1712169 (Refugee)

The Administrative Appeals Tribunal considered the case of an applicant for a protection visa who arrived in Australia in June 2014. The applicant, a Christian of Nandi ethnicity from Kenya, applied for the visa in September 2015, claiming he feared returning to Kenya due to death threats and past torture from an unlawful group known as SLDF, which he had been forced to join. The applicant alleged that SLDF considered him a traitor for no longer being a member and refusing to advance their agenda or fund their activities, and that the group had attacked his family, killed acquaintances, and abducted a close friend.

The primary legal issue before the Tribunal was the credibility of the applicant and whether, based on his accepted claims, he met the criteria for protection under the Migration Act 1958. Specifically, the Tribunal had to determine if the applicant was a refugee within the meaning of section 36(2)(a) of the Act, which involves a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal also considered the complementary protection criterion under section 36(2)(aa), which applies if there are substantial grounds for believing that removal from Australia would result in a real risk of significant harm.

The Tribunal noted that it had taken into account relevant guidelines and country information, although no current DFAT Country Information Report for Kenya was available. After considering the applicant's claims and evidence, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal was satisfied that the applicant met the criteria for protection under section 36(2)(a) of the Migration Act.