1617684 (Refugee)

This matter concerned an application for review of a delegate's decision to refuse a protection visa. The applicants, citizens of Kenya, claimed they faced persecution due to inter-tribal and sectarian violence, and specifically due to their "love marriage" which was opposed by their families. The delegate had refused the visa, partly on the basis that the applicants might have a right to enter and reside in Uganda or Rwanda, both members of the East African Community, thereby potentially falling under the third country protection provisions.

The Tribunal was required to determine whether the applicants met the criteria for a protection visa, considering their claims of persecution in Kenya based on their inter-tribal relationship and the general violence in their home country. A key legal issue was whether the applicants could avail themselves of protection in Australia, or if they had a right to enter and reside in another country, specifically within the East African Community, which would preclude Australia from having protection obligations. The Tribunal also had to consider the applicants' credibility, the delay in lodging their application, and the impact of changed circumstances, including their marriage and the birth of a child, on their claims.

The Tribunal considered the applicants' migration history, including the cancellation of one applicant's student visa and their subsequent period as an unlawful non-citizen. It noted that the applicants had not notified the Department of significant changes in their circumstances, such as their marriage and the birth of their child, until well into the review process. The Tribunal also examined the provisions regarding third country protection, specifically section 36(3) of the Act, which states that Australia may not have protection obligations if a non-citizen has not taken all possible steps to avail themselves of a right to enter and reside in another country. However, this exception is qualified by section 36(5), which prevents its application if the non-citizen has a well-founded fear of being returned to a country where they would face persecution. The Tribunal also considered the presumptive citizenship of the applicants' child under Kenyan law.

The Tribunal affirmed the delegate's decision to refuse the protection visa. It found that the applicants had not established a well-founded fear of persecution in Kenya that would engage Australia's protection obligations. The Tribunal was not satisfied that the applicants had taken all reasonable steps to avail themselves of protection in a third country, particularly in light of their membership in the East African Community. Furthermore, the Tribunal found issues with the applicants' credibility, including inconsistencies and the failure to disclose material changes in their circumstances promptly.