1819629 (Refugee)

1819629 (Refugee) [2019] AATA 5749 (4 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1819629
COUNTRY OF REFERENCE:                   Kenya
MEMBER:Christine Cody
DATE:4 May 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 May 2019 at 5:09pm
CATCHWORDS
REFUGEE – protection visa – Kenya – member of same family unit – Kikuyu – Mungiki –imputed involvement with outlawed organisation – PTSD – risk of fallout from allegations of sexual assault – decision under review affirmed
LEGISLATION

Migration Act 1958 (Cth), ss 5AAA, 36, 65 116, 424, 501
Migration Regulations 1994 (Cth), Schedule 2
CASES
BZADA v MIC and RRT [2013] FCA 1062
MIEA v Guo & Anor (1997) 191 CLR 559
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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 July 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Kenya, applied for the visa on 14 August 2017. He lodged protection visa application forms, and a statement, which can be summarised as follows:
·     The applicant was born in [year] in Nairobi, Kenya and is now [age] years old. Both his parents were Kenyan citizens.
·     He speaks, reads and writes in Swahili and English, and he speaks and reads in Kikuyu. He does not need an interpreter.
·     He is a Christian.
·     He lived all of his life in Kasarani district of Nairobi, until November 2013.
·     He undertook his schooling in Kenya, including [various qualifications].His occupation is [Occupation 1]. In Kenya he worked for [Occupation 2], in charge of [various tasks].
·     He married [in] 2014 in Nairobi, having commenced a relationship [in late] 2013.
·     His parents, two brothers and one sister reside in Kenya. He communicates with his family in Kenya at least once a fortnight by text message or social media [platforms].
·     His passport was issued in 2007, expiring in 2017.
·     He applied for a visa for [Country 1] and in support of his application, he informed the [authorities] that he wanted to enter [Country 1] to research the tourism business model. He was granted a visa to [Country 1] allowing him to enter between [August] 2014 until [January] 2015. While in [Country 1], he worked as an [Occupation 1] for a [company][1].
·     He left from Nairobi, Kenya[2] [in early] 2015, arriving in Australia [in early] 2015 as a visitor.
·     From April 2015 until April 2016 he worked in [Town 1] [in Occupation 3] at a [Company 1].
·     From August 2015 until October 2015 he started studying at [a] University.
·     At the time of signing his protection visa application he was working in an [Occupation 4] [City 1].
[1] DF74
[2] DF80
His reasons for claiming protection were set out in the application form and his statement signed 10 August 2017. His claims and background in his application form can be summarised as follows:
·     He left Kenya for [Country 1] in [late] 2013[3] because he felt as a Kikuyu that his life was under threat from non-Kikuyu communities who despised them, and the government was unable to protect the Kikuyu communities as shown during the 2007/2008 post-election violence. He was not able to claim protection at that time in [Country 1] as [Country 1] was only processing cases from Syria and Iraq and Muslim countries.
·     He also left to avoid being killed by the Kenyan police killing squad which was targeting young Kikuya who they believed to be suspected sympathisers or members of Mungiki. They also use this as a pretext to target Kikuyu youth.
·     His uncle, [Mr A], was a [member] of the Mungiki group. The authorities wanted to kill him and his uncle for being Mungiki members.
·     He did not seek help from the authorities as they were unable to protect Kikuya during post-election violence and he feared they would rather kill than protect him as they believed his family were supporters of Mungiki gang.
·     He could not relocate because if he went to other Kikuyu areas those areas faced brutal killings by the Mungiki against youths who refused to join their ranks.
[3] It appeared that it was the applicant’s position that he actually went to [Country 1] in August 2014.
If he returns to Kenya he will be killed for the following reasons:
·     As a Kikuya he will be killed by members of non-Kikuyu tribes who for a long time viewed the Kikuya community as their enemy. Non-Kikuyu tribes have already started a wave of violence as a result of 8 August 2017 election and post-election violence. There have been sectarian killings in Kenya as a result.
·     Whenever there is inter-ethnic violence which breaks out, Kikuyu like himself are always the main targets of other tribes.
·     He will be killed by Kenyan police killing squads that target Kikuyu youth they suspect to be members or sympathisers of Mungiki. The authorities have never stopped extra-judicial targeted assassinations against Kikuyu youths they suspect of being Mungiki members and he fears he will be killed just like his uncle was killed.
·     Kenyan authorities fan sectarian violence as a tool for maintaining political control and they often seek revenge against ordinary Kikuyu like the applicant against Kikuyu elites running the country. They targeted Kikuyu youths like himself on “false allegations that we belong to the outlawed Mungiki gang”.
He responded “no” in answer to question 58: “have you ever been refused a visa to any country other than Australia?”
He provided to the Department the identity page of his passport, his certificate of birth, and country information referring to:
·     Extra judicial killings and forced disappearance by police in Kenya
·     Corruption
·     Terrorism threats (al Shababa)
·     There were concerns of violence in the run up to the 2017 elections and it was noted that this is generally a sensitive time in Kenya.
According to his statement:
·     He suffered post-traumatic stress disorder (PTSD) emotionally and psychologically because although he survived the 2007/2008 post-election violence, he witnessed others being killed. He and his family had fled their home and [hid in a location]. His grandmother was killed because she was left behind.
·     There were threats on his life as a young Kikuyu, not only from opposition supporters but also from the Kenyan government security forces. Since 2007/2008 the government started a campaign of targeted assassinations of Kikuyu youths who were suspected to be members of the outlawed Mungiki gang. There was a warning that because his uncle was a known member of Mungiki gang, his uncle, brother and the applicant would be killed extra-judicially by the government because they were members of the Mungiki gang. His uncle was killed in November 2009 by unknown gunmen, and “At the time of my uncle’s killing I had left Kenya for [Country 1] to escape the targeted killings against young Kikuyu men for just being suspected of being Mungiki members or sympathisers. My family warned me that if I returned to Kenya I should lie low to avoid being killed like my uncle”.
·     The authorities would not protect him but would rather kill him because of his family’s alleged association with the Mungiki. The authorities “wrongly believe” that he must be a Mungiki because his uncle was a [member] of the Mungiki.
·     He witnessed (like other young Kikuyus) collaboration between the Kenyan security forces and Mungiki members during the post-election violence to carry out revenge attacks against non-Kikuyus and for this reason he faces being the target of extra-judicial killing in order to completely destroy the likelihood of reviving the serious charges of massacres and ethnic cleansing that Kikuyu elites such as the President face at the International Criminal Court.
·     He also fears for his life because they have just had another disputed election in 2017 and as a young Kikuyu he would be attacked and killed by angry supporters of the opposition party National Super Alliance (NASA) which is predominantly supported by non-Kikuyus. With the never-ending political and ethnic tensions, he only has to produce his national ID and if opposition supporters find that it bears a Kikuyu name, they would immediately attack and kill him.
·     Kikuyu ruling elites (such as the President) and business leaders view ordinary Kikuyus as a threat to their monopoly on power and resources and they use state machinery and security forces to marginalise or kill other Kikuyus like him who agitate for equality and respect for human rights.
·     He has always been fearful that he could be killed at any moment just because he is Kikuyu.
·     He came to Australia on a [temporary] visa after being sponsored by his wife.
·     His marriage did not work out because of his PTSD. He was unable to have an intimate and supportive relationship with his wife. He was fearful and suspicious of others and often had screaming nightmares that scared his wife and put a strain on their relationship.
The applicant provided a new contact address [in] March 2018, namely [a Centre], by way of Change of Address Form signed 27 March 2018.
The Department’s Invitation to comment
The Department sent a letter to the applicant (who was at that time in a [a centre]) dated 28 March 2018 and requested that the applicant comment on information, namely that:
·     His statement suggested he went to [Country 1] in 2009 in relation to his uncle being killed but other information is that he was in [Country 1] in 2014, not 2009. This suggests he was in Kenya for five years after his uncle was killed indicating that he may not have feared serious harm.
·     Further, his family (parents, [and siblings]) still live in Kenya indicating it may be safe for him to live in Kenya.
·     The Kikuyu comprise a large proportion of the Kenyan population and there is no information to suggest there is systematic targeting of Kikuyu and thus the Department does not understand why he believes he will be systematically targeted.
·     He lodged his protection visa after his partner visa application was refused indicating that he may want to stay in Australia other than for reason of a fear of harm.
The applicant’s response
The applicant thereafter made a number of requests for extension/postponement to the Department:
·     On 19 April 2018 he called the Department to request that his application be put on hold until his court proceedings were finalised in late September 2018. He also requested an extension of time and a copy of his protection visa application. A letter was sent to the applicant by the Department on 19 April 2018, including a copy of his protection visa application, advised that his application could not be put on hold, but that he was granted an extension of time until 31 May 2018 to provide additional information.
·     The applicant made a further request for extension of time by way of letter dated 20 April 2018 (received by the Department on 26 April 2018). He agreed that there were certain “grey areas” in his application which require clarification. He claimed that there were “certain documents and articles” that he needs to submit in order to clarify the request for information but at this stage it is “practically impossible” to get his hands on the documents. He is currently facing serious charges which he is defending and all of his energy and limited resources are devoted to this. He would like the Department to delay his case until after his trial which was due to commence 3 September 2018[4].
·     The applicant had moved [centres] and said that he had not received the letter sent by the Department on 19 April 2018. The Department then agreed he could have until 15 June 2018 to provide further information but that no extensions would be granted. He was asked to provide as much detail as possible regarding his claims and also list any evidence that he could not provide, why it was important to his claims and why he could not provide it.
[4] Sourced from the applicant’s letter.
The applicant’s response was received by the Department on 20 June 2018. He made some new claims and gave information in response including as follows:
·     He concedes that he misled the Department when he claimed to have left Kenya in 2009, but it was not his intention to provide false information; he was under pressure to find a way to stay in Australia and only had a few days to provide this information.
·     When there were the police death squads he and his brother had been hiding in [a location] (he said that general country information supports that youth were being targeted then). He states that he would like to provide evidence of this in the form of a statement from his brother as well as “evidence of where we were” [he did not specify how long he had been in hiding].
·     Later on he and his father became targets because of “[affiliations] with [Mr A]”. He also made the new claim that religion was also a “huge factor” that came into play.
·     He tried to leave Kenya earlier. He got his passport in [2007] and in [2008] he applied to go to the USA. His visa was refused on the grounds he would not have returned to Kenya. He agreed that he would not have returned from the USA because he had connected himself to a sponsor to get him into school and a new life. He tried to go to the USA on another occasion and he also made numerous applications to go to Asian countries to teach English but this didn’t work [approximate or exact dates were not provided]. He said he would like a chance to retrieve those documents to show that he applied for these visas.
·     His life was in constant danger in those five years from the Cobra Death Squad putting a hit on him, and from the Mungiki assuming he had defected from the sect. He then added that: “The only reason I managed to survive is because the Mungiki were convinced that I was in their group and hence they alerted me on Cobra Squad movements”. [This actual (as opposed to imputed) involvement with Mungiki was a new claim not set out in his original protection visa application and statement].
·     When he was at University [he] stayed and lived at university quarters which were a safe haven.
·     His father was a preacher and had a church in [Suburb 1] which he said is considered Mungiki “turf”. [In this regard he referred to an article he had produced; the article said that [information deleted]. He said that this is close to where he and his family used to live. His father went to [another country] and in their last conversation he told the applicant it is dangerous for both of them in Kenya. The applicant is [an artist] [he referred to a supporting letter from [Mrs B] and a [state] newspaper article as evidence] and his “deep connections to the church” “put him on the spot” as he was “active in the church”. He said this, and associating with other youths, inadvertently “made me a target”/“man of interest” [he did not specify who was targeting him/ interested in him for these reasons, however, it appears from the following assertion that he was referring to being a target of the Mungiki].
·     The Mungiki have recruited millions and are waging war on defectors. The Mungiki are killing preachers and musicians who are Christians and they are opposed to western customs which he has wholeheartedly embraced. He faces this on one hand, and on the other hand he faces the police trying to kill him with impunity.
·     Every single day he calculated and contrived how he was going to leave Kenya because of the imminent danger that was becoming apparent as he was living in fear of being killed. The option of seeking asylum had not crossed his mind but he knew he had to leave Kenya.
·     With his savings he finally found a way to go to [Country 1] and as soon as he got there he tried to secure permanent residence (he has documents to prove this). However his ex-wife then suggested that they move to Australia and when he came to Australia he had not met the requirements of the [government] so he is not a permanent resident of [Country 1].
·     His wife was abusive and the fallout between them left him stranded [although this was a claim that the applicant had made in seeking his permanent spouse visa, the applicant did not make this claim initially in his original protection visa application and statement. Instead he claimed as set out above that the breakdown in the relationship was his fault as he was suffering from PTSD and his emotional state put the strain on their relationship].
·     His application (for a permanent visa) on the basis of suffering abuse from his wife was denied due to a lack of sufficient evidence.
·     There were “numerous threats darted at me while I was in Kenya”, and he worked “laboriously hard” to try and find a place to where he could move.
·     It is his father and he who are the targets. His brother has always maintained a low profile and doesn’t live in Nairobi, and his younger siblings were too young when these events were happening. He has evidence of emails from his brother asking him not to return. His mother has also warned him not to return because of extra-judicial killings.
·     His social interactions with members of the Mungiki combined with the fact that [Mr A] is his uncle made him a target. He is not a member of this outlawed group but on occasions that needed dire measures he was affiliated with them [the “occasions” were not further explained].
·     He is a specific target of the authorities because of his association with his uncle; they engage in a serious witch hunt for his uncle’s friends. He was told they were looking for him which made him stay in hiding.
·     There is a high probability that he might be victimised by the members of Mungiki who thought that he was part of their group. He refers to country information indicating that the Mungiki wage war on defectors and they kill people who do not share their values. He also claims that he had an email from his friend, who had run away to South Africa, who told the applicant “how disappointed” the Mungiki were when the applicant left Kenya.
·     He also received numerous threats on [social media] from unknown individuals warning him never to return to Kenya.
·     His concerns that if he returns to Kenya he will get killed are legitimate although he knows it appears that he is trying to prolong his stay in Australia “after my wife left me”. He had no intention to use her to try to stay in Australia.
·     In July 2015 he had sensed that the relationship would not work and he “once again” applied to go to America.
·     He will make a contribution to society. When he corresponded with the Department in 2017 he discussed remaining here by way of starting a business and sponsoring himself, however, he discovered he could not do this. If he had the financial resources he would have secured a place for himself anywhere in the world but he is grateful that he ended up arriving in Australia. He is not getting any younger and would like to create opportunities in Australia for himself and other Australians.
He provided supporting letters from:
· A friend [Mrs B] dated 5 June 2018 which said she met him at church, he is a gifted [artist], she doesn’t think he has lied to her but he may not have always acted honourably. He decided before he was incarcerated that he was going back to church and called his father to tell him so. She doesn’t know whether he is a valuable human to have in Australia nor whether Australia will be richer with him as part of the community.
· [Mr C], from an [organisation], said the applicant offered to volunteer in their projects assisting refugees and asylum seekers but this was not accepted as the project was too small. He does not know him well but he accepts that the applicant would like to make a positive contribution to the community.

He attached articles showing that he was going well in his [Occupation 5] in [Town 1]. Further, he provided country information on Mungiki (indicating that the group was outlawed as it espoused political views and cultural practices that were controversial in mainstream society, it ran protection rackets particularly in the public transportation sector and intimidated and harassed residents, it was Kenya’s largest criminal organisation specialising in extortion, and also a religious movement calling for a return to traditional values and abandoning Christian and western lifestyles).
There was no non-disclosure certificate on the Departmental file.
The Delegate’s decision record
The delegate noted that the applicant had said he did not have a chance to access supporting documents, which would be taken into account, and had sought a postponement until after his trial which was not granted. The delegate considered country information and did not accept that Kikuyu in Kenya face an ongoing risk of serious harm due to their ethnicity. The delegate noted that country information indicated that large numbers of people were affected by the violence perpetrated after the 2007 elections and so was prepared to accept that the applicant was forced to flee for a period of time. However, the 2013 elections were largely peaceful and, although there was some violence, this was not ongoing.
The delegate noted country information that a person called [Mr A] who was a [certain position] for the political wing of the Mungiki was killed in [late] 2009. It was also noted that there is no evidence of their relationship other than the applicant having stated that he was an [uncle]. The delegate referred to the concern that the applicant had claimed to have fled to [Country 1] after his uncle’s death but that on his own evidence he could not have done so. The delegate noted that the applicant said that this was a mistake and he was in hiding in Kenya for those five years, however, having regard to his application form (travelling to [Country 2] and [Country 3] for tourism and work in 2013 and 2014 prior to his travel to [Country 1], as well as his study at [a] University between [2010] and [2012], and then his work as an [Occupation 1] in [Nairobi] between January 2012 and February 2014), the delegate did not accept that he was in hiding for five years between the time of his claimed uncle’s death and leaving for [Country 1]. The delegate did not accept any of the explanations as to why the applicant remained in the country for five years given the claimed constant threat of death and his fears, including that the applicant received information from the Mungiki to help him avoid the Cobra Squad. The delegate did not accept that the applicant was in hiding nor that he had any contact with Mungiki nor that he received any threats nor that he would be considered a Mungiki defector. The delegate noted that the applicant was a member of the largest religion and the largest ethnicity in Kenya. The delegate found that the applicant had no previous profile with the Mungiki and found the chance that he would face harm is remote and speculative.
The delegate noted that in the written claims the applicant said that his father, [brother] and he were warned by the local administration chief that they risked being killed by the government as they were members of the Mungiki gang; the delegate did not accept that the applicant had satisfactorily explained how his brother has not been killed by the Cobra squad. The delegate did not accept that the applicant had the profile claimed. The delegate noted that even if the father had moved to the [another country] this was a relatively recent occurrence and the delegate considered that as the applicant’s brother and other family members have resided in Kenya then this casts doubt over the applicant’s claims to fear harm in Kenya due to his ethnicity, religion and claimed familial links with the Mungiki.
The delegate stated that even if the applicant had provided the evidence that he intended to, this would not overcome the contradictions between his initial application and his written response to the delegate’s letter requesting comments on concerns. The delegate noted that the applicant’s claims lacked persuasive detail. While the delegate accepted that the applicant may have experienced harm during the post-election 2007 violence, the delegate did not accept that in the intervening years he was imputed with or associated with Mungiki nor that he was searched for by the Cobra Squad of the Kenyan police nor that the Mungiki wished or wish to harm him. The delegate did not accept that there was any reason for the applicant to face a real chance of serious harm or a real risk of significant harm in Kenya.
The Tribunal
The applicant lodged an online application for review with the Tribunal from [an immigration detention], providing his postal address, [his] email address and his mobile phone number as contact details. He was sent an acknowledgement from the Tribunal.
The applicant made a new claim to the Tribunal by way of email dated 12 July 2018, noting that he had changed circumstances relevant to his application for review, namely:
... Whilst the concerns for my safety still remain eminent, this latest miscarriage of justice has not only crippled my life but also advanced new threats.

Last year I was arrested on very heinous [allegations]. Despite voluntarily appearing before the police station and giving an account of events, I was incarcerated and spent [number of] days in jail for a crime I did not commit. I was released [in] June 2018, this is after the prosecutors office realized that I was innocent. That it was a huge mistake on their part. We did not even go to trial which was scheduled to be on the [in] September 2018. Nonetheless the damage that was done was irreparable, the perception itself has seen me receive disgruntling messages from my family and friends, I have been threatened on numerous account as my culture is very intolerant to people who have been affiliated with this allegations. If I go home I will certainly be assaulted or killed because nobody believes me, all the information they have is that I spent time in Jail, according to them it means I was paying for my acts. My dignity has been trashed.

It is hence my supplication that the AAT takes this into account whilst it considers the other information that I had formerly provided…
The applicant was invited to attend a hearing to give evidence and present arguments on four occasions. He attended two of the scheduled hearings; however, he refused the opportunity to give oral evidence. He made six applications for postponement. The Tribunal granted the first two applications and refused the third application. The following day the applicant attended the fourth scheduled hearing date but essentially ignored the Tribunal’s refusal to grant a postponement, and refused to give oral evidence, and insisted that he should be granted a postponement (the fourth application for postponement). After this was refused he continued to refuse to give oral evidence and immediately made a further application for postponement (the fifth application for postponement), which the Tribunal refused. He again applied for postponement (the sixth application for postponement) in his s.424A response sent after the fourth scheduled hearing date. The applicant was aware, from at least the first hearing date, that the Tribunal had invited him to attend a hearing as it had not been able to be satisfied on the information before it and that it was unlikely that without his oral evidence the Tribunal would become satisfied. He was aware that if he did not give oral evidence the Tribunal would proceed to a decision.
After the last scheduled hearing the Tribunal put to him information in writing pursuant to s.424A of the Act[5]. It noted that if it did not receive his comments or response (or request for extension of time) by the prescribed period, the Tribunal would proceed to a decision without waiting for his comments or response. He sought an extension of time to respond, with the Tribunal granting this. He has provided long and detailed responses to the information, which the Tribunal has taken into account. As noted above, in his s.424A response he renewed his application for postponement, relying upon the same reasons as before. The Tribunal did not accept this application. Further information about the procedural issues are set out below.
[5] Copies of documents referred to in the s.424A letter were provided to the applicant with the letter.
The Tribunal has considered the information put to the applicant and his written responses. He also provided country material.
CONSIDERATION OF THE CLAIMS AND FINDINGS
Country of reference
The applicant produced his passport to the Department, who accepted that he was a Kenyan citizen and national, and assessed his claims against Kenya. The Tribunal is prepared to accept, for the purposes of this decision, that the applicant is a national of Kenya, and that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purposes of his complementary protection claims, is Kenya.
Credibility of claims
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. Similarly, that the 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.
Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
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 & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70).
In the circumstances where an applicant does not attend a hearing to which he is invited, the Tribunal also notes the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:
As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.
The issue in this case is whether the applicant is a refugee or entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has considered on the evidence before it whether there is a real chance that the applicant faces persecution and/or a real risk of significant harm if he returns to Kenya.
Having considered the relevant evidence, the Tribunal has concerns about the applicant’s credibility and the veracity of his claims. For the reasons set out below, the Tribunal considers that the applicant’s evidence was inconsistent, changing and not credible about many aspects central, and relevant to, his background and claims. Taking these concerns into account, as well as the applicant’s failure to participate in a hearing to allow his claims to be tested in evidence, the Tribunal has found that it is not satisfied that important aspects of the applicant’s background and claims are true.
Firstly, the Tribunal was concerned with the applicant’s assertion in his statement that he had escaped from Kenya to [Country 1] in 2009 after the killing of his uncle (and was warned by family members that he would be killed if he came back if he did not lie low), when it appeared that he actually stayed in Kenya for a further five years after that event. The applicant claimed in his written Response to the Department that he made this mistake because he only had a short time to organise himself before he had to leave Australia. The Tribunal does not accept this explanation, given that, in his view, his basis for staying in Australia (his marriage) was not working in July 2015, two years before he lodged his protection visa application.
The Tribunal considers that if the applicant had been spending five years of his life at risk of death from police killing squads, he would recall this, and he would not claim that he had immediately left for [Country 1]. The Tribunal considers that this assertion undermines his credibility and his claims.
Secondly, the Tribunal considered it was difficult to reconcile the applicant’s changing protection visa claims about the Mungiki:
· Initially he claimed to the Department that he was wrongly associated with/wrongly imputed with involvement with the Mungiki. However, in his later written comments to the Department, he claimed that he was involved with them and managed to survive by actually associating with them and being part of their sect; that Mungiki members believed that he was part of their group; and that on occasions where “dire measures” were needed he was “affiliated” with them. His claim to have been “wrongly” suspected of involvement with the Mungiki by the authorities is contradicted by his claimed involvement with them.
· In his initial claims to the Department he did not claim to be a target of the Mungiki (only of the police killing squads); however, in his later written comments to the Department he claimed he was a target of the Mungiki. The Tribunal would consider that if he had been a target of the Mungiki, he would have mentioned this in his initial claims to the Department.
Further, in making his new claim about his involvement with the Mungiki, a group which he admitted were outlawed and committed criminal, brutal acts, his claims were not specific: he did not explain all of his activities nor did he explain what the “dire occasions” were.
The Tribunal considers that these changing claims undermine his credibility and his claims. In addition, he has not provided sufficient detail as to his claimed involvement with the Mungiki to allow the Tribunal to be satisfied of this claim.
Thirdly, the Tribunal was concerned with a further instance of his changing claims, relating to the breakdown of his marriage in the protection visa proceedings. This was relevant to his delay in lodging his protection visa application. In his initial written materials provided to the Department, the reasons for the marriage breakdown were attributable to the applicant; it was due to his behaviour as a result of his state of mind because of what he had suffered in Kenya. He made no suggestion at that time that it was his wife’s abuse which led to his marriage breaking down. It was only when he was responding to the delegate’s concerns about his delay in lodging a protection visa application until after the partner visa was unsuccessful that he claimed in the current proceedings that his wife had been abusive to him. Although he had raised this in his (earlier) spousal visa application, the Tribunal considers that if his relationship had broken down due to abuse from his wife (as claimed when seeking to obtain a permanent onshore visa), he would not have said initially in his protection visa application that the relationship broke down due to his emotional state as a result of his suffering in Kenya. The Tribunal was concerned that this indicated that the applicant has changed his evidence depending on which application he is making.
When considering the reasons he initially gave, in the current proceedings, as to why his marriage broke down, and noting there was no mention of violence from his wife, the Tribunal is concerned that the claim of spousal violence against his wife was not a genuine reason to maintain his partner visa application. The Tribunal considers that the applicant could instead have lodged his protection visa application as soon as he considered his marriage was not going to work (July 2015) but that he delayed doing so (until 10 August 2017 when he signed his protection visa application forms). The Tribunal considers that the omission of any reference to his wife abusing him and his delay in lodging a protection visa application undermines the credibility of his claims. The issue of delay, and the applicant’s explanations, is referred to further below.
Fourthly, the applicant has claimed that the Mungiki are still recruiting “by the millions” and they have waged war on defectors and they kill preachers and musicians who are Christians. The applicant claimed to have been a son of a preacher and a [artist] and to have a profile which is contrary to their values; he also claimed, however, to have been affiliated with them and that they provided him with beneficial information so that he could escape from the authorities. The Tribunal considers this evidence to be contradictory and is not satisfied as to his claims that his particular profile and location and activities meant that he was a target of the Mungiki.
Fifthly, although the applicant has claimed that he is targeted as a Kikuyu by all different non-Kikuyu tribes, he has not claimed to have been harmed by non-Kikuyu tribes (other than the claims around the 2007/2008 post-election violence). The Tribunal considers that if he was a Kikuyu male youth at risk of being targeted for years, he has not satisfactorily explained why, given all the years he remained living in Kenya, attending to his studies and work in public, he was not harmed or threatened by non-Kikuya tribes.
Sixthly, the Tribunal was concerned that the applicant claimed, in his Response, that his life was in constant danger in those five years from the Cobra Death Squad and the Mungiki to the extent that every single day he calculated and contrived how he was going to leave Kenya because of the imminent danger, he received numerous threats and he knew it was imperative to leave Kenya. Although he suggested that he tried to escape, he made no reference to attempts to escape to the surrounding East African Community (EAC) countries, which would appear from the country information to have been a reasonable means of escape. The Tribunal notes that Tanzania and Kenya are part of the East African Community (and that there are four other countries part of the EAC) which has allowed movement of nationals of all skill levels (low, medium and high)[6]. The EAC Treaty came into force on 7 July 2000 following its ratification by the original three partner states of Kenya, Tanzania and Uganda. Rwanda and Burundi acceded to the EAC Treaty and became full members of the EAC with effect from 1 July 2007, and South Sudan became a member in 2016. The stated aims of the EAC are to widen and deepen co-operation among its partner states in the political, economic and social fields for mutual benefit.[7] Article 104 provided that the partner states agreed to conclude a protocol concerning free movement. The Protocol on the Establishment of the EAC Common Market (the Protocol) entered into force on 1 July 2010, following ratification by the states. It provides for ‘Four Freedoms’, namely the free movement of goods, labour, services, and capital, which are intended to significantly boost trade and investments and make the region more productive and prosperous. The Protocol states in Article 7(1) that the Partner states guarantee free movement of persons who are citizens of the other Partner states.
[6] EAC greener pasture countries for highly skilled Kenyans, 5 June 2018, Trade Mark East Africa, East African Community, type="1">
In a 2014 report about the Kenyan diaspora, it is stated that there are about 3 million Kenyans abroad, and that number is rising. Kenyans continue to migrate in search of better economic opportunities which results in a major brain drain. It was noted that the Treaty for the establishment of the EAC (Article 104) provides for free movement of persons, labour, goods, services and the right of establishment and residence of their citizens within the EAC. This is further reiterated in the Common Market for East and Southern Africa Protocol on the free movement of labour. It is noted that Kenya has a well-trained labour force. Past experience has shown that Kenyans who have gone to work in other countries have performed very well. The report notes that the government could do more to facilitate Kenyans who are working overseas[8].
[8] >
In the circumstances, the Tribunal considers that the applicant, clearly a very resourceful, educated and experienced person, had options open to him to escape Kenya, a place where he faced persecution and being killed, in neighbouring countries, but he did not claim to have done so. He had however travelled for [a few] days in December 2013 to [Country 2], one of the EAC countries, and then returned to Kenya, a place of various sources of persecution. He clearly had an ability to escape to at least [Country 2], and on the country information before the Tribunal, to three additional countries. Given his failure to do so, the Tribunal considers that he may have had other motives (such as to improve his prospects and be an international traveller (as discussed later) when seeking to travel to the USA (to study/be sponsored to live there) and to Asian countries (to work as an English teacher). This view is supported by his claim that he made numerous unsuccessful applications to go to Asian countries as an English teacher; the Tribunal considers it is highly unlikely that if he was searching desperately for an escape route, he would make continuous numerous applications to work as an English teacher in Asian countries given he kept on being rejected as he was not a native English speaker. The Tribunal considers that his lack of escape to the neighbouring countries part of the EAC as an EAC worker (given his claims he was forced to live in hiding and at daily risk of death for five years in Kenya) undermines his credibility and his claims of feared harm and that he was a target in Kenya.
Seventhly, the Tribunal was concerned that there was evidence indicating that the applicant had booked a trip to return to Kenya in August 2015 despite his claims of all of the harm that awaited him in Kenya. In this regard, as put to the applicant pursuant to s.424A of the Act, in the Departmental file in support of his partner visa application are e-ticket receipts and an itinerary for himself and his wife to both travel together from [City 1] ([in] August 2015) to Nairobi ([in] August 2015)[9].
[9] Issued on [in] November 2014 as set out in the itinerary provided to the applicant with the s.424A letter.
The Tribunal put to the applicant that this indicated that he was prepared to return to Kenya, which undermines his claims that he faced (since at least 2009) and continues to face, a real chance of serious harm and a real risk of significant harm if he returned to Kenya, that he had had to live in hiding in Kenya and had received threats to his life in Kenya from multiple sources. The Tribunal suggested that if he faced such serious and significant risks he would not have booked tickets to return to Kenya. The applicant’s written response was that he booked the ticket “on the off-chance that his application to stay in [Country 1] was unsuccessful as he had a short-term [temporary] visa to [Country 1]. Circumstances changed when I engaged in migration agents and found a path to permanent residency in Country 1].[10] The Tribunal is not prepared to accept this explanation for booking tickets to allow him to travel back to a place of persecution and death. He was not suggesting that he booked tickets (for both himself and his wife) to return to Kenya at a time when he had no other options. Instead, he claimed that he booked the tickets “on an off-chance” that he may not be successful in staying in [Country 1]. The Tribunal has taken into account the applicant’s assertion in the Response that he called the Department and indicated that he was prepared to leave Australia while “awaiting the due process”. He does not, however, say where he was prepared to go, and if it was Kenya, then this would undermine his protection claims. If, however, as he said in his Response, he could have gone to Asian countries where he said he would have been issued a visa on entry (he named Malaysia and Singapore), it is difficult to understand why he would purchase tickets to return to Kenya where he faces persecution on an “off chance” that his application for permanent residency would not have been successful in [Country 1] (instead of pursuing other options at the time if need be). The Tribunal does not consider that the applicant’s reason for booking tickets back to Kenya is consistent with his claims of the serious and significant harm that awaits him in Kenya.
[10] Refer to photocopy of receipt [provided to applicant with s.424A letter] which notes that the e-tickets were issued on [in] November 2014 while the applicant was in [Country 1] and claiming to have lodged a permanent visa application to remain in [Country 1].
The applicant also claimed in response that he could have used the ticket to travel to Kenya, no one was stopping him from doing so, yet he did not do so. The Tribunal is not prepared to accept this explanation given (or the suggestion that because he did not use the ticket this supports that he had a fear of returning) given that he was in Australia at the time of the scheduled flight from [Country 1] to Kenya in August 2015, and considering his claim in his application form that he had no right to enter [Country 1] after 6 January 2015 (which, in his written responses to concerns about this issue, he has not clearly claimed was an error).
The Tribunal considers that the booking of those tickets indicates an intention for the applicant and his wife to travel to Kenya, which undermines his claims to face harm and to be of adverse interest to anyone in Kenya and his credibility.
Eighthly, the Tribunal was concerned that instead of living a life in fear and hiding as claimed, there was evidence from applications made by the applicant to the Department (outside of his protection visa application) indicating that he (and his wife) were living a normal life in Kenya. In this regard it was noted that:
·     According to a letter from his wife dated 7 December 2014 in support of his visitor visa application, they lived together in Nairobi, and he was a [Occupation 3] and [Occupation 6] in Kenya.
·     According to his partner visa application, he had travelled in and out of Kenya, thus risking coming to the attention of the Kenyan authorities (and being detained at the airport) to and from:
a.    [Country 3] from [April] 2014 to [April] 2014
b.    [Country 2] from [December] 2013 to [December] 2013
c.     [Country 1] from [August] 2014 to [January] 2015
·     According to the Memorandum of [Company 2] produced to the Department in support of his visitor visa application, he and his wife had registered a company in Kenya [in] March 2014 [information deleted].
·     According to an email he wrote to his mother-in-law on 19 July 2014, a few nights previously he had attended a public location, namely a [hotel], with his then partner and proposed to her [at a location].
The Tribunal put this information to the applicant pursuant to s.424A of the Act, noting that the above indicated that he was living his life in a normal manner, in public, not in hiding, he was travelling in and out of the country when he wished, which undermined his claims that he had effectively been living in hiding in Kenya since 2009 and that he was an important target for both the Mungiki and the Kenyan authorities, both of whom wished to harm him. The Tribunal suggested that his activities and manner of living instead indicate that he had no fear of coming to the attention of the authorities or the Mungiki, and that neither were interested in harming him.
In response the applicant claimed that the Mungiki believed he was a devout member, the police were “actively looking for Mungiki sympathisers, my family’s affiliation with Mungiki put me at risk”. The Tribunal considers that this response is a reiteration of his claims that he was at risk from the authorities; it does not overcome the Tribunal’s concerns.
He further explained that it “took time” for the police to murder his uncle and he believes that would happen to him if he returned, referring to the continuing “manhunt” and “onslaught” (sic) of Mungiki members by the authorities. The Tribunal is not prepared to accept the applicant’s suggestion that he considered that it was just a matter of time before he was killed. It notes that he claimed to have lived in fear and as a target for five years, and that his uncle was a prominent Mungiki who was murdered, and that the police killing squads were specifically targeting the applicant. The Tribunal does not accept that his activities (working in public, living with his wife in their home, going to public hotels, organising a business that would involve international trade with Kenya, travelling in and out of the country on holiday or for exploration of work opportunities and working part-time as a [Occupation 3] [Occupation 4][11], support his claimed fears or that he was a target of police killing squads.
[11] Although this was not an occupation listed in his protection visa documents, it was in his offshore documents, and when put to the applicant pursuant to s.424A of the Act he did not deny this work in his written Response.
The applicant provided a further explanation: he claimed that he had not travelled sooner because he came from an impoverished background. A woman helped him to apply for an American visa because she felt sorry for him, and he was seeking to travel to America to obtain refuge. The Tribunal considers his claim to have been impoverished appeared inconsistent with his claims in his protection visa application form that he was able to undertake and complete a [course], his occupation is that of [Occupation 1], and he worked in Kenya for [Occupation 2],. Further, the applicant’s written response indicates that he engaged the services of a lawyer when registering his company; all of these matters do not indicate that the applicant was impoverished. The Tribunal does not accept his assertion that his financial situation impeded him from leaving Kenya for five years while he was at risk of death (especially noting he did travel to and return from [Country 3] and [Country 2] during the time he resided in Kenya).
The applicant referred to his “grand plan” to leave Kenya and trade from outside the country (the company Trooper Travel was registered by himself and his wife in March 2014). He claimed that after incorporating he “started making trips to different countries, accessing whether the country was accommodative to black Africans or prejudiced”. This suggests that the travel he made to [Country 3] ([a few] weeks) and [Country 2] ([a few] days) related to this company; as noted above it does not support that the applicant was “impoverished”. The applicant’s written response, and his claim that he travelled to different countries to ascertain optimum working environments, appears inconsistent with his claims that he was a person under the pressure of death threats. His response instead suggests a person making considered, unhurried choices for an optimum future working environment.
Further, as put to the applicant, it also indicates that he was able to travel out of the country whenever he wished and that he was prepared to return to Kenya, a place where he feared being persecuted and killed, after visiting both [Country 3] and [Country 2]. The applicant also claimed in his written response that just because he had access to “certain facilities” this does not mean that he did not live in fear; every day he worried that “someone would eventually decide to pull the trigger or swing the machete”. The Tribunal considers that if this was the case, the applicant would not have returned to Kenya after having managed to escape (whether from [Country 3] or [Country 2]). The Tribunal has considered the applicant’s assertion that he never wanted to violate migration laws because his pure record is important to his career. The Tribunal is not prepared to accept that the applicant returned to a place where he faced being killed, just so that he could maintain an unblemished immigration record for the sake of a career (which he would not have if he was killed). The Tribunal considers his response undermines his claims, and instead indicates that his concern was personal advancement, not a fear of harm. In any event the applicant, who travelled to an EAC country (and returned within two days to Kenya) did not have to be concerned about breaking immigration laws if he had escaped to Kenya as an EAC worker. His failure to do so undermines his claims and credibility.
The applicant also claimed that because he could access different government departments (to register his business) this does not mean that he was not at risk of harm from the police killing squads. As put to the applicant in the s.424A letter, his general activities in Kenya as asserted and relied upon by him in other visa applications before the Department, suggest that he was not living in hiding and in great danger from killing squads (and Mungiki). The Tribunal considers that the applicant has not offered a satisfactory explanation as to why he was living his life so publicly (and clearly not in hiding) while at the same time claiming that he was living in hiding since 2009 as he was an important target for both the authorities and the Mungiki from whom he faced the risk of being killed and every day he feared being killed by a bullet or a machete. The Tribunal considers that his claimed lifestyle undermines his claimed fears and that he was a target, and his credibility.
The Tribunal has taken into account further part of the applicant’s written response, namely that he claimed that his business was structured to operate outside of Kenya, which supports his argument that he was looking for every possible opportunity to leave Kenya. As noted above, the articles of the company indicate that the company was based in Kenya with a variety of activities (operating both inside and out of Kenya). The Tribunal accepts that the applicant has had career ambitions and has sought to leave Kenya (it is also prepared to accept that he applied to teach English in other countries); it does not, however, appear that this has been for reasons of a fear of persecution; rather, it appears that this has been because he seeks personal advancement and to improve his career opportunities.
The Tribunal was also concerned with the new claim in his written response to the Tribunal that “On numerous occasions I was questioned and harassed by the police”. If this was the case, the Tribunal would think he would have mentioned this earlier, and that he would have said what the authorities said to him. Further, given he was such a target and a wanted man since at least 2009, he has also not explained why the police would have released him if they had located him, after having found him.
The Tribunal considers that the applicant’s travel to [Country 3] and [Country 2], and his willingness to return to Kenya after short periods, indicates that the applicant was not a person living in constant fear of being killed by police killing squads (or being killed by a machete), but instead that he was a person living in an ordinary manner, without threats, who was trying advance his career/travel and have holidays.
Ninthly, the Tribunal was concerned that the applicant’s correspondence with the Department after his wife (accusing him of domestic violence) left him[12] and withdrew her sponsorship of him, undermined his protection visa claims. In this regard, when writing to the Department to explain why he should stay in Australia, despite his wife having withdrawn her sponsorship of him[13], he does not mention any fear of harm in Kenya, instead he refers to his desire to live outside of Kenya for two reasons: (1) he considers himself as an international traveller, and (2) because he wants to keep financially supporting relatives in Kenya. He provided a six page statutory declaration dated 17 February 2017 to the Department in support of this maintained application for a partner visa (claiming that his wife had been abusive to him), in which he discussed his life in Kenya including that they had been dating, they moved in together, he had a business plan for operation in Kenya and he had been consistently looking for investors to start his company, and his wife also sought investors for him. They both made a plan to go to [Country 1], to start a new life, as his wife knew how badly he wanted to be an international traveller and business person. He also stated that while in Australia he could not leave her without losing his visa and letting down his family who he is financially supporting. The Tribunal put this information to the applicant pursuant to s.424A of the Act.
[12] Refer to paragraph 11 above.
[13] According to Departmental records.
The Tribunal noted that, over the course of that long and detailed statutory declaration submitted to the Department, the applicant made no reference to the claimed dangers that faced him in Kenya as a reason for leaving Kenya, or as a reason as to why he should not return to Kenya if his partner visa application was unsuccessful. He made no reference to being hunted by police killing squads, living in hiding in Kenya, nor the risk of being killed by Mungiki. Instead, his description of his life indicates that he was living a life without fear and not as a target in Kenya, but that he wanted to live outside of Kenya because of his desire to be an international traveller and business person.
The Tribunal considers that this supports that his motivation in making applications to reside elsewhere than in Kenya (America, Asian countries, [Country 1], Australia), is because he considers himself to be an international traveller, not that he was seeking to leave Kenya because he was in fear of his life.
Further, the Tribunal noted that it was not just the Department that the applicant did not tell about these serious matters when applying to stay in Australia. As put to the applicant pursuant to s.424A of the Act, when he considered the relationship was not working, he wrote an email on 2 July 2015 seeking immigration advice, but making no reference to a fear of returning to Kenya. In his email to [his local MP], dated 2 July [2015][14], he stated that he was seeking advice on what he should do, as he came to Australia on a partnership visa and his wife keeps on threatening to leave him. The relationship is not working out well and he is not happy but he cannot leave her yet. He is a [another occupation] at a company in [Town 1]. He asked if he leaves her before he gets permanent residence, will he still be able to stay in Australia, considering that his life is based here. The Tribunal put to the applicant its concern that while seeking immigration advice in July 2015, he made no mention of an inability to return to Kenya due to threats and a fear for his life from numerous sources; instead his reasons for staying in Australia were that he has a job here and that he considers that he is based here. The Tribunal put to the applicant that this appeared to undermine his protection visa claims because the Tribunal would expect that if he had a genuine fear of harm in Kenya, he would have mentioned that in his email seeking advice.
[14] Onshore Departmental file

In his s.424A response the applicant said that in his email to an immigration adviser he “gave him the relevant elements necessary at the time”. He also says that his desire to remain in Australia should be considered differently to his fear of returning to Kenya. The Tribunal does not accept this explanation for not seeking advice on the very serious matter of how to not return to Kenya where he faced being killed. The Tribunal considers that if the claims made in his protection visa application that he had faced harm and that he continued to face harm (including death) in Kenya were true, he would have sought advice based upon such significant and all-encompassing fears and circumstances instead of just referring to his job and his view that, after one and a half years of living here, his life was based in Australia. In coming to this view the Tribunal has considered the balance of the applicant’s response, including his assertion that he did not fear harm in Kenya “can be disproved by records showing that I raised these concerns the year 2008 and 2014. I have been invited to speak at many venues in Australia, I am invited because I inspire others and give them hope. Refusing to admit my life was in danger was not only because I wanted to get a visa in this country a different way, didn [sic] know about the protection visa avenue”. The Tribunal notes that the applicant claims that his life was at risk, since at least 2009 in Kenya and, before arriving in Australia, that he had investigated claiming protection in [Country 1] but found out that he could not do so because they were only admitting certain nationalities. The Tribunal also notes that at the time he sent this email, he had spent one and a half years in Australia, his English appeared to be reasonable, noting that he had engaged in studies at [University] and he had started working as a [Occupation 2] at a [Company 1] in Australia. The Tribunal does not accept that if the applicant’s claims of persecution in Kenya were true, he would not have made enquiries and found out about seeking protection as a way of seeking to remain in Australia (and in particular when writing to an immigration adviser asking how he can stay in Australia).
The Tribunal has taken account of the applicant’s argument in his response that he had only written an “incipient introduction letter” to the agent but does not accept this as an explanation given the nature of the risk he claims to have faced and continued to face. Further, the applicant has made a passing reference to “records” from 2008 and 2014, showing he raised concerns that he was in fear of his life. Given the level of detail in the applicant’s written response about other matters, the Tribunal considers it difficult to understand why he provided no further detail of what this meant, and the Tribunal is thus unable to place any weight on these vague assertions.
The applicant also claimed in response that he received no response from that agent and later confided in other agents who advised him to lodge a protection visa application. This may be so, however, the applicant has not explained what he said to those different agents and when he said it. The Tribunal is faced with an email he sent (and provided to the Department), seeking immigration advice once he considered that he could not remain in Australia on the basis of his marriage, and he has made no suggestion in that email that if he returned to Kenya he faces being killed as he has a long history of threats and hiding from killing squads and others. The Tribunal considers that the above undermines his claims and credibility, and indicates that his reason for seeking to remain in Australia was because he liked being here, and he wanted to continue to financially support his relatives.
Tenthly, the Tribunal was concerned that information the applicant had provided to the Department while offshore and seeking to enter Australia indicated that he had the right to return to [Country 1], and that he had a job waiting for him there upon return, but he omitted this when providing information to the Department in support of his protection visa application.
In this regard, the Tribunal put to the applicant pursuant to s.424A of the Act the following documents from his offshore application file:
·     A document from [an] Embassy stated that he had permission to remain in [Country 1], including leaving and returning to [Country 1] before [September] 2015 while his [Country 1] residence application permit was being finalised.
·     According to a letter from his wife dated 7 December 2014 in support of his visitor visa application, the applicant and his wife had applied for [Residence] permits, as at that date (7 December 2014) they had both verbally been granted the residence permits, however, the card would take about one month to arrive due to the [Country 1’s] system’s backlog and disconnection between departments.
·     In the visitor visa application form the applicant provided a letter from his employer, [Mr D], stating that the applicant had been working in the studio since October 2014, he is an invaluable member of the team and he is expected to return to work in June 2015 after a three month holiday in Australia.
These documents indicated that, as at July 2015, the applicant had a right to return to [Country 1], and a job waiting for him there. However, when putting forward claims in his protection visa application, he claimed (in his Response to the Department’s invitation to comment) that by July 2015 he sensed the relationship with his wife was not going to work and as he had no intention of using his wife to gain residency in Australia, he applied (unsuccessfully) to go to America. He did not, however, reveal, that he had a right to reside in [Country 1] which he had not exercised.
In his written s.424A response to these concerns, the applicant’s evidence was somewhat changing and evasive. He claimed that “it did not matter to me that the opportunity to return to [Country 1] existed”, but also said that when he came to Australia his efforts to acquire permanent residency in [Country 1] were thwarted “without meeting all the migration requirements” and he can produce evidence of this. At the same time he also suggested that he was relying upon a feeling or impression that he would not have succeeded in obtaining permanent residence in [Country 1]. The Tribunal notes that the applicant does not actually provide a concrete reason why he would have lost that right and he did not specify the nature of the “evidence” he can produce in support to show that he had actually lost his right to permanent residence in [Country 1] (although the Tribunal does note that elsewhere he proposes that he would write to the [Embassy]). The Tribunal is also concerned that the applicant has not specifically addressed the documentary evidence indicating the contrary position which he had relied upon in seeking to enter Australia, namely that he had the right to leave and return to [Country 1] while his application for permanent residency was ongoing, which right existed until September 2015 or that, as his wife said in support of his application to come to Australia, he had actually been granted permanent residency in [Country 1] as at December 2014 and was just waiting for the written proof.
The Tribunal has considered the printout that the applicant provided from a website called Expat Guide [Country 1], discussing residence permits in [Country 1] in 2018, which provides advice for EU citizens applying for permits in [Country 1]. This is general advice, not for Kenyan citizens, and is dated three years after 2015. The applicant, however, had produced to the Australian government in support of his offshore application to come to Australia, specific documentary evidence that he had the right to leave and return to [Country 1] while his application was being finalised, as well as his wife’s letter stating that the residence permit had already been granted to the applicant, and that they were simply awaiting the administrative step of receiving the actual document. The applicant has not explained why, in the face of these documents he relied upon to enter Australia, he assumed that he did not have a right to permanent residency in [Country 1]. The Tribunal considers that this undermines his credibility and indicates that he is prepared to make and rely upon assertions he considers necessary depending on the type of application he is presenting, and that he is prepared to change those assertions.
The Tribunal’s concerns in this regard are heightened because the applicant’s written s.424A response suggests that he applied for permanent residency on 7 December 2014[15], and so based on the general advice to EU citizens in 2018 that it takes 90-180 days to acquire permanent residency in [Country 1] and because he came to Australia on 9 January 2015, “this clearly shows that my opportunity to hold permanent residency had disappeared”. However, his assertion that he applied for permanent residency on 7 December 2014, almost four months after he arrived in [Country 1], contradicts his Response to the Department in his protection visa application that he attempted to secure permanent residency as soon as he arrived in [Country 1] (August 2014, and if it did take 90-180 days then he would have been granted permanent residence before he left).
[15] Although he appeared to be referring to the Tribunal’s s.424A letter when making this claim, this is not what the s.424A letter says. Instead it states that his wife said that she had been told on that date that they had been granted permanent residency
The applicant’s written response continues by stating that after he separated from his wife he tried to find a way of living in Australia without mentioning the primary reasons he did not want to return to Kenya. He suggests he was haunted by memories, and that he was in an abusive relationship in Australia, and these are the reasons why he did not mention the primary reason why he wanted to stay in Australia. The Tribunal does not accept that the applicant would omit this explanation, given he was prepared to submit some reasons as to why he should stay. The Tribunal is not prepared to accept that he would, if he was fearful of returning to Kenya, omit to mention that he would face death if he returned.
The Tribunal considers that if the applicant’s protection claims were true he would have referred to the reasons why he could not return to Kenya when seeking immigration advice, and he would have sought advice on his situation, given his intelligence and resourcefulness, as soon as he considered that his relationship (which had been his basis for staying in Australia) was not working, namely by July 2015. The Tribunal considers that the applicant’s delay in claiming protection until August 2017 (while acknowledging that he did have an ongoing application for permanent residency based on his spouse visa) to be of concern given the difficulties he said he faced in Kenya.
Part of the applicant’s response to this concern was also a repeat of the matter set out in paragraph 45 above, however the Tribunal is not prepared to accept that the applicant made a genuine offer to leave Australia pending the processing of his application. It considers that it is highly likely that this particular applicant, an intelligent person who spoke English and had been in Australia for over two years, working, would have been aware in advance of lodging that application that he would be permitted to remain in Australia pending its resolution, noting also that he was already aware that he was permitted to remain in Australia pending the processing of one visa application (his permanent spouse visa application).
Further, when the Tribunal had put to the applicant pursuant to s.424A of the Act the itinerary and e-ticket receipts for travel from [City 1] to Nairobi in August 2015, it noted that this ability to be in [Country 1] in August 2015 contradicted the claim in his protection visa application that his ability to enter [Country 1] had expired on [January] 2015, before he came to Australia. In his written response the applicant claimed that this difference was irrelevant to his protection visa application; failure to provide an accurate date doesn’t necessarily mean he intended to mislead the Australian government. As far as he was concerned his opportunity to be a permanent resident in [Country 1] was lost. He then claimed that “at all times the details of my visa status was clear to the Department, on the face of the documents I provided to the Department” (prior to his arrival in Australia). If the applicant believed this to be the case, it is not clear as to why he would have claimed in his protection visa application that [Country 1] visa had expired prior to his arrival in Australia. The Tribunal considers that this indicated that he gave misleading information in his protection visa application about [Country 1] visa, which indicated that he was prepared to give false information in order to remain in Australia, which undermines his credibility.
Eleventh, it appeared that the applicant had relied upon documents in his offshore application to the Department seeking to come to Australia, which were inconsistent with his subsequent protection visa claims. The Tribunal put to the applicant pursuant to s.424A of the Act that he had provided to the Australian authorities, in support of his visitor visa application to come to Australia, a copy of an Official Receipt issued by the Criminal Investigation Department (CID) to him on [in] 2014 in support of him obtaining a Police Clearance Certificate, the Results of his fingerprints taken by the [Police] when he attended at a police station on [in] 2014, as well as the Police Clearance Certificate dated [in] 2014 obtained from the Criminal Investigations Department indicating that his identification had been searched for in the Criminal Record’s Office database and he was without previous record. He also provided a letter from the Ministry of Interior and Coordination of National Government (Immigration and Registration of persons) dated [in] 2014 which confirmed that he is the legal holder of his Identity card, and states that assistance provided to the applicant would be highly appreciated.
The Tribunal put to the applicant that this was relevant because it indicates that the applicant was prepared to approach the Kenyan authorities and be investigated by the authorities, in order to obtain his fingerprints check and police clearance to come to Australia. This undermines his claim that he has been affiliated with, and he is suspected/imputed by the authorities with membership of/sympathy for Mungiki, a criminal group he said has been outlawed, and as a result of which he had been an ongoing target of the Kenyan Police killing squads for five years, from whom he has been hiding as they had already killed his uncle in 2009 and wanted to kill the applicant since that date, and they will kill him upon his return, and that he has received numerous threats and warnings. The Tribunal put to the applicant that this information indicated that he did not have the claimed fear of harm and also that the Kenyan authorities have had and currently have no adverse interest in him. The Tribunal noted additionally that although he claims to be imputed/involved/associated with an outlawed organisation (to the extent that he was a wanted man), these contacts with the authorities and the documents provided indicated that the Kenyan Police authorities checked his identity and found that he had not been of adverse interest and for that reason they issued him with a Police Clearance and a copy of his fingerprint record. In this regard, the Tribunal put to the applicant that if he was, as claimed, a wanted man for suspected association with a criminal outlawed gang, the authorities would not have been prepared to issue him with such documents to assist him.
The applicant wrote in response that Cobra Squad were responsible and are still tasked with finding anyone who was affiliated with the outlawed group, and he seeks time to get documents from “the CID Department Kenya they will show that I was among the affiliated members of the Mungiki group”. He also said that he has attached country information indicating that “the group is still active and the police squads are hunting down any associated members” (referred to below). This response indicates that he maintains his claim that the Mungiki generally, and the applicant specifically, have been and remain of adverse interest to the authorities, which is why he went into hiding from 2009. The Tribunal considers that it is highly unlikely that the applicant, claiming to be perceived as an affiliated member for the Mungiki group, would have approached a Police station, the Criminal Investigation Department, and the Ministry of Interior and Coordination of National Government (Immigration and Registration of persons), given his claim that police squads are “hunting down” people such as the applicant.
The Tribunal has considered the applicant’s assertion that even his uncle accessed government offices at will; if his uncle had tried to acquire a police clearance or passport he could have done so with ease, there is an “uncentralised system that exists in Kenya” and the Tribunal does not understand “the practical reality of how things work in Kenya”. The applicant has not produced country evidence showing that between 2009 and 2013 the police had no way of tracing or finding people through their interactions with government, police stations and/or the CID; indeed it is noted above that the applicant said the CID have him recorded as affiliated with the Mungiki (while the documents show that the CID assisted him in obtaining documents to show that he was not a criminal). There is no evidence before the Tribunal to support that there was such disarray in the CID that those searching for him would not have known that he was on numerous occasions approaching authorities for supporting documents. Country evidence shows for example that as early as 2006 the Kenyan police were sophisticated, using mobile phone technology to track and locate people they were after, given that “Most parts of the country are covered by the mobile telephone network and cellphones play a central role in the daily lives of many Kenyans. An estimated 10 million people own these phones”[16]. The evidence provided by the applicant does not suggest that the Kenyan police or killing squads were unable to investigate and trace people through their actions including interactions with government and police. Even if that was so, given the applicant’s claims of constant fear of death, it seems difficult to accept that the applicant would willingly approach numerous police/government agencies and bring his identity to their attention.
[16] Daily Nation, 27 April 2006, “Cellphones used to track down crooks”. >
The applicant states that his ability to obtain police clearance “only proves” that he is not a criminal. He then asserts that his risk arises from political motivations not criminal. This however is inconsistent with the country information he put forward, namely that this gang are considered criminals, and are outlawed (even if there are suggestions that such labelling may for some be politically motivated). He suggested that the only way the Tribunal can consider that this is adverse to his claims is if the Tribunal can prove that no one who has ever been assassinated by police squads in Kenya previously obtained a police clearance. The Tribunal does not accept this assertion; the applicant has not provided any country information in support of this argument. Further, as noted above, the applicant did not only obtain police clearance, he was willing to, and did, approach the CID (which he claims has evidence that he is a Mungiki-affiliated member) as well as a government department and a police station.

The Tribunal notes that the applicant claims that the government cannot protect the Kikuya communities and provides as an example the events from more than 10 years ago (post-election violence 2007/2008). The Tribunal accepts that there has been violence in Kenya in the past for example at election times, from the authorities, from Mungiki or other criminal gangs, or for political and other reasons. The Tribunal does not accept that the applicant has ever been targeted or harmed or experienced harm or threats for these reasons. The Tribunal notes that the applicant did not leave Kenya after that post-election violence; indeed he waited a further 8/9 years to leave. The Tribunal considers that the applicant is an intelligent, resourceful, well educated person with work experience who could have moved, even temporarily, to EAC countries if at any stage while he was in Kenya, his profile meant that he faced a real chance of serious harm or real risk of significant harm or a real lack of state protection. Instead, the applicant remained in Kenya, and engaged in studying for a [Degree], and thereafter applied for work and obtained work, and travelled in and out of Kenya when he wished.
The Kikuyu make up some 17% of the population, and President Kenyatta is the top political leader of Kenya's largest tribe[33]. Kenya last held its general elections on 8 August 2017. The Tribunal notes that it was reported in August 2017 that:
The election was carried out peacefully, and there were few technical glitches compared with the previous poll, in 2013, when voting machines were afflicted by widespread malfunctions. An election in 2007, widely believed to have been flawed, touched off bloodshed that left at least 1,300 people dead and 600,000 displaced.… Most Kenyans say they do not want to see the kind of violence that nearly tipped the country into a civil war after the 2007 presidential election… The police and troops were deployed to areas believed to be at risk of turning violent if there is a perception that the vote has been manipulated. [34]
[33] BBC Kenya country profile - Kenyan Presidential Election is Peaceful; Violence Feared Over Results 8 August 2017 New Your Times, >
In making its findings the Tribunal has taken into account the country information provided by the applicant and other reports.
The Tribunal is not however satisfied on the evidence before it that the applicant produces his ID card he as a Kikuyu that there is a real chance or a real risk that he would be attacked and killed by opposition supporters or that he faces a real chance of serious harm or a real risk of significant harm at times of elections or at other times as a Kikuyu. The Tribunal does not accept that he has feared or does fear that he could be killed at any moment just because he is Kikuyu. The Tribunal is not satisfied on the evidence before it as to the applicant’s claim that he or people with his profile face being targeted by Kenyan elite or business leaders or other such persons nor is it satisfied with the assertion in his statement that he is a person who agitates for equality and respect for human rights (nor does it accept that there is a real chance or real risk that he would be so imputed). The Tribunal is not satisfied that the applicant faces a real chance or a real risk of requiring state protection (as a Kikuyu or for any reason).
The Tribunal has had regard to the applicant’s profile as an educated, westernised, Christian, Kikuyu male in assessing whether there is a real chance the Mungiki (or terrorism) will cause him a real chance of serious harm or a real risk of significant harm in Kenya.
The U.S. government estimates the total population at 47.6 million (July 2017 estimate), of which approximately 83 percent is Christian and 11 percent Muslim. It notes that Muslims have referred to concerns of extra-judicial targeting and killing and discrimination, and that there have been some religious tensions building, and terrorist targeting by Al-Shabab.[35] Al-Shabab, active in Somalia, has also been launching a growing number of attacks in Kenya, including the 2013 Westgate shopping mall in Nairobi and the 2015 attack on Garissa University College in northwest Kenya[36]. Thus, although the Tribunal accepts that there is terrorism, it is not however satisfied that there is a real chance or real risk that the applicant faces suffering serious or significant harm as a result of terrorism.
[35] US Religious Freedom Report 2017
[36] BBC Kenya country profile - >
The Tribunal accepts that Mungiki are opposed to Christian/western beliefs and have targeted Kikuyu, police and others. The Tribunal noted that in his Response to the Department he asserted that his father [worked in an occupation] in [Suburb 1]; Mungiki operated there; and this was an area near where he used to live. As noted above however, the Tribunal attempted to ask the applicant about his addresses in Kenya by way of background and he refused to answer such questions. In the circumstances the Tribunal is not satisfied as to his addresses nor is it satisfied that his home area was or is a Mungiki-operated area.
The applicant claimed to have “deep connections” to the church, it is unclear as to what he meant by this but the Tribunal is prepared to accept that he is Christian as is his family. It was only the applicant’s assertion that his father is [an official], the Tribunal is not prepared to accept this assertion.
As discussed above the Tribunal notes that 83 per cent of the population of Kenya are Christians and the Kikuyu are the largest ethnic group in Kenya. The Mungiki have been in operation for many years and the Tribunal has found that the applicant has not faced harm from the Mungiki in all the years he has lived openly in Nairobi; it finds that his decision to remain living and pursuing his education and career in Nairobi undermines his claims that he himself fears harm from Mungiki; the Tribunal considers that the applicant himself has considered that he did not face any risk (let alone a real chance or real risk) that he would be targeted or harmed by Mungiki. The Tribunal is not satisfied that upon return and thereafter, his profile and location means that he faces a real chance of serious harm or a real risk of significant harm from the Mungiki. It has considered whether his affinity for western living (including having lived in a western country for a number of years) will adversely affect the risk/chance of harm or being targeted by the Mungiki but on the evidence before it, it is not satisfied that the applicant faces a real chance of serious harm or a real risk of significant from the Mungiki (or as a result of a terrorist attack or otherwise as a male Kikuyu educated Christian [in Occupation 1]/[artist] [living] in Nairobi).
The applicant produced country information referring to corruption; while the Tribunal accepts that there is corruption the Tribunal is not satisfied that this means the applicant faces a real chance of serious harm or a real risk of significant harm on the basis of corruption. The Tribunal also accepts the evidence that the police and authorities and various tribes have engaged in violence; the Tribunal is not however satisfied that this applicant faces a real chance of serious harm or a real risk of significant harm for these reasons. While the Tribunal accepts that the Kenyan authorities have acted brutally in their search for Mungiki and other criminals, it does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm for these reasons nor of being targeted by police killing squads either as a suspected Mungiki sympathiser/member or because he is Kikuyu youth or for any other reason.
The Tribunal considers that the applicant does have family members in Kenya. The applicant is an educated and skilled individual. In his written response the applicant claimed that he wanted to earn his stay in Australia through hard work and positive contribution and that he wanted to get sponsored to stay in Australia by starting a [business]. The Tribunal considers that the applicant who is resourceful educated and with work experience will return to Kenya and will be able to support himself, and while there are difficulties in the country (including Mungiki, police brutality, terrorism, tribal and religious tensions), the Tribunal is not satisfied that on the evidence before it, the applicant faces a real chance of serious harm or a real risk of significant harm for any of the reasons claimed. The Tribunal considers that the applicant has been prepared to lodge a protection visa application without foundation in order to remain in Australia.
Sexual assault claims: The Tribunal also notes that in his written submission to the Tribunal of 12 July 2018, the applicant claims to have received threats and messages because he was charged with sexual assault. He did not provide these to the Tribunal nor were they part of his application for a postponement. The Tribunal also notes that the applicant has not provided any further details about this; he has not explained how people in Kenya would have known that he was charged with sexual assault. The Tribunal is not satisfied on the evidence before it that anyone in Kenya is aware that the applicant was charged with sexual assault nor that there were threatening messages. Even if they were so aware (which the Tribunal does not accept), the applicant did not provide country information supporting his claim that his culture is “very intolerant to people who have been affiliated with this allegations” which would lead to a person alleged of rape facing a real chance or real risk of being assaulted or killed. Indeed the Tribunal has accessed country information which indicates that it is the victims of sexual assault who have traditionally received adverse reactions, with the men only sometimes being blamed. In this regard:
·     A 2004 article in the journal International Perspectives on Sexual and Reproductive Health looked at young people’s experiences of sexual coercion. The article states: Under Kenya's penal code, rape, attempted rape and other forms of non-consensual sex are crimes punishable by imprisonment. In practice, however, the law is rarely enforced, and society tends to blame rather than support the victim, which discourages reporting. Moreover, rape is often looked on as a normal and forgivable action by males who cannot control themselves. For example, when 19 secondary schoolgirls were killed and 71 others were raped in 1991 by male students in their dormitory at St. Kizito in Meru, Kenya, the deputy principal at the school was quoted as saying, "The boys never meant any harm against the girls. They just wanted to rape."[37]
·     A May 2016 report by Vice News looked at police and rape in Kenya: Police in southwest Kenya ignored accusations that one of their officers had raped a child, until a half-page advert in the country's most widely-read newspaper brought the crime to national attention. "I am a citizen and wish to address you through the media regarding a 12-year-old who was sexually defiled in Kisii County by a police officer," read the advert on page 57 of the Daily Nation's January 29 edition, a week after the alleged attack. "We reported the matter at the police station but [police] refused to allow statements to be recorded and have been protecting the officer." The advert had the intended effect — Inspector General Joseph Boinnet, Kenya's most senior police officer, ordered an investigation, and Kenya's police watchdog, the Independent Police Oversight Authority (IPOA), also opened a inquiry. But would any action have been taken otherwise? Activists, rape survivors and even the IPOA say there is a serious problem with police officers committing rape and sexual assault with near impunity — an issue which since the January advert has sparked growing anger as new cases have come to light. The IPOA's current tally of investigations into rapes reportedly committed by police officers is six — a number IPOA spokesperson Rosemary Kamau says likely under-represents the prevalence with which members of the security services commit sexual assault. "When a policeman is involved, the evidence is tampered with and rape cases are covered up," she said. "It really is a challenge on our part." According to Kamau, of the six cases currently active, only one is making progress, because the other five victims are not willing to give evidence out of fear of reprisals. The lack of progress in these cases of alleged rape are just one element of a long history of corruption, abuse, and sexual violence committed by Kenyan police.[38]
·     A July 2018 article in The Conversation notes that Kenya is a patriarchal society where myths about rape are common: In many parts of Kenya, as in so many patriarchal societies, men and women are raised differently. This upbringing creates imbalances in the power relations between them. Most young men are socialised to be sexually adventurous and aggressive as a way to prove their masculinity. Girls are expected to be chaste, domesticated and compliant. Women and girls who deviate from these designated roles risk disapproval from community members as well as physical and sexual violence. These attitudes are particularly marked when it comes to the issue of rape. Myths, and false beliefs – misconceptions resulting from incorrect reasoning – about rape, rape victims, and rapists are rife in Kenya. For example, half of the population will blame a rape victim under any circumstance. The common myths include: that rape is committed by a deviant and/or a stranger, that it is not that serious, that the man was provoked by the sexiness of the female, women mean yes when they say no, women are liars, and a man is entitled to the sex through marriage or purchase of gifts. These attitudes place the blame on the victims, and don’t hold perpetrators accountable for their actions. And the victim’s credibility is questioned. Survivors of rape in Kenya face numerous challenges. These include not being believed by service providers, being blamed for rape because of what they were wearing, and being drunk. They also experience delays at health facilities, police stations, and courts.[39]
·     An August 2018 article in Daily Nation reports on a number of cases where it is alleged that men were falsely accused of sexual offences. The men were acquitted in court. There is no report that the men were physically harmed in any way.[40]
·     Until 2012, section 38 of Kenya’s Sexual Offences Act contained a provision which ‘criminalized the making of false allegations against another person with respect to sexual offences. The false accuser would then be liable to a punishment equal to that of the offence complained of.’[41]
[37] ‘The Experience of Sexual Coercion Among Young People in Kenya’, Annabel S. Erulkar, International Perspectives on Sexual and Reproductive Health, Guttmacher Institute, December 2004, p.187, CISD49C2F41471
[38] ‘‘They Always Protect One of Their Own’: Police and Rape in Kenya’, Vice News, 18 May 2016, CXBB8A1DA39870
[39] ‘Why attitudes towards sexual violence in Kenya need a major refresh’, The Conversation, 22 July 2018, CXBB8A1DA39872
[40] ‘Innocent men suffer as sex offences law is used to settle personal scores’, Daily Nation -Kenya, 16 August 2018, CXBB8A1DA39910
[41] ‘The Elusive Justice for Women: A Critical Analysis of Rape Law and Practice in Kenya’, Ruth Nejura Lekakeny, 2015, p.32, CISEC96CF110379
The Tribunal is not satisfied that even if people were aware in Kenya that the applicant had been charged (with the charges not pursued) of sexual assault, that the attitudes as referred to above would lead to the applicant facing a real chance of serious harm or a real risk of significant harm for any reason related to this. It is not prepared to accept his assertion that it would not matter in Kenya that the charges were dropped. Further, the applicant has not made any suggestion of a risk of being charged himself in Kenya, nor is there evidence before the Tribunal that he faces a real chance or real risk of this occurring.
The Tribunal has considered the applicant’s claims individually and on a cumulative basis, having regard to the findings that the applicant is not a credible witness concerning past events or future harm feared, as well as the relevant country information. Other than those claims accepted above, the Tribunal rejects all the various claims made and finds that he does not have a well-founded fear of persecution as a refugee for any of the reasons put forward by him or on his behalf.
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) (see Annexure A, which provides a summary of the relevant terms).
The Tribunal does not accept that the applicant has experienced any adverse interest as claimed nor that he has the profile claimed. It has accepted that he is Kikuya from Nairobi who will return to Nairobi, that he is well-educated and qualified and intelligent and resourceful and has work experience as an [Occupation 1]. It has also accepted that he is Christian, and a [artist]. It has found that he has family members in Kenya and it does not consider that he faces a real risk of not having access to work or accommodation. It does not accept that he or his family members have ever been a target of the authorities or killing squads and it does not accept that he faces a real risk of adverse attention or significant harm from the authorities. It notes that the Mungiki have been engaging in brutal conduct in the country and that the authorities have engaged in repression of Mungiki for many years. It has found that the applicant has not previously experienced harm at the hands of the Mungiki nor the authorities. It is not satisfied on the evidence before it that the applicant faces significant harm from these sources in the future. The Tribunal does not accept that because the applicant is a Kikuyu who will live in Nairobi and work and is a Christian who will attend church and is a [artist] and that he has been living in a western country and likes western concepts that he faces a real risk of significant harm. It also does not accept that he faces a real-risk of significant harm from other tribes because he is a Kikuyu, or from opposition supporters at election times or other times, or otherwise. It does not accept that people in Kenya are aware or that there is a real chance or a real risk that they will become aware that the applicant was charged with sexual assault and that the charged were then dropped and that this would lead, for any reason, to the applicant facing a real risk of significant harm, given the prevalent attitudes as referred to in the country information.
The Tribunal is not satisfied that the applicant faces a real risk of experiencing significant harm for any reason, including when considering his profile on a cumulative basis.
On the evidence presently before it, 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 a receiving country, in this case Kenya, there is a real risk that he will suffer significant harm for the purposes of s.36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Conclusion
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).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
CHRISTINE CODY

MEMBER

ANNEXURE A – RELEVANT LAW - CRITERIA FOR A PROTECTION VISA
1.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.
2.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.
3.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 themself 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).
4.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 below.
5.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 below.
Mandatory considerations
6.In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

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[2019] AATA 5749

4 May 2019

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction