1810391 (Refugee)

[2021] AATA 4379

1810391 (Refugee) [2021] AATA 4379 (19 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1810391

COUNTRY OF REFERENCE:                   Kenya

MEMBER:K. Chapman

DATE:19 October 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 19 October 2021 at 6:36pm

CATCHWORDS

REFUGEE – protection visa – Kenya – imputed religion – threats from al-Shabaab – blackmail – generalised political violence – state protection – delay in applying for protection – credibility issues – return visits to Kenya – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 March 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (‘the Act’).

   BACKGROUND

2. The Tribunal has obtained the following background information from the visa application, evidence presented to the delegate by the applicant, the decision of the delegate (provided to the Tribunal by the applicant) and the applicant’s evidence submitted to the Tribunal (including his evidence at hearing).

3. The applicant, [named], who claims to be a citizen of Kenya, applied for the visa on 17 September 2015. He was born and raised in Kenya. In 2010, he met an Australian man, [Mr A], in Nairobi when he provided directions to him. The applicant became friends with [Mr A] and received his financial assistance. The applicant visited [Mr A] in Australia in 2012 and 2013. In 2015, [Mr A] purportedly requested the applicant to provide him with photographs of naked African men in exchange for payment. The applicant apparently provided such pictures of his cousin, [Cousin A], to [Mr A] via [a messaging service].

4. The applicant claims that [Cousin A] has links to Al-Shabaab and attempted to extort money from him thereafter. According to the applicant, his [Cousin A] threatened his life unless ongoing payments were made to him. The applicant claims he has not been able to contact [Mr A] since the threats were made against him. The applicant decided to depart Kenya and arrived in Australia [in] July 2015 holding a Visitor visa, ostensibly on the basis he would stay with [Mr A]. The applicant applied for the protection visa approximately two months after that arrival. The delegate refused to grant the protection visa due to credibility concerns.

5. The applicant applied for review of the delegate’s visa refusal decision on 13 April 2018. He provided a copy of that decision to the Tribunal and subsequently further material including character references. The applicant appeared before the Tribunal in person on 8 October 2021. He confirmed to the Tribunal that he was comfortable proceeding with the hearing. The Tribunal also took evidence from [Witness A], who attended in support of the applicant. Near the conclusion of the review hearing, the applicant requested time to provide further material post-hearing. This request was duly granted and his final material was received by the Tribunal on 11 October 2021.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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.

9. 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).

10. 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.

11. 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

12. 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

    Country of reference

13. According to the protection visa application, the applicant claims to be a citizen of Kenya. Given the personal details provided in that visa application, the Tribunal is satisfied the applicant is indeed a Kenyan national. Kenya is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.

14. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations under s.36(3) of the Act.

    Issues

15. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Kenya, there is a real risk he will suffer significant harm.

    Documentary evidence before the Tribunal

16. The Tribunal has its own file, and the Department file, relating to the applicant before it. Information including, but not limited to, the following is contained in those files:

    a.the applicant’s protection visa application forms lodged on 17 September 2015;

    b.the applicant’s identity documents, including his Kenyan passport and Kenyan driving licence;

    c.the applicant’s bank statements;

    d.a handwritten statement from the applicant dated 12 April 2018;

    e.the Departmental delegate’s protection visa refusal decision record dated 26 March 2018 (a complete copy of which was provided to the Tribunal by the applicant);

    f.the application for review submitted on 13 April 2018;

    g.Departmental administrative and movement records; and

    h.material submitted post-hearing, including an extract from [Mr A’s] expired Australian Passport and email correspondence.  

    Claims for protection

17. The applicant made claims for protection with the Department which may be summarised as follows:

    a.he is a Kenyan national who in 2010 met an Australian man, [Mr A] in Nairobi and they maintained a friendship. [Mr A] provided financial assistance to the applicant. The applicant visited [Mr A] in Australia in 2012 and 2013. Further, [Mr A] requested the applicant provide him with nude photographs of African men. In 2015, the applicant procured nude photographs of his cousin, [Cousin A], in exchange for payment to him by [Mr A]. According to the applicant, [Cousin A] is Muslim, has links with Al-Shabaab and demanded ongoing payment from him following the provision of the photographs. The applicant claimed that ‘his cousin and his friends’ threatened him and believed [Mr A] was still funding him. According to the applicant, [Mr A] did not respond to him when he alerted him to the threats he received. The applicant claims he cannot obtain assistance from the Kenyan Police because the militants have sponsors within the Kenyan Government. The applicant also claims he can only live in Nairobi, Kisumu and Mombasa due to the country being ‘politically divided’, however he will be located by his cousin [Cousin A] in those three areas due to his contacts. The applicant fears for his life, cannot return to Kenya and escaped to Australia in July 2015. 

    Evidence at the review hearing

18. The applicant’s evidence at hearing may be summarised as follows. He confirmed he understood his claims for protection and that they are truthful. The Tribunal canvassed his family composition with him. The applicant has [a child, age] from a previous relationship residing in Nairobi with [the child’s] mother. He speaks to [the child] from time to time. The applicant’s [sibling] also resides in Nairobi, having returned from working as [an occupation in another country]. He speaks to [that sibling] every few weeks. The applicant confirmed neither his [child], nor [sibling] are in any danger in Kenya. The applicant has not spoken with other relatives in Kenya in a long time.

19. The applicant has many cousins, some Christian and some have converted to Islam. The applicant is not sure which branch of Islam they follow. The applicant advised that one of his cousins, [Cousin A], converted to Islam more than ten years prior and well before the applicant departed Kenya most recently. The applicant confirmed to the Tribunal that his cousin [Cousin A] has been a devout Muslim for a long time. Indeed, each of his cousins who converted to Islam are devout adherents. Some have joined ‘illegal groups’.

20. The applicant indicated that his [Cousin A] is a member of Al-Shabaab. He knows this because [Cousin A] told him so. The applicant advised that [Cousin A] has been a member of Al-Shabaab since his conversion, more than ten years ago. The applicant confirmed to the Tribunal that [Cousin A] has been a devout Muslim since his conversion. The applicant also stated another cousin, [Cousin B], has converted to Islam and hung out with [Cousin A]. However, the applicant is unsure if his [Cousin B] joined Al-Shabaab. The applicant has not spoken to [Cousin B] in a long time. The applicant last spoke to [Cousin A] when he threatened him shortly before his departure to Australia in mid-2015.

21. The applicant explained that he lived in Mombasa from around 2013 until his departure from Kenya in July 2015. He owned [business equipment], [used] commercially in Mombasa during that time. Prior to this he studied in Nairobi, where he conducted his schooling. He originally hails from Kisumu, in the West of Kenya. The applicant continued to own the [business equipment] after his arrival in Australia, receiving passive income, although with the effluxion of time in around 2016 or 2017 the man operating it on his behalf ceased contact.

22. The applicant outlined that in 2010 he met an Australian man, [Mr A], in Nairobi when he offered him directions to a museum. Apparently, [Mr A] was [working] in [named country] and took regular leave breaks in Nairobi. The applicant maintained his friendship with [Mr A] and saw him often when he took leave in Nairobi. The applicant informed the Tribunal that [Mr A] was homosexual and requested naked photographs of the applicant, however as he is heterosexual he declined the request. This happened in around 2013 or 2014. However, the applicant did procure naked photographs of other men from Mombasa to send to [Mr A], who paid for them. The applicant claims he did not keep any payment, rather he gave it to the men concerned.

23. In 2012 and 2013, the applicant visited Australia as the guest of [Mr A]. When the applicant returned to Kenya, they stayed in contact regularly via [a] messaging [platform]. In around 2015, [Mr A] asked the applicant via [this messaging service] for more naked photographs of African men. The applicant approached his cousin, [Cousin A], who agreed to pose for the photographs in exchange for money. The photographs were taken in Kisumu, where [Cousin A] was living, and conveyed by the applicant to [Mr A] via [the messaging service]. [Mr A] paid the applicant USD $[amount] and he sent it to [Cousin A]. Some months after, the applicant claims that [Cousin A] demanded via [a messaging service] he be paid by the applicant USD $[larger amount] per month, for the photographs he had earlier sent. [Cousin A] threatened the applicant with harm. On one occasion, [Cousin A] wrote, ‘If I don’t get the money you are gone.’ The applicant contacted [Mr A] in relation to these threats, however he never responded. The applicant claims he has not resumed contact with [Mr A] since, despite efforts via [the messaging service], telephone and email.

24. The Tribunal canvassed the topic of the threats in detail with the applicant. The applicant first feared [Cousin A] in 2015 when he made threats to him via [the messaging service]. He no longer has a copy of them because he has changed phones and his [messaging service] account connected to that phone is gone. The applicant is certain [Cousin A] is a member of Al-Shabaab given his devout Islamic beliefs and as he tried to recruit him to that organisation some years prior. When asked by the Tribunal, the applicant confirmed he has never seen [Cousin A] on an Al-Shabaab video, nor witnessed him taking part in any attacks on people. He does not know if [Cousin A] has ever killed anyone. The applicant confirmed he has not been in contact with [Cousin A] since mid-June 2015, a period of over six years. The Tribunal notes that it observed the applicant’s account of the procurement of the photographs from [Cousin A], and the purported threats he received, to be vague and lacking detail.

25. The Tribunal canvassed with the applicant why [Cousin A], a very religious man, might pose for nude photographs for money. The applicant responded that it is due to hypocrisy, as with killing people in the name of religion. The Tribunal raised open source country information with the applicant, regarding the adoption of a harsh interpretation of Sharia Law by members of the Al-Shabaab group.[1] When asked by the Tribunal why he thought his cousin [Cousin A], if linked to Al-Shabaab, would agree to pose for nude photographs given his religious beliefs, the applicant maintained that it was hypocrisy. He added that as a Christian himself he cannot take someone’s life and noted that taking nude photographs was not as bad as that.

    [1] Felter, Masters & Sergie. 19 May 2021. Backgrounder: Al-Shabaab. Council on Foreign Relations.  Al-Shabab | Council on Foreign Relations (cfr.org), accessed 5 October 2021.

26. The Tribunal raised with the applicant it might have difficulty accepting that his cousin [Cousin A] is a member of Al-Shabaab and would pose for nude photographs given his religious conviction, inviting his comment. The applicant maintained that his cousin did it, adding they hide under their religion so they can do whatever they want. When asked by the Tribunal if he sought assistance from the Kenyan Police, the applicant replied that he ‘wouldn’t even bother’. When asked by the Tribunal if he could seek assistance from the Police or other authorities if he returned to Kenya, the applicant replied that he could not as there is no democracy there, they are corrupt, they have connections to politicians and if something happens to him there they will get away with it.

27. The Tribunal canvassed in detail the topic of any links [Cousin A] may have to politicians. The applicant explained that in the past when [Cousin A] tried to recruit him to Al-Shabaab he mentioned generally that they will have protection from politicians. The applicant confirmed he never observed a specific instance of [Cousin A] assisting politicians in the context of Al-Shabaab. He did know that [Cousin A] helped the campaign of [Politician A], who is now a Senator from an opposition party [in] early 2007. He confirmed [Politician A] is not an Islamic politician and he wouldn’t know if he had links to Al-Shabaab. The applicant also confirmed he never had problems with [Politician A] and never witnessed [Cousin A] being involved in any corruption with politicians, noting such matters are done in private. The applicant confirmed that his [Cousin A] had just assisted the campaigning of [Politician A] and there is no known link with Al-Shabaab in that matter. The applicant also expressed the view that all politicians are corrupt in Kenya.

28. The Tribunal canvassed with the applicant the possibility of relocation within Kenya to avoid those whom he claims to fear. The applicant advised that he cannot return to Kenya as he fears for his safety. He explained that Kenya is too small and his cousin has connections there. The Tribunal canvassed the applicant’s written claim that he cannot relocate within Kenya as the country is politically divided and he can only reside in Nairobi, Mombasa and Kisumu. The applicant advised that Kenya is politically divided due to corruption and the approximately forty five tribes there. He indicated that during elections, most people vote for their tribe and they get angry with persons from other tribes. The applicant indicated that during post-election violence in Kenya in 2007, he fled generalised violence in Nairobi and returned to Kisumu (Western Kenya) where he is originally from. He waited until the situation settled and then he returned to Nairobi without incident. The applicant specifically confirmed that he has never faced harm personally for political reasons in Kenya, rather he fled generalised violence. He explained that being from the Luo tribe he cannot reside everywhere in Kenya. The applicant specifically confirmed to the Tribunal that he has never been personally threatened with harm by any tribe in Kenya. Rather, the applicant informed the Tribunal that to avoid potential tribal problems he can only reside in Nairobi, Mombasa and Kisumu. However, in those three locations [Cousin A] will be able to find him.

1. The Tribunal confirmed with the applicant he had no other reasons to fear returning to Kenya. He stated he feared for his life due to [Cousin A]. The applicant specifically confirmed to the Tribunal that he only fears [Cousin A] and his team and that he doesn’t care about the political situation, because that it how it has always been. The applicant confirmed that political conflicts prevent him from living outside of Nairobi, Mombasa or Kisumu, as he fears generalised political violence. The applicant specifically confirmed to the Tribunal that there are no political issues directed towards him personally. 

2. The Tribunal also took evidence from [Witness A] at the review hearing. [Witness A] has known the applicant for around six years and the applicant resides in his home. He explained that the applicant is of good character in his observation. [Witness A] confirmed to the Tribunal that he has never been to Kenya, nor spoken to [Cousin A] or any Al-Shabaab member. He indicated he knew the applicant faced trouble in Kenya, but he could not provide much detail regarding these troubles as he knows ‘very little’. [Witness A] and his family support the applicant remaining in Australia. The Tribunal accepts that [Witness A] considers the applicant to be of good character but affords limited weight to his evidence, given he knew scant detail of the claims made for protection.

3. Towards the conclusion of the review hearing, the Tribunal specifically confirmed with the applicant that he is not making any claims for protection based on political grounds. The Tribunal indicated it had not made up its mind regarding the review application, however, it was developing some concerns with the applicant’s claims. They were outlined to him as follows and he was invited to comment.

4. The Tribunal raised that there appeared to be inconsistency in the applicant’s written claims and verbal evidence. For example, he indicated in written claims that his cousin and his friends threatened him, but before the Tribunal he advised that only his cousin threatened him. Additionally, the applicant advised at hearing that [Cousin A] has been a very devout Muslim from around ten years prior and was a member of Al-Shabaab for a similar length of time. The Tribunal referred to country information indicating that this group adopts a harsh interpretation of Sharia law, which might be inconsistent with [Cousin A] agreeing to pose for nude photographs for money given his membership of the group and religious devotion.

5. The Tribunal also raised with the applicant that his evidence of [Cousin A’s] involvement with Al-Shabaab, and links to politicians and corruption, might appear to be vague. Further, the Tribunal raised that the applicant advised he has not been in contact with [Cousin A] for many years, with his [child], [the child’s] mother and his own [sibling] not facing any harm in Kenya, which might tend to suggest there is not a real chance of him facing harm for any reason if he returned to Kenya now or in the reasonably foreseeable future. The Tribunal raised that the applicant has provided no cogent evidence from other sources to corroborate his claims and that he delayed claiming protection by over two months following his most recent arrival in Australia. The Tribunal also indicated to the applicant that his witness appeared to have limited knowledge of his claims, which might suggest his evidence be afforded limited weight.

6. The applicant responded to the above matters by indicating [these relatives] are in no danger from [Cousin A] because he doesn’t know where they live, nor are they the subject of his threats. He maintained that Sharia is written and [Cousin A] is devout, but his actions contain hypocrisy. The applicant again cited that as the group kills people, it cannot be said it members would not pose for nude photographs. The applicant explained that his witness does not know the full story out of embarrassment. He indicated that whilst some evidence might appear contradictory, that is because of the passage of time since the written claims were made. The applicant advised that [Cousin A’s] past political campaigning is not part of his claims for protection. Rather, [Cousin A] had told him that politicians protect Al-Shabaab when he tried to recruit him. He cannot report the matter to the Police because they are corrupt and there is no democracy in Kenya. The applicant also maintained that he delayed making his claim for protection for two months because he wasn’t intending to claim when he arrived and he didn’t know the process.

7. The Tribunal raised with the applicant that by applying for a Visitor visa on the basis of staying with [Mr A], but not being in contact with him at the time, this might tend to undermine his credibility. The applicant was invited to comment and replied that he did it to get out of Kenya to save his life, adding ‘from my heart’ he was coming to live with [Mr A]. He explained that the situation is confusing and sometimes there are situations when you have to give an alternative fact to get out. He maintained his life was in danger and he had to do it. The applicant returned to the topic of [Cousin A] being devout and advised that he had a past Muslim girlfriend that sent him nude pictures and she is devout. He confirmed that she was not linked to Al-Shabaab when asked by the Tribunal.

8. The applicant asked for additional time to submit a copy of [Mr A’s] identity document and emails with him. The Tribunal gave its permission. The applicant expressed regret that he no longer had the [messaging service] material because his Kenyan phone has been cancelled. There being no further information to provide at the review hearing, it was concluded.

   Post-hearing material

9. On 10 October 2021, the Tribunal received a copy of the biodata page from [Mr A’s] expired Australian passport. Further, the Tribunal received an email dated 24 July 2015 from the applicant to [Mr A] including the text:

   “Please my situation is not gud here…help me out please.”

10. Another email from the applicant to [Mr A], dated 28 July 2015, includes the text:

    “Hi that was Smart but I will come back, I needed my commonwealth card that u had…know that u put me in a situation back home that I can’t stay there coz my life is in danger…I might involve the police if my situation continue like this and I will bring them there.”

11. The Tribunal has carefully considered all submitted material.  

    Analysis  

12. That a person claims to fear persecution for a particular reason does not of itself establish either the genuineness of the asserted fear, or that it is ‘well-founded’, or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70. Section 5AAA of the Act also provides that it an applicant’s responsibility to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such claim.

13. The Tribunal does accept the importance of adopting a reasonable approach in making findings of credibility in matters relating to protection visa applications. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, the Full Federal Court made salient comments on determining credibility, including those below. Numerous decisions have also endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but are unable to substantiate all of their claims. The Tribunal notes in particular the cautionary note sounded by Foster J at [482]:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

14. The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J said at [39]:

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

15. The Tribunal has very carefully considered the applicant’s claims, individually and cumulatively, and the evidence before it. For the reasons that follow, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution. Further, for reasons expressed below, 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 that he will suffer significant harm.

    Assessment of the Refugee criterion

16. The Tribunal accepts the applicant is a Kenyan national, who befriended [Mr A] in Nairobi around 2010 and they maintained a friendship for several years. The Tribunal accepts the applicant visited [Mr A] in Australia in 2012 and 2013. Further, the Tribunal accepts that the applicant received some financial assistance from [Mr A] during their period of friendship. The Tribunal accepts that the applicant’s character referees, [Witness A], [Referee A] and [Referee B] attest to his good character in Australia based upon their observations. Further, the Tribunal accepts the applicant once owned [business equipment], [used] commercially in Mombasa and that he derived passive income from it for a few years after his arrival in Australia.

17. The Tribunal accepts that the applicant sent two emails to [Mr A] in 2015, after he arrived in Australia, indicating his life was in danger in Kenya. However, the Tribunal is not prepared to accept that [Mr A] requested photographs of naked men, nor that the applicant obtained these from his cousin [Cousin A], nor that [Cousin A] is a member of Al-Shabaab, nor that he has ever been threatened with harm. This is for the following reasons.

18. The Tribunal developed significant concerns with the credibility of the applicant during the review hearing. His evidence regarding the acquisition of the purported nude photographs from [Cousin A] was vague and lacked detail. His evidence at hearing of only [Cousin A] threatening him if he did not pay him money was inconsistent with his written claims of being threatened by ‘his cousin and his friends.’ The Tribunal observed the applicant to be lucid and intelligent during the review hearing and it does not accept that the passage of time accounts for the aforementioned discrepancy regarding such an important issue.

19. Additionally, having regard to country information pointing to the harsh interpretation of Sharia law adopted by members of Al-Shabaab, the Tribunal finds it to be implausible that [Cousin A] is a devout Muslim member of this group who provided naked photographs of himself to the applicant as claimed. For completeness, the Tribunal does not accept that the applicant receiving naked photographs from a prior Muslim girlfriend, who is not linked to Al-Shabaab, undermines the aforementioned conclusion. Further, the lack of harm experienced by the applicant’s [relatives] in Nairobi tends to suggest that the applicant is not a target of Al-Shabaab at the behest of [Cousin A]. Of note, the applicant has not had contact with [Cousin A] since mid-2015, which additionally suggests there is no real chance of harm faced by him from his cousin or Al-Shabaab.  

20. Whilst the applicant provided a copy of [Mr A’s] expired Australian passport biodata page and two emails of July 2015, the Tribunal finds there to be a lack of persuasive corroborating evidence to support the claims for protection made. The two emails are brief and generic. The Tribunal accepts that the applicant informed [Mr A] that his life was in danger, however the scant detail contained therein does not corroborate the veracity of the submitted claims for protection. When considered in combination with the other concerns outlined, the Tribunal does not accept that the applicant truthfully recorded his life to be in danger, as briefly outlined in this email traffic. Of note, there are no copies before the Tribunal of the photographs concerned, nor of the threats purportedly made by [Cousin A]. When considered globally with the multiple concerns outlined, the Tribunal does not accept the truthfulness of the claims made by the applicant. For these reasons, nor does the Tribunal accept that the disconnection of the applicant’s Kenyan mobile phone accounts for the lack of persuasive corroborating evidence.

21. The Tribunal is of the view that the delay in the applicant claiming protection undermines the genuineness of his claims. This is because, on his own evidence, he submits that he fled Kenya to save his own life and that he had to obtain a Visitor visa on the basis of staying with [Mr A], when that was not accurate information at that time. Given the applicant had travelled to Australia on two prior occasions, the Tribunal does not accept that he would wait over two months to seek assistance from the authorities in this country if his claims were genuine.

22. The Tribunal affords limited weight to the character evidence provided in support of the applicant. This is because it contains scant detail regarding the specifics of the harm purportedly faced by him. On balance, the Tribunal does not accept this evidence tends to suggest that the applicant’s claims for protection are genuine. For completeness, the Tribunal finds that the applicant personally faces no harm whatsoever for any reason linked to the political process or politicians in Kenya, given he expressly disavowed such claims at the review hearing.

23. In summary, the Tribunal does not accept the truthfulness of any of the claims for protection made by the applicant. Following careful consideration of the applicant’s global circumstances, the Tribunal finds that he does not have a well-founded fear of persecution in Kenya.

    Assessment of the Complementary Protection criterion

24. Given that the Tribunal has found the applicant does not have a well-founded fear of persecution in Kenya, the Tribunal has carefully assessed whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Kenya, there is a real risk that he will suffer significant harm. Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

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

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

27. For reasons previously expressed regarding the lack of credibility of the applicant’s claims, the Tribunal is not satisfied that if he returns to Kenya now or in the reasonably foreseeable future, there is a real chance that he would face serious harm from his [Cousin A], or from members of the Al-Shabaab group, or from any other quarter. Accordingly, with respect to these matters, the Tribunal finds that there are not 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 that he will suffer significant harm. For completeness, the Tribunal finds that given the applicant’s background, there is no risk to his ability to subsist if he returns to Kenya now or in the reasonably foreseeable future. Furthermore, the Tribunal finds that any risk of generalised violence, arising from a future Kenyan electoral process, is faced by the population generally and not by the applicant personally.

28. When the applicant’s global circumstances are considered carefully, the Tribunal finds that he is not a person who satisfies the Complementary Protection criterion.

    CONCLUSION

29. Following careful consideration of the evidence, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for one of the reasons mentioned in s.5J(1)(a) or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Kenya, there is a real risk that he will suffer significant harm.

30. 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). 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).

31. 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

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

    K. Chapman
    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.

    …