1725373 (Refugee)

1725373 (Refugee) [2021] AATA 2091 (14 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1725373

COUNTRY OF REFERENCE: Kenya
MEMBER:Nathan Goetz
DATE:14 May 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 May 2021 at 11:24am
CATCHWORDS
REFUGEE – protection visa – Kenya – political opinion – testimony against government official – fear of killing – state protection – internal relocation – delay in applying for protection – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65, 424, 425
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
On 26 April 2013 the applicant was offshore and applied for a student visa. This visa was granted on 11 June 2013. The applicant arrived in Australia [in] June 2013 holding the student visa. [In] June 2014 the student visa ceased. That same day, he applied for a student visa as a dependent partner of [Ms A]. He was granted a bridging visa on 13 June 2014 to regularise his migration status while the student visa application was considered. On 22 July 2014 the student visa was refused. The bridging visa ceased on 19 August 2014.
On 10 April 2015 he applied for a protection visa. On 22 April 2015 he was granted a bridging visa to regularise his migration status. The applicant participated in an interview with the delegate on 11 May 2017. On 22 September 2017 the delegate refused to grant the protection visa.
On 17 October 2017 the applicant applied to the Tribunal for a review of the refusal decision. He provided an address in New South Wales and his case was allocated to the Sydney registry.
The Tribunal considered the material it had and was unable to make a decision in the applicant’s favour. On that basis, the Tribunal was required to invite the applicant to appear at a Tribunal hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review: s.425
On 25 March 2021 the applicant was invited to appear at a three-hour Tribunal hearing commencing at 10:00am on 13 May 2021 at the Sydney Registry.
The applicant appeared at a Tribunal hearing on 13 May 2021. He was not represented for the review application.
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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Protection visa application form
According to the form which was completed with the assistance of migration agent [named], the applicant identifies as [an age]-year-old male citizen of Kenya. He was born in Uasin, in Gishu, Kenya. He can speak, read and write English and Bantu Swahili. He does not identify as belonging to any ethnic group or any religion. He has never been in a married or de facto relationship. He declares a mother and father, and [number of] siblings who reside in Kenya. He declares he has a former fiancée [Ms A] who is in Australia. He telephones family in Kenya. He declares no employment, either current or historic.
He noted his last arrival in Sydney, Australia [in] June 2013. He entered as a student. He travelled on a Kenya passport. He had an Australia visa refused. This was a student visa where he was a dependent. This was rejected on 1 October 2014. He completed a [Course 1] at [College 1] in July 2014. He declared that he overstayed his visa.
The applicant applied for a protection visa so he did not have to return to Kenya. He left Kenya to study in Australia for a better education. He was asked what he thought would happen to him if he returned to Kenya. He wrote that he had been threatened with his life. He believes he will be killed. People have said that he had gone to [Country 1] to testify against [a government official, Mr B]. He noted that he had not experienced harm in that country. He did not try to move to another part of Kenya as he was not under threat until after the General Election in 2013. The applicant believes that he will be harmed or mistreated if he returns to Kenya because villagers have threatened to kill him, and he had doubts on the government officials’ team. They promise to kill him any chance they get. He fears for his life. Some people who face the same allegations as the applicant have been killed already. He does not think that the authorities can and will protect him because others have been killed before. The government is corrupt. He believes that he will be killed or seriously injured. He does not think that he will be able to relocate within Kenya.
He provided a copy of the biometric page of his Republic of Kenya passport, which was issued [in] 2012 expiring [in] 2022, as well as a copy of his student visa grant notice for his 26 April 2013 application.
Department file – Statement from the applicant
The undated statement addressed the refusal reason of 13 August 2015. This related to the decision to refuse the applicant a student visa on the basis that the department was not satisfied that he was a dependent. The applicant wrote that he was no longer in a relationship with the partner whom he lodged the dependent student visa application with. The relationship ended approximately a year ago, so it was not possible for him to obtain documentation about her financial circumstances. He said the student visa was organised by an agent in Kenya and that his [relative] paid part of his school fees and his flight to Australia. His [relative] paid the initial $3500 and he the applicant paid another $1760 from savings he had from working. He found a job in September 2013 which allowed him to meet his living expenses. He studied until May 2014 but was not able to continue studying as he had mental health concerns due to stories he heard back home. His student visa expired in June 2014 and he lodged the application as a spouse on his partner’s student visa.
Department file – Statement from the applicant
The applicant wrote a statement dated 15 June 2015 where he said that his [relative] in Kenya paid half of his tuition fees. The [relative] did not support him once he arrived in Australia because there was a family conflict. He claimed to have had no contact with his [relative] since around October 2013.
Department file – Request [number]
This document related to the applicant’s student visa that was granted on 11 June 2013. The notes indicated that at the time of applying for the student visa, the applicant had provided a bank statement belonging to [Mr C]. This person had provided a financial support letter on behalf of the applicant and provided [a] bank statement for a 6-month period with 6,129.573.15 Kenyan shillings. The same case note identifies that the person sponsoring the applicant is his [relative]. For the sake of completeness, the Tribunal notes that the bank statement was found to be genuine.
Department file - Reference [number]
This document dated [date] was presumably obtained by the delegate. It is titled ‘[title]’ and notes that [a specified Court] had abandoned the prosecution of [Mr B] who had been accused [of a charge]. The proceedings were declared by the presiding judge to be a [mistrial].’
Delegate interview on 11 May 2017 – 42 minutes
The applicant participated in an interview with the delegate to discuss his claims. The Tribunal listened to the recording of the delegate interview. Where relevant to the Tribunal’s findings, the applicant’s oral evidence is detailed below.
At the delegate interview, the applicant said that he was financially supported for his student visa by his [relative], who he identified as [Mr D]. He was asked who [Mr C] was and the applicant indicated that he did not know this person.
The applicant said that he did not return to Kenya because while he was studying in Australia, he got reports that people thought that the applicant left Kenya in order to [testify] against [Mr B]. The delegate asked who said this to the applicant. The applicant said that it was a phone call from his parents at the end of 2013. His parents told him that there were allegations against the applicant and people were looking for him.
He told the delegate that his father had gone to a local court in Kenya to get justice for the applicant. He went to the court, but the case was postponed.
The applicant confirmed that he did not want to make any corrections to his protection visa application form. There was nothing false or misleading in it.
For the sake of completeness, none of the evidence contained in the Department file is ‘information’ that would be a reason, or part of the reason, for affirming the decision under review. However, some of the evidence suggested to the Tribunal that the applicant was not a witness of truth. The Tribunal’s assessment of the evidence, in terms of it providing inconsistencies, is not subject to the s.424AA procedure.
Country Information relevant to the applicant’s claims
There is no DFAT country information report on Kenya. Kenya is situated on the equator in East Africa. It has an Indian Ocean coastline and the Rift Valley runs through the country. The official languages are Kiswahili and English. Since gaining independence in 1963, Kenya has played a major role in humanitarian, maritime and regional security issues in the Horn of Africa. From 2021, Kenya will serve a two-year term on the UN Security Council. The capital Nairobi is one of the fastest-growing cities in Africa and serves as a major regional hub for the United Nations, multilateral organisations and diplomatic missions.[1]
[1] Kenya | Australian Government Department of Foreign Affairs and Trade (dfat.gov.au)
So far as relevant to the applicant’s claims, the Tribunal had regard to the material available on the website of [the Court] concerning the prosecution of [Mr B]. The Tribunal notes that the case against [Mr B] was terminated by [the Court] on [date] by majority judgment. According to the website, the case was stopped because at the end case for the prosecution, the Defence requested the Chamber to terminate the case and acquit the accused, on the basis that the evidence presented by the prosecution was weak. However, the Chamber declined to enter a judgment of acquittal. This was because [of specified evidence], meaning that the case should be declared a mistrial, leaving the possibility of future prosecution. This decision does not preclude a new prosecution in the future.[2] The same website details the timeline of the prosecution, with summonses issued for [Mr B] in [year].[3]
[2] [Source deleted]
[3] [Source deleted]
Oral evidence given to Tribunal
Where relevant to the Tribunal’s findings, the applicant’s oral evidence is detailed below.
The Tribunal noted to the applicant that he arrived on a student visa in Australia [in] June 2013 and the visa was valid [until] June 2014. He told the Tribunal that his plan was to come to Australia, complete his studies and return back to Kenya.
The applicant told the Tribunal that he did not return to Kenya when his student visa ceased [in] June 2014 because he was told there were allegations made against him that he was a witness in [the] prosecution of [Mr B]. The Tribunal asked when he was told of these allegations. He said it was in May 2014.
The person who told him this was his [relative] [Mr D]. He told the applicant this over a phone call. The applicant was asked to detail this conversation. The applicant said that he was told that when the applicant went to Australia people back home thought he went to [Country 1] to be a witness in the case. The applicant was asked how he felt hearing this. He said he felt bad. By that stage, some people had already been killed. Some were witnesses, while others were not. The applicant confirmed that he was not a witness and did not witness anything.
The Tribunal put to the applicant the inconsistent evidence he provided about when he was told about this threat and by whom. To the delegate, the applicant said that he was told about this threat at the end of 2013 by his parents. To the Tribunal, the applicant said that he was told about this threat in May 2014 by his [relative] [Mr D]. This inconsistency suggested to the Tribunal that the claim had been fabricated, because it would be reasonable to expect that the applicant would provide consistent evidence about something as basic as the reason for him becoming fearful of returning to Kenya. In response to the Tribunal’s concerns about this inconsistency, the applicant responded that he did not remember the times, but got the information from his [relative] and parents. He also said that when he got the information from his parents, that is when they moved homes.
Regarding the prosecution of [Mr B], the applicant told the Tribunal that he thought that the prosecution was pending because [Mr B] holds office, but that he thinks it will resume, but he was not too sure about it.
He told the Tribunal that he thought the people who would harm him would be ‘villagers or higher people.’ They would harm him because they think he is a traitor.
The Tribunal asked why the applicant did not lodge a protection visa in May 2014 after being told this. He said that it did not come to his mind that he could get a protection visa. The Tribunal queried why the applicant would lodge another student visa as a dependent of [Ms A] instead of lodging a protection visa. He said it did not come to his mind. The Tribunal asked if the applicant made enquiries about a protection visa. He said he did it through his agent. He told the migration agent about this call when he lodged the protection visa application. His migration agent told him about protection visas in 2015. The Tribunal asked why he would not tell his migration agent, who he said was the same agent that he used for the dependent student visa and the protection visa application, about his fear of returning to Kenya prior to that time when he lodged the dependent student visa. He said that if the student visa ‘went through’ there would be no need to apply for a protection visa because he would not need to return to Kenya.
The Tribunal put to the applicant its concern that the delay applying for the protection visa suggested that the claimed threat was fabricated in order to remain in Australia as an alternative to the student visa. The applicant said this was not true.
The Tribunal noted that student visas were temporary, meaning that the applicant would be required to return to Kenya. The applicant said that if it was completed, [Ms A] could apply for permanent residency later on because her studies were ‘[in Discipline 1]’ and these studies provided for permanent residency.
The Tribunal noted that the applicant indicated that he had completed a [Course 1] at [College 1]. The Tribunal asked when the applicant completed this course. He told the Tribunal that he did not complete the course. He stopped attending school around May 2014. The Tribunal asked why he claimed in the protection visa application form to have completed this course. The applicant said that he should have gone through the form before submitting it. The Tribunal noted that the applicant signed that the contents of the form were true and struggled to accept that the applicant would sign the form without reading the contents. The applicant said he trusted his migration agent.
The Tribunal noted that the applicant had not disclosed his residential history in Kenya as required by the form. The applicant said that he thought the question was about his residential history in Australia. The applicant said that he told his agent that he lived in [a named] town, in the Uasin-Gishu county, Kenya. The Tribunal enquired whether he lived at that address his entire time in Kenya. The applicant said that he lived in Nairobi for 4 years from [year] to [year] at a boarding school. The applicant told the Tribunal that his parents had subsequently moved to another place in Kenya.
The Tribunal asked the applicant why he declared in the protection visa application form that he had never been married or in a de facto relationship. The applicant said he had a girlfriend but did not know what the term de facto meant. The applicant said that his relationship with [Ms A] started back in Kenya in 2008 or 2009. They met at high school. The relationship ended in 2014 or 2015. He was unsure of the month. The applicant was asked whether he was engaged to be married to [Ms A]. He said no. The Tribunal asked whether the applicant had an intention to marry [Ms A]. He said yes. The Tribunal asked whether he asked [Ms A] to marry him. He said he did not propose. The Tribunal asked how he intended to be a dependent on her student visa if he did not ask her to marry him. He said he intended to get married. The Tribunal queried how he would be able to marry [Ms A] if he did not ask her to marry him. The applicant said he did not need to ask her to marry him.

The Tribunal asked the applicant who was [Mr C]. The applicant said he did not know. The Tribunal put to the applicant its concerns about his credibility, given that the applicant had told the delegate that his [relative] [Mr D] was the person who was financially supporting him for his first student visa application, but the Department Notes showed that the applicant had provided a financial letter of support from [Mr C], together with this person’s bank statements, and this person was identified as the applicant’s [relative]. The Tribunal had concerns that the applicant would apply for a student visa, attesting to the truth of the contents of that application, but the evidence about who provided the financial support would be fundamentally different. The applicant said that his [relative] [Mr D] was a businessman and he must have asked his brother to do this. There were lots of them. When the Tribunal asked whether ‘[Mr C]’ was [Mr D’s] brother, he said he did not know. He just knew [Mr D].
FINDINGS AND REASONS
The issue in this case is whether the applicant is a refugee, or a person who meets the requirements for complementary protection. The Tribunal must also consider whether the applicant is a member of the same family unit as a person who holds a protection visa because they are a refugee or meet the requirements for complementary protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
The applicant claims citizenship of Kenya with no right to enter and reside in a third country. The applicant provided a copy of his Kenyan passport. There is no information to suggest that the applicant is anything other than a Kenyan citizen. Therefore, the country of reference for the protection visa assessment is Kenya.
Applicant’s claimed profile as a person who is imputed to be involved as a witness in [the] proceedings against [Mr B]
The Tribunal first acknowledges that there was a case in [a named Court] against [Mr B]. The Tribunal accepts that [Mr B] was and remains [a government official in Kenya]. The Tribunal also accepts as a general proposition that if the applicant was imputed to be involved as a witness in this prosecution, and if there was a risk that he would be harmed as a result of this claimed profile, the risk would not necessarily diminish because the proceedings had been terminated. Although a review application is a de novo hearing and the findings of the delegate are irrelevant to the Tribunal’s task, the Tribunal does not understand how the delegate could be satisfied that ‘the motivation to harm the applicant is inexistent as is [court] case against [Mr B] at present,’ especially when, contrary to what the delegate wrote in the decision, [Mr B] was not ‘cleared of all charges.’ The delegate failed to reason why,
However, the Tribunal has ultimately concluded that the applicant does not have the claimed profile as a person who is imputed to be involved as a witness in [the] proceedings against [Mr B] for the following reasons.
Inconsistent evidence concerning the threat made against the applicant
The applicant has provided what the Tribunal considers to be drastically different evidence about when he was told about the threat made against him, and about the identity of the person who told him about this threat.
The applicant told the delegate that it was his parents who told him about the threat. They told him about this at the end of 2013. The applicant told the Tribunal that it was his [relative] who told him about this in May 2014. The applicant’s explanation about this inconsistency is not persuasive.
The Tribunal really struggles to accept that if the applicant’s knowledge of the existence of this threat, which is the basis of his fear, came about through a telephone call from a relative making him aware of this threat, he would not have provided inconsistent information about who told him about the threat, and when they told him. If the applicant’s explanation was to be believed about this inconsistency, namely that both his parents and [relative] had told him about this threat, then it was curious to the Tribunal that the applicant would not have told the Tribunal that he became aware of the threat at the end of 2013 when his parents told him this, as this occurred earlier.
Rather, the Tribunal is satisfied that the applicant was aware that the applicant’s evidence about being told about the threat at the end of 2013 would cause the Tribunal to doubt the truth of this claim, as it would demonstrate an even longer delay in applying for protection.
The claim that his [relative] [Mr D] told him in May 2014 by telephone about this threat is also inconsistent with the letter that the applicant wrote to the Department where he claimed, as of 15 June 2015, he had no contact with his [relative] until October 2013.
When the Tribunal considers this inconsistent evidence, in combination with the other concerns it has about the applicant’s credibility, it concludes that the applicant fabricated the claim that he was being sought by people who suspected that he had gone to [Country 1] as a witness in [specified] case.
Delay in applying for protection visa
The applicant applied for a protection visa on 10 April 2015 despite claiming variously that he became aware of the threat against him at the end of 2013, and/or during a May 2014 telephone call with his [relative]. Yet, instead of applying for a protection visa, he lodged a subsequent student visa with himself as a dependent. He did not raise this claimed fear of harm with his migration agent at that time. He only did so in 2017 when he lodged the protection visa application. The Tribunal really struggles to accept that if the applicant was genuine in his claim, that he would not have disclosed that to his migration agent at the time he lodged his subsequent student visa. Further, the fact that the applicant had the subsequent student visa refused on 22 July 2014, but did nothing to regularise his migration status until just over 7 months later when he lodged the protection visa application also demonstrates that the applicant lodged a protection visa for reasons not connected with Australia’s protection obligations. The Tribunal really struggles to accept that if the applicant was genuine in his claims, that he would not have delayed lodging his protection visa following the refusal of his subsequent student visa. The applicant has demonstrated an ability to navigate the migration system with an offshore student visa, and an onshore dependent student visa application. The Tribunal does not accept that the applicant would not have had the same ability to find out about a protection visa and lodge it once he became aware that he faced harm in Kenya because of his claimed profile.
When the Tribunal considers the delay in applying for protection, in combination with the other concerns it has about the applicant’s credibility, it concludes that the applicant fabricated the claim that he was being sought by people who suspected that he had gone to [Country 1] as a witness in the [specified court] case.
Demonstrated willingness to provide incomplete and incorrect information
The Tribunal also really struggles to accept that the applicant is a witness of truth when he has been prepared to put false evidence in his protection visa application form. The Tribunal does not accept the applicant’s explanation that any concerns about the contents of his protection visa application form can be attributed to the fault of his agent. The applicant signed the form and the Tribunal is at a loss to understand why a registered migration agent would decide to just invent information, noting the consequences to both the migration agent and the applicant. The applicant claimed in the protection visa form that he had completed a [Course 1]. His oral evidence was that he had not. The Tribunal is satisfied that the reason the applicant claimed in his form that he had completed this Diploma was an attempt by him to avoid an inference that he was a failed student who lodged a protection visa as a means to remain in Australia as an alternative to the student visa. While the Tribunal acknowledges that the applicant told the Tribunal that he had not completed the course, this does not dimish the fact that he put forward information in his form that was not the truth. The Tribunal suspects that the applicant only told the Tribunal the truth about whether he completed the Diploma was because he assumed that the Tribunal would already be aware of this fact.
The fact that the applicant did not disclose in the protection visa application form his residential history in Kenya was of concern to the Tribunal. The Tribunal struggles to accept that the applicant assumed this question meant his Australian residential address, as the form makes it clear that it relates to all residential addresses in the past 30 years. To the Tribunal’s way of thinking, the residential history was not detailed in the protection visa application form to provide the applicant with enough flexibility about where he was living at the time of the 2007-2008 riots which lead to [the] charges against [Mr B] so he could avoid the Tribunal potentially finding that there was no real risk to him because at the time he was living at a place not affected by the 2007-2008 riots. While the Tribunal acknowledges that the applicant told the Tribunal that he lived at one address in Kenya during his time there (apart from boarding at school in Nairobi) the Tribunal remains concerned that the applicant was prepared to withhold information that was asked of him in the protection visa application form.
The Tribunal initially was concerned about the applicant’s truthfulness about his relationship with [Ms A] which was the basis for his dependent student visa. The Tribunal discussed its concerns with the applicant. On reflection, the Tribunal accepts that it has no evidence that the applicant and [Ms A] lived together to enliven the term de facto relationship, and consequently the Tribunal cannot take issue with the fact that the applicant did not declare such a relationship in the protection visa application form. His failure to declare this relationship as a de facto relationship does not adversely affect his credibility.
However, the Tribunal remains concerned that the applicant was unable to provide any specific detail about when the relationship with [Ms A] ended. The applicant said it was 2014 or 2015. If the relationship ended in 2014, the question remains about whether it ended prior to the applicant applying for the dependent student visa, ended during the time when the application was being considered by the Department, or ended subsequently to the refusal decision being made. If it ended prior to the application being lodged, the question remains why the applicant would claim that he was a dependent. If it ended during the time that the application was being considered, then it is a question of why the applicant, at that stage knowing that he would no longer be a dependent on a student visa, he did not apply for a protection visa. If it ended subsequently to the dependent student visa being refused, then there is a question about why the applicant did not provide further information to demonstrate that he was indeed a dependent, noting that the Department Decision Record concerning the dependent student visa refusal which is on the present Department File notes that the applicant was asked to provide evidence that he was in a de-facto relationship for a period of 12 months with [Ms A]. The applicant provided no further information in response to this request but did provide a notice of intended marriage in support of the dependent student visa application at the time he applied.
This is relevant because, depending on when the relationship ended, the applicant would have been aware that his visa status in Australia was at an end. He would not have been eligible for the student dependent visa, and, if he were to be believed about the fact that he thought he would be granted the dependent student visa and not have to return to Kenya, it would have been reasonable to assume that he would have lodged a protection visa after the relationship ended. The Tribunal finds that the applicant’s vague evidence about when his relationship with [Ms A] ended was an attempt by him to avoid the Tribunal being able to pinpoint a time when it would have been obvious that he would need to apply for a protection visa. This demonstrates to the Tribunal that the applicant has a flexible approach to the truth and was prepared to muddy his evidence if he believed that it would assist him to achieve a positive migration outcome.
The Tribunal was also concerned about the inconsistent evidence given by the applicant relating to who it was that provided him financial support to come to Australia for his student visa. The applicant told the delegate and the Tribunal that it was his [relative] [Mr D], but as demonstrated by the Department Notes, the claimed [relative] who was providing him with financial support was a man named [Mr C], whose bank statement was provided. It is therefore very curious that the applicant, when he wrote to the Department as outlined above in response to the dependent student visa refusal, would state that he provided his [relative]’s bank statement, if his [relative] was not [Mr C]. The Tribunal has considerable unease about their being inconsistent information about something as basic as who it was that offered to financially support the applicant in Australia. In the Tribunal’s view, this inconsistency suggests that the applicant has a flexible approach to the truth about who it was that offered to financially support him in Australia. The Tribunal was concerned that there would be inconsistent evidence about such a basic issue and this demonstrated to the Tribunal that the applicant had a flexible approach to his obligation to tell the truth.
When the Tribunal considers the above concerns it has in combination with the other concerns it has about the applicant’s credibility, it comes to the conclusion that the applicant has a flexible approach to the truth and is prepared to provide whatever evidence he believes will help him achieve a positive migration outcome.
CONCLUSION
The Tribunal has considered all the evidence it has, including what the applicant said at the Tribunal hearing. Ultimately, the Tribunal has concluded that the applicant is not a witness of truth. The Tribunal is satisfied that the applicant has manufactured his protection claims in order to achieve a positive migration outcome, namely permanent residency in Australia through the grant of a protection visa.
The Tribunal is not satisfied that the applicant has or had a profile as a witness in [the] criminal case against [Mr B], is not satisfied that any threats were made concerning this claimed profile, that the applicant was told of the threat against him by either his parents or [relative], that his family tried to get justice for the applicant in Kenya by attending a local court, that the applicant refused to return to Kenya at the end of his student visa because he genuinely feared harm on account of his claimed profile, that he failed to return to Kenya any time subsequent to that because of his claimed profile, or that he lodged a protection visa because his fear was genuine.
The Tribunal is satisfied that the applicant has fabricated his protection claims in order to be granted a protection visa. The Tribunal is not satisfied that there is any truth to the applicant’s claim and rejects his claimed profile, reason for not returning to Kenya, and reason for lodging a protection visa application in their entirety. The applicant has a flexible approach to the truth and is prepared to say whatever he believes will help him achieve a favourable migration outcome.
The Tribunal is not satisfied that the applicant is of any adverse interest to any person, group or authority in Kenya.
Refugee
For the reasons given above, the Tribunal is not satisfied that there is a real risk of serious harm to the applicant in Kenya on account of his race, religion, nationality, membership of a particular social group or political opinion.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
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).
For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s removal from Australia to Kenya, there is a real risk that the applicant will suffer significant harm.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
There is no evidence 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.
Nathan Goetz
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 2091

14 May 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies