FEDERAL COURT OF AUSTRALIA

APX19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 683

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.    Time be extended and leave be granted for the appellant to file and rely on an amended notice of appeal pursuant to r 36.05 of the Federal Court Rules 2011 (Cth).

3.    The appellant be granted leave to adduce further evidence pursuant to s 27 of the Federal Court Act 1976 (Cth) and r 36.57 of the Federal Court Rules 2011 (Cth).

4.    The appeal be dismissed.

5.    The appellant pay the costs of the first respondent, to be taxed if not otherwise agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an application for extension of time pursuant to r 36.05 of the Federal Court Rules 2011 (Cth) (the Rules) to appeal from a decision of the Federal Circuit Court delivered on 11 June 2019, in which the primary Judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal). The Tribunal had affirmed the decision of a delegate of the Minister to refuse the appellant a Protection (Class XA) Visa.

2    The appellant was required to file and serve his notice of appeal within 28 days after the date when the orders and/or judgment was made, being by 9 July 2019: see r 36.03 of the Rules. The application was filed 20 days out of time, on 29 July 2019.

3    The appellant also applied for leave to adduce further evidence in reliance on s 27 of the Federal Court Act 1976 (Cth) (Federal Court Act) and r 36.57 of the Rules, namely the transcripts of the hearings before the Tribunal and the primary Judge.

Background

4    The appellant is a citizen of Kenya, having arrived in Australia on 8 June 2014 holding a Student (TU-572) visa. On 25 October 2016, the appellant lodged an application for a protection visa pursuant to the Migration Act 1958 (Cth) (Migration Act).

5    On 8 June 2018, a delegate of the Minister refused to grant a protection visa to the appellant.

6    On 27 June 2018, the appellant applied to the Tribunal for review of the delegate’s decision. He attended a hearing before the Tribunal on 8 January 2019.

7    On 22 January 2019, the Tribunal affirmed the decision under review.

8    In the proceedings before the Tribunal, the appellant essentially relied on three claims.

9    First, the appellant claimed he had been assaulted twice (despite writing that he had only been assaulted once in his statement supporting his claim for protection). The appellant explained he was first assaulted in 2013, but did not report it. The appellant said that he did not mention this in his statement because he felt it had nothing to do with his visa.

10    The second claim concerned a family conflict involving the appellant’s uncle and aunts over the sale of land which the appellant had inherited from his grandmother. The appellant claimed to fear for his safety because he had sold the land and taken the proceeds, which his family alleged belonged to them. The appellant claimed that, on 18 August 2013, he was attacked by a group of people after selling the land, when he was beaten, had a tooth knocked out and was taken to hospital. The appellant allegedly escaped to Nairobi and was sponsored to come to Australia with his mother, taking out a loan to allow him to flee Kenya.

11    Third, at the hearing before the Tribunal, the appellant raised a new claim that he would suffer violence as a member of the Kalenjin clan from the Kikuyu people, following the post-election violence in Kenya in 2007. The Tribunal queried why this new claim was not in his statement. The appellant responded by saying the agent did not ask about this, only asking about personal issues. When the Tribunal put to the appellant that he should have disclosed this, the appellant responded that he did not know who the agent was going to tell, and that his agent had misunderstood him and could not understand what he was saying in relation to the sale price of the land. The appellant also claimed that he was afraid to disclose this aspect of his claim to his migration agent who was himself Kikuyu, and that he did not know any other migration agents.

12    The appellant further explained that his delay in applying for a protection visa was due to the fact that he was not aware of the existence of a protection visa. When his student visa ran out, the appellant learned about protection visas.

13    At [6]-[8] of its reasons, the Tribunal said there were inconsistencies in the appellant’s evidence relating to the amount for which the land had sold, as well as how the appellant had funded his travels to Australia. The Tribunal also referred to country information at [17] of its reasons.

14    The Tribunal examined the appellant’s claims and evidence at [24]-[40] of its reasons. In summary, the Tribunal found that:

    The appellant had provided inconsistent evidence in relation to the date he allegedly sold inherited land; the alleged amount of money obtained when he sold the land; and in relation to whether his mother sponsored him to come to Australia and took out a loan to help him flee: at [28].

    The inconsistencies and omissions in the appellant’s evidence were indicative of someone who was not recalling events that had actually occurred, and the Tribunal did not accept that the appellant was credible: at [30].

    Given the appellant’s lack of credibility, the Tribunal did not accept that the appellant had sold land, and as a result, was attacked in either 2013 or 2014. It did not accept that the appellant’s teeth had been damaged under the claimed circumstances or for the reasons claimed: at [31].

    The appellant’s explanation as to money sitting in his mother’s account (which belonged to him) was inconsistent with his written statement that his mother took out a loan to help him flee: at [32].

    Having listened to the departmental interview conducted in English, the Tribunal found that the appellant was articulate throughout the interview, and presented as someone who was able to answer the department’s questions spontaneously and clearly. The Tribunal did not accept that the inconsistencies or omissions in his evidence were due to the appellant being on pain reliever mediation, or because of his mental health or miscommunication: at [33].

    The appellant’s claim that he would suffer violence if he returned to Kenya because his family had asked his mother for money, or would suspect that he has a lot of money, was a recent invention and the Tribunal did not accept this claim: at [34].

    The Tribunal accepted that there were clashes between Kikuyu and Kalenjin in 2007, but it did not accept that the appellant had been targeted in the past because he is Kalenjin or that there was a real chance of serious harm by Kikuyu in the future: at [35].

    The Tribunal did not accept that the appellant’s only option was to use a Kikuyu migration agent; nor that if the appellant had fled Kenya, he would not have been able to find out about the possibility of applying for a protection visa in Australia. This finding was based on the appellant’s English language skills, intelligence and capacity to obtain migration advice: at [35].

15    At [36] of its reasons, the Tribunal said:

In sum, the Tribunal does not accept that the applicant is credible or that his family have pursued and harmed the applicant or his mother in the past or that there is any past family conflict has occurred that has affected the applicant’s standing with the community. Neither does the Tribunal accept that there is a real chance that the applicant will face serious harm from his family or the community or any other ethnic group if he returns to Kenya.

16    On this basis, the Tribunal was not satisfied that the appellant was a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Migration Act. The Tribunal found that he did not satisfy s 36(2)(a), and did not accept that the appellant had suffered any past harm. The Tribunal concluded that there was no real risk he would suffer any harm as defined in ss 36(2A) and 5(1) of the Migration Act if he returned to Kenya.

in the federal circuit court of Australia

17    The appellant filed an application in the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision.

18    Before the Federal Circuit Court the appellant relied on the following grounds of review:

1.    After arriving to Australia with a student visa in the year 2014 June i would not have disclosed my circumstance to the public that I am seeking for protection because of my safety reason. at the time my former agent was from an ethnicity of Kikuyu and I was not able to tell her about my situation because I was fearing of my privacy and security reason because she might exposed me and my life could more dangerous as I am from ethnicity of Kalenjin tribe from [redacted], from country history we had a conflict in Kenya 2007-2008 and so many of innocent Kikuyu family lost their life during that time of post-election violence, we were being order to kill and destroyed any Kikuyu family it was not the right thing to do, but because our leaders as command to do so and there were no man should stayed at home, there were no one is going back or you will face more consequences from the community elders and other leaders you could be torture and they will kill you and my uncle was at the front bench with other colleague because he was ex police and I was forced to participate and I witness several people being killed and burnt down to dead especially those who was in A church , it was dozen of people in there perished including children and this the reason I am afraid to go back to my home country or else in parts of Kenya because if they found that I was among the who participated in the year 2007 that will be the end of me. Kikuyu are all over Kenya and they are having there own group called Mungiki and Kenyan government wouldn't provide protection for me.

The time I was making my application to come to Australia I was not able to be open up to my former agent that I was running away seeking for protection maybe his relative or extended family died during that moment. As· I witnessed the killing during the conflict and later we were forced to take an oath so that we can remain silent and not to mention anybody who participated my uncle was there as well I manage to dodge the oath with other boys we didn't attend the ceremony. They later discover that we didn't take the oath I am so worried about my future if return to home town and back to my community that I will face more than a consequences and even torture or I will be killed. The reason I didn't want to mention in my first claim for protection I could not tell my former agent of what happen in 2007 between our ethnicity the for agency was OPTION EDUCATION. Tribunal made an assumption that aim only blaming the agent because they come from Kikuyu which it is not true because I didn't want to put myself at risk.

My second agent whom made my application for protection visa was from here Australia and its called Oz Migration agent and I was open to tell about my past and the reason why I wasn't willing to return to my home country and why I wasn't able to fund my academy career in here in Australia because I did consider for my safety I didn't want anything happen to me again like what go through in the past and she help me to make an application for protection visa due to imminent treat to my life but she didn't read it to me back to check what she wrote was correct. And the tribunal made an assumption and conclusion that I was blaming the Kikuyu agent which it is not true.

2.     Tribunal didn't accept that I was attack after proving to them, them with an evidence and still could believe so I wonder if its there a special evidence after being attack which need to be provide as a victim I feel bitter in my heart after my life was in danger.

3.     Family conflict; We had a family conflict with my uncle and my aunts they were not happy after I had inhered the land from my grandma, the reason I was given that piece of land because I was born outside the marriage as in our community culture I was entitled to have the land, but my extended family turn against me because l had to sell the land to stay away from them because they have been mistreating me since I was young and the land was assign to my mum name, and we decide to sell it so that I can move on with my life a month later after we have sold the land I was attacked as was going home from the center I was scared to make police report l feared retaliation by the attackers. I believe the tribunal made an assumption and conclusion that there were no conflict ongoing between me and my extended family I have been experiencing several abuse, assault and being dramatized and lost my front tooth and putting on denture at my age its really hurting this is a wound that would never ill.

4.     The tribunal didn't consider the evidence l provide them and all my claims to provide for considering granting complementary protection.

After life being dramatized going through several abuse from my extended family being lonely and struggling with life to live there are other information l can recall, I am not that perfect. Because all the events occur in different time in different occasion.

(Errors in original.)

19    At [15], the primary Judge observed that the Tribunal had referred to clashes between the two ethnic communities in Kenya, and noted that the appellant had not said in his statement that this was the reason he feared returning to Kenya. The primary Judge noted that, in light of its adverse credibility findings concerning the appellant, the Tribunal did not accept that the appellant had been targeted in the past because he is Kalenjin, or that there was a real chance of him suffering serious harm from the Kikuyu clan in the future.

20    At the hearing before the primary Judge, the appellant asserted that the Tribunal had not considered his claim in respect of the land dispute. The primary Judge observed at [21] that it was apparent that the Tribunal had expressly referred to the land dispute and that there was no substance to the appellant’s contention that the Tribunal had not considered his claim.

21    The primary Judge found at [22] that the Tribunal had provided logical and rational reasons in support of its adverse credibility findings, and that those findings were open to it and did not lack an evident and intelligible justification.

22    In response to the contention that the Tribunal had failed to take into account the appellant’s claim concerning his tooth being knocked out, the primary Judge found that the Tribunal expressly referred to this claim, and at [31] made adverse credibility findings.

23    The appellant contended that the Tribunal had not considered circumstances in which he had been on pain relief. The primary Judge referred to [33] of the Tribunal’s reasons, observing that the Tribunal had rejected the appellant’s explanation in respect of being on pain relief and his state in that regard.

24    With reference to the alleged failure of the Tribunal to consider the appellant’s claim of harm following post-election violence in Kenya in 2007, the primary Judge noted that the Tribunal had expressly referred to this issue at [35] of its reasons. The primary Judge found that the Tribunal had made adverse findings in respect of the appellant facing any real chance of serious harm in the future by reason of any ethnic clash. The primary Judge was satisfied the Tribunal had taken into account adverse credibility findings in rejecting the appellant’s claims.

25    The primary Judge also found that the Tribunal had made express reference to the appellant’s claims concerning his family. In light of its adverse credibility findings, the Tribunal did not accept that the appellant’s family had pursued and harmed the appellant or his mother in the past, or that there was any past family conflict affecting the appellant’s standing in the community.

26    Ultimately, the primary Judge found that there was no integer of the appellant’s claims that the Tribunal failed to consider. The primary Judge observed at [26]:

… The applicant’s disagreement with the adverse findings of the Tribunal invite this Court to engage in merits review. This Court does not have power to review the merits. Nor can this Court determine the matter on compassionate or discretionary grounds. Nothing said by the applicant from the bar table identified any jurisdictional error.

27    The primary Judge dismissed the application and ordered the appellant to pay the Minister’s costs.

in the federal court of Australia

28    The matter came before me on 8 April 2020.

29    The appellant was clearly out of time in filing his notice of appeal from the decision of the Federal Circuit Court, and required an extension of time to do so. He sought to rely on the following ground of appeal set out in his draft amended notice of appeal:

1.    The Second Respondent failed to consider an important and material integer of the Appellant’s protection claim.

Particulars

a.    the Appellant is a member of the Kalenji [sic] tribe.

b.    In 2007 Kenya experienced election related violence, which commenced in [redacted], Kenya.

c.    The Appellant’s uncle is a police officer in [redacted], and was part of a group that attacked members of the Kikuyu tribe.

d.    The Appellant was forced to go to war during this violence.

e.    The Appellant is afraid he will be identified as part of the group that was involved in this violence and be prosecuted.

f.    This information was given during the hearing before the Second Respondent.

30    The appellant abandoned a proposed second ground of appeal at the hearing.

31    To the extent that it was required, the appellant sought leave to advance the ground pressed in the draft notice of appeal (if the Court considered it was not otherwise raised in the Federal Circuit Court). However, the Minister accepted that the appellant had raised in the Tribunal a claim that he feared harm due to post-election violence in 2007 as a member of the Kalenjin clan. Accordingly, the Minister submitted that leave was not required to raise this ground.

32    In such circumstances, to the extent that the appellant required leave to rely on the draft amended notice of appeal, I order that he has such leave. However, it remains necessary to consider whether an extension of time should be granted.

33    The appellant also sought leave to adduce further evidence, being a transcript of the Tribunal hearing and a transcript of the Federal Circuit Court hearing. The appellant filed an affidavit in support of his application for leave to adduce further evidence, explaining that he was not legally trained, and did not know how to procure a transcript of each hearing and file or serve such material.

34    I now turn to these two issues.

Application for extension of time

35    At the hearing, it was plain that the parties were ready to argue the appeal and had no extra submissions to make in respect of the application for extension of time.

36    In support of his application for an extension of time, the appellant claimed the reason for his delay in filing the notice of appeal was the absence of written reasons immediately following the dismissal of his application. I note that judgment was delivered orally on 11 June 2019 and written reasons were provided on 18 July 2019. The appellant filed his application for extension of time on 25 July 2019 and a subsequent draft amended notice of appeal on 23 August 2019.

37    The Minister opposed the application on the following grounds:

    The appellant was present at the hearing before the Federal Circuit Court, spoke English, and was present when the primary Judge delivered his oral reasons. The appellant could have formulated his grounds of appeal based on those reasons.

    The appellant’s ground of appeal lacked sufficient merit to warrant the grant of an extension of time, and the application should be dismissed with costs.

38    In considering whether to grant the appellant an extension of time, it is well-settled that the Court must consider:

    The extent of the delay;

    The explanation for the delay;

    Any prejudice a respondent may suffer because of the delay; and

    The merits of the proposed appeal.

See Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 186 at [348]-[349]; BUD17 v Minister for Home Affairs (2018) 264 FCR 134; [2018] FCAFC 140 at [82]; and Guo v Minister for Immigration & Border Protection [2018] FCAFC 34 at [26].

39    With the relevant factors in mind, and considering the minimal prejudice to the Minister, I am content to allow the application for extension of time for leave to appeal. In particular, I note that no express reference in the Tribunal’s reasons is made to the appellant’s contention that he could suffer serious harm in Kenya because of his personal involvement in post-election violence in 2007.

Leave to adduce further evidence

40    The appellant applied for leave to adduce further evidence on appeal, relying on s 27 of the Federal Court Act and r 36.57 of the Rules. Section 27 of the Federal Court Act states:

Evidence on appeal

In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has the power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken:

(a)    on affidavit; or

(b)     by video link, audio link or other appropriate means in accordance with another provision of this Act or another law of the Commonwealth; or

(c)     by oral examination before the Court or a Judge; or

(d)     otherwise in accordance with section 46.

41    Rule 36.57 provides as follows:

36.57 Further evidence on appeal

(1)     A party may apply for the Court to receive further evidence on appeal.

(2)     The application must be filed at least 21 days before the hearing of the appeal and be accompanied by an affidavit stating the following:

(a)    briefly but specifically, the facts on which the application relies;

(b)     the grounds of appeal to which the application relates;

(c)     the evidence that the applicant wants the Court to receive;

(d)     why the evidence was not adduced in the court appealed from.

(3)     The application and the affidavit must be filed as follows:

(a)    if the appeal is to the Full Court—4 copies;

(b)     if the appeal is to a single Judge—2 copies.

(4)     Any other party to the appeal who wants to adduce evidence on the appeal must file an affidavit at least 14 days before the hearing of the appeal.

Note: Section 27 of the Act allows the Court to receive further evidence on appeal.

42    The Court has a discretion to allow further evidence on appeal. An appellant must ordinarily demonstrate that he or she could not, without reasonable diligence, have adduced the material at trial: SZQPY v Minister for Immigration and Border Protection [2013] FCA 1113 at [54]. The proposed material must be cogent and likely to have produced a different result, had it been available at the trial: Guss v Johnstone [2000] FCA 1455 at [30]. Given the need for finality of litigation, strong discretionary considerations weigh against the admission of further evidence: Guss v Johnstone at [43].

43    The application for leave to adduce further evidence must be considered with respect to this Court’s role in determining whether the judgment of the Federal Circuit Court is affected by appealable error: Sobey v Nicol and Davies (2007) 245 ALR 389; [2007] FCAFC 136 at [68]-[72] and SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11].

44    It is well established that the transcript of the Tribunal hearing is simply a record of what occurred in the decision-making process under review: Chava v Minister for Immigration & Border Protection [2014] FCA 313 at [35]. As observed in NASA v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 653 at [11], the transcript of a Tribunal hearing is not, in reality, “further evidence” as normally understood by s 27 of the Federal Court Act.

45    Counsel for the appellant submitted in summary, as follows:

    Whilst a transcript of the Tribunal hearing was not before the Federal Circuit Court, it would have demonstrated that he had raised a claim that he faced harm due to his ethnicity and by reason of his participation in post-election violence in 2007.

    The transcript simply completes the record before the Court in terms of the judicial review application, rather than being fresh or further evidence.

    The Court would be handicapped if it were not able to consider the transcript in considering the appeal, as the crux of the appellant’s claim related to whether the Tribunal had taken into account an integer of his claims.

    It was not a forensic choice or an election to withhold the transcripts from the Federal Circuit Court, rather the appellant was in detention and did not know how to procure the transcripts and present them in affidavit form.

46    The Minister submitted that the Court should not exercise its discretion to allow further evidence to be adduced, as the appellant had not provided sufficient reason as to why it was not adduced in the Court below. Further, the evidence did not establish that the result in the Federal Circuit Court would have differed. It is not enough to say that the evidence was relevant and otherwise admissible and may have affected the result: NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 at [42]; Reece v Webber (2011) 192 FCR 254; [2011] FCAFC 33 at [13].

47    Notwithstanding this, the Minister did not oppose the transcript of the hearing in the Federal Circuit Court from being adduced, and referred to the transcript of the Tribunal hearing in its submissions.

48    I note no issues were raised in respect of the accuracy of either transcripts, and no issues of prejudice were raised by the Minister.

49    In light of the submissions made and principles of transcript evidence referred to in Chan, NASA and Chava, I am prepared to admit the transcripts of both hearings as evidence in the appeal.

The appeal

50    In submissions filed by the appellant on 3 February 2020, the appellant submitted that the Tribunal failed to consider an “important and material” integer of his claim, namely that he was personally involved in the post-election violence in 2007 and would be prosecuted for this reason.

51    The appellant conceded that the claim was not in the written material before the Tribunal. However:

    At the Tribunal hearing, the appellant made reference to the fact that he was personally involved in the violence where he stated “we were forced to go to the war to fight and kill” and he may be identified as “one of that group was in there” (see transcript of the Tribunal hearing, at p 12).

    The Tribunal only dealt with the general claim as to potential harm the appellant may face from the Kikuyu clan (at [11] of the Tribunal’s reasons). The Tribunal characterised the appellant’s claim as being “targeted because he is Kalenjin” (at [35] of the Tribunal’s reasons). The Tribunal should have considered the appellant’s claims by reference to his participation and knowledge of the other perpetrators of the violence.

    The Tribunal misunderstood the appellant’s claims to be that he faced harm from the rival tribe (being the Kikuyu) simply by reason of his ethnicity (namely Kalenjin), and failed to consider that the appellant was at particular risk of harm by reason of his personal participation in the violence, his knowledge of the identity of the perpetrators of that violence or his extended family’s role in it.

    The absence of any reference to the appellant’s personal participation was a compelling reason to find that the Tribunal misapprehended the appellant’s claims as being much more general in nature. This amounted to jurisdictional error in the terms of NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263.

    There was a distinction between the Tribunal failing to consider a claim and with the Tribunal deciding not to accept a claim due to lack of evidence. In this context, the Tribunal simply did not deal with the appellant’s claim.

    As to credibility issues, Counsel for the appellant submitted that credibility findings could only be relevant to the issue in these proceedings if the Tribunal had taken into account the claim that was made. Unless the Tribunal had understood the claim being made, general findings of credibility were not relevant.

52    In response, the Minister submitted as follows:

    The appellant raised a claim referable to his alleged participation in post-election violence for the first time at the Tribunal hearing, and only made one reference to suggest he was personally involved in the violence. In light of how his claim was raised, it was open to the Tribunal to refer to the claim as fearing harm “because he was from the Kalenji clan and in 2007 there had been post-election violence and his clan had been persecuted” (at [11] of the Tribunal’s reasons).

    The appellant did not make clear his alleged fear of harm due to his personal involvement in violence and killings. His evidence in the transcript at p 12, l 47 to p 13 l 5 was far from clear and could not be said to constitute a “substantial, clearly articulated argument relying on established facts”: see NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [55].

    The appellant spoke English, and was speaking English at the hearing.

    In raising the issue of his ethnicity, the appellant merely told the Tribunal that he was a Kalenjin and being identified as a Kalenjin might create problems for him.

    In stating “we were forced to go to a war and to fight and kill” the appellant did not specify whether it was him individually, or his tribe.

    Whilst the claim was clearly articulated before this Court, it was not clearly articulated before the Tribunal.

    The Tribunal accepted that there were clashes between Kikuyu and Kalenjin in 2007, but did not accept that the appellant had been targeted in the past or that there was a real chance that the appellant would be harmed in the future because he is a Kalenjin.

    The primary Judge correctly found that there was no integer of the appellant’s claims that the Tribunal had failed to consider.

Consideration

53    The key issue before the Court is whether the Tribunal failed to consider an integer of the appellant’s claims, namely that:

    the appellant was forced to participate in election-related violence by his family and tribe in Kenya against a rival tribe; and

    if he returned to Kenya he would be identified as a part of the group involved in the violence, and prosecuted.

54    It is uncontroversial that the appellant first raised his involvement in post-election violence at the Tribunal hearing. At pp 9-10 of the Tribunal transcript the following exchange took place:

Tribunal: All right. Look, I’ll think about it. I’ll think about your story, but is there any other reason why you can’t return to Kenya besides the fact that you’re frightened of your family?

Appellant: Yes. Yes, the reason is maybe because of my clan - I’m from Kalenji, and in 2007 we had these - it was the election (indistinct) and the reason is I come from the Kalenji where the violence started from [redacted], so my uncle was part of the group who was organising to go and attack other people over there. So I’m afraid, like, I’m going (indistinct) in Kenya, and they identify me as a Kalenji maybe, other side of Kenya.

…

Tribunal: All right. Sorry, you’re frightened that because you’re a member of this ethnic group that you might be targeted?

Appellant: Yes.

Tribunal: By who?

Appellant: By other group, like Kikuyu.

Tribunal: Like Kikuyu?

Appellant: Yes.

Tribunal: And why?

Appellant: Because if I can go safely - arrive safely to Kenya I can’t go back to [redacted] because there is family there and my uncle is ex-police. He was (indistinct) me as well; they will need the money, and if I stay in, maybe, Nairobi or somewhere in Kenya there is other Kikuyus there and maybe they identify me as a Kalenji.

…

Tribunal: All right. I don’t think this was in your statement. You didn’t say that you were frightened of returning to Kenya because of your ethnicity. Why not?

Appellant: Yes. The agent was - he, like, get the statement (indistinct) as me about (indistinct). Just he asked me about the personal - about my personal issue. He didn’t ask me about this.

Tribunal: But surely if it was a problem for you then it’s something that you would have said?

Appellant: Yes. So, yes, I was sharing the (indistinct) disclose to anyone else.

Tribunal: Well, why would you fear disclosing to someone in Australia?

Appellant: Because I don’t know who is going to tell about their other friend or somebody when I tell, like, who - that I’m already here and maybe, like, go back there. There is a trouble. Maybe I’d be in trouble.

Tribunal: Okay. I’ll consider that, but I may have difficulty accepting it, okay? If you were frightened of returning to Kenya because of your ethnicity then it may be something that you would have said when you were actually putting in your protection visa application?

Appellant: Yes, as I say, the agent who took my application, I was - when I writing the statement he was misunderstanding me even, like, when I was stating the figure about a piece of land he just put another figure of numbers. He couldn’t understand what I was telling him, like, I was explaining to her and I was trying, and he didn’t repeat it back to me what I - explained to me what I was telling her.

…

(Emphasis added.)

55    The appellant elaborated on his claim at pp 12 – 13 of the transcript, which provided as follows:

Tribunal: So all of these things may lead me to conclude that you’re not - you don’t really fear your family, but - and you’ve made your claims up, and the other thing is that you’ve told me today that you’re frightened of returning to Kenya because of your ethnicity, but you had not - you have not put that in your statement, and I may also find that if you did fear returning because of your ethnicity that would be something you would have identify in your statement. Do you want to comment?

Appellant: Yes.

Tribunal: Okay. What would you like to say?

Appellant: I would like to say about ethnicity, because I was afraid about 2007, was the election violence, because we were there - I was there with my - (indistinct) members and most of the people who died at that time. We had to go - we were forced to go to the war to fight and kill, so I was afraid because (indistinct) the people are persecuted from Kalenji, and I was scared to open up - maybe it’s going to open up other killers - our people is killed or something, or maybe I would be - they’d identify, like, I would be the one of that group was in there, and been identified. Maybe I would be in danger.

(Emphasis added.)

56    At [11] of the decision of the Tribunal, it characterised the appellant’s claim as follows:

The applicant also stated that he would suffer violence because he was from the Kalenij clan and in 2007 there had been post-election violence and his clan had been persecuted and as a result he was afraid to go anywhere in Kenya because of others such as Kikuyu. The Tribunal put to him that he had been to Nairobi before and he said he was staying at a friend’s house at that time and did not go around. When the Tribunal put to him that this was not in his statement he said the agent didn’t ask about these things and only asked about personal issues. When the Tribunal put to him that if he was afraid to return on this basis it would be something he should have disclosed, he stated he did not know who they were going to tell. He also stated the agent had misunderstood him and could not understand what he was saying in relation to the sale price of the land.

(Emphasis added.)

57    The Tribunal also dealt with this claim in substance at [35]:

While the Tribunal accepts that there were clashes between Kikuyu and the Kalenjin in 2007, the applicant has not stated in his statement that this is a reason why he feared returning to Kenya and given his lack of credibility, the Tribunal does not accept that the applicant has been targeted in the past because he is Kalenijn [sic] or that there is a real chance of serious harm by Kikuyu in the future. Neither does the Tribunal accept that the applicant’s only option was to use a Kikuyu migration agent especially if he could not tell him about his real situation. Neither does the Tribunal accept that if the applicant fled Kenya that he would not have been able to find out about the protection visa. In reaching this conclusion the Tribunal considers that the applicant’s English language skills, intelligence and capacity to obtain migration advice and assistance would have meant that he would have been able to find another agent and information out about the protection visa if his claims were true.

(Emphasis added.)

58    In my view, the appellant has not substantiated his claim that the Tribunal failed to consider an integer of his claims before it.

59    First, such material as is before the Court indicates that, to the extent that the appellant articulated his claim concerning feared persecution for post-election violence, this claim was:

    only raised orally at the Tribunal hearing after the Tribunal had asked the appellant whether there was any reason other than his fear of his family why he could not return to Kenya; and

    not particularised before the Tribunal.

60    A claim for protection under the Migration Act must be ‘a substantial, clearly articulated argument relying on established facts’: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 at [24]; and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [55] and [68]. This is also clear from s 5AAA(2) of the Migration Act which relevantly provides:

Non-citizen's responsibility in relation to protection claims

(1)    …

(2)     For the purposes of this Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.

(3)     …

(4)     …

61    In the absence of particularisation by the appellant of this aspect of his claim, including relevant (or, indeed, any) details of that claim, I am unable to see how the Tribunal could have made more detailed findings. Certainly it was not for the Tribunal to make the case for the appellant: Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at 576.

62    Second, it is settled that the Court should not examine the Tribunal’s reasons with an eye attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

63    In this case it is clear that the Tribunal was aware of the history of post-election violence in Kenya in 2007. The Tribunal referred at [17] to country information concerning the history of ethnic tensions in Kenya, including in the context of post-election violence, and in particular, in relation to violence following elections in or around 2007.

64    While the Tribunal did not refer specifically to the appellant’s alleged personal involvement in post-election violence, at [11] it referred to the involvement of his clan in that violence, and his claimed personal fear of persecution should he return to Kenya.

65    I am satisfied that the Tribunal understood the appellant’s claim that he would be targeted by Kikuyu clan members on his return to Kenya because of his involvement in post-election violence in 2007 in Kenya, but rejected it. In particular, at [35] the Tribunal found that, given the appellant’s lack of credibility, the Tribunal did not accept that he had been targeted in the past for any reason because of his ethnicity or that there was a real chance of serious harm by Kikuyu to him in the future for any reason. Such findings were open to the Tribunal on the material before it.

66    Third, as the Tribunal made clear repeatedly in its reasons, it considered that the appellant lacked credibility. The Tribunal’s conclusion at [35] that the appellant’s claims of persecution lacked credibility followed detailed examination of his claims as a whole, and specific findings by the Tribunal, including by reference to:

    Provision of inconsistent evidence by the appellant (at [28]-[30] and [32]);

    Falsification of documentation (at [30]);

    Exaggeration of evidence supporting his claims (at [30]);

    Exaggeration of medical issues referable to his performance at the departmental interview (at [33]); and

    Invention of a claim (at [34]).

67    The Tribunal also rejected the appellant’s claim that he could not explain to his migration agent the precise nature of his fears concerning persecution for post-election violence because of the migration agent’s ethnicity (at [35]).

68    The Tribunal’s findings of credibility concerning the appellant were demonstrably open to it.

69    Finally, while this particular point was not specifically raised in the Tribunal, I note that the appellant has particularised his claim by reference to fear of prosecution for involvement in post-election violence. It may be that this was a typographical error, and the appellant actually meant “persecution”. However the appellant has legal representation and I assume that he intends to claim a fear of prosecution as the notice of appeal states. If his claim is actually that he fears being prosecuted by law enforcement authorities in Kenya for that involvement, this in itself is not a sound basis for protection under the Migration Act. As explained by Brennan CJ in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at 233:

Secondly, the feared persecution must be discriminatory. The victims are persons selected by reference to a criterion consisting of, or criteria including, one of the prescribed categories of discrimination ("race, religion, nationality, membership of a particular social group or political opinion") mentioned in Art 1(A)(2). The persecution must be "for reasons of" one of those categories. This qualification excludes indiscriminate persecution which is the product either of inhuman cruelty or of unreasoned antipathy by the persecutor towards the victim or victims of persecution. Persecution of that kind is a general, non-discriminatory denial of fundamental rights and freedoms. The qualification also excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of "refugee". But the categories of discrimination mentioned in the definition are very broadly stated, especially the category of "membership of a particular social group".

(Emphasis added.)

70    Similarly, McHugh J at 258 said:

The enforcement of a generally applicable criminal law does not ordinarily constitute persecution. Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group.

71    In the absence of further particularisation, it is unclear whether the appellant claims discrimination in respect of criminal prosecution (which would in turn invite impermissible merits review). Otherwise, particular (e) of the ground of appeal seems referable to no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application in Kenya.

Conclusion

72    In my view the ground of appeal is not substantiated. The appropriate order is to dismiss the appeal. The appellant is to pay the Minister’s costs, to be taxed if not otherwise agreed.

Associate:

Dated:    20 May 2020