The High Court has granted Victor Muia leave to seek judicial review of a Refugee Appeals Tribunal decision that affirmed a recommendation refusing him refugee status. The court found arguable grounds about the tribunal’s assessment of state protection in Kenya and whether the Mungiki group could be treated as purely criminal.
Mr Justice Clarke delivered the judgment on 11 November 2005. The application was at the leave stage: the court considered whether the proposed challenge had substantial grounds, not whether the refugee claim should succeed. It granted leave to seek certiorari and related declaratory relief, and proposed extending time because the application was slightly late. No point had been taken on the delay.
Muia, a Kenyan national, said he feared the Mungiki. The tribunal’s account of his claim said he had lived with his father and brother in Dandora, Nairobi, before fleeing to a pastor’s home in Kibera. His mother and two sisters had earlier left the family home because they feared female genital mutilation. The account said his father and brother were committed Mungiki members, and that Muia left before taking an oath and stayed with a Protestant pastor for six months. Those details were recorded as his account; the High Court did not make new findings establishing them.
The Refugee Applications Commissioner had recommended refusal and found the application had no or minimal basis, which meant there was no oral appeal hearing. The tribunal affirmed the recommendation after considering written submissions. Its decision said the Mungiki could be classified as a criminal group, that there was no evidence of persecution for a Convention reason, and that state protection would be available.
Justice Clarke said it was arguable that the tribunal had not addressed country information submitted for Muia that described murder, revenge and terror against people who left the Mungiki. He also found it arguable that the decision did not engage with evidence that the group might have a quasi-religious or political character, or with the argument that refusing to join despite family expectations could be analogous to conscientious objection.
The judge did not rule that the tribunal’s conclusions were irrational or decide that the Mungiki had a religious or political status. He said evidence could support a reasonable decision maker’s views, but the challenge could proceed on the basis that relevant considerations may not have been taken into account. He also said that, for the review, aspects of Muia’s account not clearly rejected on credibility grounds could arguably be treated as credible. The constitutional issues raised in the case did not need to be pursued.