1713192 (Refugee)

The applicant, a national of Kenya, sought a protection visa in Australia. The dispute concerned whether the applicant met the criteria for a protection visa, specifically under the 'refugee' criterion (s.36(2)(a)) or the 'complementary protection' criterion (s.36(2)(aa)) of the *Migration Act 1958* (Cth). The applicant claimed he would face persecution due to his membership in two particular groups: LGBTQI men living in Kenya, and members of the Kalenjin tribal group in Kenya, fearing election-related violence. The decision was made by the Tribunal, comprising Deputy President Christopher Kendall and Member Dr. Colin Huntly.

The Tribunal was required to determine if the applicant had a well-founded fear of persecution for reasons of his sexual orientation or his membership in the Kalenjin ethnic group, and if such persecution would be the essential and significant reason for harm. Additionally, the Tribunal had to consider whether there was a real risk of significant harm if the applicant were removed from Australia to Kenya under the complementary protection criterion, taking into account whether effective protection measures were available or if relocation to a safer area within Kenya would be reasonable. The Tribunal also had to assess the applicant's credibility in light of his claims and any independent country information.

The Tribunal concluded that the applicant did not meet the criteria for a protection visa. Regarding the refugee criterion, the Tribunal found that the applicant's fear of persecution as an LGBTQI man in Kenya was not well-founded, noting that general discrimination against LGBT persons in Kenya did not reach the level of persecution. Furthermore, the Tribunal found that the applicant's claims regarding election-related violence affecting the Kalenjin tribal group were not substantiated to the required standard. The Tribunal also considered the complementary protection criterion and found no substantial grounds to believe there was a real risk of significant harm upon removal to Kenya, particularly noting the possibility of relocation within Kenya.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa, finding that Australia did not have protection obligations towards him under the *Migration Act 1958*.