1929111 (Refugee)
[2022] AATA 5061
•16 November 2022
1929111 (Refugee) [2022] AATA 5061 (16 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Cassandra Benjamin (MARN: 0531982)
CASE NUMBER: 1929111
COUNTRY OF REFERENCE: Kenya
MEMBER:Jason Pennell
DATE:16 November 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.
Statement made on 16 November 2022 at 9.08am
CATCHWORDS
REFUGEE – Protection Visa – Kenya – actual and imputed political opinion – being perceived as holding different beliefs to the Mungiki – a person who was rumoured to be a witness against those summonsed by the ICC – a member of a particular social group – a person suffering from mental illness – applicant’s psychiatric condition – complementary protection criterion –– decision under review remitted
LEGISLATION
Migration Act 1958, ss 5H, 36, 46, 65, 91, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 17 November 2016 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2.Mr [name] (‘the applicant’) who claims to be a citizen of Kenya, applied for the protection (XA-866) visa on 24 August 2016. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.
3.On 23 November 2016, the applicant provided the Tribunal with a copy of the primary decision record issued by the Department of Home Affairs (then known as the Department of Immigration and Border Protection) dated 17 November 2016.[1]
[1] The primary decision record was provided as part of the first Tribunal’s review application (case number 1619802)
Judicial review history
4.The applicant initially applied to the Tribunal (differently constituted, case 1619802) on 23 November 2016 (‘the first Tribunal’) for review of the delegate’s decision. On 18 January 2017 the first tribunal affirmed the delegate’s decision not to grant the applicant’s protection visa.
5.The applicant then applied for judicial review to the Federal Circuit Court of Australia (FCCA) on [date] January 2017 and on [date] September 2019 the matter was remitted to the Tribunal for reconsideration resulting in the current Tribunal case number 1929111.
6.The applicant appeared before the Tribunal on Wednesday 8 July 2022 via MS Teams to give evidence and present arguments. The hearing was changed from an in-person hearing to a hearing conducted by MS Teams at the request of the applicant. The Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to do so having regard to the nature of the claims made by the applicant and his individual circumstances. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.
7.At all relevant times the applicant appeared lucid throughout the hearing. He was able to present evidence and make submissions in support of his claims for protection. In addition, he was able to understand and respond appropriately to all questions put to him by the Tribunal in the hearing.
8.The Tribunal also received oral evidence from the applicant’s brother, [Mr A].
9.The applicant was represented in relation to the review by Ms Cassandra Benjamin of Refugee Legal.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–5LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Applicant’s Claims and evidence
Applicant’s identity
The applicant stated he was born in [Village 1] Village, Nakuru, Rift Valley Province in Kenya on [date].[2] The applicant submitted a copy of his Kenyan passport as proof of identity and nationality to the Department of Home Affairs as part of the protection visa application process.[3] The documents provided by the applicant are consistent with his evidence to the Tribunal in relation to his identity. Therefore, based on the documents provided by the applicant, the Tribunal accepts the applicant’s identity, including his date and place of birth, as claimed.
Applicant’s country of reference
[2] Applicant’s protection visa application, Dept [file], Doc ID 9865725, ff 26–27
[3] Applicant’s passport, Dept [file], Doc ID 9865725, f 35
Based on the documentation provided by the applicant, the Tribunal accepts and finds that the applicant is a citizen of Kenya. The Australian law has established that the right referred to in s 36(3) of the Act is a presently existing temporary or permanent right to enter and reside in another country apart for Australia. The concept of reside has been observed to mean something more than a short or passing visit.[4] In WAGH v MIMA[5] Justice Hill observed that while a transit visa was clearly not a right to enter and reside it was a more difficult question to determine whether a tourist visa authorised both entry and (temporary) residence. His Honour noted that it would be unusual, but not an impossible use of the word ‘reside’ when referring to a tourist.
[4] SZRTC v MIBP (2014) 224 FCR 570 per Tracey and Griffiths JJ @ [28]
[5] WAGH v MIMA (2003) 131 269 per Hill J @ [65]
In this case Kenya is one of the five current members of the East African Community (EAC), being the republics of Burundi, Kenya, Rwanda, the United Republic of Tanzania and the Republic of Uganda.[6] The available information concerning the EAC advises that the agreements on free movement of people allows for the entry and stay for up to six months within each member state.
[6] East Africa Community website; >
Therefore, based on the available country information, the Tribunal finds that travel arrangements between the EAC countries is to facilitate freedom of movement of their citizens between each of the countries but only permits a temporary stay of 180 days.[7] That is, travellers are regarded as visitors intending to stay on a short trip. As such, the Tribunal finds that the travel arrangements between the EAC member states does not confer any right to reside but merely a right to enter and stay on a temporary basis. As such the Tribunal finds that the applicant does not have effective protection in a third country under s 36(3) of the Act. Accordingly, the applicant’s protection claims will be assessed against Kenya as the country of reference and ‘receiving country’, respectively.
Applicant’s migration history in Australia
[7] United Nations Economic Committee for Africa EA – Free Movement of Persons; http:/archive.uneca.org/pages/eac-free-movement-persons
The applicant first entered Australia on [date] October 2014 as the holder of a [student visa] granted on 10 October 2014. He has not travelled outside of Australia since his first arrival.[8]
[8] Mainframe Movement Details extracted on 10 June 2022, AAT file 1929111, Doc ID 9868670
The applicant’s [student] visa was cancelled on 30 May 2016, and on 3 June 2016 he was granted a bridging visa E, which ceased on 17 June 2016.
On 9 June 2016 the applicant was granted a further bridging visa E, which was cancelled on 29 July 2016. The applicant was detained at Maribyrnong Immigration Detention Centre from July 2016. He was released from immigration detention after being granted a bridging visa E on 29 March 2017, followed by a further bridging visa E granted on 18 April 2018. He was subsequently granted another bridging visa E on 17 February 2020, which is currently still in effect.
On 24 August 2016 the applicant lodged the Protection (XA-866) visa application which was refused by the Department on 17 November 2016.
Applicant’s claim for protection
The applicant’s detailed written claims are contained in a statement dated 15 January 2016 attached to the applicant’s Protection visa application dated 21 September 2016.[9] The applicant’s claims were summarised in the delegate’s decision[10] as follows:
[9] Dept file [DELETED], ff 28–33
[10] Primary Decision Record, AAT file 1619802, Doc ID 3144267, p 4
The applicant stated:
·He is [age] years old, Christian and is from the Kikuyu tribe in the Rift Valley, Kenya.
·He is afraid that he will be unable to get the treatment he needs for his mental health issues in Kenya, and he will face harm and discrimination based on his mental health. When he was young, he would run away from home and once he tried to commit suicide. No one talks about mental health in Kenya, and no one took him to a doctor.
·His main fear relates to the harm he will face at the hands of the Mungiki. The Mungiki are a violent and lawless sect that belongs to his tribe (the Kikuyu). They believe in traditional values, not Christian values like his family.
·The Mungiki tribe traditionally defends the Kikuyu tribe against the Kalenjin, who resent the fact that the Kikuyu have come to their area and taken their land.
As a teenager he never really fit in with his family, so he was persuaded to hang out with the Mungiki, who became his friends.
·His family did not approve, so after the first term of high school in his village, he was sent away to boarding school in [Village 2] village. However, when he came home from the school breaks, he would have contact with them.
·In 2005, after he finished high school, his family sent him to live with one of his sisters in Nairobi in order to get him away from the Mungiki; however, they also live in Nairobi and there was no escaping them. In 2006, one of his friends was killed in Nairobi by the Mungiki because he said he was Christian, and he refused to join them.
·In 2007, the applicant returned to [Village 1] to be involved in the voting for the national elections. Violence erupted before Election Day (27 December), and his parents and siblings who were not abroad left [Village 1] and returned to his father's home area in Central Province. One of his brothers was in Nairobi. The applicant stayed behind in Rift Valley to defend their home against attacks by the Kalenjin. He stayed in a tent at the [Village 1] police station because of fear of attack from the Kalenjin but he would go home during the day to defend it.
·Several months of conflict followed the elections. Terrible fighting took place in his area between the Luo and Kalenjin on one side and the Mungiki who were defending the Kikuyu on the other. The Mungiki forced all Kikuyu males of fighting age to help them. They forced the applicant to join them; the alternative was that he and his family would lose their land. He witnessed people having their heads chopped off with machetes.
·The conflict settled down in March 2008 and he returned to Nairobi where he continued with his studies and part time work. He still interacted with the Mungiki there.
·His real problems with the Mungiki began in 2011 when they started to believe that he was a witness against them at the International Criminal Court (ICC) who was trying the Deputy Prime Minister Kenyatta and five others. He was confronted in Nairobi by members of the Mungiki, but he denied involvement, either as a witness or as someone gathering evidence. He is not sure why this rumour about him began but it was rumoured that there were two witnesses from his village, and he had never really converted to their beliefs.
·He had also expressed political opinions that differed from the Mungiki; in 2011, he had returned to his village where he won a seat as youth representative in [a] division, [having] been elected by a majority who contradicts tlie Mungiki sect. He never took up the seat as the agenda of youth representation was not achieved nationally. In 2013, he was going to be elected as county representative in the County Assembly, but he halted his political ambitions out of fear of the Mungiki.
·Although the charges have now been withdrawn or discontinued against the accused at the ICC, the Mungiki still want to take revenge against him. Anyone who betrays them is considered a traitor and punishable by death. The identities of the witnesses were confidential, and they will be protected overseas now. Not many people from his village leave Kenya. He is no longer in Kenya, so it is natural for them to assume that the rumours are correct.
·The Mungiki live all over Kenya so he could not escape from them anywhere. He will be unemployed due to his mental illness so he would have a lot of free time, increasing his chances of encountering them.
·His family does not want anything to do with him because of his mental health issues and the conflict they have always had between them. He is not on good terms with any of his [siblings]. They will not support him in Kenya or protect him.
·He will be unable to get protection from the authorities in Kenya, as the Mungiki is closely linked to politicians and the police do not stop their activities.
·With another election in Kenya in 2017, he fears that the Kikuyu will be targeted again by other ethnic groups and the Mungiki will get involved in election related violence again.
Applicant’s evidence
The applicant’s evidence was that he was born in [Village 1] Village, Nakuru, Rift Valley Province in Kenya on [date]. He claims to be a Protestant Christian belonging to the Kikuyu ethnic group. He claims that he can speak, read and write English, Swahili and Kikuyu.[11]
[11] Applicant’s protection visa application, Dept file [DELETED], Doc ID 9865725, ff 26–27
The applicant’s mother and father were tea farmers and continue to live in Kenya. The applicant’s evidence was that his family are originally from the Central Province where his father inherited a five-acre tea plantation. The applicant’s father moved to [Village 1] Village because of the fertile soil where his father owns a two-acre [farm].[12] The applicant’s evidence was that he has [number of] siblings. The applicant’s evidence was that he has two brothers (including his brother [Mr A]) and a sister living in Australia, two sisters living in [Country 1] and a brother living in [Country 2]. His remaining siblings all continue to live in Kenya.
[12] Applicant’s statement dated 24 August 2016, Dept file [DELETED], Doc ID 9865725
The applicant attended school in the Rift Valley, Kenya from January 1993 to November 2004. In 2005 the applicant obtained a [qualification] from [a] College in Nairobi, Kenya. The applicant then completed a [qualification] at [University 1]in 2008. Finally, in 2012 he completed a [qualification] from the [University 1].
After arriving in Australia, the applicant completed a Certificate [in] 2015 from [a] College. In 2015 he enrolled in, but did not complete, a [course].[13]
[13] ibid, f 12
In Kenya, the applicant worked as a [Occupation 1] in [a workplace] from 2007 to 2009, then performed [specified] work for his sister’s [company] between 2010 and 2012. Finally, the applicant worked as [an occupation] for a [store] between 2013 and August 2014. In Australia, the applicant worked as [an occupation] in 2015 and in 2016 on a [farm].[14]
[14] ibid, ff 12–13
The applicant indicated that he had two Australian visas cancelled in the past, being a bridging visa E on character grounds and a student visa due to breach of condition 8202.[15] He also disclosed being the subject of a criminal investigation or having had criminal charges pending against him, specifically various criminal charges resulting from mental health issues.[16] The applicant further indicated that he had mental problems, whereby he had episodes of psychosis, diagnosed as schizophrenia.[17]
[15] ibid, f 22
[16] ibid, f 18
[17] ibid, f 26
The applicant claims that because of his mental health issues he has had difficulty with his family in Kenya. He was not able to obtain the necessary help and support for his mental condition due to the limited medical or social support for people with mental health problems in Kenya. As a result, he claims that if he is returned to Kenya, he will face harm and discrimination because of his mental health condition.
The applicant claims that he fears being harmed by the Mungiki tribe if he is returned to Kenya. The applicant’s evidence was that the Mungiki are from his own ethnic group, the Kikuyu, but that they hold traditional tribal values, rather than Christian values like the applicant’s family. The applicant claims that the Mungiki are violent and lawless. He claims despite having traditionally defended the Kikuyu from the Kalenjin tribe, they will not hesitate to harm Kikuyu people.
The applicant claims that the Mungiki have been trying to influence him since he was a young boy. His evidence was that his family have a strong Christian faith and that as a teenager he was taught the ‘rites of passage to adulthood through biblical means.’[18] Nevertheless, the applicant’s evidence was that as a teenager he ‘hung out’ with members of the Mungiki tribe. As a result his family sent him to school in [Village 2] Village to separate him from the Mungiki. After the applicant finished school his family sent him to Nairobi to further avoid the Mungiki. However, the applicant’s evidence was that there was no escaping them. As a result, despite not agreeing with their beliefs he claims that he ‘fitted in with them,’ agreeing to do what they asked to survive.
[18] Applicant’s statement dated 24 August 2016, Dept file [DELETED], Doc ID 9865725
The applicant’s evidence was that in or about 2006 his friend, [name deleted], was killed by members of the Mungiki in Nairobi because he claimed to be Christian and refused to join them. The applicant claims that the Mungiki called him a traitor and killed him by chopping him into pieces. His body was found on the outskirts of Nairobi in Limuru.
In 2007 the applicant returned to [Village 1] Village to be involved in the general election which was held on 27 December 2007. Prior to the election fighting broke out. As a result, his parents, and those of his siblings who had remained at home, returned to the Central Province for safety. The applicant, however, remained in [Village 1] Village to protect his family home from attack by the Kalenjin tribes. The applicant’s evidence was that at night he stayed in the [police] station but returned to his family home during the day.
After the election in 2007 fighting broke out between the Luo and Kalenjin on one side and Mungiki in defence of the Kikuyu people on the other. All males in the area, including the applicant, were forced by the Mungiki to fight. After the conflict had settled down, in or about March 2008, the applicant returned to Nairobi to continue his studies. An estimated 1,200 people died and more than 500,000 people were displaced during the 2007/2008 election violence.[19] The majority were the Kikuyu whom the Mungiki were defending.
[19] Applicant’s statement dated 24 August 2016 at [22], Dept file [DELETED], Doc ID 986572
The applicant claims that his real problems with the Mungiki began in 2011 when they started believing that the applicant was going to be a witness against them in the International Criminal Court (ICC). The applicant’s evidence was that after the post-election violence an attempt to investigate the violence by Kenyan authorities failed. In or about 2008 the matter was taken to the ICC. The prosecutor of the ICC Luis Moreno Ocampo investigated the violence and summoned six people accusing them of having committed crimes against humanity. The Deputy Prime Minister Uhuru Kenyatta (the current president of Kenya), Francis Muthaura (former Cabinet Secretary) and Mohammed Hussein (former Police Commissioner) were accused of using the Mungiki tribe to perpetuate the violence. In addition, the former Education Minister William Ruto (current Deputy President), Henry Kosgey (former Industrialisation Minister) and radio executive Joshua Arap Sang were accused of having used the Kalenjin people in perpetuating the ethnic violence against various tribes including the Kikuyu (‘the accused’).[20]
[20] ibid
The applicant claims that there were rumours in his village he was going to give evidence against those accused by the ICC. The applicant was not able to say why the rumour had developed. His evidence was that he was not involved with the ICC, however, there was a rumour that two of the witnesses for the ICC trial were from his village. The applicant speculated that because he had not converted from Christianity to their ‘traditional’ beliefs, together with the fact that he has siblings living overseas and that he had expressed contrary political beliefs, they believed that he had given evidence to the ICC against the Mungiki relating to the purchase of guns funded by President Kenyatta.[21] The applicant claims that he was approached several times in Nairobi by members of the Mungiki tribe asking if he was going to betray the ‘house of Mumbi’.[22] The applicant claims that despite denying any involvement, he was continually accused of having sold the traditions of the Kikuyu tribe both directly and indirectly. That is as a direct witness for the ICC at trial or having gathered evidence on its behalf to be presented at trial.[23]
[21] Applicant claims that President Kenyatta gave the Mungiki KES3.3 million (approximately AUD35,000) to buy guns for the Mungiki
[22] ibid at [16] (‘Mumbi’ is the woman who is the origin of his tribe)
[23] ibid
The applicant’s evidence was that the charges against the accused have been withdrawn or discontinued by the ICC. Nevertheless, he claims that the Mungiki still want to take revenge on him as they believe he was to be a witness against President Kenyatta and the Mungiki.[24] The applicant claims that the majority of those killed or displaced during the 2007/2008 election violence, were Kikuyu who the Mungiki were protecting. As a result, the applicant claims that he is considered a traitor who was recruited by the international community to betray the Kikuyu tribe.
[24] ibid at [22]
The applicant’s evidence was that in 2011, in his home village, he was elected as a youth representative in [a] division of the [district]. The applicant’s evidence was that by being elected as the youth representative he was supported by most of the people in the area who were not Mungiki. He claims that it was a clear indication to the Mungiki that his political agenda was different to theirs. The applicant’s evidence was that in 2013 he was going to be elected as a county representative in the County Assembly but had to stop his political ambition because of his fear of the Mungiki. The applicant’s evidence was that the only way he avoided being harmed was by keeping a low profile. He claims that between 2011 and until his departure for Australia, he was forced to avoid the Mungiki. He claims that he was constantly living in fear because the Mungiki live all over the country.
The applicant’s evidence was that in or about December 2013[25] the applicant commenced living with his wife. His evidence was that he had a traditional marriage, confirmed through their parents, rather than a legally registered marriage.[26] The applicant claims that he did not feel safe in Kenya and as a result with the help of his brother he obtained a student visa to travel to Australia. When the applicant left Kenya, his wife was pregnant with his son. Despite his student visa being cancelled the applicant has not returned to Kenya and has never met his son.
[25] Applicant’s protection visa application, Dept file [DELETED], Doc ID 9865725, ff 26–27
[26] Applicant’s statement dated 24 August 2016 at [20], Dept file [DELETED], Doc ID 9865725
The applicant’s evidence was that the charges have now been withdrawn for the accused by the ICC. However, he claims that the Mungiki still want to take revenge against him because they believe he has been a witness against President Kenyatta and Mungiki before the ICC. He claims that they consider him a traitor who was recruited by the international community to betray the Kikuyu tribe to neo-colonial governments. In their mind any attempt by the ICC and western countries to prosecute Africans in crimes against humanity is neo-colonialism and not to be tolerated. The applicant’s evidence was that few people from his village travel overseas. The fact that he is no longer in the country means that the Mungiki will assume the rumour he was an ICC witness is true and he will be harmed if he is returned to Kenya.
In addition, the applicant’s evidence was that he has continued to support political candidates in Kenya.
Evidence of [Mr A]
The applicant’s brother, [Mr A], gave evidence before the Tribunal in support of the applicant. [Mr A] migrated to Australia in 2014. He is an Australian citizen and currently resides in Adelaide. He owns and operates a [business].
[Mr A] stated that the applicant became involved in politics in Kenya while at school. He was a member of various youth groups and worked to improve the conditions for those vulnerable within his community. His evidence was that in or about 2007/2008 the applicant was living at his parents’ home in [Village 1]. He claimed that the various tribes in the area had co-existed peacefully for many years. However, a particular tribe had secretly been training its youth for a guerrilla war if their presidential candidate was not successful.
Immediately upon the election result being announced violence broke out over the country. Different tribes started fighting each other based on the candidate they had supported. His evidence was his family came from the Kikuyu tribe and as a result the applicant found himself recruited to fight for the protection of the tribe and the village. The applicant remained in [Village 1] to defend the family home while the rest of the family evacuated to his father’s village in the Central Province. [Mr A]’s evidence was that he was not privy to the activities that happened during the clash but stated that the applicant was a target because of his involvement and because of the cases in the ICC.[27]
[27] Statement of [Mr A] dated 17 July 2022
[Mr A] confirmed the applicant’s evidence that while he has been in Australia the applicant has continued to be engaged with his former political friends and rivals in Kenya. The applicant is engaged with political groups in Kenya via [Social media], including those he formed himself and continues to lobby for certain factions hopping ‘from one political faction to another.’[28] [Mr A] stated that in [Town 1] the applicant is referred to as the ‘Director’ because he supports them financially. His evidence was that the applicant has requested from time to time to be able to use [Mr A]’s Zoom subscription and his [Social media] [Page] for the purpose of holding political meetings and to air political candidates he supports. His evidence was that the applicant has started and controls approximately 60 lobby groups consisting of about 100 members each including groups in the [Town 1] constituency.
[28] ibid
[Mr A]’s evidence was that the applicant has made many friends and enemies because of his political activities. He claims that due to the applicant’s mental health he can be volatile and has on occasions insulted rivals resulting in them holding grudges against the applicant. His evidence was that because the justice system in Kenya is unreliable many rivals will take matters into their own hands to obtain revenge. As a result, if he is returned to Kenya there is a real chance he will be seriously harmed.
[Mr A]’s evidence was that the applicant was currently supporting an independent candidate for the Parliamentary seat of [Town 1] at the August 2022 Kenyan elections known as [Mr B] (‘[Mr B]’). He claimed that he lobbied for [Mr B] including requesting that he use [Mr A]’s Zoom subscription and his [Social media] [Page] Australia to promote his candidate. The applicant planned and funded a political debate on [date] July 2022 between the main rival candidates in [Town 1] which was held at a [Venue 1] in [Town 1] and aired on local television and other channels. He provided the Tribunal with the website address of the debate. [Mr A]’s evidence was that candidates the applicant no longer supported have now become rivals from whom there was a real chance he would be harmed.
Applicant’s supporting documentation
The applicant provided the following material in support of his protection visa application:
·Form 866, part B and C – Application for a Protection (Class XA) visa.[29]
[29] Department file [DELETED], Doc ID 9865725, ff 5–27
·Applicant’s statement of claims, dated 24 August 2016.[30]
[30] ibid, ff 28–33
·Applicant’s current Kenyan passport, with expiry date [date] 2023.[31]
[31] ibid, f 34
·Applicant’s statement made on VP Form 287A at [a] Police Station, dated 25 January 2016.[32]
[32] ibid, ff 44–46
Representative Cassandra Benjamin’s submissions in response to the invitation to comment on information for a protection visa, dated 6 October 2016.[33]
[33] ibid, ff 87–89
·Signed response from the applicant, dated 6 October 2016 in relation to the comments contained within the Department’s letter requesting more comment on information.[34]
[34] ibid, f 86
·Letter from [a named] Mental Health Clinician, [Organisation 1], dated 17 June 2016 confirming the diagnosis of schizophrenia and listing the medications prescribed to [Mr A].[35]
[35] ibid, f 85
·Mental Health Act (MHA) Assessment Order for the applicant, dated 9 May 2016.[36]
[36] Ibid, f 84
·[Region 1] Health Treatment Plan for the applicant, dated 19 May 2016.[37]
[37] Ibid, f 84
·List of discharge medication for the applicant, including risperidone which is used for the treatment of schizophrenia and other psychosis.[38]
[38] ibid, f 83
·Letter from [a] Consultant Psychiatrist, [Organisation 1] ([ORGANISATION 1]), dated 9 June 2016.[39]
[39] ibid, f 83
·[Region 1] Health Emergency Department Records, dated [date] June 2016 for the applicant, confirming attendance after calling 000 regarding suicidal thoughts.[40]
[40] ibid, f 82
·Mental disorder transfer from police to emergency department, dated 20 July 2016, setting out circumstances in which the applicant called 000 with suicidal ideation related to ideas of being forced to worship the devil.[41]
[41] ibid, f 82
·Clinical records issued for the applicant by International Health and Medical Services (IHMS) including list of current medications including 3mg of risperidone to be administered daily at night, note from psychiatrist, dated 7 September 2016 authorising possible increase of risperidone dose for the applicant, notes from Counsellor [name] dated 1 September 2016, and notes from Mental Health Nurse [name] dated 30 August 2016 and 28 August 2016.[42]
·Copy of refusal notification letter and primary decision record from the Department of Home Affairs (then known as the Department of Immigration and Border Protection) dated 17 November 2016.[43]
·Pre-hearing submission from the applicant’s representative, dated 23 December 2016.[44]
·Applicant’s statement dated 22 December 2016.[45]
·Post-hearing submission from the applicant’s representative, dated 13 January 2017.[46]
·Support email received from [a named Psych Consultant] of [Organisation 2], in relation to the applicant’s mental health, dated 30 July 2022, received as part of a priority request made by the representative on 2 August 2022.[47]
·Applicant’s statutory declaration dated 30 June 2022.[48]
·Support letter issued by [a named person] of [ORGANISATION 1] dated 1 July 2022, addressing the applicant’s mental health.[49]
·Representative’s pre-hearing submissions dated 4 July 2022.
·Representative’s submission dated 11 October 2022 including attached documentation of communication between the applicant and [Mr B].
[42] ibid, folios 79-81
[43] AAT file 1619802, Doc ID 3144267
[44] AAT file 1619802, Doc ID 3200955
[45] ibid
[46] AAT file 1619802, Doc ID 3223468
[47] AAT file 1929111, Doc ID 6421651
[48] AAT file 1929111, Doc ID 9937094
[49] ibid
COUNTRY INFORMATION
There is no Country Information Report on Kenya prepared by DFAT for protection status determination purposes. The Tribunal has therefore referred to other government and non-government reports including the UK Home Office ‘Country Background Note: Kenya’ Version 2.0 May 2020,[50] the US Department of State ‘2021 Country Reports on Human Rights Practices: Kenya’[51] and Human Rights Watch World Report, Kenya Events of 2021.[52]
[50] UK Home Office ‘Country Background Note: Kenya’ Version 2.0 May 2020; US Department of State 2021 Country Reports on Human Rights Practices: Kenya; ww.state.gov/reports/2021-country-reports-on-human-rights-practices/kenya/
[52] Human Rights Watch World Report, Kenya Events of 2021; OF CLAIMS AND FINDINGS
The issue in this case is whether the applicant is a person to whom Australia owes protection obligations pursuant to s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Credibility
When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.
The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim,[53] nor is the Tribunal required to accept uncritically all the allegations made by an applicant.[54]
[53] s 5AAA Migration Act 1958
[54] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169–70
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[55] Care must be taken that the approach does not result in an exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
[55] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J @ p 482
If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[56] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.
The accepted facts
[56] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196
Having considered the applicant’s evidence, the Tribunal accepts and finds that the applicant:
(a)was born in [Village 1] Village, Nakuru, Rift Valley Province in Kenya on [date].
(b)is a Protestant Christian.
(c)is an ethnic Kikuyu.
(d)can speak, read and write English, Swahili and Kikuyu.
(e)was born to parents who were tea farmers from the Central Province. They continue to live in Kenya.
(f)has [number] siblings. He has two brothers and a sister living in Australia, two sisters living in [Country 1] and a brother living in [Country 2]. The rest of his siblings all continue to live in Kenya.
(g)attended school in the Rift Valley, Kenya from January 1993 to November 2004.
(h)obtained a [qualification] in Nairobi, Kenya in 2005.
(i)completed a [qualification] at the [University 1] in 2008.
(j)completed a [qualification] from the [University 1].
(k)worked as a [Occupation 1] in [a workplace] from 2007 to 2009, then performed [work] for his sister’s [company] between 2010 and 2012.
(l)worked as [an occupation] for a [store] between 2013 and August 2014.
The applicant’s relevant grounds
The applicant submits that his claims fall within the scope of s 5J(1)(a) of the Act based on his actual and/or imputed political opinion.
The applicant claims that he will be persecuted upon his return to Kenya by reason of his actual and imputed political opinion. That is, because of being perceived as holding different beliefs to the Mungiki or alternatively as a person who was rumoured to be a witness against those summonsed by the ICC.
The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status[57] notes that ‘[H]holding political opinions different from those of the Government is not in itself a ground for claiming refugee status, and an applicant must show that she has a fear of persecution for holding such opinions.’ That is, the applicant must hold opinions not tolerated by the authorities and such opinions will come to the notice of the authorities or will be attributed to the applicant by the authorities upon his return to Kenya.
[57] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, paragraphs 80–86; Chan v MIEA (1989) 169 CLR 379 at 392
The Full Federal Court in V v MIMA[58] observed in relation to a person’s political opinion that:
(a)it is enough that a person holds (or is believed to hold) views opposed to the government and is persecuted for that reason;[59]
(b)it is not necessary that a person be a member of a political party or other public organisation or that the person’s opposition to the instruments of government be a matter of public knowledge;[60]
(c)‘political opinion’ is not limited to party politics in the sense that expression is understood in a parliamentary democracy;[61]
(d)the holding of an opinion inconsistent with that held by the government of a country explicitly by reference to views contained in a political platform or implicitly by reference to acts reflective of an unstated political agenda will be the holding of a political opinion;[62]
(e)‘political opinion’ may be shown by repeated conduct which is never (or rarely) converted into articulate political protest of the kind familiar to Australian society.[63]
[58] V v MIMA (1999) 92 FCR 355 at 363. It is noted that the Court’s observations were made in the context of dealing with the Convention
[59] ibid
[60] ibid
[61] ibid
[62] ibid
[63] ibid
An applicant’s fear of persecution based on his or her political opinion, having regard to all the circumstances, is a question of fact.[64] In this case, the applicant claims he has a well‑founded fear of persecution by reason of his actual political opinion as a person who holds different views to the Mungiki or alternatively his imputed political opinion as a person who was rumoured to be a witness for those accused by the ICC.
[64] Maningat v MIMA (Federal Court of Australia, Tamberlin J, 30 April 1998) at 4
In addition, the applicant claims that because of his political activities, in particular his support for various political candidates, he will be harmed because of his political opinion if returned to Kenya. On the evidence presented to the Tribunal by the applicant and the supporting statements provided, the Tribunal accepts that his claim falls within the scope of s 5J(1)(a) of the Act by reason of his actual and/or imputed political opinion.
The applicant’s well-founded fear
Section 5J of the Act states that for the purposes of application under the Act, a person has a well‑founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and that there is a real chance that they will be persecuted for one or more of these reasons in the event they are returned to their receiving country. In Chan v MIEA[65] the Court held that a ‘well‑founded fear’, for the purposes of the Convention, involved both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[66]
[65] Chan v MIEA (1989) 169 CLR 379 at 396
[66] Chan v MIEA (1989) 169 CLR 379 at 396; MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ
However, to hold a ‘well-founded fear of persecution’ on an objective basis, the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J stated:[67]
“Well‑founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.
[67] Chan v MIEA (1989) 169 CLR 379 per Dawson J at 397
In MIEA v Guo, the Court stated that:[68]
Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well‑founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
[68] MIEA v Guo (1997) 191 CLR 559 at 572
In this case, the applicant claims that, if he is returned to Kenya, there is a real chance he will suffer serious harm by the authorities by reason of his political opinion. For the reasons detailed below, the Tribunal does not accept that the applicant has a well‑founded fear of persecution on an objective basis pursuant to s.36(2)(a) of the Act if he is returned to Kenya.
Finally, the applicant submits that his claims fall within s 5(1)(a) of the Act as a member of a particular social group (PSG) as a person suffering from mental illness. To be considered a member of a PSG it is necessary for the applicant to share (or be perceived to share) an innate or immutable characteristic with each member of the group that is fundamental to a member’s identity or consciousness and distinguishes the group apart from society.[69] The Tribunal accepts based on the applicant’s evidence in relation to his mental health that he is a member of a PSG as claimed.
[69] Section 5L of the Act
The applicant’s claims as a refugee
Applicant’s association with the Mungiki
The applicant claims that the Mungiki have been trying to influence him since he was a young boy. He claims he associated with members of the Mungiki when he was young and that he fitted in with them despite not adhering to their beliefs. He claimed there was no escaping them and even when he was living in Nairobi, they approached him and tried to influence him.
The country information[70] reports that the Mungiki was established in the 1980s as a local militia to protect Kikuyu farmers in disputes over land with Maasai and with forces loyal to the government.[71] It was banned in 2022.[72] The gang consists mainly of youths from the Kikuyu tribe,[73] and is primarily active in the ethnic Kikuyu areas of ‘Central Province, Nairobi Province, Rift Valley Province and Eastern Province’ and Nairobi slums. Consistent with the applicant’s evidence, the country information[74] reports that the ideology of the group is characterised by ‘revolutionary rhetoric and Kikuyu traditions’ that rejects Westernisation and the trappings of colonialism, including Christianity. It espouses controversial political views and cultural practices and is known to run protection rackets and to harass and intimidate residents.
[70] Canada: Immigration and Refugee Board of Canada, Kenya: The Mungiki sect, including organizational structure, leadership, membership, recruitment and activities; the relationship between the government and sects, including protection offered to victims of devil worshippers and sects, such as the Mungiki (2010-October 2013), 15 November 2013, KEN104594.E; https:wwww.refworld.org/docid/52a72f7e4.html
[71] BBC News ‘Kenyan sect beheads policeman’ 17 September 2007, news.bbc.co.uk/2/hi/africa/6998446.stm
[72] Canada: Immigration and Refugee Board of Canada, Kenya: The Mungiki sect, including organizational structure, leadership, membership, recruitment and activities; the relationship between the government and sects, including protection offered to victims of devil worshippers and sects, such as the Mungiki (2010-October 2013), 15 November 2013, KEN104594.E; https:wwww.refworld.org/docid/52a72f7e4.html
[73] Reuters World News ‘Key facts about Kenya’s Mungiki gang’, 7 March 2009; Washington Post ‘Brutal Kenyan Sect Aims to provoke Strife’ by Stephanie McCrummen dated 2 July 2007; >
The country information reports that there is little information about the group’s organisational structure.[75] It’s reported[76] that the Mungiki is divided into regional, district and local-level cells comprised of approximately 50 members. Each cell is then further divided into a local militia-like platoon comprising 10 members. However, it is reported that the Mungiki is made up of many different factions that are hard to control and do not always act harmoniously with each other.[77] The size of the organisation is uncertain due to its secretive nature but has been reported to be between the thousands and approximately two million.[78] It’s reported that many disenfranchised youths will lie about being a Mungiki member ‘to terrorize and gain influence’ in their community.[79] Members of the group are inducted in a secret ceremony involving oaths and rituals, while others are forcibly recruited through brutal methods.[80]
[75] Canada: Immigration and Refugee Board of Canada, Kenya: The Mungiki sect, including organizational structure, leadership, membership, recruitment and activities; the relationship between the government and sects, including protection offered to victims of devil worshippers and sects, such as the Mungiki (2010-October 2013), 15 November 2013, KEN104594.E; https:wwww.refworld.org/docid/52a72f7e4.html
[76] ibid
[77] ibid
[78] ibid
[79] ibid
[80] ibid
Based on the applicant’s evidence the Tribunal accepts that he was approached by the Mungiki while he was living in Kenya and in particular Nairobi as claimed. The applicant’s evidence was that he was never a member of the Mungiki. He claimed that he interacted with them but did not agree with what they believed in or what they were doing. His evidence was that the Mungiki were aware that he had not converted from Christianity to their beliefs.[81] He claimed that he merely pretended to support them.[82] The Tribunal accepts that he was not a member of the Mungiki and only pretended to support them as claimed.
[81] Applicant’s statement dated 24 August 2016 at [22], Dept file [DELETED], Doc ID 986572
[82] ibid
In or about 2011 President Uhuru Kenyatta was charged with crimes against humanity during the post-election period of 2007/2008.[83] At the heart of the case against members of former President Mwai Kibaki’s administration is the claim that they recruited elements from the Mungiki criminal organisation to raise support for Kibaki’s 2007 re-election campaign among Kikuyu youth in Central Kenya and the Rift Valley.[84] Kenyatta was to go to trial before the ICC in November 2013 but, all charges were withdrawn prior to trial. The charges against Kenyatta included murder, rape and forcible transfer of population, meeting with Mungiki representatives to secure Mungiki support for former President Kibaki and organising retaliatory attacks by the Mungiki on opposition supporters in Central Kenya and the Rift Valley. Maina Njenga (a former Mungiki leader) was also included in the ICC charges as he was believed to have been ‘contacted for the purpose of securing Mungiki services.’[85]
[83] Canada: Immigration and Refugee Board of Canada, Kenya: The Mungiki sect, including organizational structure, leadership, membership, recruitment and activities; the relationship between the government and sects, including protection offered to victims of devil worshippers and sects, such as the Mungiki (2010-October 2013), 15 November 2013, KEN104594.E; https:wwww.refworld.org/docid/52a72f7e4.html
[84] The Africa Report, ‘ICC- Justice on Trial in Kenya Report’, 19 July 2013 by Parselelo Kantai; ibid
The applicant claims that his trouble with the Mungiki began in 2011 when they started to believe he was a witness against them in the ICC. The applicant’s evidence was that in his village there were rumours among the Mungiki that he was to be called as a witness and that he had given evidence against several of the accused. The applicant was not able to say how the rumour started as he had nothing to do with the ICC.[86] His evidence was that it was rumoured that there were two witnesses from his village, and he was assumed to be one. He claims that he was assumed to be a witness because he had not converted away from Christianity, because he had expressed political beliefs adverse to the Mungiki and because it was believed he was connected to people overseas because he had family living abroad.[87] The applicant claimed that it was believed he either went to the ICC to be a witness or that he was used by the ICC to gather evidence to present at the trial.
[86] ibid
[87] ibid
The country information[88] reports that there is no local protection available for witnesses before the ICC. Many Mungiki witnesses and deserters who were involved in 2007/2008 post-election violence were targeted by either the police or other Mungiki members.[89] In 2010 the Kenyan government implemented the Witness Protection Act (WPA) designed to reform Kenya’s witness protection system and established a Witness Protection Agency. However, it’s reported[90] that the protection services did not allow for the protection of victims of the Mungiki primarily due to the ‘blurred lines’ between the Mungiki, the police and the government.[91] Therefore despite the implementation of the WPA there was no formal witness protection program and the authorities in Kenya had no experience or mechanisms in place to protect witnesses. It’s reported that witnesses were being killed or afraid to testify.[92] Potential Mungiki witnesses were often paid off or intimidated into not testifying. In addition, it’s reported[93] that people disappeared who were known to have been cooperating with the ICC. As a result, the cases crumbled, and were ultimately withdrawn, because of the withdrawal and disappearance of witnesses, in addition to the fact that the state had a vested interest in each case.[94] Based on the available country information the Tribunal accepts that witnesses to the ICC were harassed, intimidated and killed by the Mungiki.
[88] The Africa Report, ‘ICC- Justice on Trial in Kenya Report’, 19 July 2013 by Parselelo Kantai; Immigration and Refugee Board of Canada, Kenya: The Mungiki sect, including organizational structure, leadership, membership, recruitment and activities; the relationship between the government and sects, including protection offered to victims of devil worshippers and sects, such as the Mungiki (2010-October 2013), 15 November 2013, KEN104594.E; https:wwww.refworld.org/docid/52a72f7e4.html
[90] ibid
[91] ibid
[92] ibid
[93] The Africa Report, ‘ICC- Justice on Trial in Kenya Report’, 19 July 2013 by Parselelo Kantai; ibid
The applicant claims that he remained in Kenya until his departure for Australia in October 2014 on a student visa during which time he tried to avoid the Mungiki at all costs.[95] Nevertheless, during this time the applicant was elected as the youth representative [in] 2011 and claims that he was going to be elected as a county representative in the County Assembly in 2013. On his own evidence the fact that he was elected to the position of youth representative indicated his different political views from the Mungiki. Based on the available country information that there was no effective protection for ICC witnesses and that many ICC witnesses were harmed by the Mungiki, there appears to have been no impediment to the Mungiki harming the applicant if he was an ICC witness as claimed. However, despite the applicant’s political activities as claimed, save having been approached by members of the Mungiki who operated a [shop] in Nairobi, there was no evidence of him being seriously harmed or threatened with serious harm by members of the Mungiki prior to his departure for Australia. In the absence of any evidence that the applicant was threatened with serious harm by the Mungiki the Tribunal does not accept that he was rumoured to have been an ICC witness as claimed.
[95] Applicant’s statement dated 24 August 2016 at [22], Dept file [DELETED], Doc ID 986572
The Tribunal notes that a general election was conducted in Kenya on 9 August 2022. This was the third general election and the fourth presidential one since the 2010 constitution came into effect. According to the constitution the incumbent president Uhuru Kenyatta was not eligible for a third term. William Ruto was elected President of Kenya, after a petition challenging the result of the election by his opponent Raila Odinga was dismissed.[96] It’s reported that the election result represents a shift away from the influential families like the Kenyattas and Odingas who have been prominent in the country’s politics since independence.[97]
[96] BBC News ‘Kenya Election result: William Ruto wins presidential poll’ 15 August 2022; http//: ibid
Therefore, in the absence of evidence of serious harm being inflicted on the applicant, the withdrawal of the ICC charges and the shift away from the tradition of dynasties in Kenyan politics, the Tribunal does not accept that the applicant was rumoured to be an ICC witness as claimed. In addition, given the fact that the ICC charges were dropped, the Tribunal does not accept that there is a real chance the applicant will be seriously harmed by the Mungiki upon his return to Kenya by reason of having been rumoured to be an ICC witness as claimed.
Applicant’s political involvement
The applicant’s evidence to the Tribunal was that he has remained active in politics in Kenya having backed and supported various electoral candidates in Kenya. The applicant submits that because of his political activities he has created enemies in Kenya. He claims that if he is returned to Kenya there is a real chance he will be seriously harmed because of his continued political activities.
The applicant claims that at the August 2022 Kenyan elections he supported [Mr B] as an independent candidate for the Parliamentary seat of [Town 1]. The applicant provided the Tribunal with [messages] from [Mr B] recognising his role in his election campaign. In addition, [Mr A] provided the Tribunal with the website address of the [Social media] [Page] upon which the political debate arranged by the applicant between the main rival candidates in [Town 1] (including [Mr B]) held at a [Venue 1] in [Town 1] was promoted. As such, based on the information provided by the applicant and [Mr A] the Tribunal accepts that the applicant was a supporter of [Mr B] at the elections conducted in Kenya in August 2022.
The country information[98] reports that the Kenyan election on 9 August 2022 was the third general election since the promulgation of a new constitution in 2010. The election marked the end of the second term of the Jubilee Alliance government under President Uhuru Kenyatta and Deputy President William Ruto. It’s reported that the presidential campaign between Raila Odinga (who had run against four presidents on four previous occasions) and Ruto experienced some local troubles, but the focus of the campaign was if the electoral landscape in Kenya had shifted to emphasise class, demographic and elitist divisions.[99]
[98] ACLED ‘Kenya’s Political Violence Landscape in the Lead-Up to the 2022 Election’, 9 August 2022; ibid
It’s reported[100] that political disorder in Kenya often increases during election periods. In 2022, more than 1,060 political disorder events were reported, the largest number of incidents recorded in Kenya since 1997.[101] Of these events 400 were peaceful protests, while 400 were riot events. It’s reported that the rioting and protest activity in the lead-up to the 2022 election exceeded the level of activity reported prior to the 2017 election, when nearly 110 peaceful protest events and 160 riot events were recorded.[102] In the lead-up to the 2022 election there was a re-emergence of criminal gangs such as the ‘Mombasa Republican Council,’[103] ‘Confirm’ in Nakuru[104] and ‘Miticharaka’ in Tana River[105] among others. The Tribunal was not able to locate any specific report that the Mungiki had been involved in the political disorder events referred to above. Despite three members of parliament[106] having been questioned about links to gangs, the country information reports that overall, there was little evidence of concerted political violence by a specific party in the pre-election period.[107]
[100] ibid
[101] ibid
[102] ibid
[103] Nation, ‘Puzzle of 81 Suspects arrested in Mtwapa over MRC links’, 30 June 2022; The Standard, ‘Nakuru Insecurity: Police arrest 128, launch hunt for gang heads’, 28 June 2022;
[105] The Star ‘State deploys more police to Coast, warns inciters,’ 21 July 2022; Nation, ‘Nakuru MPs David Gikaria, Samuel Arama and Kimani Ngunjiri quizzed over gang links’ 28 June 2022; ACLED ‘Kenya’s Political Violence Landscape in the Lead-Up to the 2022 Election’, 9 August 2022; >
The Tribunal notes that from the correspondence with [Mr B] there does not appear to be any fear of reprisal by [Mr B] himself. Prior to the election [Mr B] appeals to all those he has ‘locked horns’ and had disagreements with in the course of the campaign to ‘let it go’ and remain ‘peaceful’ as they start casting their votes until the ‘end of the process.’ In addition, after the election and in defeat [Mr B] thanks those who had supported him and states that the decision of the people ‘must be respected.’ The applicant’s suggestion that the election would be disrupted by Kenyatta’s ‘armed goons’ was rejected by [Mr B]. The country information[108] reports that the publication of the election result was finalised with relative speed and transparency in contrast to previous elections. There was no internet shutdown, arrest of opposition leaders, and no hint that the incumbent was planning to cling on to power.[109] Despite Odinga rejecting the outcome and challenging the result, Kenya’s Supreme Court affirmed Ruto’s win having been satisfied that the conduct of the election and declaration of the results met the constitutional requirements. It’s reported,[110] in contrast to previous elections, the country remained calm and without major incidences of violence while the dispute was resolved by the court.
[108] BBC News ‘Kenya elections 2022: Win or Lose, why Raila Odinga’s election challenge matters’, 22 August 2022; Carnegie Europe, ‘Kenya’s Watershed Election: Implications for EU Policy’ 6 October 2022 by Andrew Songa & Lidet Tadesse Shiferaw; ibid
It’s reported[111] that the 2022 election was pivotal to Kenya’s future in that it marked only the third time that a sitting president had handed over power to a successor after serving a two-term limit. In addition, there was a shift in political alliances with former president Uhuru Kenyatta in the aftermath of the 2017 election, expressing support for Odinga rather than for his own deputy Ruto. While it’s reported[112] that there were mixed reactions by Odinga’s supporters to the decision of the Supreme Court to confirm Ruto’s win over Odinga, there was no report of violence.
[111] ibid
[112] BBC News ‘Kenya Election 2022: Kenyans react to the Supreme Court election ruling’, 6 September 2022; >
In addition, the applicant claims[113] that he recently voiced his opinion against [Mr C] who unsuccessfully ran as a candidate to be [a position] in September 2022. The applicant claims that [Mr C] was a friend, but he did not support him in the election because his family is known to [details deleted]. The applicant claims that [Mr C]’s father is known to be involved with the Mungiki.[114] The applicant provided the Tribunal with extracts of his [Social media] posts and comments in which he claims he voiced his opinion against [Mr C]. The Tribunal notes that there are only 34 others as part of the applicant’s post. In addition, the applicant provided extracts of photos of [Mr C] with President Kenyatta as evidence of [Mr C]’s connections in Kenya. The Tribunal accepts that [Mr C] ran as a candidate to be [a position] in September 2022. While the Tribunal accepts that the applicant did not support [Mr C] in the election, there was no evidence that [Mr C] or his supporters had threatened the applicant or that there was a real chance the applicant would be harmed by [Mr C] upon his return to Kenya by reason of the applicant’s political opinion. From the correspondence there appears to be an exchange of insults (including the applicant being referred to as a ‘conman’) over an amount of money the applicant claims [Mr C] owes. Despite this there was no evidence that suggested there was a real chance the applicant would be seriously harmed by [Mr C] if he returned to Kenya. The Tribunal notes that based on the available country information referred to above it appears there has been no violence in the wake of the recent elections in Kenya.
[113] Letter from Refugee Legal dated 11 October 2022
[114] ibid
Further, the correspondence provided indicated that the applicant has been identified by his group as a [candidate] [for] the election in 2027. It seems to the Tribunal the applicant would not be considered for such a position if there was any chance, he would be seriously harmed upon his return to Kenya. The correspondence provided to the Tribunal does not refer to any chance that the applicant would be harmed upon returning to Kenya if he was to stand for election as proposed.
The Tribunal accepts that the applicant’s political views are well known in the community in Kenya and that he remains committed to improving the lives of the people in his community by supporting the candidacy of [Mr B], however, the Tribunal does not accept that there is a real chance he will be seriously harmed because of his political opinion if he is returned to Kenya.
Applicant’s mental health
The applicant claims that there is a real chance he will be seriously harmed if he is returned to Kenya by reason of his mental health. By a letter dated 1 July 2022[115] [Organisation 2] ([Organisation 2]) states that the applicant was diagnosed with paranoid schizophrenia in 2016 and that he has a history of post-traumatic stress disorder (PTSD). It states that his mental health has been managed by [ORGANISATION 1] since 8 June 2018. In December 2021 the applicant was referred to [ORGANISATION 1] after being observed in a distressed state carrying a knife believing that workmen on a building site near his residence were spying on him and that they were going to attack him with some of their equipment which the applicant believed to be grenades.[116] He is currently prescribed aripiprazole depot injection, prazosin and mirtazapine to treat his mental condition. Based on the applicant’s evidence and the letter from [Organisation 2], the Tribunal accepts that the applicant has been diagnosed with paranoid schizophrenia and PTSD as claimed.
[115] [Organisation 2] letter dated 1 July 2022; AAT file No 1929111, Doc ID 9937094
[116] ibid
It was submitted on behalf of the applicant that his understanding of reality has been questionable during his period of instability with him having reported that he was being forced by various elements in the Australian community to worship the devil.[117] The applicant’s contact with the Victoria police was at a time when his psychosis was untreated and he was feeling that the dangers of being forced into devil worship in Australia outweighed the harm he would face by the Mungiki if he returned to Kenya. He claims because of his treatment at [Organisation 2] he obtained a proper insight into the risk of returning to Kenya.[118]
[117] Refugee Legal letter dated 6 October 2016
[118] ibid
The applicant fears that if he is returned to Kenya, he will not receive the understanding and treatment he needs for his mental state and that he will struggle to remain compliant with his medication, even if that medication is available.[119] He claims that he will be discriminated against in Kenya because of his mental health, as a result of which there is a real chance he will suffer serious harm.
[119] ibid
The country information[120] reports that mental illness is common in Kenya. However, mental health care is under resourced with a high level of stigmatisation and discrimination against people with mental health issues and against those who work in the area. This has caused significant challenges in the building of mental health capacity, including the reluctance by health workers to choose to work in the mental health area.[121] There is a shortage of medical personnel across the health care sector generally, but especially in mental health care where the specialist mental health workforce consists of only 116 psychiatrists and less than 500 registered psychiatric nurses to serve Kenya’s population of over 50 million. It’s reported[122] that one out of four people who seek health care in Kenya have a mental health condition. Psychiatric units are only available in 25 out of 47 counties in Kenya. Patients seeking mental health care in the remaining 22 counties are most often forced to travel to Mathari National Teaching and Referral Hospital, the only national hospital for mental health.[123] Depression is common with an increasing rate of substance and alcohol abuse.[124]
[120] Marangu, E., Mansouri, F., Sands, N. et al. ‘Assessing mental health literacy of primary health care workers in Kenya: a cross-sectional survey’, Int J Ment Health Syst 15, 55 (2021); African Journal of Primary Health Care & Family Medicine October 2014 ‘Mental healthcare in Kenya; Exploring optimal conditions for capacity building’ by Elijah Marangu, Natasha Sands, John Roiley, David Ndetei; World Health Organization, ‘Experts join forces for mental health in Kenya’, 23 May 2021; Access to Medicines Platform ‘World mental health Day. The State of mental health in Kenya’ by Mwanaisha 10 October 2020; Marangu, E., Mansouri, F., Sands, N. et al. ‘Assessing mental health literacy of primary health care workers in Kenya: a cross-sectional survey’, Int J Ment Health Syst 15, 55 (2021); >
The World Health Organization has recommended the integration of mental health care into the primary health care services to improve access to and equity of this care, especially in low and middle-income countries.[125] The Kenya Mental Health Policy 2015–2030 is a commitment to pursuing policy measures and strategies for achieving optimal health status and capacity of each individual, with a goal of attaining the highest standard of mental health.[126] The policy outlines that mental health is a key determinant of overall health and socio-economic development. Despite the guidelines and priority actions in the mental health policy in Kenya, the country still faces a lot of challenges in regard to provision of optimal and affordable mental health care and treatment.[127] Constraints to mental health care in Kenya has included a lack of adequate funding, poor health infrastructure, limited therapeutic resources and socio-cultural stigma.[128] Kenya does not have a specific budget for mental health, however, in 2020 it did establish a Mental Health Taskforce and has recently implemented a number of reforms to improve care for those with mental health conditions.[129]
[125] ibid
[126] Access to Medicines Platform ‘World mental health Day. The State of mental health in Kenya’ by Mwanaisha 10 October 2020; ibid
[128] Marangu, E., Mansouri, F., Sands, N. et al. ‘Assessing mental health literacy of primary health care workers in Kenya: a cross-sectional survey’, Int J Ment Health Syst 15, 55 (2021); World Health Organization, ‘Experts join forces for mental health in Kenya’, 23 May 2021; >
It’s reported that a major issue is the low awareness of mental disorders, particularly the symptoms of these conditions among the persons suffering from the conditions and the community at large.[130] As a result, mental illness has been marred by myths and misconceptions including being a curse, involving witchcraft and being a spiritual problem, instead of a disease that can be treated and managed if and when diagnosed and managed professionally.[131] Accordingly, people affected often resort to isolation rather than seeking help.
[130] Access to Medicines Platform ‘World mental health Day. The State of mental health in Kenya’ by Mwanaisha 10 October 2020; ibid
Based on the available country information, the Tribunal accepts that mental health facilities in Kenya are poor. While there are many issues which may limit a person’s ability to access mental health care in Kenya, including lack of awareness and resources, there is nothing in the available country information that indicates that the Kenyan government would deny the applicant access to services on a systematic and discriminatory basis. That is, he would not be denied mental health services on a discriminatory and systematic basis in favour of other citizens within the community to the extent that it would amount to a deliberate act or omission on the part of the Kenyan authorities. As a result, the Tribunal finds that the Kenyan government has not demonstrated systematic and discriminatory conduct towards the applicant or people with mental illness.
The Tribunal accepts that it is not possible to monitor whether the applicant would access mental health services in Kenya and that there is a risk that he will avoid accessing any available services. In the event the applicant fails or refuses to access mental health services in Kenya the Tribunal does not accept that the applicant possesses a well-founded fear of persecution because of his mental health condition. That is, any failure of the applicant to access mental health services would not involve systematic and discriminatory conduct[132] and, as such, would not amount to a well-founded fear of persecution in the event he is returned to Kenya.
[132] Section 5J(4) of the Act
The applicant claims because of his mental health he will be stigmatised and face a degree of discrimination, which the Tribunal accepts. However, given the degree of mental illness in Kenya and the recognition by the World Health Organization and Kenyan authorities for improved policies and for the treatment of mental health, the Tribunal does not accept that such discrimination will amount to serious harm.
Finally, the applicant submitted that because of his mental health condition there is a real chance he will be seriously harmed because of his political opinion. The applicant claims that his mental condition has caused his behaviour to be more extreme toward his political opponents and as a result there is a real chance that he would be seriously harmed if he is returned to Kenya. However, the Tribunal has considered the correspondence provided by the applicant. For the reason expressed above, the Tribunal is not satisfied that there is a real chance that the applicant will be seriously harmed because of his political opinion notwithstanding the fact that he suffers from a mental health condition.
For these reasons the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Kenya and as such finds that there is not a real chance, he will suffer serious harm if he is returned to Kenya as a person suffering from a mental illness.
Accordingly, the Tribunal finds that the applicant does not have a real chance of serious harm arising from his mental health condition or political opinion for reasons mentioned in s 5J(1)(a) or any other claimed reasons, if he was to return to Kenya from Australia, now or in the reasonably foreseeable future.
100.Having assessed all the applicant’s claims individually and cumulatively, the Tribunal finds that he does not face a real chance of serious harm, now or in the reasonably foreseeable future, for any reason. The applicant’s fears of persecution are not well-founded for any of the reasons mentioned in s 5J(1) of the Act if he is returned to Kenya and he does not satisfy the criterion in s 36(2)(a).
Complementary protection
101.The applicant claims, without conceding in any way his claims under s 36(2)(a) of the Act, that the same factual matrix may invoke Australia’s protection obligations under complementary protection criteria pursuant to s 36(2)(aa) of the Act. Accordingly, the Tribunal has also considered the application of s 36(2)(aa) to the applicant’s circumstances. That is, the Tribunal has considered if the applicant faces a real risk of significant harm on his return to Kenya based on his claims detailed above. The Tribunal notes that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[133]
[133] MIAC v SZQRB [2013] FCAFC 33
102.Based on the applicant’s own evidence and the available country information referred to above, the Tribunal has made earlier findings that the applicant does not face a real chance of serious harm arising from the applicant’s claims. In particular, the Tribunal has not accepted the applicant’s claim that there is a real chance he will be seriously harmed by the Mungiki or because of his political activities if he is returned to Kenya. As the ‘real risk’ test is the same as the ‘real chance’ standard, for the reasons stated above in relation to each of the applicant’s claims, the Tribunal does not accept that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia because of threats received from the Mungiki or because of his political activities if he is returned to Kenya.
In making the above finding, the Tribunal has considered if there is any reason to believe the applicant will face a real risk of significant harm as contemplated by s 36(2)(aa). Significant harm is different from the concept of serious harm as required by s 5J(4)(b) in the context of s 36(2)(a).[134]
[134] In MZZIA v MIBP [2014] FCCA 717 (Judge Riethmuller,16 April 2014) the Court observed that there is a significant overlap in the meaning of the two terms, e.g. a risk of being killed is sufficient to fulfil both: at [34]
Applicant’s mental health
104.In relation to any claim that there is a real risk the applicant will be significantly harmed upon his return to Kenya by reason of his mental condition, the Tribunal refers to the country information above when considering the applicant’s claim as a refugee. As previously noted, the applicant was lucid and cognisant throughout the hearing and able to give evidence and respond meaningfully to the Tribunal’s questions.
105.Therefore, based on the available country information in relation to the mental health services in Kenya, the Tribunal has accepted that the facilities for mental health care in Kenya are very poor. Based on the available country information the Tribunal accepts that it will be difficult for the applicant to access the necessary care and support in relation to his mental health condition as and when appropriate. In particular, he will have difficulty accessing adequate treatment (e.g. counselling; psychotherapy; medication) for his diagnosed conditions.[135]
[135] Goulburn Valley Health letter dated 1 July 2022; AAT file No 1929111, Doc ID 9937094
106.Generally, the mental health condition of an applicant would not ordinarily trigger Australia’s complementary protection obligations. The applicant claims that because of the lack of facilities for the treatment of his mental health condition in Kenya he fears psychological or psychiatric deterioration. While the Tribunal accepts there is such a risk there is no suggestion in the [Organisation 2] report that any such deterioration in his mental health would be inflicted on the applicant by any person or group. Section 5(1) of the Act provides definitions of torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. In each case, the elements of the definitions require an act or omission by which severe pain, pain or suffering or extreme humiliation is intentionally inflicted on the person. In the applicant’s case, deterioration of his psychiatric condition may arise due to the change in his environment and any potential lapse in treatment, but the applicant’s evidence does not suggest intentional infliction of such (nor indeed, the intentional withholding of treatment for any reason by any person). The Tribunal considers that the possible deterioration in the applicant’s mental health, of itself, does not meet the necessary criteria within the definitions of ‘significant harm’ outlined in s 5(1) for each of ‘torture’, ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’. That harm would not be ‘inflicted’ or ‘caused’ by any act or omission of any person which intended to cause that harm.
107.Nevertheless, the Tribunal does have substantial reasons for believing that the applicant has a real risk of significant harm if he is returned to Kenya by reason of his mental health condition deteriorating for a range of reasons, not least, inconsistent and irregular medical treatment by himself and/or the mental health care system. In this case, the applicant’s schizophrenia has involved violent outbursts in public that have attracted the attention of local police in Australia. The applicant has called the police on several occasions believing that he was in fear of his life. The applicant complained of hearing voices and feared that he was being persuaded into devil worshipping. The applicant has expressed to the police a desire to commit suicide because of his mental condition.
108.According to AMA,[136] the most common reasons for non-compliance include a lack of awareness regarding the benefits of treatment, an inability to afford the drugs, physical side effects, a lack of awareness among doctors, and the stigma surrounding mental health disorders and treatment. In Kenya, people with mental health issues are stigmatised. They are outcast believed to have been cursed or bewitched. As a result, most turn to religion or a local healer.[137] The lack of treatment facilities, lack of awareness and poor economic circumstances represent a hindrance to the effective management and treatment of schizophrenia in Kenya.
[136] AMA ‘8 reasons patients don’t take their medications’ December 2020; Al Jazeera ‘The taboo of mental illness in Kenya’ by Osman Osman 18 April 2016; this case, the question is whether there is a real risk the applicant will suffer significant harm in the event of a likely relapse of his illness due to non-compliance and/or poor outpatient support and the likely consequences following on from that. The applicant’s evidence is that he is estranged from his family. They have effectively cast him out due to his mental health condition. As a result, he has little or no contact with them and will not be able to be supported by them financially or emotionally.
110.In circumstances where the applicant’s offending in Australia has been as a direct result of his non-compliance with and/or lack of treatment for his condition and that has resulted in him being charged and held in custody, the Tribunal finds that there is a real risk of the applicant coming to the attention of the authorities in Kenya arising from pharmaceutical non-compliance and by offending. In such a likely event, the Tribunal assesses the applicant will be detained by the authorities and be subjected to cruel or inhuman treatment or punishment or degrading treatment or punishment.
111.The country information[138] reports that Kenya’s prisons are overcrowded and places of dehumanisation, abandonment and retribution. It’s reported[139] prisoners are brutalised into submission and, along with the police and military, scaring the rest of society into compliance with the state. The National Council on the Administration of Justice found that police generally arrested and charged people for petty offences, with close to half of those arrests occurring over weekends.[140] Thirty per cent of all people arrested are charged, the vast majority for petty offences. Kenya has incarcerated more of its citizens per 100,000 population than any other country in Eastern Africa except for Rwanda and Ethiopia.[141] Approximately fifty per cent of Kenya’s 54,000 prisoners are pre-trial detainees or those held in remand as they await trial. That is, legally considered innocent.[142] Overcrowding, food shortages and insufficient medical care are features of Kenyan prisons.[143]
[138] Prison Insider, ‘Kenya: the dehumanisation and exploitation of inmates in state prisons’, 18 September 2020; ibid
[140] ibid
[141] ibid
[142] ibid
[143] Human Rights Watch ‘Human rights violations in Kenyan prisons’; 7 November 2008; Tribunal does not have any confidence that the applicant will not face a real risk of cruel and inhuman practices due to the widespread abuses practised by Kenyan authorities, should he be detained following one or more psychotic episodes, which will bring the applicant to their attention due to his erratic and threatening behaviour. This includes a real risk of the applicant being denied proper medical and psychosocial care as a sufferer of schizophrenia while in police custody or imprisoned. It accepts that corruption, poor training and poorly remunerated law enforcement systems throughout Kenya, will lead to a real risk of the applicant being subjected to corruption and cruel treatment in the event that he is arrested as a result of behaviour arising from his poor mental health. It accepts that any medium to long-term custody or sentence of the applicant will lead to a real risk of cruel and inhuman treatment or punishment due to the substandard conditions and poor health access that mental health sufferers held in such custody endure.
113.Therefore, based on the applicant’s psychiatric condition and the country information raised, the Tribunal accepts that he would suffer significant harm as a necessary and foreseeable consequence of his returning to Kenya.
114.Therefore, having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Kenya, there is a real risk he will suffer significant harm as required by s 36(2)(aa).
Conclusions
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 Act for the reasons mentioned in s 5J(1)(a). Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a).
116.Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s 36(2)(aa) and is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa). Accordingly, the applicant does satisfy the relevant criteria in s 36(2)(aa) of the Act.
DECISION
117.The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.
Jason Pennell
Senior Member
Attachment–- Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear of persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear of persecution would not exist if it were assumed that the fear of persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
Protection visas – criteria provided for by this Act
…
A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Remedies
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Statutory Construction
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Citations1929111 (Refugee) [2022] AATA 5061
Cases Citing This Decision0
Cases Cited11
Statutory Material Cited0
SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43MZZIA v MIBP [2014] FCCA 717