The High Court has refused a judicial review challenge by an anonymised Kenyan woman and her minor son to the Minister’s refusal of subsidiary protection. Mr Justice Birmingham held that the decision was one the Minister could reach on the material before him.
The applicants’ asylum claims had been rejected, and deportation orders were made in January 2006. They later sought revocation of those orders, readmission to the asylum process and subsidiary protection. Their renewed protection application was made in April 2008 and referred to violence after Kenya’s disputed December 2007 election, as well as the woman’s personal history.
She alleged that relatives connected to the Mungiki group attacked her and her husband, that she was raped, and that her husband was later killed in a further attack. She also alleged that her late husband’s family tried to force her to marry his brother, whom she said was HIV positive. The woman said she feared threats from both families if returned to Kenya. These were allegations in her protection claim, not findings made by the court.
The challenge raised three main grounds: that the Minister used the wrong test to assess post-election violence; failed to properly consider the risk of HIV infection arising from the alleged forced marriage; and misdirected himself on credibility.
Justice Birmingham accepted that decision makers must assess conditions on the ground and consider whether claimed progress is likely to last. He said the analysis of Kenya’s post-election situation was not particularly detailed and should have been updated when the submission was prepared in February 2010. However, he found material that could support an optimistic view of the power-sharing arrangement and concluded that the treatment of post-election violence did not provide a basis to overturn the decision.
The judge also described the analysis of the alleged risk of forced marriage as limited. He noted that the relevant section did not specifically refer to the woman’s account of an earlier attempt, although the issue appeared elsewhere in the submission. He considered the decision in the context of the earlier asylum process, where her account had been found not credible by the Refugee Applications Commissioner and was again implicitly rejected at appeal.
On state protection, the judge noted that the alleged threats came from non-state actors. He considered the conclusion that protection could be available from Kenyan authorities to be justified by the country information, including material about the functioning police force and action against Mungiki.
The court refused the relief sought. The judgment did not grant subsidiary protection or set aside the Minister’s refusal.