1504524 (Refugee)

[2017] AATA 2212

1504524 (Refugee) [2017] AATA 2212 (25 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1504524

COUNTRY OF REFERENCE:                  Kenya

MEMBER:Jane Marquard

DATE:25 July 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 25 July 2017 at 8:43am

CATCHWORDS

Refugee – Protection Visa – Kenya – East African Community – Particular social group – Lesbian – Social taboo – Rape – Violence – Lack of state protection – Credible witness – Third country protection – Refoulement

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 36, 65, 91R, 91S, 499

Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Applicant S v MIMA (2004) 217 CLR 387
Applicant A v MIEA (1997) 190 CLR 225
Appellant S396/2002 v MIMA (2003) 216 CLR 473
MIMAC vSZRHU [2013] FCAFC 91

SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43

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. The applicant is a woman from Kenya, who was born in [year].

2. She first arrived in Australia [in] November 2002 on [a temporary visa]. She remained in Australia on a number of [temporary visas] until 2008, when she was granted a [different type of temporary visa].

3. She left Australia [in] 2010 and returned on the [temporary visa] [in] 2011, which expired [in] January 2012. She then applied for a [permanent visa] which was refused [in] December 2013.

4. She applied for a Protection visa under s.65 of the Migration Act 1958 (the Act) [in] December 2013.

5. The delegate refused to grant the visa [in] March 2015.

6. This is an application for review of that decision by the Administrative Appeals Tribunal (the Tribunal).

   CLAIMS AND EVIDENCE

   Evidence before the Department

7. The applicant provided the following information in support of her claims:

   ·She was born in [a town in] Nairobi and is a Christian;

   ·Her mother and [sibling] are still living in Kenya. Her father passed away in 2011;

   ·She comes from the Kikuyu tribe of the Central Province of Kenya, and was raised in [Town 1];

   ·She acknowledged her sexual orientation as a lesbian in high school, but did not act on this discovery as she was in a Catholic school. One person she knew there who acted on her sexual orientation was shamed. She was still trying to understand her sexuality. There was no internet access then. She tried dating men after high school but it was not something she liked or desired;

   ·Her first romantic experience was in 2000, when she became attracted to a friend in college. She had a 3 month relationship with this woman;

   ·After this she had no other partners in Kenya;

   ·She had a relationship in Australia at college in 2004. She lived with this woman for a month. The relationship ended because her partner was bisexual. This was her only relationship in Australia;

   ·She had a de facto relationship in Nairobi which began in [2010]. Her partner’s name was [Ms A];

   ·She started a relationship with her partner in 2010 when she travelled back to Kenya, but they were friends prior to that;

   ·Two days after they met, they started a secret relationship. No-one in the village would have thought about a same-sex relationship taking place;

   ·After two weeks they were in love, and her partner postponed her return to her village as she had completed her studies. They spent time at her home, and her [relative]’s home as her [relatives] were travelling;

   ·They both knew that same-sex relationships were taboo in their village however they appreciated each other and spent almost every day together for the month of her visit;

   ·A man from her village who had travelled [overseas] to find a woman to marry had expressed interest in her partner [Ms A]. This man and his friends started following them. The applicant asked them to leave her and her partner alone. This created problems for them;

   ·[In] 2011, a group of [angry] villagers stormed the home of her partner’s [relative] in which they were living temporarily. The villagers carried [weapons]. The mob was made up of friends of the man who wanted to marry her friend, and neighbours. The door had been left open. They were caught in a compromising situation. They were [physically assaulted] by the angry mob. Her mother lived five minutes away, and heard of the disturbance, so she called the police. There were [further altercations] when the police arrived;

   ·The police took them to [a police station] where they were locked in cells. She was kept separately from her partner in a dark room for [a number of] days. They said they were raping her to “cure” her. At night [a number of] police officers raped her repeatedly while [she was restrained]. She was also mocked and beaten by other female detainees;

   ·She was charged with [a number of offences]. She was fined and released on police bond [a few days later] for the sum of [amount] Kenyan shillings. She did not get legal advice as she did not want to take the risk;

   ·Her mother was shocked and disappointed to hear of her sexual orientation. The applicant’s [sibling] was also shocked and did not know what to say;

   ·That was the last time she saw her partner. She could not return to the village as she feared the mob. There were rumours she had returned from Australia to spread sexual corruption and immoral ways. She moved to a friend’s house in [Town 2] where she could hide. She did not seek medical attention as she had no money. However after she arrived in Australia, she had a blood test and check-up and was tested for HIV;

   ·Her mother was ex-communicated from the church;

   ·[In] 2011 she returned to [City 1, Australia] with a fear of being arrested again;

   ·She left from Nairobi International Airport with no trouble and she does not know how she was able to leave with a charge pending;

   ·Even after she left her mother continued to be humiliated in public places because the people believed her involvement in same-sex relationships put a curse and misfortune on the youth in her village. The Mungiki, who are the most authoritative force in her village, attacked her home [a number of times], and forced her mother to relocate to another village;

   ·[In] October 2013 and [November] 2013 she received letters from friends saying that her life was in danger. Some people from her village, especially her closer friends, have already been killed by the Mungiki. Their families want revenge from her;

   ·She decided not to return to Kenya to bury her father, who died [in] 2012, as she feared for her life;

   ·Same-sex practice in Kenya is punishable by law and is a taboo, especially in the Kikuyu tribe;

   ·She has family members who also wish to harm her;

   ·She is still cautious in [City 1] because her own community does not accept same sex practice. She said that “only close friends know about it”. She said that she keeps to herself and was not in a relationship at the time of the Department interview [in] July 2014;

   ·She delayed applying for a protection visa for two years because she thought that her [other permanent visa application] would be successful.

8. The applicant provided the following documents:

   ·A handwritten letter dated [in] October 2013 from [Ms B], in which she said that the applicant’s best friends, [named], were picked up from the village by the Mungiki, [some time] prior, and their bodies were found dumped in a [location] after being tortured. She said that she was in hiding and being terrorised by the community, but especially Mungiki. She said other friends, [named] were arrested [some time] after the applicant left. The mobs beat them and they were handed to police. She said that the applicant’s mother had been ex-communicated. She said that the applicant should not return as she was “in the top list of those to be persecuted by the Mungiki for misleading all the girls who have started the life of same sex preference”;

   ·A number of photographs of the applicant and her partner;

   ·An original stamped Notice to Attend Court issued by the [Kenyan Police] dated [in] 2011. The notice stated that the applicant was required to attend criminal court in [location] [in] 2011 to answer a charge of “[specified offence]”. It was stated that she was released on police bond of KSH [amount];

   ·A letter from [name] dated [in] November 2013 stating that she and her partner were in great danger and had been hiding in different places. She said that since the applicant left, they have lost a number of boys and girls who dared reveal that they were of same sex orientation. [Name] and [name] had been arrested and their whereabouts were not known. [Name] had left the [country]. The police arrested another couple. She said that she wished they had left when the applicant asked them to do so. The blame had been placed on the applicant for bringing a foreign way of life to the village. She said the police were looking for the applicant;

   ·A copy of her passport issued [in 2011] in Nairobi;

   ·A certificate of death for her father (date of death [a date in] 2011); and

   ·Copies of news articles about treatment of same sex couples in Kenya.

   Decision by the Department to refuse the visa on 3 March 2015

9. The Department was not satisfied that the applicant was owed protection obligations.

10. The Department accepted that a person in a same sex relationship in Kenya could face serious harm. However the delegate did not find the claims of this applicant to be credible.

    Evidence before the Tribunal

11. The applicant appeared before the Tribunal on 26 April 2017 to give evidence and present arguments. The Tribunal assured the applicant that it understood that discussion of matters concerning sexual orientation could be difficult, and it would do all it could to ensure that she felt comfortable and supported.

12. The applicant provided the following information to the Tribunal at hearing, and in written submissions:  

    ·She grew up in [Town 1], a village [in the region of] Nairobi, about [distance] drive from the centre. She said it was the kind of village where everyone knew everyone else. Her father worked as [occupation], but he lost his job and then went into farming. Her mother worked as [occupation]. She has one elder [sibling]. They rented a house. They had cousins in the area as well;

    ·Her mother does not work now but does some farming. She is still living in [Town 1], but in a different house. Her [sibling] works in [industry], and is married with [number] children. [Her sibling] lives in [Kasarani]. She talks to her mother and [sibling] often, but is not really in contact with the extended family;

    ·Her family attended church regularly, at [church name], [Town 1]. Her parents were religious. The applicant still attends church now;

    ·She is a Kikuyu, part of the largest ethnic group in Kenya, comprising one fifth of the population;

    ·She attended a public school which was run by the sisters. After high school, she went on to [college] for two years. Then she did an internship with [Organisation 1] for 16 months. After that she looked for a job, but could not find one. She also tried to start a business but it did not take off. She then applied to come to Australia as a student;

    ·She had a lot of friends in [Town 1], from school and college. She keeps in touch with some of them;

    ·In Australia she studied [degree major] and has worked as [a number of different occupations];

    ·She has many friends in Australia from the Kenyan and Australian community;

    ·She first realised that she was interested in women in high school. She was surrounded by girls as it was a single sex school. First she thought that it was just “being close” to people. Then she started thinking that she was attracted to one particular girl, rather than just “being friends”. She felt confused and scared. She had no-one to talk to about this. There was no access to the internet. She did not really know what a gay or lesbian was. There had been an incident where a classmate had been suspected of being a lesbian and had been shamed and humiliated and expelled from school;

    ·She had never talked to her family about gay and lesbian people and did not know what they thought. This was “not even a conversation that would take place”;

    ·She talked to her friends about gay and lesbians when their classmate was expelled,  but rather than it being a real conversation it was gossip. The girls were glad she was expelled. Most people did not really know what it was about;

    ·She did not tell anyone about her feelings for girls. She did not participate when girls talked about boys, she did not really talk about it as her family was religious. There was not much dating going on between boys and girls in her high school;

    ·After she went to college her feelings towards women continued. She was still confused and uncertain. By then a few boys had shown interest, and she remembered trying to get to know them. However there was not really any attraction;

    ·In college she met a girl to whom she was attracted. They tried spending some time together, as their parents travelled a lot. However this girl left the country after college. They were in the same class and it was just in a joking manner that they started talking about same sex preferences. She had a few friends who had left the country who were lesbians. For the first time she spoke to someone without fear. She was also not religious. She felt that when she was with this woman, this was where she wanted to be. At the back of her mind she was worried. She thought of the teachings in the Bible, and wondered what that would mean for her as a Christian;

    ·She remembered that someone who had gone to school with her [sibling] came back from [overseas], and she heard speculation about this girl, which was very negative. There were comments made about “people who left”. She asked her [sibling, who] was dismissive of her;

    ·She did not have an intimate relationship with the girl at college in Kenya, but they were close. She said that she was with this girl for less than a year.  They just pretended they were friends;

    ·She was not quite sure if there were other girls who were interested in women while she was at college, because it was not really talked about.  She thought that there was a gay man there, because of his tendencies and appearance. But he had to move away;

    ·She did not date any boys while at college or while she worked at [Organisation 1];

    ·She did not tell any other friends or family, and did not know any other same sex couples while at college or [Organisation 1]. There was no gay or lesbian community that she knew about;

    ·She had no other relationships in Kenya before coming to Australia. She moved in with a family friend in [City 1]. She heard from the community that gay and lesbian relationships were accepted in Australia. The Mardi Gras took place soon after she arrived, and she was shocked to see how the gay and lesbian community was open and supported. She said that she was excited and happy that people could be who they are without having fear;

    ·She met a woman through friends, and they shared accommodation for one month. This was the first time that she was intimate. This woman was from [country], and had been living in [another country]. They went out and spent time together. This relationship lasted a few months, and it ended because she had a male partner who arrived. But they remained friends;

    ·She felt good that she could have this relationship openly in Australia. However she felt worried about her own community as it was frowned upon. She was not open with the Kenyan community because she had seen their reaction;

    ·She did not have other relationships. After that she was worried about telling her family so did not get involved. There was always a back and forth of emotions. She has tried going out with men, but this has never eventuated into anything;

    ·She has met other people from the lesbian/gay community in [City 1]. She has attended events and gone out. She has attended “meet and greets” in [location], and has also visited lesbian and gay clubs, including [details of clubs]. There have been no relationship opportunities though;

    ·She returned to Kenya in [2010] to visit her family. Her mother was living in [Town 1] still, and her father has another wife, so only visited sometimes. She stayed at her parents’ house. She spent time with her family, and a little time with extended family. She helped her mother and [sibling] with [his/her] business and children. They went to [Town 3] for a few days holiday;

    ·She met up with a girl called [Ms A] when she returned to [Town 1]. She had known her from school. [Ms A] was visiting her [relative] in the area. They started spending time together, and “one thing led to another”. They had a conversation in which [Ms A] asked her if she had “met anyone”. She also asked [Ms A], who hinted to her that she wanted to have a relationship. She did not know if [Ms A] was a lesbian. [Ms A] expressed to her that she really liked her, and she told her that she felt the same. [Ms A] mentioned that there was a man who wanted to marry her. However they started having a relationship about the [second week she was visiting]. She went to [Town 3] the first week. She said that she talked to [Ms A] prior to [Town 3], and then spent time with her when she returned, dividing her time between her mother’s house and spending time with [Ms A]. She was with her family for [the duration of a cultural event], and [Ms A] was with her own family;

    ·She said that there were friends from high school who they had kept in touch with, who knew or suspected of the relationship, although she did not tell them details. She said that about [number] friends knew of the relationship. There was talk about some of them being lesbians;

    ·She was asked if they were together for about three weeks, considering she was away in [Town 3] for a week, and with her family for [the cultural event]. She said that even though she had to see her family she still had lots of time to see her. [Ms A] also accompanied her to places as a friend;

    ·There was a man from the village who was interested in marrying [Ms A]. The applicant never interacted with him. She did not talk to him besides saying hello. Asked if she ever spoke to him, she said that they talked when they were walking to the main road, and they bumped into him and his friends. They had a brief conversation and he asked why [Ms A] was not responding to him, and the applicant suggested that maybe he needed to “drop it”. He just laughed this off;

    ·Asked when she next saw this man, she said that she does not remember seeing him after that. She said that [on a date in 2011] they were at her partner’s [relative]’s house, which was empty. They had decided to spend the night together after spending the afternoon together. The Tribunal asked her how they were able to spend the night together given the taboo nature of lesbianism in Kenya. She said that it was because [Ms A]’s [relatives] were away. She told her mother that she spent the night at her friend from school. She thought that they had been discreet enough;

    ·There was a bang at the door, and then a group of about [number] people barged in. They [forced their way into the property]. She thinks it was locked but the dead bolt was not on. She and [Ms A] were on the sofa, not fully dressed. The group asked them what they were doing and said something along the lines of “oh this is what is happening”. They were told to stand up. There was a commotion, and they were beaten and called names. The men were armed with [weapons] and told them that they were trying to change the culture by imitating western ways. They said they had to deal with it otherwise it would cause problems. They also pulled her braids. She could hear the crowd saying things from the van;

    ·She pled for them to leave. Then the crowd grew bigger. Someone must have run to her mother and told her. She does not remember her mother coming, but the police arrived and [dispersed the] people. The police took them and put them in the van. She heard her mother pleading with them;

    ·Asked if this group of men broke into the house because they knew of the relationship, she said that one person said they had seen them around, and so she thought they may have suspected. She said that they may have seen them holding hands. Asked why they would do this if they were trying to be discreet, she said it was just in a friendly manner;

    ·They were taken to [a police station]. She does not know why they did not take her to the local station. When they got to the station, they were put in separate cells. They were told someone would come and see them. [A number of] police officers came and humiliated them, and told them something must be wrong with them, and lesbianism is a disease. They took turns in raping her. This was the first night, then it happened the following night as well. She was not allowed to get a lawyer even though she asked for a call;

    ·Asked if her mother and father arranged a lawyer she said that her mother did not, she was the only person in [Town 1] as her father was in [another location]. The applicant was helped by a friend from school and college, one of the [number] people who knew of her relationship. This friend looked for the applicant and probably went to the local police station and when she found her that was when she was released;

    ·She was told that she was being charged on [a date in 2011]. She was brought out and they asked her if she knew why she had been locked up. She did not say anything. They told her the charges and that she should appear in court without failure. Asked what she was told she was being charged with, she said that it was [two offences]. They gave her the Notice she has provided to the Tribunal. Her mother was present when she was being charged. She had to pay a security;

    ·When they got outside the police station, her friend asked her what she would do, and she said that she would go with a friend to [Town 2] which is far away. She told her mother not to get a lawyer because she did not want to stay. She wanted to get away. She was asked how she thought that she could leave if she was wanted in court. She thought that she could leave with her passport. She did not think it would be a problem;

    ·There were no media reports about the incident. She did not think there was enough time. She does not think anyone contacted the media;

    ·She was asked why the police charge sheet indicates that she was being charged with [specified offence] and she said she has no idea why they would say [there were two offences] but only charge her with [one offence];

    ·She was in [Town 2] on [the day that she was required to appear in court]. She said that there were no repercussions for her when she did not appear in court. There was no warrant issued for her arrest. Asked if this meant that the police were not concerned about her, she said that she had never been on the wrong side of the law, and did not know what this meant. The Tribunal put to her that Kenya has procedures for issuing warrants for arrest where persons do not appear in court, pursuant to the Criminal Procedure Code Act. She said that she had no idea why there was no warrant for her arrest. Asked if she did not consider appearing on [her court date] with a lawyer, she said that she had lost faith and wanted to disappear. Her friend picked up her passport for her. Her father did not answer her calls;

    ·Asked if [Ms A] was bailed, she said that she tried reaching her at her [relative]’s house, but her [relative] did not answer.  Since then, her [relative] would not respond. She has now left the area, and her friends do not know of her whereabouts;

    ·Her mother was disappointed and shocked to hear of her sexual orientation. The applicant’s older [sibling] was also shocked and did not know what to say. She has never spoken to her mother in detail. Her mother just says she is praying for her. She talked to her [sibling] while in [Town 2]. She did not say goodbye as [the sibling's partner] was against lesbianism. She did try reaching out to her [relative]. Her [relative] was disappointed and expressed that she had brought shame to the family;

    ·She was asked if she received medical attention in [Town 2] and she said that she decided to wait until she got to Australia. She got blood tests for HIV, after she arrived but does not have records of this. She said she has never spoken to a counsellor or psychologist, partly because of cost, but also she finds it hard to think about it. She did not talk to any human rights organisations in Kenya about her experiences in the police station. She said that she just wanted to forget and move on;

    ·She was asked how she could leave through the airport freely, as usually airports will have a list of people who have warrants out for their arrest so they cannot try and escape the country. She said that she has no idea how this is possible. She said that she considered herself lucky;

    ·After she left, her mother was being asked by the community about her location. Her mother was shunned from the church, and had to move to a different church. Asked if she suffered any harm or harm to her property she said that she did not. She said that she had had some correspondence with friends, and had been mentioning going back. She said that to her shock and surprise her name was still coming up as an issue in the community;

    ·She was asked how she knew [Ms B], who had written the letter provided to the Tribunal.  She said that she knew her from college. They had kept in touch. She was asked why she said that she had no friends from the gay and lesbian community, and she answered that she did not know they were gay or lesbian. The Tribunal put to her that the letters indicated that she knew the boys were in hiding and that the two girls were in hiding. She said that they were friends but they had never said they were gay or lesbian. Asked how she had these friends she said that she had been back before and kept in touch;

    ·She had tried to find media reports of the events described by her friends, but could not. She has tried to find out more, but has not been able to. The Tribunal put to her that usually these kinds of serious allegations are found in Kenyan or international media, or the United States Department of State Human Rights Reports or Human Rights Watch reports, but there is no mention of them, which makes the Tribunal question whether these events occurred. She said that not everything is reported;

    ·Her [relatives] in [Town 1] might want to harm her as they think she brought shame on the family. One of them said to her mother that he hopes that she would not think of coming back after the shame she had created. Asked what harm she thinks he will cause, she said that she is not sure, but she thinks he may harm her. She also wonders if the villagers may harm her. Some of them are Mungiki;

    ·Since she returned to [City 1], she has not had other lesbian relationships. She has dated and met people but it has not been successful;

    ·She has a close group of friends in the same sex community and also straight friends. They all know that she is a lesbian. She has not been out with any men. She works full time. On weekends she meets her friends, and they go hiking. They go to the beach, sport, bars (including gay bars) and barbeques;

    ·She would like to have a girlfriend. She has used one internet site to meet people – there are predominantly gay and lesbian [sites]. One is through a website and one through [an organisation]. She does not use social media to talk to other lesbians though. She said that she would love to address some of the difficulties she has, and to be able to be in a fulfilling relationship. She would love to be in a home and travel. Some of her friends in Australia know about what happened to her in Kenya;

    ·She delayed applying for a protection visa for two years because she thought that her [other permanent visa application] would be successful. She said that she was on a different visa. She went into a state of panic. She had put it at the back of her mind. That was when she realised she would need to seek protection. Her passport was issued [in] 2011. She has no idea why the Kenyan government would issue her with a new passport if she has charges pending;

    ·She was asked if she had availed herself of the right to enter and reside in one of the countries of the East African community. She said that Uganda also considers same sex relationships as illegal. The fear still remains in the other countries. Rwanda and Burundi have their own problems, and she has no family and does not feel safe. She would have concerns as a single woman going to live there. She is not sure of the law in Tanzania about same sex – she does not know anyone there. She has no contacts. She does not think she could live openly as a gay person in these communities.

    CONSIDERATION OF CLAIMS AND EVIDENCE

1. In coming to a decision, the Tribunal has taken into account evidence from the Department file, evidence before this Tribunal and independent country information about Kenya.

2. A summary of the relevant law is set out in Attachment A.

   Nationality

3. The applicant provided a copy of her passport and gave evidence that she was a citizen of, and born in Kenya. It was clear that she was familiar with the culture and geography of Kenya, and the Tribunal accepts on the evidence before it that she is a citizen of Kenya and that Kenya is the receiving country for the purposes of the complementary protection provisions.

   Findings of fact

4. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. The Tribunal is sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’.  All this is taken into account in these findings.

5. Given that it is often difficult for lesbian, gay, bisexual, transgender and/or intersex (LGBTI) people to talk about private matters concerning their sexuality, the Tribunal has also utilised the Department’s guidelines for assessing claims related to sexual orientation and gender identity.[1]

   [1] Department of Immigration and Border Protection, “Annexure 5: Assessing Claims related to sexual orientation and gender identity”

6. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

7. Overall, the Tribunal found the applicant to be a credible witness, who answered questions in an open and straightforward manner. Her discussion of the context of her slow realisation of her sexual preference for women was persuasive, and illustrated the confusion she felt. She explained that while growing up, there were “no conversations” about lesbianism, and the only lesbian she had heard of was shamed. There was no internet access where she could find information about this while at school. She said that “she was trying to understand it” and initially thought she just felt close to girls. She said that she had no-one to talk to about it, and talking to her family was not a conversation that would take place. After school she tried dating men but did not enjoy it. She also discussed convincingly how she battled to reconcile her Christian beliefs with her sexuality and wondered what it would mean to her. After she left school, she said she realised she did not want to date men, and felt “confused and uncertain”. This contextual information provides persuasive evidence of the journey she underwent to understand her sexual preferences.

8. Furthermore, she was able to provide convincing evidence of her family’s reactions to her lesbianism, and the feelings she had when first arriving in Australia and realising that people could live freely. She has also demonstrated that she has had some small scale involvement in the lesbian community in [City 1], attending meet and greets and partaking in [other social activities]. She has gay and straight friends, and they all know that she is a lesbian. The Tribunal is satisfied that she has been involved in these activities in Australia, other than for the purpose of bolstering her refugee claims, given that she has not attempted to embellish her involvement in the lesbian community, and that the Tribunal is satisfied that lesbianism is her sexual preference.

9. The Tribunal is satisfied that the applicant is a lesbian notwithstanding that she has had few relationships. The applicant appears to be a quiet and reserved person who has been very affected by the events which took place in Kenya in 2010. She has had a number of relationships, some of which were more akin to friendships, the most important of which was the relationship with [Ms A] in Kenya. The fact that she had not had a very active lesbian life does not indicate that she is not a lesbian – it simply reflects that she has a reserved character and has also been deeply impacted by the events of her past. She convincingly told the Tribunal that she is still concerned about her family accepting her sexuality, and that she has had a “back and forth of emotions”.

10. The Tribunal is satisfied that she entered into a short relationship in 2010 in her own village. The Tribunal is satisfied that she thought that she and her partner, [Ms A], were being discreet, but that they were discovered by village members. The Tribunal is satisfied that a mob, including possibly Mungiki members (who she has described as the most authoritative force in her village) attacked them, which resulted in their arrest. Her account of this incident has been consistent in key aspects in the various accounts of it, and she also provided levels of detail commensurate with telling the truth, for example having her braids pulled, and hearing people calling names as they sat in the police van. Her accounts of the power and brutality of the Mungiki gang are supported by country sources.[2]

    [2] All Africa, “Armed and dangerous” 23 February 2008; Human Rights Watch,‘The Immediate and Underlying Causes and Consequences of Flawed Democracy in Kenya’, 2008, United States Senate Committee on Foreign Relations, Subcommittee on African Affairs, Hearing, 6 February  2008, - Accessed 12 July 2017;

11. The Tribunal is also satisfied that the applicant was raped in custody. Her hesitant, but heartfelt, recall of this event reflected the horror she experienced. She described the incident “as the most horrifying, humiliating, painful and abusive and the most life threatening moment of my life. I was not seeing my worth when this happened to me”. She spoke of how the officers said that they were trying to “cure” her. Her experience of rape by police is consistent with recent reports of humiliation and rape by police of LGBTI persons, found in independent country sources.[3]

    [3] UK Home Office, Country Policy and Information Note, “Kenya: Sexual orientation and gender identity, Version 2.0e, March 2017; Kenya Human Rights Commission 2011, “The Outlawed Amongst Us,” p.27 < Accessed 22 July 2017; United States Department of State, Country Reports on Human Rights Practices for 2016, Kenya, 3 March 2017, - accessed 24 April 2017

12. The Tribunal is satisfied that the applicant was charged with “[specified offence]”. [Sources] suggest that gays and lesbians have been charged pursuant to these types of [provisions], rather than the same sex provisions.[4] The Tribunal is also satisfied that she was released on a police bond, and required to appear in court. The offence is referred to in a document provided by the applicant, “Notice to Attend Court”. The Tribunal had some concerns about the authenticity of this document. It refers to the “Criminal Act” however Kenya’s criminal offences are encoded in the “Criminal Procedure Code Act”, see Furthermore, the section referred to, section 116(1), is a provision for bringing prisoners before court, but the applicant was not in prison. The applicant said that she does not know why the document contains these errors. She said that it was, however, the document provided to her. Given the concerns the Tribunal has about this document, the Tribunal has not placed significant weight on this document. However the Tribunal is satisfied based on her oral evidence that she was charged with this offence.

    [4] [source deleted]  

13. The Tribunal also had a number of concerns about aspects of the applicant’s evidence about the mob attack and its aftermath. One aspect of concern was why, when she did not appear at her scheduled court appearance, there was no warrant for her arrest, as would have been expected under the criminal legislation. She was able to leave the country freely despite not appearing for a scheduled court appearance. The applicant stated that the arrest was not justified, and her family was extorted Kshs. [amount] for bail. She said that this may explain why no warrant was issued. The Tribunal is not satisfied that the police wished to pursue her matter, otherwise a warrant would have been issued, or she would have been arrested upon trying to leave the country. Country sources do indicate that there have been few, if any prosecutions based on same sex relationships. According to the Kenya Citizenship and Immigration Act 2011 an Immigration Officer or any other law enforcement officer may suspend or confiscate a passport or other travel document where a warrant of arrest has been issued against the holder. As she was able to leave the country freely, the Tribunal is satisfied that there was no warrant for her arrest.

14. The Tribunal has also disregarded evidence that she was wanted in her community in regard to encouraging other same sex relationships. This evidence was based on letters from her friends dated [in] October 2013 and [in] November 2013. These letters were written two years after the events. The Tribunal does not accept that members of the community would have been murdered in the way described in the letters without any media reports of the incidents. The Tribunal also does not accept that the applicant would be “at the top of the list” of those to be prosecuted by the Mungiki for misleading all the girls into same sex preferences. This suggestion does not seem to have any logic given the very short time the applicant had returned to the village and the fact that she had been living in Australia for two years. The Tribunal is of the view that these letters were provided to bolster the refugee claim and are not based in truth. The Tribunal has disregarded these letters in reaching a decision. Even though the Tribunal finds that these documents are not based on truth, it has found her other evidence to be credible. It is by no means unusual for applicants for refugee status to produce fraudulent documents/embellish their evidence in support of their claims. As Gummow and Hayne JJ observed in Abebe v Commonwealth of Australia (1999) 197 CLR 510, “the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising”. The Tribunal is satisfied that the fact that this part of the account has been embellished, does not lead to the conclusion that the applicant’s entire account should not be believed.

    Convention reason

15. The persecution an applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion.

16. Gleeson CJ, Gummow and Kirby JJ in the joint judgment in Applicant S v MIMA summarised the determination of whether a group falls within the Article 1A(2) definition of ‘particular social group’ in this way:

    First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a “social group” and not a “particular social group”. As this Court has repeatedly emphasised, identifying accurately the “particular social group” alleged is vital for the accurate application of the applicable law to the case in hand.[5]

    [5] Applicant S v MIMA (2004) 217 CLR 387 at [36] per Gleeson CJ, Gummow and Kirby JJ.

17. It is well-established that gays or lesbians can constitute a particular social group, Applicant A v MIEA (1997) 190 CLR 225[6] Clearly, lesbians in Kenya are identifiable by a characteristic or attribute common to all members, which is not the shared fear of persecution. Furthermore, the possession of that characteristic distinguishes the group from society at large.

    [6] Applicant A v MIEA (1997) 190 CLR 225, Appellant S396/2002 v MIMA (2003) 216 CLR 473

18. The Tribunal is satisfied that the applicant is a member of the particular social group of “lesbians in Kenya”.

    Well-founded fear of persecution

19. An applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.

20. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

21. The Tribunal has considered carefully country sources relating to treatment of lesbians in Kenya, to ascertain whether the applicant has a real chance of persecution were she to return. The Tribunal is satisfied that the applicant has a real chance of persecution, which would be more than remote or insubstantial. The reasons for this are set out below.

22. There are two offences under Chapter XV of the Kenyan Penal Code, as revised in 2014, which have been interpreted as applying to same sex practices between men.[7] These are section 162, which refers to “unnatural offences”, and has a penalty of 14 years, and section 165, which refers to “indecent practices between males”, relating to acts of gross indecency, whether in public or private, with a penalty of five years.[8] The United States Department of State Report on Human Rights Practices for Kenya, 2016, states that the Constitution does not explicitly protect LGBT persons from discrimination on the basis of sexual orientation or gender identity.[9] While same-sex conduct between women is not interpreted as prohibited under the Penal Code, lesbians, like gay men, face considerable prejudice and discrimination, in part because of stigma associated with the criminalisation of same-sex relationships.[10]

    [7] Equal Rights Trust, “Submission to the United Nations Human Rights Council of Kenya”, 21^st session, 2015, - january 2015/ert - the_equal_rights_trust.pdf – accessed 20 April 2017;

    [8] UK Home Office, Country Policy and Information Note, “Kenya: Sexual orientation and gender identity”, Version 2.0e, March 2017

    [9] United States Department of State, Country Reports on Human Rights Practices for 2016, Kenya, 3 March 2017, - accessed 24 April 2017

    [10] Equal Rights Trust, “Submission to the United Nations Human Rights Council of Kenya, 21^st session”, 2015, - january 2015/ert - the_equal_rights_trust.pdf – accessed 20 April 2017

23. The sources indicate that in 2015 and 2016 police used the laws relating to same-sex activity to detain people, particularly those suspected of prostitution, but released them shortly afterwards. There were no prosecutions of LGBTI people under the laws.[11] Human Rights Watch has stated that it is unclear whether anyone has ever been convicted for consensual adult same-sex relations in Kenya.[12]  However sources suggest that criminalisation of homosexuality acts as a threat constantly hanging over the homosexual community. Society’s treatment of and attitude toward homosexuals is characterised by discrimination, fear and stigmatisation.[13]

    [11] United States Department of State, Country Reports on Human Rights Practices for 2016, Kenya, 3 March 2017, - accessed 24 April 2017, UK Home Office, Country Policy and Information Note, “Kenya: Sexual orientation and gender identity, Version 2.0e, March 2017

    [12] Human Rights Watch, “The issue is violence-attacks on LGBT People on Kenya’s Coast”,  September 2015

    [13] United States Department of State, Country Reports on Human Rights Practices for 2016, Kenya, 3 March 2017, - accessed 24 April 2017; UNESCO, Concluding observations on the combined second to fifth periodic reports of Kenya, April 2016, - accessed 24 April 2017

24. There are conflicting reports on whether public sentiment is becoming more liberal or more hostile toward homosexuality. The recent UK Home Office Report suggests there have been few reported incidents of violence in recent years.[14] However the United States Department of State Report on Human Rights Practices for 2016 states that LGBTI organisations reported that police more frequently used public order laws such as disturbing the peace, than same-sex legislation, to arrest LGBTI individuals. It went on to state that LGBTI individuals were frequently harassed, intimidated, or physically abused in custody. This included blackmail and rape by police officers. Human rights and LGBTI organisations noted that victims were extremely reluctant to report abuse or seek redress due to fear of violence against them or arrest.[15]

    [14] UK Home Office, Country Policy and Information Note, “Kenya: Sexual orientation and gender identity, Version 2.0e, March 2017

    [15] United States Department of State, Country Reports on Human Rights Practices for 2016, Kenya, 3 March 2017, - accessed 24 April 2017

25. The report of Amnesty International which was released in April 2013 on alleged human rights violations against the LGBTI community in sub-Saharan Africa, including in Kenya, examined how the legal framework in each country impacted on the human rights of individual LGBTI members and noted in respect to Kenya that the law currently criminalises ‘carnal knowledge against the order of nature and gross indecency’.[16]  The report found that although the new constitution[17] outlaws discrimination on any grounds, the Kenyan government refuses to decriminalise same sex sexual conduct by arguing that ‘same-sex unions [are] culturally unacceptable in Kenya’.[18]

    [16] Amnesty International 2013, Making Love a Crime: Criminalization of Same-Sex Conduct in Sub-Saharan Africa, April, p.15 < Accessed 25 June 2013 <CISNET Kenya Cislib 25772> 

    [17] The current constitution came into force on 27 August 2010. See The National Council for Law Reporting 2010, The Constitution of Kenya  < Accessed 5 December 2011 <CISNET Kenya Cislib 22058>

    [18] Amnesty International 2013, Making Love a Crime: Criminalization of Same-Sex Conduct in Sub-Saharan Africa, April, p.17 < Accessed 25 June 2013 <CISNET Kenya Cislib 25772> 

1. A number of the government’s leaders have expressed disinterest in decriminalising Kenya’s laws on same-sex practices. Kenya’s Deputy President, William Ruto said in 2015 that “we would not allow homosexuality in our nation, as it violates our religious and cultural beliefs”. When former US President Obama spoke to Kenyan President Kenyatta about the plight of homosexuals, President Kenyatta said that “for Kenyans today the issue of gay rights is really a non-issue”.[19] The applicant has argued that media reports indicated that despite President Obama encouraging reform in regard to LGBTI people, his suggestions were quickly “cut down”.

   [19] , UK Home Office, Country Policy and Information Note, “Kenya: Sexual orientation and gender identity, Version 2.0e, March 2017

2. According to the UN Committee on Economic, Social and Cultural Rights, April 2016, “LGBTI persons are stigmatised and socially excluded, as well as discriminated in gaining access to social services, particularly health care services.[20]

   [20] UNESCO, Concluding observations on the combined second to fifth periodic reports of Kenya, April 2016, - accessed 24 April 2017

3. A Human Rights Watch researcher said in 2016 that a report by the Gay and Lesbian Coalition of Kenya (GALCK), “Research on the Lived Realities of Lesbian, Bisexual and Queer Women in Kenya” indicated that there were a number of stories of family and societal violence, rape and banishment of lesbians. Some women were pushed into marriage with men. Women who were masculine-presenting were at most risk of violence as are women in lower and middle class areas.[21]

   [21] Huffington Post, Lesbian, Bisexual and Queer Women Speak out in Kenya, 20 February 2016, - accessed 24 April 2017

4. Another Human Rights Watch Report referred to a series of homophobic and transphobic attacks on the coast, with at least six instances between 2008 and 2015.  LGBTI people were also the victims of individual acts of violence, including assault and rape.[22]

   [22] Human Rights Watch, “The issue is violence-attacks on LGBT People on Kenya’s Coast”,  September 2015

5. An article in 2014 referred to the arrest of 60 people for “suspected homosexuality” at a club in Nairobi.[23]

   [23] LGBT News and Current Affairs, “60 people arrested at Kenyan nightclub for suspected homosexuality”, 9 July 2014

6. Gay advocacy websites and blogs maintain that the LGBTI community in Kenya is subject to violent attacks. In July 2013, Gay Star News cited the release of a report by the Gay and Lesbian Coalition of Kenya (GALCK) that detailed a number of violent acts in which gay men had been ‘slashed with machetes and beaten with hammers in a series of hate attacks’.[24] Similarly, according to the International Lesbian, Gay, Bisexual, Trans and Intersex Association, activists in July 2013 ‘raised the alarm over the increasing cases of attacks targeting gay men, male sex workers and transgender women especially at the Coast’.[25]  In August 2012, Kenya Identity[26] reported that three lesbian women were brutally assaulted and sexually molested in Nairobi,[27] and in June 2012 it was reported that two men were beaten by a mob as they were caught ‘in the act’ by passers-by. The report claims that one man was able to escape while the other died after being stoned by a crowd of people.[28]

   [24] Hernandez, G 2013, ‘Gay men hacked with machetes and murdered in wave of hate crimes in Kenya’, Gay Star News, 17 July < Accessed 22 January 2014

   [25], International Lesbian, Gay, Bisexual, Trans and Intersex Association, ‘Attacks on LGBTI, Sex Workers Worrying’ 2013 1 July < Accessed 22 January 2014

   [26] International gay advocacy website

   [27] ‘Three Lesbians Beaten, Sexually Assaulted in Nairobi CBD Using Bottles’ 2012, International Lesbian, Gay, Bisexual, Trans and Intersex Association, 22 August < Accessed 22 January 2014

   [28]International Lesbian, Gay, Bisexual, Trans and Intersex Association,  ‘Gay man stoned to death in Nairobi slum’ 14 June 2012 < Accessed 22 January 2014

7. A 2011 report by the Kenya Human Rights Commission on the LGBTI community in Kenya found that:

   …human rights violations against LGBTI persons in Kenya are systematic, highly prevalent and generally not redressed by the state when called to. There is a high prevalence of violence upon LGBTI persons who are routinely abused, subjected to hate speech and incitement to violence, suffer physical violence in terms from mobs and occasionally raped by police, vigilantes and organized criminals.[29]  

   [29] Kenya Human Rights Commission 2011, The Outlawed Amongst Us, p.1< Accessed 22 January 2014

8. Commenting on the most common forms of violence directed at the LGBTI community the Kenya Human Rights Commission noted that:

   the most reported forms of violence include, but are not limited to, physical violence (harassment, riots, beatings, lynching and mob justice), hateful printed publications (text messages, posters, books, printed and online publications) and hate speech. The common form of violence was verbal where insults and derogatory terms were used in reference to LGBTI persons who are often referred to in words that portray them as subnormal, pathological, perverted and deserving of annihilation”. This related to both state and non-state actors.[30]

   [30] Kenya Human Rights Commission 2011, The Outlawed Amongst Us, p.27 < Accessed 22 January 2014

9. One blog site listed several instances during the month of June 2013 of alleged hate attacks against members of the LGBTI community in Kenya. The site claimed that the attacks were provoked by the release of a study by the National AIDS Control Council that found the cities of Kisumu, Mombasa and Nairobi to have the highest number of gay men in the country:

   ·     21st June, 2013 – Mombasa: A member of our community was slashed with a machete/’panga’ several times especially around the neck /throat area. His attacker later threw him out of a moving vehicle and left him for dead. Fortunately he was rescued and taken to hospital. He has received medical attention and continues to recover.

   ·     22nd June, 2013– Nairobi: A man was sexually assaulted using a hammer and repeatedly hit on the head with it. He also suffered several knife cuts on the head and arms. The incident was reported to the police.

   ·     24th June, 2013 – Mombasa: A second incident, where another member of the community was taken to the same hospital with similar slash wounds to the neck/throat. Unfortunately he did not survive.

   ·     23rd and 24th June, 2013-Mombasa: Radio Rahma call-in talk show hosted agitated callers who openly said that they were on a mission to “clean up” Mombasa of sex workers especially MSM/Male Sex Workers (MSWs) and the organizations that provide them with health services.

   ·     21st -27th June, 2013-Kisumu: There have been reports of intimidation and beatings of persons perceived to be gay by vigilante groups. These incidents haven’t been reported to the police since it is known that even the police in the area fear these vigilante gangs.[31]

   [31] Stewart, C 2013, ‘Kenya making progress, but anti-gay violence continues’, Erasing 76 Crimes, 18 July < Accessed 21 January 2014

10. According to Human Rights Watch, police play an ambiguous role in protecting LGBTI people from violent attacks. In some cases they have protected LGBTI people from mob violence, but they have not brought the perpetrators to justice. The report goes on to state that police (on the coast, in that study), have too often responded to cases of violence against LGBTI people by treating the victims with stigma and discrimination, refusing to take statements or provide assistance.[32]

    [32] Human Rights Watch, “The issue is violence-attacks on LGBT People on Kenya’s Coast”,  September 2015

11. However a number of other reports in the UK Home Office Report, refer to emerging vibrant social movements and the fact that attitudes towards gay people are slowly changing, with LGBTI activists speaking out on television and some clubs accepting gay people. Some of these reports refer to many LGBTI individuals having supportive families, and communities, and a few LGBTI-friendly faith institutions.[33] When asked about some change in attitudes of some communities, churches and clubs in Kenya, the applicant said that the legislation is still in place and safety is not guaranteed. Further, she claimed, mob justice is often the “law of the land”.

    [33] , UK Home Office, Country Policy and Information Note, “Kenya: Sexual orientation and gender identity, Version 2.0e, March 2017

12. The reports set out above suggest that although the legislation does not specifically criminalise lesbian relationships, the fact that gay relationships are criminalised does act as a threat to lesbians and encourage anti-lesbian sentiment and behaviour.[34] Furthermore, lesbians have been arrested and charged under other provisions of the criminal legislation. While the reports indicate that there have not been same sex prosecutions of lesbians, there is evidence of intimidation and violence towards lesbians from those in authority. This is fuelled by official and community sentiment which is highly anti-lesbian, and on occasion has led to mob violence, individual instances of violence, harassment and discrimination. Although there are some changes in attitudes in some urban areas, the levels of harassment do not appear to have diminished. Societal discrimination is still very strong, evidenced by the fact that the applicant has still not been able to have a real conversation with her family about her sexuality, and the fact that even in Australia she fears reactions of the Kenyan community. Another factor to be taken into account here is the fact that reports suggest that many instances of violence against lesbians are not reported.

    [34] Equal Rights Trust, submission to the United Nations Human Rights Council of Kenya, 21^st session, 2015, - january 2015/ert - the_equal_rights_trust.pdf – accessed 20 April 2017

13. The Tribunal is satisfied that the applicant has a genuine fear of harm if she returns to Kenya given the mob attack on her, and the fact that she was raped in custody. The fact that she did not return for her fathers’ funeral in [2011] reflects the fear she felt.

14. Considering the country information cited above, the Tribunal is satisfied there is a real chance, one that is not remote or unforeseeable, that the applicant will be subject to violence, harassment and discrimination from the authorities or members of the community were she to return to Kenya in the reasonably foreseeable future. The Tribunal is not satisfied that the authorities would immediately arrest her on return as she has been out of the country since 2011, and there did not appear to be a warrant for her arrest when she left. However the Tribunal is satisfied that members of her village may recall the incidents of 2011, and that this may lead to violence, or severe harassment and discrimination, either from villagers, or the authorities who would be alerted to her return. The Tribunal is also not satisfied that if she was physically harmed by mobs that the authorities would protect her, given country sources which indicate that LGBTI people find it difficult to access state protection. The sources also indicate that she may be physically harmed by police themselves.[35]

    [35] UK Home Office, Country Policy and Information Note, “Kenya: Sexual orientation and gender identity, Version 2.0e, March 2017

15. The Tribunal is satisfied therefore that there is a real chance of serious harm for reasons of her membership of a particular social group of lesbians in Kenya were the applicant to return to Kenya in the reasonably foreseeable future.

    Third Country protection

16. The Tribunal turns now to the question of third country protection (s.36). Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

17. The substantive qualification to s.36 is contained in subsection (3), but this itself is qualified by subsections (4), (5) and (5A).[36]  These provisions apply to protection visa applications made on or after 16 December 1999.[37] They provide as follows:

    [36] Sections 36(3)-(5);

    [37] Section 2(6) and Schedule 1, items 65 and 70, Border Protection Legislation Amendment Act1999 (No. 160 of 1999); s.2 and Schedule 1, item 15 Migration Amendment (Complementary Protection) Act 2011 (No.121 of 2011). Commenced by proclamation, Special Gazette 624 of 16 December 1999: see Gazette Notice 51 of 22 December 1999. 

    Protection Obligations

    (3)   Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all       possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or   permanently and however that right arose or is expressed, any country apart from Australia,            including countries of which the non-citizen is a national.
    (4)   However, subsection (3) does not apply in relation to a country in respect of which:
          (a)        the non-citizen has a well-founded fear of being persecuted for reasons of race, religion,   nationality, membership of a particular social group or political opinion; or
          (b)       the Minister has substantial grounds for believing that, as a necessary and foreseeable   consequence of the non-citizen availing himself or herself of a right mentioned in   subsection (3), there would be a real risk that the non-citizen will suffer significant harm in   relation to the country.
    (5)   Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:
          (a)       the country will return the non-citizen to another country; and
          (b)       the non-citizen will be persecuted in that other country for reasons of race, religion,   nationality, membership of a particular social group or political opinion.                  
    (5A) Also, subsection (3) does not apply in relation to a country if:
          (a)       the non-citizen has a well-founded fear that the country will return the non-citizen to another              country; and

    (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country. In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s.36(3) does not apply because of the operation of s.36(4), (5) or (5A).(ie no need to be legally enforceable).

18. The Full Federal Court in MIMAC vSZRHU [2013] FCAFC 91, has held that the term ‘right’ in s.36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.

19. Kenya is one of the partner states of the East African Community established by the East African Community Treaty (EAC Treaty). The EAC Treaty came into force on 7 July 2000 following its ratification by the original three partner states of Kenya, Tanzania and Uganda. Rwanda and Burundi acceded to the EAC Treaty and became full members of the East African Community with effect from 1 July 2007.  The stated aims of the EAC are to widen and deepen co-operation among partner states in the political, economic and social fields for mutual benefit.[38] Article 104 provides that the partner states agreed to conclude a protocol concerning free movement.

    [38] East African Community website at - accessed 2 July 2017

20. The Protocol on the Establishment of the EAC Common Market (the Protocol) entered into force on 1 July 2010, following ratification by all the five partner States: Burundi, Kenya, Rwanda, Tanzania and Uganda.  It provides for “Four Freedoms”, namely the free movement of goods; labour; services; and capital, which are intended to significantly boost trade and investments and make the region more productive and prosperous. The Protocol states in Article 7(1) that the Partner states guarantee free movement of persons who are citizens of the other Partner states.

21. Various East African Community Common Market regulations seek to regulate the movement of persons through the EAC. The Free Movement of Persons Regulations sets out five categories of persons eligible to enter and remain temporarily in a partner state, those categories being visitors, persons seeking to enter for the purposes of medical treatment, persons in transit through the partner state, persons admitted as students in training establishments of the member state and persons entering a partner state for any other lawful purpose, other than as a worker or self-employed person (such persons being dealt with separately in a different annexure to the regulations).[39]

    [39] East African Community Common Market (Free Movement of Persons) Regulations, Annexure 1 Regulation 4 at ;  East African Community Common Market Protocal (Simplified) at 7 accessed at - accessed 2 July 2017

22. In the particular circumstances of this case, the Tribunal accepts that the applicant may enter any of the EAC partner states as a visitor. 

23. Regulation 5 provides that a citizen of a partner state who seeks to enter or exit the territory of another partner state will be issued with a pass to enter the territory of the host partner state for a period of up to six months (assuming production of specified identity documents which includes a national passport of the partner states). Section 36(3) makes it clear that the right can be temporary or permanent.

24. A number of progressive steps are noted on the EAC Common Market website to implement the Protocol, for example, the agreement to use IDs for Kenyan, Rwandan, Burundi and Ugandan nationals for travel between the four partner states.[40] However, overall, implementation of the Common Market Protocol is reported to be happening at a slow pace. An article in June 2014 by Andrew Luzze, Executive Director of East African Business Council writes that the procedures for nationals of EAC states to acquire work permits are “lengthy and often frustrating”; each State has different policies and procedures in place and national laws are not aligned with the Common Market Protocol. [41] The Daily Monitor, a Ugandan news site, similarly reported on the difficulties of application requirements and that in Kenya, national legislation was used to deter cross border movement.[42]

    [40] Annex on the Free Movement of Persons, East Africa Community Website, < - accessed 2 July 2017

    [41] The Star, “EAC States need to harmonization of their citizens’ work permits”, 21 June 2014, The Daily Monitor, “AC work permit disparities hurt integration”, 9 October 2012, < type="1">

25. Organised by the EAC Secretariat and IOM, a Workshop on Migration and Regional Integration in the East Africa Community took place in December 2011. Ms. Mary Makoffu, Director, EAC Social Sectors reflected on the complexity of migration in the EAC, which involves large mobile populations of refugees, internally displaced, labour and irregular migrants. Additionally, despite the importance of migration to the Common Market Protocol, legal, administrative, financial and social challenges hindered implementation across states.[43]

    [43] EAC Secretariat, Workshop Report: “Workshop on Migration and Regional Integration in the East African Community”,  December 2011, <

26. Articles on the EAC Common Market website recognise these challenges. A status review of the EAC Common Market Protocol reports that up to December 2012, although performance did vary, implementation lagged behind schedule in every state. A key observation was the lack of harmonisation of laws.[44]

    [44]EAC Common Market: “Overview, East African Community”, Website, 8 August 2014,  < Partner States Review Implementation of EAC Common Market Protocol , East African Community Website, 15 February, 2013, <>

    The Tribunal has considered the country information regarding the applicant’s right to enter and reside temporarily or permanently in one of the EAC countries. The Tribunal finds that, despite the existence of the EAC Regulations and Protocol, limited and conflicting information was located on the rights of Kenyan nationals to enter and reside in countries belonging to the EAC. There does not appear to be any automatic right to work or residency within EAC countries for citizens of EAC member countries.[45]

    [45] Searches were conducted of regional and international news media, major human rights reports, major foreign government reports, strategic security and intelligence groups, think tanks, and DIBP resources, in addition to general internet searches.

27. The EAC website states ‘[n]ationals of East African Community Partner States (Burundi, Kenya, Rwanda, United Republic of Tanzania and Uganda) do not require visas to travel to the other EAC member states.’[46] It confirms that East Africans may use national passports or the East African Passport to travel within the region. The East African Passport ‘has a six months [sic] multiple entry validity.’[47] The website also states that local immigration authorities may issue ‘Certificates of Identity’ or ‘Inter-State Passes’ in emergency situations for those who cannot readily be issued with a passport; the certificates/passes may be used to travel across EAC.[48]

    [46] East African Community (EAC) 2013, ‘Travelling in East Africa: Documents you need’, 10 January < Accessed 22 September 2015

    [47] East African Community (EAC) 2013, ‘Travelling in East Africa: Documents you need’, 10 January < Accessed 22 September 2015

    [48] East African Community (EAC) 2013, ‘Travelling in East Africa: Documents you need’, 10 January < Accessed 22 September 2015

28. The website notes that EAC’s ‘Protocol for the Establishment of the East African Community Common Market provides for the use of a machine readable national identity card for travel within the East African region, but only for citizens of those partner states which have accepted among themselves the use of such.’[49] No information is provided on which partner states have done so, and the web page has not been updated since January 2013.[50] Kenyan newspaper Daily Nation reported in February 2014 that President Kenyatta had exited Kenya and entered Uganda using his national identity card, in order to demonstrate that citizens of EAC countries do not need a passport or visa to travel within the bloc. The article notes that EAC citizens may also use their national passports, or an East African Passport (which is only for travel within the community). [51]  

    [49] East African Community (EAC) 2013, ‘Travelling in East Africa: Documents you need’, 10 January < Accessed 12 July 2017

    [50] East African Community (EAC) 2013, ‘Travelling in East Africa: Documents you need’, 10 January < Accessed 12 July 2017

    [51]Daily Nation Kenya, ‘You don’t need passport to travel all over East Africa’ 19 February 2014, < Accessed 12 July 2017

29. A 2010 article published by Rwandan newspaper New Times also indicates that there are inconsistent entry documentation requirements among EAC countries, reporting a statement by the EAC Secretary General that ‘some Immigration Officers have been refusing to accept the East African Passport as a valid travel document.’ The Secretary General responded by stating that ‘neither the East African Community Secretariat nor the EAC Secretary General has authority on matters related to issuance of passports.’ The article reports that according an EAC communique:

    … the fact that the passport is called the East African Passport in no way invokes the involvement of the EAC in matters related to passports…[i]t is only the National Immigration Departments of the EAC Partner States that have authority over passport matters. It is the same authorities that have powers to also suspend the issue of the same.[52]

    [52] Karuhanga, J. 2010, ‘East African passport valid – EAC’, New Times (Rwanda), 18 April < > Accessed 22 September 2015

30. Despite the conflicting information regarding the practical operation and implementation of the EAC regulation, the Tribunal finds that the applicant has not taken all possible steps to avail herself of her right to enter and reside in the EAC partner states temporarily for a period of six months. The Full Federal Court has found that such a right constitutes a right to enter and reside temporarily for the purposes of s.36(3).[53]

    [53] SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43 per Tracey & Griffiths JJ at 31; Flick J at 43

    Qualifications

31. Australia is taken not to have protection obligations to the applicant pursuant to s.36(3) unless the Tribunal determines that one or more of the qualifications contained in s.36(4), 36(5) or 36(5A) are met.

32. The Full Federal Court has set out the consideration that a decision-maker must undertake in circumstances where an applicant has been found to have a temporary right to enter and reside in a third country pursuant to s.36(3):

    . . . a question would then arise as to what was likely to occur at the conclusion of the six month period.  One possibility might be that the third country would extend protection to the applicant if there was a basis for apprehending persecution of the applicant in his or her country of origin.  Another possibility might be that the applicant could move on to another EAC country for a further six month period.  If, however, at the expiry of the first six months, there was reason to expect that the third country would return the applicant to his or her country of origin or send him or her somewhere else where the applicant might have reason to fear persecution, the decision maker would be required to determine whether or not sub-sections 36(4), (5) or (5A) were engaged.  In this way the legislative purposes of avoiding forum shopping and ensuring that Australia’s protection obligations under the Refugee Convention were honoured would both be satisfied.[54]

    [54] SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43 per Tracey & Griffiths JJ at 32;

33. Having found that the applicant has a currently existing right to enter and reside in another EAC country for up to six months as a visitor pursuant to the Free Movement of Person Regulations, the Tribunal has considered what is likely to occur at the end of that six-month period. 

34. The applicant fears living in any of these countries as a single woman and a lesbian, given that she has no family or cultural support in any of these locations. She also fears being sent back to Kenya.

35. As to whether the EAC partner States would be able and willing to extend protection to the applicants if there was a basis for apprehending persecution of the applicants in their country of origin, the Tribunal notes that Uganda, Burundi, Tanzania and Rwanda are signatories to the Refugee’s Convention however their ability to extend protection to the applicants may be impacted by large existing populations of refugees and displaced persons, limited resourcing as well the fragile security situation in East Africa. The UNHCR Mid -Year Trends Report for 2015 notes that Kenya and Uganda are two of the highest hosting countries for refugees, with Uganda hosting almost a million refugees in 2015. [55] All EAC states have their own legacy refugee populations.

    [55] UNHCR, Mid-Year Trends, 2015, – accessed 12 July 2017

36. Secondly, the Tribunal notes that despite the member States of the EAC being signatories to the Refugee’s Convention, country information highlights that there has been both historic and ongoing human rights violations and breaches of non-refoulement obligations.

37. The University of Oxford Refugee Studies Centre in a report from December 2010 provides the follows information on the freedom of movement within the EAC:

    Neither the EAC nor the SADC [The Southern African Development Community] protocols remove the rights of states to expel or deport regional citizens on national security or public order grounds. Thus, the right to freedom of movement within a regional economic community is unlikely to constitute a substitute for refugee protection, not least the protection from refoulement that would protect EAC or SADC citizens who are also refugees. Furthermore, these regional free movement protocols do not take account of the fracturing of relations between a refugee and his or her home state, which could, for example, frustrate the refugee’s ability to obtain or renew passports or national identity documentation permitting them to travel throughout the region or to reside in one or more of the participating states. Convention Travel documents would still be needed in such situations.

38. Human Rights Watch 2015 World Report suggests that all EAC member States have certain level of human rights abuse and some countries have domestic bills which violate International Human Rights Law.

39. HRW reported in 2011 that eastern African countries had restricted the rights of asylum seekers within the EAC:

    In April 2011, four Kenyan activists were denied entry into Uganda, where they were to meet with a judicial official concerning Kimathi’s case; one of them, Samwel Mohochi, has filed a suit before the East African Court of Justice, charging Uganda with violating the guarantees of free movement and non-discrimination found within the treaty establishing the East African Community.

    In May, Kenya expelled human rights activist Clara Gutteridge, a researcher with the Open Society Justice Initiative. Kenyan Immigration Minister Otieno Kajwang told Parliament that Gutteridge, a British citizen, was “involved in subversive activities which were a threat to national security,” and “involv[ed] with known terrorist operatives and al-Shabaab.” Kajwang further said Gutteridge was “found in possession of materials related to al-Shabaab,” and falsely claimed she was traveling on two passports. Gutteridge’s alleged “subversive activities” seemed to consist of her investigations of abuses committed by eastern African governments in the context of counterterrorism operations. The documents found on Gutteridge consisted of legal briefs related to the arbitrary detention and rendition of several terror suspects.[56]

    [56] Human Rights Watch, 12 September 2012

40. In October 2013 the government of Uganda expelled a high-profile Rwandan refugee, Joel Mutabazi and handed him over to Rwandan security forces. Human Rights Watch reported that the “forcible return raises grave concerns”.[57] 

    [57] Reuters, 3 October 2013

41. The Tribunal also finds that there are close links between the security forces of some EAC states which has resulted in breaches of non-refoulement obligations. For example, HRW has noted that:

    Diplomatic relations between Uganda and Rwanda have fluctuated over the years, but many senior Rwandan officials, particularly those who grew up in Uganda and served in the Ugandan security forces or intelligence services, retain close links in the country. Rwandan agents can therefore operate in Uganda with considerable ease. In the past four years alone, numerous Rwandan refugees and asylum-seekers in Uganda have reported to Human Rights Watch a range of incidents, including personal threats by people they know or believe to be Rwandan, attacks on their homes, beatings, attempted abductions, and, in the most serious cases, killings or attempted killings. Some have also reported being threatened and intimidated by Rwandan diplomatic representatives in Uganda.

    Refugees or asylum-seekers who are known to be political opponents, critics, or outspoken journalists, are particularly at risk. For example, following the 2010 presidential elections in Rwanda, several members of Rwandan opposition parties and journalists who had fled Rwanda for their safety were personally threatened in Uganda. Most of them have since moved to other countries.[58]

    [58] Human Rights Watch, 28 January 2014

42. The International Refugee Rights Initiative (IRRI) has documented the difficulties experienced by Burundian refugees seeking protection in the Great Lakes region in 2012. The Tribunal finds that the report casts doubt about whether protection could be regarded as effective.

43. For example, the IRRI documented former Burundian refugees living in Tanzania’s Mtabila refugee camp who were forcibly returned to Burundi at the end of 2012. The IRRI states that the pattern of refugees being displaced from camps and having to seek refugee status in another country is endemic and ongoing in the region. The IRRI reports:

    Overall, the stories told by these asylum seekers underscores the realities of living in a region that has consistently been unable to find comprehensive solutions to the plight of refugees. They reveal a Tanzanian government fatigued with hosting refugees for decades, a Burundian government that has failed to establish and implement equitable structures for distribution and reclaiming of land and create an inclusive polity in which opposition is tolerated; and a Ugandan government reportedly concerned about granting refugee status to asylum seekers whose status has been examined multiple times. The wider context of this story is unfolding is one win which repatriation and return – including forced return in the context of cessation – is being strongly emphasises across the region for protracted refugee situation to the detriment of those whom return is not possible. [59]

    [59] IRRI, –2015

44. The Tribunal accepts that the applicant’s fear of forced repatriation is real and supported by the IRRI, HRW and Amnesty International who have also documented the historic pattern of forcible repatriation of refugees in the EAC in breach of the principles of nonrefoulement.

45. The Tribunal notes that the East African Community (EAC) and United Nations High Commissioner for Refugees (UNHCR) have agreed to collaborate in the promotion of the rights of refugees, including the protection of forcibly displaced people and regulatory regimes affecting the movement of persons, immigration and refugee management.[60] However it is too soon to comment on the implementation of this agreement.

    [60] EAC Website, “EAC,UNHCR to collaborate in protection of refugees”, 22 March 2017, - accessed 12 July 2017

46. As to what other rights the applicants may be able to exercise to remain in another EAC country upon the expiry of their six month pass, the EAC’s Right of Residence Regulations set out that an EAC citizen may only apply to reside in a partner State (as opposed to visit or enter or transit through) on the basis of a work permit, residence permit or dependant’s pass issued by the host partner State and that only a worker or a self-employed person or their dependant shall be issued a residence permit or a dependant pass, the duration of which shall be equivalent to the duration of the work permit.

47. Article 10 sets up the free movement of workers within the EAC and Annex II of the Protocol provide the frame work for its implementation. The Tribunal notes that regulation 5(2) requires a worker to present a travel document and a contract of employment at the point of entry. The evidence before the Tribunal does not suggest the applicant has employment or employment opportunity in any EAC country. 

48. Information was also located which suggested that the existence of a work permit cannot be considered simply a formality because Regulations 7(1) and (2) provide for the denial of work permits and there is lack of clarity regarding the appeal procedures. Information available to the Tribunal suggests that “….. Annex II [of the Protocol] contradicts the guaranteeing of freedom of movement and non-discrimination in the employment of workers as contained in Article 10. More importantly, the contradictions between Article 10 and Annex II puts in question the establishment of truly common labour market in the EAC region”.[61]

    [61] Basnett, Y (2013) ‘Labour Mobility in East Africa: An Analysis of the East African Community’s Common Market and the Free Movement of Workers’, Development Policy Review, 31 (2): 131-148

49. Further, regulation 7 of the Free Movement of Person Regulations provides that a person issued a visitor pass under those regulations shall not undertake any employment in the territory of the host partner state except where the person is a student on internship or industrial training.  The same regulation provides that a person’s pass may be cancelled where the holder of the pass engages in an activity other than the activity specified in the pass.[62]

    [62] ‘The East African Community Common Market (Right of Residence) Regulations: Annex IV’ 2009, EAC Secretariat, November regulations 5 – 9 at - accessed 12 July 2017

50. The Tribunal is satisfied that the applicant is not at present eligible to be granted a work permit under the Common Protocol regulations in any of the EAC partner states and that she will not be permitted to apply for work during the period of their visitor visas.  On this basis, the Tribunal accepts that the applicant will not be eligible to be granted a residence permit to remain in an EAC partner state during the period or following the expiry of her six-month visitor pass.

51. The Tribunal has also had regard to the Free Movement of Persons Regulations which provides that a citizen whose pass is due to expire may apply for an extension of the pass which may be renewed where the immigration officer is satisfied that the applicant has provided a justification for a longer period of stay.  In the absence of any right to work or study, it is not clear what justification the applicant may provide for an extension of her pass and the Tribunal accepts that her six-month visitor pass may not be extended.  

1. No information was located by the Tribunal as to whether the applicant would be permitted to move to another EAC country at the expiry of their initial six-month pass, but the Tribunal accepts that in any case that without an accompanying right to work such an option is not practically open to her.

2. In such circumstances the Tribunal finds that there is a real chance that the applicant will be unable to remain in an EAC partner state following the expiry of her temporary pass.  As such the Tribunal accepts as well-founded her fear she will be returned to Kenya.

3. The Tribunal finds that the applicant meets the criteria set out in s.36(5) as a consequence of which s.36(3) does not apply to exclude her from Australia’s protection obligations.

4. The Tribunal notes further that the applicant may well have a well-founded fear of persecution in the EAC countries, given that same sex relations are illegal in Uganda and Burundi, and Uganda is referred to as one of the most difficult places in the world to be gay.[63] While there have been developing LGBTI communities in some of the EAC countries, there is still significant stigma, discrimination and violence.[64] However, given the finding that the applicant meets the criteria set out in s.36(5), this has not been dealt with in this decision.

   [63] Banning-Lover, R, The Guardian, “Where are the most difficult places in the world to be gay or transgender?”, - accessed 12 July 2017

   [64] The East African, “The pain of being a homosexual in Rwanda”, March 2014, - accessed 12 July 2017;

5. The Tribunal is satisfied therefore that the applicant has a well-founded fear of persecution were she to return to Kenya in the reasonably foreseeable future.

   Relocation

6. The Tribunal has also considered whether the applicant could safely relocate to another part of Kenya where her lesbian activities were not already known by the community. The Tribunal is not satisfied that she would be able to safely relocate, given the widespread anti-lesbian sentiment and violence and harassment of lesbians by both authorities and the community referred to in the country sources earlier in this decision.

   CONCLUSIONS

7. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

   DECISION

8. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

   Jane Marquard
   Member

   
   

   ATTACHMENT A

   RELEVANT LAW

9. 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.

   Refugee criterion

10. 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).

100.   Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

101. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

102.   There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

103. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

104.   Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

105.   Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

106.   Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

107.   In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

108.   Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

109. 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’).

110. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

111. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Section 499 Ministerial Direction

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.