1924119 (Refugee)

[2022] AATA 5058

1924119 (Refugee) [2022] AATA 5058 (8 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1924119

COUNTRY OF REFERENCE:                   Kenya

MEMBER:Susan Hoffman

DATE:8 December 2022

PLACE OF DECISION:  Perth

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

Statement made on 08 December 2022 at 8:07am

CATCHWORDS

REFUGEE – protection visa – Kenya – Federal Circuit Court remittal – particular social group – former gang member – fear of gang revenge – fear of killing – police targeting gang members – orders to arrest – election violence – attack on family home – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5A, 5H, 5J – 5LA, 36, 65, 91, 411, 417, 429, 499
Migration Regulations 1994, Schedule 2

CASES

CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14
Daher v MIEA (1997) 77 FCR 107
MIMAC v SZRHU (2013) 215 FCR 35

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2.The applicant, who claims to be a citizen of Kenya, applied for the visa on 24 September 2013. The delegate refused to grant the visa on 4 December 2013 (the delegate’s decision).

3.The applicant sought review of the delegate’s decision with the Refugee Review Tribunal (RRT). The RRT decided on 14 July 2014 to affirm the delegate’s decision (the RRT decision).

4.The applicant’s case was referred for consideration of the exercise of the Minister’s discretion in accordance with s.417 which, if successful, could mean he could remain in Australia. According to a departmental file note dated [in] August 2014, it was found that the case did not satisfy the requirements for consideration of the exercise of the Minister’s discretion. 

5.The applicant sought judicial review of the RRT decision, initially on seven grounds. In a decision dated 20 April 2017, the Federal Circuit Court (FCC) recorded that grounds 2 and 3 were not pressed and that grounds 1, 6 and 7 were not made out and did not establish jurisdictional error. With regard to grounds 4 and 5, Judge Lucev stated that the failure of the RRT, and of the parties to the judicial review process, to address the relevant provisions of the Kenyan Criminal Procedure Code (Kenyan CP Code) might necessitate further submissions. The proceedings were adjourned.[1]

[1] WZAUR v Minister for Immigration & ANOR [2017] FCCA 561

6.In a decision dated 16 August 2019, the FCC decided that grounds 4, 5, 8 and 9 were made out and established jurisdictional error on the part of the RRT.[2] The application for review was remitted to the Administrative Appeals Tribunal (AAT) for reconsideration.[3]

[2] WZAUR v Minister for Immigration & ANOR (No.2) [2019] FCCA 2234

[3] On 1 July 2015, a number of Commonwealth tribunals, including the RRT, amalgamated. From then, the relevant review body was the AAT, and in relation to protection visa cases, specifically the Migration and Refugee Division of the AAT. 

Time and mode of hearing

7.The applicant, who is unrepresented, appeared before the Tribunal on five occasions as follows:

Date  Type of hearing  Mode

9 December 2021        directions (preliminary) hearing  telephone

3 March 2022             substantive hearing   video

2 June 2022               privacy concerns, hearing could not proceed    video

6 October 2022            substantive hearing  in person

4 November 2022        substantive hearing   video /  witness by phone

8.A brief explanation as to why that number of hearings is as follows:

·     The applicant was in prison when the AAT scheduled the December 2021 hearing. He indicated that he wanted the hearing rescheduled in order for him to obtain documents. As there had been difficulties communicating with him, it was decided to proceed with the hearing to discuss procedural matters. No evidence was taken at the December 2021 hearing.

·     After the March 2022 hearing the applicant made a post-hearing submission which included information necessitating a further hearing.

·     This further hearing was scheduled for June 2022, by which time the applicant had been moved to a different prison. It became apparent that he was not in a private room and therefore the hearing was abandoned.

·     As the applicant was due to leave prison in September 2022, a hearing was listed for 6 October 2022 with the expectation that the applicant could attend in person and the problems encountered in June 2022 would not recur.

·     At the October 2022 hearing, the applicant advised that he wanted his mother to be a witness but had yet to contact her about it. He was given two weeks to advise the AAT if his mother would be willing to be a witness for him, in which case a further hearing would be needed.

·     The final hearing was listed for 4 November 2022, primarily to take evidence from the applicant’s mother. The applicant also gave evidence.

9.The sequence of events, in more detail, follows.

The hearings held on 9 December 2021 and 3 March 2022

10.The AAT wrote to the applicant via his representative on 14 September 2021 to advise him that his file was being prepared for allocation to a member and that may result in a hearing being scheduled. A Hearing Information Form was sent to him which he returned to the AAT on 21 September 2021. The form included a question asking if there were any dates in the next three months when the applicant would not be able to attend a hearing. He responded ‘No’ to this question. It was noted on the form that he would be given at least two weeks’ notice of a hearing date and time. As the applicant returned this form, the Tribunal was satisfied he was aware that a hearing was imminent.

11.A hearing invitation was sent to the applicant via his representative on 23 September 2021, for a hearing scheduled for 14 October 2021. The representative responded that he had not been in contact with the applicant for 12 months, had been unable to contact him and was no longer acting for him.

12.The Tribunal was made aware via departmental records that the applicant had been remanded in custody [in] September 2021. He was being detained in [Prison 1]. The hearing scheduled for 14 October 2021 was postponed.

13.A video hearing with the applicant was scheduled for 9 December 2021. A hearing invitation was sent to the applicant on 2 November 2021.

14.The applicant responded to the hearing invitation. His response was received by the AAT on 9 November 2021. He listed four documents he would be relying on at the hearing. He advised that he did not need an interpreter, he was not represented and he answered ‘no’ to a question about witnesses, indicating he was not requesting that the Tribunal take oral evidence from another person or persons.

15.On 30 November 2021 the AAT received a letter from the applicant dated 26 November 2021 which was a request for all the documents relating to his review to be sent to him at [Prison 1]. He asked for more time to prepare and present his evidence and make a written submission.

16.The Tribunal understood from his letter that the applicant was asking for the hearing to be rescheduled although that request was not explicitly made. The AAT wrote to him on 1 December 2021 advising him that it could send him some documents (these were included with the letter of 1 December 2021), but for others, he needed to make a request under Freedom of Information (FOI) legislation.

17.The AAT informed him in the letter that the hearing scheduled for 9 December 2021 would proceed as a directions hearing, during which procedural matters such as the FOI application could be discussed.

18.On 6 December 2021 the AAT received a letter from the applicant dated 30 November 2021 asking that the hearing scheduled for 9 December 2021 be adjourned to 13 January 2022 as he had not received the documents he had requested, and he needed more time to present and prepare his case. The applicant’s letter of 6 December 2021 suggested that he had not, at the time he wrote it, received the AAT’s letter of 1 December 2021.

19.It was apparent there were difficulties communicating with the applicant. At the directions (preliminary) hearing held on 9 December 2021, the applicant said that on 8 December 2021, he had received the AAT’s letter sent to him on 1 December 2021.

20.The intention was to conduct the directions hearing via video but this proved problematic and it proceeded via conference telephone. The Tribunal was satisfied this was adequate given the nature of what was discussed, essentially practical considerations.

21.In his letter of 26 November 2021, the applicant wrote that he wanted to submit a copy of the constitution of Kenya. The Tribunal downloaded a copy of this 211-page document and advised the applicant at the directions hearing that he did not need to submit this document but he should inform the Tribunal closer to the hearing date of the relevant pages/sections.

22.The Tribunal did not take any evidence directly addressing the applicant’s protection claims at the directions hearing. The Tribunal did however advise the applicant that the Tribunal would be considering his protection claim in relation to current times: that is, does he have a well-founded fear of being persecuted, or a real risk he would suffer significant harm, if he was removed from Australia and sent to Kenya now, and that this consideration would be made in relation to current times. This was to clarify that the Tribunal’s focus was not about the risk or chance of harm the applicant may have faced had he returned to Kenya in 2013 or thereabouts.

23.The Tribunal also advised the applicant that in making its decision, it would be relying on information in the departmental and AAT files, the applicant’s evidence at hearing and country information which the Tribunal clarified as being what could be found on the internet. The applicant said he had completed the FOI application form and sent it to the AAT.

24.The Tribunal advised the applicant that it intended to schedule the main hearing for 10 February 2022. The applicant said he expected to still be in [Prison 1] and would let the AAT know if he was released or moved before then.

25.The hearing anticipated for 10 February 2022 did not proceed as the applicant advised closer to that date that he would have a court hearing that day. The substantive hearing took place on 3 March 2022 via video. The Tribunal asked the applicant if there as anyone in the room with him and he said there was no-one there at the time.

26.For the record, the Tribunal explored the possibility of holding an in-person hearing. The AAT does not have the facilities for an in-person hearing when the applicant is detained in a maximum-security prison as was the case. The AAT has arranged in other cases for in-person AAT hearings to be held at the Federal Court building in Perth and in January 2022, the AAT registry made enquiries to this end with the Federal Court. The Federal Court suggested a date of 31 March 2022. Given that Western Australia (WA) borders were to be opened up on 3 March 2022 and COVID-19 would most likely have spread widely in the community by the end of March 2022, the Tribunal declined this offer as there may not have been enough staff available to support an in-person hearing of this kind, which would involve prison staff required to transport the applicant; and Federal Court and Tribunal registry staff to facilitate the hearing on the day. As it transpired, from 8 March 2022, a significant majority of AAT members and staff were working from home. In addition, the applicant advised on 24 March 2022 that he had been moved to [Prison 2]. An in-person hearing on 31 March 2022 would not have been practical for that reason as well. 

27.The applicant appeared before the Tribunal on 3 March 2022 via video from prison to give evidence and present arguments. The quality of the video was good. The Tribunal was satisfied that conducting the hearing via video was satisfactory. When asked about it, the applicant’s answer demonstrated that he was satisfied with the hearing being conducted by video: it’s alright. As previously noted, the applicant did not require an interpreter.

28.Prior to the hearing, the applicant submitted a nine-page handwritten statement. It was dated 22 February 2020 which appeared to be a mistake. The applicant confirmed at the hearing that it should have been dated 22 February 2022. In this submission he referred to the difficulty he has had in obtaining more evidence and bringing it together to substantiate his claims. He requested that evidence he had previously provided for the RRT review was taken into account in this review. This has been done.

29.The applicant also submitted country information comprising a 2020 Human Rights Report on Kenya produced by the United States Department of State and a September 2021 report concerning human rights in Kenya, produced by the Kenya National Commission on Human Rights.[4] The applicant also provided evidence of him having been assaulted in Perth in July 2019 and September 2020, and medical reports. He confirmed there were no other written submissions he had wanted to provide before the March 2022 hearing.

[4] The full title of the report is “Shadow Report of the Kenya National Commission on Human Rights on the Implementation of the African Charter on Human and People’s Rights and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.”

30.The applicant said he had not been allowed to bring documents with him into the room he was in for the video hearing. The Tribunal made due allowance for this during the hearing.

The hearing scheduled for 2 June 2022

31.After the March 2022 hearing, the Tribunal gave the applicant four weeks in which to make any post-hearing submissions. The usual timeframe for post-hearing submissions is two weeks. The additional time was given because of the applicant’s circumstances and that he had to mail his submissions to the AAT, rather than email or upload them.

32.As noted earlier, the applicant contacted the AAT on 24 March 2022. He advised that he had been moved from a Perth prison to [Prison 2], and had been in isolation which affected his ability to make his submissions by the due date. He asked for a two-week extension. He was given a three-week extension to allow for time it might take for mail to [arrive from Prison 2], in addition to other obstacles faced by the applicant in preparing and sending in his submissions. His post-hearing submission was received by the Tribunal on 13 April 2022.

33.The post-hearing submission included the following:

Before I deal with section 30, I would like the member to have a look at the whole of section 30 of the Kenyan criminal procedure code as I haven’t had a copy while preparing this submission because some of the documents were returned by prison officials to the sender as they did not relate to my pending charges and were not from legal representation which has made my work of obtaining and writing this submission extremely difficult.

34.The Tribunal was concerned by the reference to documents being returned to sender by prison officials. Both the Department and the AAT had sent documents to the applicant in relation to this review and there were no records of these being returned to sender.

35.The Tribunal invited the applicant to a third hearing, to be held on 2 June 2022 via MS Teams video, primarily to ask him about the documents which had been returned to sender. The applicant was still in prison at this this time. The Tribunal had also prepared other questions to put to the applicant.

36.During this third hearing the Tribunal became aware of background noise and movement some distance from the applicant. The Tribunal asked the applicant if he was in a private room. He said he was not. Section 429 requires that the hearing of an application for review by the Tribunal in a protection matter must be in private. Given that the applicant was in a place where he might be overheard, the Tribunal informed him that what had occurred to that point was not a hearing but a contact with him. It should be noted that the applicant was in a different prison to where he was when the other hearings occurred. The Tribunal was not aware of any issues with privacy during the earlier hearings.

37.As noted, the Tribunal had arranged the ‘hearing’ to clarify what document or documents had been returned to sender. That goal was achieved although other questions the Tribunal had prepared, bar one, were not put to the applicant. The video contact concluded after the Tribunal realised the applicant was not in a private location.

38.In the following paragraphs the Tribunal sets out in more detail what transpired during that contact.

39.The Tribunal asked the applicant what documents he was referring to when he wrote they were returned to sender. He said that he had asked his sister to send him a copy of the Kenyan CP Code and it was this that was returned to sender.

40.The applicant confirmed that he had received the documents which he had requested under FOI legislation. These included the FCC judgements which had detailed discussion of the relevant sections of the Kenyan CP code.

41.At the October 2022 hearing the Tribunal enquired about the reference the applicant had made to section 30 in his April 2022 written submission. The applicant said that he was just drawing the Tribunal’s attention to it.

42.The Tribunal was satisfied that although writing his submission was made harder because the Kenyan CP code was returned to his sister, the applicant had access to the information he needed for his written submission because the sections of interest in the Kenyan CP were discussed in detail in the FCC judgements. He also had the opportunity to make oral submissions regarding the Kenyan CP code, if he so wished, at the October and November 2022 hearings.

43.At the June 2022 contact, before becoming aware of the privacy issue, the Tribunal referred the applicant to evidence he had given in the March 2022 hearing. He had said in the previous hearing that in 2007 he went home from [School 1]. At the time, given the context, the Tribunal understood him to mean that he was a boarder at the school although this was not explicitly stated. During the contact of 2 June 2022, the Tribunal asked the applicant if he had been a boarder at the school and the applicant said that was correct. This was a minor point of clarification that has no bearing on the Tribunal’s decision.

44.The Tribunal also enquired about the progress of the applicant’s criminal case. He said the charges for which he had recently attended court had been dismissed and he expected to be released in three months. This has no bearing on the Tribunal’s decision.

Hearings held on 6 October 2022 and 4 November 2022

45.A further hearing was listed for 6 October 2022. This date was chosen as it was after the applicant was due to be released from prison, and therefore less chance of the type of problem that was encountered in June 2022.

1. applicant prepare for the hearing:

   Please be prepared to answer questions at the hearing on country information, including current information about [Gang 1], and whether or not Kenyan authorities are pursuing former gang members from the period 2007 to 2013. Questions will not be limited to these topics.

47.During the period the applicant was in prison, he was the holder of a Subclass 050 bridging visa. This was cancelled at the end of his prison sentence. He was then detained in [Detention Centre 1].  

48.The applicant had lodged an application for review with the AAT of the decision to cancel his bridging visa (BV). The BV cancellation review was constituted to, and heard by, a different member to the member conducting this review of the protection decision. The decision to cancel the bridging visa was affirmed.  

49.The Tribunal was advised of this and that the applicant was concerned that the cancellation of his bridging visa would impact the review of his protection case.

50.At the hearing in October 2022, the Tribunal asked the applicant why he was concerned that the bridging visa cancellation review would impact his protection case. He said that he had hoped he would be released from prison and be living with his sister in [Town 1] where he could prepare for the October 2022 protection hearing. But because he had to prepare for the bridging visa cancellation hearing, he did not have time to prepare for this review hearing. Also, he learned that his mother was in Australia and he wanted to ask her to be a witness for him. She was staying with his sister but at that time (on 6 October 2022), he had been unable to contact her from the detention centre.

51.The applicant also said he had been putting together a submission for the Tribunal and needed more time to complete it. The applicant confirmed after the hearing that his mother agreed to be a witness for him. The November 2022 hearing was duly scheduled. Prior to that hearing, the applicant lodged a written submission, comprising a written statement and country information.

52.The main purpose of the November 2022 hearing was to take evidence from the applicant’s mother. She gave her evidence by phone from [Town 2] in WA. The applicant attended by video from [Detention Centre 1] and gave evidence and presented argument as he had at the October 2022 hearing. The Tribunal was assisted by an accredited interpreter in the Kiswahili language for this final hearing as the applicant’s mother required an interpreter. 

Relevant law

53.The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant 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.

Refugee criterion

54.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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

55.Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

56.Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

57.There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

58.Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

59.Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

60.Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

61.Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

62.In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

63.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.

64.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.

65.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.

66.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).

67.Even if an applicant satisfies Article 1A(2) of the Convention definition, he or she may be excluded from protection by Article 1F, which states that the provisions of the Convention shall not apply to any person with respect to whom there are serious reasons for considering that they have committed certain specified kinds of crime. However the Migration and Refugee Division of the AAT, considering an application for review of a decision to refuse or cancel a Protection visa under Part 7 of the Act, has no power to consider Article 1F issues: ss 411(1)(c) and (d), Daher v MIEA (1997) 77 FCR 107.

68.Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

69.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 a protection 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 the applicant 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’).

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

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

Mandatory considerations

72.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

73.The issue in this case is whether the applicant meets the criteria to engage Australia’s protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Background, protection claims and the delegate’s decision

74.According to departmental records the applicant is a citizen of Kenya who was born on [date]. This was accepted by the delegate and given there is no evidence to the contrary, the Tribunal accepts that the applicant is a citizen of Kenya and Kenya is his country of nationality and receiving country.

75.The delegate found that the applicant did not have the right to enter and reside in a third country, a consideration relevant to s.36(3) of the Act.

76.However, 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 country for a period of six months, with the possibility of an extension. The country information indicates that the applicant, as a citizen of Kenya, could enter and reside, and would be eligible for work, in any of the other EAC countries. The Tribunal’s decision – that Australia does not owe protection obligations to the applicant - means it does not have to consider the application of s.36(3) any further.

77.The applicant was granted a [Student] visa on 23 October 2012. At that time, he was living in Kenya. He arrived in Australia [in] January 2013.

78.On 23 August 2013, the applicant advised the Department that the person who had sponsored him to come to Australia, [Sister A], variously described as his sister or a family friend had withdrawn her financial support.

79.The applicant attended an interview with the Department on 28 August 2013. Departmental records include a notification of decision to cancel a [Student] visa. This notice was dated 28 August 2013 and signed by the applicant and an officer from the Department.

80.According to the delegate’s decision, the applicant then applied for a bridging visa. During the interview on 28 August 2013, the applicant said he wanted to return to Kenya but lacked the funds to do so. He was asked to provide information about his financial situation to enable a referral to the International Organisation for Migration. The applicant did not provide that information. According to the delegate, there were then repeated attempts to contact the applicant, but he did not engage with the Department.

81.[In] September 2013, the applicant was detained by the WA Police for public drinking and refusing to provide personal details. The police contacted the Department to ascertain the applicant’s immigration status which was, at the time, unlawful. He was subsequently detained in immigration detention on 13 September 2013. He lodged an application for a protection visa on 24 September 2013.

82.In his protection visa application form, the applicant made the following claims:

• He belonged to the Luo ethnic group and his religion was Catholic. He attended [School 1] in Kenya between [specified years] and obtained a high school diploma.

  • He fears harm from the community, from the terror gang he used to be part of and from the government.

• He was one of a group of unemployed youth who were recruited to work for one of the politicians in western Kenya, Busia and Bungoma. They were told they were to provide security which was not true. They were trained and then sent to Busia and Bungoma for a killing mission.

• He was caused to do harm to innocent people, torched their houses against his will, which has affected him psychologically and continues to haunt him. He was harmed, with [scars].

• He left the gang which was against the oath they were forced to take and he will be executed by the gang leader. As he left the gang, they fear he might leak information about their operations which means he is a liability to the group and that means he will be killed by the terror gang.

• His community will not welcome him back as most families were left without homes, and the anger is still there; any gang member found will be beaten to death and the identity of most of the gang members is known. The community is also after him as families were left hurt and displaced, the wound has never healed, and any gang member found will be torched and beaten to death

• The government will not protect him from the gang and will not give him a fair trial. The government will shoot to kill him, as that was the order of the Inspector-General of Police and the Interior Minister.

83.According to his protection visa application form, the applicant left Kenya via the main airport - Jomo Kenyatta International Airport in Nairobi - in January 2013. In the form he wrote N/A to the following questions:

• Please give details of any crime or offence that you have been convicted of

• Please give details of any criminal investigation you are the subject of that you are aware of

• Please give details of any criminal charges currently pending against you

• Involvement in crimes against humanity (including war crimes and genocide)

• Involvement in serious crimes

84.The applicant was interviewed by a delegate on 23 October 2013 and gave the following information:

Personal information

• He was born in Busia.

• His father died in June 2005, from [a medical condition]

• His mother, [Mother A], was in hospital in Kenya. She has been in and out hospital as she has [a medical condition]. He said he last spoke to his mother about three months previously. His spoke to his brother, [Brother A], in August 2013 who said his mother had recently been in hospital.  According to the delegate, based on departmental records, the applicant’s mother was in Australia between [April] 2013 and [July] 2013, and returned to Australia [in] August 2013. He said his mother worked in [a specified industry].

• His brother [Brother B] is living in [Town 3]. He works as [an occupation 1]. His [Sister B], who was single, was hiding in [Country 1]. She went there around June 2013. His brother [Brother A], [an occupation 2], was also in [Country 1]. He went there at the same time as his sister.

• He had a disagreement with his sponsor, [Sister A], about her no longer paying his school fees, and she stopped talking to him. She was a family friend, not his sister. He thought her father and his father were at school together and that was how they came to know each other. She sponsored him to come to Australia to study, as goodwill. She thought he had potential to study.

  ·   He said the employment rate in Kenya was low and a person had to have a qualification and he did not have one beyond his high school diploma which was not enough. He did not continue his education as he had no money to go to college or university in Kenya. His brother took a government loan to get his [occupation 2] qualification, but the applicant could not access that as he was not qualified to do so.

  Joining the gang

• After he finished school in 2007, he did not have work. He joined a gang called [Gang 1]. He and others were told they would be providing security to a politician during a campaign, but he found out that was not true. They were never told the name of the politician. He came to know they were sponsored by a politician.

• At the time they were recruited, they did not know what was expected of them. He did not think they would be expected to rape or kill or extort.

• About 120 youths were recruited from his area in 2007 including some of his friends. None of his family members were involved in the gang. His family knew that he was in the gang, as did his friends who were already in the gang. The senior gang members knew where each of the gang members lived.

• He received military-style training, but they were not military. They were taught how to fight, how to defend themselves, how to attack. They were taught to use machetes, arrows and how to shoot. The training was continuous. They trained on a daily basis, including physical fitness.

• After the 2007 general election, they were sent to different villages, to attack them, burn houses and steal from the people. The gang operated in western Kenya, in Busia and Bungoma, which was where they would carry out the attacks. He was continuously involved in attacks on villages. They were sent to dozens of villages and attacked them whenever the gang felt they needed to get money. He could not say how many attacks he was involved in, there were too many.

• They joined the gang because they were paid, about 10,000 Kenyan shillings, after doing attacks. If they did not undertake attacks, they did not get paid.

• There was a [Leader A] who would call them to meetings, maybe twice or three times a month. The applicant was in charge of the group of 120 people in his area and reported to [Leader A]. [Leader A] gave out the orders. The applicant would meet with his group every week to tell them what they were expected to do and how to protect themselves. They would discuss their pay.

• At the meetings they would discuss further attacks, how to protect themselves, and how to keep their identities hidden from the community. Sometimes they would drink and party. It was not like a board meeting.

• He gave out orders to his 120 people, dividing them into smaller groups to carry out attacks. His group were involved in rape and killing as well as burning and stealing people’s property, although he himself had not personally been involved in rape or killing; he had not personally done those things. He participated as a leader but he did not rape or kill anyone. He did steal and burn houses. He pretended he participated like the others for five years.

  Leaving Kenya and what happened next

• From 2007 to 2013, he was in the gang. He could not leave it because they would have killed him straightaway. When [Sister A] offered to sponsor him to come to Australia, he left the gang as they could not find him in Australia.

• The applicant said that he stopped his gang activities when he made his visa application to come to Australia. [His student visa was granted on 23 October 2012.]

• He was asked about relocating to other parts of Kenya. He said he could not as the government had waged war against any criminal member and there was a special squad introduced. He said that names were out there and this squad has been looking for gang members since the post-election violence of 2008 and they were looking for the terrorist gangs, all over Kenya. He said he was certain his name was on the list of gang members being looked for.

• He was issued with a passport and was able to leave Kenya without any problems. He did not know how he was able to be issued with a passport in [2012], if his name was on the list. He said that the system in Kenya was corrupt and they would do anything to bring you down if wanted by police, but he was lucky and they were sleeping. He referred to the Westgate Mall incident and that the authorities were more vigilant after that.[5]

  [5] On 21 September 2013, four masked gunmen attached the Westgate Shopping Mall in Nairobi, Kenya, killing at least 67 people. The attackers were from the al-Shabab terrorist group. 

• The applicant stopped his studies in Australia in 2013 as he could not afford his school fees; [Sister A] had stopped paying for them. She told him she had a baby and it was hard for her to continue supporting the applicant. [Sister A] was married and he thought her husband worked in [an industry].

• The applicant was asked about an interview he had with departmental officers on 28 August 2013 in relation to him returning to Kenya after he requested his student visa be cancelled. He was asked why he did not mention then about having a fear of returning to Kenya. The applicant said that he did inform the officers at that interview that his life would be in danger if he returned back home but they did not advise him of another visa and he did not know what to do at that time. He said that he was told about protection visas when he was in detention. Before then, he thought that protection visas applied if there was war in a person’s home country.

• His brother and sister moved to [Country 1] because the gang came looking for him. They wanted to know why he had not been at meetings. They torched the family homestead where his brother, mother and sister lived. This was in May 2013. [Brother A] went to [Country 1] in May or June 2013 and he kept in touch with [Brother A] about his mother.

• He said his friends in Kenya were willing to write a letter to show that they were in hiding and in wheelchairs.

• He was asked why he could not return to Kenya. He said that he was under oath and would be executed by the gang if he broke it; and that the government had a war against the gangs. He said that some of his friends were tortured and ended up paralysed, in a wheelchair. He said most of his friends moved away from the gang and were caught by the government. And where he used to call home, is no longer there as houses were torched and his brothers were forced to flee to [Country 1].

• When asked how he knew friends had been harmed and were in wheelchairs, he said his brother told him and he spoke to a couple of them, who told him the situation was bad and he should not come back.

85.The delegate was not satisfied that the applicant was a gang member. She did not find him to be credible and was of the view he had embellished and fabricated a story to strengthen his refugee claims. She was not satisfied that he was being targeted in Kenya as a member of [Gang 1] or for any other reason.

Evidence given to the Refugee Review Tribunal

86.This Tribunal listened to the recording of the RRT hearing held on 4 April 2014. The applicant said that he came here to Australia to study and he feared returning to Kenya because he was part of a gang.

87.Prior to the hearing, the applicant submitted two affidavits, one from his mother, [Mother A], received by the Department on 4 February 2014. She listed her [number of] children [as including Brother A], [Brother B], [the applicant], [Sister B] and [Sibling A]. She wrote that their father passed away in 2005 and she was now a widow, reliant on farming for income.

88.[Mother A] wrote that the applicant was coerced through peer pressure into joining [Gang 1]. She also wrote that the loss of his father and her inability to provide for the applicant and his siblings was part of the reason he joined the gang.

89.[Mother A] wrote that she sought to meet with family members including the applicant’s uncles, aunts, neighbours, clergy and former teachers to encourage him to leave the gang. The applicant decided to do that.

90.[Mother A] wrote that him leaving the gang was not well-received by other gang members and they then sought to have him and his family punished. She believed that if he returns home, he was bound to lose his life. [Mother A] asked that the applicant be given asylum in Australia.

91.The second affidavit, dated 5 December 2013, was written by the applicant’s brother, [Brother A]. He stated that the applicant had been counselled by uncles and close relatives amongst others, and had heeded their advice to denounce [Gang 1].

92.[Brother A] referred to the gang’s brutality and stated that it had planned, and indeed proceeded, to execute a vicious and inhumane attack on the people of Busia on [a specified day], and [number] people lost their lives.

93.[Brother A] wrote that the applicant did not take part in these attacks following his decision to shun and denounce the group, as a result of which gang members sent out warnings and vowed to punish and reprove the applicant, for his perceived betrayal.

94.[Brother A] wrote that as the applicant had left Kenya, the gang members were unable to track him down and harm him, and give effect to their planned murder and extermination of him.

95.[Brother A] wrote that the gang members have continued to target the family members and have vowed to kill any of them, because of the applicant’s defiance.

96.[Brother A] wrote that as a result of these threats their house was razed and torched in May 2013 by members of the gang, which demonstrated the danger they posed to [Brother A] and family members; and that because of the arson attack, he fled to [Country 1].

97.[Brother A] also wrote that they reported all the threats to [a named] Police Station to no avail, and also unsuccessfully sought the assistance and protection of the Chief of Police.

98.[Brother A] wrote that the police continued to disregard the numerous requests for protection from, and investigations into, the activities of the gang. He wrote that they police gave them (the gang) details of the reports the family made to the police.

99.[Brother A] wrote that police and local authorities have refused to register and log their complaints which has led him to believe either the police are afraid of the gang and its members, or that the police are colluding with the gang.

100.[Brother A] also wrote that the police have adopted a shoot to kill policy against perceived criminals and that this exposes the family and the applicant to imminent danger. Because of this the family members were compelled to leave Kenya and go into hiding.

101.[Brother A] wrote that some of the gang members were arrested and despite the obvious risks they posed, they continue to roam about with no prosecution initiated against them.

102.[Brother A] also stated that he and his immediate family members were in grave and imminent danger and requested protection visas for his siblings.

103.The applicant also submitted a letter from a woman called [Nurse A] who identified herself as being a nurse at [Hospital 1], Kenya. The letter was not dated. It was received by the RRT on 23 December 2013 and was addressed to Australia’s Immigration Department. [Nurse A] stated that she was taking care of one of the gang members from [Gang 1] who had sustained very serious injuries in the recent clashes in Bungoma and was now a paraplegic. The letter stated the gang member was “harassed and tortured by the police hence was brought to the [hospital] to be guarded from further attacks”.

104.The applicant submitted copies of two documents, each headed “Police Order to Arrest” to the RRT. One was dated [in] May 2013 and the other, [in] December 2013. One refers to raids done in May, but does not specify a year.

105.The applicant made the following claims during the RRT hearing:

Personal information

·     He said his mother was alive but his father had passed away in 2005. She had been in Perth which he did not know until the Department told him. He contacted her and she came to see him in immigration detention. She told him after he left Kenya, that his sister [Sister A] was his step-sister and he had other relatives he had not known about in Kenya.

·     The gang would subject him to torture and harm him.

·     In the past they went to his homestead, the family home, looking for him and could not find him and so they destroyed everything that they had. His brothers and sisters had to flee their homestead.

·     His brother in Perth is called [Brother B]. They usually talked via Facebook. He could not have his mobile phone in detention which made contact hard. Before going into detention, they met occasionally.

·     His [Brother A] had been hiding in [Country 1] but the applicant did not know if he was still there or had returned to Kenya. They last spoke in December 2013 when [Brother A] was in [Country 1], having fled from gang members looking for the applicant.

·     His sister also left Kenya because of the attacks by the gang and went to [Country 1]. She then went to Nairobi in Kenya.

·     The applicant said the brother was at home when the attack happened but his sister was not. She was frightened as the gang the applicant had been part of brutally attacked people; they rape, they kill, they destroy things. If she had been home, she would have been attacked. The gang would not have cared whoever was there, they would have attacked. The gang believed he had betrayed them and sold them out.

·     He said the home was destroyed in May or June 2013. He said his mother told him in November 2013 that their home was destroyed and they could not go back, even her. She told him she was frightened to return but she did that anyway. It was then that he found out his home had been destroyed and his brother and sister had fled.

·     She did not tell him at that time what she planned to do when she returned to Kenya. He said the last time he spoke to his mother was about two months previously. [Two months before the RRT hearing was February 2014].

·     About [Sister A] who lived in Perth, the applicant said she told him she would sponsor him to study in Perth as he had potential. She then had a [baby] and could afford to pay for him and could not continue to sponsor him. That was distressing for him and that was when he went to Immigration Department to inform them of that development.

·     He said he did not know at that time that she was his step-sister. He only learnt that when his mother told him. In his application for a student visa he referred to her as his sister. He said that was what he was directed to do by the agent in Kenya. He said they did not have much communication during the years he was in the gang.

·     At the time [Brother A] was [an occupation 2]. He was unmarried and was living at home at the time. The applicant’s other [Sister B] was at boarding school in Kenya. Her fees were paid in part by his sister.

·     [Sister A] sponsored his brother [Brother B] to come to Australia. The applicant did not know what happened between them and when he speaks to [Brother B], they do not talk about [Sister A]. When his mother comes to Australia, he was told she stayed with [Sister A]. He said that Immigration told him she came to Australia twice in 2013.

·     He said in his family, they did not communicate much. Since he has been in detention, [Sister A] and [Brother B] have not visited him, only his mother has.

·     The applicant was asked why he did not study further in Kenya and said his mother could not afford it and he did not get high enough scores for a government education loan. He was asked why his [Sister A] did not pay for him to get educated in Kenya. He said he and his sister [Sister A] did not talk much to each other and she has not visited him in detention. If she had supported him in Kenya with his school fees, he would not have joined the gang.

·     He was asked why [Sister A] paid for him to come to Australia but did not pay for him to study in Kenya. He said he did not know how she thinks. He said he thought it was a brilliant idea for her to pay for him to come here and then she withdrew. He did not expect it.

The gang

·     He joined the gang in 2007 after high school because of the lack of employment opportunities in Kenya and peer pressure. He was unemployed and struggling. His mother was struggling with her small business. They were poor. In Kenya you had to know someone to get any form of employment. He did not know it was a gang at the time. He thought it was to provide security to a politician in Kenya, and to mobilise the youths for rallies and political activities in Kenya.

·     After they were told they were supposed to provide security for a politician, they were taken to [a specified location]. They were given training for about six weeks, taught how to use machetes, physical training, taught the skills of being a spy, how to spy. The training went on all day.  

·     He was asked if he was trained how to kill people. He said they were trained to hit, to defend themselves, to smash people. He said people [during attacks] killed because they were intoxicated. He said they were only trained to defend themselves and how to attack to get into villages, how to use machetes and instil fear in people.

·     He said that some of the boys were like him from high school and had never used a machete to hit and fight. They had only used a machete to cut meat and for domestic tasks, not to harm somebody. That was why they needed the training with a machete, to use them in attacks.

·     As the election period was nearing, gang members were given the duty of mobilising around the political rallies of certain politicians, to distract and cause chaos there. The gang were employed in other activities like providing water and electricity illegally. Some of the women acted like spies and prostitutes and would target businessmen. The women would give the gang information about the businessmen so the gang could rob the businessman of his belongings or harm him. The women in the gang made illicit alcoholic brews to make money.

·     They would send the women and young boys to traffic marijuana across the border. He was not actively involved in smuggling but was part of it, in that he knew that the group was supposed to get marijuana from a certain point and bring it to another point. He did not do the actual smuggling himself, but he had all the information about that.

·     Before they attacked the village, they would have sent spies and monitored movement there, every aspect, the entries and exits. They would check the location of police posts, and work out how long it would be for police to arrive. They would send leaflets to a village which said that village would be attacked on a particular day but they would go to another village and attack that. It was brutal.

·     He recalled a particular attack where they called to an ex-military officer to get him out of where he was by telling him his farm was being robbed. When he came out, they hit him near his eyes. He was seriously wounded and they warned him if he tried anything, they would kill him. They took away all his belongings. It was really brutal and he, the applicant, was part of those activities. 

·     The applicant said he became a leader because he was the only one there who had reached a certain level of education. He knew how to mobilise people and how to talk to people and he could resolve conflict. He would research business people and their movements, and select rich and powerful men to be attacked. Him being promoted to be a leader was a gradual thing.

·     Between him and [Leader A] [in the hierarchy] there were three guys whose roles were to organise training, meetings and recruit new members. They also checked on the applicant to see if he was up to the task.

·     His specific duties were providing illegal substances to the community and his role was to collect fees, and he was supposed to be the front man at an attack and be an example to the others. He was supposed to lead by example and collect fees they generated from illegal services, like providing water, and from businesses.

·     He explained what he meant by leading by example. He would knock on the door of a place and tell man his place was being raided. He would attack him. The guys were brutal. Th applicant was asked if he would physically harm someone else and he answered, “Yes”; that sometimes he would hit the person. Then the gang members would get involved and sometimes kill him, chop off their eyes.

·     It was put to the applicant that he was part of a gang that brutally assaults and harms other people, rapes and assaults women, and kills and assaults men, other people. And that he was saying that he was part of the gang and engaged in those activities himself, actually physically harming others. The applicant agreed and said that he now feels sorry for what he did. But at the time it was because of the circumstances that he was in and they were given drugs and were intoxicated. He said that he had lately been going for counselling.

·     It was put to him that he told the delegate that he was not involved in actually harming anybody. He said he told the delegate that he never raped or killed anybody but he would smash the guy.

·     The applicant was asked how he got to be leader if he did not participate in activities. He said he did participate. He would smash people. He was the person most trusted by [Leader A] as he would hand over the proceeds from activities and was very active in the group. He supervised guys, and coordinated how drugs were trafficked from Uganda to Kenya. He sees now it was not the nicest thing to do but at the time it gave him some position in the group.

·     He was asked if he was actively involved in harming others, going into villages, drawing out people, harming innocent people. He said he was sorry about what he had done and it still haunted him.

·     It was put to him that the activities he claimed were undertaken by the gang, were included in the articles about gangs that he had sent to the RRT. He said that every aspect he told her was true. He said his brothers could confirm he was part of the gang and he had given details of how the gangs operated.

·     The applicant said he was in Australia by May 2013 and he had stopped being a member of the gang in October 2012. From then, he had shunned the gang members and their activities. He stopped being involved in illegal activities like selling booze and trafficking in drugs.

·     He said that all the country information he gave her were true and he was very involved in the gang, occupied by it too much. He said that every day he woke up he was thinking about the operation of the gang. For the last three or four years was all about being involved with the gang.

Orders to arrest [6]

[6] During the RRT hearing, the documents were referred to as “warrants” and as “orders to arrest”.

·     The applicant claimed that the Kenyan police sent a warrant of arrest and if he went back to Kenya, he would be arrested. He would be killed or tortured, he would not get a fair trial.

·     The welfare officer in the detention centre helped him contact his mother who was in Kenya at the time, staying in Kisumu. When she went back to Busia to check the mail postal box, she found that two arrest warrants had been sent by the police for him, addressed to their postal address.

·     Regarding the police warrant dated May 2013, it referred to activities that took place in May 2013 but he was not in Kenya in May 2013. He said it was issued to him because before he left the country, there were some operations planned, including to burn a village. Before the attack happened, he knew it would happen.

·     He said he had already left the country but perhaps the police thought he was part of what happened in May 2013 and he was involved in the gang.

·     He was asked about the second warrant dated [in] December 2013, by which time the applicant had been out of Kenya for about 11 months. That warrant stated the charge was robbery with violence within Busia and Bugoma.

·     He was asked why two police orders to arrest were sent to his house by mail, sent together, to a post office address. He said he did not know as he had not been sent a police order to arrest before.

·     He referred to intelligence the police may have gathered and that he did not know who they had spoken to, and he did not know how these things work. He got the orders to arrest as his mother sent them to him. He thought they might help the RRT which was why he had forwarded them.

·     He said he was unsure when his house was burnt down but maybe in June or July. It was put to him that according to his brother’s affidavit, it happened in May 2013 during retaliations. He said that must have been it. 

·     It was put to him that he had provided country information which referred to general violence that occurred during May 2013 in that area. He said that maybe they thought they would visit his home and see what he had been up to.

·     It was put to him that the member did not accept that the police sent two warrants to a post office box in December 2013 (dated [in] May 2013 and [in] December 2013) for his mother to collect in January 2014.

·     He said that by that time he was in Australia, but police had intelligence. He said his friend was attacked and tortured and he does not know what his friend said to them.

·     The applicant said that when he was in Australia, he wanted to forget what had happened and concentrate on his new life in Australia, and do what he loved doing, like with computers and concentrate on his studies.

·     It was put to him that it was when his mother visited him in detention in November 2013, that she told him that their home had been destroyed and that his brother and sister had fled, and that she was frightened as well but was planning to return to Kenya. He said that confirmed to him what he had found out in maybe June or July 2013 – he was not certain – when he talked to his brother.

Leaving Kenya     

·     The applicant was asked how he got a passport and was able to leave the country if the Kenyan authorities were interested in him. He said that they were corrupt. He said Somalians who came to Kenya could get a Kenyan identification card, and the migration people in Kenya were corrupt. It was not like in Australia. And that was why he was able to get a passport. He said he got it by going to the migration passport control, applied for his passport and got it.

·     He said the police and the immigration, they were not like one body operating in unison. They operated differently and there was not a working relationship between them in Kenya.

·     He said when he left Kenya, he first went to stay in Nairobi for about three weeks at a friend of [Sister A’s]. He went to the airport, boarded a plane and that was it.

·     It was put to him that he belonged to a banned organisation that was extremely violent, the police were interested in him yet he managed to obtain a passport and leave the country freely.

·     He said that before then, the Kenyan government was not that serious or active about the gangs then but are now, because of the directive of the prime minister. They were not vigilant before. He said it was not in his mind that they were looking for him.

·     He was asked if his sister had not arranged for him to come to Australia, would he have remained in the gang. He said he had left it by then. He said he left Busia in October 2012 and went to stay with his cousin’s brother in Kisumu then he went to stay with [Sister A’s] friend in Nairobi, before he caught the flight to Australia.

·     He was asked why he did not go to another African state, like his brother and sister went to [Country 1]; why did he not go to [Country 1] or Tanzania, for his safety if he was so frightened of the gang. He said that by then they had already started the process of applying for his student visa and that was his focus. He knew if he was granted the visa, he would go to Australia and that was why he did not flee to [Country 1].

Harm feared 

·     The applicant was asked when he became fearful of the gang. He said that when his sponsor withdrew her support and he went to the Department and told them he could not pay for his school fees as he had no stable job and the sponsor had withdrawn support. He said he told them he wanted to cancel his visa and he could not go back to Kenya because he was wanted. He said the Department did not believe him and did not give him any advice on what he could do because of his situation. When he enquired about home, his brother told him everybody was looking for him because he was part of the gang. These people will surely kill him.

·     It was put to him that the letter from the nurse had little information. He said that the gang member did not want his name mentioned. He said he asked for a letter of support from the man who was now in a wheelchair, but the man said he could not do that. The man said he would assist the applicant with the nurse’s letter but no more than that. He would not provide a sworn statement.

·     He said he got the police warrants in January 2014. He said before then he knew he could not go home because of the gang but now it was the gang and the police. The police in Kenya were brutal. They do not care. They kill people. They shot some guy, an activist or something.

·     His friend was now in a wheelchair, paralysed and they were looking for the gang members and wanting to know the operation of the gang.

·     The applicant said that the Kenyan government has been looking for him as they want to know about the gang operated in Western Kenya. He said he thought they did not have any clue how they operated or maybe they had the slightest information but that was not enough.

·     He was asked when the government started looking for him. He said they had rough information about him and he thought they knew he was one of the leaders who coordinated activities there. He did not know the exact dates when they started to look for him.

·     The applicant then said in relation to his activities with the gang, people were being harmed and injured and people who left the group were being tortured. He said they were choices made, that was not the correct thing.

·     He was asked if he was frightened when he left the gang in October 2012. He said he was frightened then. He said he knew if got out of the gang and got to Australia, they would not get him, they would not find him. That was his past and he wanted to forget about his past.

·     It was put to him, if he was so frightened of the gang, why did he not go somewhere else to avoid them. He said he was coming to Australia. He said he discussed it with his mum and aunt. His mind was opened and he saw the activities were not the right thing to do.

·     He was asked why he did not come to Australia as soon as his visa was granted and he his sponsor arranged it for him and he could not be sure why a delay.

·     He was asked why, if he was so fearful of going back to Kenya, he did not seek protection when he arrived in Australia. He said he had his student visa and he did not know then what would happen two or three years later but unfortunately for him, his sponsor withdrew her sponsorship. He said he was helpless and could not pay for his school.

·     The applicant said he was in Kisumu staying with his cousin’s brother and then stayed in Nairobi before he came to Australia.   

·     He said that when he was in Kisumu, he was safe as no-one knew he had gone there but even when he was there, he mainly stayed in the house and when he went for shopping, they would do it at night. He felt insecure and did not know who was around and who might be watching who might see him. And in the mobile age, people communicate.

·     He said that he was sorry for what he did in the past but it was history and if he went back, he would be scared and would not live his life. Young men make choices with serious consequences in the future. If he went back to Kenya, that would be it for him, the end of his life.

106.The RRT member cautioned the applicant that the claims he made regarding his participation in the gang may indicate he had been involved in certain types of crimes against people, that might mean he may be excluded from getting a protection visa. The member said that was not a decision for her to make but if the claims he made at the hearing raised concerns related to Article 1F of the Convention, that was something the Department would consider. If so, those claims would also cause him to be excluded from complementary protection. The applicant said he understood that.

107.The RRT member told the applicant that she sent the arrest orders to be authenticated and that she doubted they were authentic. He said that all the documents were authentic and not fraudulent.

108.As noted earlier, the RRT member put it to the applicant during her hearing that she did not accept that police would send orders to arrest dated May 2013 and December 2013 in the mail in December 2013. The applicant had no explanation as to why police would mail the orders to arrest to the mailbox. The RRT member did not include this particular point – that she did not accept that the police would mail the orders to arrest to the applicant (and/or his family) – in the section of her decision where she set down various findings which included that she did not accept that the orders to arrest were genuine.

109.The Tribunal notes that the result of the examination of the documents to establish whether they were authentic was inconclusive; they might be genuine or they might not be.

110.In her decision, the RRT member wrote that she did not accept that the applicant was a credible witness. She did not accept that he was a member of, or associated with, [Gang 1] or any other gang in Kenya. She did not accept that he would he harmed by the gang, the community or the police if he returned to Kenya. She found his claimed fear of persecution was not well-founded.

Findings made by the FCC

111.The FCC decision of 16 August 2019 determined that grounds 4,5,8 and 9 were made out. It was noted that the two Police Arrest Orders ordered the arrest of the applicant in accordance with the power under s.30 of the Kenyan CP Code and that an obvious first inquiry by the RRT would have been to check whether such a power exists, particularly when a point of issue was whether the Police Arrest Orders were authentic. It was also observed that the RRT referred to the Police Arrest Orders as warrants (Ground 8).

112.The RRT did not accept that warrants for the applicant’s arrest would be issued some time after his departure from Kenya. The FCC found there was no evidentiary or logical or probative basis for that finding (Ground 9).

113.With relation to grounds 4 and 5, Lucev J wrote:

It is unnecessary to give detailed consideration to grounds 4 and 5. That is, because, in part, it follows from what the Court has said in relation to grounds 8 and 9 that the [RRT]’s reasoning in relation to the Police Arrest Orders is so flawed that it has not properly considered whether the applicant was a member of [Gang 1], and nor has it properly considered whether the applicant feared persecution because he was wanted by the Kenyan Police for the alleged crimes set out in the Police Arrest Orders. The Tribunal’s failure to properly consider whether the Police Arrest Orders might have been authentic, and the Tribunal’s erroneous assumption in relation to the time at which charges might be brought, overlap to a certain degree with the particulars in support of grounds 4 and 5, and do so to such an extent that both for the reasons given by the applicant in his submissions, and for the reasons given in relation to grounds 8 and 9, grounds 4 and 5 are made out, and establish jurisdictional error…

114.Lucev J noted that the RRT’s findings about the orders to arrest were a factor in the RRT making an adverse credibility finding against the applicant.

AAT findings and reasons

115.In determining whether or not the applicant meets the criteria for protection, the Tribunal has considered the evidence before it, including the applicant’s sworn evidence. It has considered whether or not the applicant’s evidence is credible.

116.The Tribunal recognises the difficulties for applicants when giving evidence at formal hearings and when engaged in the review process more generally, especially if they are unrepresented and in prison or immigration detention. The Tribunal has already set out steps taken in light of these factors. At the October 2022 hearing, the applicant said he felt he had been treated fairly in this review process.

117.Also of concern in this case is the time that has elapsed since the applicant left Kenya in 2013, his original interview which was also in 2013, the RRT hearing in 2014 and the substantive hearings before this Tribunal, in March, October and November 2022. The Tribunal acknowledges that it would not be reasonable to expect the applicant to recall all the details of events that happened between 2007 and 2012, the time period during which the applicant claimed to have been a gang member.

118.Further, the applicant submitted details of two assaults upon him while he was in Australia, in July 2019 and in September 2020. In his submission of 22 February 2022, he wrote that because of these events, he suffers from memory lapses and finds it hard to recall some past events, and he has relied heavily on AAT file 1319497, which is the file relevant to his RRT review. He also wrote that with time these events have caused him post traumatic amnesia (PTA). This is contrary to the discharge summary (see below) which stated that the applicant had been deemed “out of post traumatic amnesia”.

119.Publicly available information about PTA describes it as “a stage of recovery after a traumatic brain injury when the person has emerged from loss of consciousness or a coma.” It continues that the person may be disorientated, not fully aware and/or be experiencing problems with memory. PTA usually improves over time and is said to be resolved when the person is orientated and shows reliable memory for day to day.[7]

[7] Metro North Hospital and Health Service (2016) Post Traumatic Amnesia (PTA), accessed 5 July 2022 at

120.In relation to the first assault, the applicant was awarded compensation of $20,318 made up of $17,500 paid to him and $2,818 paid to [a named] Health Service. The compensation was paid in accordance with WA’s Criminal Injuries Compensation Act 2003. According to invoices issued by the Department of Health for [a named] Hospital, the applicant attended as an outpatient between [days in] July and [August] 2019. 

121.The applicant claimed that following the second assault, he was in a coma for three days. According to a discharge summary from [the named] Hospital, the applicant was admitted on [a day in] September 2020 and released [days later in] September 2020. The principal diagnosis was contusion of the brain. The applicant also suffered from fractured nasal bones and reduced visual acuity, with arterial stenosis being a complication.

122.The discharge summary states as follows:

386.[Mother A] did say in relation to the land where the family home once stood, ‘other neighbours come but not in a good way’.

387.The Tribunal accepts that the applicant’s past behaviour has affected how people in the Busia community view him and his family and that would make living in Busia difficult for them. In addition, what used to be the family home was destroyed in 2013.

388.The Tribunal had regard to CSO15.[34]  This was an appeal against a decision made about a protection visa application. One of the grounds for the appeal involved “consideration of the place to which a person is likely to return, or to be returned, in her or his country of nationality.” Paragraph 45 states (in part):

The decision-maker must assess, on the material before her or him, the place or places to which an individual is likely to return. The first step of the decision-maker’s assessment is to make findings about, at least, one of those places.

[34] CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14 (7 February 2018)

389.The Tribunal finds it unlikely that the applicant would return to live in Busia because of antipathy, even hostility towards him; the family home was burnt down; and his immediate family no longer live there. The Tribunal is satisfied that the applicant will, on return to Kenya, most likely live in Kisumu and not Busia for the following reasons.

390.The applicant said his mother left Busia in about 2013. According to her evidence given at the November 2022 hearing, she moved from Busia to Kisumu in about 2011. The Tribunal is not concerned about this discrepancy, given the time that has passed since 2011 and 2013.

391.Kisumu is about 110 kilometres from Busia. The town of Busia has a population of about 51,000. The population of Kisumu, Kenya’s third largest city, is over 600,000. The applicant has links to Kisumu as his mother and aunt live there. He told the RRT that after he left Busia in October 2012, before he came to Australia, he stayed with his cousin’s brother in Kisumu. He told the RRT he was safe in Kisumu as no-one knew him there, although he felt insecure.

392.When the Tribunal asked the applicant about living in Kisumu, the applicant claimed that maybe relatives of gang members were living in different parts of Kenya and that was why he could not live in other parts of Kenya. The inference was that Kisumu would not be safe for him for this reason. For reasons already set out, the Tribunal does not accept that the applicant is at risk of serious or significant harm from gang members if he was to return to Kenya.

393.At the October 2022 hearing, the Tribunal also asked the applicant if he could live in another part of Kenya, such as Mombasa.

394.The applicant said that he could not relocate to any part of Kenya because his life before he left was in the western region of Kenya. He said that because of the tribal divisions in Kenya, he will not be accepted in other parts of Kenya, and he would not feel comfortable living in another part of Kenya.

395.The applicant recorded on his application form for a protection visa that he is from the Luo tribe. There are numerous references to Kisumu locals being members of the Luo tribe. The applicant told the Tribunal that Kisumu is in western Kenya. Therefore the Tribunal is satisfied that any concerns related to him being a member of the Luo tribe and coming from western Kenya do not apply in relation to Kisumu as it is also in western Kenya and many member of the Luo tribe live there. 

396.Given that is where his mother now lives and that the family home in Busia was destroyed in 2013, the Tribunal is satisfied that if the applicant is returned to Kenya, he will most likely go to Kisumu. He said at the October 2022 hearing that his mother has been supportive of him since he came to Australia.

397.The Tribunal is satisfied on the evidence before it that there is neither a real chance nor a real risk the applicant would face serious or significant harm at the hands of the community in Kisumu.

Conclusion regarding the claims based on being a gang member

398.In light of the foregoing, the Tribunal is satisfied that the applicant will not be targeted because of his membership of a particular social group as a former member of [Gang 1], should he return to Kenya now or in the foreseeable future. It finds therefore that he does not have a well-founded fear of persecution based on his membership of the particular social groups of former gang members and former members of [Gang 1].

399.The Tribunal is satisfied that the applicant does not face a real chance of significant harm when his claims related to being a former gang member are considered under the complementary protection provisions, for the same reasons just set out in relation to the refugee provisions.

400.In coming to these conclusions, the Tribunal has considered the applicant’s claims in relation to being a former gang member individually and cumulatively, and is satisfied that he does not meet the criteria to be owed protection under the refugee or complementary protection provisions.

Other claims

Data breach

401.During the March 2022 hearing, the applicant said that he feared returning to Kenya because his details were made publicly available when there was a data breach.

402.The reference to a data breach concerned an incident in February 2014 whereby the-then Department of Immigration and Border Protection (DIBP) accidentally published personal details of over 9,000 people who were in immigration detention at that time. DIBP had published a report which included an embedded spreadsheet containing the personal details. The spreadsheet was accessible from DIBP’s website for eight days, until a journalist notified DIBP of the error.[35]

[35] Jenkins, S. (2021) Home Affairs ordered to pay asylum seekers over data breach, accessed 2 November 2021 at

403.According to an article that first appeared in the November 2021 edition of the Privacy Law Bulletin, the information was available on the Department's website for 8 days and subsequently available on an internet archive site for a total of 16 days.[36]

[36] Blyth, T. et al (2021) A historical review of compensation for breach of the Privacy Act in Australia, accessible at 

404.The media outlet, Guardian Australia, obtained information under freedom of information laws, according to which, during the period the document was publicly available, it was downloaded in 16 countries outside Australia. Kenya was not one of those countries.[37] The document was not downloaded in any African country apart from Egypt which spans both Africa and Asia. Egypt is not a member of the East Africa Community, of which Kenya and nearby countries are members.

[37] The Guardian (2016) Asylum data breach file – the full list of countries from which it was accessed, accessible at

405.Even if Kenyan authorities were aware that the applicant was in Australia’s immigration detention system in February 2014, the information they would have had access to was limited, comprising name, nationality, location and arrival date.[38]

[38] The Guardian (2014) Immigration Department data lapse reveals asylum seekers' personal details, accessible at 

406.At the October 2022 hearing, the Tribunal asked the applicant if anything had happened that caused him to think he had been affected by the data breach. He said he did not know the extent of it and did not know. The Tribunal advised the applicant that based on reports, the information was on the Department's website for eight days and subsequently available on an internet archive site for a total of 16 days, and that it was not accessed from Kenya or another African country, apart from Egypt.

407.The Tribunal put it to the applicant that there was nothing to suggest that the data breach caused a problem for him unless he was aware of something. The applicant said that there was nothing he knew about it.

408.As the data was not accessed from Kenya or another EAC country, the Tribunal is nt satisfied that the Kenyan authorities were aware from the data breach that the applicant was being held in immigration detention in Australia in February 2014. Even if they were aware, they might reasonably assume that the applicant breached Australian visa conditions, such as overstaying his visa, rather than assume that he had sought asylum in Australia. There is no evidence that breaching visa conditions in Australia or seeking asylum in Australia would contribute to, or give rise to, a real chance of serious harm or a real risk of significant harm, if the applicant was to return to Kenya now or in the foreseeable future.

409.The Tribunal is satisfied that the applicant will not face a real chance or real risk of suffering serious or significant harm if he returns to Kenya because of the data breach.

COVID-19 and ability to subsist

410.The applicant did not directly raise his ability to subsist should he return to Kenya. He mentioned COVID-19 in the context of police brutality during periods of curfew in 2020 and 2021. However, the Tribunal will briefly address these issues, as they are pertinent, under the complementary protection provisions.

411.With regard to COVID-19, the Tribunal included the following information in the country information section of this Statement. It comes from a Ministry of Health update made on 27 June 2022.

There are no such restrictions in place currently. Kenya’s Ministry of Health issued a COVID-19 vaccination program daily situation report on 27 June 2022. This stated that Kenya started to administer third doses as booster shots at the beginning of 2022 and that it plans to fully vaccinate 19 million adults (70% of the adult population) by the end of June 2022.[39]

[39] Ministry of Health (2022) KENYA COVID-19 VACCINATION PROGRAM- Daily Situation Report, accessed 28 June 2022 at

412.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 or where an economy is struggling. The Tribunal is satisfied that the complementary protection provisions are not engaged because of coronavirus in Kenya. In any event, it is open to the applicant to arrange to be vaccinated, if he is not already, before leaving Australia. 

413.The applicant told the delegate that the employment rate in Kenya was low. That interview took place in August 2013. The employment rate has improved since then.

414.The Kenyan unemployment rate was over 11% from at least 2013 to 2018; it was 11.9% in 2013.[40] It dropped to below 5% in 2019 and increased to 10.4% during the second quarter of 2020 calendar year because of COVID restrictions and was 7.2% then 5.4% in the following quarters.[41] It has been forecast to be between 7.3% and 7.6% from 1 July 2022 to 30 June 2023. The actual rate for the March 2021 quarter was 6.6%.[42] This indicates an improvement in the economy since the applicant was last in Kenya which is confirmed in a World Bank report published in December 2021 looking at Kenya’s post COVID-19 recovery.[43]

[40] Ibid (see the ‘stats’ tab)

[41] Trading Economics (2022) Kenya Unemployment Rate, accessed 5 July 2022 at

[42] Trading Economics (2022) Kenya Forecast, accessed 5 July 2022 at

[43] World Bank (2021) Post-COVID-19 Recovery and Economic Transformation Will Be Increasingly Service-Sector-Led, accessed 5 July 2021 at  

415.In any event, the Tribunal finds that the applicant has not provided any evidence that the economic circumstances to which he referred at the delegate’s interview, amount to systematic and discriminatory conduct with respect to him.

416.With regard to the pandemic, the Tribunal finds that whatever measures may be applicable to the population of Kenya generally in response to COVID-19 do not, in the absence of additional considerations, amount to 'systematic or discriminatory conduct' for the purposes of the refugee criteria or an intentional act or omission for the purposes of complementary protection provisions with respect to the applicant.

417.As noted earlier, the applicant has relatives in Kisumu, particularly his mother and his aunt who live together. He said that his mother has been supportive of him, which was apparent at the November 2022 hearing. [Mother A] said that she gets financial support from her children. She has travelled to Australia at least three times since 2013 and stayed here for some months with the support of the family.

418.The Tribunal also notes that in her 2013 affidavit, [Mother A] wrote that as part of her efforts to counsel the applicant the leave the gang, she sought to have a meeting with family members, including the applicant’s uncles, aunts, neighbours, clergy and former teachers, suggesting a strong extended support network. This is consistent with Kenya being viewed as a broadly collectivistic society.[44] The Tribunal is satisfied that the applicant would have family support if he was to return to Kenya.

[44] Ma, V & Schoeneman, T. (1997) Individualism versus collectivism: A comparison of Kenyan and American self-concepts, Basic and Applied Social Psychology, 19(2), 261–273

419.The applicant is an intelligent man in his [age range] with family support in Kenya. The Tribunal is satisfied that the applicant will be able to subsist in Kenya.

Mental health

420.At the October 2022 hearing the applicant said that his protection case had been ongoing for nine years now and in that period, his life has stopped. He said his mental health is affected by his ongoing detention. He said that he has been haunted because of the atrocities that occurred in Kenya and they continue to haunt him, and he feels guilty every time he speaks about this issue. That is why he wants to reform and do the right thing. The Tribunal formed the view over the five occasions it has spoken with the applicant, that his remorse for his involvement with the gang is genuine.

421.The Tribunal enquired as to whether the applicant had sought treatment. He said he had attended counselling and taking medication for his trauma.

422.He said that from the end of 2013, he attended [Agency 2] for almost four years.[45] He said that when he was released from immigration detention after about three years, he continued to attend some sessions at [Agency 2]. He said that it helped him. He also had counselling in prison.

[45] [Details deleted.]

423.The applicant said that in 2016, after he was released from immigration detention, he was referred to [Agency 3].[46] That agency referred him to [Agency 2].

[46] [Details deleted.]

424.The applicant said he was currently on medication – [named] – for post-traumatic stress disorder and takes 7 mgs once a day. He said he was prescribed other medication when he was in immigration detention but upon release, he could not afford it or to see a doctor and stopped taking his medication. The applicant said he continued to seek help for his mental health.

425.As noted earlier, the Tribunal is satisfied that his mental health has not impacted the applicant’s ability to give evidence. On the five occasions the Tribunal has spoken with the applicant, he presented as articulate and capable, and this impression is reinforced by his written submissions. The applicant did not suggest that his mental health issues impacted his ability to give evidence. He did not expressly raise a protection claim in relation to his mental health.

426.The Tribunal will proceed on the basis that a protection claim has arisen on the material, even though not expressed as such by the applicant.

427.The Tribunal reviewed country information to assess whether people with a mental health issue face discrimination or are targeted in a way that would put the applicant at risk of serious or significant harm in Kenya.

428.Kenya’s Ministry of Health adopted a mental health policy for the period 2015 to 2030. The government website records that article 43 of the Kenyan Constitution provides that “every person has the right to the highest attainable standard of health, which includes the right to healthcare services”.[47] It then notes that this necessarily includes mental health. The Taskforce on Mental Health recommended in July 2020 that mental illness be declared a national emergency because of high levels of mental illness, with depression and anxiety disorders being leading mental illnesses diagnosed in Kenya.[48]

[47] Homepage for Kenya’s Ministry of Health, The Taskforce on Mental Health

[48] Republic of Kenya (2020) Mental Health Taskforce urges government to declare mental health a National Emergency Nairobi, Tuesday July 7, 2020, accessible at

429.In light of this, the Tribunal is satisfied that there is not a real chance or a real risk that serious or significant harm would be directed at the applicant because of his mental health.

Kenyan election held August 2022

430.Before August 2022, the applicant expressed concerns about the August 2022 election given the violence that had erupted at the time of previous elections in Kenya.

431.As is apparent from the country information set out earlier, the violence that had marred earlier elections, while not completely absent, was a not a major feature of the 2022 election.

432.At the October 2022 hearing, the Tribunal asked the applicant if the election was still of concern to him given it took place in August 2022. The applicant confirmed he did not want to pursue this as part of his protection claim. The Tribunal is satisfied that no risk of serious or significant harm arises for the applicant from the August 2022 election now or into the foreseeable future. 

CONCLUDING PARAGRAPHS

433.The Tribunal has considered the claims put by the applicant individually and cumulatively, under the refugee and complementary protection criteria, as appropriate.

434.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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

435.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).

436.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

437.The Tribunal affirms the decision not to grant the applicant a Protection visa.

Susan Hoffman
Member

Also see SF Group (2021) Criminal Gangs – Nairobi and Mombasa, accessible at

Bellows, S. (2016) How cultural differences affect business operations, Business Daily, accessible at