1713192 (Refugee)

[2017] AATA 2084

1713192 (Refugee) [2017] AATA 2084 (27 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1713192

COUNTRY OF REFERENCE:                  Kenya

MEMBERS:Dr Christopher Kendall, Deputy President (Presiding)

Dr Colin Huntly

DATE:27 October 2017

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 October 2017 at 2:55pm

CATCHWORDS

Refugee – Protection Visa – Kenya – Particular social group – Homosexual –Particular ethnic group – Kalenjin tribal group – Fear of persecution – Fear of political violence – Witness credibility – Previous criminal history

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 423A, 499
Migration Regulations 1994, Schedule 2

CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Applicant A v MIEA (1997) 190 CLR 225 at 233
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Iyer v MIMA [2000] FCA 52
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIMA v Respondent S152/2003 (2004) 222 CLR 1
MIMA v Khawar (2002) 210 CLR 1
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Randhawa v MILGEA (1994) 52 FCR 437
SAAD v MIMIA [2003] FCAFC 65
SDAQ v MIMIA (2003) 129 FCR 137
Selliah v MIMIA [1999] FCA 615
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZQNO v MIAC [2012] FCA 326

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 [in] June 2017 to refuse to grant the applicant a Protection visa (the visa) under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who is a citizen of Kenya, applied for the visa [in] May 2017. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations as provided at s.36(2)(a) or 36(2)(aa) of the Act.

3. On 21 June 2017 the applicant lodged an application with the Tribunal seeking a review of the delegate’s decision not to grant a Protection visa to the applicant.  The applicant provided the Tribunal with a copy of the delegate’s decision record which forms the basis of this review.  The applicant was not represented in this review by a registered migration agent. 

   Hearing

4. At the time of this review, the applicant was a person in immigration detention.  He was initially scheduled to attend a hearing with the Tribunal via video-conference on 1 September 2017.    On 29 August 2017, the applicant requested a postponement to enable him to obtain legal representation.  The Tribunal responded to the applicant on 30 August 2017 stating that the scheduled hearing would proceed as previously advised, and that the Tribunal would determine the matter then. 

5. Regrettably, the communications technology did not permit the scheduled hearing to proceed on 1 September 2017.  The hearing had to be rescheduled to 20 October 2017.  The applicant attended the re-scheduled hearing with the Tribunal on 20 October 2017 to give evidence and present arguments. 

6. At the start of the hearing, the Tribunal asked the applicant if he had been able to secure legal representation.  The applicant stated that he had not.  

7. The Tribunal reminded the applicant of the importance of answering all questions truthfully.  The Tribunal then asked the applicant if there was anything that he wanted to add to his claims for protection.  The applicant responded that, in addition to his existing claims for protection, he held a well-founded fear of persecution on the basis of his membership of the Kalenjin tribal group resident in and around the area of Eldoret in Kenya due to election-related violence.  With this exception the applicant made no other changes to his claims for protection. 

8. The Tribunal then specifically asked the applicant if there was any information in his application for protection or other documents before the Tribunal that he needed to change.  The applicant answered in the negative.  The Tribunal then asked the applicant if there was anything that he wished to add to his claims for protection.  The applicant answered in the negative.

9. Before proceeding to questions at the hearing, the Tribunal asked the applicant if he was happy for the Tribunal to proceed on the basis of the information before it.  The applicant answered in the affirmative.

   RELEVANT LAW

10. The law relevant to this application for review is discussed at Appendix A to this Decision and the Attachment-  Extract from Migration Act 1958.

    CRITERIA FOR A PROTECTION VISA

11. The criteria for a protection visa are set out in Appendix A to this decision.

    RELEVANT COUNTRY INFORMATION

12. Country Information specifically referred to by the Tribunal in this decision is identified below.  The Tribunal has also had regard to the most recent UK Home Office Country Policy and Information Note, Kenya: Sexual orientation and gender identity, 13 March 2017.

13. The Tribunal notes the following summary statement at [2.3.9] of the foregoing Country Information, which provides as follows:

    In general the evidence available does not establish that LGBT persons are likely to be subject to persecution or serious harm by the state.

14. The Tribunal also notes the following extract at [2.3.14] from the same Country Information source:

    In general the level of discrimination and abuse faced by LGBT persons from non state actors is not such that it will reach the level of being persecutory or otherwise inhuman or degrading treatment.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in this case is whether the applicant engages Australia’s protection obligations for the essential and significant reason of his membership of the particular social groups; LGBTQI men living in Kenya; and, members of the Kalenjin tribal group resident in and around the area of Eldoret, in Kenya, due to election-related violence.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of reference

16. According to the applicant’s movement record, he arrived in Australia using his most recent Kenyan passport [in] June 2015 on a [student] visa.  The Tribunal has had regard to the Departmental files and has interviewed the applicant in person.

17. On the basis of the above evidence, the Tribunal finds that the applicant is a man born on [birth date], and is a national of Kenya.

18. The Tribunal, therefore, finds that the receiving country for the applicant is Kenya, for the purposes of s.36(2)(aa) of the Act.

19. Having regard to all the evidence, the Tribunal finds that the applicant does not have a right to enter and reside in a third country. The Applicant is, therefore, not excluded from Australian protection by the operation of s.36(3) of the Act.

    Applicant’s Claims

20. At the beginning of the hearing, the Tribunal confirmed with the Applicant that his claims for protection, as written by the applicant in his application for protection in their entirety, are as follows:

    ·I left Kenya as a student with an intention to seek protection in Australia. (Form 866C, Question 89 “Why did you leave that country?”);

    ·I will likely face persecution because of my sexual orientation.  (Form 866C, Question 90 “What do you think will happen to you if you return to that country?”);

    ·No.  (Form 866C, Question 91 “Did you experience harm in that country? Give details (including the type of harm you experienced, the person/people responsible for the harm and why they harmed you)”);

    ·[No response].  (Form 866C, Question 92 “Did you seek help within the country after the harm?  Give reasons for why you did not try to seek help”);

    ·No.  I did not try to move because of my age and the legal processes preventing me from migrating.  (Form 866C, Question 93 “Did you move, or try to move, to another part of that country to seek safety?  Give details (including where you try to move, why you are unable to move or where you move to and what happened)”);

    ·Yes.  My family is likely to miss treat me because of my sexual orientation being gay.  (Form 866C, Question 94 “Do you think you will be harmed or mistreated if you return to that country?  Give details (including the type of harm or mistreatment you are likely to experience, the person/people who would be responsible for the harm or mistreatment, why they would harm or mistreat you)”);

    ·No.  The Constitution of Kenya has no provision that entails the protection of diverse cultures like homosexuality.  (Form 866C, Question 95 “Do you think the authorities of that country can and will protect you if you go back?  Give details about why you think the authorities could not, or would not, protect you”); and

    ·No.  Because of the bureaucracy surrounding the process of relocation.  (Form 866C, Question 96 “Do you think you would be able to relocate within that country?  Give details about why you are unable to relocate”).

21. No further submissions were received from the applicant in support of his application for protection prior to the hearing.

22. The Tribunal notes that, prior to examining the applicant’s claims at the hearing, the applicant confirmed that he had nothing further to amend in his application for protection.  He stated that he wished to add a further claim; namely, that his Kalenjin tribal group living in and around the village of Eldoret in Kenya were subject to election-related violence.  Other than this, the applicant was content for the Tribunal to proceed on the basis of his written claims.

    Credibility

23. The Tribunal notes that it was necessary to question the applicant extensively to obtain information of relevance to the application for protection, including details relating to the above skeletal claims made in his written application for protection and his new claims of election-related tribal persecution.  The Tribunal notes that the applicant’s reluctance overall to provide further information about his claims reflected poorly on the applicant’s credibility. 

24. The Tribunal noted that concerns about the skeletal nature of the applicant’s claims for protection had also been raised by the delegate in the decision record dated [in] May 2016, which forms the basis of this review at p.3 as follows:

    There is no compelling or corroborating evidence before me attesting to the applicant’s sexual orientation to men.  I consider his written application and his verbal testimony at interview to be lacking in detail and not sufficient to satisfy me that he is a homosexual.  I am not satisfied that his claimed homosexual relationships or sexual encounters did occur or that he is a homosexual.

25. The applicant stated that he did not provide much detail in his written application because he did not believe that it was important for the purposes of applying for protection, that he did not understand some of the questions and that he wished to protect the privacy of other people.  The Tribunal indicated that it did not accept this explanation as credible, and that the applicant’s refusal to provide additional information in support of his claims for protection was illogical. 

26. When the applicant was asked if he knew anything about the LGBTQI community in Kenya he stated that it was difficult to find information about this community while he was in Kenya.

27. The Tribunal asked the applicant how anyone in Kenya would know that he had been in a long-term relationship with another man.  The applicant stated that details of his relationship with that man had been spread in the [Australian city] Kenyan community and also in Kenya by a local Kenyan national named “[name]”.

28. The Tribunal noted the United Kingdom Home Office country information “Country Policy and Information Note, Kenya: Sexual orientation and gender identity”, 13 March 2017 at [2.3.9] referred to above.  The applicant stated that he disagreed with the United Kingdom Home Office assessment, and claimed that these matters were dealt with locally under tribal law and that this was not reported.

29. The Tribunal has considered the applicant’s response to this credible country information and prefers to rely on the credible country information over the assessment of the applicant.

30. The Tribunal also noted the applicant’s claim that he would be persecuted in Kenya because of his perceived LGBTQI sexuality because of [reports] of his having been sentenced over a sexual offence he committed at a “Gay [location]”. 

31. The Tribunal noted that the delegate’s decision record refers to [reports] showing that the applicant had [details of sexual offences against women].  The Tribunal finds that the foregoing evidence is inconsistent with the applicant’s claim that he would be persecuted in Kenya because of his perceived LGBTQI sexuality.

32. The Tribunal has reviewed the relevant [reports] and notes that they do not suggest that the relevant [location] was a “gay [location]”, either specifically or exclusively.  When the applicant was asked to comment on this information, he stated that the relevant [location] has been described as a “gay [location]” to members of the Kenyan community in [Australia] and in Kenya by the Kenyan national referred to above, resident in [Australia], named “[name]”.

33. The Tribunal raised its concern with the applicant that his evidence lacked credibility because it lacked an appropriate level of detail and that he has failed to provide any corroborating evidence about his alleged same-sex relationships up to and including the date of the hearing with the Tribunal.

34. The Tribunal notes that the applicant’s evidence about either having or being perceived to have LGBTQI sexuality is vague and lacking in appropriate detail, of the sort that might suggest that the applicant is relating genuine lived experience.  In particular, he was unable or unwilling to provide details such as:

    ·Any contact or experience he might have had with the LGBTQI community in either Kenya or Australia;

    ·An appropriate level of detail about his relationships with either his former or current same-sex partner.

35. Having regard to the foregoing evidence and findings, and the nature of both the applicant’s reported consensual sexual activity with, and sexual offences against women, the Tribunal finds that the applicant’s claim to hold a genuine LGBTQI identity is illogical and inconsistent.  This illogical and inconsistent evidence reflects poorly on the applicant’s credibility and the credibility of his principal claims for protection.

36. The Tribunal asked the applicant why he did not apply for protection until [May] 2017, given that by his own evidence he always intended to apply for protection in Australia.  In response the applicant stated that it was always his intention to apply for protection after his student visa expired. 

37. The Tribunal does not accept that it is logical for a person with a genuine claim for protection to firstly delay seeking protection for more than two years.  It is reasonable to expect that a person of full age and without a disability to apply for protection at the first reasonable opportunity.  The tribunal finds that the applicant did not do so at the first reasonable opportunity.  The tribunal also does not accept that it is logical for such a person to then provide skeletal reasons for seeking protection and, when questioned in a confidential Tribunal proceeding, refuse to provide all relevant information to the relevant decision maker when invited to so do purely on the basis of respecting the privacy of another individual.

38. The Tribunal notes that, while the applicant provided a comprehensive residential history for his life in Australia, there are no residential details for his life in Kenya included in his application for protection.  When questioned about this in the hearing, the applicant provided inconsistent responses.  Initially, the applicant claimed to have poor English and that he misunderstood the question.  Later, the applicant stated that he could not remember all the residential details for his time in Kenya.  At a different stage, he claimed that there are no street addresses in Eldoret, and that people simply refer to their home village. 

39. Notwithstanding that Google Maps provides a fairly detailed street layout for the Eldoret area, the Tribunal accepted that this may be the case, but asked the applicant why he did not include even this basic information in his application form.  The applicant repeated his statement that he did not understand what to put in the form, but that he had only ever lived in his home village, and in the nearby village where he attended [High School].  The Tribunal finds that, given that the applicant provided some residential history and not others, and given that his explanation for partiality of information provided was vague, illogical and inconsistent, this reflects poorly on his credibility.

40. The Tribunal raised its concerns about the applicant’s history of offending, particularly [a serious driving offence] and the applicant’s conviction for aggravated indecent assault.  The Tribunal noted that this record of criminal conduct reflected poorly on the applicant’s character and credibility. 

41. When the Tribunal raised these concerns with the applicant, he stated that he did not understand that these offences were serious until his visa was cancelled.  He also referred to having a long term alcohol-abuse problem.

42. The Tribunal finds that the applicant’s explanation for his offending behaviour demonstrates a failure to appreciate the seriousness of that behaviour and lacks credibility.  This reflects poorly on the applicant’s credibility.

43. The Tribunal has also considered the applicant’s late claim to face persecution on the basis of his membership of the particular social group, members of the Kalenjin Tribal group living in the Eldoret region affected by election-related violence in Kenya.

44. The Tribunal notes that, while online news sources confirm that there have been reports of election-related violence in the Eldoret region, as discussed further below, there is no credible country information to support the applicant’s claim that members of the Kalenjin Tribal group living in the Eldoret region are systematically and discriminatorily being persecuted now, or will be in the reasonably foreseeable future as a result of uncertainties surrounding the Presidential elections.. The Tribunal does not accept that this claim is genuinely held by the applicant.

45. As discussed above, the applicant referred in his application to holding a right to enter and reside in Uganda and Tanzania, based on agreements reached between those countries for the ingress and egress of citizens of each country between each country. When the Tribunal questioned the applicant if he was claiming that this freedom of movement amounted to a right to enter and reside in any of those countries, the applicant responded that he was not making such a claim. The Tribunal, therefore, finds that the applicant does not have a right to enter and reside in these countries for the purposes of s.36(3) of the Act.

46. As discussed above, the Tribunal has carefully considered the claims for protection made by the applicant both individually, and then cumulatively.  The Tribunal has doubts about much of the applicant’s evidence, which the Tribunal found to be vague, undetailed, illogical, inconsistent and generally lacking in credibility.

1. The tribunal finds that, because of his vague, undetailed, illogical, inconsistent and generally non-credible evidence, the Tribunal does not accept that the applicant’s claims are true.  His written claims were brief and at hearing he was unable to explain key inconsistencies and illogicalities in his evidence.

   Findings Relating to the Applicant’s Claims

   Prior credibility issues

2. The Tribunal notes that a number of concerns raised with the applicant at hearing and discussed above are matters of concern that were previously raised by the delegate in a record of decision provided to the applicant and dated [in] June 2017.  This record of decision was provided to the Tribunal by the applicant.  Accordingly the applicant has been afforded an adequate opportunity to be prepared to answer questions relating to those concerns. 

   LGBTQI identity

3. The Tribunal has found that the applicant’s claims to hold a well-founded fear of persecution for the essential and significant reason of his actual or perceived LGBTQI identity in Kenya now or in the reasonably foreseeable future are vague, illogical and inconsistent.  Accordingly, the Tribunal finds that these claims are not credible, and are not genuinely subjectively held by the applicant.

   Applicant credibility before the Tribunal

4. Further, on the basis of the foregoing credibility findings, the Tribunal finds that the applicants evidence to the Tribunal lacks credibility generally, to the point that that the applicant is not a credible witness.

   Amended Claims

5. At the outset of the applicant’s hearing before the Tribunal the applicant was given an opportunity by the Tribunal to amend his claims for protection as they appear in the documents that were before it.  With the exception of the applicant’s election-violence-related claim which was raised at the start of the hearing, the applicant made no changes to his original written claims for protection.

6. Given that the credibility concerns regarding the applicant’s claims for protection were matters about which the applicant ought reasonably to have known before the delegate’s decision was made [in] May 2016, the Tribunal particularly notes s.423A of the Act, which states as follows:

   a)raises a claim that was not raised in the application before the primary decision was made; or

   b)presents evidence in the application that was not presented in the application before the primary decision was made.

   1)    In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.

7. In light of the foregoing the Tribunal finds that the applicant’s evidence relating to holding a well-founded fear of persecution in Kenya for the essential and significant reason of membership of the particular social group of members of the Kalenjin tribal group resident in and around the area of Eldoret in Kenya due to election-related violence was not raised earlier because the General elections in Kenya did not occur until August 2017.  The Tribunal finds that this is a reasonable explanation for the late addition of this claim for protection

8. The Tribunal has had regard to the fact that DFAT has not revised its travel advisory relating to Kenya since the General Elections.  The Tribunal has also had regard to available on-line news reports relating to Kenya in particular those reports relating to post-election violence.

9. The Tribunal notes that there have been reports of election-related violence since the General election in Kenya and the contested outcome of the Presidential election.  The Tribunal notes that some of these reports do indeed relate to the Eldoret region.  The Tribunal can find no reports of the Kalinjen tribal group specifially being systematically or discriminatorily persecuted for the essential and significant reason of the Kenyan elections.  However, the Tribunal does note that the relevant reports indicate that the election result is being contested through Kenya’s Supreme Court according to the appropriate constitutional processes and that there is no suggestion that there has been a material breakdown in the rule of law in Kenya.  

10. The Tribunal also notes that the Kenyan Parliament has been constituted and that the outstanding matters between political parties relate exclusively to the question of the recontested Presidential election, which election, at the time of this decision, is yet to be held.

11. The Tribunal notes that available reports indicate that police and military within Kenya appear to be responding appropriately to outbreaks of violence relating to the contested election.

12. The Tribunal notes that persecution by private individuals or groups does not amount to persecution for the relevant purposes unless the State either encourages it or appears to be powerless to prevent that private persecution.  This view is not a recent development in the relevant law.  For example, the Tribunal notes that, when considering the previous statutory framework applicable to Australia’s protection obligations, the High Court stated:[1]

    A person ordinarily looks to ‘the country of his nationality’ for protection of his fundamental rights and freedoms but, if ‘a well-founded fear of being persecuted’ makes a person ‘unwilling to avail himself of the protection of [the country of his nationality]’, that fear must be a fear of persecution by the country of the putative refugee’s nationality or persecution which that country is unable or unwilling to prevent...  Thus the definition of ‘refugee’ must be speaking of a fear of persecution that is official, or officially tolerated or uncontrollable by the authorities of the country of the refugee’s nationality.

    [1]Applicant A v MIEA (1997) 190 CLR 225 at 233, per Brennan CJ, referred to with approval in MIMA v Respondent S152/2003 (2004) 222 CLR 1 at [19].

13. The Tribunal also notes the following comments of McHugh J in the same case

    The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return.  Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution. 

    The object of the Convention is to provide refuge for those groups who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality.[2]

    [2]Applicant A v MIEA (1997) 190 CLR 225 at 257-8 per McHugh J. Note that in MIMA v Khawar (2002) 210 CLR 1, Gleeson CJ and Kirby J adopted a broadly similar view. However, Gummow and McHugh JJ appear to suggest a slightly different view on this issue.

14. There is nothing before the Tribunal that would suggest that the Kenyan state would tolerate, condone or fail to control circumstances where the applicant might experience election related violence to the extent that such conduct could either amount to a real chance of serious harm or a real risk of significant harm being occasioned to the applicant now, or in the reasonably foreseeable future. Indeed, available Country Information satisfies the Tribunal that the Kenyan State continues to provide an adequate level of state protection for the purposes of s.5J(2) of the Act, as set out in s.5LA of the Act.

15. The Tribunal, therefore, finds that the applicant’s claim to hold a well-founded fear of persecution for the essential and significant reason of his membership of the Kalenjin tribal group resident in and around the area of Eldoret in Kenya due to election-related violence, taken at their highest, do not reach the level that they would constitute an objectively well-founded fear of persecution if he were returned to Kenya now, or in the reasonably foreseeable future.

    Subjectively well-founded fear of persecution

16. The Tribunal is entitled to consider whether an applicant subjectively holds a well-founded fear of persecution, as defined at ss.5H and 5J of the Act, before considering whether such a fear is objectively held, or to proceed on the assumption that such a fear is held. However, if the Tribunal finds on the evidence that the applicant does not have a subjectively well-founded fear of persecution, there will be no need to consider whether there is an objective basis for the claimed fear, or indeed whether other aspects of Australia’s refugee protection obligations are satisfied.[3]  Conversely, if the decision maker finds that there is no objective basis for a fear of persecution, there is no obligation to consider whether there is a subjective fear.[4]

    [3]See SZQNO v MIAC [2012] FCA 326 (Katzmann J, 3 April 2012) at [48] and Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34]; Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMIA (2003) 129 FCR 137 at [19].

    [4]SAAD v MIMIA [2003] FCAFC 65 (Cooper, Carr and Finkelstein JJ, 11 April 2003) at [38]; Selliah v MIMIA [1999] FCA 615 at [40].

17. The Tribunal notes that the criterion in section 5J(1)(a) of the Act requires that an applicant must hold a real fear of being persecuted, and section 5J(1)(b) of the Act requires that the applicant’s fear of persecution has to meet an objective standard, that there should be a real chance the person would be persecuted if he were returned to Kenya. A real chance is one that’s not remote or insubstantial or far-fetched. If a person fears persecution for one of the reasons in section 5J(1)(a), that reason has to be the essential and significant reason, and further, the persecution must involve serious harm and be systematic and discriminatory conduct.

18. On the basis of the foregoing findings, taken individually and then cumulatively, the Tribunal finds that the applicant does not subjectively hold a well-founded fear of persecution for the essential and significant reason of the applicant’s membership of the particular social groups: LGBTQI men living in Kenya; and, members of the Kalenjin tribal group resident in and around the area of Eldoret in Kenya due to election-related violence or for any other reason for the purposes of s.5J(1) of the Act.

19. Accordingly, the Tribunal finds that there is not a real chance that, if the applicant were returned to Kenya that he would be persecuted for the essential and significant reason of either his membership of the particular social groups; LGBTQI men living in Kenya; and, members of the Kalenjin tribal group resident in and around the area of Eldoret in Kenya due to election-related violence, or for any other reason now or in the reasonably foreseeable future. 

    Findings as to claims considered in this review

    Refugee Criteria

20. The Tribunal has found that the applicant does not hold a well-founded fear of persecution if he were to return to Kenya now, or in the reasonable foreseeable future.  The Tribunal finds that the applicant is not a refugee as defined by subsection 5H(1) of the Act.  For that reason, the Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations as outlined at paragraph 36(2)(a) of the Act. 

    Complimentary Protection Criteria

21. The Tribunal has also considered the applicant’s claims in the light of the complementary protection criteria at section 36(2)(aa) of the Act, which provides that a non-citizen may be eligible for protection in Australia where a decision-maker is satisfied that an applicant is a non-citizen in respect of whom Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to the receiving country, there is a real risk that the non-citizen will suffer significant harm.

22. As discussed above in this decision, the Tribunal finds that the applicant does not hold a well-founded fear of persecution if he were to return to Kenya now, or in the reasonable foreseeable future. The Tribunal notes that s.36(2)(aa) of the Act refers to a real risk of the applicant suffering significant harm. The Tribunal notes that the real risk test imposes the same standard as that adopted in the real chance test for the purposes of assessing a well-founded fear. As indicated earlier in the Tribunal’s decision, the Tribunal is satisfied that the applicant does not hold a well-founded fear of persecution if he were to return to Kenya now, or in the reasonable foreseeable future.

23. The Tribunal is satisfied that there is less than a real risk of significant harm if the applicant was removed from Australia to the receiving country, such that Australia’s non-refoulement obligations would be engaged. 

24. The Tribunal has found above that the applicant does not hold a well-founded fear of persecution if he were to return to Kenya now, or in the reasonable foreseeable future  Accordingly, the Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations for the purposes of paragraph 36(2)(aa).  Based on all of the above, the Tribunal is not satisfied that there are substantial grounds for believing as a necessary and foreseeable consequence of the applicant being removed to Kenya, that there is a real risk that he will suffer significant harm.

25. Therefore, the applicant is not a person in respect of whom Australia has protection obligations as outlined in paragraph 36(2)(aa) of the Act. 

    CONCLUSION

26. 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).

27. 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).

28. 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 the criterion in s.36(2).

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

    Dr Christopher Kendall
    Deputy President

    
    

    Dr Colin Huntly
    Member

    
    

    APPENDIX A – RELEVANT LAW

    76.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, the applicant 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.

    Refugee criterion

    77.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.

    78.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.

    79.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 themself 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).

    80.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-LA, which are extracted below.

    81.The criterion in s.5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[5]

    [5]Chan Yee Kin v MIEA (1989) 169 CLR 379.

    82.If a person fears persecution for one or more of the reasons mentioned in s.5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s.5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss.5J(4)(b), (c).

    Complementary protection criterion

    83.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 a protection 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 the applicant 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’).

    84.‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

    85.There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

    86.In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Applicant credibility

    87.The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.  In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[6]  In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility. 

    [6]Eg: Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

    88.In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan,[7] Foster J stated that “care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.”[8]  Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. 

    [7](1996) 40 ALD 445.

    [8]At 482.

    89.The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[9] and the comments of the High Court on the correct approach to determining findings on credibility.  Kirby J observed:[10]

    [9](1996) 185 CLR 259.

    [10]At [25].

    First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not.  An over-nice approach to the standard of proof to be applied here is undesirable.  It betrays a misunderstanding of the way administrative decisions are usually made.  It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination.  It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

    90.The Tribunal is not required to accept uncritically any or all allegations made by an applicant.  Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.  In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that “where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved.  The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.”[11]  Nevertheless, as Burchett J counselled,[12] it is necessary to:

    [11][1997] FCA 1198 ( accessed 15 February 2017).

    [12]In Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5].

    … understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies.  Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies.  The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

    91.The Full Court of the Federal Court noted that “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.”[13]  On this point, the Tribunal also takes into account the comments of Professor Hathaway in ‘The Law of Refugee Status’ (1991, Butterworths) at 84-86.  Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[14]  Nor is there a rule that a decision-maker must hold a “positive state of disbelief” before making an adverse credibility assessment in a refugee case.  However, if the Tribunal has “no real doubt” that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong.[15]  In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[16]  The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[17]

    [13]In Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167 ( accessed 15 February 2017).

    [14]Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9.

    [15]Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed).

    [16]MIMA v Rajalingam (1999) 93 FCR 220.

    [17](1999) 197 CLR 510 at [191].

    … the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising.  It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.

    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.

    …
    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.

    …
    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.

    …

    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 them 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.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (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.

    …