1919588 (Refugee)

1919588 (Refugee) [2022] AATA 958 (15 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1919588
COUNTRY OF REFERENCE:                   Kenya
MEMBER:Susan Hoffman
DATE:15 February 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 February 2022 at 8:57am
CATCHWORDS
REFUGEE – protection visa – Kenya –fears harm from uncle – land dispute – remain in Australia unlawfully – fear economic hardship in Kenya – delay in lodging the visa application – inconsistent evidence – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 424AA, 499
Migration Regulations 1994, Schedule 2
CASES
FCS17 v MHA (2020) 276 FCR 644
MIMAC v SZRHU (2013) 215 FCR 35
SZRSN v Minister for Immigration and Citizenship [2013] FCA 751
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 28 June 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Kenya, applied for the visa on 12 November 2018. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a person to whom Australia has protection obligations.
The applicant appeared before the Tribunal on 27 January 2022 to give evidence and present arguments. She had sent in a written submission dated 10 January 2022.
According to AAT records, prior to the hearing the applicant was represented by [a migration agent]. He did not attend the hearing. The applicant advised that her representative forwarded correspondence to her but she had not received advice in relation to this review due to the cost. Just before the hearing ended, the applicant filled in the relevant form to notify the AAT that she did not have a legal representative. In practical terms, the applicant was not represented at the hearing. The hearing was conducted without the assistance of an interpreter.
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) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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 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).
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.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
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.
Section 36(2) of the Act is qualified by subsections 36(3), (4), (5) and (5A) of the Act. They provide as follows:
Protection obligations
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that
(a) the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A) Also, subsection (3) does not apply in relation to a country if:
(a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.
This means that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s 36(4), (5) or (5A) are satisfied, in which case the s 36(3) preclusion will not apply.
The Full Federal Court in MIMAC v SZRHU (2013) 215 FCR 35 has held that the term ‘right’ in s 36(3) 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.
In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully given to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s 36(3) does not apply because of the operation of s 36(4), (5) or (5A).
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia has protection obligations in relation to the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background, protection claims and the delegate’s decision
The applicant claims to be a citizen of Kenya. She provided the Department with a copy of the bio-data page of her Kenyan passport. The delegate recorded that a check of the relevant systems did not reveal any information that raised concerns as to the applicant’s identity. It was noted that in her official school records, her first name was spelt [differently]. The delegate accepted that this was merely a spelling variation of her first name. Given the foregoing, the Tribunal is satisfied as to the applicant’s identity. It finds that the applicant is a citizen of Kenya and that Kenya is her country of nationality and receiving country.
The applicant arrived in Australia on [date] July 2016 on a student [visa]. Her visa expired on 15 March 2018 from which time she was in Australia unlawfully. The applicant was granted a bridging visa on 28 October 2018 and lodged her protection claim on 12 November 2018.
In her original protection claim, the applicant stated as follows:
My family had a dream since my birth that they will educate me well and send me abroad for higher studies. When I came to Australia I started to focus on my studying and getting familiar with the environment. After a few months, the situation in my home country “Kenya” was becoming worse day by day. There was an election going on and the opposition party started threatening people and killing them as well. My father got killed during those days informed by my sister and after a few months my sister also got disappear and I have [not] got an update about her. I tried to contact police but nobody is responding as everyone is corrupt there. I am sure that she also got killed as she hasn’t contacted me since long (sic), it never happened before she used to be regularly in touch with me…
My family used to be threatened by opposition political party and they got killed. Moreover, after the death of my grandfather due to property dispute, our family [were] threatened by my father’s brother and their sons. They were openly saying [to] us that if someone will try to claim the property and ask for share they will kill them…
I am really afraid that there is a threat to my life if I go back to my country either I will be killed by the opposition political party or my father’s brother…
I don’t have any family as my father is killed and my sister is missing since long…
The situation in my home country is very bad. Everyday many innocent people got killed without any reason and police and ministers are not doing anything to save people life instead everyone is corrupted. To show up their power opposition political party is killing people like killing machine and they are so strong that nobody can go against them to stop them.
The applicant claimed that she was born and lived in Eldoret in the Rift Valley before coming to Australia.
At the delegate’s interview, as recorded by the delegate in the decision record, the applicant said that neither she nor her father had been involved in politics in Kenya and she did not claim that her family were threatened in Kenya for political reasons. She stated that apart from her fear of her uncles because of the land dispute and her inability to subsist in Kenya due to the loss of her father and sister, she had no other claims.
The Tribunal listened to the recording of the interview and is satisfied that the content of the previous paragraph accurately reflects what the applicant said to the delegate.
The delegate recorded that the applicant gave the following information about the land dispute:
·     Her father had [number of siblings], [number] of whom were alive and lived in Gishu.
·     After her grandfather died in 2014, the uncles obtained the death certificate. According to cultural tradition in Kenya, being in possession of the death certificate enabled the uncles to legally take over the land her grandfather had owned, and it was not open to dispute.
·     The uncles threatened to kill the applicant’s father, the applicant or the sister if they ever challenged to claim any part of the inheritance.
·     She believes her father died in post-election violence in August 2017.
·     In December 2017, she asked her sister to go to Gishu where the uncles lived to ask them for a share of the land.
·     She last spoke with her sister in January 2018 by which time the sister had arrived in Gishu. She did not ask her sister if she had by then met or spoken with her uncles.
·     After this conversation, her sister disappeared. The applicant contacted the police to investigate the disappearance. They asked for money to investigate. She said she did not have the money to pay the police.
·     She and her sister had hoped to appeal to the uncles’ empathy following the death of their (the applicant’s and her sister’s) father.
·     She did not know exactly what happened to her sister but believes the uncles had killed her as otherwise her sister would have contacted her.
The delegate put it to the applicant that she claimed the uncles threatened her, her father and her sister in 2014 but she continued to reside in close proximity to them until she left for Australia in 2016 without any issues. It was also noted that based on the applicant’s statements, she left Kenya to study in Australia, not because she feared her uncles.
The delegate’s decision referred to evidence of the applicant transferring money to her father, [Mr A], during 2018 with the most recent transfer being [in] January 2019. The delegate noted that this appeared to contradict her claim that he died in 2017.
The applicant responded that she had been sending money to her aunt, [Ms B],[1] who could access [Mr A]’s account. The delegate stated that records showed the applicant had been transferring money to multiple recipients in Kenya but [Ms B] was not recorded as a recipient, and that the applicant did not explain why she could not send the money directly to her aunt, rather than send it to her father’s account so the aunt could access it from there. The delegate considered the applicant’s claim that her aunt was accessing the money from the father’s account to be implausible, as there was no evidence of his death.
[1] The delegate referred to [Ms B’s alias], noting they were unsure of the correct spelling of the aunt’s name. The Tribunal checked the correct spelling at its hearing.
It was also put to the applicant that the records showed she had been regularly transferring money to her sister, [Ms C], throughout 2018, with the most recent transfer being on [date] February 2019 which would appear to contradict the applicant’s claim that her sister had been killed in January 2018. In response, the applicant claimed that she was using her sister’s details to transfer money to her aunt. The delegate did not accept this explanation.
The delegate noted that the applicant had provided evidence of the 2017 post-election violence in Kenya, consistent with other country information; her father was not named in the country information provided as one of the people killed in the violence.
The delegate recorded that they did not accept the applicant’s claim that her father died to be credible.
The delegate also questioned the applicant about her delay in lodging her protection visa application form which was done on 12 November 2018, about 11 months after she claimed her father died and about nine months after she claimed her sister was killed. Her protection visa claim was lodged a month after she was stopped by police and identified as an unlawful non-citizen.
The applicant replied that she was depressed after her father and her sister were killed; she did not know anyone she could talk to; she did not have money to lodge her protection application, she did not know how to do that, she wanted to research how to do it. She claimed she had contacted a migration agent in 2018 and was in the process of lodging it and her migration agent was at fault for being slow.
The delegate noted that although the applicant claimed not to have money, she was able to find employment to remain in Australia unlawfully and had been sending money back regularly to Kenya.
The delegate did not accept the following claims made by the applicant as being credible; the death of her father in 2017; of her sister in 2018; threats from an opposition party; that she feared her uncles because of a land dispute; and the reasons she gave for the delay in seeking protection in Australia.
With regard to her claim of not being able to support herself in Kenya if she was to return, the delegate noted various country information. The delegate recorded that the applicant had a support network in Kenya, evidenced by what she said at interview about her aunt, that she said she had friends, that she was sending money to various people in Kenya and that the delegate did not believe her father and sister were dead. The delegate recorded that the applicant’s life skills enabled her to navigate a new life in Australia. Even though she was not permitted to work in Australia, she found employment and sent over $20,000 to Kenya. The delegate concluded that there was “nothing in the applicant’s account to suggest that she will be denied her subsistence for any reason”.
The delegate also noted that country information indicated that Kenya is a member of the East Africa Community (EAC), made up of the republics of Burundi, Kenya, Rwanda, South Sudan and Uganda; and the United Republic of Tanzania. Generally, a citizen of an EAC country can enter and stay in another EAC for a period of six months, with the possibility of an extension. The delegate stated that the applicant, as a citizen of Kenya, could enter and reside in another country and would be eligible for work in another EAC country. This is relevant to s. 36(3) of the Act.
Findings and reasons
In determining whether or not the applicant meets the criteria for protection, the Tribunal has considered the evidence before it, including the sworn evidence of the applicant and if that is credible. The Tribunal recognises the difficulty facing protection visa applicants in giving evidence at formal hearings. Generally, if the overall claims made are credible, the Tribunal will extend the benefit of the doubt when the applicants are unable to substantiate all their claims. However, applicants may embellish details or aspects of their claims to strengthen their case. The Tribunal considers it appropriate to critically evaluate claims made by applicants.

In this case the applicant has been broadly consistent when comparing the claims she made to the delegate with those she made in a pre-hearing submission and at the hearing. However, there are aspects of her claims which the Tribunal finds to be implausible, for reasons set out below.
At the hearing, the applicant identified three reasons for which she should be afforded protection in Australia: fear of her uncles following the property dispute; the upcoming election in Kenya, and separation from her [age]-year-old daughter. She had previously raised her ability to subsist should she be returned to Kenyan which the Tribunal will also address. In her written submission dated 10 January 2022, she also mentioned COVID-19.
In her original written application, the applicant claimed she feared being killed by the opposition party. She told the delegate that was not a concern and did not raise it with the Tribunal when asked to say why she feared going back to Kenya. The Tribunal will, however, address this when discussing the forthcoming election in Kenya.
For a claim for protection to be considered under the refugee criteria, the persecution feared by a person must be for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal is of the view that the concerns raised by the applicant about the upcoming election are appropriately considered under the refugee criteria, along with concern she had previously raised about the opposition party as that is related to politics.
The other claims raised by the applicant - concerning the uncles, her ability to subsist and the claim arising from separation from her daughter - do not raise protection claims under the refugee criteria. This is because the applicant does not fear being persecuted ‘for reasons of race, religion, nationality, membership of a particular social group, or political opinion’ with regard to these three claims, as per s 5J and the meaning of a ‘well-founded fear of persecution’. These three claims will be considered under the complementary protection provisions.
Before considering her protection claims, the Tribunal will discuss the applicant’s claims about transferring money to Kenya which raise questions about her credibility.
Transferring money to Kenya
During the hearing the Tribunal put information to the applicant under s.424AA of the Act in accordance with the requirements of that provision. The applicant chose to respond to the information put to her straightaway.
The Tribunal informed the applicant that the Department had obtained an Austrac report which showed she made 94 overseas transfers of money between October 2016 and April 2019. Between February 2018 and April 2019, she made 84 transfers. The amounts of money transferred were between $6 and $900 each, including 14 transfers of over $500 each.
The fact that the applicant transferred funds to Kenya and the amounts transferred are not of concern in a general sense. What is of concern is that a number of these transfers were sent in the name of the applicant’s father, her mother, [and] her sister, [Ms C].
The applicant has consistently claimed that her father was killed in or around August 2017 which was a period when there was post-election violence in Kenya. It is not in dispute that there were civil unrest and people killed during the post-election violence of 2017. These were widely reported at the time. The applicant claimed she has not been able to establish what happened to her father. No death certificate has been issued in his name.
The applicant claimed that her sister disappeared and has not been heard from since January 2018.
In her visa application form, the applicant wrote that her mother was deceased. At the hearing the applicant said she was not raised by her mother and did not know her. She would visit her mother’s sister and the information she was given, was that her mother had died. She said that they were told by her grandmother that her mother was dead. She did not grow up with her, but she knew her name.
According to the Austrac report, the most recent transfer made to the applicant’s father was dated [date] January 2019 ($214.38); to her mother, [date] January 2019 ($280.71); and to her sister, [date] February 2019 ($72.61).
The Tribunal gave the applicant a copy of the Austrac report which lists for each transaction the date it was made, a report number, report type, transaction type, the ordering customer (the applicant in each case), the beneficiary customer, the destination country and the amount, in Australian dollars. The applicant said later in the hearing that she was familiar with the transactions.
Between February 2018 and April 2019, the applicant made 22 money transfers with her father named as the beneficiary, 28 with her sister named as the beneficiary and 19 with her mother named as the beneficiary. These total 69 transactions.
The other 13 (84 – 69) were sent to other people, described by the applicant as her friends. These are not of concern to the Tribunal in relation to her credibility.
The applicant claimed that she was sending the money to her mother’s sister, her aunt [Ms B]. She said [Ms B] helped her father raise the applicant and her sister. The applicant said she was still in contact with [Ms B]. She said that when they were being raised, they lived in a rental home in Eldoret.
The applicant then said she and [Ms B] had not talked for about six months and that [Ms B] still lived in Eldoret.
The applicant said that when she sent money to her aunt, it was easier to send it in her father’s name. She said she used her sister’s and mother’s names for the same reason she used her father’s name. When she was asked why she sent the money using different names to the same person, the applicant said there was a limit, a limit as to how much could be transferred on a single day.
On a number of occasions, the applicant made two or more money transfers to at least two of her immediate family, on the same day. For example, on [date] December 2018, she sent $130.67 naming her sister as the beneficiary and $241.97 naming her mother as the beneficiary. On [date] October 2018, she transferred $77.39 naming her father as the beneficiary and $77.39 naming her mother as the beneficiary.
The money transfer service used by the applicant was [Service 1]. According to its website, the maximum amount of money that can be sent from Australia in a single transaction is $50,000. The same limit applies to how much can be sent overseas from Australia in a 24-hour period. The amounts sent by the applicant were all less than $900. The limits on the amounts that could be transferred in a single transaction and within a 24-hour period would not affect transactions the applicant made, given she was transferring much smaller amounts of money.
The Tribunal put it to the applicant that it was hard to believe that anyone would send money to a particular person, using the names of three other people who were the sender’s immediate family who had died and/or disappeared. The applicant was asked why she would do this, and also how [Ms B] could collect money sent in the name of other people when there are checks in place when people go to collect the money.
On the first point, the applicant said they did not want her aunt’s husband to know that her aunt was getting money from her (the applicant). The Tribunal does not accept this to be a reasonable explanation. How would the applicant sending the money in other people’s names assist [Ms B] explain to her husband where the money she had received came from?
On the second point, the applicant said that when the transfer is set up, there is a reference number and all a person needs to do to collect the money is to quote the reference number. If the people in the agency already know that person, then they do not ask for identification.
The applicant said in relation to checking the identity of the person collecting the money, in Kenya, people do not care and the agency [that distributes the money] gets their commission. She said the money could be sent to a dead person, to anyone, and no-one would question it.
According to [Service 1], recipients of cash in Kenya sent to them need to show valid photo ID, which “must be one of the following: Kenyan passport, national ID card, driving license, or foreign passport with visa or refugee card.” They are also required to quote “[Service 1]” and the 8-digit transfer reference number.
Clearly the agency would have been advised by [Service 1] of the names of the intended beneficiaries or they would not be required to check the identity of the person collecting the money.
The Tribunal accepts that while some agencies may be lax in checking identities, it does not accept that that would occur to the extent suggested by the applicant, on so many occasions over a protracted period. If the agency staff knew [Ms B], and did not ask for identification from her for that reason, why would they hand over cash to her that was intended (based on the named beneficiary) for three other people? The Tribunal does not find the applicant’s explanation on this point to be credible.
The question also arises - why transfer the funds to [Ms B] using the names of three close relatives who had died, rather than using just one name, if using someone else’s name was not a barrier to transferring the funds to the aunt.
The Tribunal referred earlier to the applicant making two or more money transfers to at least two of her immediate family, on the same day. The applicant’s responses regarding the transfers did not explain why she made two separate transfers on the same day in two different names, if all the funds were intended for [Ms B].
The Tribunal was not satisfied with the applicant’s explanation for why she used the names of three people she had claimed to have died and/or disappeared, in order to send money to her aunt. Her explanations were not credible. The Tribunal concluded that the applicant has not been truthful. The Tribunal cannot be satisfied that the applicant’s father, mother and sister were deceased or disappeared as she claimed.
The question around the applicant’s credibility that arises because of she did not satisfactorily explain why she transferred funds to Kenya in the names of people she claimed had died and/or disappeared, in order to send money to her aunt, taints the reliability of her other evidence.
Political opinion – actual or imputed
The applicant claimed that she feared return to Kenya because of the imminent election which suggests a protection claim under the refugee criteria. Kenya has a history of extreme civil unrest in the lead up to and following general elections. This was the situation in 2007, 2013 and 2017. The next election is due on 9 August 2022.
According to one article from March 2021:[2]
…the aftermath of the December 2007 contest led to months of heavy ethnopolitical violence that is estimated to have killed 1,200 people and forced more than 500,000 others to flee their homes (BBC, 2010). This violence primarily impacted multiethnic, low-income areas in Nairobi, Naivasha, Kisumu, and Mombasa...
The subsequent general election in 2013 was relatively peaceful but ethnopolitical tensions continued to build up in most parts of the country, with Tana River County experiencing a series of massacres in late 2012 and early 2013 that killed over 170 people, wounded many more, and displaced tens of thousands (HRW, 2013). Simultaneously, distrust and anger continued to grow in the Rift Valley, Nyanza, and Nairobi due to the state’s failure to address the underlying causes of violence (HRW, 2013)...
…following the 2017 general election as police and opposition supporters clashed violently, mainly in Nairobi and western Kenya…grave violations of human rights as protests by opposition supporters were met with excessive use of force by the police, leading to the loss of many lives.
[2] The Sentinel Project (2021) The 2022 Kenyan General Election: An Analysis of New and Enduring Violence Risk Factors, accessed 27 January 2022 at
In 2017, the results of the election held in August that year were annulled by Kenya’s Supreme Court and the election was repeated in October 2017. The day before the October election, the Supreme Court was due to hear a petition challenging its constitutionality.[3]
However, many of the court’s judges chose to stay away, spooked by threats in the aftermath of the annulment and an attack that injured the deputy chief justice’s bodyguard. This paved the way for an “election” that was little more than a coronation and that left the country badly polarised, and dozens of perceived Odinga supporters dead.
Today, as the country stares down the barrel of yet another election, there are again reasons for optimism and pessimism.
[3] Gathara, P. (2021) For Kenyans, 2022 brings hope and fear, published 30 December 2021 in Al Jazeera, accessed 27 January 2022 at
Based on past elections and recent commentary, it may will be the case that there will be civil unrest around the time of the election. The post-election violence of 2017 mainly involved opposition supporters. The applicant told the delegate that neither she nor her father were involved in politics. At the hearing the applicant did not claim she would be targeted because of her actual or imputed political opinion. She did not give any evidence of being targeted on the basis of her actual or imputed political opinion in the past or that she expected to be so targeted in the future.
The Tribunal notes that the country information referred to ethnopolitical violence in the aftermath of the December 2007 election and the build-up of ethnopolitical tensions in the relatively peaceful 2013 election. In her application for protection, the applicant answered the question on her ethnic group with ‘Kenyan’. That is, she did not identify a particular ethnic group. Given that, and that the applicant did not make any claims based on her ethnicity, the Tribunal is satisfied that she does not have a well-founded fear of persecution based on her race.
In light of the foregoing, the Tribunal is satisfied that the applicant will not be targeted for her actual or imputed political opinion, or her race, should she return to Kenya. It finds therefore that she does not have a well-founded fear of persecution based on her actual or imputed political opinion or race.
Complementary protection provisions
The Tribunal then considered whether the applicant met the criteria for protection under the complementary protection provisions.
Family dispute
The applicant claimed that she feared return to Kenya because of her uncles. She said she believed they were responsible for her sister’s disappearance and that they may have killed her.
In her written submission to the Tribunal dated 10 January 2022, the applicant wrote “my sister disappear coz of family threats from my dad family side. I never hear from her.”
For reasons already set out, related to the money transfers, the Tribunal is not satisfied that the applicant’s sister disappeared or that she was killed.
The applicant said that when she was in Kenya and her father was alive, she had no fear of his brothers and it had been her intention to return to Kenya after studying in Australia. But after her father died, that changed, particularly after her sister disappeared.
The applicant said that after her father was killed, she did not know what would happen, and after her sister disappeared that was the next thing. She feared what would happen to her if she went back to Kenya. She said there were always threats from her uncles because they did not like her father.
The applicant said that her father was the oldest of [number siblings] although one brother had died by the time the dispute over the grandfather’s land arose. The land owned by her grandfather was used to grow coffee and graze cows and sheep. It was big but she could not say how big. As the oldest brother, it was her father’s role to subdivide the land. But this did not happen. There had always been fights between her father and the brothers. Her grandfather lived on the farm before he died, and now the [siblings] live on the sub-divisions.
The land is in Eldoret, which the applicant described as a big [village]. The applicant said she was brought up in Eldoret but would go back and forth to Nairobi where her father worked during the week. She attended a boarding school for both her primary and high school education where she would stay for perhaps four months. She went home mid-term for about ten days.
The Tribunal accepts that the applicant’s grandfather owned farmland and that there was a dispute between his sons about the inheritance after his death. The Tribunal acknowledges that although it may seem illogical for brothers to argue over whether a large piece of land should be divided between [number] people or [number] people, family disputes of this nature do occur, and the Tribunal does find this claim to be plausible.
The applicant had told the Department her sister went to ask the brothers around January 2018 to ask them for a share of the land, and then she disappeared. The Tribunal does not accept that the applicant’s sister disappeared in January 2018 or thereabouts, as between February 2018 and April 2019 the applicant made 28 cash transfers naming her sister as the beneficiary.
According to the applicant’s evidence, the land dispute occurred in 2014. She left Kenya in 2016 to study in Australia, not because she feared harm from her uncles. The reason given by the applicant for now fearing harm from her uncles is because of the death of her father (unrelated to the land dispute), and the disappearance and perhaps death of her sister at the hands of the uncles because she asked for a share of the land.
As the Tribunal is not satisfied that the applicant’s father and sister have died/disappeared for reasons already set out, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm at the hands of her uncles should she return to Kenya (s.36(2)(aa)).
Civil unrest at the upcoming election
For a person to meet the criteria for protection under the complementary protection provisions, there has to be a real risk that they will suffer significant harm. However, there is taken not to be a real risk if the real risk is one faced by the general population and not by the person personally.
The applicant referred to a concern she had about post-election violence. Her evidence was that she was not political. She did not identify herself as belonging to an ethnic group other than ‘Kenyan’ which is, of course, her nationality not an ethnicity. There was no suggestion in the applicant’s evidence that she would be personally targeted if there was a period of civil unrest following the election.
It is apparent then, that if there is generalised violence and unrest following the election in August 2022 that creates a real risk of the applicant suffering significant harm, that would be a real risk faced by the general Kenyan population and not by the applicant personally.
That being the case, the criteria for protection under the complementary protection provisions in relation to the possibility of post-election violence are not met.
Ability to subsist and COVID-19
The Tribunal will consider the applicant’s ability to subsist, and any risk of harm posed by COVID-19, together because of the impact the pandemic has had on the Kenyan economy.
The delegate recorded in their decision that the applicant claimed to fear economic hardship in Kenya, on the grounds that she had no education, no work, no income, no place to stay and no other support in Kenya.

In her submission dated 10 January 2022, the applicant wrote that she feared returning home because she did not know what would happen to her. She wrote she did not have a place to go back to.
The World Bank in a press release dated 14 December 2021 stated that Kenya’s economy had demonstrated resilience to the COVID-19 shock, with expected robust growth of 4.9% a year in 2022/23, similar to the pre-pandemic rate of growth.[4] The economic growth and recovery were supported by new shipments of vaccine arriving in September 2021. The press release states that vaccine acceptance was reportedly high although there was a long way to go to meet the government’s target of fully inoculating the adult population of about 30 million people by the end of 2022.
[4] The World Bank (2021) Kenya’s Economy is Showing Resilience as Output Rises Above Pre-Pandemic Levels Driven by a Rebound in the Services Sector, accessed 3 February 2022 at
The press release noted that drought conditions affecting parts of Kenya posed a risk to the outlook in addition to the risk posed by the pandemic.
The unemployment rate in Kenya was 10.40% in the second quarter of 2020, 7.2% in the third quarter and 5.4% in the fourth quarter. It increased to 6.6% in the first quarter of 2021.[5] The higher unemployment rates reflected lockdowns and other measures introduced temporarily because of the pandemic.
[5] Statista (2021) Unemployment rate in Kenya from 3rd quarter 2019 to 1st quarter 2021, accessed 3 February 2022 at
Kenya’s Treasury Minister, Mr Ukur Yatani, released a report in September 2021 which showed that 740,000 people in Kenya lost their jobs as the country’s economy contracted due to the pandemic. The number of employed people dropped from 18.1 million to 17.4 million. Mr Yatani said that the government was focusing on restoring the economy and creating jobs and economic opportunities across all regions of the country.[6]
[6] Andalou Agency (2021) 740,000 Kenyans lose jobs in 2021 amid pandemic, accessed 3 February 2022 at >
Droughts are affecting parts of Kenya. The worst affected areas are in eastern Kenya impacting about 2.9 million people.[7] The applicant’s home village of Eldoret in western Kenya in the Rift Valley province, in Uashin Gishu county, is in an area where the low rainfall has had a minimal effect on food security.[8] The Tribunal is satisfied that the drought affecting parts of Kenya does not present a risk of harm to the applicant in the areas of Kenya where she said she lived – Eldoret – and Nairobi where she said she went to regularly as her father worked there.
[7] Relief Web (2022) Drought in Kenya: Situation of the people deteriorates rapidly, accessed 3 February 2022 at
[8] Famine Early Warning System Network (2022) East Africa, Kenya, accessed 3 February 2022 at >
The United Nations reported in May 2021 as follows:
Kenya has made important political, structural and economic reforms that have contributed to positive political gains, economic growth and social development over the past ten years. The country ushered in a new political and economic governance system with the passage of a new constitution in 2010 that introduced a bicameral legislative house, devolved county government, a constitutionally tenured judiciary and electoral body. Economic growth averaged 5.7% in 2019, placing Kenya as one of the fastest growing economies in Sub-Saharan Africa.The economic expansion was boosted by a stable macroeconomic environment, positive investor confidence and a resilient services sector. However, growth trajectory was interrupted in 2020 due to COVID-19 pandemic, drought and locust invasion. The economy is estimated to have contracted by 1% in 2020 due to the effect of the COVID-19 pandemic, exacerbating food insecurity and increasing poverty by 4% (or an additional 2 million poor according to the World Bank latest Kenya Economic Update) through serious impacts on livelihoods, by sharp decreases in incomes and employment. Despite the impact, the government and IMF forecast a strong rebound for economy in 2021 and in the medium term, with an expected GDP growth of 6.9%, which is expected to make a dent to poverty numbers.
Even before COVID-19 pandemic and impressive economic growth, the country had been experiencing significant challenges in poverty reduction. The country’s key development challenges still include poverty, inequality, climate change, continued weak private sector investment and the vulnerability of the economy to internal and external shocks.
Poverty remains high in Kenya despite a decline in the poverty rate from 46.6% in 2005/06 to 36.1%3 in 2015/16. While poverty declined, the absolute numbers increased from 16.8 million people in 2005/06 to 19.5 million in 2019. Of the 19.5 million, 14 million live in rural areas, 1.3 million in peri-urban and core-urban has 4.2 million people who are mainly in the informal settlements. Spatially, across the 47 counties, overall headcount poverty (proportion of poor individuals) widely ranges from a low of 16.7% in Nairobi City County to a high of 79.4% in Turkana County. In 2015/16, the poorest four counties were Turkana (79.4%), Mandera (77.6%), Samburu (75.8%) and Busia (69.3%). Conversely, the four counties with least poverty include Nairobi (16.7%), Nyeri (19.3%), Meru (19.4%) and Kirinyaga (20.0%).

100. Eldoret is in the county of Uasin Gishu. Records indicate that the population of Eldoret was 247,500 in 2009.[9] According to Kenya’s National Bureau of Statistics, based on the 2019 census, its population had grown to 475,716. That made it the fifth largest urban centre at a time when the total population of Kenya was 47.6 million and the capital city, Nairobi, had a population of 4.4 million.[10]
[9] City population (2020) Kenya, accessed 3 February 2022 at
[10] Kenya National Bureau of Statistics (2020) 2019 Kenya Population and Housing Census, accessed 3 February 2022 at
101. According to one source, Eldoret is the fastest growing town in Kenya, with varied economic activities including large-scale farming and manufacturing.[11] A growing town suggests opportunities for employment.
[11] Shadows of Africa (2022) Eldoret Kenya, accessed 3 February 2022 at
102. The delegate noted that despite not being permitted to work in Australia, the applicant was able to find employment enabling her to send over $20,000 to Kenya. This indicates a degree of resourcefulness. The applicant presented well at the hearing. She was well-mannered and polite, articulate and smartly dressed. The Tribunal is satisfied that if the applicant returns to Kenya, she will be able to find employment.
103. The applicant sent money to a number of people as already discussed. She said she was in contact with friends in Kenya and remained in contact with her aunt, although she had not spoken to her aunt for about six months. For reasons already set out, the Tribunal has not accepted that the applicant’s father, mother and sister have died.
104. The Tribunal is satisfied that if the applicant went back to Kenya, she would be supported by friends and/or family until such time as she found employment.
105. The applicant wrote in her submission of 10 January 2022 that “2021 election is happening in Kenya but it doesn’t look good and Covid is going on.”
106. While acknowledging that official figures can vary in accuracy, as at 3 February 2022, from a population of over 47 million, 321,671 people in Kenya had contracted the disease and 5,592 had died from it.[12] The Tribunal notes that Kenya is ranked at 167th of 225 countries for deaths per head from Covid (and 171st of 225 countries for cases per head of population).[13] To be clear, 166 countries from 225 had higher death rates than Kenya.
[12] Worldometer (2022) Kenya, accessed 3 February 2022 at Worldometer (2022) COVID-19 Coronavirus pandemic, accessed 3 February 2022 at The Tribunal has already set out country information concerning the impact of the coronavirus on Kenya’s economy, and that the economy is expected to grow in 2022. With regard to health implications, the Kenyan government has embarked on a program to inoculate the population by the end of 2022. It was open to the applicant to be vaccinated in Australia, to protect herself from Covid-19.
108. The Tribunal notes that for the complementary protection criteria be satisfied, there must be intention on the part of relevant actors to inflict the harm. This is not the case with regard to COVID-19. The Tribunal is satisfied that the complementary protection provisions are not engaged because of coronavirus in Kenya.
109. The Tribunal is satisfied that the applicant has the capacity to subsist if returned to Kenya and that the complementary protection provisions are not engaged because of the pandemic.
Separation from her child
110. In her submission of 10 January 2022, the applicant wrote that she gave birth to her [daughter], on [date] and that for financial reasons, she had to give her away. The applicant included in her submission the email address of a social [worker].
111. The applicant referred to [her daughter] being fostered and said at the hearing she does not think she signed adoption papers. She said she has not seen her daughter for years as it was too hard for her, she becomes so upset. The applicant wrote that she processed the paperwork for her daughter to make sure she was with a good family. The applicant became quite distraught talking about her daughter.
112. While the Tribunal has noted its concerns regarding the applicant’s credibility, it does accept that she has a daughter who is now being fostered. The applicant provided the email address of the social worker and was visibly upset when talking about her daughter.
113.   The Tribunal had regard to the reasoning found in SZRSN.[14] The appellant in that case was a New Zealand citizen whose visa had been cancelled. He wanted to stay in Australia to be with his partner and children and contended that he would suffer significant harm if he was separated from his children.
114. Amongst other things, s. 36(2A) provides that a non-citizen will suffer significant harm if they are subjected to cruel or inhuman treatment or punishment.
115. Cruel or inhuman treatment, as defined in s.5(1), requires an act or omission by which pain or suffering, whether physical or mental, is intentionally inflected on a person. Intention is also required to make a finding of degrading treatment or punishment, or torture. In this case, there is no intent to inflict pain or suffering or humiliation upon the applicant with regard to her daughter. Any pain or suffering she might experience because she is far away from her daughter will be a consequence of the applicant’s removal from Australia rather than her being removed to the receiving country, being Kenya.
116. The Tribunal therefore does not accept that, in relation to the applicant’s daughter, removing the applicant from Australia meets the definition of cruel and inhuman treatment as found in the complementary protection provisions.
Complementary protection claims considered cumulatively
117. The Tribunal has considered each of the claims made under the complementary protection provisions and is satisfied that none of them individually meet the criteria. It has also considered them cumulatively and is satisfied the criteria are still not met.
[14] SZRSN v Minister for Immigration and Citizenship [2013] FCA 751
CONCLUDING PARAGRAPHS
118. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION

121. The Tribunal affirms the decision not to grant the applicant a protection visa.
Susan Hoffman
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.
…

[2022] AATA 958

15 February 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Standing