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

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).
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.
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.
The applicant was represented in relation to the review. Her representative attended the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1823742 (Refugee)

Details

AGLC: 1823742 (Refugee) [2023] AATA 2268
Case: [2023] AATA 2268
Decision Date: 28 April 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a protection visa. The applicant, a single woman of Nubian ethnicity from Kenya, claimed to be stateless and feared persecution upon return to Kenya. The dispute centred on whether the applicant met the criteria for a protection visa, specifically concerning her well-founded fear of persecution based on her race and membership in particular social groups.

The Tribunal was required to determine if the applicant had a well-founded fear of persecution for reasons of race or membership of a particular social group, and if effective protection measures were available to her in Kenya. Specifically, the Tribunal had to assess the risks she faced as a Nubian woman, a single woman vulnerable to human trafficking and gender-based violence, and whether her stateless status and lack of identity documents exacerbated these risks to a level that would constitute serious harm. The Tribunal also had to consider whether the applicant had a right to enter and reside in another country, thereby precluding Australia's protection obligations.

The Tribunal reasoned that the applicant's past experiences of exploitation in domestic work, coupled with her Nubian ethnicity, lack of identity documents, and vulnerability as a single woman, placed her at a real risk of serious harm, including re-trafficking and gender-based violence, upon return to Kenya. It found that the country information indicated widespread gender-based violence and human trafficking in Kenya, and that state protection was inconsistent and weak, meaning effective protection measures were not available. Furthermore, the Tribunal determined that the applicant did not have a current right to enter and reside in other East African Community member states due to her lack of identity documents and stateless status.

Consequently, the Tribunal found that the applicant was a person in respect of whom Australia had protection obligations and met the definition of a refugee. The matter was remitted for reconsideration with a direction that the applicant satisfied the criterion under section 36(2)(a) of the Migration Act 1958.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 evidenceRelevant background (including ‘receiving country’ findings) 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. 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. 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. 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. 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).

Decision

Reasons for decision

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.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). 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. 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. 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. 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. 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.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.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.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.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.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. 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.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.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. 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.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.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.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.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.CONCLUSION127. 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).DECISION128. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.Nicole BurnsMemberAttachment - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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#.

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. 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 evidenceRelevant background (including ‘receiving country’ findings) 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. 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. 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. 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.