1504524 (Refugee)

The applicant sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed the delegate's refusal to grant her a protection visa. The applicant claimed to be a lesbian from Kenya who feared persecution due to her sexual orientation, alleging she had been subjected to violence, sexual assault by police, and ostracisation by her community and family. The core of her claim was that she could not be safely returned to Kenya because she would face serious harm, including from vigilante groups and potentially law enforcement, due to her sexual orientation and a perceived "spreading of immoral ways."

The legal issues before the court were whether the Tribunal erred in its assessment of the applicant's claims and whether it correctly applied the principles of international protection law. Specifically, the court needed to determine if the applicant had established a well-founded fear of persecution for reasons of membership of a particular social group, namely being a lesbian in Kenya, and whether the Tribunal adequately considered the risk of refoulement. This involved scrutinising the Tribunal's findings on the applicant's credibility, the objective country information regarding the treatment of LGBTQ+ individuals in Kenya, and the availability of protection within Kenya or third countries.

The court considered the applicant's evidence, including her account of a relationship in Kenya, the subsequent mob attack, her detention and rape by police, and the ongoing fear of reprisal from her community and family. The Tribunal had expressed doubts about the applicant's credibility, particularly concerning the lack of corroborating evidence for some of her claims, such as the absence of media reports of the alleged mob violence and the circumstances surrounding her departure from Kenya with pending charges. The court noted that while the Tribunal accepted that a person in a same-sex relationship in Kenya could face serious harm, it found the applicant's specific claims lacked sufficient credibility to warrant protection. The Tribunal's reasoning highlighted inconsistencies and a lack of detail in certain aspects of the applicant's testimony, leading it to conclude that her fear was not well-founded to the standard required for a protection visa.

The application for judicial review was dismissed. The court found that the Tribunal had not made any reviewable error in its assessment of the evidence or its application of the law. The Tribunal's findings of fact, including its adverse credibility findings, were open to it on the evidence before it, and its ultimate conclusion that the applicant had not established a well-founded fear of persecution was therefore upheld.