1931571 (Refugee)

The Administrative Appeals Tribunal considered the case of an applicant seeking a protection visa, who claimed to be a homosexual man fearing persecution in Kenya. The applicant had resided in Australia since 2006, holding various visas before applying for a protection visa in March 2015. His claim was fundamentally based on his asserted homosexuality and a well-founded fear of persecution in Kenya due to this characteristic.

The Tribunal was required to determine whether the applicant was a person to whom Australia owed protection obligations under the Migration Act 1958. This involved assessing the applicant's claim of homosexuality, considering his past actions such as applying for a spouse/partner visa based on a relationship with a woman, and evaluating whether he had a well-founded fear of persecution in Kenya for reasons of his sexual orientation, which constitutes membership of a particular social group. The Tribunal also had to consider whether effective protection measures were available to him in Kenya.

The Tribunal acknowledged that there was a question regarding the applicant's sexuality, noting his prior efforts to conceal it. However, it accepted that an incident in high school where he was beaten by classmates after expressing his sexual attraction was an early exploration of his homosexuality and served as a lesson in discretion. The Tribunal also considered the absence of a country information assessment from the Department of Foreign Affairs and Trade specifically for protection status determination purposes in relation to Kenya. Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the Migration Act, indicating that Australia has protection obligations towards him as a refugee.