CGS19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The judgment of the Federal Circuit Court 19 Before the Federal Circuit Court, the appellant relied upon three grounds, namely that: the Tribunal had conflated the appellant's membership of the Kikuyu ethnic group with membership of the Mungiki gang; the Tribunal's adverse credibility findings involved jurisdictional error; and the Tribunal failed to differentiate the complementary protection criterion from the refugee criterion. 20 It is unnecessary to set out the reasons of the Federal Circuit Court for rejecting these grounds, except to mention that the appellant contends that the primary judge's reference to a "high bar" for setting aside credibility findings was erroneous. The appellant otherwise asserts that the Federal Circuit Court erred in failing to uphold the appellant's grounds.

Consideration 21 The grounds set out in the notice of appeal are prolix and somewhat confusing. However, the appellant's written submissions summarise the grounds of appeal as follows: a) The Tribunal failed to understand and examine the persecution of the applicant based on his membership of an ethnic group by conflating and failing to differentiate his membership of an ethnic group with membership of a criminal group, giving rise to jurisdictional error, at [87] of the decision record. b) The Tribunal misapplied the relevant principles when making the adverse credibility finding, from [31] and [171] of the decision record. c) The Tribunal conflated the findings under the refugee criterion with the complementary criterion, at [31] and [171] of the decision record. 22 The appellant submits that these errors involve misapplication of the relevant principles, failure to give genuine, proper or realistic consideration to the appellant's claims, or an absence of logic and an insufficient evidentiary basis for the making of the Tribunal's findings.

The first ground: That the Tribunal conflated the appellant's membership of an ethnic group with membership of a criminal group 23 The first ground refers to findings made by the Tribunal at [87] of its decision record: If there were not the other difficulties with his evidence, the Tribunal would be prepared to accept that the applicant's response to the Department seeking his visa not be cancelled was because he was claiming that he had not been charged or convicted. However, the Tribunal considers that the above concerns show that the applicant is prepared to make claims to suit whichever application is ongoing, and it considers that if his protection visa claims were genuine and he was a hunted, wanted man because of his actual/imputed involvement with the criminally outlawed Mungiki group (and that he is recorded within the CID as being affiliated with Mungiki), he would not have asserted in his cancellation proceedings that he had never had trouble with the Kenyan authorities. 24 The appellant relies upon NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, where the Full Court held at [63] that if the Tribunal: …makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued, its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error... 25 The appellant asserts that the Tribunal misunderstood his claim of persecution based on his Kikuyu ethnicity by conflating, and failing to differentiate between, his membership of that ethnic group and his membership of the Mungiki criminal group. However, the appellant has simply failed to explain the basis for that submission. Nor is any error of the type alleged discernible from the Tribunal's decision record. 26 The Tribunal at [4] of its decision record explained that the appellant's claims were made on the basis that: He is a member of the Kikuyu tribe and fears harm from non-Kikuyu people; He would be targeted by Kenyan police killing squads on the basis that he was suspected to be a member of or sympathiser with the Mungiki. He would be targeted by the Mungiki. 27 The reasons at [86]-[87] demonstrate that the Tribunal understood that the Mungiki was comprised of youths of Kikuyu ethnicity. 28 In the passage at [87] pointed to by the appellant, the Tribunal was considering the credibility of the appellant's claim that he was in hiding from the authorities for his perceived or actual involvement with the Mungiki. The Tribunal clearly understood that the Mungiki was a criminal group. The Tribunal concluded that if the appellant had been targeted by, and had been hiding from the authorities for his perceived or actual involvement with the Mungiki, he would not have asserted when responding to a notice of intention to cancel his Bridging Visa that he had never had trouble with the Kenyan authorities. 29 In the Tribunal's summary of its findings at [171], it clearly distinguished between the appellant's claims to fear harm for his Kikuyu ethnicity from his claim to fear harm from the police because of his actual or imputed involvement with the Mungiki. That distinction was maintained in the Tribunal's subsequent discussion of the appellant's claims to fear harm for his Kikuyu ethnicity at [172]-[175] and his claims to fear harm from the police as a perceived sympathiser with or member of the Mungiki at [181]. 30 There is no basis for the appellant's claim that the Tribunal conflated his ethnicity with his membership of a criminal group. 31 The appellant's first ground must be rejected.

The second ground: That the Tribunal misapplied the relevant principles when making the adverse credibility findings 32 The appellant's second ground is that the Tribunal misapplied the relevant principles when making adverse credibility findings described at [31] and [171] of its decision record. 33 The appellant observes that adverse credibility findings may involve jurisdictional error where they deny a person procedural fairness or are made on an illogical or unreasonable basis: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at [20]-[21]. That is, the error must be one going to the jurisdiction of the Tribunal: SZJEH v Minister for Immigration and Citizenship [2007] FCA 1706 at [17]; SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [27]-[31]. 34 The appellant submits that the Tribunal's finding at [31] was affected by jurisdictional error as the Tribunal misapplied the relevant principles, or failed to give genuine, proper or realistic consideration to the appellant's claims, or there was an insufficient logical or evidentiary basis for the Tribunal to make adverse credibility findings against the appellant. 35 The Tribunal found at [31]: Having considered the relevant evidence, the Tribunal has concerns about the applicant's credibility and the veracity of his claims. For the reasons set out below, the Tribunal considers that the applicant's evidence was inconsistent, changing and not credible about many aspects central, and relevant to, his background and claims. Taking these concerns into account, as well as the applicant's failure to participate in a hearing to allow his claims to be tested in evidence, the Tribunal has found that it is not satisfied that important aspects of the applicant's background and claims are true. 36 The Tribunal found at [171]: On the basis of the adverse credibility finding the Tribunal does not accept that the applicant has experienced any of the adverse interest or harm or targeting claimed in Kenya, for any of the reasons claimed (as a young, educated, male, Christian, musician, of Kikuyu ethnicity, as a result of 2007/2008 post-election events, for reason of any family connections, as imputed Mungiki involvement (sic), from Kenyan Police killing squads or any aspect of the Kenyan authorities, government, ruling Kikuyu elites, or from Mungiki or opposition supporters or non-Kikuyu tribes). 37 The appellant's submission seems to be associated with a submission that at [86] of the Tribunal's decision record, the Tribunal either misapplied, misunderstood or misconstrued the country information, or did not give proper, genuine or realistic consideration to that information, and that the application of the country information to the appellant's claims lacked any evident and intelligent justification. At [86], the Tribunal considered the country information provided by the appellant, which included the following: • A 2018 article entitled Mungiki: we'll hunt you down to the last, state official warns, which states that 90 people connected to the gang "are in police custody". The Police Commissioner warns that they [the gang] have changed their name, but are continuing to cause fear among residents and local populations including soliciting bribes, collecting protection money and making illicit liquor. • A 2018 article entitled, Special squads sent to hunt for emerging Mungiki gang in Muranga. This article states that police squads have been sent to investigate claims that Mungiki is re-emerging, as a result of reports they had been extorting money from villagers and business people. • A 2012 article entitled, The trajectories of survival of the Mungiki youth in Nairobi, by Susan Kilonzo. The Tribunal observed that that the article suggests that, prior to and about the time the applicant claims his uncle was killed and he became wanted for his association with Mungiki, the gang had organised itself to extort money from slum residents. The article referred to the violent criminal activities of the gang. It refers to a heavy handed response armed response from the Kenyan security forces, with, and notes that Mungiki members are continuously on the run from the law. 38 The Tribunal's review of the country information led the Tribunal to conclude at [87]: The Tribunal accepts that the evidence suggests that the Mungiki grew out of youth disaffection, many are non-literate youths who turned to crime and the group has been banned since 2002 as a result of their vicious criminal and murderous acts. Like with many political parties and agendas, organised groups can be used for political agendas. The Tribunal accepts that the Mungiki have been used for political ends or they have political connections and/or on occasions they have sought legitimacy; however, the evidence in the main is that they are a criminal group, who use criminal means, and membership of this group is illegal and a crime. This has been the case since 2002, well before the applicant claims to have been targeted by the authorities and in hiding from the authorities for his perceived or actual involvement with the Mungiki… 39 The thrust of appellant's submission, as I understand it, is that, having accepted the country information at [86] and having made the findings set out above at [87], it was illogical or unreasonable for the Tribunal to find that the appellant's evidence was not credible and to otherwise reject the appellant's claims. 40 I cannot see that the Tribunal was, as a matter of logic or reason, required to accept the credibility of the appellant's claims after finding at [87] that the Mungiki is a criminal group, and had been so since well before the appellant claimed to have been targeted by, and in hiding from, the authorities. That finding was certainly consistent with the appellant's claim that members of or sympathisers with the Mungiki were being targeted by Kenyan police. However, the Tribunal went on to conclude at [87] that the appellant's claim that he was in fact wanted by the Kenyan police lacked credibility, finding: However, the Tribunal considers that the above concerns show that the applicant is prepared to make claims to suit whichever application is ongoing, and it considers that if his protection visa claims were genuine and he was a hunted, wanted man because of his actual/imputed involvement with the criminally outlawed Mungiki group (and that he is recorded within the CID as being affiliated with Mungiki), he would not have asserted in his cancellation proceedings that he had never had trouble with the Kenyan authorities. 41 The Tribunal gave a multitude of additional reasons for finding that the appellant's claims were not credible. None of those reasons has been shown to involve misapplication of relevant principles, failure to give genuine, proper or realistic consideration to the appellant's claims, an insufficient logical or evidentiary basis or any other legal error. 42 The Tribunal was not willing to accept the appellant's evidence that he was actually, or was imputed to be by the Kenyan police, a Mungiki member or sympathiser, and that he was or would be targeted by the police for that reason. No error in those findings has been demonstrated. 43 The appellant also asserts that the primary judge erred in holding that: …[T]he applicant has not demonstrated that the Tribunal failed to consider relevant evidence, misunderstood evidence, had regard to irrelevant considerations, or otherwise was illogical in the way in which it assessed the evidence before it. Although not beyond scrutiny, it is a high bar for an applicant to overturn adverse findings of credibility made logically and without obvious error. 44 The appellant submits that the primary judge's reference to a "high bar" suggests that there must be some higher standard of jurisdictional error demonstrated in the case of credibility findings than for other findings. The appellant submits that jurisdictional error is either established or it is not, but there is not some higher standard or level of jurisdictional error required for credibility findings. 45 I consider that the appellant's submission reads too much into the words "high bar", and takes them out of context. The sentence states, "it is a high bar for an applicant to overturn adverse findings of credibility made logically and without obvious error." His Honour seems to have meant no more than that it is a difficult task to demonstrate jurisdictional error where credibility findings are logical and no other error is obvious. That must be correct. 46 The appellant's second ground must be rejected.

The third ground: That the Tribunal conflated the findings under the refugee criterion with the complementary protection criterion 47 The appellant's third ground asserts that the Tribunal conflated its findings under the refugee criterion with the complementary protection criterion. 48 The appellant submits that the "real risk" contemplated by s 36(2)(aa) of the Act is, a real risk that the non-citizen will suffer "significant harm", and this is different from the concept of "serious harm" required by s 5J(4)(b) in the context of s 36(2)(a). The appellant submits that the Tribunal failed to appreciate that the considerations under the refugee criterion are different in kind to the considerations under the complementary protection criterion and therefore failed to examine and deal with the appellant's claims in the context of the principles under the complementary protection criterion, as distinct from the refugee criterion. The appellant submits that it was not enough for the Tribunal to simply dismiss the appellant's claim for protection under the complementary protection criterion by applying the Tribunal's findings under the refugee criterion. 49 In DQU16 v Minister for Home Affairs (2021) 388 ALR 363; [2021] HCA 10, the High Court held at [27]: Although the statutory questions posed by s 36(2)(a) and (aa) are different, it has long been recognised that, to the extent that the factual bases for claims under s 36(2)(a) and (aa) overlap, a decision-maker, when considering the complementary protection criterion under s 36(2)(aa), is entitled to refer to and rely on any relevant findings the decision-maker made when considering the refugee criterion under s 36(2)(a). The question under s 36(2)(aa) then is whether, in light of those and any other relevant findings, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm of the kind prescribed in s 36(2A), subject to s 36(2B) and (2C). 50 The circumstances constituting "significant harm" for the purpose of s 36(2)(aa) are exhaustively identified in s 36(2A), which provides that a non-citizen will suffer significant harm if: (a) the non-citizen will be arbitrarily deprived of his or her life; or (b) the death penalty will be carried out on the non-citizen; or (c) the non-citizen will be subjected to torture; or (d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or (e) the non-citizen will be subjected to degrading treatment or punishment. 51 The Tribunal's findings concerning the complementary protection criterion were as follows: 186. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) (see Annexure A, which provides a summary of the relevant terms). 187. The Tribunal does not accept that the applicant has experienced any adverse interest as claimed nor that he has the profile claimed. It has accepted that he is Kikuya (sic) from Nairobi who will return to Nairobi, that he is well-educated and qualified and intelligent and resourceful and has work experience as an accountant. It has also accepted that he is Christian, and a musician. It has found that he has family members in Kenya and it does not consider that he faces a real risk of not having access to work or accommodation. It does not accept that he or his family members have ever been a target of the authorities or killing squads and it does not accept that he faces a real risk of adverse attention or significant harm from the authorities. It notes that the Mungiki have been engaging in brutal conduct in the country and that the authorities have engaged in repression of Mungiki for many years. It has found that the applicant has not previously experienced harm at the hands of the Mungiki nor the authorities. It is not satisfied on the evidence before it that the applicant faces significant harm from these sources in the future. The Tribunal does not accept that because the applicant is a Kikuyu who will live in Nairobi and work and is a Christian who will attend church and is a musician and that he has been living in a western country and likes western concepts that he faces a real risk of significant harm. It also does not accept that he faces a real-risk of significant harm from other tribes because he is a Kikuyu, or from opposition supporters at election times or other times, or otherwise. It does not accept that people in Kenya are aware or that there is a real chance or a real risk that they will become aware that the applicant was charged with sexual assault and that the charged (sic) were then dropped and that this would lead, for any reason, to the applicant facing a real risk of significant harm, given the prevalent attitudes as referred to in the country information. 188. The Tribunal is not satisfied that the applicant faces a real risk of experiencing significant harm for any reason, including when considering his profile on a cumulative basis. 189. On the evidence presently before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case Kenya, there is a real risk that he will suffer significant harm for the purposes of s.36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa). 52 The Tribunal's reasons demonstrate that it was aware of the distinction between "serious harm" for the purposes of ss 5J(4)(b) and 36(2)(a) and "significant harm" for the purposes of s 36(2)(aa) of the Act. When making its findings concerning the refugee criterion, the Tribunal made findings about both "serious harm" and "significant harm", evidently as a way to avoid repetition of findings when it came to considering the complementary protection criterion. For example, at [172], the Tribunal found: The Tribunal considers that the applicant…could have moved, even temporarily, to EAC countries if at any stage while he was in Kenya his profile meant that he faced a real chance of serious harm or real risk of significant harm… 53 The Tribunal adopted the same technique at [175], [176], [177], [180], [181], [182] and [184]. 54 When it came to dealing with the complementary protection criterion at [187]-[189], the Tribunal confined its discussion to a "real risk of significant harm". The Tribunal concluded at [189] that it was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Kenya, there was a real risk that he would suffer significant harm for the purposes of s 36(2)(aa) of the Act. The Tribunal clearly understood the difference between the refugee criterion under ss 5J(4)(b) and 36(2)(a), and the complementary protection criterion under s 36(2)(aa). 55 As the High Court recognised in DQU16, the factual bases for claims under s 36(2)(a) and s 36(2)(aa) overlap, and a decision-maker considering the complementary protection criterion is entitled to refer to and rely on any relevant findings the decision-maker made when considering the refugee criterion under s 36(2)(a). The Tribunal did not, contrary to the appellant's submission, simply dismiss the appellant's claim under the complementary protection criterion by applying the findings it made under the refugee criterion. 56 The third ground must also be rejected.

Conclusion 57 I have rejected each ground of appeal. The appeal must be dismissed. The appellant should pay the first respondent's costs. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.