1725373 (Refugee)

This matter concerned an appeal by a Kenyan national against a decision of the Refugee Tribunal to refuse his application for a protection visa. The applicant claimed he feared returning to Kenya due to threats against his life, stemming from alleged involvement in testifying against a government official. He also asserted that Kenyan authorities would be unable to protect him and that internal relocation was not a viable option.

The primary legal issues before the court were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth) (the refugee criterion) or, alternatively, under section 36(2)(aa) (the complementary protection criterion). This required the court to assess the applicant's credibility and determine if there were substantial grounds for believing he faced a real risk of significant harm if returned to Kenya.

The Tribunal found the applicant to be not a witness of truth, concluding that he had manufactured his protection claims to achieve a positive migration outcome. The Tribunal was not satisfied that the applicant had a profile as a witness against the government official, that threats were made concerning this claimed profile, or that his fear of harm was genuine. Consequently, the Tribunal was not satisfied that the applicant faced a real risk of serious harm in Kenya on account of his race, religion, nationality, membership of a particular social group, or political opinion, nor that there were substantial grounds for believing he would suffer significant harm upon removal.

The Tribunal affirmed the decision to refuse the protection visa, finding that Australia did not have protection obligations towards the applicant under either the refugee or complementary protection criteria.