1417147 (Refugee)

[2016] AATA 3538

1417147 (Refugee) [2016] AATA 3538 (4 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1417147

COUNTRY OF REFERENCE:                  Kenya

MEMBER:Antoinette Younes

DATE:4 March 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 04 March 2016 at 11:32am

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Kenya, applied for the visa [in] January 2014 and the delegate refused to grant the visa [in] September 2014.

3. The applicant appeared before the Tribunal on 16 February 2016 to give evidence and present arguments.

   THE LAW

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

7. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CLAIMS & EVIDENCE

8. In the application for a protection visa, the applicant claimed that:

   a.He came to Australia as a student but he fears returning to Kenya because he is homosexual. He had to hide his homosexuality in Kenya which amounts to serious harm.

   b.He fears persecution in Kenya because of his homosexuality. The authorities and people in general would harm him. The authorities in Kenya do not protect homosexuals.

9. In a Statutory Declaration dated 16 January 2014, the applicant reiterated the claims made in the application and stated that:

   a.He realised he was homosexual when he was at school. Out of fear and to avoid harm, he lived his life trying to keep his sexual orientation secret from others. This has been challenging and only a few people have knowledge of his homosexuality. It is very hard to live in fear and live a false life.

   b.If his sexuality is discovered in Kenya, he will face serious harm including beatings, imprisonment or even death. He could face up to 14 years imprisonment if found to be engaged in homosexual activities. If he were to report any such incidents of harm to the police, that would only lead to more serious harm.

   c.The police would not protect him. He would be cast out of his family.  His father and extended family would never accept his sexual orientation.

   d.He has been debilitated for a long time knowing that he would not be a free man in case of his return to Kenya. For many years, he has suffered from major depression as a result of many problems because he never felt he could be free.

   e.It is increasingly dangerous to return to Kenya as a homosexual or to any other neighbouring country such as Uganda as politicians are increasingly trying to legislate to make it impossible to enjoy the freedom of being homosexual.

   f.He has had a very hard life as a result. It is impossible to be free in Kenya when one is homosexual. He wants to be free and live like anyone else. If he were to be given protection by the Australian authorities, he would be able to spend his life in Australia and have an open relationship without fear. He would be able to be himself.

10. In submissions dated 16 January 2014 provided in support of the application for a protection visa, the applicant’s [former representative], summarised the relevant law, the applicant’s claims, independent country information indicating that homosexuals in Kenya are ill-treated.  The representative submitted that country information shows that the Kenyan authorities are complicit in the ill-treatment of homosexuals and that the applicant is a refugee and/or is entitled to complementary protection.

11. [In] September 2014, the Department interviewed the applicant in relation to his protection claims. In the delegate’s decision record provided by the applicant in support of the application for review, it is noted that in the course of that interview:

    a.The applicant was asked if he has ever had homosexual relations in Australia. He stated that his first serious relationship with a man commenced around 2007. He said he had met the man through his [sibling] and that the man had been married once, although he was homosexual. The applicant was asked and he stated that he was in a relationship with this man for about three years on and off.  He said they would see each other 2 to 3 times a week and had sexual relationships. He did not live with this person. When asked about the person’s name, the applicant stated that it was [Mr A]but he was unable to provide[Mr A]’s surname.  He stated that he visited [Mr A]regularly but he only knew that [Mr A]lived in[suburb]; he did not know the name of the street.

    b.The applicant was asked if he had other homosexual relationships and he stated that he had a relationship with a [country 1] national with whom he had studied at TAFE. Their relationship lasted for about five months subsequent to which, around December 2011, the applicant had a relationship with a man called [Mr B] which he described as being casual and lasting for about a month. The relationship with [Mr B] was the last relationship he had with the man.

    c.The applicant stated that he went online seeking a relationship and he once met “an old guy” who wanted to go to a hotel immediately and appeared to be high. The applicant decided not to have a relationship with this man. Other than this encounter, the applicant noted that he had no other personal contacts with men whom he met on the Internet.

    d.The applicant stated he went to bars but never developed any relationships. The applicant was asked if he had any photographs of himself in social settings with homosexual men and he showed two photos on his mobile phone in which he was sitting alone in what appeared to be a bar.

    e.He stated that the photos were taken the week before the interview. He had no other photographs. The applicant was asked if he had any evidence of any correspondence with any of the persons with whom he had claimed to have had a relationship and he stated he did not because he only communicated over the telephone.

    f.In explaining the delay in lodging the application for a protection visa, the applicant stated that he was unaware of the existence of a protection visa until last year when he was told by some friends. He said that he had also intended to finish his course (the decision record notes that the applicant’s student visa was cancelled because he was not attending college).

    The applicant’s migration history

12. In the decision record provided by the applicant in support of the application for review, it is noted that:

    a.[In] June 2004, the applicant was granted a subclass 572 student visa and he arrived in Australia [in] July 2004. [In] October 2004, first student visa ceased and he was granted a second student visa. [Between]  February 2005 until  [October] 2006, the applicant was granted a number of bridging visas. [In] October 2006, he was granted a subclass 573 student visa and he departed Australia [In] November 2008 and returned [in]January 2009. [Between]  March 2009 until  [October] 2003, the applicant was granted further bridging visas and his third subclass 572 student visa was cancelled [in] October 2013. He remained without a valid visa from  [October ] 2013 until he lodged the application for a protection visa [in]January 2014.

    b.When the applicant’s student visa was being considered for cancellation in 2013, the applicant was invited to make submissions as to why the visa should not be cancelled. In response, he stated that he had failed to attend college owing to tensions in his life which made it difficult for him to do anything. He stated that his father is a [occupation] in Kenya, had received death threats and that the family home was attacked [multiple] times and burned down. His best friend who was a [professional] in Kenya was killed. His [relative] died in mysterious circumstances. The applicant made no mention of his homosexuality or that he feared returning to Kenya on this basis. He stated that his father was making plans to come to Australia to visit him which has made him feel relieved.

    FINDINGS & REASONS

    Country of nationality

13. On the basis of the available information and for the purpose of this review, the Tribunal finds that the applicant is a national of Kenya. 

14. The Tribunal finds that the claims should be assessed against Kenya for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). 

    The applicant’s sexual orientation

15. The central claim advanced by the applicant is that he is homosexual and fears of returning to Kenya on this basis.

16. For the reasons explained below, the Tribunal is not satisfied that the applicant is homosexual, or that he has ever engaged in homosexual activities, actual or perceived.

17. In the course of the hearing the Tribunal discussed with the applicant his sexual activities. The applicant gave evidence that he became aware of his homosexuality when he was about 16 or 17 years of age whilst he was at boarding school in Kenya. He referred to an incident at the boarding school when two males were caught engaging in sexual activities. He said when they were discovered by other pupils, they were beaten and were called “devil worshippers”. The Tribunal asked the applicant if he ever engaged in homosexual activities in Kenya and the applicant confirmed that he did not.  He stated that his first homosexual encounter was in Australia in about 2007, or late 2006. He stated that he met a [person] who worked with his [sibling] at[name deleted].  He said that the [his]  name is [Mr A] and his surname is[deleted]. He said they had a sexual relationship for about three years and that he saw [Mr A] 2 to 3 times a week at[Mr A]’s home in[location]. The Tribunal asked him if he recalled[Mr A]’s exact address and he stated that he does not recall clearly but thought it was[location]. He said [Mr A] had given him a security card for his use. The applicant stated that his [sibling] who is also a [profession] did not know that he was having a relationship with[Mr A].

18. The Tribunal referred to the delegate’s decision record provided by the applicant in support of the application for review and indicated that when the applicant was interviewed by the Department [in]September 2014, he was asked about[Mr A]’s surname but he was unable to provide it. The Tribunal noted that when he was asked about the exact address where [Mr A] lived in[suburb], it is noted that he did not know the name of the street. The Tribunal asked him how he was able to recall[Mr A]’s surname and the street number subsequent to the interview. The applicant stated that in the course of the interview with the Department, he was nervous and subsequent to the interview, he went and checked the street name. In relation to[Mr A]’s surname, the applicant stated that he was nervous and in Kenya, people are known by their first names rather than surnames. He said he does not know the surnames of his former schoolmates. He said he has gotten into the habit of referring to people by their first names rather than their surnames.

19. The Tribunal has carefully considered the applicant’s explanations in relation to his inability to recall those details in the course of the interview but the Tribunal is neither persuaded nor convinced. The Tribunal is of the view that the discrepancies suggest fabrication, raising doubts about the applicant’s claims of engaging in sexual activities with a person by the name of[Mr A].

20. The Tribunal asked the applicant about subsequent homosexual relationships. He stated that for about 4 to 5 months, he was involved with a [Country 1] national by the name of [Mr C] who returned to [country 1] and was diagnosed with[a health condition]. The applicant stated that he had the relationship with [Mr C] in about January/February 2011 and that the relationship lasted for about 4 to 5 months. He stated that subsequent to that relationship, he met a [Country 2] national by the name of [Mr B] and they had a relationship for about four weeks which ended around December 2011.

21. The applicant gave evidence that subsequent to the relationship with[Mr B] , he has not had any sexual relationships. He said he met a male online and when he met him physically at a hotel, the man appeared to be “high” so the applicant left and did not engage in sexual activities with the man. The Tribunal asked the applicant about this man’s age and the applicant stated that he was about the same age as the applicant. The Tribunal referred to the applicant’s answers in the course of the interview, as noted in the delegate’s decision record. Specifically, the Tribunal pointed out that he had stated in the course of the interview that this man was an “old guy” and asked him why he would refer to a man the same age as him as an ‘old guy’. He stated that he was nervous in the course of the interview and had guessed that person’s age. Although a minor discrepancy which in isolation would not be significant, the Tribunal is of the view that the inconsistency suggests fabrication.

22. In relation to current sexual activities, the applicant stated that he does not have a partner currently and has not engaged in physical homosexual activities since[Mr B]. He stated that he chats online on sites such as[names]. The applicant said that on some of those sites, he has created a profile but using a different name and email addresses. The Tribunal asked him if he has met anyone through those sites and he stated apart from the “old man”, he has not met anyone else. The applicant gave evidence that he used to attend ‘gay’ [bars]. He said however he has lost interest in going out. He confirmed that his only engagement in homosexual activities is online via the above sites.

23. The Tribunal indicated to the applicant that his level of engagement in homosexual activities in Australia appears to be limited and asked him to explain the reasons. The applicant stated that he does not want anyone else to know that he is homosexual. He said he fears being found out. The Tribunal referred to his evidence that he had a relationship with [Mr A]the 2 to 3 years and that he had visited [Mr A]2 to 3 times a week at his home. He stated that he felt comfortable with [Mr A] and that he used to work around the corner from where [Mr A] had lived which made it easy for him to see [Mr A]. He said his [sibling] did not know that he was involved in sexual activities with [Mr A]but [his sibling] now knows that he is homosexual. He stated that [his sibling] is the only member of his family who is aware of his homosexuality.

24. The Tribunal asked the applicant to explain why his [sibling] is not giving evidence to support his claims. He stated that his [sibling’s child] is sick and that he does not feel comfortable talking when [sibling] is around. He said that [the sibling] had attended the interview with the Department with him but was not allowed to participate. The Tribunal is not persuaded by the applicant’s explanations. The Tribunal finds it difficult to accept that if the applicant’s [sibling] is aware of his sexual orientation, that he would not be requesting [the sibling’s] assistance to appear before the Tribunal to corroborate his claims of homosexuality. The applicant gave evidence that his [sibling] is a[profession]. It is reasonable to expect that he would have sought [his sibling’s] assistance in corroborating his claims.  In the hearing invitation letter, the Tribunal indicated that the applicant could request the Tribunal to obtain evidence from witnesses.  In response to the hearing invitation, the applicant did not give any indication that he wanted the Tribunal to take evidence from any witness. Even when questioned about this issue, the applicant did not offer or seek an adjournment to enable the Tribunal to take evidence from his [sibling]. The Tribunal is of the view that this suggests to the Tribunal that the applicant is fabricating his claims and that he knows that as a[profession], his [sibling] would not want to give false evidence.

25. The Tribunal raised concerns about the fact that the applicant has not provided any corroborative independent evidence of his claims and noted that this issue had been raised by the delegate in the decision record. The applicant stated that his [former adviser] told him that some of the material would not help. The applicant stated that he might have difficulties finding any material because he used his [sibling’s] computer and had deleted things. He said he however would attempt to provide the Tribunal with material from Facebook and other sites which he had used in chatting with homosexual males. The Tribunal indicated that the Tribunal would further consider any such material and decide on matters such as authenticity, relevance, and the weight that it would place on that material. The Tribunal explained to the applicant that if upon considering all the available information, the Tribunal has concerns about the applicant’s credibility, the Tribunal may decide not to give weight to any such material. The applicant was given until 20 February 2016 to provide any documents to support his claims.  The applicant subsequently requested and was granted another week to provide documents but he did not.

26. The Tribunal referred to the applicant’s migration history as outlined in the delegate’s decision record. The applicant gave evidence that he came to Australia in 2004 on a student visa and that he has held a number of student and bridging visas.  The Tribunal indicated to the applicant that the significant delay in lodging the application for a protection visa could raise serious doubts about his claims of homosexuality and fear of harm on this basis. The applicant stated that he has a strong Christian faith and he came to Australia to study but there were a lot of things happening in Kenya. He said those things impacted on his ability to study and finish his courses. He said he sought advice and he was told that the option is to apply for a protection visa on the basis of homosexuality. The Tribunal indicated to the applicant that the decision record indicates that he had returned to Kenya on two occasions which could also raise doubts about the claims and fear of harm. The applicant stated that his parents had no idea that he was homosexual. He said on the first occasion he went to Kenya to see his family and on the second occasion, he went because of his [relative’s] death and to see his grandfather. He said his [relative] had suffered from[a medical condition].  The Tribunal has carefully considered the applicant’s explanations about the approximate 10 year delay in lodging the application for a protection visa but finds them unconvincing. The Tribunal is satisfied that the delay as well as the applicant’s two visits to Kenya when claiming he was homosexual, raise serious doubts about his claims of being homosexual and/or fearing harm on this basis.

1. The Tribunal referred to the applicant’s response to the proposed student visa cancellation, as noted in the delegate’s decision record. Specifically, the Tribunal indicated to the applicant that in that response, when it was his opportunity to advise the Australian authorities of his claim of harm based on homosexuality, he does not make any mention of this, raising serious doubts about the claims. The applicant stated he did not mention fear of harm on the basis of homosexuality because he wanted to study and finish his studies in Australia.

2. The delegate’s decision record indicates that the applicant’s student visa was cancelled [in] October 2013, during the time he has claimed to be homosexual. The Tribunal is not persuaded by the applicant’s explanations. It is difficult to accept that a person facing the cancellation of their visa would not disclose to the Australian authorities a significant matter of fearing harm of returning to their homeland. The fact that there is no mention of the homosexuality claim in the applicant’s response to the proposed visa cancellation raises serious doubts about the claims and the applicant’s fear on this basis.

3. The Tribunal has carefully considered the applicant’s evidence and explanations and whilst the Tribunal acknowledges that individually, the above matters of concern may not be significant but when they are considered cumulatively, the Tribunal is satisfied that they support a finding that the applicant is not credible and that he has fabricated the claim of homosexuality in order to support his application for a protection visa.

4. In light of the above comments, in consideration of the evidence as a whole and on the basis of the available information, the Tribunal does not accept that the applicant is homosexual, or that he has ever engaged in actual or imputed homosexual activities in Australia, or that he has ever had any male sexual partners in Australia, or that he has ever engaged in sexual activities with any male in Australia, or that he has visited gay bars in Australia because he is homosexual, or that he has ever chatted on online sites in Australia because he is homosexual, or that he had ever met a guy in a hotel subsequent to chatting online, or that the applicant has applied for a protection visa because he fears harm on this basis. As the Tribunal has not accepted that the applicant is homosexual or that he has engaged in any homosexual activities, the Tribunal is satisfied that there is not a real chance that the applicant would engage in homosexual activities in Kenya, or that there is a real chance that he would suffer any serious harm on any such basis.

5. Although the applicant has not made a direct claim in relation to his Christianity, the Tribunal accepts that the applicant is a Christian but on the evidence before and the adverse credibility finding, the Tribunal does not accept that the applicant has limited, or that he would limit his homosexual activities as a result of his faith.  There is no evidence and the applicant is not claiming to have suffered, or that he would suffer harm, on the basis of being a Christian.

6. In essence, and for the stated reasons, the Tribunal is not satisfied that there is a real chance of serious harm occurring in the reasonably foreseeable future, or that there is a real risk of significant harm occurring if he were to return to Kenya.

7. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

8. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).  On the basis of the available information and in consideration of the evidence as a whole, the Tribunal is satisfied that there is not a real risk of the applicant suffering significant harm on any basis, in case of his return to Kenya.

9. For the same reasons, the Tribunal is satisfied that there is nothing in the applicant’s profile or personal circumstances that would mean that there is a real risk of any significant harm.  The Tribunal finds that the applicant’s claims do not give rise to substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Kenya, there is a real risk that he would suffer significant harm in the form of, arbitrary deprivation of life, or the death penalty being carried out, or torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment amounting to significant harm as contemplated by section 36(2A) of the Act. Therefore he does not satisfy the requirements of s.36(2)(aa).

10. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

11. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Antoinette Younes
    Senior Member