1823742 (Refugee)

[2023] AATA 2268

1823742 (Refugee) [2023] AATA 2268 (28 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Carina Field (MARN: 2016135)

CASE NUMBER:  1823742

COUNTRY OF REFERENCE:                   Stateless

MEMBER:Nicole Burns

DATE:28 April 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 28 April 2023 at 4:03pm

CATCHWORDS
REFUGEE – protection visa – stateless – race – Nubians in Kenya – nationality – stateless – particular social group – single women – women at risk of human trafficking – domestic work abroad – identity documents – sexual violence – modern slavery conditions – state protection – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5LA, 36, 65
Migration Regulations 1994, Schedule 2

CASES
AGA16 v MIBP [2018] FCA 628
MIMAC v SZRHU [2013] FCAFC 91
SZRTC v MIBP (2014) 224 FCR 570
V856/00A v MIMA [2001] FCA 1018; (2001) 114 FCR 408

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 August 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant first came to Australia [in] December 2012 as the holder of a [temporary] visa, working for [a Country 1] family in domestic duties.  She applied for a protection visa on 28 November 2016. 

3. The applicant appeared before the Tribunal on 8 December 2022 to give evidence and present arguments about the issues in her case. The Tribunal hearing was conducted with the assistance of an interpreter in the Swahili and English languages.

4. The applicant was represented in relation to the review.  Her representative attended the hearing. 

   CRITERIA FOR A PROTECTION VISA

5. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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.

6. 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.

7. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

8. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

9. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

10. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

11. Given DFAT has not produced a country information report on Kenya, the Tribunal has considered country information from other sources to determine if the applicant’s fears upon return to her receiving country (Kenya) are well founded, discussed below. 

    CONSIDERATION OF Claims and evidence

    Relevant background (including ‘receiving country’ findings)

12. The applicant is [an age]-year-old single woman from Kibera, a large slum area in the outskirts of Nairobi, the capital of Kenya. She is Muslim and of Nubian ethnicity.  She first came to Australia in 2012 holding [a Country 2] passport in her name and date of birth (DOB).  She held a [temporary] visa, working for [a Country 1] family that she had previously worked for as a housekeeper in [Country 1].  In 2016, the [Country 1] family left Australia and the applicant stayed here, applying for protection in November that year. 

13. The applicant’s stepfather died when she was around [age] and her mother died when she was around [age].  She and her sister, [Ms A], lived together in Kibera until the applicant went to [Country 1] to undertake domestic work for a family there in around 2011. The applicant’s [Ms B], died of natural causes in [year].[1]

    [1] According to the applicant’s 31 May 2017 statutory declaration provided to the Department.

14. At hearing the applicant told the Tribunal she presently works in [Industry 1] and is studying a [qualification].  She is single and lives in Melbourne.  The only remaining family she has in Kenya is her sister, [Ms A], although she has not been able to contact her since late 2021.

15. There has been some confusion about the applicant’s nationality, in large part due to inconsistencies in this respect, including about her place of birth, and her parents’ places of birth and nationalities.  For example (as noted in the delegate’s decision record), in her [temporary] visa application and protection visa application the applicant claimed to have been born in Kenya and to be a Kenyan and provided a copy of her Kenyan passport[2], which indicated she was born in Nairobi, Kenya.  However, in a statement provided to the Department after submitting her protection visa application, the applicant claims: to have been born in [Country 3]; that her mother was Kenyan and her biological father was [Country 3]; to be a Kenyan citizen only although in practice that has never been recognised as she could not obtain a Kenyan national identity card (NIC). She states that her Kenyan passport was fraudulently procured via an agent. 

    [2] A copy of which the applicant provided to the Tribunal.  The Kenyan passport was issued [in] 2011 and expired [in] 2021. 

16. In a further statement (provided in response to a letter from the delegate about these matters) the applicant claimed to be stateless and that, as an undocumented ethnic Nubian, she was unable to obtain citizenship in either [Country 3] or Kenya; and that she suspects her agent fraudulently obtained the Kenyan NIC (a copy of which was provided with her [temporary] visa application). 

17. Further, at interview with the delegate the applicant purportedly said she was born in Kenya, however, she later said she was born to Nubian parents in [Country 3], with her mother born in Kenya, and she entered Kenya as a baby.  She apparently stated that she grew up believing she was born in Kenya, only to be told at a later stage that she was born in [Country 3].

18. The applicant attempted to address these concerns, as well as clarify matters pertaining to her background, including her parents’ background and nationality status, in statements provided to the Department dated 31 May 2017 and 21 April 2017, in which she explains as follows (in summary):

    ·She does not have a good understanding about the concept of citizenship, and all she knows is that Nubians in Kenya have been fighting for identity documents for as long as she can remember.

    ·She stated she was a Kenyan citizen in her protection visa application form because that is the only country she has ever known and she lived there most of her life.  Her mother and father (who she came to know later was actually her stepfather) told her and her sister they were born in Kibera, and she was told they were born at home. 

    ·She does not know when or how her stepfather was able to obtain a Kenyan NIC.  She never saw it, but her sister told her he had one.  She does not know if he obtained it legally.

    ·Her sister never had an NIC or any other identity documents in Kenya.

    ·When the applicant was 18, she tried to get an NIC using her stepfather’s name; however, this was not possible because the authorities asked for her grandfather’s birth certificate which she does not have.

    ·[Ms A] – who is 18 months older than the applicant – had also tried to get an NIC when she turned 18, and again when the applicant turned 18.  However, they were unable to meet the requirements to provide evidence of their grandfather’s birth certificate, and were not given alternative options.

    ·The applicant’s stepfather died in around [year], and she did not know he was not her biological father until about a year or two after her mother died (when she was around [age], in 2002) and her aunts were trying to kick them out of the house.  Her mother’s best friend ([Ms C]) confirmed: that she met her mother after she arrived from [Country 3]; that the applicant’s mother had been married in [Country 3]; and that the applicant and her sister were born there.  Prior to that, the applicant had believed she was born in Kenya.

    ·The applicant stated that her (biological) father was a [Country 3] citizen in the protection visa application because [Ms C] told her he was from there.  She mistakenly said in a previous statutory declaration that her biological father was born in [Country 3]; she had assumed this, but does not know where he was born.

    ·She found out her biological father had died in [the war in Country 3] and their family had to flee [Country 3], having no identity documents, to Kenya. 

    ·She does not know how to get documents as evidence that her father is from [Country 3] because he was probably born at home, not in hospital, she does not know his DOB, and everything she knows about him is from [Ms C], who died in 2006.

    ·The applicant’s [Ms B] died from natural causes in [year].  As she heard from [Ms C] that [Ms B] had spent most of her childhood in [Country 3], the applicant stated she was [Country 3] in her protection visa application.

    ·The applicant knows nothing about her paternal grandparents. 

    ·With respect to her maternal grandparents, the applicant’s mother said her maternal grandfather was born in Kenya; she believes he died when the applicant was very young. Her mother told her she never knew her own mother.

    ·Her mother also said her stepfather’s mother (now deceased) was born in Kenya.  The applicant does not know anything about her stepfather’s father, but believes he died before she was born.

19. Additionally the applicant states that her lawyer was able to review the Department’s file (through FOI) in relation to her [temporary] visa application which shows that a Kenyan NIC was provided.  However she had never seen it before, did not know it was provided with that visa application, and does not know where it is now.

20. In her submission[3] to the Department the representative argues that much of the applicant’s knowledge in these respects – including about the heritage of her biological father – is based on limited second-hand information from her mother’s friend, after her mother had died.     

    [3] Dated 24 May 2017.

21. The delegate considered these submissions, and accepted the applicant was of Nubian ethnicity.  However, they concluded it ‘was more likely than not’ the applicant was born in Kenya and is a citizen of Kenya, evidenced by her Kenyan passport.

22. In her written submission to the Tribunal the representative reiterates that the applicant (and her sister) engaged an agent in Kenya who helped secure employment overseas.  His services included applying for a Kenyan NIC and passport for her, which is consistent with actions of traffickers, who create documentation for their victims in order to ensure smooth travel and employment.  She refers to country information, which shows that bribery and corruption to create false documentation is known to occur. 

23. The representative goes on to argue that although the applicant was able to obtain a Kenyan NIC and birth certificate and passport through an agent, her birth certificate and NIC were never given to her and her Kenyan passport expired [in] 2021.  It is a rigorous process to obtain a new passport and the applicant would not be able to meet the application requirements as she does not have the required documents, it is submitted further.   

24. In a statutory declaration dated 30 November 2022 provided to the Tribunal, the applicant explained (as indicated in earlier statements to the Department), that she had tried to apply for her own identity documents in Kenya when she turned 18, but could not get them, and it was only through the help of an agent that she was able to get her documents.  Her Kenyan passport has now expired and she does not know how she could get another because she does not have the documents needed to apply for a new passport.  Specifically, she still does not have the evidence required to show her family’s background in Kenya, nor does she have the NIC or birth certificate the agent made for her because it was always kept by her employer and/or the agent, and she was not given copies.

25. At the Tribunal hearing the applicant said she thought she was born in Kenya until her aunts’ told her sometime after her mother died (when she was around [age]) that: her father was actually her stepfather; that her biological father was born in [Country 3], where she was also born; that she had moved to Kenya when young with her mother and stepfather; and that she thinks her mother was born in Kenya but she is unsure if she had secured Kenyan citizenship.  The applicant said she never had Kenyan identity documents growing up and was unsuccessful when she tried to obtain a Kenyan NIC after turning 18 (as was her sister, [Ms A]).  At that time she attended the relevant government office and was told she needed to produce an NIC or birth certificate from her parents, which she did not have.  The officials then told her to produce her grandfather’s NIC or birth certificate but she was unable to do so as she never knew her grandparents.

26. The applicant noted Nubians are often not recognised as Kenyans and some are denied NICs, despite living all their lives in Kenya, sometimes over many generations.  She said many Nubians live in Kibera and she had heard that whilst some have managed to obtain NICs, most have not.  Also, she understands the process for persons belonging to the Nubian ethnicity to gain Kenyan citizenship is more difficult, requiring persons to go to the High Court and provide their grandfather’s documents, among other things.  

27. The applicant said growing up in Kenya she attended school, on and off, until she finished high school.  She thinks her stepfather was able to enrol her and her sister; she is not sure how exactly, but thinks he may have had a Kenyan NIC.

28. The applicant said in around 2011 her agent obtained a Kenyan passport for her in order to facilitate work abroad, which she used to travel to [Country 1], and then Australia, working in domestic duties for [a Country 1] family.  She thinks that included a Kenyan NIC for her – as the delegate indicated a copy was provided in relation to her [temporary] visa application – however she did not see it beforehand.

29. The Tribunal has considered the applicant’s evidence about her nationality.  It accepts she is of Nubian ethnicity, as did the delegate.  Country information confirms that ethnic/national minorities, such as the Nubians and Somalis, are not recognised as such by the Kenyan government and have problems accessing citizenship documents.[4]  

    [4] Minority Rights Group, World Directory of Minorities and Indigenous Peoples, Kenya, updated January 2018, >

    The Tribunal also accepts the applicant’s evidence about her background and circumstances growing up in a slum area outside of Nairobi without identity documents, as well as her unsuccessful attempts to obtain identity documents through the official channels in Kenya when 18 (as well as her sister’s unsuccessful attempts).  Her at times inconsistent and changing evidence about where she was born, and her and her parents’ nationality status (and places of birth) can be largely explained by the fact she was unaware her stepfather was not her biological father until after her mother died (when she was [age]), and her limited knowledge (and evidence) about her parents’ (and grandparents’) birthplace and nationality status.  It also appears that she was not entirely sure of her (and her parents’) circumstances, including when she applied for protection.  The Tribunal is of the view that this is not surprising given her circumstances, as someone who grew up in a poor, largely undocumented family in one of the largest slum areas in Africa.  The Tribunal considers the applicant’s explanations about her at times inconsistent evidence given these circumstances are entirely plausible.   

30. The Tribunal also notes the applicant actually claimed she was born in [Country 3] in her protection visa application, which is consistent with what she has subsequently claimed, not Kenya, as erroneously stated by the delegate in their decision record.  In her protection visa application the applicant states: that she was born in [Country 3], but her citizenship at birth was Kenyan (and is currently); that she was of Nubian ethnicity; that the man who arranged for her to work in [Country 1] obtained the passport for her; and she fears persecution on return to Kenya. All of this is consistent with what she now claims (and has throughout her interactions with the Department).  The statement that she was born in Kenya in her [temporary] visa application is not surprising given that is what her identity documents, including her Kenyan passport, stated, which for the following reasons the Tribunal accepts was arranged through an agent, as were her overseas employment and related documents such as visas. 

31. The Tribunal accepts the applicant’s account of how an agent obtained her Kenyan passport (and NIC and birth certificate) in order to facilitate domestic work abroad.  This accords with country information about the common practice of employment agencies (both legal and fraudulent) who recruit Kenyans to work in Northern Africa (among other places).  According to the most recent US State Department trafficking in persons report on Kenya for 2022, ‘traffickers continued to easily obtain fraudulent identity documents from complicit officials’[5].

    [5] U.S Department of State, 2022 Trafficking in Persons Report: Kenya, type="1">

32. For these reasons, the Tribunal accepts the applicant was born in [Country 3] and moved to Kenya when young with her mother, sister and stepfather (her biological father having died in the war in [Country 3]), where she grew up.  It accepts she never obtained Kenyan identity documents through official channels (despite attempting to do so when she turned 18), but did so through the help of an agent in around 2011 for overseas employment purposes.  These included a Kenyan passport, which she used to work abroad (in [Country 2] and Australia), and possibly a Kenyan NIC (and birth certificate) although the Tribunal accepts the applicant’s evidence that she has never possessed a copy of the NIC, which was likely kept by her [Country 2] employer.  The Tribunal accepts her Kenyan passport may have been genuine, but fraudulently obtained, noting country information as referred to above about the ease in which traffickers can fraudulently obtain identity documents from complicit officials in Kenya.   

33. Therefore the Tribunal does not accept the applicant is a national of Kenya, or any other country, including [Country 3], given she has no ties to or knowledge of her biological father’s status or circumstances. 

34. For the purposes of assessing the applicant’s protection claims, the Tribunal is satisfied Kenya is her country of former habitual residence, and therefore her ‘receiving country’ as per s 5(1)(b) of the Act; this is where she has resided since young, until around 2011, and where she fears she will suffer persecution if she has to return in the reasonably foreseeable future. 

    Protection-related claims and evidence

35. In summary, the applicant claims to fear persecution on return to Kenya from several actors and for several reasons, including as follows:

    ·Based on her Nubian ethnicity, lack of identity documents and lack of nationality status in Kenya; she believes she will face discrimination and possible harm as a result.

    ·At the hands of her former employer (also purportedly a politician in Kenya) whom she worked for as a housemaid in Kenya in around 2010/2011, who repeatedly sexually assaulted her.

    ·At the hands of her aunts (that is her late stepfather’s sisters) who have been abusive in the past, and who would force her to marry and undergo female genital mutilation (FGM).

    ·At the hands of her former agent who helped her obtain work abroad, who will continue to try and extract money from her.

    ·Based on her past experiences and her extreme vulnerability; as a result, she believes she will be at risk of human trafficking, modern slavery and gender-based violence (GBV), and would be unable to subsist.

36. The applicant’s initial written claims provided to the Department were included in her protection visa application and several written statements dated 21 April 2017, 31 May 2017 and 13 April 2018. 

37. She also provided to the Department a report from [a named] psychologist, dated 15 May 2018, who states that she met with the applicant on four occasion from 21 April 2017 to 21 July 2017. The report states that the applicant had presented with symptoms of ‘Mixed Anxiety, Depression and Post Traumatic Stress Disorder (PTSD)’, and had reported experiencing repeated sexual abuse and rape by an employer in Kenya.  She also reported emotional and mental abuse from her last employer, [a Country 1] family, and stated that she left them in October 2016 under the pretext of returning to Kenya for a visit. 

38. The representative provided two written submissions to the Department dated 24 May 2017 (addressing questions surrounding the applicant’s nationality, where possible) and 16 May 2018[6]; the latter was provided after the applicant’s interview with the delegate.

    [6] The Tribunal notes these submissions along with some other material provided at the Departmental stage are not on the Departmental file, and it appears they may have been lost.  The representative provided to the Tribunal copies of the missing written statements from the applicant to the Department. 

39. The delegate was not satisfied Australia had protection obligations with respect to the applicant and refused her protection visa application on 9 August 2018.  The delegate accepted a large part of the applicant’s claims pertaining to her background, experiences in Kenya, and her employment with [a Country 1] family.  However, the delegate did not accept she was mistreated by her [Country 1] employers, primarily because they had allowed her to travel to Kenya to visit her sister before (from Australia), and agreed for her to go a second time.  Whilst accepting the applicant had been sexually assaulted by her employer in Kenya, the delegate concluded that state protection would be available and she could relocate. 

40. Additionally, whilst the delegate accepted that the applicant’s aunts were abusive, and would force her to undergo FGM if she returned to Kenya, they found the applicant could avoid such harm by living away from them, noting she and her sister have lived away from their aunts for a long time.  It was also noted the applicant was [age] at the time of the delegate’s decision, and country information indicates FGM is practised predominantly on girls from birth to 18, and that state protection was available. 

41. With respect to her claims of fearing persecution in Kenya as a single woman without male protection, whilst the delegate accepted that would be the case and could result in discrimination and hardship for the applicant, they were not satisfied it would amount to persecution.

42. On review, the representative provided a comprehensive written submission[7] to the Tribunal in which she reiterates and expands upon the applicant’s claims and addresses some of the concerns raised by the delegate in their refusal decision record.  She also provides an update about the applicant’s circumstances and country information relevant to her claims, including research about victims of trafficking being at higher risk of being re-trafficked than others.  The representative contends that the applicant faces a well-founded fear of persecution on return to Kenya at the hands of traffickers, men and her aunts due to her ethnicity and gender.  Further, it is submitted that as a victim of human trafficking and modern slavery who has experienced significant trauma, she is particularly vulnerable, including of being re-trafficked.

    [7] Dated 30 November 2022.

43. Also provided was:

    ·A statutory declaration from the applicant dated 30 November 2022 in which she reiterates and expands upon her claims in some respects, explains why she delayed applying for protection, and provides an update about her current circumstances; and

    ·A letter from the applicant’s counsellor, [name] (social worker), [Agency 1], dated 6 December 2022, who indicates (among other things) that the applicant was self-referred on 15 August 2022 for trauma counselling. 

44. In her oral evidence to the Tribunal the applicant described her background, reasons she stayed in Australia, and extant fears if she has to return to Kenya, summarised as follows. 

45. She explained that she was born in [Country 3], and moved to Kenya when young with her older sister ([Ms A]), her mother and stepfather.  She assumed he was her father until informed by his sisters after her mother died hat he was not her biological father.  She grew up in Kibera, a large slum area outside Nairobi.  Her stepfather died when she was [age] and her mother died when she was around [age].  She went to school some of the time, but less so after her mother died. 

46. The applicant said sometime after her mother died, her aunts – that is her stepfather’s sisters – moved with their families into the modest house owned by their stepfather, where she and [Ms A] lived.  They told her and her sister their father was not their biological father and that they were possessing the house.  Sometime after the applicant finished high school, she and her sister moved to another area of Kibera, staying with other women.  They sold [product 1] on the streets to survive. 

47. The applicant then worked for a Kenyan politician at his home, undertaking domestic work for about a year, organised through a friend.  He raped her several times so the applicant left.  She knows he was a politician because of the number plates on the car he drove, but does not know his name or any other details.

48. Sometime in 2011 the applicant moved to [Country 1] to work for a family there, organised through an agent who lived in Kibera.  The agent arranged everything, including her Kenyan passport, and visa.  He did not charge her any money to do so, indicating that he would be paid a commission by her employer. 

49. After about a year working in [Country 1] where she was treated poorly, made to work all the time and paid less than initially promised, the applicant wanted to leave and return to live with [Ms A] in Kenya.  However, when she requested to do so the family she worked for told her she would have to repay them the costs of her airfare, passport, visa and other related costs, which she was unable to do at that time.  She stayed working for that family, including in Australia from 2012 to 2016. 

50. In Australia the poor working conditions and lack of autonomy continued: she worked every day; she was paid less than expected; and her employer held her passport.  She was unable to go outside by herself, or talk to anyone.  The family returned her passport just before they left Australia, but only after she paid them most of her savings: they told her that was her debt to them.  After they left Australia the applicant said the [Country 1] family tried to phone her but she did not answer, then changed her number. 

51. The applicant said in 2015 she visited Kenya from Australia, along with her ([Country 1]) employers who went there for a holiday, for around six weeks.  She had to stay with the family (and work for them) but was able to see [Ms A] on occasion. 

52. The applicant told the Tribunal that [Ms A] had gone to [Country 1] after she came to Australia initially, and was also working as a domestic worker for a family there.  At some stage [Ms A] returned to Kenya, and went back to selling [product 1] and living in Kibera.  The applicant was in regular contact with her from Australia, up until December 2021.  Since then [Ms A] has not answered her phone and the applicant does not know what has happened to her.  The applicant called her neighbours who said they had not seen her and were unsure where she was.

53. The applicant said if she has to return to Kenya, she is afraid her aunts will force her to marry, even though she has had no contact with them since she moved out of her stepfather’s house, as they will benefit from the bride price.  Before she left Kenya, she had been told by neighbours that is what her aunts were planning. 

54. The applicant said she also fears that the politician she worked for in the past in Kenya will find her and kill her, to silence her in relation to his sexual assaults against her.  He said that he has sent men to [Ms A]’s house to enquire about her.  

55. As well, she is concerned that if she runs into the agent who organised her work in [Country 1], he will demand money from her, as he has in the past when she was visiting [Ms A] in Kibera (where he also resides) during her visit there in 2015.  At that time, he sent men to [Ms A]’s house and asked for money; the applicant said she gave them USD500.  The applicant explained she did not pay the agent initially, as the arrangement was for him to organise workers and then be paid by the employers (as noted).  However, as he knows she has been working overseas, she is now targeted by the agent in order to get money.

56. The applicant said she also fears men in general in Kenya, returning as a female with no male protection, and more broadly is worried about how she will work and survive in Kenya.  She has no identity documents and as a poor single woman of Nubian ethnicity with no support, it would be very difficult, if not impossible to obtain them. Further, she needs identity documents to obtain government support.   

57. In her oral submission to the Tribunal, the representative emphasised the risks the applicant faces on return to Kenya based on her cumulative profile and particular vulnerabilities.  In particular, her lack of identity documents, which led to her being exploited and mistreated.  She would be returning to Kenya as a single female with no male protection, who has been exploited and mistreated in the past by a politician, and agent, among others.

58. The representative also noted the applicant’s presentation, evident at hearing, is of someone who is afraid of many things, which makes her vulnerable to future exploitation.  It is likely she would be reintroduced to the same circumstances she was in in the past in Kiberia, Kenya, in an environment where she is unable to earn an income to support herself.  She was never able to obtain identity documents in Kenya, and whilst she has a Kenyan passport, it was obtained through an agent, has expired, and she doubts she will be able to obtain another.    

    Findings about the applicant’s past experiences, profile and future fears

59. From the outset the Tribunal notes that it found the applicant a credible witness.  It appeared the hearing process was difficult for her, having to recount traumatic memories, and there were several adjournments when the applicant was too upset to continue; ultimately the hearing was truncated.  Nonetheless, the Tribunal was able to canvas the main issues, and the applicant was able to describe her current circumstances and extant fears if she has to return to Kenya.  Her oral evidence, which was spontaneous and reasonably coherent, was also generally consistent with her earlier written claims before the Tribunal and Department, much of which was largely accepted by the delegate, as noted. 

60. Accordingly, the Tribunal accepts the applicant’s claims about her background and past experiences in Kenya, [Country 1] and Australia, in the following respects (in summary).  It accepts she was born in [Country 3] but grew up in Kibera, Kenya from a young age with her older sister, [Ms A] and parents.  It accepts her stepfather died when she was [age] and her mother when she was [age].  It accepts her stepfather’s sisters moved into their house shortly after, forcing the applicant and her sister to move elsewhere in Kibera, where they survived selling [product 1]. 

61. The Tribunal accepts the applicant then obtained domestic work: first for a politician for around a year in Kenya (2010 to 2011), and then for [a Country 1] family from around 2011 to 2016 (one year in [Country 1], and from 2012 to 2016 in Australia), the latter organised via an agent who lived in Kibera.  It accepts she lived with her Kenyan employer and he raped her on several occasions during the last three months of her 12 months’ employment with his family, and threatened to kill her if she told his wife (as detailed at hearing and in one of the applicant’s statutory declarations provided to the Department). 

62. The Tribunal notes the delegate expressed concerns about the applicant’s claims her then employer was a politician because the applicant did not know his name.  The Tribunal does not necessarily share this concern. Taking into account the applicant’s background, limited education and the class difference between herself and her employer, it is not surprising she did not know his exact name or details.  She has indicated she assumed he was a politician based on the number plates on his car, and that she only referred to him as ‘Mweshimiwe’ which is Swahili for politician, but never knew his name (or his wife’s name).  In her 21 April 2017 statutory declaration the applicant explains that in Kenya it is common to call people by their familial titles, which is why she called the politician’s wife, ‘[Child 1’s] mother’ ([Child 1] being the name of the child she cared for) in Swahili. The Tribunal accepts her explanation in this regard. 

63. The Tribunal also accepts the applicant’s claims that the politician has continued to enquire after the applicant, specifically by: sending men to her house when her sister was at home around a week after she failed to return to work; sending men to her sister’s house, who ransacked it, around a week after she returned to Australia from visiting Kenya in 2015; and men visiting her sister on several occasions thereafter, stating they want to give the applicant a ‘package’, and talking harshly and in a threatening manner. 

64. With respect to the applicant’s claimed experiences working for the [Country 1] family, the Tribunal accepts her account of how they treated her, that is, very poorly and in a controlling manner.  In her statutory declaration provided to the Tribunal, the applicant described her work conditions and how they mistreated her in Australia, which was part of the reason why she delayed in applying for protection, a concern raised by the delegate.  This included: having a phone but no credit; being in a restrictive environment; not having a good relationship with her employers (in contrast to what the delegate assumed); working long hours; being physically and verbally abused; and having her documents withheld.  In addition, when she asked to leave, they told her she had to repay the costs they had incurred for everything – food, clothes, shelter, and water – which extinguished her savings.

65. The applicant described her work conditions whilst in [Country 1] in her 21 April 2017 statutory declaration.  This included: having to work constantly (including at the family’s relatives’ houses at times); being unable to go outside or talk to anyone; having her passport confiscated; being paid less than what had been agreed; and being hit on one occasion by the father.  The applicant confirmed that was the case at hearing.  Country information indicates that migrant domestic workers are subject to mistreatment, which may include abuse, in [Country 1] (among other places)[8], and the Tribunal accepts the applicant’s evidence in this regard.

    [8] [Country 1][Source deleted].

66. Accordingly, the Tribunal accepts that during the course of her six year employment with the [Country 1] family the applicant was: made to work most of the time; rarely had time off; was paid less than anticipated; had her passport confiscated; and had her movements and interactions with people outside the family severely restricted. It accepts her employers were often verbally abusive, and physically abusive on occasion.  It accepts that when she tried to leave after a year working in [Country 1], the family demanded she repay them costs associated with her employment, such as visa and airfare costs, which she was unable to do at that time.  It accepts that in 2016 in Australia they returned her passport to her only after she had paid them money from her savings.  It accepts they tried to contact her after they left Australia (and she remained here), but that she did not answer and has since changed her number.  It accepts the delay to the applicant applying for protection can be explained by these circumstances. 

67. The fact the [Country 1] family allowed the applicant to return to Kenya for a visit in 2015, and again in 2016 (which did not eventuate), led the delegate to find she was not mistreated by this family.  However the applicant’s evidence to the Tribunal – which it accepts – was that she accompanied the family on their visit to Kenya in 2015 where, apart from a week off to visit [Ms A], she worked for them.  Allowing her a few days to see her sister during this time, and agreeing for the applicant to visit her sister again in 2016 from Australia does not, in the Tribunal’s view, indicate that they treated her well, or undermine the applicant’s claims about the way they controlled most aspects of her life over an extended period. 

68. As noted, the Tribunal accepts this work was arranged through an agent, who resided in Kibera, and that whilst he did not charge the applicant for his services up front, as he was to receive a commission from her employer, he has since sent men to her sister’s house in Kibera on several occasions to demand money, and on one occasion the applicant (visiting at the time) gave him USD500.  The Tribunal also accepts that men associated with the agent have continued to visit her sister thereafter and harassed her for money, on several occasions, as set out in the applicant’s April 2017 and May 2017 statutory declarations provided to the Department.  It is unclear to the Tribunal if there have been more recent visits, as the applicant did not indicate as such at hearing, and her sister has been uncontactable since December 2021.   

1. The Tribunal also accepts the applicant’s claims that she was meant to return to [Country 1] with the [Country 1] family (from Australia), and continue working for them, and fears this broken contract will be another reason the agent will harm her. 

2. With respect to the applicant’s claims about her aunts, the Tribunal accepts that in the past they were abusive and mistreated her and her sister, including forcing them out of the family home.  It accepts they tried to arrange marriages for them, and harassed them – by doing things such as damaging their [products 1] – when they refused.  It accepts the applicant has heard via others (e.g. neighbours) that they planned to marry off her and her sister in order to accrue a bride price, and that whilst she has been in Australia, her sister has indicated that they continue to harass and verbally abuse her.  It is somewhat unclear to the Tribunal when the aunts last had contact with the applicant’s sister, given the applicant’s evidence at hearing that after she came to Australia, [Ms A] worked in [Country 1] for some time, and has been uncontactable since her return to Kenya, from around December 2021. 

3. Further, the Tribunal accepts the applicant is single and has no family members and no support on return to Kenya.  It accepts her only surviving immediate family member – her sister [Ms A] – has been out of contact since December 2021, for unknown reasons.   Even if [Ms A] reappears – which is hoped – her support would be limited as she is in a similar situation to the one the applicant was in, and would potentially find herself back in, on return to Kibera, that is: female, poor, with no other support, limited work options, no genuine identity documents, and vulnerable to exploitation by traffickers and others.

   Well-founded fear of persecution in the future

4. Given these findings about the applicant’s past experiences and profile, the Tribunal has considered whether she faces a well-founded fear of persecution for any refugee reason or reasons on return to Kenya.

5. In her written and oral evidence to the Tribunal, the applicant said she fears serious harm on return to Kenya due to her (Nubian) ethnicity and gender, from traffickers, men (in general), and her aunts (who she argues will still pressure her to marry, in order to obtain the bride price).  She fears the agent who helped secure her work will continue to pressure her for money and that he will force her to do other work for him (including possibly sex work) if she refuses, as will the [Country 1] family for whom she worked in [Country 1] and Australia.  She also fears the politician who sexually assaulted her in the past, and has continued to enquire about her. 

6. In her written submission to the Tribunal, the representative notes that trafficking and forced labour often involve a denial of freedom of movement, coercion and debt bondage.  Although these are consistent with the applicant’s experiences, the delegate failed to consider them wholistically, and in a broader context, instead just finding that she was not mistreated by her [Country 1] employer because they let her travel to Kenya on occasion. 

7. The representative argues that the delegate failed to consider the risk of the applicant being re-trafficked due to her vulnerability more broadly; such re-trafficking could be done not just by the same people.  Further, it is submitted that the applicant’s economic and social vulnerabilities also heighten her profile, and that her traumatic experiences have influenced her behaviour and presentation, making her an easy target for traffickers.

8. The representative notes the applicant has been a victim in the past, which makes her susceptible to future harm, specifically by her first employer who raped her (and held power as a politician) and also by her second employer who trafficked her to [Country 1] [in] July 2011 and forced her to work under conditions of modern slavery.  She was trafficked by the same employer to Australia in 2012 under conditions of modern slavery.  She escaped that employment in 2016 and fears retribution for this from the agent who set up her employment in 2011, it is submitted.  According to the representative, these experiences demonstrate that the applicant has been a victim of human trafficking and modern slavery.  She adds that the applicant has also experienced discrimination in Kenya based on her Nubian ethnicity. 

9. As such, it is argued the applicant faces a well-founded fear of persecution on return to Kenya based on her cumulative profile, and on the following grounds:

   a.Her membership of a particular social group of ‘women at risk of human trafficking and modern slavery’, noting that Kenya is a high risk country for human trafficking[9], and her previous employment experiences are consistent with reports of trafficking in Kenya.  The applicant is afraid she will be re-trafficked in order to pay off a previous debt.

   b.Her membership of a particular social group of ‘women at risk of gender based violence’, including at the hands of her aunts and men, as well as violence enforced by Nubian culture including FGM and forced marriage.  She would be returning as a single female and therefore perceived as an easier target due to her perceived isolation and lack of protection.

   c.Her Nubian ethnicity, which she fears will lead to her being persecuted and being unable to subsist.

   [9] Global Initiative Against Transnational Organised Crime ‘False hopes Human trafficking in Kenya’, >

   The representative argues that the experiences the applicant has described are consistent with those of trafficking victims[10], noting the definition of modern slavery – an umbrella term used to describe various forms of abuse – includes domestic servitude.  For some domestic workers, the circumstances and conditions of their work can amount to slavery, according to Anti-Slavery International, who states:

   Domestic work and domestic servitude are not always slavery, and when properly regulated can be an important source of income for many people.  However, when someone is working in another person’s home, they may be particularly vulnerable to abuses, exploitation, and slavery, as they might be hidden from sight and lack legal protection.[11] 

   [10] Referring to country information including from Anti-Slavery International: Anti-Slavery International: >

   Additionally the representative refers to country information that indicates, among other things, that human traffickers prey on people who are poor, isolated and weak.  She also notes that there are numerous factors that contribute to a social and economic environment in which trafficking and exploitation can flourish, including economic crisis, social exclusion, gender discrimination and a weak legal or social protection system[12]. 

   [12] UN Office on Drugs and Crime, An Introduction to Human Trafficking: Vulnerability, Impact and Action (2008) 3.

10. It is submitted that such country information is consistent with the applicant’s experience, in that she was: struggling to earn a viable income with her sister to afford housing; isolated, partly due to her ethnicity; unable to obtain identity documents or official employment; and an orphan from [age].  In addition, her work conditions were tantamount to modern slavery, involving low wages, being unable to leave despite requesting to do so, having unknowingly created debt bondage, and having her passport withheld (among other things).

11. The representative argues that this means the applicant faces a real chance of being trafficked in the future, noting research (including from the International Organisation for Migration (IOM)) about factors that contributed to people being re-trafficked includes an individual’s: history of vulnerability and current level of vulnerability; history of abuse; fear of family members and fear of direct retribution from traffickers; lack of economic and social stability; and lack of support.  Those members of ethnic minority groups, including where there are significant gender inequalities, are also particularly vulnerable. 

12. It is submitted that the applicant fits such a risk profile as a Nubian woman who was thrown out of her home, lacked family and community support and identity documents, and was desperate to earn money to survive, particularly in light of country information that indicates that Kenya is a high risk country for human trafficking, which is often driven by a lack of means to earn an income.

13. The representative also refers to country information from a range of sources (including Human Rights Watch (HRW)) which indicates that there are low rates of arrest and prosecution in Kenya in relation to crimes of sexual violence; that the risk of gender-based violence (GBV) to women remains high, and increased during COVID-19; and that woman and girls living in precarious economic conditions are particularly vulnerable to sexual harassment and abuse.  It also indicates that women with insufficient income to afford housing are likely to reside in informal settlements that are generally unsafe, irrespective of their marital status.  In the applicant’s case, due to discrimination against women and the lack of an NIC, she would struggle to find work and have the means to earn a liveable income.  She faces a risk of further GBV, which also threatens her capacity to subsist, the representative contends.

14. The Tribunal has considered these submissions and the applicant’s oral and written evidence before it, as well as independent country information about the situation in Kenya for someone like the applicant, that is, as a poor woman, with no family or other support, who does not have identity documents, is a victim of sexual assault and domestic servitude, and who is otherwise vulnerable including due to ongoing mental health issues and trauma.

15. Country information indicates that Kenya has laws and policies in place to help protect against GBV, and there is reasonably high awareness and recognition of the different forms of GBV.  Its legal framework is considered reasonably progressive.[13]  Nonetheless, GBV in Kenya remains widespread, endemic and largely accepted.  According to the most recent national data (published in 2014), 47% of women between the ages of 15 and 49 in Kenya reported that they have experienced either physical or sexual violence[14].

    [13] For example, the Protection Against Domestic Violence Act 2015; the Prohibition of Female Genital Mutilation Act (FGM Act 2011); and the Counter-Trafficking in Persons Act (2012).

    [14] UK Home Office, Country Background Note: Kenya, May 2020 at 12.2.1.

16. Kenya has made significant progress with regards to the development of standards and guidance around addressing GBV and providing support to its survivors.  However, the implementation of both the legal and policy framework, including identified measures and procedures, remains inconsistent and weak due to a number of wide-reaching factors. Key findings from a GBV service gap analysis undertaken by members of the World Bank Group[15] in four counties of Kenya (Bomet, Kisumu, Kitui and Kwale) in October and November 2018 included as follows:

    [15] Ministry of Foreign Affairs of Denmark, European Union, Embassy of Finland, Sweden, UKAID, USAID.

    ·There are high levels of awareness and recognition of the different forms of GBV among surveyed groups. At the same time, physical, sexual, verbal abuse and economic acts of violence are widespread and largely accepted.

    ·Typically, violence that occurs frequently and amongst married couples – including marital rape – is considered ‘normal’, and results in little or no reporting or help-seeking behaviour. It is usually managed at family or community level.

    ·Generally, only severe violence or beatings that lead to physical injuries, and violence perpetrated by strangers are not accepted and may result in reporting and formal help-seeking.

    ·The number of comprehensive formal support and response services for survivors is limited, and awareness of such available services is moderately low - particularly in rural areas.

    ·Socio-cultural barriers which affect the willingness and ability of victims and survivors of GBV to report violence and access services are related to a lack of awareness of their rights, lack of knowledge of existing services and/or their location, the high level of acceptance of more ‘moderate’ types of violence, stigma around reporting violence, fear of retaliatory violence by perpetrators, fear of service providers, and local power dynamics and relationships.

    ·Structural barriers to help-seeking include the availability, accessibility and quality of services, defined by the availability of infrastructure, resources, human capacity, geographical distances, as well as social and gender norms, which affect how service staff treat service users and choose to handle presented cases.

    ·Recent progress has been made, notably with the prioritising of GBV cases by health providers, increased (but not yet systematic) GBV training across different sectors, and GBV-specific processes by some service providers.

    ·However, the institutionalisation of protocols seems to be lagging behind, with the majority of service providers not making reference to any formal protocols or guidelines for their sector.

    ·There is also considerable room for improvement related to making services more accessible and less discriminatory, for example, by reducing financial barriers to services, improving the quality, effectiveness and accountability of services, raising awareness of existing guidelines and protocols, and providing better resources and infrastructure to service providers.[16]

    [16] World Bank Group, ‘Kenya Gender-Based Violence Service Gap Analysis at the County Level’, Exec Summary.

17. Additionally, many victims do not report what is happening to them for several reasons, including because survivors face increased harm due to the failure of authorities to ensure that they have access to fast protection services, timely medical treatment and financial assistance.[17]  According to the findings of the World Bank Group study (above) stigma also appears to play a large part in influencing reporting behaviour.[18]

    [17] The Conversation, ‘Violence against women in Kenya: data provides a glimpse into a grim situation, October 19, 2021.   

    [18] World Bank Group, ibid.

18. Further, reports indicate that GBV in Kenya is on the rise.  In a section on sexual and GBV in Kenya in a 2020 background note, the UK Home Office refers to an article published on the COWAW website by Fatuma Ahmed Ali, who states that:

    The magnitude of violence against women and girls, particularly physical, psychological, sexual, and gender-based violence, in Kenya is disturbing and on the rise…Despite the existence of legislation, administrative directives, judicial sanctions, and awareness-raising efforts by a variety organizations and the government, gender-based violence, including domestic and sexual violence, human trafficking, and harmful practices, such as forced child marriage and Female Genital Mutilation (FGM), is still endemic in Kenya.[19]

    [19] UK Home Office, Country Background Note: Kenya, May 2020 at 12.2.1.

19. Reference is made in the UK Home Office report to the United Nations Human Rights Council Report of the Office of the United Nations High Commissioner for Human Rights (UN OCHCR), Summary of Stakeholders Submissions on Kenya dated 5 November 2019.  It included submissions by a number of organisations that there are reports of ‘an increase in the number of women killed on account of their gender, which was attributed to inter alia the “normalization” of violence against women propagated in social media and other public spaces’.[20]

    [20] UK Home Office, Country Background Note: Kenya, May 2020 at 12.2.5.

20. Additionally, non-government organisations expressed concerns about a rise in incidents of sexual assault, rape, domestic violence and forced evictions during the COVID-19 pandemic.[21]  For example, a report by HRW about GBV during COVID-19 states that Kenya, like many other countries around the world, experienced an increase in reported cases of physical and sexual violence, including domestic violence, against women and girls during restrictions on mobility to curb the spread of the virus.  The report states that:

    Survivors and others interviewed described sexual abuse, beatings, being thrown out of the home, forced child marriage, and female genital mutilation.  Women and girls living in poverty or precarious economic conditions – conditions often created or worsened by the pandemic – were particularly vulnerable to sexual harassment and abuse.  Many abusers were close family members, including husbands.[22]

    [21] U.S Department of State, 2021 Country Reports on Human Rights Practices, April 12, 2022.

    [22] HRW, ‘“I had Nowhere to Go”, Violence Against Women and Girls During the Covid-19 Pandemic in Kenya’, September 21, 2021. 

21. HRW notes that even before the pandemic ‘high levels of violence against women and girls, impunity, and a lack of accountability and services for survivors were ongoing problems in Kenya’.  It also notes that the reform efforts by the government over the last decade and a half – enacting several laws to respond to GBV, establishing guidelines for police, specialised medical staff, and justice officials to respond to such violence – were tested by the COVID-19 pandemic and the government response came up short.[23]

    [23] HRW, Ibid.

22. Kenya’s Cabinet Secretary in the Ministry of Health, in a speech given during world population day in 2022, stated that between January and June 2021, the number of cases of sexual violence reported to the Ministry of Health rose by 150 per cent over the number reported in the same period the previous year.  He states that female children bore the brunt of the violence, evidenced by the alarmingly high number of cases in health facilities[24].

    [24] U.S Department of State, 2021 Country Reports on Human Rights Practices, Kenya, April 12, 2022.

23. HRW had previously documented widespread sexual violence against women and girls, as well as incidents of sexual violence against men and boys following Kenya’s 2007 – 2008 election, and reported similar patterns surrounding the 2017 elections.  According to HRW, this ‘demonstrates the Kenyan state’s/authorities failure to prevent election-related sexual violence, properly investigate cases, hold perpetrators accountable, and ensure survivors of sexual violence have access to comprehensive, quality and timely post rape care.’ Half of the women interviewed said they were raped by policemen or men in uniform[25]. 

    [25] HRW, “They Were Men in Uniform”: Sexual Violence Against Women and Girls in Kenya’s 2017 Elections’, December 14, 2017. 

24. The list of significant human rights issues identified in the most recent US State Department report on human rights practices in Kenya includes ‘lack of investigation of and accountability for gender-based violence’.  With respect to rape and domestic violence the report states that ‘The law criminalizes rape of all persons, defilement (statutory rape), domestic violence, and sex tourism, but enforcement remains limited’.  Also that the law does not explicitly criminalise spousal rape.  It is stated further that:

    Authorities cited domestic violence as the leading cause of preventable, non-accidental death for women.  Except in cases of death, police officers generally refrained from investigating domestic violence, which they considered a private family matter.[26]

    [26] U.S Department of State, 2021 Country Reports on Human Rights Practices, Kenya, April 12, 2022.

1. There are reports of escalating GBV cases in informal settlements on the fringes of Nairobi, where the poor and vulnerable reside.[27]  

   [27] L. Bosibori, Talk Africa, ‘Kenya’s Informal Settlements on the Spotlight Amid Escalating Gender-Based Violence Cases’, July 29, 2022.

2. As reported over the past five years, human traffickers exploit domestic and foreign victims in Kenya, and traffickers exploit victims from Kenya abroad.  According to the most recent US Department of State trafficking in persons report for Kenya:

   Employment agencies, both legal and fraudulent, recruit Kenyans to work in the Middle East (particularly Saudi Arabia, Lebanon, Kuwait, Qatar, UAW, Bahrain, Iran, Iraq, and Oman), Central and Southeast Asia, Europe, Northern Africa, and North America, where traffickers exploit them in massage parlors, brothels, domestic servitude or manual labour; Kenyans who voluntarily migrate in search of employment opportunities are also vulnerable to exploitative conditions.  Observers report foreign employers often hold migrant workers’ salaries until the completion of their contract period to coerce them to stay longer, and in some cases, employers sell migrant workers to another employer without a legal change in the employment contract, increasing their vulnerability to trafficking.[28]  

   [28] U.S Department of State, 2022 Trafficking in Persons Report, Kenya (Tier 2), July 19, 2022.

3. This report also notes that some elements within the police and other officials are complicit, stating as follows:  

   Police officers continued to accept bribes to warn traffickers of impending operations and investigations, particularly along the coast, and officials reported perpetrators sometimes escaped conviction by bribing magistrates and court officials or intimidating or paying witnesses to make false statements.  Observers alleged that criminal syndicates colluded with various law enforcement and immigration departments to transport trafficking victims within Kenya.  Traffickers continued to easily obtain fraudulent identity documents from complicit officials, particularly at border checkpoints.[29] 

   [29] Ibid.

4. In the applicant’s case, the Tribunal accepts her upbringing can be characterised as poor, marginalised and precarious, with no official status, and that she was discriminated against as a Nubian, among other things.  It accepts that after being kicked out of home at [age], she and her sister had to do what was necessary to survive, including working in domestic duties in Kenya and abroad, where she was exploited and abused by her employer.  Whilst not all domestic situations amount to domestic servitude – a form of slavery – the Tribunal accepts the working and living conditions the applicant found herself in whilst under the employ of the [Country 1] family could be characterised as such.  This is particularly the case given she was in effect under their control, with limited agency about decisions that affect her own life, such as her movements, associations and whether she wanted to continue working with them.  She was underpaid, accrued debt for costs related to her work which she then had to repay, had her passport confiscated, and was unable to leave when she wanted to.  Although the applicant’s work in this respect could be characterised as voluntarily entered into, she did so due to limited choices and was still exploited in relation to her work conditions. 

100.   As a victim of such domestic servitude in the past, and given the applicant’s profile as a Nubian woman with no identity documents and no support, and other vulnerabilities including being a victim of sexual assault, the Tribunal finds she faces a real chance of serious harm in the form of being re-trafficked on return to Kenya from traffickers and/or their associates.  In reaching this conclusion, the Tribunal notes the country information referred to above about the risk persons in Kenya – in particular socio economically vulnerable woman such as the applicant – face of being re-trafficked. 

101.   The Tribunal also accepts the applicant faces more than a remote chance of serious harm at the hands of the politician she worked for in the past, and/or the agent who arranged her work abroad.  Although 12 years have passed since she lived in Kenya, which may cast doubts as to whether the politician and/or agent would continue to pursue her, the Tribunal accepts they have enquired about her since she left, including via her sister more recently.   The Tribunal accepts that in the agent’s case, he would be motivated to do so for financial gain, given he obtained USD500 from the applicant during her visit to Kenya in 2015 and he knows she has been working overseas for some time.  The Tribunal accepts that in the politician’s case he would be motivated to threaten and possibly harm the applicant (as he has in the past) to ensure she does not expose the sexual violence he subjected her to, which was serious and may undermine his reputation (among other things), despite the passage of time. 

102.   In making that assessment the Tribunal notes the country information as set out earlier about the prevalence of GBV including sexual violence in Kenya, which is largely accepted, as well as reports that women and girls living in poverty or precarious economic conditions are particularly vulnerable to sexual harassment, abuse, and trafficking.[30]   

[30] HRW, ‘“I had Nowhere to Go”, Violence Against Women and Girls During the Covid-19 Pandemic in Kenya’, September 21, 2021.  

103.   The Tribunal considers the applicant’s risk is increased due to her Nubian ethnicity and lack of identity documents, making her in effect stateless.  As noted, country information indicates that ethnic/national minorities such as the Nubians and Somalis are not recognised as such by the Kenyan government and have problems accessing citizenship documents.[31] 

[31] Minority Rights Group, World Directory of Minorities and Indigenous Peoples, Kenya, updated January 2018,  The US State Department report as follows about the problems stateless persons face in Kenya, including in relation to a lack of identity cards hampering employment and other benefits:

Stateless persons had limited legal protection, and many faced social exclusion.  Others encountered travel restrictions and heightened vulnerability to sexual and gender based violence, exploitation, forced displacement, and other abuses.  UNHCR reported stateless persons faced restrictions on internal movement and limited access to basic services, property ownership, and registration of births under the late birth registration procedures, marriages, and deaths.  Inadequate documentation sometimes resulted in targeted harassment and extortion by officials and exploitation in the informal labour sector.

National registration policies require citizens aged 18 and older to obtain national identification documents from the National Registration Bureau (NRB).  Failure to do so is a crime.  Groups with historical or ethnic ties to other countries faced higher burdens of proof in the registration process.  During the participatory assessments UNHCR conducted in 2018 and 2019, stateless persons said they could not easily register their children at birth or access birth certificates because they lacked supporting documents. 

…

Formal employment opportunities, access to financial services, and freedom of movement continued to be out of reach for stateless persons due to lack of national identity cards.  Stateless persons without identity cards cannot access the National Hospital Insurance Fund, locking them out of access to subsidized health services, including maternity coverage[32].

[32] U.S Department of State, 2021 Country Reports on Human Rights Practices, Kenya, April 12, 2022.

105.   Additionally, the Tribunal accepts the applicant has no family or other support in Kenya, no assets and very limited work history there (aside from selling [product 1]).  She will likely return as a Nubian woman without any official identity documents, to a slum area, with no support and being vulnerable to exploitation, abuse (including sexual violence) and re-trafficking.  Although she worked for many years for [a Country 1] family, the Tribunal accepts they took most of her savings.  She is working in [Industry 1] in Australia, although there would be limited opportunities in a similar field in Kenya, and given her lack of identity documents, the applicant may face difficulties obtaining employment in any official capacity, thereby making her vulnerable to being returned to the same situation she found herself in before she left, with little choice but to undertake domestic duties (or worse) for exploitative employers.  For these reasons, the Tribunal also accepts the applicant faces a real chance of serious harm on return to Kenya in the form of significant economic hardship that threatens her capacity to subsist as per s 5J(5)(d) of the Act.

106.   Therefore, the Tribunal accepts that should she return to Kibera, Kenya now or in the foreseeable future, there is a real chance the applicant will face serious harm from these individuals and/or other community members as required by s 5J(4)(b) of the Act in that it involves a threat to her life or liberty or significant physical harassment or ill-treatment, for the purposes of s 5J(5)(a).  The Tribunal finds the applicant’s Nubian ethnicity and her membership of a particular social group of women in Kenya are the essential and significant reasons for the persecution she fears, as required by s 5J(4)(a). The country information set out earlier indicates GBV is a country wide phenomenon, and the applicant is also a survivor of rape, which increases her risk of harm, as well as having certain vulnerabilities which increase her risk of being trafficked and subject to other forms of exploitation.   

107.   Additionally, the Tribunal is satisfied that the persecution which the applicant fears involve systematic and discriminatory conduct, as required by s 5J(4)(c), in that it is deliberate or intentional and involves selective harassment of her for reason of her gender and ethnicity. 

108.   In making this assessment, the Tribunal has taken the applicant’s personal vulnerabilities into account in assessing the seriousness of any potential harm: AGA16 v MIBP [2018] FCA 628. It accepts she has experienced sexual violence (among other things) in the past and accepts she is psychologically vulnerable due to these past experiences, including being diagnosed with PTSD and depression, as indicated by her counsellor. She would be returning to a country where these events happened and where, more broadly, sexual violence and GBV are widespread, as noted earlier. Taking these considerations into account, the Tribunal is satisfied any future harm or even threats of harm the applicant may experience could amount to serious harm as contemplated in the Act.

109.   For all of the above reasons the Tribunal finds the applicant faces a real chance of serious harm (for the purposes of s 5J(5)) if returned to Kenya, now or in the foreseeable future, from the politician, her former agent and/or community members.  It follows that the Tribunal accepts the applicant meets the requirements of s 5J(1)(b).

110.   The Tribunal has gone on to consider if there are effective protection measures available to the applicant from the persecution she fears in Kenya. 

111.   In this case, the applicant fears gender-based harm as a Nubian woman at the hands of non-state actors, such as members of the community, including former employers and agents, some of whom are known to her personally, and more generally.  She claims[33] the police are very corrupt and she did not seek help from them after she was sexually assaulted by the politician as he said he was friends with the police and they would not help her.  She added the politician has money and power and can use his position to influence the police, who would never take her situation seriously as a single woman of Nubian ethnicity. 

[33] In her 21 April 2017 statutory declaration.

112.   In her submission to the Tribunal, the representative refers to country information about the status of women in Kenya and submits that Kenya is unable to protect the applicant from the risk of GBV, including the risk of being re-trafficked.  Although the government passed an anti-trafficking law in 2010, it has proved difficult to secure convictions and there is reportedly a persistent gap with regards to prosecution of human trafficking offenders despite the willingness of judicial and law enforcement institutions to address it, she contends.

113.   Country information referred to above indicates that despite the existence of laws and policies to help protect against GBV in Kenya, enforcement remains limited, cases are underreported due to a number of factors, including stigma and the authorities’ view that such matters are private, and in some cases the police themselves are the perpetrators, and/or in some ways complicit.  Additionally, corruption is rampant within Kenya’s police force, and the US Department of State reports that impunity at all levels of government continues to be a serious problem[34].

[34] U.S Department of State, 2021 Country Reports on Human Rights Practices, Kenya, April 12, 2022.

114.   Based on such country information, the Tribunal is not satisfied that effective protection measures as per s 5LA are available to be provided to the applicant in Kenya by the state, a party or an organisation. The Tribunal finds that the applicant would not be able to access effective protection if returned to Kenya for the purposes of s 5LA(2).

115.   Country information also indicates that GBV is prevalent across the country, and there is no indication that Nubians only experience discrimination in certain parts of the country.  Accordingly, the Tribunal is satisfied that the real chance of persecution, due to the applicant’s membership of a particular social group of women in Kenya, and ethnicity, relates to all areas of Kenya for the purposes of s 5J(1)(c).

116.   The Tribunal also notes that requiring the applicant to conceal her true ethnicity and/or alter or conceal her gender identity is impermissible under ss 5J(3)(c)(ii) and s 5J(3)(vi) of the Act. Therefore, s 5J(3) does not apply in this case.

117.   Accordingly, and for the reasons above, the Tribunal finds that the applicant faces a well‑founded fear of persecution from the community based on her membership of a particular social group of women in Kenya and her ethnicity if she returns to Kenya, now or in the reasonably foreseeable future. The Tribunal accepts that the applicant has a well-founded fear of persecution for the purposes of s 5J.

118. For these reasons the Tribunal finds that the applicant meets the definition of a refugee. Therefore she is a person in respect of whom Australia has protection obligations and she satisfies the criterion set out in s 36(2)(a).

119.   Given these findings, it is not necessary for the Tribunal to consider the other grounds or matters advanced or that arise on the material before it.

Third country protection: s 36(3)

120.   Even where an applicant is found to be a person in respect of whom Australia has protection obligations, they will not be eligible for a protection visa if they have a right to enter and reside in another country where protection is available to them.

121.   Section 36(3) of the Act provides that Australia is taken not to have protection obligations in respect of non-citizens who have not taken all possible steps to avail themselves of a right to enter and reside in a country apart from Australia.  However s 36(3) does not apply in relation to a country in respect of which the applicant has a well-founded fear of being persecuted for a relevant reason, or has a well-founded fear of being returned to another country in which she will be persecuted for a relevant reason: s 36(4)(a) and s 36(5). 

122.   This is relevant to the applicant’s case because Kenya is one of the partner states of the East African Community (EAC), which also includes Rwanda, Uganda, the Democratic Republic of Congo (DRC), Tanzania and Burundi.  Article 7(1) of the Protocol on the Establishment of the EAC Common Market (the Protocol) which came into force on 1 July 2010, guarantees that persons who are citizens of the other partner states have freedom of movement.[35] The Free Movement of Persons Regulations set out five categories of persons eligible to enter and remain temporarily in a partner state, including visitors and persons entering a partner state for any other lawful purpose, other than as a worker or self-employed persons, for whom separate regulations apply. Visitors are generally provided with a pass for up to six months provided they are in possession of an appropriate identity document, which appears to include national passports or identity cards.[36]

[35] East African Community, East African Community Common Market (Free Movement of Persons) Regulations, Annexure 1 Regulation 4, East African Community Common Market Protocol (Simplified) at 7, see also Daily Nation (Kenya), 19 February 2014.

123.   Accordingly the applicant may have ‘a right to enter and reside in’ other EAC member states, within the meaning of s 36(3).  The Tribunal notes in SZRTC v MIBP Justices Tracey and Griffith considered that EAC provisions permitting six months’ residence gave a right to reside temporarily in those countries.[37] 

[37] SZRTC v MIBP (2014) 224 FCR 570 at [31].

124.   More broadly, the Australian courts have held that the term ‘right’ should not be restricted to a right in the strict sense which is legally enforceable.  Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.[38]  The right must be presently existing and not a potential right.  There must not be any existing prohibition or law contrary to its exercise.[39]

[38] MIMAC v SZRHU [2013] FCAFC 91.

[39] V856/00A v MIMA [2001] FCA 1018; (2001) 114 FCR 408.

125.   In the applicant’s case she would be entering the EAC countries as someone without official identity documents (including a passport), who is essentially stateless.  The Kenyan passport she used to enter Australia has now expired and was obtained through fraudulent means, and the Tribunal accepts the applicant’s claims that it would be difficult, if not impossible, for her to obtain a Kenyan passport through official channels.  For these reasons, the Tribunal considers it likely she would be refused entry to the other EAC countries, and therefore is satisfied she does not have a current right to enter and reside in other EAC countries within the meaning of s 36(3). 

126.   The Tribunal finds therefore that the applicant is not precluded from protection by s 36(3) of the Act.

CONCLUSION

127. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

DECISION

128. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Nicole Burns
Member

Attachment  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…

Itemid=53#.