1605011 (Refugee)

This case concerned an appeal by a female applicant from Kenya against the decision of the delegate of the Minister to refuse her application for a protection visa. The applicant, a Christian woman of Kikuyu ethnicity residing in Nairobi, claimed to fear persecution by al-Shabaab upon return to Kenya. Her stated grounds for fear were her religion and her status as a student, alleging that al-Shabaab targeted Christian students. She also mentioned relatives living in a refugee camp due to past post-election violence. The delegate had refused the application, finding the applicant lacked a subjective fear of al-Shabaab, noting her delay in seeking protection and her voluntary return to Kenya in 2014.

The legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth) (the Act), which requires a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, or alternatively, under section 36(2)(aa) of the Act, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal, she faced a real risk of suffering significant harm. The Tribunal was required to consider the applicant's claims in light of country information regarding al-Shabaab's activities in Kenya and the general safety of Christians and students in Nairobi, as well as the applicant's own conduct, including her delay in applying for protection and her return visit to Kenya. A further issue arose when the applicant, for the first time at the hearing, claimed to be lesbian and feared persecution on this basis, requiring the Tribunal to assess the credibility and evidentiary support for this late claim.

The Tribunal affirmed the delegate's decision, finding that the applicant did not have a well-founded fear of persecution. It noted that while al-Shabaab had carried out attacks in Kenya, their primary activity was concentrated in border counties, and the applicant, as a resident of Nairobi, was not considered to be at a real risk of being targeted. The Tribunal found the claim that all Christian students in Kenya faced a real chance of attack by al-Shabaab to be speculative. Regarding the claim of being lesbian, the Tribunal found it to be a late fabrication, lacking credible evidence and inconsistent with the applicant's history, including her voluntary return to visit her family. Consequently, the Tribunal was not satisfied that the applicant met the criteria for a protection visa under section 36(2)(a) or the complementary protection criterion under section 36(2)(aa), as there were no substantial grounds to believe she faced a real risk of significant harm upon removal to Kenya.

The Tribunal affirmed the decision not to grant the applicant a protection visa.