1721243 (Refugee) - [2017] AATA 3021

1721243 (Refugee) [2017] AATA 3021 (19 December 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1721243
COUNTRY OF REFERENCE:                  Kenya
MEMBER:Christopher Smolicz
DATE:19 December 2017
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 19 December 2017 at 2:16pm

CATCHWORDS
Refugee – Protection Visa – Kenya – Ethnicity – Kikuyu – Religion – Seventh-day Adventist – Particular social group – Unemployed Kikuyu male – Imputed political opinion – Supporter of President Kenyatta and Jubilee Party – Fear of vigilante groups – Fear of al-Shabaab – Lack of well-founded fear – Feared harm speculative
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505

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 on [in] September 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 [in] August 2017.
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-LA, 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.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Issue
The issue advanced by the applicant in this case is whether he meets the refugee criteria or comes within Australia’s complementary protection obligations because:
·as a Seventh-day Adventist (Christian) and member of the Kikuyu tribe he will be targeted and killed by al-Shabaab
·he holds different views from Seventh-day Adventist church authority/elders in Kenya
·he fears that as a person of Kikuyu ethnicity he will be perceived to be a supporter of the dominant political party and ethnic group in Kenya, (the Kikuyu tribe)
·he fears that as a person of Kikuyu ethnicity he will be targeted by non-Kikuyu tribes who will prevent him from purchasing land and operating a business outside the Central province of Kenya
·he fears serious harm from the Mungiki.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is an [age] year old single male. He was born in [Eastern] Province, Kenya. In December 2013 he has completed a [degree] in Kenya.
He arrived in Australia [in] July 2014 as the holder of a [student] visa. His student visa was valid until [August] 2016.
The applicant travelled to Australia to study a [course] at [a university]. According to his Certificate of Enrolment the applicant withdrew from his course and his last day of study was [in] August 2015. The applicant did not advise the Department that he withdrew from his studies. He commenced working in [a certain] industry and as [Occupation 1] for [Company 1].
[In] 2017 the applicant had a physical altercation with [an individual]. The police were called and the applicant came to the attention of the Department as an unlawful non-citizen. [Shortly after in] 2017 he was taken into Immigration Detention.
According the applicant’s statement of claim he was charged with [a summary assault charge]. He appeared in Magistrates’ court and was discharged on a bond without conviction and with no penalty being imposed.
He applied for the protection visa [in] August 2017.
Summary of substantive claims
The applicant provided a statutory declaration dated [in] July 2017 in which he sets out his claims for protection.
He claims to fear persecution in Kenya for reason of his religion, ethnicity and membership of a particular social group and his imputed political opinion.
The applicant declared that he is of Kikuyu ethnicity and his religion was Seven Day Adventist. His parents and [sibling] continue to reside in Kenya. He was raised [in a small town in] Central Province of Kenya.
He belongs to the largest tribe in Kenya (the Kikuyu tribe). Kikuyu are predominantly farmers and entrepreneurs originating from the small Central Province. The region is suffering from famine and is overcrowded which has forced the Kikuyu people to move to other provinces where they are the minority. The other 42 tribes of Kenya perceive the Kikuyu people as a threat and this causes tension.
He claims that Kenya has a history of violence against the Kikuyu especially in the Rift Valley. The applicant refers to the 2007-2008 post-election period when other tribes were against the Kikuyu and their homes and business were burnt down and many people were killed. The Kalenjin pastoralists had issues with the Kikuyu regarding land. Other tribes have perceived Kikuyu businesses as a threat. As a consequence many Kikuyu people were forced to return to their land in central Kenya. The majority were internally displaced and placed in refugee camps.
He claims that the conservative Kikuyu people formed a group called the Mungiki (a vigilante group) to fight for the interests and customs of the Kikuyu and to fight for power in Kenya. The Mungiki practise recruitment rituals which involve human/animal blood to initiate young Kikuyu men. They target unemployed youths to join them.
His parents sent him to a [boarding] school to keep him away from the influence of the Mungiki in his local area. After he completed high school and underwent a customary [operation] and initiation into adulthood. He tried to stay away from his home area because he was a risk of being targeted by the Mungiki.
Mungiki are opposed to Christians. As a young male Seventh-day Adventist Christian he believes in the rule of law and not defiling his body. He does not want to be involved in illegal activities such as FGM, drug use, extortion and murder.
He claims that many young people in Kenya are influenced by such behaviour and are targeted by the Mungiki. He has been fortunate not to have been involved with such people.
The Mungiki extort money from locals to fund their illegal activity. He fears that as a local who is unwilling to pay the Mungiki money and cooperate with them he will be viewed as a traitor, targeted and killed. He claims they target those who do not cooperate or collaborate with the group. He claims the Mungiki are opposed to Kikuyu people who are westernised.
He fears the police are infiltrated by the Mungiki. He claims that there is collusion between politicians and the Mungiki which is most common at election time. After the election the police persecute the Mungiki.
The applicant referred to a [massacre] of people in his home [area]. He was attending university at the time and was able to avoid any conflict. He knew a family [friend] who was killed during the massacre.
Once he finishes his studies he will be forced to look for work in his local area. He states that there are no jobs available for young people other than purchasing a bike and doing deliveries. He claims the co-operatives where you get employment are infiltrated by the Mungiki tribe. The activities of the Mungiki go against his religious beliefs and he is not willing to put himself in that positon. As a Kikuyu he cannot purchase land or conduct long term investment among other tribes anywhere in Kenya.
He has a strong political opinion on voting based on merit not ethnicity and this will put him at risk of persecution from his fellow Kikuyu kinsmen.
His parents encouraged him to travel to Australia to study because they were concerned about his security working in Nairobi where there are terrorist attacks by al-Shabaab. He was also worried about being targeted by the Mungiki. He feared that if he remained in Kenya he would struggle to find employment in his area and would be forced to integrate into companies operating throughout the area in order to find work and to survive. His father sold land to pay for his university fees and he (the applicant) used money that he earned from his [work] to pay for his airfares to Australia. He travelled to Australia with the assistance of a migration agent in Nairobi. He wanted to escape from Kenya and to further his studies and complete a [course].
He stopped studying in Australia because he had developed health problems associated with [a medical condition]. Once he [began treatment for the condition] his health improved dramatically. He hopes to return to university in Australia to complete his studies and wants to continue to work for [Company 1].
He cannot relocate in Kenya because he is from the Kikuyu tribe. In the North and Coast provinces of Kenya, Islamist al-Shabaab militants from Somalia have taken over recruiting educated and uneducated youth and killing Christians.
Following the 2013 elections he suffered verbal abuse and difficulty finding accommodation living in [a particular town].
He cannot relocate to any EAC country because he does not have employment or a visa. He visited [a country in the EAC in] 2011 for a Seventh-day Adventist conference and was required to have a visa. He would be recognised in the EAC countries by his accent and appearance and would face discrimination and deportation.
Tribunal hearing
The applicant presented the Tribunal at the commencement of the hearing with supporting documents and a large amount of country information from various sources. The Tribunal has had regard to the information in assessing his claims.
The Tribunal questioned the applicant about his family profile in Kenya. The applicant said his parents are [retired]. The applicant provided correspondence from Kenya confirming their employment and retirement at the age of [age]. His parents were not wealthy but he had a privileged life.
He was one of the few Kikuyu who was sent to a [boarding] school. His parents sent him to a boarding school to keep him away from trouble-makers in his home area. When he completed his studies he returned home and had little in common with the people who had undergone the customary initiation with him. He claims they drink, smoke and joined the Mungiki. His parents sent him to Australia on a streamlined student visa for his security and so he could focus on his studies. He was one of the only students who were able to come to Australia from his class.
The applicant said he travelled to Australia because he feared attacks by al-Shabaab who target Christians (including Seventh-day Adventists) and members of the Kikuyu tribe.
The applicant referred the Tribunal to reports of the following al-Shabaab terrorist attacks in Kenya: September 2013 Westgate Mall attack in which 69 people were killed, the June 2014 Mpeketoni attacks in which 60 people were killed, the November 2014 Mandera bus massacre in which 28 passengers were killed and the April 2015 Garissa University attack in which 148 people were killed.
The applicant claimed the al-Shabaab targeted not only Christians but also people of the Kikuyu tribe. The applicant referred the Tribunal to the Wikipedia article on the Mpeketoni attacks in which it was reported that the attacks by al-Shabaab were revenge for Kenyan troops who were in Somalia; however, it was also reported that President Kenyatta asserted that the local politicians, connected with a network of gangs, had instigated the attacks and dismissed al-Shabaab’s claim for responsibility.[1]
[1] >
The Tribunal asked the applicant if he had come in contact with al-Shabaab. The applicant said he did not have any contact with al-Shabaab in Kenya.
The Tribunal has had regard to country information discussed below and accepts that al-Shabaab target non-Muslims in Kenya. The Tribunal does not accept the applicant’s claim that al-Shabaab are targeting members of the Kikuyu tribe in Kenya.
The Tribunal questioned the applicant about the delay and timing of his protection visa application. Specifically, the Tribunal noted that he withdrew from his studies in August 2015 and commenced working and was in breach of his student visa and became an unlawful non-citizen. The Tribunal noted that he only applied for his protection visa after he was detained in August 2017. The Tribunal questioned the applicant about why he did not apply for a protection visa sooner if he feared persecution in Kenya.
The applicant maintained that his goal was to come to Australia on a streamlined student visa to escape persecution and to study. In his opinion the most “direct path” to achieving his goal was to focus on his work and study. He does not consider the delay in applying for his protection visa inconsistent with his goal.
The applicant said that he misses his family in Kenya and has not returned home since he arrived in Australia. He claims this is indicative of his fear of harm in Kenya. The Tribunal told the applicant it understood his evidence; however, it was also relevant to note that another possible reason why he did not travel to Kenya was because he did not want to come to the attention of the Department as an unlawful non-citizen who had breached the conditions of his student visa.
The Tribunal questioned the applicant about his fears of returning to Kenya in the reasonably foreseeable future. The applicant maintained that the Kikuyu people are historically subject to attack in Kenya. He referred the Tribunal to reports and blogs which detail the Kikuyu as being good merchants and businessmen who are stereotyped for taking over the land of other tribes, being greedy and take any opportunity to make money.[2] Reports state that land security is the “leitmotif” of the Kikuyu and the historic source of their anguish and the motivation behind their success. [3] The applicant maintained his father sold land to fund his studies in Australia and he now has no prospect securing land outside the Kikuyu stronghold of central Kenya.
[2]
[3] >
The applicant also referred the Tribunal to his experience when he was traveling through the Western province in Kenya during his school studies. He observed many Kikuyu businesses burnt by rival tribes as a consequence of the 2007 electoral violence.
The Tribunal acknowledged the historic ethnic violence during the 2007 presidential elections. The Tribunal explained to the applicant that if must assess his claims by looking to the reasonably foreseeable future. The Tribunal noted that in November 2017 Uhuru Kenyatta, of the Kikuyu tribe, had been sworn for a second term as president. The applicant said that the opposition leader Raila Odinga had boycotted the ceremony. The applicant maintained that he wold be imputed with a political opinion because he is from the Kikuyu tribe and this would bring his life in danger.
The Tribunal questioned the applicant about his political opinion. The applicant said that he was not a formal member of any political party. The applicant said that he had never campaigned for any political party in Kenya. He was interested in leadership and not politics. He would vote on policy issues rather than tribal affiliations. He last voted in the 2007 elections for Mwai Kibaki. He did not vote for Kibaki because he was from the Kikuyu tribe but because he supported his policies.
He fears he would be wrongly associated by other tribes as being a follower of the current president Kenyatta because he is from the Kikuyu tribe. He fears he will face persecution because of his imputed political opinion.
The applicant provided the Tribunal with a copy of his resume which detailed his employment history in Kenya and Australia. The applicant said that he has always been interested in [a certain field]. During his university study in Kenya he commenced [work in this field]. He was able to make enough money to pay for his airfares to Australia. He worked as [occupation] and has [provided evidences].[4] He states that he was fortunate to obtain employment in Australia when his current employer [saw his work]. He [works] as [Occupation 1] for a [company], [Company 1]. His work has enabled him to continue to network with industry and his lectures. He provided the Tribunal with a copy of his employment agreement with [Company 1]. He wants to contribute to create solutions and jobs for Australians and his own people in Kenya. He claimed he kept working in Australia because it was the most direct path to achieve his goals of security and developing his skills.
[4] [Citation removed].
The Tribunal noted that the applicant had many skills, qualifications and work experience and asked if he considered applying for another visa after he withdrew from his studies in Australia. The applicant said that he did not. The Tribunal asked the applicant if he considered contacting the department and deferring his studies if he was unwell at the time. The applicant said he did not. The applicant said he was a logical thinker. He did not want to return to Kenya and the most direct path to achieve his goal was to continue with his work in Australia.

The applicant claims the delegate wrongly understood his claims. He claims he does not fear persecution in Kenya because he would be unable to secure work and would unemployed (particular social group – unemployed Kikuyu male). The applicant said that as a person from the Kikuyu tribe he would not be able to purchase land or operate a business outside central Kenya. He said that significantly limits his employment options in Kenya. He would be forced to work in areas dominated by the Mungiki and this would also put his life in danger.
The applicant claimed that he does not fear being recruited by the Mungiki. The applicant explained that in Australia he had two jobs one in [a certain] industry and the second as [Occupation 1]. He claims that he needs to maintain two jobs at the same time. The applicant maintained that if he returned to Kenya he would have to work where the Mungiki are present. He would continue to work [as Occupation 1] but he would also have to take on another job which would bring him to the attention of the Mungiki. He claims the Mungiki have control over most of economy. The applicant provided the Tribunal with reports that confirm that the minibuses (matatu) are controlled by criminal gangs in Kenya. He provided a news report regarding the rise in Mungiki in Nairobi. If he entered into such employment he could be subjected to extortion by the Mungiki. If he did not co-operate with the Mungiki and he would be harmed. The Tribunal asked the applicant if he had ever worked as a driver before. The applicants said that he had not. The Tribunal noted that potentially his work and [skills] would enable him to work with clients online from home in any part of the world.
The Tribunal questioned the applicant about his profile with the authorities in Kenya. The applicant said that he had never been arrested or convicted of any crime in Kenya. He has never suffered any physical harm in Kenya; however, he has experienced discrimination because he is different.
The Tribunal questioned the applicant about his Seventh-day Adventist religious beliefs. The applicant said his mother is Seventh-day Adventist and his father is Catholic. He identifies as a Seventh-day Adventist. He provided the Tribunal with his Baptismal Certificate. He would attend church every Sabbath and would take part in Bible classes with fellow parishioners. He used to attend church in Australia but stopped because of cultural differences.
The Tribunal asked the applicant if he had experienced persecution in Kenya because of his religious beliefs. The applicant said he did not experience persecution but he did experience discrimination because his views and interpretation of the Bible were different from the Seventh-day Adventist Church authority. The Tribunal noted that he had not previously made these claims in his statement. He said it makes it more difficult for him to get support of the church because he has different opinions and the church is in opposition to change. He said that he is not calling for big changes.
The applicant explained that unlike Australia where there are welfare systems in place, in Kenya a person is dependent on their neighbours for support. He claims the Seventh-day Adventist community provides support to its followers. For example if someone dies the people get together and contribute towards the funeral and there are communal meals.
The applicant said that his religious views have also been shaped by his time in Australia. By way of example the applicant said he does not want to ignore science when discussing religion. The applicant said that in Australia everything is focussed on systems and in Kenya everything works on culture and togetherness. His differences come down to the way his church community interprets parts of the Bible. The Tribunal questioned the applicant about his commitment to the Seventh-day Adventist Church noting that he was not currently attending church in Australia. The applicant said he was not attending church due to cultural differences. He said he would continue to attend church if he returned to Kenya.
The Tribunal found the applicant’s evidence about his interaction with the church authorities in Kenya vague. For example it is unclear when the issue arose, who he spoke to or how his views are different.
The Tribunal referred the applicant to media reports which confirm that the Kenyan Supreme Court Chief Justice (David Maraga) is a Seventh-day Adventist.[5] The Tribunal noted that being a Seventh-day Adventist did not prevent people from achieving high office in Kenya. The Tribunal also referred the applicant to country information which confirms that the Constitution of Kenya prohibits religious discrimination and protects religious freedom, including the freedom to practise any religion or belief through worship, teaching, or observance and to debate religious questions. [6] The applicant did not dispute the information and was aware that Maraga was a Seventh-day Adventist.
Findings
[5] “Seventh-day Adventist and Kenyan Supreme Court Chief Justice Gains Fame and Praise in Election Ruling and more news shorts” 6 September 2017 Spectrum USDOS Kenya 2016 International Religious Freedom Report, Executive Summary
The first issue in this case is for the Tribunal to determine whether the applicant satisfies one or more of the criteria for a protection visa prescribed by s.36(2) (well-founded fear of persecution). Specifically, the applicant claims to fear persecution in Kenya because of his religion, ethnicity and his imputed political opinion.
The applicant travelled to Australia as a holder of a passport issued by the Republic of Kenya. The Tribunal has assessed the applicant’s claims against Kenya as the receiving country. The Tribunal finds that the applicant is a member of the Kikuyu tribe and that he is a Seventh-day Adventist (Protestant Christian denomination).
The Tribunal finds that in the case of a person who had fled his country of nationality the assessment of well-founded fear of persecution would naturally commence with a consideration of the situation in the area where the person had previously lived (or other home area to which the person had similar or substantial ties).
The applicant grew up in [County 1], Central Province of Kenya. His parents continue to reside in the Central Province. The Tribunal has assessed the applicant’s claims of fear of persecution in Kenya in relation to the Central Province, the applicant’s home area.
Religion
At the hearing the applicant said he will be isolated from the church because the church elders in Kenya do not agree with some of his views which he expressed in Bible class. As a consequence he fears he will not be able to rely on the church’s support systems in Kenya in the future.
In assessing the applicant’s claims the Tribunal has had regard to the following country information prepared by the USDOS:
The constitution stipulates there shall be no state religion and prohibits religious discrimination. It provides for freedom of religion and belief individually or in communities, including the freedom to manifest any religion through worship, practice, teaching, or observance. The constitution also states individuals shall not be compelled to act or engage in any act contrary to their belief or religion. These rights shall not be limited except by law, and then only to the extent that the limitation is “reasonable and justifiable in an open and democratic society.”
The Tribunal accepts that the applicant took part in Bible classes with fellow parishioners and may have held views about parts of the Bible that are different to those held by the Seventh-day Adventist church authority/elders. The Tribunal finds that his views did not prevent him from attending church in Kenya.
The applicant confirmed at the hearing that he still adheres to the Seventh-day Adventist faith and would continue to attend church in Kenya in the future. The applicant also confirmed at the hearing that he did not come to Australia because he had a conflict with the Seventh-day Adventist Church in Kenya. The Tribunal finds that despite the applicant’s claim that he held different views from the elders he travelled to [a country in the EAC] to attend a [religious conference] in [2011]. The Tribunal finds the applicant continued to attend church every Saturday prior to arriving in Australia. The Tribunal finds however that the applicant’s reason for not attending the Seventh-day Adventist Church in Australia was not due to any theological differences but due to cultural differences.
The Tribunal does not accept that the applicant’s personal religious views will cause him to be isolated from his church community in Kenya such that he will not have any community support. The Tribunal also finds the authorities in Kenyan have not imposed any restrictions on the applicant’s ability to practice his religious beliefs. The Tribunal finds that the applicant will be able to attend the Seventh-day Adventist Church and practice his religion when he returns to Kenya in the reasonably foreseeable future.
Looking to the reasonably foreseeable future the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm in Kenya because he will not be able to practice his religion. The Tribunal finds that the applicant’s fear of persecution because of his religious beliefs is not well-founded.
Fear of al-Shabaab
The applicant also claims to fear being targeted by al-Shabaab for reason of his Christian religion and because he is from the Kikuyu tribe.
In assessing the applicant’s claims of fear of religious persecution in Kenya the Tribunal has had regard to the following country information prepared by the USDOS:
The U.S. government estimates the total population at 46.8 million (July 2016 estimate), of which approximately 83 percent is Christian and 11 percent Muslim. Groups constituting less than 2 percent of the population include Hindus, Sikhs, and Bahais. Much of the remaining 4-5 percent of the population adheres to various traditional religious beliefs. Protestants account for 48 percent of the population, Roman Catholics 23 percent, and other Christian denominations, including evangelical Protestants and Pentecostals, 12 percent.
…
There were reports by human rights groups of extrajudicial killings of members of Muslim groups by the government. Muslim groups said that the government linked the entire Muslim community with the terrorist group al-Shabaab, and discouraged, through intimidation, Muslim community members from reporting police misconduct. Muslim community leaders also stated they faced difficulties obtaining official identification documents, which they needed for voting and access to government and financial services. As religion and ethnicity are closely linked, it was difficult to categorize many incidents as being solely based on religious identity.
…
During terrorist attacks in northeast Kenya, multiple reports stated attackers targeted non-Muslims. On October 6, al-Shabaab claimed responsibility for an attack that killed six people in a residential compound in Mandera County, and stated it had targeted and killed Christians. On October 25, al-Shabaab claimed responsibility for a similar attack that killed 12 people at a hotel in Mandera. A similar attack resulting in the death of four people occurred on January 31 in Lamu County. Overall, there were fewer attacks on civilians by al-Shabaab and fewer resulting civilian casualties than in the previous two years.[7]
[7] >
The Australian Government provides the following information on al-Shabaab[8]:
Al‑Shabaab, or ‘the youth’, is the name generally applied to the Somali militant group which was formerly the most prominent of the militia groups comprising the militant wing of the Council of Islamic Courts (CIC). The Somali Transitional Federal Government and Ethiopian forces ousted the CIC in December 2006.
Al‑Shabaab established itself as the leading insurgent group operating in Somalia and, following the withdrawal of Ethiopian forces in January 2009, al‑Shabaab controlled the majority of the country. The intervention of Kenyan and Ethiopian forces from 2011 drove al‑Shabaab from Mogadishu and much of southern and central Somalia. Following its displacement and a pledge of allegiance to al‑Qa’ida in February 2012, al‑Shabaab shifted from conventional military tactics and governance to using guerrilla operations against domestic and foreign security forces and the Federal Government of Somalia (FGS). Al‑Shabaab has also exhibited the intent and capability to undertake mass casualty terrorist attacks on targets outside Somalia.
Al‑Shabaab's primary objective is the establishment of an Islamic state in Somalia based on Islamic law and the elimination of foreign ‘infidel’ influence. This ‘Islamic Emirate of Somalia’ would include Somalia, Somaliland, Puntland, north‑eastern Kenya, and the Ogaden region of Ethiopia and Djibouti. In pursuit of this objective, al‑Shabaab has waged a violent insurgency and conducted terrorist attacks against the FGS and foreign forces contributing to the African Union Mission in Somalia (AMISOM).
Al‑Shabaab has also undertaken mass casualty attacks on targets outside Somalia with a focus on Kenyan interests in retaliation for its intervention since 2011. Al‑Shabaab has publicly stated that they are ‘at war with Kenya’.
[8] >
In assessing the applicant’s claims that he fear harm from al-Shabaab if he returns to Kenya the Tribunal accepts that the applicant is a Christian and that al-Shabaab have targeted non-Muslims in Kenya. In relation to the applicant’s claim that al-Shabaab target people of the Kikuyu tribe (race) the Tribunal has had regard to country information and does not accept the applicant’s claim. Specifically, The Tribunal has had regard to a report prepared by George Kegoro, Executive Director of the Kenyan Section of the International Commission of Jurists. Mr Kegoro reported that al-Shabaab target non-Muslims in Kenya. He reports that Kenyan’s political leaders falsely attempted blame the local ethnic and tribal groups in Kenya for attacking the Kikuyu community for their own political gains. In particular it was reported:
Since the Westgate attacks, all the major acts of terrorism in Kenya have seen the targeting of non-Muslims, while sparing any Muslims caught in harm’s way. The Westgate Mall attack was followed by killings in Mpeketoni, a village near the tourist resort of Laum Island, near Kenya’s border with Somalia, where again, the terrorist targeted only non-Muslims.
Again, the government was initially reluctant to acknowledge that the Lamu attacks targeted non-Muslims. Instead, President Uhuru Kenyatta depicted the Lamu violence as ethnically, rather than religiously, targeted, explaining that “local networks” in the mainly indigenous Muslim population were responsible for attacks on members of the Kikuyu community, a mainly Christian minority settled in Lamu.
It turned out eventually that the attacks had targeted all non-Muslims in the area, and not just the Kikuyu. By characterizing the attacks as ethnic rather than religious, the president appropriated victimhood to the Kikuyu community, from which he hails, which even though the largest minority, is not the only group of outsiders in the area. Since Al Shabaab [sic] had already claimed responsibility for the attack, the president thus absolved it from blame.
The two latest attacks in Mandera, Kenya’s northern-most town near the border with Somalia, also saw the separation of Muslims from non-Muslims. In the first of the Mandera killings, terrorists staged a nighttime ambush on a long distance passenger bus that was departing from Mandera, identified Muslim passengers whom they spared as they shot dead 28 non-Muslim passengers, a spectacle the Muslims were compelled to witness. In the second attack, terrorists ambushed poor non-Muslim migrant laborers, asleep in tents at night, killing 36 people.
Following the Mandera attacks, the government, for the first time, openly acknowledged that Al Shabaab [sic] were carrying out religiously targeted killings. By then, however, this had become common knowledge and was openly discussed in the media. While Kenyatta had initially described the Lamu attacks as ethnic-targeting on members of the Kikuyu community, he changed his mind after the Mandera attacks and now referred to “attacks on Christians in Lamu.”[9]
For the following reasons, the Tribunal is not satisfied that there is a real chance the applicant will face serious harm from al-Shaaba in Kenya.
Firstly, The Tribunal notes that Christians in Kenya amount to 82% of the population, in a country with a total population of around 46 million.[10] The Tribunal considers it mere speculation to say that all Christians in Kenya face a real chance of attack by al-Shabaab.
[10] Kenya 2016 International Religious Freedom Report >
Secondly, the Tribunal has had regard to the most recent USDOS Human Rights Report for Kenya and notes that overall, there were fewer attacks on civilians by al-Shabaab and fewer resulting civilian casualties than in the previous two years.[11] The Tribunal has also had regard to country information referred to in the delegate’s decision that reports that Kenyan security forces have undertaken several campaigns to isolate and eradicate al-Shabaab’s presence in Kenya and for most part have been successful in dismantling their cells with the country. However al-Shabaab still presents a threat from their base in Somalia and are currently clashing with Kenan and other security forces in Somalia.[12]
[11] Kenya 2016 International Religious Freedom Report p.6 Kenya’s scorecard on security and justice : Broken promises and unfinished business", International Federation for Human Rights (FIDH), 03 August 2017, CISEDB50AD5442
Thirdly, the Tribunal notes that the applicant’s home area is [a town in County 1], Central Province of Kenya. The Tribunal notes that the majority of al-Shabaab attacks in Kenya have been in the coastal tourist area and north-eastern Kenya, areas bordering Somalia.
The Tribunal has had regard to the applicant’s profile and is not satisfied that there is a real chance that the applicant will face serious harm from al-Shabaab in the reasonably foreseeable future in Kenya because he is a Seventh-day Adventist (non-Muslim) who is from the Kikuyu tribe. The Tribunal finds that the applicant’s fear of persecution from al-Shabaab because of his race and religion is not well-founded.
Fear of harm from Mungiki
At the hearing the applicant confirmed that he does not fear being recruited by the Mungiki. The applicant claims that through his work and his profile as a Seventh-day Adventist, westernised member of the Kikuyu tribe he would come to the attention of the Mungiki. He claims he would have to work two jobs, one of which may be in an industry which is dominated by the Mungiki such as matatu. He claims the Mungiki control much of the economy and subject Kikuyu business people to extortion. The applicant claims that he would refuse to co-operate with the Mungiki because of his Christian beliefs and therefore he will face serious harm.
In assessing the applicant’s claim that he fears harm in Kenya form the Mungiki the Tribunal has had regard to the Landinfo Country of Origin Information Centre Report titled Kenya: Mungiki – Abusers or abused? The report confirms that Mungiki reject Christianity and advocates to the return to African traditional beliefs and practices. Members are not allowed to worship in church. Most Mungiki members are very poor with little or no education. They draw their support from thousands of people who have been displaced by ethnic conflict in Kenya. Some members are forcibly recruited. They have a strong presence in the slums of Nairobi where they operate a protection brackets focusing on poor slum dwellers, small businesses and transport sector in the city.[13]
[13] Landinfo Country of Origin Information Centre Report titled Kenya: Mungiki – Abusers or abused? 29 January 2010 p.8 to 10

The Landinfo report confirms that the police in Kenya have been brutal in their crackdown of the Mungiki establishing death squads (kwekwe).[14] It has also been reported that the Mungiki claim to have recruited police officers who have taken oaths and are loyal to the group. [15]
[14] Landinfo Country of Origin Information Centre Report titled Kenya: Mungiki – Abusers or abused? 29 January 2010 p.13
[15] Landinfo Country of Origin Information Centre Report titled Kenya: Mungiki – Abusers or abused? 29 January 2010 p.14
The report states:
As the movement turned into a criminal group in 2002-2003, and to a larger extent abused Kikuyus, rather than protected them from being abused, it seems that the number of followers has declined. Even though the group has recruited new members after the upheaval in 2008, it is unlikely that the group have regained the strength it possessed in the 1990s as a social reform movement.(p.8)
…
According to Crisis Group (2008, p. 15), Mungiki is extorting members of the Kikuyu business community, and probably also submit land owners and middle-class property owners to pressure for funding and protection. Thus, increasingly, Kikuyus who are not adherents to Mungiki are dissatisfied with, and confront, Mungiki’s operations and practices.
The historian and Africanist Gérard Prunier (2009, p. 5) describes Mungiki as a powerful criminal organization, which gets its income from a protection racket directed at matatu operators and from drug dealing. The groups also entertains a complex relationship with the Kikuyu political elite. Some Kikuyu political operators use the gang as a hit squad in violent political situations, while others, particularly businessmen, loathe it as a dangerous predator which tends mainly to exploit them in the name of a spurious conception of ethnic solidarity. As a result, Mungiki is at the same time a favoured tool of Kikuyu ethnic extremists and a public enemy of organized Kikuyu business forces (Prunier 2009, p. 5). Mungiki is reported to be involved in drug trade, but this is contested by Safer Access (2007).(p.15)
The Tribunal has had regard to the applicant’s profile as an educated, westernised, Christian, Kikuyu male in assessing whether there is a real chance the Mungiki will cause him serious harm in Kenya. The Tribunal has had regard to the applicant’s work skills, qualifications and employment history. According to the applicant’s resume he was self-employed in the period September 2011 to 2012 working in [a certain industry] in Kenya. He described his duties as “[details of occupation].” In the period December 2013 to July 2014 he described himself as [Occupation 1] in Nairobi, Kenya. He provided the following description of his duties “[details of Occupation 1].” He provides a detailed list of his accomplishments on his resume which disclosed that he has practical skills in [his field]. Since arriving in Australia he has used his [skills] worked as [Occupation 1] for [Company 1]. He has never worked as a minibus driver or in the transport industry in Kenya. The Tribunal finds that the applicant’s work skills are not in areas traditionally controlled by the Mungiki in Kenya. The Tribunal finds that the applicant’s skills, education and qualifications place him in a strong position to continue his [work] in the Central Province of Kenya. Having regard to the applicant’s skills and past work experience the Tribunal also does not accept he would have to secure a second job in an industry which is dominated by the Mungiki in Kenya.
The applicant has not claimed that his previous work in Kenya has brought him into contact with the Mungiki. He has not been a victim of extortion by the Mungiki in the past because of his ethnicity or education.
The Tribunal accepts that Mungiki are opposed to Christian beliefs and target Kikuyu males. As discussed above the Tribunal notes that 83 per cent of the population of Kenya are Christians and the Kikuyu are the largest ethnic group in Kenya.[16] The Tribunal also notes that the applicant as a Kikuyu male does not come within the profile of a person who would be recruited by the Mungiki (unemployed, uneducated, displaced Kikuyu male).
[16] What you didn’t know about the Kikuyu Community, Standard 19 November 2013 >
Having regard to the applicant’s profile the Tribunal considers it mere speculation to say that as a westernised, Christian who is from the Kikuyu tribe he would face a real chance of serious harm from the Mungiki in the Central Province of Kenya.
The Tribunal has had regard to the applicant’s profile and is not satisfied that there is a real chance that the applicant will face serious harm from the Mungiki in the reasonably foreseeable future in Kenya because he is a westernised Seventh-day Adventist who is form the Kikuyu tribe. The Tribunal finds that the applicant’s fear of persecution from the Mungiki because of his race and religion is not well-founded.
Kikuyu ethnicity (race)
As detailed above the Kikuyu tribe is largest tribe in Kenya that are found in Nairobi and Central Kenya. They make up 22 per cent of the population of Kenya. Many Kikuyu people have also migrated to other towns and cities in Kenya where they are involved in small business ventures. The Kikuyu tribe have also moved to the west side of the Rift Valley into what was traditionally Kalenjin territory. It is reported that they are generally well educated and many Kikuyu tribes people work as large-scale farmers growing tea and coffee.[17]
[17] What you didn’t know about the Kikuyu Community, Standard 19 November 2013 >
USDOS reports that there are 42 ethnic groups in Kenya of which the Kikuyu make up 6.6 million persons. It is reported that:
The Kikuyu and related groups dominated much of private commerce and industry and often purchased land outside their traditional home areas, which sometimes resulted in fierce resentment from other ethnic groups, especially in the coastal and Rift Valley areas.
Many factors contributed to interethnic conflicts: long-standing grievances regarding land-tenure policies and competition for scarce agricultural land; the proliferation of illegal guns; cattle rustling; the growth of a modern warrior/bandit culture (distinct from traditional culture); ineffective local political leadership; diminished economic prospects for groups affected by regional droughts; political rivalries; and the struggle of security forces to quell violence. Conflict between landowners and squatters was particularly severe in the Rift Valley and coastal regions, while competition for water and pasture was especially serious in the north and northeast. Between February and May, at least five persons were killed and scores injured in a clash to control the government-run Agricultural Development Corporation farm in the Rift Valley, which multiple ethnic communities claimed to own.
There was frequent conflict, including banditry, fights over land, and cattle rustling, among the Somali, Turkana, Gabbra, Borana, Samburu, Rendille, and Pokot ethnic groups in arid northern, eastern, and Rift Valley areas that at times resulted in deaths. Disputes over county borders were also a source of ethnic tensions. For example, three persons were killed in January when the Samburu and Ndorobo communities clashed over grazing areas in Leparua on the border of Isiolo and Laikipia Counties; media reported that 60 stolen cows were recovered through joint efforts by the public and police. Intercommunal and resource-based violence also occurred in Baringo, Merua, Marsabit, and Wajir Counties.
Ethnic differences also caused a number of discriminatory employment practices.[18]
[18] p.44-52
The applicant claims that historically non-Kikuyu tribes target Kikuyu people and their business outside the Central Province. At the hearing the applicant claims he will be prevent him from purchasing land and operating a business outside the Central Province of Kenya. If he purchased land or works outside the Central Province he will be targeted by non-Kikuyu tribes.
The Tribunal notes that there are many factors contributed to interethnic conflicts in Kenya. In assessing the applicant’s claims the Tribunal accepts that the Kikuyu dominated much of private commerce and often purchased land outside their traditional home areas which resulted in resentment. The Tribunal also accepts that in 2007-2008 Kenya was gripped in inter-ethnic violence. Looking to the reasonably foreseeable future, the Tribunal considers it mere speculation to say that all Kikuyu people in Kenya will suffer significant harm from non-Kikuyu tribes because of their race alone or because they seek to work or purchase land outside the Central Province.
To be clear the Tribunal does not accept there is a real chance the applicant as a member of the largest ethnic group (the Kikuyu tribe) will face persecution in Kenya because of his race.
As discussed above the applicant is an educated and skilled individual. His family originate from the Central Province where they continue to reside. The Kikuyu tribe is dominant in the Central Province where the applicant has strong prospects of finding employment in [his field]. The Tribunal also finds the applicant’s employment prospects in Kenya are not resource-based or dependent on him purchasing land which may bring him into conflict with other tribes. The Tribunal has also had regard to the applicant’s past work experience and finds he has a history of working as [Occupation 1] in [his field].
Looking to the reasonably foreseeable future the Tribunal does not accept that there is a real chance the applicant will suffer serious harm from non-Kikuyu tribes because he is from the Kikuyu tribe and will have to find employment or purchase land outside the Central Province in Kenya. The Tribunal finds that the applicant’s fear of persecution because of his Kikuyu ethnicity is not well-founded.
Imputed political opinion
The applicant claims that as a person of Kikuyu ethnicity he will be perceived to be a supporter of the dominant political party and ethnic group in Kenya, (the Kikuyu tribe). He fears he will be harmed by other ethnic groups because he is from the Kikuyu tribe and because of his imputed political opinion.
The applicant referred the Tribunal to country information detailing ethnic violence during the 2007 Kenyan presidential elections.[19] The applicant claimed that he observed the destruction of Kikuyu businesses when he was a student traveling through the eastern province of Kenya. He was fortunate at time not be harmed.
[19] Who are the Kikuyu? And why do Kenya’s other tribes resent them so much? Michela Wrong, 8 February 2008 >
The applicant referred the Tribunal to reports prepared by Human Rights Watch regarding human rights violations during the 2017 elections. The Tribunal has also had regard to recent media reports confirm that there have been high-profile condemnation of ethnically targeted police brutality in the 2017 election with the police seen as supportive of the Kikuyu ethnic group.[20]
[20] CXC90406616610: "Election leaves western Kenya angry and bitter", Integrated Regional Information Network (IRIN) -United Nations, 26 October 2017, (Opens in a new window)
The Tribunal accepts many people in Kenya vote on the basis of their tribal identity. The Tribunal also notes that Kenya’s current president Uhuru Kenyatta is from the Kikuyu tribe. The Tribunal accepts that the applicant may be perceived to be a supporter to Kenyatta and his political party because he is from the Kikuyu tribe. The Tribunal does not however accept that there is a real chance that he will suffer serious harm because of his imputed political opinion.
The Tribunal notes that Kenya held its general elections on 8 August 2017. The Tribunal notes that it was reported in August 2017 that:
The election was carried out peacefully, and there were few technical glitches compared with the previous poll, in 2013, when voting machines were afflicted by widespread malfunctions. An election in 2007, widely believed to have been flawed, touched off bloodshed that left at least 1,300 people dead and 600,000 displaced.
…
Most Kenyans say they do not want to see the kind of violence that nearly tipped the country into a civil war after the 2007 presidential election, and thousands have fled cities to avoid potential clashes. The police and troops were deployed to areas believed to be at risk of turning violent if there is a perception that the vote has been manipulated. [21]
[21] Kenyan Presidential Election is Peaceful; Violence Feared Over Results 8 August 2017 New Your Times, >
The Tribunal finds that the applicant last voted in 2007 elections in Kenya. The 2007 elections were marred by violent demonstrations and clashes between different ethnic groups. The Tribunal notes that the applicant did not experience any harm in the past 2007 and 2013 elections due to this imputed political opinion.
The Tribunal has had regard to the applicant’s profile and notes that he is not a member of any political party. He has not taken part in any election campaign in Kenya. He has not returned to Kenya since he arrived in Australia in July 2014 and has had no involvement in 2013 and 2017 elections. The Tribunal notes that the protracted election crisis of 2017 has now ended and Kenyatta has been sworn in as president.
The next presidential elections will be held in five years and it is not possible for the Tribunal to make any finding on how the applicant is likely to vote, if at all, in future elections.
As stated the applicant comes from the largest ethnic tribe that has which comprising 22 per cent of the population (about 6.6 million people) of Kenya. The Tribunal also notes that reports confirm that most Kenyans do not want to see ethnic violence that nearly tipped the country into a civil war after the 2007 presidential elections.
The Tribunal considers it mere speculation to say that because of his Kikuyu ethnicity and his perceived support for Kenyatta (Jubilee Party) he would face a real chance of serious harm from non-Kikuyu tribes and/or from political parties opposed to Kenyatta.
Having regard to the applicant’s profile the Tribunal does not accept that there is real chance that he will face serious harm if he returns to Kenya in the reasonably foreseeable future because he is from the Kikuyu tribe and he will be perceived to be a supporter of President Kenyatta and his Jubilee Party. The Tribunal is not satisfied that the applicant’s fear of persecution because of his imputed political opinion is well-founded.
Delay and timing of claims
The Tribunal has also had regard to the delay and timing of the applicant’s protection visa application. The Tribunal finds that after the applicant withdrew from his studies in August 2015 he did not seek to legalise his migration status. He did not make contact with the department or make enquires about applying for a protection visa until he was placed in immigration detention in August 2017.
The Tribunal finds it surprising that the applicant made the choice to work and remain unlawfully in Australia despite claiming that one of the reasons he travelled to Australia was for his security.
In conclusion, the Tribunal has considered the applicant’s claims both individually and cumulatively. The Tribunal does not accept the applicant has a well-founded fear of persecution for reasons of his Kikuyu ethnicity (race), religion and/or his imputed political opinion should he return to Kenya in the reasonably foreseeable future. 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).
Complementary protection criteria
The Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances. In this regard, the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Kenya, there is a real risk he will suffer significant harm.
The threshold for the ‘real risk’ element in the complementary protection criterion in s.36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s.36(2)(a).[22]
[22] MIAC v SZQRB (2013) 210 FCR 505 (special leave to appeal from this judgment was refused: MIAC v SZQRB [2013] HCATrans 323).
‘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.
In assessing the applicant’s claims under the complementary protection criteria the Tribunal has also had regard to the applicant’s profile as an educated, westernised, Christian, Kikuyu male who fears harm from the terrorist group al-Shabaab, the Mungiki and people from non- Kikuyu tribes.
The Tribunal relies on the country information to find that al-Shabaab are primarily active in the counties on the border with Somalia, such as Garissa and Mandera. The Tribunal find that there are not substantial grounds to believe the applicant faces a real risk of suffering significant harm from al-Shabaab in the Central Province of Kenya.
For the same reasons set out above the Tribunal is also not satisfied there is a real risk the applicant will be forcibly recruited by the Mungiki. For same reasons as detailed above the Tribunal is not satisfied that there is a real risk that the applicant will be subjected to extortion or threats by Mungiki because he would have to work in industries that are controlled by the Mungiki in Kenya.
The Tribunal also does not accept the applicant will be subjected to degrading treatment or punishment because his Christian values will be compromised or threatened by the Mungiki.
The Tribunal finds the applicant comes from the largest ethnic tribe which comprising 22 per cent of the population (about 6.6 million people) of Kenya. The 2017 election have now concluded and President Kenyatta has been sworn into office. The Tribunal finds that there is no real risk the applicant will face significant harm from non-Kikuyu people or those opposed to Kenyatta and the Jubilee party because of his Kikuyu ethnicity or because of his imputed political opinion.
Having considered the country information and the applicant’s personal circumstances, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Kenya, there is a real risk he will suffer significant harm from the non-Kikuyu tribes, al-Shabaab or the Mungiki.
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 the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christopher Smolicz
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.
…
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.
…

[9] The Object of Al-Shabaab Terror: To Set Up Caliphate in Kenya,

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Citations

1721243 (Refugee) [2017] AATA 3021

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Minister for Immigration and Citizenship v SZQRB [2013] HCATrans 323

AWL17 v Minister for Immigration and Border Protection [2018] FCA 570