1712440 (Refugee)

1712440 (Refugee) [2020] AATA 5081 (9 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1712440
COUNTRY OF REFERENCE:                   Kenya
MEMBER:David McCulloch
DATE:9 November 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 November 2020 at 4:31pm
CATCHWORDS
REFUGEE – protection visa – Kenya – political opinion – supported and campaigned for the Orange Democratic Movement (ODM) – involvement in a human rights NGO – International Criminal Court (ICC) proceedings against Kenyatta and Ruto – perceived as a witness to ICC proceedings – credibility concerns – inconsistent evidence – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (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

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).
The applicant, who claims to be a citizen of Kenya, applied for the visa on 25 May 2015. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 3 November 2020 at 9.30am. The applicant was represented in relation to the review by his registered migration agent. The applicant communicated in English.
CRITERIA FOR A PROTECTION VISA
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.
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.
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).
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.
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
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
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 decision under review should be affirmed.
The applicant arrived in Australia [in] November 2013 as the holder of a [student] visa, which was valid until 15 March 2014. The applicant was granted a [bridging] visa on 13 May 2015, which was valid until 20 May 2015. The applicant was granted a further bridging visa on 20 May 2015, which was valid until 25 May 2015. The applicant applied for protection on 25 May 2015.
The following information is apparent from the application for protection forms. The applicant was born on [date] in [County 1], Kenya. The applicant is a Christian and does not list his ethnicity. The applicant speaks, reads, and writes English, Kiswahili, and Nandi. The applicant has never married nor been in a de facto relationship. The applicant’s father is deceased, and his mother, [sisters], and [brothers] reside in Kenya. The applicant phones his mother twice a month. The applicant lived at one address in [City 1], Kenya from birth until May 2008. The applicant then lived in a different address in [City 1] from May 2008 until December 2008. The applicant lists no other address prior to arriving in Australia in 2013.
The applicant attended primary and secondary school from January 1991, graduating from [a secondary school], Kenya in December 2004. The applicant studied a Diploma in [Subject 1] at [Institute 1], Kenya from January 2004 until December 2007. The applicant studied an unspecified short course at [Institute 2], Kenya from May 2008 until December 2008. The applicant worked as a [Occupation 1] for [Employer 1], [City 1] from January 2009 until November 2010. The applicant then worked in [Occupation 2] for [Employer 2], Nairobi from December 2010 until December 2012.
In the application forms, the applicant states that he left Kenya to study in Australia in a safe environment. The applicant states that there were rumours and accusations of him being a witness for the International Criminal Court (ICC) in Kenya in regards to electoral corruption. The applicant claims that it was unsafe for him to stay and had to remove himself. The applicant claims that the 2007 and 2013 elections caused a lot of problems and violence due to rigging and corruption. The ICC became involved and it was very risky for witnesses who gave evidence, and candidates likely to give evidence. The applicant claims that there is a chance of torture and death if he returns, as well as sabotage of his future studies and career. The applicant cannot relocate as his family is from [City 1], which is his tribal land, and the corruption and harm he faces are nationwide. The applicant claims that he fears that there is a likely chance he will be harmed, tortured, and threatened by politicians’ group members. The applicant states that it is hard to have faith in the police, and that there are many instances of them being paid money and lots of corruption.
The applicant provided a written statement setting out his claims for protection as follows (not corrected for spelling or grammar):
I was born in [County 1] in the Rift Valley Province in Kenya in [year].I am the first born in a family of [number] children.
I attended [a primary school] in my home village of [Village 1] from 1991 to 2000. From 2001 - 2004 I attended [a secondary school] in [City 1].
From 2005 to 2007, I attended [Institute 1] for a diploma in [Subject 1].
From May 2008 - December 2008, I completed a certificate in [Subject 2] at [Institute 2] in [City 1].
From February 2009 - November 2010, I worked for [Employer 1] in [City] as [Occupation 1].
From December 2010 - December 2012,' I worked for [Employer 2] in Nairobi
The reason why I am seeking refugee protection in Australia.
I came to Australia in November 2013 on a student visa. I was enrolled for a diploma course in [Subject 3] at [a] TAFE. I came to Australia as a student but the main reason as that brought me here was to escape the brutal ethnic conflict in the Rift Valley Province between my Kalenjin community and the Kikuyu community. In 2007 there was an election in Kenya that was hotly contested between the ruling party called the Party of national Unity (PNU) and the main opposition party called Orange Democratic Movement (ODM). During this election I was [age] years old and was politically active. I supported ODM and as part of the youth movement in the province I campaigned for ODM in the North Rift Valley region.
The election was rigged in favour of the ruling party and this triggered brutal inter-tribal conflict between the Kalenjins and Kikuyus because the two communities supported different parties. Although I did not participate in the violence I was one of the Kalenjin youths who were arrested and accused of taking an oath to drive the Kikuyu community out of the Rift Valley Province. I was arrested in January and detained without trial at the [City 1] Police Station. Together with other Kalenjin youths I was released in February 2008 after the government and the opposition agreed to form a coalition government.
After the ordeal of the inter-tribal conflict in my province which caused the deaths of about 2000 Kenyans and the displacement of thousands into camps for the internally displaced persons, I tried to gather my life and joint a [Subject 2] college. During this time I joined a joined [Organisation 1] in [City 1]. I joined this group so that I could promote peace in our province and also work with communities that were made homeless during the post-election violence in Kenya. Our organisation worked with other NGO's from within and outside the country.
In 2013, there was another election in Kenya that was won by the Jubilee alliance. This victory led to Uhuru Kenyatta becoming the President and William Rot [sic] as the Deputy President despite the fact that both of them faced charges of crimes against humanity and ethnic cleansing at the International Criminal Court (ICC) at the Hague.
As soon as Kenyatta and Ruto assumed office they and their supporters became hostile towards NGOs because they accused them of collaborating with the opposition and ICC prosecutors to implicate them in the post-election violence. Our organisation was targeted and we were accused as being agents of the ICC. My family asked me to quit the human rights organisation because they said it was dangerous. I was even summoned by our local area chief and was accused giving misleading information to the ICC investigators, which could lead to the conviction of Kenyatta and Ruto at the ICC.
It was at this time that people who were suspected as being associated with human rights organisations or being witnesses to the post-election violence were intimidated, killed and even made to disappear without a trace. Recently a very close friend of mine called [Mr A] who was on the ICC witness list was kidnapped by government agents who then tortured, killed and dumped his body in a national park where it was hoped wild animals would eat his remains.
When it became really dangerous to work with human rights groups in Kenya or even being suspected as having had contacts with foreign NGOs my family decided that I should leave the country in order to save my life. I came to Australia as a student because it was the only way that could enable me to leave the country without arousing any suspicions.
I arrived in Australia as a student in November 2013 and tried as much as possible to live as a student because I feared if I said I was seeking asylum I would be deported back to Kenya where I would most likely be killed by the government. I did not put my protection visa claim as soon as I arrived there was a very passionate anti-refugee political debate where all refugees who arrived in Australia were to be sent back to their or taken to Nauru and Papua New Guinea.
The above is my account of why I came to seek protection in Australia. I fear that if I am returned back to Kenya while Kenyatta and Ruto are in power I would be killed by government agents.
The Tribunal notes the following evidence given by the applicant in the interview with the delegate which took place on 12 May 2015.
The applicant gave evidence of his involvement in the 2007 election campaign in Kenya. The applicant indicated that he campaigned for the opposition party, the Orange Democratic Movement (ODM). The applicant indicated that he would go from suburb to suburb visiting houses and encouraging people to vote for the party. When the applicant was asked whether he experienced any issues doing this, he indicated that sometimes people might not receive him and give him the time to speak having supported other parties. The applicant indicated that when he did not get a good reception, he would go to a different place. When the applicant was asked if there are any other issues, he indicated that they were not. The applicant was asked whether he was targeted for any other reason and he said that he was not. The applicant was asked whether he had experienced any other issues in his home country towards himself and he said that he had not.
In relation to the 2013 Kenyan election, the applicant indicated that he was not involved because his time was spent applying to come to Australia. The applicant indicated that he did not experience any issues in the 2013 election.
The applicant indicated that those who were elected in the 2013 election were subject to charges in the ICC involving non-government organisations (NGOs). The applicant was asked if this had any effect on him and he said that it did not but indicated that he had a friend who was suspected of giving information to the ICC and thought that the NGO was going to put forward the name to give evidence. The applicant indicated that he was not approached in relation to this.
However, the applicant indicated that because he had applied to come to Australia as a student they might be thinking he was involved or that he was running away.
The applicant indicated that he had ‘not much’ involvement in any NGO and that he had never been employed by an NGO. He indicated that he never needed to seek the assistance of an NGO in Kenya.
The applicant indicated that he came to Australia thinking that things would get better in Kenya and hoping that he could return. However the applicant indicated that when his visa expired there may have been rumours that he was involved in an NGO and that his name would be given to current leaders. The applicant was concerned because he was close to one of the possible witnesses for the ICC.
The applicant indicated that when he learned that his visa had expired he was to book a ticket back home but when he spoke to people in Kenya he was told that it was unsafe and he applied for protection.
The applicant provided a further statement to the Tribunal on 27 October 2020. The applicant indicates that Kenya is still ruled by Kenyatta and Ruto and that they do not get along with each other. The applicant indicates that he was arrested during the 2007/2008 election and that he was locked up for about one month. The applicant indicated that he came to Australia because he was in danger.
The applicant indicate that even though in April 2016 the ICC ended the trial against Ruto, it is very much known that witness tampering was the main reason why the Court was unable to find evidence against him.
The applicant refers to the potential for violence in the election scheduled for 2022. The applicant indicates that it is not safe for many Kenyans but he feels that it is more dangerous for him. The applicant refers to having been involved in human rights movements as well as directly involved in the 2007/2008 election violence. The applicant indicates that his testimony could be seen as a threat to Ruto.
The applicant provided photographs of five media reports. Those of the reports that have dates indicate that they were published in January 2015. The reports are not complete, and some are partially illegible. The reports refer to witnesses to the ICC being killed and some having recanted their evidence.
Independent information
The 2007 presidential election in Kenya was marked by sporadic violence between opposing factions, which evolved into ethnic violence around Kenya but especially in the Rift Valley following warnings of irregularities.[1] Commissions were established in 2008 to investigate the allegations of election fraud and violence, with the commissions substantiating claims of ballot irregularity which implicated both major parties, ODM and PNU.[2] Another commission investigated the violence, and found that some of the violence had been spontaneous, but that there was evidence of organised and planned violence, along with evidence that political and business elites in Kenya had organised and funded some of the ethnic militias involved; furthermore, there was evidence that state security services had ignored internal reports about the violence and used the chaos as an opportunity to perpetrate other human rights abuses.[3] These reports were given to the government for action, but the government appeared to stall the reports.[4] A copy of the report had been given to the former UN Secretary General Kofi Annan, who had been involved in mediation efforts following the violence, and Annan turned the report over to the ICC in July 2008 following government delays.[5]
[1] Tom Lansford (ed), ‘Kenya’, in Political Handbook of the World 2018-2019 (Sage Publications, 2019) vol 1, 833, 840.
[2] Tom Lansford (ed), ‘Kenya’, in Political Handbook of the World 2018-2019 (Sage Publications, 2019) vol 1, 833, 841.
[3] Tom Lansford (ed), ‘Kenya’, in Political Handbook of the World 2018-2019 (Sage Publications, 2019) vol 1, 833, 841.
[4] Tom Lansford (ed), ‘Kenya’, in Political Handbook of the World 2018-2019 (Sage Publications, 2019) vol 1, 833, 841.
[5] Tom Lansford (ed), ‘Kenya’, in Political Handbook of the World 2018-2019 (Sage Publications, 2019) vol 1, 833, 841.
The ICC began an investigation into the political violence of 2007/2008 in around 2010. The ICC formally indicted four persons on 23 January 2012, including the former cabinet minister William Samoei Arap Ruto and then finance minister and deputy prime minister Uhuru Kenyatta.[6] The indicted claimed that the charges were politically orchestrated to sabotage their bids for the presidency. In March 2013, Kenyatta and Ruto were elected president and deputy president respectively, despite the ICC’s indictments.[7] A succession of witnesses withdrew from the ICC case against Kenyatta in 2013, amongst claims that the government intimidated and pressured witnesses, and the ICC prosecutor asserted that the government had failed to cooperate and in fact interfered with the investigation.[8] Ruto’s trial began on 10 September 2013 and Kenyatta’s was postponed, before he voluntarily appeared before the ICC for a status conference on 8 October 2014.[9] On 5 December 2014, the case against Kenyatta was discontinued following a lack of evidence, given difficulties faced by the prosecution in obtaining information held by Kenyan security and intelligence services.[10] A witness against Ruto was found murdered in January 2015, and the ICC dismissed the charges against Ruto on 5 April 2016, due to a lack of evidence.[11] Although the ICC reserved the possibility of bringing cases against Ruto and Kenyatta should more evidence appear,[12] there has not yet been another case brought.
[6] Tom Lansford (ed), ‘Kenya’, in Political Handbook of the World 2018-2019 (Sage Publications, 2019) vol 1, 833, 841.
[7] Tom Lansford (ed), ‘Kenya’, in Political Handbook of the World 2018-2019 (Sage Publications, 2019) vol 1, 833, 841.
[8] Tom Lansford (ed), ‘Kenya’, in Political Handbook of the World 2018-2019 (Sage Publications, 2019) vol 1, 833, 841–842.
[9] Tom Lansford (ed), ‘Kenya’, in Political Handbook of the World 2018-2019 (Sage Publications, 2019) vol 1, 833, 842.
[10] Frederick Cowell, ‘ICC drops its Kenyatta case, leaving culture of impunity intact’, The Conversation, 6 December 2014, (accessed 2 November 2020).
[11] Tom Lansford (ed), ‘Kenya’, in Political Handbook of the World 2018-2019 (Sage Publications, 2019) vol 1, 833, 842.
[12] International Criminal Court, The Prosecutor v Uhur Muigai Kenyatta ICC-01/09/-02/11 Case Information Sheet, 13 March 2015, (accessed 2 November 2020).
Hearing, credibility, findings and assessment

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.
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.
The Tribunal is satisfied that the applicant is a citizen of Kenya and accordingly his claims will be assessed against Kenya.
The applicant indicated in the hearing that he wished to make a new claim. The applicant indicated that in 2013 his uncle had escaped from the police who had arrested him for stealing a [good] and selling the parts of the [good]. In early 2014, the body of the applicant’s uncle was found. The applicant indicated that it was speculated that police might have killed him. The applicant indicated that this is relevant to the risk to him, because his uncle was also connected with the individual known to the applicant who had been murdered as a result of being a witness to the ICC proceedings.
The applicant also indicated in the hearing that he is at particular risk during the upcoming 2022 elections in Kenya. Both Kenyatta and Ruto are still in power but are in dispute with each other, fanning conflict. The applicant indicated that his profile is such that Ruto will seek to cause harm to the applicant so as not to thwart his political ambitions.
The Tribunal has a number of significant credibility concerns with the applicant’s claims. These follow.
Firstly, the applicant has provided inconsistent evidence of having being detained as a product of his involvement in the 2007 election. This is indicated in the applicant’s original written claims in addition to his written statement provided to the Tribunal.
However, in the comprehensive exploration by the delegate in the interview with the applicant as to issues faced as a product of the 2007 election, the applicant did not indicate that he was arrested. Indeed, the applicant indicated that the only difficulty was that he sometimes was not received well when he was canvassing for the ODM door-to-door. The applicant was asked on at least two occasions if there were any other issues and he said that there were not.
This significant inconsistency was put to the applicant in the hearing. In response, the applicant maintained that it is true that he was detained.
The Tribunal is not satisfied that if this substantive and impactful event were true that it would not have been indicated in the comprehensive exploration by the delegate with the applicant.
Secondly, the applicant has provided inconsistent evidence as to having been involved with an NGO in Kenya. In the applicant’s written claims he indicated that he joined [Organisation 1] in [City 1]. He said that he joined this group so he could promote peace in the province and work with communities that were made homeless. In the Tribunal hearing, the applicant initially indicated that his involvement with the NGO was ‘significant’.
This is inconsistent with the applicant’s evidence in the interview with the delegate that he had ‘not much’ involvement with NGOs.
As put to the applicant in the hearing, the Tribunal considers that this evidence in the interview is directly inconsistent with his written claims that he had joined an NGO and had undertaken substantive work with them. In response the applicant indicated that his involvement with the NGO was not in fact significant, and for a relatively brief period.
The applicant has thus been inconsistent in evidence on this issue not only as between his written claims and in evidence to the delegate but internally consistent in the Tribunal hearing as to whether he was or was not significantly involved in the NGO. The inconsistencies are undermining of the applicant’s credibility.
Thirdly, the applicant has been inconsistent in claims that he was directly accused of being an agent of the ICC. In the applicant’s initial written claims he indicated that this allegation was made against him after the 2013 election. The applicant indicated that he was summoned by the local area chief and accused of giving misleading information to ICC investigators.
In the comprehensive exploration by the delegate in the interview with the applicant as to harm and issues faced by him in Kenya the applicant did not indicate that he was directly accused as a result of interaction with the ICC. All the applicant indicates is that he may be suspected of association with the ICC because he had a friend who was a potential witness.
This inconsistency was put to the applicant in the hearing as inconsistent and undermining of his credibility. In response the applicant indicated that issues with the ICC only occurred after the 2013 election. The Tribunal indicated to the applicant that there was still inconsistent evidence as to the degree of the applicant’s claimed connection to the ICC. The applicant then referred to evidence of the ICC interfering with witnesses.
The Tribunal notes the applicant did not directly address the inconsistency, despite multiple opportunities to do so. The inconsistencies are undermining of the applicant’s credibility.
Fourthly, independent evidence as to the ICC charges against the politicians Kenyatta and Ruto in Kenya mentioned by the applicant indicates that those processes against the politicians have been discontinued, for Kenyatta in December 2014 and Ruto in April 2016. The ICC left open the possibility of further cases being brought should more evidence appear, but this has not occurred.
The Tribunal put to the applicant in the hearing that these facts, including that proceedings have not been brought from 2016 after they were last discontinued could be undermining of the applicant’s claims to be at a risk of harm as a result of a view or suspicion of the applicant being a witness for the ICC or significantly connected with a witness.
This includes in the context of no corroborative evidence such as correspondence with the ICC having been provided or that the applicant has engaged in any way with the ICC.
In response the applicant indicated that Kenyatta and Ruto are still in power and have the ability to interfere with witnesses. The applicant provided no corroborative evidence of any interaction between him and the ICC.
The Tribunal considers that the facts that ICC processes against the politicians have been discontinued, subject to new evidence, and with no evidence of new evidence having been adduced in the last four years, or of the applicant himself having new evidence, are undermining of claims that the applicant is at risk as a result of the ICC process.
Fifthly, the applicant has provided inconsistent evidence as to the significant delay from arriving in Australia in November 2013 until applying for the protection visa in May 2015, including a significant period following the expiration of his substantive visa. The delay itself is undermining of the applicant having the fears claimed.
In the applicant’s initial written claims he indicated that he did not immediately apply for protection because of adverse publicity around asylum seekers not being accepted and being sent offshore. As put to the applicant in the hearing, this explanation is different to that provided in the interview with the delegate that he only decided that his life was at risk after his visa had been cancelled and that individuals back in Kenya had told him that the situation was dangerous. This too would appear to be inconsistent with evidence in the applicant’s most recent written statement that he left Kenya because he was in danger.
In response, the applicant indicated that he did wish to apply for protection on first arriving but did not do so because of a fear that he would be sent back to Kenya as a result of applying for protection.
The Tribunal noted to the applicant that it would have taken little investigation on his part to have determined that he would be granted safety to remain in Australia while his protection visa application was progressed. The applicant maintained that he had no awareness of this and that he was new to Australia and that it took him time to work out the true situation.
The Tribunal has credibility concerns as a result of inconsistent evidence provided by the applicant as to at what point he feared harm in Kenya, as well as the significant delay in applying for the protection visa. The Tribunal considers that if the applicant had left Kenya in fear and had a genuine intention to seek protection in Australia, that he would have investigated the protection visa process and found he had a much earlier opportunity to apply which would have assured him that he would be able to stay in Australia while the protection visa application was considered.
The delay in making application for the protection visa together with the inconsistent evidence as to the reason for the delay are undermining as to the credibility of the applicant’s substantive claims.
The Tribunal assesses these five credibility concerns. Considered cumulatively, they are seriously damaging to the applicant’s credibility. The credibility concerns include inconsistencies as to core claims. They result in the Tribunal not being satisfied as to key claims made by the applicant, other than claims that the applicant was a supporter of the ODM and was involved in door-to-door canvassing in the 2007 election.
The Tribunal considers that the applicant’s evidence in the interview that he did not face any difficulties as a result of his involvement in the election other than a poor reception by some households that he visited represents the true extent of problems faced by the applicant. The Tribunal is not satisfied that the applicant was detained for any period by authorities without a trial or otherwise as a result of his involvement in the 2007 election, or for other reasons.
Similarly, the Tribunal considers that the applicant’s evidence at the interview with the delegate that he was not much involved with any NGO is the truth of the matter. The Tribunal is not satisfied that the applicant was a member of or substantially involved in any NGO.
The Tribunal is not otherwise satisfied that there was any suspicion or approach towards the applicant as a result of the view that he was providing information to the ICC or in any way involved with the ICC in terms of its investigation into politicians in Kenya. The Tribunal is further not satisfied that the applicant had a connection with any individual who was or was a potential witness to the ICC proceedings which has resulted or currently results in a suspicion of the applicant himself having involvement in the ICC process.
In any event, the ICC process against the two politicians has been discontinued, the latest in 2016, with the options of the proceedings being reopened only if new evidence emerges. This, including on the basis that there is no corroborative evidence that the applicant is engaged in any way with the ICC, is further undermining of claims that the applicant is at a risk of harm based on being involved in the ICC process which was tentatively ended four years ago and with no evidence of the process being reignited within the last four years.
Whilst the Tribunal is prepared to accept that the applicant’s uncle died while being sought by the police, the Tribunal is not satisfied that his death is in any way associated with the applicant, individuals associated with the ICC proceedings or demonstrates any risk of harm to the applicant.
The Tribunal is not satisfied that the applicant has a political or other profile that would make him a target of politicians or otherwise subject to a real chance of serious or significant harm in the lead-up to the 2022 election in Kenya. The Tribunal is not satisfied that the fact of the applicant coming to Australia would cause a perception by authorities that he has ‘run away’ causing authorities to have an adverse interest in him. The Tribunal is not satisfied there is a belief or perception by those in power in Kenya that the applicant has the power to thwart their ambitions causing them a desire to harm the applicant.
The Tribunal is not satisfied that the applicant faces harm more generally because of ethnic conflict in the area in which he lives between his own community and another community, particularly currently. This takes into account the cumulative impact of the credibility concerns.
Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a reason set out in s.5J(1) for any of the reasons claimed. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Kenya, there is a real risk that the applicant will suffer significant harm for any of the reasons claimed.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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 of 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 of persecution would not exist if it were assumed that the fear of 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.
…

[2020] AATA 5081

9 November 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction