1924119 (Refugee)

The applicant, a former gang member from Kenya, sought review of a decision by the Minister to refuse to grant a protection visa. The matter had been remitted to the Federal Circuit Court by the Federal Court. The applicant claimed he feared persecution in Kenya due to his past association with a gang, specifically fearing revenge from the gang and targeting by the police who were arresting gang members. He also cited fears arising from election violence and an attack on his family home.

The court was required to determine whether the applicant had established that he would, if returned to Kenya, be a refugee within the meaning of section 5(1) of the *Migration Act 1958* (Cth). This involved assessing whether the applicant's fear of harm was well-founded and whether the harm feared constituted persecution for reasons of membership of a particular social group, namely former gang members, or for reasons of political opinion, or for other reasons that engaged Australia's protection obligations.

Her Honour Susan Hoffman affirmed the decision under review. The court found that the applicant's fear of harm from the gang was not well-founded, as there was insufficient evidence to establish that the gang would seek revenge against him. While acknowledging the risk of police targeting gang members, the court determined that this did not amount to persecution for reasons of membership of a particular social group or political opinion. The court also found that the general risk of election violence and the attack on his family home did not, in themselves, establish a well-founded fear of persecution for a Convention reason.