1712169 (Refugee)

[2020] AATA 5545

1712169 (Refugee) [2020] AATA 5545 (27 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1712169

COUNTRY OF REFERENCE:                   Kenya

MEMBER:David McCulloch

DATE:27 November 2020

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 27 November 2020 at 8:37am

CATCHWORDS

REFUGEE – Protection Visa – Kenya – murder of the applicant’s father and grandfather – political opinion – absconding from SLDF training – not being supportive of beliefs of the SLDF – effective protection not available – relocation not reasonable – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 19 May 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Kenya, applied for the visa on 16 September 2015. The delegate refused to grant the visa.

3. The applicant appeared before the Tribunal on 10 November 2020. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing. The applicant communicated in English.

   CRITERIA FOR A PROTECTION VISA

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

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

6. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

7. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)–(6) and ss.5K–5LA, which are extracted in the attachment to this decision.

8. 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 the 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 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). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

9. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal notes that there is no current DFAT Country Information Report for Kenya.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

11. The applicant arrived in Australia [in] June 2014 as the holder of a [student] visa, valid until 30 January 2016. The applicant applied for the protection visa on 6 September 2015.

12. The following information is apparent from the application for protection forms. The applicant was born on [date of birth] in [Town 1], Rift Valley, Kenya. The applicant is a Christian of Nandi ethnicity who speaks, reads, and writes English, Kiswahili, and Kalenjin. The applicant has never been married nor in a de facto relationship. The applicant’s [relatives and family members] reside in Kenya, and the applicant is in regular contact with his father, mother, siblings, and friends by phone and email. The applicant lists no addresses in Kenya.

13. The applicant attended primary and secondary school from January [year], graduating from [a] High School, [Kenya] in November [year]. The applicant studied a [qualification] at [a] College, Sydney from June 2014 before withdrawing in April 2015. The applicant then studied [another qualification] at [another] College [from] July 2014 and was enrolled in it at the time of application. The applicant worked [at] [a workplace] from July 2014 until December 2014. The applicant has since worked as [another occupation].

14. In the application forms, the applicant claims that he left Kenya so that he could study in Australia and stay where he feels safe. The applicant claims that, if he returned to Kenya, he would be in danger as he has received death threats from SLDF, an unlawful group which the applicant was forced to join along with a group of his friends. The applicant claims that he fears for his life, as the group attacked the applicant’s family, killed people he knew, and abducted the applicant’s close friend. The applicant claims that he fears torture from the group, as they had previously tortured the applicant. The applicant claims that SLDF considers the applicant a traitor, as he is no longer one of their members, is unwilling to push their agenda or fund their activities.

15. The applicant claims that he received medical attention and counselling in Kenya. The applicant states that he received counselling due to the stress and mental torture he was undergoing. The applicant states that he and his family relocated to [Town 1] as they had received threats from SLDF. The applicant stayed at his uncle’s for a short while, but the SLDF had intensified their network in other regions so the applicant moved to Eldoret.

16. The applicant states that he cannot relocate as the authorities never listened to his concerns and fears. The applicant claims that he will be living in fear since he will not be safe, and SLDF will know where he is and look for him.

17. The applicant provided a written statement entitled ‘Additional Information/Claims’ as follows (not corrected for spelling or grammar):

    In February 2016, my father, then living in Uganda (Kampala), received threats from unknown people in Mt Elgon. He was told that, his life was in danger because they believed that he had given out information about resurgence of SLDF and how they operate and solicit money from former members.

    In response to this, he wrote a letter to Deputy County Commissioner raising concerns about the threats. He also reported the same case to police and noted in occurrence book, number [deleted], He received a response from Deputy County Commissioner noting that they cannot assure security to each individual due to their limited resources (letter from Deputy County Commissioner Attached).

    Due to fears, my father and family, resolved to sell their land in Mt Elgon as they could not feel safe to go back there. In assurance from area chief, my father was informed that he could go back there and sell his land as per wish. (Land Sale Agreement) attached;

    In November 2016, my father with company of my grandfather, went to Mt Elgon to access the damage that had occured earlier and see the modalities on how they could sell the land.

    At dawn of [date]/11/2016, they were attacked while asleep at the nearby hotel they had book to spend the night. They inflicted injuries to both of them and they succumbed to their injuries on arrival at referral Hospital (Have attached the copies of the postmortem from pathologist, copies of Burial permits/ and Death Certificates of the same)

    This really affected me, seek counselling sessions as I have been affected psychologically with this tragic incident. I live in fears and panic, experience nightmares at times. My rest of the family live in Uganda as they try to cope with happened to my father and grandfather.

    The Kenyan police, informed the family that the investigations are still going on and at this point they have not identified the people who did the act.

    I did made an effort to reach Office of Public Prosecution in Kenya about the case but did not get any help as they said they still await police investigations.

18. The applicant provided a further Statutory Declaration to the Tribunal dated 3 November 2020 which provides as follows (not corrected for spelling or grammar):

    I am providing the following further information in response to the Department of Immigration's decision to refuse my Protection (subclass 866) visa application on 19 May 2017.

    This statement supplements the information in my application for a Protection visa of 16 September 2015 and is also supplementary to the further information I provided to the Department of Immigration on 1 May 2017. I confirm that all information in my application is accurate.

    I confirm that I am a citizen of Kenya and do not hold any other citizenships or rights to reside in any other country. Even though most of my family members currently live in Uganda, we do not actually have the right to reside there as they all are in the process of seeking asylum.

    I arrived in Australia on my previous Student visa [in] June 2014 primarily to study and to get away from the events in Kenya. That was my original intention. Then occurred a further series events including threats and emails from the SLDF I received in 2015 that prompted me to lodge my application for a Protection visa. I did not have legal advice or assistance at the time of my arrival in Australia or when I lodged my protection visa application by myself on 6 September 2015 and had only become aware of the Protection visa in 2015.

    I confirm I am of Nandi ethnicity and Christian religion. I can confirm that my claims for protection are for political reasons, not my ethnicity or religion. More specifically I fear returning to Kenya because I am perceived by the SLDF to be opposed to them. I fear that I will be seriously harmed by the SLDF and the Kenyan authorities cannot and will not protect me if I returned to Kenya.

    I have not claimed that I have an active political profile or that I have been involved in activities that would be of interest to or attract adverse attention from the Kenyan authorities, the local community, the SLDF or cause me to be continuously pursued or targeted within Kenya. I am claiming that my family and I are known to the SLDF and have been and will continue to be targeted by them and the Kenyan police cannot and will not protect us. I believe that the SLDF perceives me as opposed to them because I absconded from their forced training in about 2008 and also did not cooperate with their demands for money in 2015.

    Forced training by the SLDF

    I confirm that in around 2008, I was forced into training by the SLDF twice a week, 3-4 days per week, for three weeks. 2008 was the year when all males and some females from our region were encouraged to join the SLDF. Since I was still young, I attended one of their information sessions in [Town 2], Mount Elgon. I had attended the one information session with the SLDF, because I had friends also attending, and it was about the SLDF's agenda and their activities, which I was sceptical of. The operations of the SLDF include recruiting followers to carry out their agendas, encouraging young people to attend their meetings, and a belief in taking the law into their own hands.

    Upon joining the SLDF, we were put through an oath of allegiance to the group by the senior members of the group. The purpose of the oath was to bind members to the group and keep their secrets.

    Along with some others, I was forced to undergo training with the SLDF, and I did the training as requested as I feared that anything could happen to my life if I did not. We were taught how to create and instil fear among people and carry out attacks on people, told to take an oath to keep the SLDF's information secret and not divulge their information to anyone who was not a member of the SLDF, and provided to the high-ranking members of the SLDF the names of other people to join the group. I was taught and told to teach people to be willing to keep a secret for the rest of one's life or else be harmed by the SLDF.

    The training was demanding and rigorous. I witnessed people being physically beaten and hung upside down on trees, and their ears chopped off, and some of them bled to death. I remember being dragged to carry the dead people deep inside the forest. To this date, I still remember vividly the torture in the forest.

    I did not actually carry out any attacks as trained, because I absconded and returned to school, as I previously mentioned.

    Even after the events of 2008, I remained in Kenya until June 2014. It is true that between 201 0 and 2014 I worked, stayed with my [grandmother] [for] a period of time and assisted her where required, and assisted at my local church. I went to stay with my grandmother because that was the only safe space I could get at that time. That was the period when the SLDF had become dormant and seemed to pose no threat at that time. I wanted to put back what had happened and live my life normally. Also I was confined to the same locality as I was not travelling.

    In early 2014, the SLDF started to re-emerge and so I decided that I was going to go abroad and study, and I came to Australia that year.

    Threats from the SLDF

    I confirm that the emails I received from the SLDF in 2015 asking for support and financial assistance for their activities which I provided copies of in my protection visa application are genuine. I did not agree with the SLDF's beliefs, and so I never sent them any of the money they requested.

    As discussed below, [Ms A] has also received threats since 2015 until now that caused her to defer her studies and move from Nairobi to Kampala, Uganda as discussed further below. I believe that after I refused to cooperate with the SLDF's email requests for money in 2015, they instead turned to threatening my sister as she had moved to Nairobi and had started our family's legal proceedings in relation to our father and grandfather's deaths.

    The SLDF also threatened to kill me and my family. My late father [had] received threats including death threats, threats to buy our family house (which they did eventually), and threats to take away my late father's belongings (which they also did eventually). The SLDF threatened that if we said we did not have any money, they would continue attacking my family. My father and my paternal grandfather [were] killed in November 2016 by the SLDF.

    Additionally, more recently, I have started receiving calls from an unknown Kenyan phone number that I know are from the SLDF who have called me consistently every 2-3 days since about May or June this year. I have provided a copy of my call records from a number I know to be from the SLDF. The first time they rang me, I answered the call as I did not know. I have forgotten the caller's name, but he said from he was from Mt Elgon and wanted to talk to me about our family's land and what my sister was doing. I ended the call and rang my sister, and she told me that the same person on the same phone number has been calling and threatening my sister as detailed below. After that first call, I have not answered calls from the same unknown Kenyan phone number.

    Our family's Court matters and the Kenyan police

    The investigation by the Kenyan authorities has confirmed it was the in fact the SLDF who had killed my father [and] my paternal grandfather [which] my sister [Ms A] and I had suspected all along. We received a letter from the Kenyan Directorate of Criminal Investigations dated [July] 2018 regarding our case. They notified us that the responsible people are members of the SLDF who are known.

    The investigation file was shared with the Kenyan Office of Public Prosecution for action, however, as far as we are aware, no arrests have been made as the Kenyan police officers are reluctant to pursue and arrest the people responsible for the deaths of my father and grandfather and not keen to bring these people to justice as they are SLDF members. The Kenyan police have instead been frustrating the arrests and prosecution of the perpetrators.

    I am in contact with [Ms A] and she has been keeping me informed in relation to developments in our father and grandfather's deaths. [Ms A], together with our uncle [has] been assisting with the administration and legal proceedings in relation to our father and grandfather's deaths. She had been living in Nairobi dealing with this while completing her studies [there].

    [Ms A] had moved to Nairobi in 2015 to study and moved to Uganda in 2018. Due to continuous threats received from the SLDF, my sister [Ms A] deferred her studies [and] moved to Uganda to stay with our mother. I have provided a copy of a letter from the University [dated] 13 September 2018 to my sister in relation to her deferral of her studies.

    My sister continues her efforts in pushing the police to continue their investigations into our father and grandfather's deaths in 2016, and has received threats from both known members of the SLDF and the police as a result of her efforts in her pursuit of justice regarding the deaths of our father and grandfather. She has provided a statement in support of my application.

    My sister has told me that she has been contacted by the SLDF though constant phone calls and text messages since she moved to Nairobi consistently every 2- 3 months, and when she is pushing the investigations with the police, or to do fencing around the land. Whenever my sister pushes the case with the police, then she would receive threats from people she know are from the SLDF. I believe that the SLDF know about her efforts to keep the investigations in our family's case going because the police share information with the SLDF and tell the SLDF when she contacts the police about our family's ongoing court case.

    The SLDF has threatened my sister about getting bad consequences if she steps foot in Mount Elgon again, and they tell her, drop the case, there is no land, Mt Elgon is for natives, or she will be a victim like her father or grandfather. My sister has reported these threats to the Kenyan police in Nairobi while she was still living there but the police have not done anything about them.

    As the police had done nothing after my sister reported the threats to them, she tried to obtain information from the service provider herself. In Kenya you can buy a SIM card without registering details, so that number was not registered to anyone but we know it belongs to the SLDF.

    Instead, the Kenyan police has been frustrating efforts to help in arresting and prosecuting people who killed our father and grandfather and has been tampering with and threatening witnesses in the matter, including preventing witnesses from recording statements. We came to know this through the Kenyan Directorate of Criminal Investigations (DCI) whose letter to us suggests that the police investigated the matter but their investigations were not thorough.

    We believe this because the Kenyan police did not secure the crime scene, and forensic samples taken from the scene had mysteriously disappeared, as stated in the DCl's letter, and could not be traced. Furthermore, most of the police officers said they want to be bribed and have shown that they are not willing to do what they have to do in the investigation. From the onset, most of the police have said that they are not in position to arrest the people who did that because those people are from the SLDF.

    My sister has been trying to push the investigations and keep the case going, but they have told her that she had to leave the case. She is constantly receiving text messages and phone calls from the police pressuring her to drop the case. Just in October, she was sent a text message by the Kenyan police which told her to drop the Court case or she'll be a victim. She has also made complaints to the Commissioner of Police about this behaviour of the police through an Advocate who wrote a letter raising her complaint about the Kenyan police's mishandling of our family's case, and because of that she has received even more threats from the Kenyan police to drop the case, so much so that she had to change her phone number but still the threats continue.

    Moreover, we are aware that the Kenyan police are tampering with the witnesses in our family's case. For one, my sister has never provided a statement to the police and she has instead been threatened by the police to drop the case. Furthermore, one of our neighbours in Mount Elgen who had been with my grandfather and father before they were killed had gone and reported the case. but instead he was arrested on false unrelated reasons. When the DCI was investigating, they spoke to our neighbour and took his account, but after that, the neighbour was arrested by the police for charges on false drug charges. Later on this case was dropped as the police had found nothing on the neighbour. The arrest was entirely for the purpose of shutting the neighbour up and now the neighbour no longer wants to talk about what happened to my grandfather and father anymore.

    All of this behaviour of the Kenyan police clearly shows to me and my family that the police is not interested in pursuing the perpetrators in my father and grandfather's deaths because they are from the SLDF and they will not protect us from the SLDF. The police are also highly corrupt and will take bribes from everyone. They are not willing or able to assist me and my family.

    I believe that if the Kenyan police are concerned with threatening [Ms A] instead of protecting her, they too will threaten me if I return to Kenya instead of protecting me. The Kenyan police are part of the problem. They have all along tampered with witnesses in our case by threatening them. Also, the Kenyan police are known for extrajudicial killings. The police network is connected throughout Kenya, so if I were to approach the police in a different part of Kenya, those police will contact the local police in my home area of Mount Elgen and have me sent back there.

    My family members' whereabouts

    As discussed above, my sister [Ms A] moved to Nairobi in 2015, and then moved to Uganda in 2018 after receiving many threats from the SLDF and the Kenyan police.

    My mother [continues] to live in Uganda, where she had been hospitalised in November-December 2017 after being injured in a road accident. I am also in contact with her and I visited twice her in 2017. My father and grandfather were living in Uganda at the time of their deaths in 2016 when they returned to Mount Elgon.

    My brother [also] lives with our mother in Uganda. I have no more family members remaining in Kenya. My uncle [is] now living on the Ugandan side of Mount Elgen. All my family r'!lembers including extended relatives are in Uganda at the moment, other than my aunt and unclehave relocated to [Country 2]. The two cousins I had who were living in Mombasa at the time of my Immigration interview in 2017 no longer live in Kenya: one of them from my mother's side went [overseas] to work, the other one had been in [another country] until recently when he moved to [Country 2] on a [permanent visa]. My [grandmother] [had] since passed away [in] January 2019. I do not have any extended relatives that I know of remaining in Kenya.

    As Kenyans, we can only visit temporarily and we do not have the right to reside permanently in Uganda without successfully seeking asylum. My family members in Uganda are seeking asylum there and are awaiting their case to be finalised. I cannot reside in Uganda with them as I have never lived in Uganda and too would have to seek asylum there and there is no guarantee that my family or I would be granted asylum.

    I also cannot reside in any other part of Kenya because Mount Elgen is my home area and if my home area is not safe for me, no other part of Kenya is safe for me. Like my sister when she was living in Nairobi, I too will be targeted anywhere in Kenya, as I too will push for justice in relation to our father and grandfather's deaths. Furthermore, I do not have any connections in Kenya anymore as I noted above and cannot establish myself anywhere in Kenya even if it were safe for me which it is not. For example, the area of Kenya near the Somali border is very dangerous; I used to have a cousin living there [who] was killed.

    Also, the Kenyan authorities' inability and unwillingness to protect me from being seriously harmed by the SLDF is the same throughout Kenya no matter which part of Kenya I live in. [Ms A] was living in Nairobi and she was found by the SLDF who have consistently threatened her. My parents at one stage considered moving to [a city] but they were found there too. I do not believe I would be safe in Nairobi. I cannot be safe from the SLDF anywhere in Kenya.

    Land-grabbing by the SLDF

    Our family's land at Mount Elgon has been grabbed by the SLDF, in particular by an SLDF member named [Mr B], the defendant named in my family's Court case. Even though my father and grandfather had returned to Mount Elgon in 2016 in relation to the sale of our land, the land was not sold in the end and lawfully it still belongs to my family to this day, even though no one lives there anymore since my father and grandfather died. However, we have received threats not to step in Mount Elgon and that the SLDF will do to us what they did to my father and grandfather.

    We believe that the SLDF are trying to grab our land because my late father was perceived as an outsider to the Mount Elgon region.

    We have obtained a Court order to evict people from our land but the police are not cooperating and have not implemented the court order. I have provided a copy of the order from the [Court] [which] was issued [in] March 2018. We think the police are not enforcing Court order as they should be because from what we know, the police want a share of the land themselves, as they have so stated in the messages they are sending about our family's Court case, and so would instead cooperate with the SLDF in grabbing our land. The Kenyan police are corrupt and receive bribes.

    My friend [Mr C]

    My friends had also received threats from the SLDF, and like me, they were asked to give financial assistance to the SLDF and my friends did not give the money requested. In about April/May 2016, one of my friends named [Mr C] (no relation to the defendant [Mr B] named in my family's Court case in relation to our land, just from the same sub-tribe, as far as I aware) was abducted, and was found badly mutilated some time later, having been murdered while in Mount Elgon as a result of not supporting the SLDF's activities. [Mr C] had also been forced into SLDF recruitment like I had been. I found out about this incident through my late father, as well as from the parents of my friend.

    I believe that the SLDF was behind this. This incident was reported to the Kenyan authorities. I have provided a news report dated 31 May 2018 about [Mr C]'s case and the suspects being arraigned in Court as evidence of the incident. The persons named as suspects in the article were my neighbours in Mount Elgon, who I know are SLDF members and are responsible for hundreds of murders and have been killing innocent people for a long time. I am aware that they are among the perpetrators who killed [Mr C] and also to an extent for grabbing my family's land.

    As far as I am aware, the case did not proceed as the two suspects were released and absconded. There is an arrest warrant for their arrest issued after they failed to attend Court, suggesting that they have indeed absconded. My sister heard about this on the news on the local community radio station and told me about it.

    My mental health

    I confirm that I received counselling in Kenya as a result of the incidents experienced by me and my family, as confirmed by the letter of support [from] Dr [D] from [a] Hospital dated 2011 which I provided with my protection visa application, as well as a more detailed report from [another doctor] dated 10 August 2020.

    Since arriving in Australia, more recently, I have talked to a counsellor at my church [who] is my church elder, named [Mr E]. I found trust in him and he is the one I am having sessions together with, particularly after the deaths of my father and grandfather in 2016. I previously had counselling sessions with [another person] until 2017 when he left them.

    I fear that I too will be threatened by the police and the SLDF like my sister [Ms A], and I remain fearful that I would be killed if I returned to Kenya just like my father and grandfather. I am sure that the SLDF will never stop seeking to harm and even kill me if I returned to Kenya.

1. Provided to the Tribunal dated 19 October 2020 is a statement from ‘[Ms A]’ (the applicant’s sister). The statement indicates the applicant was among individuals who joined the SLDF and absconded after being tortured and mistreated. This affected the applicant and his family emotionally and they lived in fear of being attacked. She indicates that she gained admission to the [university]. She commenced her studies in August 2015.

2. [Ms A] states that her grandfather and father were attacked by militia [in] November 2016 while in Mt Elgon selling land. The houses on the land were burned after they had been looted. As is apparent from other evidence the father and grandfather were murdered. Police responded and up until the present have not taken a statement from any of the family regarding this incident.

3. Following the attack, the mother and brother relocated to Uganda. They have sought protection from the Ugandan government.

4. [Ms A] indicates that efforts to get justice have been hard and frustrated by police. ‘They’ have threatened and informed [Ms A] that she will be another victim. The suspects are known to be members of the SLDF but no arrest has been made to date. There was a loss of crucial evidence. Following threats from police, a complaint letter was written to the ‘IPOA’ to raise these issues. The complaint has been acknowledged but to date they have not ‘reached out’.

5. [Ms A] indicates that ‘all this time’ the SLDF have threatened that she is not welcome back to Mt Elgon and the consequences will be harsh. [Ms A] has received calls since 2016 to stop pushing for prosecution of suspects. This has been consistent and reported to police while studying in Nairobi. These threats are directed towards [Ms A], her family and other family members.

6. The applicant provided various documents to the Department which have been placed on the Department file:

   ·     A chain of emails between the applicant and [Mr C] from 24 July 2015 to 28 July 2015. In these emails, [Mr C] informs the applicant that he has been contacted by [Mr F] requesting support for the SLDF. The applicant states that he has also been contacted, and that both of them have been requested to raise money for the SLDF, which they have refused.

   ·     An email dated 20 August 2015 from the applicant’s father to the applicant, stating that they are in danger and are now in Bungoma. The email states that their house was invaded and the attackers attempted to burn it down, but it was not badly damaged and the applicant’s family managed to escape. The email states that they are going to [another county] and staying there now.

   ·     An email from the applicant’s father dated 17 August 2015 to the applicant, in which he states that the applicant’s friends in Kenya are worried as they have been threatened and forced to join the SLDF. The applicant’s father requests him to stay in Australia and not visit.

   ·     A chain of emails between the applicant and his father from 24 July 2015 to 25 July 2015. The applicant’s father states that the SLDF have been mugging people and stealing from them, that the applicant’s family have received flyers asking them to contribute to the SLDF, and that a young man had been kidnapped and killed by unknown people. The applicant states that he has been contacted by [Mr F] asking for money, and that the SLDF have resumed their activities.

   ·     An email from [Mr F] to the applicant dated 25 July 2015, where [Mr F] signs himself as [role] of the SLDF youth forum. The email states that their community must defend their rights and lands from foreigners, and must fight for what is theirs. It is stated that the applicant’s details were obtained through their brothers in liberation who support them. It is stated that there are a lot of friends in Australia. The email requests the applicant’s physical or financial support, and states that the applicant is obliged to support them since he is a member of the community.

   ·     An email from the applicant to [Mr F] dated 28 July 2015. The applicant states that [Mr F] should engage with the authorities, and that the applicant will not support any non-peaceful activities. It is stated that the applicant is a peace ambassador, and is no longer a member of the defence or forum. The applicant states that he will engage with the government about this and inform them of the SLDF’s activities.

   ·     An email from [Mr F] to the applicant dated 28 July 2015. The email states that [Mr F] is glad to know the applicant’s position, and that it is a pity that the applicant does not support them. The email states that the SLDF will trace the applicant to Australia and that their friends know the applicant. It is stated that the applicant will regret this, and his family will not like it, and that the SLDF are after the applicant’s family and know where they are.

   ·     A copy of a Kenyan death certificate for [my grandfather], stating that he died [in] November 2016 at Mt Elgon due to being shot with [a] [weapon]. There is also a burial permit for [him] dated [November] 2016.

   ·     A Kenyan post-mortem report for [my grandfather], dated [date] November 2016. It is stated that [he] died after being shot [with] [weapon].

   ·     A letter from the Kenyan Interior Ministry addressed to the applicant’s father dated [May] 2016. The letter states that the ministry is aware of numerous complaints from Wananchi and NGOs, and acknowledged the concerns raised by the applicant’s father in regards to his family’s security. It is stated that the ministry cannot guarantee everyone adequate security due to insufficient resources.

   ·     A contract for the sale of land from a [a named person] to the applicant’s father dated [July] 2001, relating to land in Mt Elgon.

   ·     A Kenyan death certificate for the applicant’s father, stating that he died on [date] November 2016 in [Mt Elgon]. There is also a burial permit for the applicant’s father dated [date] November 2016.

   ·     A post-mortem report for his father dated [date] November 2016, stating that the applicant’s father died due to [reason deleted]. It is stated that the applicant’s father had [internal] and external injuries.

   ·     A letter from Dr [D] from [a] Hospital, Kenya, dated 30 August 2011. The letter states that the applicant has been diagnosed with PTSD following events in [Mt Elgon District], Bungoma County. It is stated that he had been seen at the local dispensary and referred for specialised counselling and psychiatric review.

   ·     The applicant’s Kenyan birth certificate and the results of his secondary school certificate.

   ·     A print-out of an article ‘Three suspected remnants of Sabaot Land Defence Force lynched in Mt Elgon’, Nation Media, 25 February 2017, stating that the three youths allegedly killed an elderly man in Mt Elgon, as they wanted to kick him off his land. The three youths were hunted down and stoned by angry villagers. The police stated that there is an investigation and that the youths should have been given to them. It is stated that security personnel have been deployed, that two other suspects are being treated in hospital, and a further 10 youths are being detained at Cheptais Police Station.

7. The following additional documents were provided to the Tribunal:

   ·Letter dated 13 July 2010 from The National Police Service, Directorate of Criminal Investigations, Mt Elgon addressed to [Ms A]. Reference is made to an investigation report that was conducted the day a report was made of an incident that occurred on [date] November 2016. The investigation was concluded on 26 January 2018. It is indicated that after such a series of forensic tests were undertaken it was revealed that those who are responsible were affiliates of the illegal militia SLDF who had been terrorising residents for many years. It is indicated that there was a mysterious loss of forensic data at the government laboratory. It is indicated that the file was sent to [Ms A]’s legal team for perusal.

   ·Internet media report from unnamed source dated 31 May 2018 headed ‘Mt Elgon “gang leaders” remain in police custody’. There is a reference to two individuals who are the main suspects in a spate of criminal activities in Mt Elgon being charged. They were charged with more than 100 counts of murder, rape and robbery with violence. One of the individuals is believed to have formed the gang to help him avenge the burning of his house in January 2017 by residents who had been fed up with his criminal activities. ‘Tens of people’ were killed by the gang. The media report does not identify any names of victims of the accused.

   ·A ‘CAPS-5 Summary Sheet’ for the applicant dated 11 May 2011 indicating answers to a number of psychological diagnostic questions.

   ·A ‘Medical Report’ dated 10 August [2020]. It indicates that the applicant was followed up in the specialised county psychiatry, psychological counselling unit and facility based self-support group therapy for the period ranging from May 2011 through August 2011 for post-traumatic stress disorder following events experienced in the Mt Elgon District. The account involved the SLDF militia who meted violence to residents and security forces.

   The presenting history outlined includes information under the following headings:

   Sexual abuse. There is reference to perpetrators ordering victims to engage in anal intercourse with fellow men resulting in severe physical punishment. [Details deleted]. ‘He’ (presumably the applicant) is indicated to have initially had the inability to engage in gainful social interactions but group therapy and professional management reversed some of the acquired traits. The applicant gave accounts of how adult males would be rounded up and taken into the forest in the dark of night while female family members were raped and turned into periodic sexual partners. The applicant could describe the assailants but did not have prior acquaintance with them. Further detail is provided.

   Psychological torture, with parents, dad murdered. It is indicated that the physical trauma inflicted on the applicant and his family with the killing of his father kept tormenting him over time with recurrent blame on him for failing to protect his father. Group therapy sessions with closer interactions with similar victims of the 2007/08 post-election violence in Rift Valley province offered symptomatic relief for the psychological disturbances the applicant was undergoing.

   Physical torture, abductions and detentions. Reference is made to households in villages owned by perceived political opponents being raided in the middle of the night where males were rounded up, blindfolded and forcibly taken to detention camps located in the forests. Stronger ones were tied to trees, some head down and beaten repeatedly so they could give information on the whereabouts of other escaped family members or political opponents. This led to the deaths of some victims. The few who escaped were found and received a similar fashion of torture including having their ear lobe cut off on one side warning against revealing information to the local authorities and police.

   Conclusions and recommendations. It is indicated that the applicant benefits greatly from specialised interventions with great emphasis on psychotherapy and family psychosocial support. Key action points involve relocation away from the village to gradually raise and avoid evoking traumatising memories with strong intellectual engagements to enhance social reintegration.

   ·University [Course] Deferral Request in relation to [Ms A] indicating that her application to defer her course [has] been approved requiring her to report back in September 2024.

   ·Court document [dated] [March] 2018 in proceedings between [applicant’s grandfather], applicant and [Mr B], Defendant/Respondent. The matter is described as an application for eviction of the occupants of the applicant’s land. There are procedural orders in relation to the matter together with an order that all occupants should vacate the disputed piece of land.

   ·Letter of support dated 20 October 2020 from [Mr E] who indicates that he is a church elder and aspiring pastor who has known the applicant for the last five years. The letter attests to the good character of the applicant. The letter refers to challenges the applicant faced around his family and he has experienced threats to his life and family. Church members have helped him to bear the loss by supporting him emotionally, physically and financially. It is indicated that the applicant has talked about militia in his homeland and the people who want to harm him and his family. This has placed stress on the applicant. The applicant has been encouraged to seek the help of a psychologist if he needs one.

   Independent information

8. The Tribunal made a research request of the Country of Origin Information Services of the Department of Home Affairs asking questions in relation to the Sabaot Land Defence Force (SLDF). The following response dated 8 October 2020 provides the questions and responses:

   1. Please provide a brief background as to the history and activities, particularly harmful activities, of the Sabaot Land Defence Force (SLDF) in Kenya while also identifying the geographical areas of its operations.

   The Sabaot Land Defence Force (SLDF) is a militia group formed by the Soy tribe (a member of the Sabaot ethnic group) in western Kenya (Bungoma County, incorporating the Mount Elgon district) in response to perceived injustice and historical grievances related to land re-distribution, displacements, and forced evictions.

   The SLDF — a militia group — originated in the Mount Elgon district (Bungoma County) of western Kenya during 2005-2006 as a result of long-standing grievances related to land re-distribution, displacements, and forced evictions experienced by one of the tribes (the Soy, also known as the Semek) of the Sabaot ethnic group (see maps below).[1] Violence perpetrated by the SLDF during 2008-2009 was triggered by ‘irregular and flawed land allocations in the context of historical displacements and population growth’.[2]

   [1] 'Militianisation of Resource Conflicts: The Case of Land-Based Conflict in the Mount Elgon Region of Western Kenya', Institute for Security Studies, Robert Romborah Simiyu, 01 October 2008, pp. 1-3, 10, CIS16741

   [2] ‘Masculinity and Intimate Partner Violence in Kenya’, Kennedy Mkutu et al., National Crime Research Centre (Kenya), 1 August 2020, p.6, 20201001163504

   According to Sweden’s Uppsala University’s Conflict Data Program:

   The Sabaot Land Defence Force (SLDF) was a militia created in late 2005 by Wycliffe Kirui Matakwei and became the main actor in the Mount Elgon conflict. Mount Elgon is a mountain and a district in Kenya’s Western Province, inhabited by several ethnic groups. The dominating ethnicity is the Sabaot which account for 60% of the district’s population. The group, which is part of the Kalenjin tribe-family, is divided into two sub-tribes: the Soy (also called the Semek) and the Mosop (also called the Ndorobo). These two sub-tribes stem culturally from one community, but are geographically separated, which led over time to diverging lifestyles resulting from different environmental living conditions. The Mosop have their homelands in the moorland in the northern and higher part of the district and make their living by herding and foraging in the forest, while the Soy settled on the lower slopes in the south of the district and are mainly agro-pastoralists. In numbers, the Mosop account for about 20 % of the Sabaot, while the Soy make up for the remaining 80 %.

   The causes of the Mount Elgon conflict trace back to 1971, when the government started to relocate the Mosop from their homelands in order to protect the moorland, which constitutes a precious water catchment area. Until 2006, three big resettlement plans were implemented (Chepyuk I, II and III). A series of factors such as poor preparation, lack of deeds of ownership and corruption led to dissatisfaction among the Mosop and envy from the Soy. Along with a general ethnicisation of politics and landownership in Kenya, the envy and feeling of neglect by the Soy led to young Soy men starting to defend their land with arms, quickly culminating in the creation of SLDF. Despite the name, SLDF was largely Soy dominated, and its original targets were Mosop and moderate Soy. But quickly, state institutions and the local government were also targeted. By mid-2007, SLDF became the dominant military and political power in Mt. Elgon district, also winning the Mt. Elgon part of the nationwide elections in December 2007. The methods used by SLDF were extremely violent, such as killing of family members of candidates considered to be hostile to SLDF, extortion of taxes from the civilian population, forced recruitment into their army as well as torture, rape and killings of civilians.

   SLDF was internally composed of three wings. First was the military wing which was led by Matakwei despite the fact that he had little previous military training or know how. Second was the spiritual wing headed by Manyiror. The spiritual wing fulfilled a series of important function and was crucial for the inner coherence of SLDF. Third was the political wing, allegedly led by SLDF’s self-proclaimed spokesman John Kanai. The political wing tried to justify SLDF’s actions by for example invoking historical injustices. However, it is noteworthy that SLDF had no clear political program, nor followed a specific political ideology.

   SLDF ceased to exist in the late spring of 2008, after being militarily defeated by the Government. Matakwei himself was shot to death by the military on 16 May 2008. By that time, SLDF is suspected to have killed a total of 600 to 800 people, most of them civilians, and to have tortured thousands. Yet the exact numbers are not known, and estimates vary significantly.[3]

   [3] ‘Sabaot Land Defence Force (SLDF)’, Uppsala Conflict Data Program (Uppsala University, Sweden), undated [accessed 2 October 2020, 20201002134848

   According to a July 2008 Human Rights Watch report:

   The SLDF is an armed group organized and funded by local politicians, although the actual politicians in control have changed over time. The SLDF is very similar in its activities to the majimboist groups that were armed by the state in 1991-92 and 1996-97 to drive out non-Kalenjin groups (mostly Luhya in Mt. Elgon) who were unlikely to vote for the ruling KANU party. This happened in Mt. Elgon, as well as across the Rift Valley and coastal provinces in the elections of 1992 and 1997. The political objectives of the SLDF become clear when one looks at the pattern of attacks, the ethnicity and political affiliation of the victims, and the relationship between the timing of violence and the electoral cycle. Basically, the SLDF, as with many other armed groups in Kenya, has twin purposes, on the one hand land-related objectives, and on the other to further the political aims of certain local leaders.[4]

   [4] '"All the Men Have Gone", war crimes in Kenya's Mt. Elgon conflict', Human Rights Watch, 01 July 2008, p.14, CIS16292

   According to the July 2008 Human Rights Watch report cited above, the SLDF has carried out large scale abuses, atrocities, and violence that ‘amount to war crimes’.[5] The same report elaborates:

   [5] "All the Men Have Gone", war crimes in Kenya's Mt. Elgon conflict', Human Rights Watch, 01 July 2008, p.19, CIS16292

   From 2006 to 2008 the SLDF was in effective control of the whole Mt. Elgon district, according to local leaders. “There was no government in that area,” said a government official in Nairobi. As a retired civil servant who was abducted by the SLDF put it, “The SLDF were like the government but their laws were crazy.” They intimidated the population, raped and stole property at will, collected “taxes”, and administered their version of justice. “They have their own system of justice: pay a fine or be cut [lose an ear],” explained one assistant chief from Mt. Elgon.

   Hundreds of people have been burnt out of their homes by SLDF fighters. Thousands more have fled the area for fear of being caught up in their violence, and the violence of the post-March 2008 crackdown. In July 2007 the Kenya Red Cross estimated that a total of 116,222 people had been displaced in Mt. Elgon and neighboring districts— “this is almost the entire population of Mt. Elgon”. At the end of the year, the IDP Network of Kenya estimated at least 70,000 fresh displacements in Mt. Elgon during 2007, claiming that “actual figures are likely considerably higher.” Later in April 2008, the Kenyan Department of Defence put the total number displaced as a result of SLDF operations at “almost 200,000.”

   The number of people killed by the SLDF has steadily grown. In July 2007 the Kenya Red Cross put the number of dead at 253, with 184 killed as a result of gunshot wounds, cuts, and burns.41 In early April 2008 WKHRW reported it had documented 615 deaths from 2006 up to February 2008.42 Even the local MP, John Serut, was targeted, surviving an assassination attempt when gunmen opened fire at him as he gave a speech outside the District Commissioner’s office in Kapsokwony in May 2007.

   The SLDF not only killed hundreds who were perceived to oppose them or their objectives but they also tortured and maimed inhabitants who broke their code. They forbade drinking alcohol. They demanded “taxes” from all those with a regular income; civil servants, for example paid between 3,000 and 10,000 shillings per month (US$50-150) depending on rank. Some victims spoke of attacks targeted at individuals who had land disputes with other landowners close to the SLDF or who hired the SLDF to intimidate.

   In order to sustain itself the SLDF fed off the local population. Multiple victims and witnesses spoke of random acts of theft and terror committed by SLDF militia. The militia forcefully recruited young boys to join them. In 2006, WKHRW estimated that 650 children of school-going age (under 18) had been forcefully recruited into the SLDF. It described parents having to choose between paying a fee of 10,000 shillings ($150) or surrendering their child.[6]

   [6] "All the Men Have Gone", war crimes in Kenya's Mt. Elgon conflict', Human Rights Watch, 01 July 2008, pp.19-20, CIS16292

   A May 2009 report by a Special Rapporteur of the United Nations Human Rights Council, notes three main reasons for the killings, enforced disappearances, and atrocities committed by the SLDF:

   First, those occupying land desired by the SLDF - especially members of the Ndorobo sub-clan, who most SLDF saw as their “enemy” in land allocations - were chased out or killed. Soy and others who were seen to be benefiting from the land allocations, or who criticized the land reform aims of the SLDF, also became victims.

   Second, as the SLDF increased its control over villages in the Mt Elgon region, anyone living in those areas who failed to follow SLDF rules or orders was punished commonly through having an ear cut off. Residents who refused to “donate” food or pay levies were beaten or killed. The SLDF used “informers” within the villages, and those who were believed to have divulged information to the police were killed. Such SLDF killings could take place anywhere, but typically took place at designated areas in the forests, where the victims’ bodies were often just left on the ground surface, with previous victims.

   Third, some killings were politically motivated. The members of the Mt Elgon District Security and Intelligence Committee (DSIC) acknowledged that the SLDF began and operated with political backing. The SLDF supported the candidacy of Fred Kapondi in the 2007 elections, and for each ward, the SLDF had its favoured candidate, based on that candidate’s support for the land reallocations that the SLDF wanted. Supporters of rival parties, and especially of John Serut, who was running against Kapondi, were targeted by the SLDF.[7]

   [7] ‘Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions – Mission to Kenya’, United Nations Human Rights Council, 26 May 2009, pp.18-19, 20201006103009

   A November 2010 report describes the strategies used by the SLDF to carry out its violent activities:

   The SLDF has employed a number of strategies to achieve its ends, including killings, kidnappings and torture. The SLDF has not only killed persons who they perceived as being opposed to it and its objectives but has also tortured and maimed inhabitants who break its code (by breaking its taboo against the drinking of alcohol, for example). It also attacks individuals who have land disputes with other landowners sympathetic to the SLDF or who hire the SLDF to intimidate. By the close of April 2008, SLDF activities had resulted in 615 deaths and about 66 000 internally displaced persons.

   Contrary to the widely held belief that SLDF rebels lived in the forest, the military assault revealed that not only do they actually live among the local population, but most of them operate from their homes. They assemble only whenever ‘there is a job to be done’ – such as attacking a specific target at a specific time – after which they merge with the civilian population again. This has made the security personnel’s hunt for them in the forest futile. When the SLDF attacks, it organises itself in small groups of 10 to 12 people that make its movements difficult to detect. It is only a small group – mainly the commanders and strategists – that have specific bases and hiding places (such as caves on the forested mountain slopes).[8]

   [8] ‘Marginalisation and the rise of militia groups in Kenya: the Mungiki and the Sabaot Land Defence Force’, in 'Militias, Rebels and Islamist Militants: Human Insecurity and State Crises in Africa', Institute for Security Studies/L'Institut d'Etudes de Sécurité, Wafula Okumu and Augustine Ikelegbe (editors), 01 November 2010, pp.170-171, CIS19729

   Sweden’s Uppsala University’s Conflict Data Program adds that:

   The SLDF's main one-sided activities were directed against the Mosop, but also the families of local politicians considered to be hostile to SLDF were targeted. This strategy allowed SLDF to win the Mount Elgon part of the national elections in December 2007, since many of their candidates could run without opponents.

   While in the initial phase, SLDF could rely on voluntary recruitment and support from the Soy, this support-base faded over time. As a result, the organization started to use forced recruitment, and to collect “taxes”. This led to that SLDF increasingly also used violence against the Soy whose interest they claimed to defend.

   SLDF was known for its brutality, and the organization's atrocities against civilians included the killing of children, organized rape, and different forms of torture. SLDF furthermore used to mark civilians who did not fully comply with them by chopping off one ear.

   SLDF first became active as a one-sided actor in UCDP data in 2007, when the one-sided violence resulted in at least 25 civilian deaths. The threshold was reached on 31 December that year when the group killed 22 civilians in the village of Kimama.[9]

   [9] ‘SLDF – Civilians’, Uppsala Conflict Data Program (Uppsala University, Sweden), undated [accessed 2 October 2020, 20201002135214

   2. Please indicate the current status and activities of the Sabaot Land Defence Force (SLDF), including information on the geographical areas of its operations.

   COISS has been unable to locate recent information for this question. Country information located shows that parts of the Sabaot Land Defence Force (SLDF) have emerged as an organised criminal gang that is active in western Kenya’s Bungoma County and also in the capital, Nairobi.

   As mentioned in the reply to Question 1, following the death of the SLDF’s leader, Wycliffe Matwakei Komol, at the hands of the Kenyan army in May 2008, and arrests of SLDF’s leaders and members, the SLDF was officially vanquished. However, according to a May 2014 article:

   It is disheartening to hear the dreaded, but annihilated Sabaot Land Defence Forces (SLDF) could be regrouping in Mt Elgon County.

   Today, residents, provincial administrators and security officers fear that the killer outfit is gradually regrouping due to several factors. The most prominent is the unresolved land disputes. Majority of residents have been left without farming land. There are also claims that SLDF remnants have taken over Chepkube forest and are exploiting the shamba system, to produce food to sustain themselves. Another fact is the growing number of vengeful people after the violent attacks and the military action. There are people who feel strongly aggrieved and would want to revenge either death of relatives, loss of land or permanent injuries. Proper reconciliation was never done after hostilities cooled down. On the other hand, SDLF remnants feel ostracised since they were not properly integrated back into the society. There are also claims some politicians are arming the gang in preparation for the 2017 elections.[10]

   [10] ‘Editorial: Nip in the bud any bid to revive killer Sabaot Land Defence Forces’, The Standard (Kenya), 31 May 2014, 20201002121250

   According to media articles from 2018 and 2019, following the acquittal and completion of jail terms of several SLDF members, criminal gang activities returned to Mount Elgon.[11] A March 2018 local media article notes that in the wake of sporadic attacks carried out by criminal gang activities in Mount Elgon that left several people dead and many injured, the government imposed a three-month curfew and ‘mounted a major operation to wipe the killer gangs, believed to be remnants of the dreaded Sabaot Land Defence Forces (SLDF)’.[12] The police put a bounty on the key suspect who along with his brother were SLDF fighters.[13]

   [11] ‘Man killed, three raped, SLDF ex-commander short dead in Mt Elgon’, The Star (Kenya), 23 February 2018, 20201002120956

   [12] ‘Land, leadership and jobs discrimination hallmark of Mt Elgon insecurity’, The Standard (Kenya), 30 March 2018, 20201002120530

   [13] ‘Police put bounty on key suspect in Mt Elgon violence’, Daily Nation (Kenya), 7 March 2018, 20201002120250

   A March 2018 report by Kenya’s National Cohesion and Integration Commission notes that ‘militias and inter-ethnic tensions were increasing in the preparations for the 2017 General elections in most parts of the country’.[14] The same 2018 report further notes that:

   [14] ‘The Impact of Organized Gangs on Social Cohesion in Kenya: Policy Options’, National Cohesion and Integration Commission Kenya, 28 March 2018, p.2, 20201002115955

   A total of 116 new organized gangs that have participated in political violence were identified in the 15 counties alone, despite the Interior Ministry’s 2016 ban of about 90 organized criminal gangs nationally. This points to a rapid proliferation of new organised gangs. Moreover, some of the new groups are reincarnations of previously banned gangs.

   […]

   There is an indication of linkages between the long-existing gangs and the new ones. One link factor is that some of the members of the old gangs are the organizers and mobilizers of some of the new gangs.

   […]

   A part of the SLDF has also adopted a new name, the 40 brothers.

   […]

   The named founder of the 40 Brothers is said to have formerly been a member of the SLDF.[15]

   [15] ‘The Impact of Organized Gangs on Social Cohesion in Kenya: Policy Options’, National Cohesion and Integration Commission Kenya, 28 March 2018, pp.2-3, 20201002115955

   According to a May 2018 local media article, Kenya’s President, Uhuru Kenyatta, submitted a report to the parliament during his State of the Nation address, indicating that:

   …criminal gangs such as Wakali Wao, Wakali Kwanza, the Marine and China Boys and Sabaot Land Defence Forces (SLDF) still engage in extortions, muggings, control of bus termini and drug peddling in Nairobi.[16]

   [16] ‘Four killed in terror attack as Uhuru report reveals major threats’, The Standard (Kenya), 5 May 2018, 20201002115649

   Another May 2018 local media article while citing President Kenyatta’s report notes that ‘remnants of the Sabaot land Defense Forces (SLDF) showed a slight re-emergence’ in Bungoma County (see map below).[17]

   [17] ‘Uhuru: Rivals used gangs in 2017 polls’, The Star (Kenya), 5 May 2018, 20201002115407; Bungoma is a town in the Bungoma County of Kenya to which the Mount Elgon District was merged in 2010 and is located in western Kenya. The map of the Bungoma County is from ‘Kwale and Bungoma County Crime and Violence Surveys’, National Crime Research Centre (Kenya), 20 May 2018, p.45, 20201006130431

   3. Please provide current information about the extent of harm inflicted towards members/supporters of the Sabaot Land Defence Force (SLDF) by the Kenyan authorities and its impact on civilians more generally.

   The Kenyan authorities’ joint military-police operation against the Sabaot Land Defence Force (SLDF) resulted in the torture and extrajudicial killings of not only SLDF members but also civilians.

   According to the May 2009 UN Special Rapporteur’s report referred to in the reply to Question 1 above, the Kenyan government took little action in the early stage of SLDF’s atrocities and ‘local police all too often looked the other way in exchange for payments from the SLDF’.[18] During the provincial government’s operation against the SLDF (called Tafuta Amani or ‘Seeking Peace’), civilians were caught up between the police and the SLDF and villages were attacked by both sides.[19]

   [18] ‘Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions – Mission to Kenya’, United Nations Human Rights Council, 26 May 2009, p.19, 20201006103009

   [19] ‘Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions – Mission to Kenya’, United Nations Human Rights Council, 26 May 2009, p.20, 20201006103009

   The Kenyan government’s joint military-police operation launched on 10 March 2008 against the SLDF resulted in the torture and extrajudicial killings of many people, based on the estimates of ‘a wide range of credible observers’, according to the 2009 UN Special Rapporteur’s report.[20]

   [20] ‘Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions – Mission to Kenya’, United Nations Human Rights Council, 26 May 2009, p.21, 20201006103009

   A June 2008 media article notes that the Kenyan authorities while fighting the SLDF also targeted civilians:

   Medecins Sans Frontieres (MSF) said an offensive against rebels in the remote Mount Elgon region that began in March had been accompanied by a steep rise in violence against civilians already traumatised by months of fighting.

   "In particular, indiscriminate violence is being used against local men, including systematic torture and extra-judicial killings, which has reinforced their fear and terror," it said in a report.

   "MSF's medical teams in Mount Elgon have witnessed and treated the injuries," it added.

   Local activists have also accused soldiers of torturing thousands of people as they hunt the illegal Sabaot Defence Land Force (SDLF) in caves, forests and hamlets across the long-troubled area bordering Uganda.[21]

   [21] ‘Kenya army accused of killings, torture in Mt Elgon’, Reuters, 17 June 2008, 20201001145415

   According to the November 2010 report cited above, the Kenyan authorities — after initially hesitating to intervene — took ‘a more serious stance’ in the wake of SLDF’s growing strength, and ‘deployed the police, the General Service Unit, and the Anti-Stock Theft Unit’.[22] The report further elaborates:

   [22] ‘Marginalisation and the rise of militia groups in Kenya: the Mungiki and the Sabaot Land Defence Force’, in 'Militias, Rebels and Islamist Militants: Human Insecurity and State Crises in Africa', Institute for Security Studies/L'Institut d'Etudes de Sécurité, Wafula Okumu and Augustine Ikelegbe (editors), 01 November 2010, p.172, CIS19729

   The government was initially reluctant to tackle the SLDF menace as it considered the group to be simply a rag-tag unit that would cease to exist with time. It was in 2007, when the group acquired more power, that the government took a more serious stance and deployed the police, the General Service Unit and the Anti Stock-Theft Unit against the SLDF. However, these operations were sporadic and not sustained, and hence failed to eliminate the group. The army first became involved in July 2007, but the military presence was at a low level. The initial security response failed to contain the rapidly evolving armed group as it wreaked havoc in Mount Elgon and parts of Trans-Nzoia district.

   Furthermore, during one police operation in the middle of 2007 at the Kabero, Kabkwes and Bukweno locations, 1 877 houses were burnt down and property of an undisclosed value was destroyed as a result of the operation. The police officers were also accused of being involved in arbitrary killings.

   After repeated attempts to contain the group failed, the government acknowledged that the militia was bigger and better organised than it realised and then deployed the Kenya army in a joint operation with the police. It was codenamed Operation Okoa Maisha (Operation Save Lives) and was launched in March 2008, after the December 2007 election, in a bid to regain state control of the Mount Elgon district. However, once again the military was accused of gross human rights abuses against not only the SLDF, but mostly the locals. The accusations included maiming and torture, raping of women and young girls, indiscriminate burning of houses and food stores, and killing of suspected SLDF adherents without recourse to judicial processes.

   Because of this operation the activities of the SLDF militia almost ground to a halt, as most of its leaders had either been arrested or killed while a majority of its members had either been killed or detained. Human rights groups such as the KNCHR and Human Rights Watch put the number of people killed during the operation at about 2 000. By June 2008, some 758 SLDF suspects had been arraigned in court on charges of promoting warlike activities.[23]

   According to a November 2019 media article, 18 women whose ‘husbands were tortured, killed’ and disappeared during the government-sanctioned military operation (Operation Okoa Maisha or ‘Save Lives’) against the SLDF in 2008 have sued the government for compensation.[24]

   4. Please provide information that would corroborate claims that the Sabaot Land Defence Force (SLDF) continues to target people particularly its former recruits for money and harm.

   COISS has been able to locate limited recent information for this question. The Sabaot Land Defence Force (SLDF) upon emerging as an organised criminal gang after its defeat at the hands of Kenya’s security forces has been engaged in extortion and other criminal activities.

   According to an older (October 2012) report by Kenya’s National Crime Research Centre, the SLDF is one of the criminal gangs operating in the Mount Elgon region in western Kenya whose criminal activities include ‘murder, extortions, and evictions’.[25] The same report also notes a common prevalence in the practice of extortion by almost all organised criminal gangs operating in Kenya.[26]

   A June 2017 report on kidnapping crimes by Kenya’s National Crime Research Centre notes that the SLDF is one of the criminal gangs involved with kidnappings and ‘the youths could be motivated to obtain money by extortion and ransom payment in kidnappings activities’.[27]

   As noted in the reply to Question 2, according to a May 2018 media article, Kenya’s president in his address to the parliament, had observed that SLDF along with other criminal gangs were involved in extortions and other criminal activities.[28]

   [23] ‘Marginalisation and the rise of militia groups in Kenya: the Mungiki and the Sabaot Land Defence Force’, in 'Militias, Rebels and Islamist Militants: Human Insecurity and State Crises in Africa', Institute for Security Studies/L'Institut d'Etudes de Sécurité, Wafula Okumu and Augustine Ikelegbe (editors), 01 November 2010, p.172, CIS19729

   [24] ‘Widows seek compensation for husbands tortured’, killed by KDF’, The Star (Kenya), 13 November 2019, 20201002115034

   [25] ‘A Study of Organized Criminal Gangs in Kenya’, National Crime Research Centre (Kenya), 1 October 2012, p.35, 20201006121234

   [26] ‘A Study of Organized Criminal Gangs in Kenya’, National Crime Research Centre (Kenya), 1 October 2012, p.35, 20201006121234

   [27] ‘Emerging Crimes: The Case of Kidnappings in Kenya’, National Crime Research Centre (Kenya), 21 June 2017, pp. 35, 42, 96, 20201006123541

   [28] ‘Four killed in terror attack as Uhuru report reveals major threats’, The Standard (Kenya), 5 May 2018, 20201002115649

   Submissions

1. The applicant’s migration agent provided a submission to the Tribunal dated 3 November 2020, in advance of the hearing. Pertinent contents of this submission follow.

2. Submissions are made in relation to adverse credibility issues as determined by the delegate, with submissions countering those findings. The Tribunal considers the matter de novo. No adverse credibility or other findings have been made by the Tribunal based on adverse findings by the delegate.

3. Submissions are made that the applicant is being targeted by the SLDF for earlier absconding in 2008 from the SLDF’s forced training. Submissions are made that forced land grabbing of the applicant’s family’s land in Mt Elgon can amount to persecution.

4. It is submitted that the applicant is not claiming to have been involved in activities of interest to Kenyan authorities or have held a substantial profile of interest to Kenyan authorities.

5. It is submitted that in about early 2014 the SLDF started to re-emerge and so the applicant decided to go abroad and study.

6. It is submitted that the applicant’s claims for protection are for political reasons and not on the basis of his ethnicity or religion. However, it is submitted that cumulatively, the applicant’s previous experiences with the SLDF and being known to them, together with him being a Christian and from the Nandi tribe give him a heightened profile that renders him uniquely vulnerable to being targeted by the SLDF and seriously harmed.

7. Detailed country information is provided in relation to the SLDF, its defeat in 2008 and its various emergences since. It is submitted that there have been varying levels of activity over time. The Tribunal notes that the independent information cited indicates the operation of the SLDF in the Mt Elgon region.

8. It is submitted that Kenya would be unable or willing to protect the applicant if he returned and therefore protection measures are not available. Detailed submissions are made in relation to effective protection with country information being referred to.

9. Submissions are made with respect to the real chance of persecution being in all areas of Kenya. It is submitted that the SLDF will be able to find the applicant in all areas of Kenya. This includes because the applicant’s sister [Ms A] continuously received threats from the SLDF when in Nairobi between 2015 and 2018. Reference is made to a judicial decision which indicates it is not reasonable to expect applicants to accept their dispossession of land and live differently.

10. In terms of relocation and the complementary protection criteria it is further submitted that it would not be reasonable for the applicant to relocate within Kenya. It is claimed that the difficulties faced by [Ms A] in Nairobi show that it is not reasonable to expect the applicant to relocate.

11. It is submitted that the applicant no longer has family links in Nairobi or in the rest of Kenya and the applicant has never lived in any other part of Kenya outside Mt Elgon and [Town 1]. It is submitted that the only part of Kenya that the applicant would return to is Mt Elgon where his family land is located. It is submitted that without family or tribal links the applicant will not be able to establish himself elsewhere.

12. Submissions are made that independent information establishes that Kenya is economically destitute only exacerbated by the COVID-19 pandemic. Reference is made to unemployment and underemployment being extremely high and high numbers living in poverty in Kenya.

13. Provided after the hearing on behalf of the applicant was a submission and further documents. The submission addressed credibility issues raised at the first hearing. Documents included documents that have been requested at the first hearing. Relevant submissions and documents are referred to below.

    Hearing, credibility, findings, and assessment

14. 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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169–70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.

15. In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191] where it was said that ‘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 has sought to adopt the liberal approach outlined in these cases.

16. The Tribunal is satisfied that the applicant is a citizen of Kenya and accordingly his claims will be assessed against Kenya.

17. The applicant gave evidence in the hearing of the circumstances of his being recruited into training for the SLDF for three weeks when he was [age] years old. The applicant in the hearing indicated that he voluntarily went to an information session for the SLDF and then initially gave evidence that they pressured the applicant to attend the training because he had undertaken an oath in the information session.

18. The Tribunal noted to the applicant there was an inconsistency between recent claims of the applicant being forced into SLDF training and with his evidence in the interview that he had willingly participated in the training, albeit that he was young and did not know what he was doing.

19. In the exploration of this issue in the Tribunal hearing, the applicant eventually indicated that he went into the training willingly, at least initially. However, after witnessing and experiencing what the training entailed he became resistant to continuing.

20. The applicant gave believable and consistent evidence with past claims as to harm suffered during training, including being beaten because he would not reveal information about other trainees who had absconded.

21. The applicant also hesitantly and emotionally gave evidence as to sexual abuse suffered as part of the training. The Tribunal was convinced that the applicant had suffered such abuse, as corroborated in the psychological report having been recently provided to the Tribunal.

22. Considering all of the evidence, the Tribunal is satisfied that the applicant engaged in a three-week period of training for the SLDF in 2007/2008 when he was [age] years old, and that he eventually absconded from the training after three weeks. The Tribunal is satisfied that the applicant suffered mistreatment during his training, including sexual mistreatment, and that he witnessed violent acts. This is all consistent with independent evidence concerning the formation and operation of the SLDF in Mt Elgon.

23. The Tribunal is also satisfied from the evidence, including independent evidence provided by the applicant, that his father and grandfather were murdered when they returned to the family property in Eldoret to sell it in November 2016.

24. The Tribunal acknowledges the direct and indirect trauma caused to the applicant as a result of both events.

25. In the first hearing, the Tribunal expressed to the applicant a number of credibility concerns with the applicant’s claims as to contact with the SLDF after this, both in Kenya and in Australia. This includes concerns over the genuineness and authenticity of phone, text message and email evidence provided by the applicant seeking to corroborate contact and threats.

26. The Tribunal also has some other credibility concerns and concerns that the applicant meets relevant criteria for protection.

27. These credibility concerns included the following:

    ·inconsistent evidence as to contact from the SLDF after the applicant left SLDF training in 2008 and before he left for Australia in June 2014.

    ·the plausibility and potentially contrived nature of evidence that the applicant received multiple unanswered phone calls from Kenya from an individual from the SLDF who in the initial answered call threatened the applicant.

    ·concerns that independent evidence concerning the re-emergence of the SLDF does not demonstrate it is of a scope or scale that would result in tracking down former minor trainees in a foreign country.

    ·concerns at the potentially contrived nature of the emails in 2015 between the applicant and an individual claimed to be from the SLDF.

    ·some inconsistencies in evidence as to from when the applicant’s sister [Ms A] in Nairobi started to receive threatening communications.

    ·no evidence having been provided of the murder of [Mr C] who it is also claimed, like the applicant, was contacted to provide support to the SLDF and threatened if he did not do so.

    ·some concern in terms of police making threats to [Ms A] in relation to investigations into the death of her father and grandfather in light of evidence of police engagement in the investigation of the case and identifying the SLDF as being responsible.

    ·given evidence that [Ms A] resided in Nairobi from 2015 to 2018 without ever being physically approached and threatened or harmed (as opposed to receiving threatening emails, texts or phone calls), that could well demonstrate that the applicant would be safe in Nairobi and therefore could relocate there from his home area.

28. A number of these credibility concerns cumulatively considered cause the Tribunal scepticism as to the applicant’s claims of he and his sister [Ms A] in more recent years being frequently contacted by individuals from the SLDF in Kenya who have a desire to harm and as to other claimed circumstances. As a result, the Tribunal asked for further corroborating documents. These included [Ms A]’s mobile phone call logs which would confirm evidence that she too, as claimed, had been receiving multiple unanswered phone calls from the same telephone number of the individual from Kenya who was calling the applicant. The Tribunal also asked for documentation that would corroborate the death and murder of [Mr C]. It was noted that the applicant indicated that he was in contact with [Mr C]’s parents and on this basis corroborative evidence could be obtained by his family.

29. The submission provided following the hearing dealt comprehensively with adverse credibility issues put in the first hearing. Further, call logs provided (as claimed from [Ms A]’s mobile phone) showed multiple unanswered calls over many months, including many from the same telephone number from which the applicant had received multiple calls. Documents were provided concerning the death of [Mr C]. Those documents indicate that he died as a result of [reason deleted].

30. Although it being a finely balanced decision, the Tribunal feels it must give the applicant the benefit of the doubt and is satisfied that the multiple attempts at contact have been sought with the applicant in Australia by an individual or individuals associated with the SLDF requesting his support, and seeking to intimidate the applicant through multiple phone calls after the support was not given. The Tribunal is satisfied that the emails received in 2015 were from an individual associated with the SLDF as were multiple subsequent phone calls.

31. The Tribunal is also satisfied from the evidence that the applicant’s family land in Mt Elgon has been illegally occupied by a former neighbour, who is connected with the SLDF. The Tribunal accepts evidence by the police of the involvement of the SLDF in the murders of the applicant’s father and grandfather.

32. The Tribunal is satisfied that the applicant faces a real chance of serious harm in his home area, of Mt Elgon. This is the area where the SLDF has operated. The Tribunal considers that the risk in this area arises because of the applicant’s previous involvement in SLDF training and his absconding from training and the applicant’s home area being a centre of SLDF activity including in its re-emerged forms.

33. The real risk of serious harm to the applicant is compounded by the fact that, if the applicant returned to Mt Elgon he would wish, the Tribunal accepts, to take steps to recover the family land which has been illegally occupied. The Tribunal considers there is a real chance of serious harm to the applicant as a result of such actions. The murder of the applicant’s father and grandfather when they returned to sell the land is illustrative of the risk.

34. The Tribunal considers the risk to the applicant in Mt Elgon arises as a cumulative impact of the applicant previously absconding from SLDF training and the occupation of the family land. The Tribunal is satisfied there is a requisite risk to the applicant in Mt Elgon even if it were not the case that the applicant has in Australia been contacted and intimidated by the SLDF.

35. In order for the applicant to meet the refugee criterion, it is necessary that the requisite risk extend to all parts of Kenya.

36. As indicated, the Tribunal is prepared to accept that the applicant has been the subject of multiple communication attempts and some threats while in Australia by individuals associated with the SLDF. The nature and frequency of the contact demonstrates to the Tribunal that there is a not insignificant targeting of him by elements associated with the SLDF. This results in the Tribunal finding that the applicant is at risk wherever he may reside in Kenya given the nature of the concerted effort. Although [Ms A] did not suffer any direct physical threats or harm during the three years she resided in Nairobi from 2015, the Tribunal does accept that she too has been the subject of multiple attempts at telephone contact by the same SLDF individual who has sought to contact the applicant in Australia. All of this results in the Tribunal not discounting the real chance of harm to the applicant from the SLDF wherever he resides in Kenya.

37. The Tribunal considers that the real risk of serious harm would be for the reason of the applicant’s political opinion, namely not being supportive of the operation or beliefs of the SLDF. The Tribunal considers this reason would be the essential and significant reason for the harm. The Tribunal considers that the persecution would involve systematic and discriminatory conduct.

38. In terms of effective protection measures, extensive submissions have been made on behalf of the applicant that the justice system in Kenya is inadequate and would not provide effective protection. The Tribunal is satisfied of this.

39. The Tribunal is satisfied that the applicant does not have the right to enter and reside in any third country.

40. In summary, the Tribunal is satisfied that the applicant has a well-founded fear of persecution everywhere in Kenya for a reason set out in s.5J(1) of the Act.

41. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    DECISION

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

    David McCulloch
    Member

    
    

    ATTACHMENT – Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country, in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …