arrest Orders;
j)the Tribunal concluded on two independent bases, not related to its concerns in relation to the Police Arrest Orders, that the applicant was not a credible witness, and that his claims as to being a member of the Angola-Msumbiji gang and his involvement with that gang were not credible;
k)in relation to the first independent ground the Tribunal:
i)after noting at CB 296 at [36] that the applicant feared returning to Kenya as he was an active member and leader of the Angola-Msumbiji gang and feared they would harm him, and that he also feared harm from the police because he was a member of that gang, the Tribunal at CB 296-297 at [37] considered the credibility of the applicant’s claims given his delay in seeking protection;
ii)did not accept that if the applicant had been an active member and leader of the Angola-Msumbiji gang as he claimed, and being aware of the possible retribution for leaving, he would have delayed in seeking protection, and the Tribunal noted that the applicant had not sought to apply for protection until he was held in immigration detention, and did not accept that he told people in the Department but that no one helped him: CB 296-297 at [37];
iii)also referred at CB 296-297 at [37] to the applicant’s evidence that he had spoken to his brother in June-July 2013 who had told him that the gang had destroyed their home looking for him, but noted that he is an educated young man who had approached the Department (on 28 August 2013) to cancel his bridging visa, indicating a willingness to return home, and the Tribunal further stated that in those circumstances it would have expected that if the applicant did fear that he would be seriously harmed if he returned to Kenya, he would have sought to apply for protection at this or an earlier stage; and
iv)concluded at CB 296-297 at [37] that:
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. (Emphasis added)
l)in relation to the second independent ground the Tribunal:
i)found that the applicant’s oral evidence given at the Tribunal hearing in response to the Tribunal’s questioning about “his involvement with the Anglo-Msumbiji, his activities with the group and the role he played” was “rehearsed, inconsistent, general in substance and lacking in persuasive detail”: CB 297 at [38];
ii)noted that the applicant’s responses at the Tribunal hearing did not add greatly to the written information provided in his Protection Visa application, that his responses to questions about his specific activities 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 of a person claiming to be significantly involved with their activities or a person considered to be a leader within a criminal gang: CB 297 at [38]; and
iii)concluded at CB 297 at [38] that:
After considering all his evidence individually, cumulatively and in its entirety, the Tribunal did not find the applicant [a] credible witness and does not accept that he was ever a member or involved with the Angola-Msumbiji or any other criminal gang in Kenya.
m)in all of the circumstances, it could not be said that either of the Tribunal’s independent findings that the applicant was not a credible witness and that his claims regarding his membership and involvement with the Angola-Msumbiji gang were not credible involved “extreme” illogicality or irrationality, so that even if it is the case that reasonable minds might differ as to the Tribunal’s credibility conclusions, even emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality: see CQG15 at [61] per McKerracher, Griffiths and Rangiah JJ, referring to SZMDS at [124] per Crennan and Bell JJ;
n)while in WZAUR (No 1) at [53] and [54] per Judge Lucev the Court has questioned the Tribunal’s references to the Police Arrest Orders being “warrants” issued after the applicant had left Kenya and left the gang, that they did not refer to a specific village but to a large area, and were vague in the nature of the applicant's crimes, it was not those matters which led the Tribunal to conclude that the Police Arrest Orders (described by the Tribunal as “warrants”) were not issued by any authority. Rather, the Tribunal concluded at CB 299 at [46]:
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 that he was ever a member associated with the Angola-Msumbiji or any other criminal gang in Kenya.
a conclusion clearly based upon the Tribunal’s earlier independent conclusions as to the applicant’s credibility, and finding that he was not a member of the Angola -Msumbiji gang;
o)there was no jurisdictional error by reason of the Tribunal having already concluded on two independent bases that the applicant was not a credible witness and that it did not accept that he was ever a member of or associated with the Angola-Msumbiji gang, and therefore, the Tribunal’s conclusion at CB 299 at [46] that as a result of these prior findings it did not accept that the Police Arrest Orders were issued by any authority for the applicant’s arrest was open to it, and did not involve any jurisdictional error by reason of the Tribunal not making inquiries about the Kenyan CP Code;
p)in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 59; (2003) 198 ALR 59; (2003) 73 ALD 1 (“Applicant S20/2002”) the Tribunal had also made adverse credibility findings in relation to the appellant’s claims to be of interest to the Sri Lankan authorities, and in light of those findings and the applicant's behaviour after his arrival in Australia, namely his procrastination in making an application for protection and his unsatisfactory explanations for this delay, the Tribunal found that it could not be satisfied that the appellant had been truthful about why he had left Sri Lanka or why he did not wish to return, and the Tribunal had further stated that in light of these findings “it cannot be satisfied with the corroborating evidence given by the [appellant's] witness, and gives no weight to this evidence”: Applicant S20/2002 [at [47] per] McHugh and Gummow JJ.
q)the High Court in Applicant S20/2002 at [49] per McHugh and Gummow JJ stated that it cannot be irrational for a decision-maker to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that the case comprises lies by that party, and that in the critical passage in the reasons of the Tribunal, the Tribunal was reasoning that, because the appellant could not be believed, it could not be satisfied with the alleged corroboration (by the appellant’s witness), and where critically, it was said:
The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the [Migration] Act. But it is not irrational to focus first upon the case as it was put by the appellant.
r)what was said in Applicant S20/2002 at [49] per McHugh and Gummow JJ regarding the corroborative evidence of a witness, is equally applicable to the purported corroborative evidence contained in a document or documents: see Applicant S303/2003 v Minister for Immigration & Citizenship [2008] FCA 1811 at [19] per Middleton J where it was held that the Federal Magistrate was correct to find that there was no error by the Tribunal in not placing any weight on five corroborative documents, as the Tribunal had made a finding that the appellant was not a witness of truth, and the documents had been undermined by that adverse credibility finding;
s)in WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 (“WAKK”) the appellant relied upon a letter of demand which had been sent by the local police station to his grandmother's house requiring him to report to the police station immediately and without fail: WAKK at [14] per Marshall, Mansfield and Siopis JJ. At first instance, the primary Judge considered that there was no breach of procedural fairness arising out of the absence of any notification from the Tribunal of its doubts about the letter: WAKK at [41] per Marshall, Mansfield and Siopis JJ. On appeal, the Full Court of the Federal Court concluded: WAKK at [70] per Marshall, Mansfield and Siopis JJ, that the primary Judge did not err when he decided there was no failure to accord procedure fairness in relation to the letter. The Full Court of the Federal Court stated in WAKK at [70] per Marshall, Mansfield and Siopis JJ that:
It is apparent that the Tribunal, whilst making no positive finding that the letter was not genuine, accorded the letter no weight, in reaching its final conclusion that on the evidence the appellant did not have a well-founded fear of persecution if he was returned to Burma. This conclusion reflected the findings which the Tribunal had made, independently of the letter, which were based on serious credibility problems with the claims made by the appellant for which the letter was relied upon as corroboration. The approach which the Tribunal took was consistent with the observations referred to above by McHugh and Gummow JJ in the case of S20/2002 and French J in WAGU. This approach was not irrational or unfair. (Emphasis added)
t)likewise here, the Tribunal’s conclusions that it was not satisfied that the applicant is a person in respect of whom Australia has obligations under the Refugees Convention , and therefore does not satisfy the criterion in s.36(2)(a) of the Migration Act, and that it was not satisfied that the applicant is a person in respect to whom Australia has protection obligations under s.36(2)(aa) of the Migration Act, reflected the findings which the Tribunal had made, independently of the Police Arrest Orders, that the applicant was not a credible witness and that his claims regarding his membership and involvement with the Angola-Msumbiji gang were not credible, for which claims the Police Arrest Orders were relied upon as corroboration;
u)further, as the Tribunal reached its conclusions in relation to the applicant's credibility and the credibility of his claims concerning his membership and involvement with the Angola-Msumbiji gang independently of the Police Arrest Orders, there was in those circumstances no obligation upon the Tribunal to make enquiries about any relevant Kenyan law or to have regard to provisions of the Kenyan CP Code;
v)further, and in any event, the Tribunal has no general duty to inquire into an applicant's claim, and ultimately it is an applicant’s responsibility to present and make out his case: Zentai v O'Connor (No.3) [2010] FCA 691; (2010) 187 FCR 495 at [283] per McKerracher J. The High Court also confirmed in Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15 (“SZIAI”) at [24] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ that there is a very limited basis upon which a failure to inquire could constitute a breach of procedural fairness at common law. In SZIAI at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ it was said that a finding of jurisdictional error because of failure to make an inquiry requires the applicant to establish that the inquiry was obvious, and concerned a critical fact the existence of which was easily ascertainable, and which could supply sufficient link to the outcome to constitute a failure to review;
w)given that the Tribunal here made adverse findings of credibility as to the applicant's claims to be a member of the Angola-Msumbiji gang independently of the Police Arrest Orders, the failure by the Tribunal to make inquiries concerning Kenyan criminal law and a failure to have regard to provisions of the Kenyan CP Code could not amount to jurisdictional error;
x)in SZOER v Minister for Immigration & Citizenship [2010] FCA 1100 (“SZOER”) the appellant had provided letters from the Fijian police force to the Tribunal, and the Federal Court found that it was open to the Tribunal to make an inquiry of the Fijian police force regarding the relevant police reports named in the police letters: SZOER at [39] per Cowdroy J. The Federal Court also said that while an inquiry may have resulted in information that could have supported or dispelled the Tribunal’s doubts concerning the appellant's credibility, the Court was unable to describe such an inquiry as “obvious” given the fact that the Tribunal came to its finding on the credibility of the appellant based on the “inconsistent and shifting nature” of the appellant’s own evidence: SZOER at [40] per Cowdroy J. Likewise here, an inquiry by the Tribunal as to Kenyan law and the provisions of the Kenyan CP Code was not “obvious” given the fact that the Tribunal had come to its independent findings on the credibility of the applicant and his claims as to his membership and involvement with the Angola-Msumbiji gang;
y)further, in SZOER at [42] per Cowdroy J the Federal Court found that the appellant had failed to make her own enquiries regarding the reports referred to by the Police letters, and that contrary to the appellant's submissions, it was open to the appellant to make such requests of the Fijian police department. Similarly here, it was clearly open to the applicant to make inquiries concerning Kenyan law and the provisions of the Kenyan CP Code, and to have referred to any relevant provisions thereof if he had so wished. In such circumstances, the Tribunal did not have any duty to make such inquiries; and
z)the Court should conclude that ground 8 is not made out.
Consideration – ground 8
In relation to the Kenyan CP Code the Court is satisfied that the Kenyan CP Code which is Annexure ZO-1 to the Applicant’s August 2017 Affidavit, and which he says he obtained from is evidence of the Kenyan CP Code from a publication from a reliable source of information for the purposes of s.174(1)(b) of the Evidence Act: V 722 at [33] per Ryan J.
The failure to consider material may amount to jurisdictional error having regard to the importance of the material to the exercise of the Tribunal’s function, and, therefore, the seriousness of any error: SZRKT at [111] per Robertson J. The relevant consideration with regards to the material is its cogency, and its place within the applicant’s claim: Minister for Immigration & Border Protection v SZSRS[2014] FCAFC 16; (2014) 309 ALR 67 at [50] per Katzmann, Griffiths and Wigney JJ citing SZRKT at [111]-[112] per Robertson J; AVK15 v Minister for Immigration & Border Protection[2016] FCCA 2324 at [27]-[28] per Judge Smith.
The Court repeats what it said in WZAUR (No 1) at [52]-[54] per Judge Lucev set out at [7] above, and it is worth repeating part of what the Court said in WZAUR (No 1) at [54] per Judge Lucev:
54. 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 relation to the Police Arrest Orders the Tribunal Decision set out their content: CB 298 at [44]. The Tribunal then referred to the issuance of the Police Arrest Orders after the applicant had left Kenya, and did not accept that Police Arrest Orders would be issued after the applicant’s departure from Kenya and while he was absent from Kenya: CB 298-299 at [45]-[46]. The Tribunal then went on to deal, very briefly, with the issue of the authenticity of the Police Arrest Orders, observing as follows at CB 299 at [46]:
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 the he [sic] was ever a member or associated with the Angola-Musumbiji or any other criminal gang in Kenya.
It is plain that the Tribunal did not accept the authenticity of the Police Arrest Orders, and that is what is meant when it observed that it had “raised with the applicant its doubts as to the authenticity of the arrest warrants”: CB 299 at [46], and that it did not accept that the “warrants were issued by any authority”: CB 299 at [46], that is, that they were not genuine or real: The Shorter Oxford English Dictionary on Historical Principles, Vol I (Oxford: Clarendon Press, 1973) page 134 (“Shorter Oxford Dictionary”). Thus, a document which is authentic is the opposite of a document which is a counterfeit or forged: Shorter Oxford Dictionary, Vol I, page 134.
The Court notes that:
a)in Applicant M164/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16 (“Applicant M164/2002”) at [89]-[92] per Lee J one member of the majority in the Full Court of the Federal Court said that:
... There was no material before the Tribunal on which it could make the finding that the documents presented by the appellant had been fabricated for the purpose of the claims. The statement by the Tribunal that the documents were not genuine was a bare assertion. The Tribunal did not identify in any respect how the documents could be characterised. This is not a case where the Tribunal, on proper grounds, had already determined that the substantive claims of the appellant were dishonestly made and, therefore, any documentary material that purported to corroborate those claims necessarily bore the same stamp. If an applicant’s claims are palpably fanciful, or important elements thereof are shown to be false, those circumstances will permit the Tribunal to disregard other material presented by the applicant in support of those claims.
...Serious findings of forgery, fraud or perjury cannot be based on a superficial examination of relevant events and materials, particularly where the conclusion reflects no more than a suspicion held by the Tribunal, and where that suspicion remains untested by reasonable use of powers available to the Tribunal ...
...The Tribunal’s treatment of the documentary material relied upon by the appellant to support her claims tainted the review process with fundamental unfairness...the decision of the Tribunal was not a determination made in accordance with the Act.
b)in Applicant M164/2002 at [117] per Tamberlin J one member of the majority in the Full Court of the Federal Court said:
A view that part of a claim cannot be accepted does not mean that any documents relating to that claim must be contrived or false and should be disregarded. Each of the documents should be examined and considered on its face and in context. If one or more supportive documents, when properly considered, are found to be genuine, this consideration may strongly support a finding that a claim is credible and has been made out. It may override an impression gained by the Tribunal that the claim lacks substance. A document accepted as genuine after proper consideration can be strongly corroborative of an applicant’s case. This is particularly so in cases concerning refugees, where documentary evidence may be of greater assistance than oral assertions in establishing facts which cannot, in any meaningful sense, be properly investigated by way of probative independent evidence.
c)in SZDGC v Minister for Immigration & Citizenship [2008] FCA 1638; (2008) 105 ALD 25 at [23], [24] and [27] per Finkelstein J the Federal Court said that:
23 It is only necessary to deal briefly with the second ground. The complaint is that the tribunal failed to “consider the corroborative evidence in the form of the Summons against the husband of the applicant and the Administrative Penalty Order, before making the adverse credibility finding”. I take it to be a trite proposition that a decision-maker required to find facts, whether the decision-maker be a judge or an administrative official, must consider the totality of the evidence that bears upon the facts to be found. That requires the decision-maker to consider any direct evidence of the existence of the fact in issue together with any corroborative evidence that bears on that issue. This is nothing more than common sense. There may be circumstances where it is not necessary to pay due regard to corroborative evidence. In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; 73 ALD 1; [2003] HCA 30 at [49] McHugh and Gummow JJ said “it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption”. That proposition is no doubt true. But the circumstances for its application will be rare indeed. Even experienced advocates can only point to a handful of cases where a witness’ credit has been so badly destroyed in cross-examination that it is possible to make findings of fact based on that evidence alone and simply disregard any corroborative evidence.
24 For example in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568; [2004] FCAFC 74 the appellant complained that the tribunal failed to have regard to certain documents because the tribunal was not convinced that the documents could overcome the difficulties that it had with the appellant’s evidence. Lee and Moore JJ said (at [27]): Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material: see S20/2002 at [49] per McHugh and Gummow JJ. Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied ... it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 180 ALR 1 ; 62 ALD 225; [2003] HCA 30 at [82]- [85] per McHugh, Gummow and Hayne JJ.
...
27 ... Putting to one side the fact that the tribunal misunderstood the appellant’s claim, it is false reasoning to find that the corroborative evidence was not authentic because the tribunal without regard to that evidence found the appellant to be dishonest. The tribunal should have had regard to the documents when assessing the appellant’s credibility. In that process it might have found the documents not to be authentic. But that would need to have been for independent reasons, unless the appellant’s evidence fell into the S20/2002 category. It plainly did not fall into that category.
Whilst it is generally the case that the Tribunal may reject asserted corroborative evidence where it has made a credibility finding such that the corroborative evidence would not be able to displace that credibility finding, it is not the case that the Tribunal can or should fail to have regard to or ignore a relevant law. The cases relied upon by the Minister are therefore distinguishable because they relate to cases involving truly corroborative evidence, and not the application of a relevant law or evidence of a foreign law. In that regard the Police Arrest Orders (which are both in the same form) order the arrest of the applicant in accordance with the power under s.30 of the Kenyan CP Code. It is, with respect, an obvious first inquiry for the Tribunal to ask whether such a power exists particularly, if, as here, the authenticity of the Police Arrest Orders is in issue (and put in issue by the Tribunal). Had the Tribunal done so, it would have been confronted with the fact that there is power under the Kenyan CP Code for an officer in charge of a police station to issue Police Arrest Orders (and not warrants as the Tribunal described them). The Tribunal, thereby, would have then had to start its consideration of the applicant’s case from the premise that the Police Arrest Orders may have been authentic documents within the power of the Kenyan Police to issue. The Tribunal did not adopt such a nuanced approach, and left unexplored the possibility that there was a lawful basis for, and form of, the Police Arrest Orders in the Kenyan CP Code. In the Court’s view the Tribunal thereby failed to consider the possible authenticity of the Police Arrest Orders by having regard to the relevant law and legal form.
The fact that the Tribunal used the words “any authority”: CB 299 at [46] in relation to the Police Arrest Orders, rather than words indicative of the Police Arrest Orders being issued by the Kenyan Police, is indicative of the fact that the Tribunal did not concern itself as to what authority might issue a Police Arrest Order, and, most obviously, whether or not the police (and the police only) might issue a Police Arrest Order, and if so in what form. To have considered these issues would have been consistent with the requirement that the Tribunal engage in an active and intelligible process directed at the applicant’s claim: Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 (“Lafu”) at [45]-[46] per Lindgren, Rares and Foster JJ, it being a part of the applicant’s claim before the Tribunal that he feared harm from the police, and that the police knew that he was a gang member and wanted to arrest him: CB 293 at [19]-[20]. In those circumstances where copies of the Police Arrest Orders were before the Tribunal, the Tribunal ought to have considered the relevant law and procedure to determine if the Police Arrest Orders were in a form prescribed by the Kenyan CP Code, rather than simply dismissing them as “warrants” which it did not accept were issued by any authority.
The Tribunal erroneously elevated the status of the Police Arrest Orders to warrants, and erroneously referred to their issuance by “any authority”, rather than realising, with the benefit of the Kenyan CP Code, that Police Arrest Orders can only be issued by the Kenyan Police. As has previously been observed the Police Arrest Orders are different from warrants under the Kenyan CP Code: WZAUR (No 1) at [52(b)(i)] per Judge Lucev, and it is only the police who can issue Police Arrest Orders: WZAUR (No 1) at [52(a)] per Judge Lucev.
In this case a “superficial examination of relevant events and materials”: Applicant M164/2002 at [90] per Lee J, or, as here, the relevant law and legal form, and “unwarranted assumptions”: WAGO v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 437; (2002) 194 ALR 676 at [54] per Lee and RD Nicholson JJ (cited in CQG15 at [42] per McKerracher, Griffiths and Rangiah JJ) as to the Police Arrest Orders mean that the Tribunal has failed to have regard to a relevant consideration in the form of the Kenyan CP Code. As powerful as the matters relied upon to make adverse credibility findings in relation to the applicant might otherwise appear to be, in the Court’s view the adverse credibility findings might well have been different if the Tribunal had properly considered the relevant provisions of the Kenyan CP Code concerning the Police Arrest Orders.
The Court is also of the view that the authenticity of the Police Arrest Orders was potentially critical to the fact as to whether the applicant might have been in a gang and was wanted by the Kenyan government for being in a gang. If the Tribunal had considered the relevant provisions of the Kenyan CP Code that consideration may have affected the Tribunal’s consideration of the Police Arrest Orders, the findings it made in relation to the Police Arrest Orders may have been different, and thereby, so too, the assessment of the applicant’s credibility may have been different, and may therefore have ultimately affected the Tribunal’s finding as to whether the applicant was a gang member: Re Refugee Review Tribunal & Anor; Ex parte Aala [2000] HCA 57; (2000) CLR 82; (2000) 75 ALJR 52; (2000) 176 ALR 219; (2000) 62 ALD 285 at [4] per Gleeson CJ. Whether or not the Tribunal did so is ultimately a matter for the Tribunal, but the failure to have regard to the relevant provisions of the Kenyan CP Code constitutes a failure to consider relevant probative material, and is a jurisdictional error.
A failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, may, in some circumstances, constitute a failure by the Tribunal to conduct a review, and therefore constitutes jurisdictional error: SZIAI at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. In this case the obvious inquiry by the Tribunal ought to have been whether the content and form of the Police Arrest Orders complied with relevant legislation, that being the Kenyan CP Code which was referred to on the face of the Police Arrest Orders: CB 141-142. The Kenyan CP Code was seemingly readily available online from a source noted on every page of the copy of The Prevention of Organised Crime Bill 2010 (Kenya) which was before the Tribunal: CB 99-121. It is trite to observe that the majority of country information (including laws of various countries) referred to by the Tribunal in protection visa review cases is obtained from the internet. The Kenyan CP Code provisions were therefore easily ascertained, and even if not obtained from the internet, it is equally trite to observe that information about the nature and application of foreign laws is information often obtained for the Tribunal from DFAT or an overseas DFAT post, either generally or for specific purposes, and therefore provides another means by which that information was easily ascertainable by the Tribunal. Finally, the Tribunal might have asked the applicant (who was not represented before the Tribunal) to provide the relevant provisions, but it did not apparently do so. In this respect, the Court observes that the failure to have regard to the provisions of the Kenyan CP Code has, in the Court’s view, meant that the Tribunal has not had regard to the latest information available to it, and has therefore not paid attention to a core aspect of lawful formation of a state of satisfaction, in the circumstances of this case: MZYTS at [73] per Kenny, Griffiths and Mortimer JJ.
For the above reasons the Tribunal failed to have regard to a relevant probative material, namely the Kenyan CP Code, in relation to the Police Arrest Orders when considering the applicant’s claim of being a gang member. The Tribunal also failed to make an obvious inquiry about an easily ascertainable fact, namely the provisions of the Kenyan CP Code, and also arguably about the effects of the Kenyan CP Code. It follows that jurisdictional error in the Tribunal Decision has been established, and ground 8 is made out.
Ground 9
Ground 9 is as follows:
9. The Tribunal made a jurisdictional error by concluding that it could not accept that a Police Arrest Order would be issued 12 months after the applicant departed Kenya in that this conclusion:
(a) was without foundation in the evidence;
(b) lacks a logical and probative basis; and
(c) was plainly wrong.
Particular
The fact that this conclusion is plainly wrong can be seen in Vasiljkovic v The Commonwealth of Australia [2006] HCA 40; (2006) 227 CLR 614 at [1]-[3] (per Gleeson J).
Applicant’s submissions
The applicant’s submissions in relation to ground 9 are as follows:
a)the Tribunal concluded that a Police Arrest Order would not be issued 12 months after the applicant departed Kenya: CB 299 at [46], without reference to any country information or law;
b)this finding of fact lacked any basis in the evidence;
c)further, this finding of fact lacks a logical and probative basis; and
d)in fact, the applicant endorses the Court’s reasoning at [56] of the reasons given 20 April 2017 that this finding was plainly wrong in relation to the circumstances in which a person may be accused of criminal offences in another country. The fact that this conclusion is plainly wrong can be seen in Vasiljkovic v The Commonwealth of Australia [2006] HCA 40; (2006) 227 CLR 614; (2006) 80 ALJR 1399; (2006) 228 ALR 447 at [1]-[3] per Gleeson CJ (“Vasiljkovic”).
Minister’s submissions
The Minister’s submissions on ground 9 are as follows:
a)whether or not the Tribunal’s conclusion is in error, or even if it was “plainly wrong”, is irrelevant and cannot constitute jurisdictional error;
b)as set out in the submissions above in relation to ground 8, the Tribunal had two independent bases for concluding that the applicant was not a credible witness, and that it did not accept that he was a member or leader of the Angola-Msumbiji gang;
c)as a result of these conclusions reached by the Tribunal on two independent bases, the Tribunal concluded at [46] that it did not accept that the Police Arrest Orders (which it described as warrants) were issued by any authority as it did “not accept the applicant as a credible witness and does not accept [that] he was ever a member or associated with the Angola-Msumbiji or any other criminal gang in Kenya”;
d)in those circumstances, it is irrelevant whether the Tribunal was in error in concluding that it did not accept that a Police Arrest Order would be issued 12 months after the applicant departed Kenya. Such an error could not amount to jurisdictional error as it had no bearing on the Tribunal’s independent conclusion that, because it did not accept the applicant as a credible witness and did not accept that he was ever a member or associated with the Angola-Msumbiji gang, it did not accept that the Police Arrest Orders were issued by any authority;
e)the Minister refers to and repeats its submissions in relation to ground 8 above. Given that the applicant’s reliance upon the Police Arrest Orders was based upon his claim to be a member and leader of the Angola-Msumbiji gang, the Tribunal was entitled to conclude, on the basis of its earlier independent findings that it did not accept the applicant as a credible witness and did not accept that he was ever a member or involved with the Angola-Msumbiji gang, that it did not accept that the Police Arrest Orders were issued by any authority for the applicant’s arrest. It follows that any error by the Tribunal in relation to whether a Police Arrest Order for the applicant’s arrest would be issued 12 months after his departure from Kenya could not amount to jurisdictional error; and
f)the Court should conclude that ground 9 is also not made out.
Consideration – ground 9
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, …
The Tribunal then proceeded at CB 299 at [46] to make the observations with respect to the “warrants” (correctly, Police Arrest Orders) as set out at [7] above.
In SZMDS the High Court at [131] and [135] per Crennan and Bell JJ stated that:
131. But the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
135. On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn…
There must also be evidence that the Tribunal has engaged in an active intellectual process such that the applicant must not be left to guess what role a particular issue played, if any, in facts found in the Tribunal Decision: Lafu [47]-[54] per Lindgren, Rares and Foster JJ. There is no evidentiary or logical or probative basis for a conclusion by the Tribunal that the Police Arrest Orders would not be issued after the applicant’s departure from Kenya, or because 12 months had passed since the applicant’s departure from Kenya. One need only consider, in relation to international crimes, issues such as war crimes, international terrorism, drug cartels and trafficking and human trafficking, and on a domestic level, domestic terrorism, cold-case murder and sexual assault investigations (often reviewable because of advances in technology) to demonstrate the erroneousness of the statement made by the Tribunal in this regard. Vasiljkovic is but one case in point. Whilst the Minister may be correct to say that it is not to the point that the conclusion is “plainly wrong”, it is to the point to say that the statement is illogical, irrational and unreasonable (because any Tribunal member properly informed as to the law would not have made this erroneous statement). The Minister’s submission that the conclusion made by the Tribunal is irrelevant because it had already concluded that the Police Arrest Orders had not been issued by any authority is understandable, but in circumstances where the Court has concluded that that conclusion about the Police Arrest Orders involves jurisdictional error for the reasons set out in relation to ground 8 above: see [18]-[30] above, the erroneous statement with respect to the issuance of the Police Arrest Orders after the applicant’s departure from Kenya, not only lacks any evidentiary, logical or probative basis, and is therefore a jurisdictional error, but it also compounds the jurisdictional error made in relation to ground 8.
For the above reasons ground 9 is made out, and establishes jurisdictional error in the Tribunal Decision.
Grounds 4 and 5
The applicant made submissions in relation to grounds 4 and 5 collectively, and although the Minister made separate submissions in relation to each of grounds 4 and 5, it is convenient to deal with grounds 4 and 5 together.
Ground 4 is 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.
Particulars
a) At [44], the Tribunal characterised the arrest warrant dated May 2013 as "[a charge of] being a member of the Angola-Msumbiji gang that killed people as Busia and Bugoma in the month of May";
b) At [46], the Tribunal held that it did not accept that the warrant for the applicant's arrest would be issued after he had departed the country, or that it would refer to crimes committed after he had departed, and as such that it was a fraudulent document ;
c) At [45], the Tribunal stated that the applicant had indicated to it that even though he was not in Kenya at the time, he was part of the Angola- Msumbiji group;
d) Before the Tribunal was a copy of The Prevention of Organised Crime Bill 2010 (CB 99), enacted without relevant changes by the Kenyan Parliament as the Prevention of Organised Crime Act 2010 (assented to 13 August 2010) , which in subsection 3(a) provided that an offence was committed by being a member of an organised criminal group;
e) The charge on the arrest warrant specifically related to 'being a member' of the gang that committed the acts in May 2013, not commission of criminal acts by the applicant himself.
Ground 5 is as follows:
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.
Particulars
a) At [44], the Tribunal described the arrest warrant dated December 2013 as "[a charge of] robbery and violence in Busia and Bugoma";
b) At [46], the Tribunal held that it did not accept that the warrant for the applicant's arrest would be issued after he had departed the country, or that it would refer to crimes committed after he had departed, and as such that it was a fraudulent document;
c) The Tribunal rejected as fraudulent the warrant (CB 142) because it was dated December 2013, after the applicant had left Kenya;
d) The charge on the arrest warrant did not give any date of the alleged offences committed, merely the location at which the alleged offences were perpetrated;
e) The Tribunal failed to consider whether the arrest warrant applied in its terms to the applicant as a person who had committed robbery and violence prior to departing Kenya.
Applicant’s submissions
The applicant’s submissions in relation to grounds 4 and 5 are as follows:
a)the applicant:
i)refers to the evidence of the Kenyan CP Code which is Annexure ZO-1 to the Applicant’s August 2017 Affidavit; and
ii)adopts WZAUR (No 1) at [40]-[51] per Judge Lucev as an accurate summary of the relevant provisions of the Kenyan CP Code;
b)the applicant adopts WZAUR (No 1) at [52] per Judge Lucev (quoted at [7] above) as to why the Tribunal was incorrect (at CB 299 at [46]) in finding that the Police Arrest Orders were “warrants for the applicant’s arrest”;
c)therefore, the basis upon which the Tribunal assessed the Police Arrest Orders was fundamentally flawed;
d)similarly, the Tribunal’s factual conclusion that Police Arrest Orders would not be “so vague in the nature of his crimes”: CB 299 at [46] cannot be sustained on the evidence, and the applicant supports the Court’s conclusion in WZAUR (No 1) at [53] per Judge Lucev;
e)as assessments of credibility are not necessarily linear, the Tribunal’s dismissal of the applicant’s claims to be a gang member - in the very same paragraph at CB 299 at [46] - must be tainted by this erroneous reasoning;
f)further, the applicant submits that the Tribunal’s implied criticism of the fact that the Police Arrest Orders do not refer to a specific village, but a large area, was also in error given that:
i)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 that the December 2013 Police Arrest Order refers to “robbery with violence within Busia, and Bugoma”: CB 142; and
ii)there was no other factual material referred to by the Tribunal giving it a basis to doubt that these places were not within the limits of Busia station for the purposes of s.30 of the Kenyan CP Code;
g)the applicant, endorsing the Court’s reasoning in WZAUR (No 1) at [55] per Judge Lucev, submits that had the Tribunal had regard to:
i)the proper nature and form of the Police Arrest Orders; and
ii)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; and
h)the applicant therefore, endorsing the reasoning in WZAUR (No 1) at [57] per Judge Lucev, submits that:
i)it is apparent that the Tribunal did not have proper regard to the Kenyan CP Code; and
ii)this Court should conclude that the Tribunal failed to genuinely consider an integer of the applicant’s claims, namely that the applicant feared persecution for being a member of the banned criminal organisation, Angola Msumbiji.
Minister’s submissions
The Minister’s submissions on ground 4 are as follows:
a)that ground 4 cannot succeed;
b)it is apparent that the Tribunal at CB 296-300 at [36]-[52] considered the applicant’s claim that he feared persecution by reason of being a member of the Angola-Msumbiji gang;
c)while clearly considering this particular integer of the applicant’s claim to fear persecution, the Tribunal did not accept the applicant as a credible witness, and did not accept that the applicant was a member or associated with or was a leader of the Angola-Msumbiji gang or any other gang in Kenya: CB 296-297 at [37], 297 at [38] and 299 at [46] and [48]-[50];
d)in WZAUR (No 1) in relation to grounds 4 and 5, the Court raised issues concerning the Tribunal’s credibility findings. In particular at [58] per Judge Lucev the Court said that:
Had the Tribunal had regard to the provisions of the Kenyan GP Code, and 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 basis now explicated in cases such as [citations omitted].
e)in WZAUR (No 1) at [59] per Judge Lucev it was noted that as the Court had referred to matters as being “arguable” the Court made no final determination on these issues, and that it would therefore make an order that that the parties confer with respect to the future conduct of the matter.
The Minister’s submissions on ground 5 are as follows:
a)again, this ground of application must also fail. The Tribunal clearly had regard to the applicant's claim to fear harm from the police because he was wanted by the police by reason of his involvement with the Angola-Msumbiji gang: see CB 296 at [36]. However, the Tribunal found the applicant was not a credible witness and did not accept that the applicant was a member or associated with or was a leader of the Angola-Msumbiji gang or any other gang in Kenya; and
b)clearly, the Tribunal rejected the applicant's claim to fear persecution by being wanted by the police because of its finding that it did not accept that the applicant was a member of or was associated with the Angola-Msumbiji gang.
Consideration – grounds 4 and 5
It is unnecessary to give detailed consideration to grounds 4 and 5. That is because, in part, it follows from what the Court has said in relation to grounds 8 and 9 that the Tribunal’s reasoning in relation to the Police Arrest Orders is so flawed that it has not properly considered whether the applicant was a member of the Angola-Msumbiji gang, and nor has it properly considered whether the applicant feared persecution because he was wanted by the Kenyan Police for the alleged crimes set out in the Police Arrest Orders. The Tribunal’s failure to properly consider whether the Police Arrest Orders might have been authentic, and the Tribunal’s erroneous assumption in relation to the time at which charges might be brought, overlap to a considerable degree with the particulars in support of grounds 4 and 5, and do so to such an extent that both for the reasons given by the applicant in his submissions, and for the reasons given in relation to grounds 8 and 9, grounds 4 and 5 are made out, and establish jurisdictional error in the Tribunal Decision.
Conclusions and orders
The Court has concluded that the Tribunal Decision is affected by jurisdictional error as claimed by the applicant in the Further Amended Judicial Review Application. The Court will make orders for appropriate prerogative relief by way of the issuance of writs of certiorari and mandamus.
The Court will hear the parties as to costs.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 16 August 2019
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