The High Court has quashed a Refugee Appeals Tribunal decision affirming the refusal of a Kenyan woman’s refugee claim and remitted her appeal for consideration by another Tribunal member.
In a judgment delivered on 16 January 2015, Mr Justice Eagar said the Tribunal’s adverse credibility findings were not adequately supported. The case was a telescoped application for judicial review seeking certiorari and a fresh determination of the appeal.
The applicant, identified in the judgment as J.K. (Kenya), said her husband was a member of the Mungiki and had subjected her to abuse and threats. She said that in 2007 he and others attempted to forcibly circumcise her, but she screamed and neighbours came to her rescue. She also alleged that two men brought to the home by her husband raped her. These were her claims before the Tribunal, not findings made by the High Court.
The Tribunal had questioned how she could resist her husband’s efforts to make her join the Mungiki over many years, how she escaped the attempted circumcision, and why she had not sought asylum while travelling through a country she believed was either Switzerland or Holland. It also found that internal relocation to Kasarani was a viable alternative, citing her period there without contact from her husband and the fact that her daughter remained there.
Justice Eagar said the Tribunal’s reasoning on the first credibility issue did not engage with the country information about Mungiki activity. On the attempted circumcision, he said the Tribunal did not address her evidence that she screamed and neighbours intervened, and gave no reason for rejecting it. He treated the transit issue as peripheral, noting the explanation that she relied on an agent who accompanied her to Ireland.
The judgment also questioned the conclusion that state protection was available, in light of country information about continuing Mungiki violence and concerns about police corruption and conduct. On internal relocation, the judge noted that the applicant had given up work in Kasarani and feared travelling alone. He said there might be evidence that Kasarani was safe, but considered the Tribunal’s credibility and state protection findings in granting relief.
The High Court did not determine whether the applicant qualified for refugee status or make a final finding on the safety of relocation to Kasarani. It quashed the Tribunal decision and remitted the matter to another member for consideration.