1929727 (Refugee)
[2024] AATA 1106
•31 January 2024
1929727 (Refugee) [2024] AATA 1106 (31 January 2024)
DECISION RECORD
DIVISION: Migration & Refugee Division
CASE NUMBER: 1929727
COUNTRY OF REFERENCE: Kenya
MEMBER: Karen Vernon
DATE: 31 January 2024
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 31 January 2024 at 6:52pm
CATCHWORDS
REFUGEE – protection visa – Kenya – particular social group – victim of domestic violence – imputed political opinion – opposition to the Mungiki – threat of public circumcision – fear of physical assault – renewed hope in the political process in Kenya – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 56, 65, 423, 425, 499
Migration Regulations 1994, Schedule 2; r 1.12
CASES
Iyer v MIMA [2000] FCA 1788
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559 at 596
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 35 ALD 1
Subramaniam v MIMA (1998) VG310 of 1997
Sun v MIBP [2016] FCAFC 52
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
In accordance with s 431 of the Migration Act 1958 (Cth), the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant.
STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 October 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (Act).
Visa and migration history
The applicant was born in Kenya in [specified year]. The applicant is not a citizen of any other country and does not have the right to enter or live in any country other than Kenya.
On 5 March 2015, the applicant was granted a 12 month [tourist] visa expiring on 5 March 2015. The applicant first travelled to Australia [in] March 2015 on a valid Kenyan passport. According to departmental movement records, the applicant:
a.departed Australia [in] June 2015;
b.arrived in Australia [in] July 2015;
c.departed Australia [in] September 2015;
d.arrived in Australia [in] October 2015;
e.departed Australia [in] December 2015.
On 27 July 2016, the applicant was granted a [Student] visa expiring on 15 February 2018. She travelled to Australia [in] August 2016 on a valid Kenyan passport.
On 28 January 2018, the applicant applied for a [Work] visa, which was refused on 9 March 2018.
Following the refusal of her [work] visa, the applicant applied for a protection visa on
11 April 2018 on the grounds that she fears persecution in Kenya by reason of being threatened by members of the Mungiki, a Kenyan tribal group, for her opposition to and public criticism of the Mungiki.
On 30 May 2019 the Department sent a letter to the applicant pursuant to s 56 of the Act seeking further information and documentation in support of the applicant’s claims for protection. In response, on 23 June 2019, the applicant submitted a personal statement outlining her claims and 3 letters of reference (see below).
She was interviewed by the Department on 4 September 2019.
On 11 October 2019, the delegate refused the applicant’s claims on the basis that the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2) of the Act. In summary, the delegate:
a.accepted that the applicant organised and ran youth literacy and activity groups via [Church 1 in District 1] parish where she was employed;
b.accepted that the applicant vocalised her opposition to Mungiki gangs to young boys and their parents via community programs run by [Church 1 in District 1] Parish church;
c.accepted that the applicant received a warning from a Mungiki member in late 2013 or early 2014 to desist from criticising the Mungiki and that the applicant did so desist from criticising them;
d.did not accept that the applicant received further or escalated threats to her safety from the Mungiki including threats to publicly circumcise her as a warning to others;
e.found that the applicant received a single warning via her brother and heeded that warning with the result that no further incidents occurred that are attributable to Mungiki gang members;
f.did not accept that the applicant holds fears for her personal safety in Kenya from the Mungiki.
Review Application
The applicant lodged a review of the delegate’s decision with the Tribunal on 20 October 2019.
On 3 August 2022, the applicant filed with the Tribunal a document entitled “Response to Summary of Findings for Protection Visa Refusal Decision”, which was signed by the applicant.
On 8 August 2022, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing to be held on 21 September 2022 pursuant to s 425(1) of the Act.
In her hearing response dated 15 August 2022, the applicant indicated that she did not intend to call any witnesses but did intend to rely on written submissions and country information.
Evidence before the Tribunal
The applicant appeared before the Tribunal on 21 September 2022 to give evidence and present arguments. The applicant was not represented. No witnesses were called, and the applicant did not require an interpreter. The applicant did not file post-hearing submissions or produce any other documents during or after the hearing.
The applicant attended a further hearing on 24 January 2024 due to the passage of time since the hearing on 21 September 2022, and again gave evidence without the assistance of an interpreter. The applicant was not represented.
On 26 January 2024, as requested by the Tribunal, the applicant provided copies of online media articles which she says demonstrate recent activities in Kenya involving a resurgence of the Mungiki sect, and a document called “Additional Comments”.
The evidence available to the Tribunal comprises copies of the Department’s file and the Tribunal’s file including:
a.Applicant’s personal statement dated 23 June 2019;
b.departmental interview with the applicant on 4 September 2019;
c.character references including:
i. copy of a letter from [Leader A], [Position 1], [District 1] Parish, [named diocese] dated 9 April 2018 attesting to the applicant’s work with young people in the church, and stating that he cannot give evidence publicly, as he cannot condemn or judge anyone because he is a pastor of the church;
ii. copy of a letter from [Leader B], Former [Position 2], [Church 1 in District 1] dated 10 April 2018 attesting to her good character and good works at the church;
iii. copy of a letter dated 13 June 2019 from [Leader C], [title] [Location 1], on letterhead from the [Agency 1] [District 1] attesting to the applicant’s good character and community work and stating that the applicant has been threatened by an illegal group since 2015.
d.the delegate’s decision record dated 11 October 2019;
e.the applicant’s evidence before the Tribunal;
f.Additional personal statement of 26 January 2024 relating to the applicant’s ex- husband;
g.copies of the following media articles from various Kenyan online media sources lodged in the Tribunal on 26 January 2024:
i. “How Suspects Aligned with Mungiki Sect Who Were Arrested in Nyeri Turned Cells Into Church” by Nancy Odindo, undated;
ii. “Gema women condemn mutilation of woman, ask Matiang’i to deregister pro-FGM group” by Fidelis Kabunyi dated 7 July 2021;
iii.“Kenya: Ruto accuses opposition of mobilising outlawed Mungiki sect” by Victor Abuso dated 15 June 2023;
iv.“Prosecution Witness In Case Against Maina Njenga Collapses As Hearing Starts” by Wanjiru Macharia dated 21 November 2023;
v.“Mungiki gang on the prowl, claim Central Leaders” by Mercy Mwai dated 23 November 2023;
vi.“Kiambu Commissioner Warns Proscribed Groups” by Kenya News dated 5 October 2023;
vii.“Over 200 arrested as police block former Mungiki leader's meeting” by Purity Mwangi dated 1 January 2024;
viii.“Maina Njenga Followers Break Into Song Inside Nyeri Station” by Brian Kimani dated 2 January 2024;
ix.“Kenya: Fears of resurgence of banned Mungiki sect as hundreds arrested” by Victor Abuso dated 3 January 2024.
ISSUES FOR DETERMINATION
The issues in this review are:
a.whether the applicant is a refugee, pursuant to s 36(2)(a) of the Act; or
b.if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk she will suffer significant harm, pursuant to s 36(2)(aa) of the Act; or
c.whether the applicant is a member of the same family unit as a non-citizen in respect of whom Australia has protection obligations under s 36(2)(a) or (aa) of the Act, and who holds a protection visa of the same class as applied for by the applicant, pursuant to s36(2)(b) or (c) of the Act.
For the following reasons, I have concluded that the decision under review should be affirmed.
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 (Regulations). An applicant for the visa must meet one of the alternative criteria in ss 36(2)(a), (aa), (b), or (c) of the Act. That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion: s36(2)(a)
Section 36(2)(a) of the Act 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: s5H(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) of the Act.
Under s 5J(1) of the Act, a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.
Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA of the Act, which are extracted in the attachment to this decision.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.
“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. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379 at 397.
A fear of persecution is not well-founded if it is merely assumed, or if it is mere speculation:
MIEA v Guo (1997) 191 CLR 559 at 572.
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) of the Act, that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a).
Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b) and (c) of the Act.
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L of the Act. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.
Complementary protection criterion: s36(2)(aa)
If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, 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) of the Act.
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.
In MIAC v SZQRB [2013] FCAFC 33 at [246], [297], the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.
‘Significant harm’ is exhaustively defined in s 36(2A). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer
significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
The mere fact that a person claims fear of persecution for a particular 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’.
Membership of same family unit criterion: s36(2)(b) and (c)
Sections 36(2)(b) and (c) of the Act provide an alternative criterion for a protection visa where an applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa), and who holds a protection visa of the same class as that applied for by the applicant.
Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by r 1.2 of the Regulations.
Assessment of credibility
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal notes that the benefit of the doubt is to be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal must be mindful that if it makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true: MIMA v Rajalingam (1999) 93 FCR 220.
It is important for the Tribunal to adopt a reasonable approach in the finding of credibility. Care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted: Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 at 482 per Foster J.
Section 5AAA of the Act makes it clear that it is the applicant’s responsibility to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient 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. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out: Randhawa v MIEA (1994) 35 ALD 1, 13.
It remains for the applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance: Sun v MIBP [2016] FCAFC 52 at [69].
Section 423A of the Act requires the Tribunal to draw an adverse inference about the credibility of an applicant’s claims or evidence, where the applicant raises a claim or evidence that was not put forward before the primary decision was made. In such cases, if the Tribunal is satisfied that the applicant does not have a reasonable explanation as to why the claim was not raised or evidence not presented before the primary decision, the Tribunal is required to draw an inference unfavourable to the credibility of the claim or evidence. Applicants are, therefore, required to present all claims and evidence to the primary decision-maker unless they have a reasonable explanation for not doing so.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s499 of the Act, I have taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS FOR PROTECTION
According to her visa application, the applicant fears persecution if she returns to Kenya because she has publicly criticised the Mungiki in the past, and they have threatened to physically harm her.
Although the applicant indicated at the hearing that she did not have any additional claims for protection that were different to her protection visa application, during the course of the hearing, the applicant referred to experiencing harm as a victim of domestic violence from her second husband who she thinks may be a member of the Mungiki and may be responsible for the threats against her. This appears to be a new claim for protection that is not contained in her protection visa application.
ANALYSIS OF EVIDENCE, CLAIMS AND FINDINGS
Identity and receiving country
The applicant provided a copy of a Kenyan passport in her name, bearing the date of birth contained in her visa application. The Delegate did not express any doubts as the applicant’s identity and neither do I. I am satisfied as to the applicant’s identity and the validity of her identity documents. I find that the applicant has Kenyan nationality, and that the receiving country for the applicant on this review is Kenya.
Protection in another country
I accept the applicant’s evidence that she does not have a right to enter and reside in a country other than Kenya. I find that s 36(3) of the Act does not apply to the applicant.
Delay in seeking protection
The application for a protection visa was made almost 3 years after the applicant first arrived in Australia in 2015, and almost 2 years after the applicant’s last arrival in Australia in 2016. In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a 3 month delay in lodging a protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fear of persecution.
In the hearing, the applicant said she didn’t apply for a protection visa when she first came to Australia on a visitor visa because she thought that she had to wait until her other visas
ended before applying for another visa. Although the applicant admitted that she read the Department’s website for visa information, she said it didn’t occur to her that she could have applied for protection sooner than she did. She did her own research and made the decision based solely on her interpretation of the available online information.
I do not accept the applicant’s explanation for why she did not apply for a protection visa after she arrived in Australia as credible or reasonable. During the currency of the applicant’s initial visitor visa, the applicant travelled in and out of Australia several times, and before it expired, she applied for and was granted a student visa to study in Australia. This is inconsistent with fearing persecution in Kenya such that she required protection from Australia. She did not contact the Department about her visa options when her study visa ended, and there is no basis for the applicant’s assumption that she had to wait until her student visa expired before seeking protection. I find there is no reasonable explanation for the delay in applying for a protection visa. In the absence of a reasonable explanation, I consider that the delay in applying for protection in Australia casts significant doubt on the genuineness of the applicant’s fear of persecution.
Applicant’s Evidence
Protection Visa application
The applicant’s protection visa application lodged on 12 April 2018 did not contain any details about her claims. The applicant’s responses to relevant questions on the application form stated “I will support this application with all the claim accordingly”.
On 23 June 2019 the applicant provided further information in the form of a personal statement, in which she claimed that she left Kenya for the following reasons:
In April 2004, I was employed as [an occupation 1] at the [Church 1] Parish a local church in the [District 1] location where I grew up. I had served in a volunteer capacity in many other areas of the church mostly working children and young people. One of the biggest challenge the church faces is the Mungiki cult which recruits young boys into the sect. It was heartbreaking to see young people grow up in church and then all of a sudden they drop off school and start doing all sorts of illegal things. Mostly this was due to peer pressure and boredom among these youngsters. It's against this backdrop that I started a church [group 1] just to keep these young people busy and hopefully occupied with something constructive. As the threat of the Mungiki increased, I became more and more vocal about why the community should reject the ways of this illegal group. I started getting warnings from people I didn't know to leave Mungiki business alone. I didn't stop and I thought it was a joke.
The threats increased. Suddenly people I grew up with and known all my life didn't want to be associated with me. I couldn't buy from certain shops. Taxi and [transport] operators openly refused to do business with me. Eventually I moved away from home to [Town 1] to protect my family. I became more vocal as I expected the church would stand by me. I was wrong. While my immediate boss agreed with what I was doing, he agreed his hands were tied as he had to abide by the organisation which meant he couldn't openly support me or my initiative. Condemning Mungiki meant taking sides which the church is and was reluctant to. Suddenly I was marked by the sect and nowhere to turn to.
I reported the matter to the local subchief and chief who explained to me that without actual harm on me [they] wouldn't be able to do anything. [Their] hands were tied. I didn't report the matter to the police as it's common knowledge that Mungiki collides with the
police. It's normally unwise to report as you never know who is in Mungikis pockets. Mungiki gang operates in a very secretive way. Threats and warnings are passed on unanimously through people sourced from other areas different and always outside ones usual residence. E.g. threats to me were issued by people who were not from my location or district making it very difficult to file charges. How do you file charges over someone who showed up gave a warning and disappeared all together?
Why i fear returning home
In 2015 I got a chance to visit my [Relative A] in Australia. The break was well needed and I hoped the mark on will be somehow be forgotten. Unfortunately I went back to realise that I was still a target. I did try to relocate to another part of the country called [Town 1] but that didn't help. The threats continued. I fear if I return the Mungiki will make real their threat of publicly circumcising me using me as an example for anyone else that dares oppose them. A police officer who worked in the sects crackdown is being hunted by the group. See this link. back-to-haunt-apofficer/ If a police officer in active service is afraid what hopes do an ordinary citizen like me possibly have? In a very absurd way, I am seen as an extension of my grandfather's loyalty to the colonialists even though I hardly knew my grandfather.
I listened to the applicant’s interview with the Department on 4 September 2019. Her account of her protection claims was very similar to her evidence before the Tribunal.
Evidence at the hearing
The applicant gave evidence at the hearing which was generally consistent with her personal statement of June 2019.
The applicant was born in Nairobi on [date] and raised in [District 1], Kiambu Province, Kenya. She is of Kikuyu and Bantu ethnicity, and of [denomination]. Her parents are both deceased. The applicant [has number] siblings. [Specified siblings] live in [District 1], and [a] brother lives in [Country 1]. Her siblings all have children of their own. The applicant continues to maintain contact with her siblings.
The applicant completed her school education in [District 1] [between specified years]. In [year] she completed an [course] at [a named college].
The applicant worked in [industry 1] in Nairobi between [specified years]. She married in 1998 and had her first child, a daughter named [Daughter A] in [year]. The applicant divorced her first husband in 2003. [Daughter A] is now living in Australia with the applicant.
After her divorce, the applicant returned to live in [District 1]. She took a job as an [occupation 1] at [Church 1], [District 1] in 2003. The applicant worked in the [Position 1’s] office where she did administrative and pastoral care duties. She established a church youth group for young people in the community. When school was in term, youth came on weekends, but in school holidays, they came 2 to 3 times a week. It started as a [group 1] for primary school children then it evolved into a youth group for older kids.
According to the applicant, in 2003, many local children often did not go on to high school, mainly for financial reasons. Youth who didn’t go to school would hang around doing nothing, and some of them would get recruited by the Mungiki, who the applicant described as a gang within the Kikuyu ethnic group.
The applicant claimed that Mungiki members do not openly say they are Mungiki, but everyone knows they are a part of this group. They collect protection money from shop owners. If they need someone threatened, they will use people from another village to do it.
The applicant claimed the Mungiki do not want Kenyans being westernised or following western ways so they brainwash young people by giving them a cause to believe in, with promises that one day the Mungiki will be in power and they will all be rewarded as followers. They are involved in illegal activities such as drugs, crime and intimidation. Young people in Kenya who end up joining the Mungiki find they cannot leave the gang.
The applicant married her second husband in 2011. Their child, a daughter named [Daughter B], was born in [year] and is now [age] years old. Up until late 2023, [Daughter B] was living in [District 1] with one of the applicant’s [siblings] whilst attending school. The applicant had been paying her [sibling] for [Daughter B’s] upkeep in Kenya. In late 2023, the applicant’s second husband removed [Daughter B] from the applicant’s [sibling’s] care and the applicant does not know where they are living.
According to the applicant, in 2013 there was a reduction in the number of local youth coming to her church youth group, which the applicant blamed on the growing influence of the Mungiki. The applicant began to vocalise her concerns about the influence of the Mungiki to the members of the church youth group and their parents, telling them not to get involved with the Mungiki. The applicant thought the parents and the church would support her but they did not.
When asked if she had experienced any harm in Kenya, the applicant claimed that the Mungiki were threatening her and she wanted to get away from the threats and intimidation. When asked to provide details of the threats, the applicant claimed that the Mungiki sent people to threaten her. These people tell you they have been sent by the Mungiki. They would get the [transport] or taxi operators not to transport her. When you take a stand against Mungiki, they want to retaliate and make examples of you, and the government lets it happen. The applicant also claimed that she lost a [Relative B] to Mungiki. He joined their gang and when he later tried to leave, they killed him and left his body in the road in 2013.
The applicant claimed that the threats included to circumcise her. She did not know the persons who threatened her. She was threatened 3 times or 5 times in 2013, 2014 and 2015. The threats were made by different people each time. This happened in public places. People just came up to her like they were having a conversation. She did not suffer and physical harm during the threats or as a result of them.
When asked to explain the threats in more detail, the applicant claimed the first threat happened in 2013, and included the threat to circumcise her. She did not know the person who threatened her. The applicant received a second threat one week after the first threat. Again, the applicant did not know the person who made the threat. The applicant went back to the Sub Chief who again said there was nothing she could do. The third threat came in the same week as the second threat. The applicant again called the sub chief who said there was still nothing that authorities could do. By this account the first 3 threats were made over 2 weeks in 2013.
The fourth threat came after the church had a big concert. The person who delivered the threat claimed that the applicant was not listening and needed to stop speaking out against the Mungiki. The threat was to circumcise the applicant and to make an example of her for defying Mungiki. The applicant did not give any evidence about when this threat occurred.
The applicant claimed that as the threats against her increased, people stopped associating with her, she could not buy from certain shops and [taxi] operators refused to transport her.
When asked if she reported the threats to the authorities, the applicant claimed that she reported the first 3 threats to the Sub Chief of the local office of the national government. They said there was nothing they could do because the applicant could not identify the person who had threatened her.
When asked if had tried to relocate to another part of the country to avoid these threats, the applicant claimed that sometime in 2013 she moved to the nearby village of [Town 1]. She thought if she lived in [Town 1] and only went to work in [District 1], her life would be easier, but it wasn’t because she was still spending so much time in [District 1] for work where everybody knew her.
The applicant claimed that she stopped vocally criticising the Mungiki towards the end of 2013. After this happened, a number of young people stopped coming to the youth group and numbers dwindled. There were rumours the Mungiki were going around to the families of the youth and telling them not to have anything to do with the church.
In 2014 the applicant claimed that he Mungiki went to her brother [Brother A] telling him that the applicant needed to leave the Mungiki alone. She believes they delivered the threat to her brother to intimidate her. Her brother begged her to stop speaking out against the Mungiki. She told [Brother A] that she had already stopped speaking out against them.
In March 2015 the applicant travelled to Australia to visit her [Relative A]. She claimed she needed to “get away” from what had been happening in Kenya. She obtained a 12-month visitor visa, but said she had to leave Australia every 3 months. On two occasions when she had to leave Australia, the applicant returned to Kenya and on one occasion she went to [Country 2] for a holiday before returning to Australia. When she returned to Kenya on both occasions she claimed she tried to find a house to rent in [District 1] but everyone said they could not give her a house because of her issues with the Mungiki. Eventually her sister rented a house for her in [location], about 10 minutes away from [District 1].
Whilst the applicant was travelling in and out of Australia during 2015, her daughters were attending school in Kenya, alternating between staying with the applicant’s [siblings].
Whilst visiting Australia in 2015, the applicant decided to apply for a visa to study in Australia to pursue her passion for [specified work]. She left Australia in December 2015 and returned to Kenya for 7 months before she returned to Australia in August 2016 to study following the grant of a [Student] visa. The applicant said that she hoped that in the time she was studying in Australia the Kenyan government would be able to conclusively deal with the Mungiki. Unfortunately, by the time the applicant finished her course in Australia she claimed the Mungiki were still very active in Kenya. As long as the Mungiki are not contained, the applicant says she is unsafe and still a target.
When asked if anyone had threatened to harm her between the threats in 2013 and 2014 until when she left for Australia in 2016, the applicant replied in the negative, saying they have no access to her now. When asked if she feared the Mungiki would intimidate her brother or husband to get to her, the applicant replied that she did not think so and her husband has new wife. When asked if she was concerned that the Mungiki would still be interested in her from her previous commentary against them, the applicant replied in the negative, saying “No I don’t have anything left, no husband, not with my children and no platform to work against them.”
When she applied for protection from Australia in 2018, the applicant claimed that it “was so she could wait it out” until her country turned around, because she believed it would turn around. The applicant claimed she was hopeful that Kenya was already changing so that’s why she told the Department officer in her interview in 2019 that she believed Kenya could change and she wanted to go back one day.
When asked if she thought the Mungiki would follow through on their threats to harm her given they didn’t do so between 2013 and 2016 when they knew where she lived and had the chance to make good on their threats, the applicant replied that that Kenya had elected a new government in early September 2022, with a new platform of social and economic reform. They had promised to crack down on all the small groups who cause disruption. The applicant believed Kenya had changed in many ways and was still changing. The applicant claimed that even though the risk is still there, it is not as much as it was when she left Kenya in 2015. Previously she didn’t have the optimism she has felt since the election of the new government, and she now feels optimistic and that’s why she does not have the same fear as before.
I raised with the applicant the statement contained in her daughter [Daughter A’s] Genuine Temporary Entrant Statement in 2017 to the effect that she wanted to complete her studies in Australia so she could join the applicant in a [business 1] the applicant hoped to open in Nairobi. I asked the applicant if she had plans to open a [business 1] in Nairobi and that was still her plan. The applicant confirmed that she did have that plan, and still had that plan as there were lots of opportunities for Kenya to turn around. For the first time in 20 years the applicant said there had been peaceful elections in Kenya, unlike in the past when elections were always violent, with the Mungiki the biggest perpetrators.
I raised my concern with the applicant that her answer indicating her plans to return to Nairobi and open a business there suggests that she is not afraid of the Mungiki and asked the applicant whether she does fear returning to Kenya now. In response, the applicant said:
“Right now, honestly I don’t. Maybe I’m being over-confident but for once Kenya is being run the way it should be.”
When asked if she had anything further to say in support of her claims for protection, the applicant said this:
“I would like to say that my options when applying for the protection visa were very limited. My hope was to have a safe haven until my country turned around, and now it is turning around. Probably if there had been an option for a short term protection visa that is what I would have applied for. It may be stupid for me to be hopeful about Kenya. I think it will take time for Mungiki to be completely eliminated. I would be lying if I said that I’m 100% sure I won’t be harmed.”
Domestic violence
The applicant also claimed that around the time of the Mungiki threats in 2013, there were lots of rumours circulating that her second husband was a member of the Mungiki and that he was fuelling the threats against the applicant. The applicant said she didn’t want to believe it but privately her second husband was saying things to her to the effect that because she was uncircumcised she was “not woman enough”, and the Mungiki would make an example of her.
When pressed to explain why her second husband might be a member of the Mungiki, the applicant claimed that the signs of him being in the Mungiki were there during their
relationship but she didn’t want to accept it. When asked what the signs were, the applicant said the big sign is that Mungiki members do nothing and live off others. Her second husband was never at home, didn’t work and didn’t do anything to provide for their family. She claimed that he was very emotionally abusive towards her from the start of their relationship, and in 2013 he physically abused her for the first time but did not provide any details. She said that it was too difficult for her to talk about the abuse she had experienced as this is not spoken about in her culture and she exhibited signs of distress when she mentioned it.
In her additional written statement submitted to the Tribunal on 26 January 2024, the applicant stated:
“While I find it hard to believe my ex-husband is Mungiki, his lifestyle fits the bill. The Mungiki members survive by running extortion rackets, kidnapping people for ransom, levy protection fees and just thrive on their ability to ‘pocket’ the government officials and authorities. This would explain how he survives without a job and no known source of income. Being in denial only stamps his power over me. Healing is a process and am glad I am empowered each day to admit it and embark on a healing journey.”
Reference letters
The applicant provided a letter of support from [Leader A], the [Position 1] of [Church 1], [District 1] Parish dated 9 April 2018 attesting to the applicant’s work in the church with youth that is consistent with the applicant’s evidence in the Tribunal. Reference is also made to the Mungiki allegedly murdering her [Relative B]. [Leader A] states that he joined the [District 1] Parish in 2017 and he tried to intervene and mediate between the Mungiki and the applicant without success. The applicant had ceased working for the parish in 2016. This is inconsistent with the applicant’s evidence and casts doubts on [Leader A’s] claims he had to intervene on behalf of the applicant in 2017. Whilst I accept [Leader A’s] evidence about the applicant’s good works with the [District 1] Parish, I otherwise give no weight to [Leader A’s] claim to have tried to mediate between the applicant and the Mungiki in 2017.
According to a letter of support from former [Position 2] of the [District 1] Parish, the applicant is her former employee, colleague and friend. She worked for him for 8 years and he commends her for starting the [group 1] for children and expanding it into a youth group having a positive impact on the lives of local young people. No reference is made to the Mungiki or the applicant’s opposition to them. I accept this letter of reference is consistent with the applicant’s evidence about her former work for the [District 1] Parish.
The applicant provided a letter of support from [Leader C], [title] [Location 1], [Agency 1], [District 1] dated 13 June 2019 stating that since 2015 the applicant had been threatened by members of an illegal gang who felt she had curtailed their efforts by openly criticising their illegal operations of recruiting young people into the group. The applicant’s evidence was that the threats occurred in 2013 and 2014, not 2015, and on her own evidence did not receive any threats from the Mungiki after 2014. Accordingly, I give little weight to [Leader C's] letter of reference.
Country Information
A November 2020 report titled ‘The Politics of Crime: Kenya’s gang phenomenon,’ contains useful information regarding the Mungiki including its connections to the Kikuyu:
The Mungiki (derived from the Kikuyu word for ‘the multitude’), perhaps the most infamous of Kenya’s gangs and at one point the largest and most organized, has its origins in the Rift Valley violence. Among those who drifted to the slums of Nairobi were the men who had acted as vigilantes to protect the Kikuyu community, and who had been influenced by Kikuyu religious organizations. They were fodder for the Mungiki’s early recruitment strategies. As examined below, the Mungiki became powerful through its early capture and extortion of the matatu industry, in addition to political patronage. As the group, based in Mathare settlement in Nairobi, became more powerful, its strong Kikuyu profile intensified the ethnic dimensions of existing socio-economic fault lines in the area. Young men recruited by the Mungiki group began to identify and position themselves as Kikuyu (even if they had multiple and/or even different ethnic backgrounds).1
The Global Initiative 2020 report stated that the Mungiki continue to operate although notes a lull in criminal activity.2
Freedom House reported in 2022, in relation to the ability for individuals to exercise political choices, that 'groups such as Mungiki, a Kikuyu-affiliated gang, exert control over daily services such as matatu (minibus) routes in some regions, and may use violence, intimidation, and other extrapolitical means to influence local and national electoral outcomes.’ Sources reported on fears of a ‘resurgence’ of the Mungiki leading up to the 2022 elections.3
Country information generally indicates there are issues with police brutality and corruption within the Kenyan police force which also operates with limited capacity particularly in regional areas. No specific information was located regarding protection being provided from the Mungiki sect. The Mungiki has been subjected to various ‘crackdowns’ by Kenyan authorities since 2007, however sources indicate that local police or political figures may retain affiliations with gangs, including the Mungiki.
The news media articles provided by the applicant suggest that although the government has downplayed residents’ fears of the re-emergence of the Mungiki, there have been tell- tale signs of the return of the gang that spread terror in the region in the early 2000s. Reports suggest that members of the outlawed sect have been regrouping, sometimes attacking those perceived to stand in their way as they extort from Public Service Vehicles (PSVs) and residents of the region. One article in November 2023 referred to nine Members of Parliament calling on the Kenyan Government to crack down on recent attempts to revive and sanitise the activities of the outlawed Mungiki by clandestine forces aimed at destabilising the peace and tranquillity in the central province region and the nation at large. The MPs spoke about a week after former Mungiki leader Maina Njenga said the sect had ceased operations after his retirement, claiming the gang was non-existent, and that he now leads a peaceful Christian initiative, and the Mungiki is not there anymore.
The most recent article posted on 3 January 2024 referred to police intercepting and arresting nearly 300 suspected members of the outlawed Mungiki sect in Nyeri County, Mount Kenya region, on 31 December 2023, who were thought to be heading for a thanksgiving rally organised by Maina Njenga, the former leader of the sect.
Overall, the available information indicates the Mungiki sect may still be active although the media sources vary on their level of control and capability within Kenya.
1 ‘The Politics of Crime: Kenya’s gang phenomenon’, Global Initiative Against Transnational Organized Crime, November 2020, pp. 13-17, 26, 30, 20220915123034
2 Ibid, p46, p53
3 ‘Freedom in the World 2022 - Kenya', Freedom House, 27 February 2022, section B3, 20220303102346
Is the applicant a refugee?
Based on the evidence before me, I find the following as facts:
a.the applicant worked for [Church 1], [District 1] Parish from 2003 until 2016 in a perdominantly administrative role;
b.whilst working for the Parish, the applicant established a [group 1] for children in 2003, which she later expanded into a church youth group providing activities to keep young people in her village occupied after school and during school holidays, which positively impacted on her local community;
c.in or about 2013, the applicant became concerned about the influence of the Mungiki in recruiting local youth into their gang, and she became a vocal opponent of the Mungiki, telling members of the youth group and their parents not to associate with the Mungiki as they were having a detrimental impact on the lives of local youth;
d.in 2013, the applicant received 3 verbal threats in a week from persons unknown to the applicant telling her to stop criticising the Mungiki, including threatening her with circumcision;
e.the applicant reported the threats to the [Sub Chief] in [District 1], however they were unable to offer her protection as the applicant could not identity the persons who threatened her;
f.sometime in 2013, the applicant relocated to [Town 1], a nearby village thinking that would make her life easier but it didn’t as she still spent a lot of time in [District 1] for work;
g.the applicant ceased criticising the Mungiki in response to these threats by the end of 2013;
h.in 2014 the Mungiki approached the applicant’s [Brother A] and told him to tell the applicant to stop criticising the Mungiki;
i.the applicant did not experience any harm in Kenya apart from the threats in 2013 and 2014;
j.the applicant has not received any threats from the Mungiki since 2014.
In determining whether the applicant has a well-founded fear of persecution in Kenya for any of the refugee criterion of race, nationality, religion, membership of a particular social group or political opinion in s 5J(1)(a) of the Act, it is first necessary to determine if the applicant has a subjectively held genuine fear of persecution.
I have accepted that the applicant experienced harm in Kenya in 2013 in the form of 3 threats made within 2 weeks from persons claiming to be from the Mungiki to do her physical harm if she did not stop criticising them, and 1 threat from the Mungiki conveyed to her brother in 2014. I am satisfied that the applicant has not experienced any harm in Kenya from the Mungiki or any other person or organisation since 2014 for any reason.
When asked at the hearing in 2022 what she thought would happen to her if she returned to Kenya in the foreseeable future, the applicant claimed that considering everything that had happened in the past and more recently in Kenya, she does not fear returning to Kenya anymore. She claimed that if was threatened in Kenya now, she thinks the police would help
her. She feels like she would be in a better position to get support. She feels like there is a new dawn in Kenya. She claimed her siblings say they feel safer and that they are being listened to. She said it was like before there was no hope and now there is hope. The applicant claimed that now the Mungiki had no one left to recruit. The applicant said that she realised that meant she probably doesn’t qualify as a refugee.
At the further hearing in January 2024, when asked if her position had changed since her optimism of 2022, the applicant said she has been reading Kenyan news media online to keep up to date. She said that there had been another election since September 2022 and another new government. The new government has revoked the free education for children introduced by the previous government, which the applicant thinks is not good. The applicant claimed that she had been reading media reports suggesting the Mungiki are trying to reinvent themselves into a religious group. She recently read about female members of parliament in the Central Province coming together to ask the Kenyan President to stamp out the Mungiki. After 6 years the applicant said she had thought things would have turned around enough, but perhaps she is too optimistic for Kenya’s future. She then claimed that she still fears returning to Kenya due to the recent reports about the Mungiki.
Having read the media articles provided by the applicant post the hearing, I acknowledge that there are reports of renewed activity by the Mungiki in Kenya in the last 12 months at least.
Based on the applicant’s own admissions that she ceased criticising the Mungiki in 2013, the last threat being almost 10 years ago, and the dissipation of her fear of returning to Kenya since 2022, there is no evidence before me to establish that the Mungiki are still a threat to the applicant if she returns to Kenya now or in the foreseeable future based on the previous threats made against her in 2013 and 2014, and her own evidence that she ceased criticising them following their threats.
Although the applicant gave evidence that there have been rumours about her second husband being a member of the Mungiki since 2013, and that she had experienced domestic abuse by her second husband during their marriage, the applicant did not claim to fear persecution from her second husband for either of those reasons, and as such no claim for protection arises.
Having regard to the applicant’s evidence, taken at its highest, I find that the applicant’s claimed fear of persecution is mere assumption or speculation. I am not satisfied that the applicant has a subjectively held genuine fear of persecution in Kenya as required by s 5J(1)(a) of the Act by reason of the threats made against her from the Mungiki in 2013 and 2014, or for any reason.
In the absence of a subjectively held genuine fear of persecution, the Tribunal is not required to consider further whether there is an objectively well-founded fear of persecution for the same reason: Iyer v MIMA.
Is the applicant entitled to complementary protection?
I have considered whether on the evidence before the Tribunal, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Kenya.
Although I have concluded that the applicant does not have a genuinely held subjective fear of persecution if she is returned to Kenya, that is not a factor in considering whether the applicant is entitled to complementary protection.
The applicant’s only claim for protection is based on the past threats made against her by the Mungiki in 2013 and 2014. The applicant’s evidence is that her fear has reduced to the point where in 2022 she claimed that she no longer held any fear of persecution in Kenya by the Mungiki, and although she could not be 100% certain she would not face some persecution from the Mungiki, she felt confident that she could obtain effective police protection if threatened. Despite the applicant’s evidence that the potential resurgence of the Mungiki reported in the news in the last 12 months has caused her to again fear return, there is no other evidence before more that the applicant is at risk of harm, and the available country information does not substantiate that the applicant is likely to be at risk of harm from the Mungiki.
As observed above, the threshold for the ‘real risk’ element in the complementary protection under s 36(2)(aa) of the Act is the same as that for the ‘real chance’ test in the refugee criterion under s 36(2)(a) of the Act.
Having regard to the applicant’s evidence, taken individually and cumulative, and the country information, I find that there is no real risk that the applicant will be subjected to significant harm resulting from an act or omission by which she will suffer arbitrary deprivation of her life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment as defined in the Act.
Accordingly, I am not satisfied 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 that she will suffer significant harm pursuant to s 36(2)(aa) of the Act.
CONCLUSION
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, I have considered the alternative criterion in s 36(2)(aa) of the Act. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Karen Vernon 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
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a
well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of
serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well-founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii) any other member or former member (whether alive or dead) of the family has ever experienced; where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii) holds a protection visa of the same class as that applied for by the applicant. (2A) A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
…
Key Legal Topics
Areas of Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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