The High Court quashed a Refugee Appeals Tribunal decision refusing a Kenyan man’s asylum appeal, finding that the Tribunal had misunderstood his account of his exposure to the Mungiki sect and had breached fair procedures. The appeal was remitted for fresh consideration by a different Tribunal member.
In a judgment delivered on 29 January 2013, Ms Justice M. Clark gave reasons for a decision already made on 13 December 2012. The parties had agreed that the judicial review leave application could be treated as the hearing of the substantive review. The court said this would help minimise further delay.
The applicant first sought asylum in May 2003, aged 17. His stated fear was that his father and older brother, both described as Mungiki members, had groomed him to join the sect. He said he had undergone circumcision as a first step towards initiation but fled before taking an oath, fearing he would be forced to join or punished for refusing. His account included a report to police in 2002, which he said brought no action. These were his claims, not findings by the High Court on whether he qualified for asylum.
The Tribunal’s 2009 decision accepted his narrative at face value but concluded he was not a member or defector, and was merely associated with a member. It also reasoned that he lacked secret information that might make the sect target him. The High Court held that the Tribunal had reduced his account to mere association, overlooking his upbringing in a Mungiki family, attendance at meetings and unwilling participation in preparations for initiation. It found that this central characterisation was unreasonable.
The court also found that the applicant had not been given an opportunity to address the proposition that he was unlikely to be targeted because he had no secrets to disclose. It said that conclusion rested on an assumption linked to the Tribunal’s mischaracterisation and was unsupported by objective evidence in the reports considered.
The High Court noted that the appeal had been decided on documents alone, without an oral hearing. It said such appeals required “extreme care,” particularly where the applicant had no opportunity to explain or expand on perceived gaps in his claim. The court considered that the Tribunal had focused on protection for people generally afraid of the Mungiki, rather than the specific risk to people associated with the sect who had defected or sought to leave. It concluded that the police could not protect that category from the Mungiki.
The judgment did not decide whether the applicant was entitled to refugee status. It quashed the Tribunal decision and returned the appeal for a new decision by a different member. The court also noted that the Tribunal could seek further inquiries or information, and expressed the view that a re-interview on matters not previously raised could be requested.