1935215 (Refugee) [2021] AATA 4889 (9 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1935215
COUNTRY OF REFERENCE: Kenya
MEMBER:Susan Hoffman
DATE:9 November 2021
PLACE OF DECISION: Perth
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 09 November 2021 at 11:49am
CATCHWORDS
REFUGEE – protection visa – Kenya – Federal Circuit Court remittal – particular social group – homosexual man – race – mixed race family – unemployment – fear of detention – fear of physical assault – limited knowledge of the gay community in Australia – delay in applying for protection – impact of the COVID-19 pandemic – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 48, 65, 91, 499
Migration Regulations 1994, Schedule 2CASES
Applicant A v MIEA (1997) 190 CLR 225
Applicant LSLS v MIMA [2000] FCA 211
F v MIMA [1999] FCA 947
MIMA v B (2000) 105 FCR 304
MIMA v Gui [1999] FCA 1496
MIMA v Haji Ibrahim (2000) 204 CLR 1
MMM v MIMA (1998) 90 FCR 324
S395/2002 v MIMA (2003) HCA 71; (2003) 216 CLR 473
Shah v MIMA [2000] FCA 489Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 4 December 2013 to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Kenya, had lodged his protection visa application form with the Department on 29 April 2013 and paid a $30 fee on 1 May 2013 in relation to the visa application.[1]
[1] Court documents state that the applicant lodged his protection visa application on 29 April 2013 whereas Department and AAT records show the lodgement date to be 1 May 2013. This discrepancy makes no difference to the Tribunal’s decision.
The applicant sought a review of the delegate’s decision with the Refugee Review Tribunal (RRT) which affirmed the delegate’s decision on 4 June 2014 (the RRT decision).
The applicant successfully appealed the RRT decision and [in] November 2019, the Federal Circuit Court (FCC) remitted the application for review to the Administrative Appeals Tribunal (AAT) for reconsideration.[2]
[2] In June 2014, the relevant review body was the RRT. On 1 July 2015, a number of Commonwealth tribunals amalgamated. From then, the relevant review body was the AAT, and in relation to protection visa cases, specifically the Migration and Refugee Division of the AAT.
In brief, the applicant sought protection on the basis of his sexuality. The RRT member was not satisfied that the applicant was homosexual or would genuinely seek to be homosexual in Kenya then or in the reasonably foreseeable future, should he return there. The decision was remitted for reconsideration on the basis that the RRT member failed to engage in an active intellectual manner with the evidence of a critical witness on a matter central to the applicant’s claim to be owed protection.
The applicant appeared before the Tribunal on 14 October 2021 to give evidence and present arguments.
The applicant was not represented at the AAT hearing and did not request any witnesses be heard. He did not make any pre-hearing written submissions. No interpreter was required.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Mandatory considerations
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. There is no DFAT country information report in relation to Kenya.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case concerns the applicant’s sexuality and whether or not there is a real chance he would face serious harm or a real risk he would face significant harm should he return to his country of origin. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
According to departmental records, the applicant has been known as [the applicant’s name], and not another name. He claimed to have been born in Nairobi, Kenya on [date]. He claimed to be of the Christian faith and, through his parents, now deceased, linked to the Luhya and Kikuyu tribes.
The delegate accepted that the applicant is who he claimed to be and, on the evidence before it, the Tribunal is also satisfied as to the applicant’s identity. The Tribunal finds therefore that Kenya is the country of reference for the purpose of assessing the applicant’s refugee protection claims, and that Kenya is also the receiving country for the purposes of s.36(2)(aa) provisions.
There is no evidence before the Tribunal to suggest that the applicant has an enforceable right to enter or reside, temporarily or permanently, in a third country. The applicant is therefore not excluded from protection by the operation of s.36(3) of the Act.
The history of this case is unusual and complex. The applicant’s visa history was summarised in another AAT case, decided on 26 July 2016 which concerned the Department’s refusal to grant the applicant a bridging visa. The summary is as follows:
·[The applicant] arrived in Australia [in] July 2006 as the holder of a [student] visa.
·The visa was cancelled on 4 August 2009 because [the applicant] was neither enrolled nor studying in his course since October 2007.
·[The applicant] was granted bridging visas on the grounds that he was seeking review of the cancellation decision. The Migration Review Tribunal affirmed the decision to cancel the visa on 31 August 2010.
·The bridging visa ceased on 7 October 2010, and [the applicant] became an unlawful non-citizen.
·[The applicant] was detected working unlawfully [in] April 2013 and was taken into immigration detention.
The applicant lodged his application for a protection visa a few days later, on 1 May 2013. As noted earlier, this was refused by a delegate on 4 December 2013. The RRT affirmed the delegate’s decision on 4 June 2014. The applicant filed an application in the FCC seeking review of the RRT decision. The application was heard [in] July 2015. Judgment was reserved from that date.
On 26 July 2017, the applicant was identified by the Department as being a “fast track applicant”. The Minister exercised his power under s.48B of the Act to allow the applicant to apply for a protection visa.
On 13 September 2017, the applicant lodged a second application for a protection visa, this time as a fast track applicant.[3] The applicant attended a second departmental interview on 19 October 2017. The delegate decided on 27 October 2017 to refuse to grant a protection visa to the applicant.
[3] According to [case number], the lodgement date was 13 September 2017 and according to [case number], it was 8 September 2017. The Tribunal does not have access to IAA records to ascertain which date is correct. The difference in dates does not affect this decision.
On 30 October 2017, the matter was referred for review to the Immigration Assessment Authority (IAA) and [in] November 2017, the IAA affirmed the decision not to grant the applicant a protection visa.
[In] December 2017, the applicant filed an application in the FCC seeking review of the IAA decision.
The judicial review application arising from the IAA decision was independent of the judicial review application arising from the RRT decision.
As recorded in [case number], it was agreed that the application arising from the 2014 RRT decision would be heard at the same time as the application arising from the 2017 IAA application but that a separate judgement would be made in respect of each.
[In] November 2019, the FCC remitted the RRT decision to the AAT for reconsideration. [In] December 2019, the FCC remitted the IAA decision to the IAA for reconsideration.
[In] February 2020, the IAA reconsidered the applicant’s claims and [in] March 2020, the IAA again affirmed the delegate’s decision under review. The Tribunal understands that the IAA referred to the RRT decision in arriving at its decision and did not interview or conduct a hearing with the applicant.
Regarding this review, the Tribunal acknowledges the difficulties faced by an applicant in a formal hearing, recounting events from years past. If an applicant’s account is generally credible, the Tribunal will extend the benefit of the doubt to specific claims which the applicant cannot substantiate. At the same time, the Tribunal is also required to test the evidence and critically evaluate it. In this review, the Tribunal has the benefit of evidence before it from the delegate’s interview and the RRT hearing.
The applicant was not represented at the AAT hearing, and there was no evidence of him getting legal advice in preparation for the AAT hearing.
The applicant said that he was able to access pro bono legal services for his court appeals but could not access them in relation to this review. He said that he did not have work rights but since the FCC remittal, he had received financial and practical support through the Status Resolution Support Services (SRSS) program. As he relied on the SRSS program, he could not afford to engage a representative for this hearing.
The applicant said his pro bono lawyers had told him his case had been remitted to the AAT but he was not told why. He said he was told by the lawyers then when the matter was sent back to the AAT for review, the Tribunal would look at the points the court made as these were where the errors were. It appears, then, that the applicant was of the view the AAT hearing would be restricted to, or focused on, the reason the case was remitted rather than conducting a new review of the delegate’s decision. He said he thought the hearing was about what was relevant then (the time of the visa application) rather than now.
The Tribunal asked the applicant about witnesses. He said that the witnesses that he had for the RRT hearing were not available now. It was a long time ago since then and they were working away. He said the advice he got was that basically this Tribunal would look at what he had put in before. The applicant said he did not have any new witnesses and would have to rely on what his original witnesses said.
The Tribunal is of the view that the applicant is disadvantaged compared to other protection visa applicants as he was unrepresented for this hearing. It may be the process was not explained to him properly by his pro bono lawyers after the FCC decision was made or that he misunderstood what he was told. In any event, the Tribunal has made due allowance for the fact that the applicant was not represented for the AAT hearing. Had he been, it is possible that pre-hearing submissions would have been made on his behalf and the value of having witnesses at the AAT hearing would have been made clear to him.
That said, having listened to the recording of the RRT hearing and the evidence of the two witnesses, the Tribunal is of the view their evidence can, and should be, relied upon for this review. The Tribunal sets put below the evidence given at the RRT hearing.
Previous decision-makers did not find the applicant credible. The Tribunal could not identify a good reason to doubt his credibility. He gave evidence in a manner that was open and forthcoming. He responded to questions. He acknowledged the difficulty in proving that he is homosexual as it was, in his words, an internal thing.
Previous evidence and hearings
The applicant provided the Department with Form 866C dated 26 April 2013 and Form 866B dated 31 May 2013. The former was for applicants who wanted to submit their own claims for protection and the latter was used when a person had a representative to assist them.
In Form 866C, the applicant wrote that he was Christian and belonged to the Luhya and Kikuyu ethnic groups. He wrote the following about his protection claim:
·He feared harm if he returned to Kenya because he had changed from being attracted to the opposite sex, to being attracted to the same sex.
·This happened after he was in a long relationship [with a woman] that ended dramatically, causing him to turn to men.
·He then received threats and insults.
·In his culture and religion, it is considered immoral for boys and men [to be same-sex attracted] which is why he kept it a secret.
·There would be discrimination from his community that would cause unemployment.
·He would suffer victimisation and hindrances with, for example, getting jobs, accommodation.
·The following responses were given in answer to the question “Who do you think may harm/mistreat you if you go back?”
oThe community, people who may have known him before or that he might encounter, friends and some relatives.
- The authorities in Kenya do not agree with men being with men and lock people like that up with no reason.
oThe applicant’s parents come from two different ethnic groups – the Luhya and Kikuyu tribes – that were hostile to each other after the 2007 elections. Neither tribe agreed with his parents marrying each other as they were not from the same tribe.
Form 866B recorded the same personal details and referred to an attached statement of claims with regard to the applicant’s protection claims. In an undated statutory declaration made at [a named] Detention Centre, the applicant made the following claims.
·He fears returning to Kenya because he believes he will suffer persecution due to his membership of a particular social group – gay men in Kenya.
·He was in a relationship with a girl who was also from Kenya. Prior to that relationship breaking down completely, he had a sexual encounter with a gay man. This led the applicant to acknowledging to himself that he could be gay. Before this, he had not been aware he had sexual feelings for men. In Kenya homosexuality is repressed and illegal.
·Since that time, he has only had relationships with men.
·He feared that if he returned to Kenya, because he is gay, he will face severe discrimination and degrading treatment from the community and his relatives. He was unsure if they were aware that he was gay as of his relatives, he has told only his cousin who lives in [Country 1]. He feared that if he found out, he would be ostracised and humiliated by them.
·He would be victimised by the general community and it would be difficult for him to find work if people became aware that he was gay. It would be difficult for him to get a decent job.
·He could not live openly as a gay man in Australia as same sex activity is prohibited. The Kenyan authorities will persecute him because he is gay. If he was caught with another man by the authorities, he would suffer from degrading and humiliating treatment, and be detained.
·In his culture and religion it is considered immoral for men to be together, and if people find out, it could lead to severe discrimination, which is why he has kept his sexuality a secret.
·He has received what he perceived to be insults about his sexuality from friends on his [social media] page which led him to changing his account and his contact details.
·He was concerned about returning to Kenya and being pressured to join either his father’s tribe or his mother’s tribe; and that if the other tribe came to know he was gay, he worried that they would harm him.
·Family homes have been burnt down in Kenya over family disputes. Neither tribe approved of his parents’ marriage due to tribal tensions. The tribes fought each other after the 2007 elections.
The delegate’s interview
The evidence given by the applicant at the delegate’s interview on 31 July 2013 is summarised as follows:
·His parents were from different tribes so it was like an intermarriage. The relationship between the families was okay until his father died in November 1992, and there was some friction about an inheritance. The inheritance was of no concern to him as when his father died, he was then too young to know much about it. It was his uncles on his father’s side who wanted some of what had been left to other relatives. His father had owned land. He never followed up on the inheritance issue.
·The applicant’s mother passed away in 2009, when the applicant was in Australia. She had a shop selling [products]. When he was a teenager, he would help her out in the shop.
·He has an auntie and cousins in Nigeria, cousins from both sides of the family. Some he was in contact with and some not.
·Female cousins looked after him as he was growing up and while his mother worked. They were like sisters to him and he called them sisters, although they were his cousins. He has no biological siblings.
·The applicant said that after breaking up with his girlfriend in about May 2009, he met a man and had a relationship with him. He had a few relationships with men.
·He said that his mother had been supporting him financially and she died in 2009. He needed a place to stay after breaking up with his girlfriend.
·Before his girlfriend, he did not think he had any homosexual feelings. Since seeing the man, he has not had a girlfriend.
·The applicant had a friend who was not gay. They went to [Location 1] in Perth city. At this time the applicant needed somewhere to stay and met another man who was a friend of a friend, and he was gay.
·This man, [Mr A], offered him a place to stay. After a few days, he went and had a look and accepted the offer. He moved in and stayed with him for about two months. He said that he knew gay people from his own country and had no problem with them.
·When asked about the first time he had sexual relations with this man, the applicant said that they were a bit drunk and one thing led to another. [Mr A] approached him and he did not refuse it. Before this, he did not see himself as gay.
·The applicant said that [Mr A] wanted to go to Sydney and then travel, which was of no interest to the applicant. [Mr A] was a good friend to him, gave him a place to stay and supported him, and helped him find another place to stay. [Mr A] went to Sydney a couple of months after they stopped sharing a place. After [Mr A] went to Sydney, they kept in touch maybe twice then [Mr A] went to Europe and they did not contact each other again.
·After living with [Mr A], the applicant shared accommodation with an older man. The applicant would go to [Location 1], and meet men there for one-night stands, usually going back to the other man’s place. At the time he was sharing with the elderly man, he did not think it was appropriate to bring anyone into the house. He thought he had three one-night stands in the three years after [Mr A] left.
- The applicant was asked if he thought he would be homosexual in the future. The applicant said that he was then and did not know what he would be in the future. But at the present time he would not partner with a girl. He said he was not attracted to girls, and was seven out of ten attracted to men. He said it was possible to be both [attracted to men and women] but he was let down by his girlfriend. The applicant said he felt understood by [Mr A], more than by his girlfriend. If he went back into one of those relationships, it would be with [Mr A]. He said he looked at girls and would talk to them but did not feel attracted to them.
·The applicant was asked what he knew about the gay community in Perth. He answered not much, he has not followed it up. He said that he knew being gay was not illegal in Australia and was accepted. He said he identified as gay but did not know much about the gay community in Perth.
·The applicant said there was a man in the Kenyan community [named] who was gay. He was a friend but not a close friend. He would see him playing [sport] or at a Kenyan community event. He has not spoken to his other friends about being gay.
·He went to [Location 1] and other places about twice a month. He was not into going out much. If he wanted to meet a gay man, he would go to [Location 1], and go by himself.
·He did mix with the Kenyan community from time to time and was involved in, for example, fundraising activities. He was not involved in a formal way in Kenyan community organisations.
·Most of the Kenyans he knows in Australia, he met here, at university or as friends of friends or at parties such as a birthday party. He said they do not know he is gay. It his personal life. He has told two of his friends, [Friend A], and another woman who told her husband.
·He said he told [Friend A] as he had known her for a “fair bit of time” and was someone he trusted. She was there when his other problems were happening, helped with money for food and things like that. She visited him in detention and knew he was applying for a protection visa.
·The delegate asked if they could call her. The applicant said that his usual contact with her was on [social media] or she would ring him as he did not have a mobile phone. The applicant offered to contact her for the delegate but said he did not her phone number with him and did not have a mobile phone in detention. The delegate said he could get her phone number from [social media]. The applicant said he could go onto [social media] and ask her for her number and if she was using it at the time, he could get it that way.
·The delegate suggested he could get her number from the detention centre administration. He asked the applicant if he minded if he (the delegate) contacted [Friend A] to ask her about the applicant. The applicant did not voice any objection to that. He said it was up to her what she said.
·The applicant spoke about tensions between the two major ethnic groups in Kenya, which have been there for generations. He referred to the post-election violence in 2007 and that there was more security and less violence in the elections held in 2013; there was some violence in 2013 but not as bad as in 2007, in some areas.
·The applicant said that if he went back to Kenya, his main fear was from the authorities. The delegate said that the laws against homosexuality were not enforced. The applicant said that if it became known, a person could be attacked by neighbours and the authorities would not assist. They would lock up the gay person.
·The delegate said that there were reports of police in Kenya helping and rescuing gay people. The delegate said you could not walk into a police station and ask for help. The police might do worse things.
·The delegate asked how people in Kenya would know he was gay as he said he was a private person and would not tell people himself.
·The applicant said he told his cousin in [Country 1], to whom he was close. He told her from the beginning. He did not know if relatives in Kenya knew as she may have said something.
·The applicant said that he tried to get a copy of his mother’s death certificate as he was asked to do that by the Department, and he asked a cousin in Kenya to help him with that. She responded that she did not want anything to do with him. He does not know why she refused to help, and did not want to ask her, but it could have been because his cousin in [Country 1] told her about him being gay.
·The delegate told the applicant he did not believe he was gay. The applicant said that he had given names of people the delegate could talk to, specifically his cousin in [Country 1] and one of his friends here.
At the hearing the representative submitted that the applicant had good reason for being discrete about being gay while in Australia because of a concern if he was to return to Kenya and it was known. She also said that the applicant had let a couple of people know about him being gay and he will try and get them to submit testimony although that could be difficult for him because he was in detention. The delegate said he was not sure of the value of doing that or the weight he would give to that evidence
In his decision record, the delegate wrote that he advised the applicant that he (the delegate) expected the applicant, as a gay person, to have some knowledge of the gay community. The applicant said in response that he knew of one gay club, [Location 1], and another pub which, on occasion, hosted nights designed to attract gay clientele. He was asked how he met other gay men and said that he did so by going to [Location 1] and to other straight nightclubs.
The delegate recorded that he advised the applicant that based on his lack of knowledge of the Perth gay community and his lack of gay friends, the delegate questioned whether he was homosexual as he claimed.
After the hearing the delegate wrote to the applicant seeking an explanation as to why he realised he was gay sometime in 2009 yet did not apply for a protection visa until 1 May 2013. The applicant’s representative responded by submitting the following.
·Before he was detained [in April 2013], the applicant did not know there was a protection visa he could apply for.
·When the applicant told his case manager why he could not return to Kenya, his case manager told him about the protection visa. He would have applied earlier had he known he would meet the criteria. The applicant stated that he believed a visa for refugees would apply primarily to people fleeing conflicts in their home countries rather than someone in his situation who is afraid to return to his home country because of his sexuality.
In his decision, the delegate questioned the credibility of the applicant for the following reasons:
·His lack of knowledge of the gay community in Perth was inconsistent with his relatively young age and the testimony he provided about the frequency of his social outings.
·His lack of gay friends in Perth was inconsistent with his relatively young age, single status and the testimony he provided about the frequency of his social outings.
·His failure to apply for a protection visa shortly after realising he was gay indicated that he did not fear harm on return to Kenya as he is not gay as he claimed.
The RRT hearing
A written submission dated 7 February 2014 was provided to the RRT. This made the following claims:
·The applicant became aware in 2009 that he had sexual feelings for men after he had an encounter with a gay man. This led him to acknowledging that he could be gay. Since that time, he has only had relationships with men.
·According to UNHCR Guidelines on International Protection No.9, a person’s links to and knowledge of the gay community in a country where they are seeking asylum are not an indication that the person is not LGBTI. Lack of engagement with other members of the LGBTI community in the country of asylum, or failure to join LGBTI groups there, may be explained by economic factors, geographic location, language and/or cultural barriers, lack of such opportunities, personal choices or a fear of exposure.
·The applicant has, for the most part, kept his sexuality a secret due to his fears that he will face severe discrimination from society and also his relatives and community if he returns to Kenya.
·The applicant stated in his interview that he had told a couple of friends in Perth and gave the name of one of them to the delegate as a potential witness and the delegate did not follow that up.
The evidence before the Tribunal from the RRT hearing held on 14 February 2014 includes a recording of the hearing, a transcript of that recording prepared by the applicant’s lawyers for his court appeal, and the RRT decision statement of the decision made 4 June 2014. Parts of the recording are completely inaudible or very hard to hear which is reflected in the transcript. The Tribunal has determined that some phrases or short sentences were transcribed incorrectly.
The applicant’s evidence at the RRT hearing was broadly consistent with what he said at the departmental interview although there were some differences, and he gave more detailed answers at the RRT hearing.
The applicant said that his last relationship with a woman was with [Partner A], a woman from Kenya and he was with her for six or seven months. He said that after his visa was cancelled and he could not work, they started fighting and arguing over money and because he could not help out with bills. Their relationship broke down and she kicked him out of the home. He said that he was homeless for a while and a friend came to see him and they went out for a drink at [Location 1]. A friend of his friend sat with them, they had a few drinks together and the applicant told him about his problem. This man offered the applicant his spare room to stay in for a while until the applicant sorted his issues out. He said that this happened in mid-July or August 2009.
The applicant said that on the first night they were drinking, and started flirting and dancing together and from there, they had sexual intercourse. He ended up staying there five to six months. The applicant had told the delegate he stayed there for two months. This is the only significant difference between what the applicant told the delegate and his evidence since then. The Tribunal returns to this inconsistency below.
The RRT member asked the applicant the name of the man he stayed with and to spell it out. The applicant said [Mr A] and spelt [spelling of family name]. The family name appears to have been misheard for the purposes of the transcript as it is written there as [variant].
The applicant said that [Mr A] worked as a [occupation 1] or that kind of thing. He was going back to [Sydney] where he was supposed to be with his family, and then onto a family holiday in Europe. He said that after [Mr A] returned to Sydney but before he went to Europe they stayed in touch but were not in contact after [Mr A] left for Europe, and he no longer had his contact details.
The Tribunal observes that by this time, based on the applicant’s claims, more than four years had passed since the end of the relationship. The applicant said that since then, he had a couple of brief sexual encounters with other men.
The applicant said that he was not too sure whether he was gay when he was with [Mr A] and it was really the next relationship, he had that he realised he was gay.
The applicant said that [Mr A] cared a lot about him and tried to help him. He felt that it was something like love that they shared together.
In response to being asked if he had told anyone in his family about his claim that he was homosexual, the applicant said that he told his cousin who was studying to be [an occupation 2] and at the time he told her, she was in [Country 1]. He said that she was the closest person to him and was the cousin he always contacted and remained in contact with since coming to Australia. He said that they talked about everything. They had grown up together and lived together, and they did talk about relationships.
The applicant said that when he first told her, she was shocked and thought he was lying to her but after talking to her a few more times, she raised the issue and accepted that he was gay. He said most of their communication was by phone and they spoke about once a month. He said she was the only family member he had told that he was gay.
The RRT member asked the applicant whether he had told friends in Australia that he was gay, and he said that he had told [Friend A].
When asked about gay communities and organisations in Australia, the applicant stated that he had not been involved with them and did not know anything about them but he had seen the gay pride parades in Sydney when they were on the television.
The applicant said that he had not really been around gay organisations in Australia because of the culture as it was a different culture here. He said that if there were gay organisations in Kenya, they would be different to the organisations in Australia.
The Tribunal understood from this that the applicant was saying because of cultural differences between the two countries, gay organisations in Australia did not attract him.
Two witnesses gave evidence at the RRT hearing, [Friend A] and [Friend B].
[Friend B] was then a few days from her [specified] birthday. She gave her profession as being [an occupation 3] and that her nationality was [mixed]-Australian citizen. She said that she met her husband in 2007 and at the time she met him, she was with her friend and he was accompanied by the applicant. They stayed friends since that time. She said that her then-future husband was from [Country 2].
[Friend B] said that when she first met the applicant, she did not know he was gay, but she started to notice things about a year later, just little things and she had a feeling about him.
[Friend B] said that after she started to live with her now-husband in August 2007, they used to spend a lot of time together with the applicant. They used to go out and party a lot, and she noticed that the applicant was a bit different from the other guys who would be interested in picking up women which was more usual for their culture. She did not take that to mean that the applicant was gay but that he was less promiscuous than the other guys. She remembered him having a girlfriend a year or two after she met him.
[Friend B] said she thought it was in the beginning of 2010 that he told her he was gay. She was asked to describe the circumstances. She said that they had guests at her house and she was pregnant with her daughter. She and the applicant were just sitting and talking. They were close friends by then. He said he thought he was homosexual. She said she had the impression he was conflicted about it, scared about what people might think, especially other men in the same circle of friends.
[Friend B] said she could not recall exactly what he said, and that he had a funny way of saying things without saying them. She said that he said he could not fight his feelings any more and she knew what he was about to say before he said it which was that he thought he was gay. She told him that was okay but she felt nervous for him because she did not know what others would say, and she was wondering what her husband would say. She said that she thought he told her because it was eating him up inside and also that he knew she would not judge him, and would probably do the opposite and support him.
[Friend B] said that she did not know but had a feeling that the applicant had told the other witness, [Friend A], that he was gay. [Friend B] said that she probably did ask him if he told anyone else, and she thought he said no. She could not recollect what else he said but remembered having a feeling that if anybody else knew, it would be [Friend A].
[Friend B] said that she had met the applicant’s girlfriend and became friends with her and that was the only girlfriend of his that she could recall. [Friend B] said she had not met any of his male partners but had heard, not from him, that he was living with a man. She was not sure who she heard that from. [Friend B] said that she thought the man’s name was [variant of Mr A]. She was not quite sure if they were together or not.
The applicant was asked if he wanted to comment on what [Friend B] had said. The applicant said he could not remember telling her that night; they had been drinking, and he was drunk.
The RRT member expressed his surprise that the applicant could not recall telling a close friend about his sexuality. The applicant responded to this but the quality of the recording is patchy in places and the Tribunal could not make out what he was saying.
[Friend B] said that before she was pregnant they used to drink an awful lot and be heavily intoxicated on spirits. She stopped drinking when she became pregnant. She said that what the applicant said rang true to her as she had been told things she had said or done when she had been very drunk which she could not recall.
[Friend B] said that she could not remember the applicant’s precise words when he told her he was gay but she could remember how he looked. He had his head down. He was really drunk. She said that she had been the same situation where alcohol was such a big part of their lives and she had told her deepest, darkest secrets to people when under the influence of alcohol.
The Tribunal observes that it would have been in the applicant’s interest to say that he did remember telling [Friend B] he was gay. The fact he did not do this suggests he was being honest when he said he could not recall telling her he was gay.
[Friend A] then gave evidence. She was then [age] years old and said she was a stay-at-home mother who cared for [an age]-year old child. She said she had been good friends with the applicant since 2008 which was eight years before the hearing. They had met a nightclub.
[Friend A] said that it was towards the end of 2009 when he opened up to her about his sexuality. At the time they were in [Location 1], which was a gay bar and they could dance there.
[Friend A] said that he told her he was gay. She said she was not too surprised and it did not bother her. He was not open about it with many people and he did not like to talk about it. She said she knew that [Friend B] knew as well. [Friend A] said that she had met [Mr A] once. She did not know how long they had been living together. [Friend A] was asked how she knew they were gay, rather than just sharing a house or a room.
[Friend A] said they seemed quite open with each other. She was asked to explain. Part of her answer is not clear from either the recording or the transcript but is clear that she said “sat next to each other and hold hands and peck kissing…Peck. A kiss. Nothing too extreme.” She made further comments at this point in the hearing, but they cannot be heard from the recording.
[Friend A] said that she met [Mr A] with her partner at the applicant’s home where he lived with [Mr A].
[Friend A] was asked if she had any additional evidence of the applicant being gay. She said they went to the gay bar quite a lot, and that was where he would have been comfortable. She said they went out about six times a week and went to [Location 1] at last once a week between 2008 and 2010, or usually to [Location 1]. [Friend A] said that in Kenya she had seen what happened to people who opened up about being homosexual. It was hard so people usually tried to hide it and cover up and pretend they were straight.
[Friend A] said that she told the applicant that, as a gay man, he could not go home. She said that perhaps early 2012 (she was unsure of when), she told him he should go to the Immigration Department and tell them the truth about his sexuality and tell them why he should not go home. She said that she did not know much at all about protection visas, only what she had seen on television. She could not recall what he said in response, only that it was hard for him.
Based on the recording rather than the transcript, [Friend A] said that sometimes you could see the applicant in public not feeling too comfortable; he was not sure what to do and whether to pretend to like women or be himself and be happy.
[Friend A] also referred to rumours about the applicant being gay, in the form of gossip at parties. She gave further evidence on this point that was inaudible and does not appear to have been recorded in the RRT decision.
The RRT member asked the applicant what being homosexual, being gay, meant to him. He said it was two people of the same sex being together for one night, two people of the same sex who have a passionate relationship with each other, who have same sex feelings. He said it could be two females or two males, being together, caring for each other, passionate with each other.
The applicant was asked about his feelings when he was with [Mr A]. He said that he saw someone who was really caring, who cared a lot about him (the applicant). [Mr A] made sure the applicant was okay. He listened to the problems the applicant had. The applicant gave other evidence on this point but it was inaudible.
Having listened to the witnesses give their evidence, the Tribunal formed the view that they were being truthful and spoke of what they had observed and heard. The Tribunal notes that the RRT member stated that he did not consider that they had fabricated their evidence, but he did not accept that their observations or feelings were conclusive on the question of the applicant’s sexuality.
The AAT hearing
The applicant said that he feared returning to Kenya because he was gay, because of tribal tensions and violence that can erupt when there is an election, and because his details were made publicly available when there was a data breach.
The reference to a data breach concerned an incident in February 2014 whereby the then Department of Immigration and Border Protection (DIBP) accidentally published personal details of over 9,000 people who were in immigration detention at that time. DIBP had published a report which included an embedded spreadsheet containing the personal details. The spreadsheet was accessible from DIBP’s website for eight days, until a journalist notified DIBP of the error.[4]
[4] Jenkins, S. (2021) Home Affairs ordered to pay asylum seekers over data breach, accessed 2 November 2021 at
The applicant was detained in immigration detention centres between April 2013 and December 2016. His applications for bridging visas were refused because, based on his previous behaviour, the decision-makers were not satisfied that he would abide by conditions attached to them.
The Tribunal noted there was no evidence before it that since being released from detention in December 2016, the applicant has failed to comply with his visa conditions. The applicant said that now when he changes address, he tells the Department. He said that in relation to his student visa and bridging visas, he was naïve and lacked knowledge of how the system worked. He said that he now knows the system and has complied fully since leaving detention. The applicant arrived in Australia in 2006, when he was [age] years old. He is now [age] years old.
When he was first released from detention, the applicant lived with two friends who said they would support him, [Mr B] and [Ms B]. He said that [Mr B] was from the Kenyan community and [Mr B] was Australian. When [detail deleted], he had to move again, and since then he has been staying with other friends.
100. The applicant said that he had told his cousin in [Country 1], [Cousin A], who was his first cousin, that he was gay. The applicant that she was the closest family member he communicated with as his parents had deceased. He said they were about the same age. She went to [Country 1] in 2007 or thereabouts and was sponsored by the same person who sponsored him to come to Australia. Because she had lived in [Country 1], which was a more open society than Kenya, she understood and was supportive. She was exposed to more modern ideas in [Country 1] compared to Kenya.
101. The applicant said that he used to speak to [Cousin A’s] father from time to time, during telephone calls to Kenya. [Cousin A] mentioned to her father that the applicant was gay, and after that, the father and other relatives would not speak to him.
102. Before then, the applicant would speak to [Cousin A’s] father occasionally. Relatives would call him to check on his welfare. Those communications might happen every couple of months or so, but that stopped completely. The applicant referred to there being tension with the older generation. There were expectations about boys and men and being gay went against cultural beliefs.
103. The Tribunal asked the applicant if there was anything he wanted to say relevant to his claim that had happened in the seven years since the RRT hearing. For nearly three years of those seven years, he was in an immigration detention centre. (The RRT hearing was held in February 2014 and he was released from detention in December 2016.) The applicant said that since then up to now, he did not think there was anything new he could add. He said that his previous witnesses are the two people he spoke to about his sexuality and the other person was his relative in [Country 1].
104. The applicant said that since being released from detention he has not had any relationships as such but has had one-night stands. He said that he socialises with men and women but has not been with a woman since he left detention and his sexual encounters were with men. He said that his limited funds restricted what he can do socially. He has not sought out a permanent relationship because his situation is unstable which he clarified as being a reference to being on a bridging visa and having little money.
105. The applicant said that he has not had any relationships with anyone, but maybe two or three hook-ups with men that he had would not classify as relationships. He said guys he has been with for a night, he could not call them up and ask them to give evidence and that created a difficulty for him with regard to getting further evidence. The applicant said his is not a situation where he had a partner which might make it easier for him to prove his case but he gave the best evidence he could.
106. The applicant referred to the types of questions he was asked at previous interviews and hearings. He said that he had never been in the type of relationship where they went out together and met other people as a couple, the inference being that would be an easier situation for him to try and prove. He said that if you hook up with someone, that is what happens and that is hard to prove. He said the way some people look at it, it is as if a person has to be in a particular type of relationship, but not everyone does it the same way. He gave, as an example, that not all couples hold hands whether they were married or not.
107. The applicant said in relation to him demonstrating that he was gay, he came from a different type of culture. He did not believe him being gay was something he would have to show to everyone, it was something inside a person. He said that was his point of view but that previous decision-makers had a different point of view.
108. The applicant said that for him, he kept it to himself as much as possible because there can be repercussions from his background and where he comes from. He said that here in Australia, in his case, an African who has come out will bring a lot of talk. He said that he has seen with friends of his who have been born here, it will be very, very hard to be open about it and nothing good will come of it. He said that most people would try and keep a low profile as possible, and that a person should not have to be a certain way to prove it as the person knows what is going on.
109. The applicant said that you think the people closest to you would be supportive of you but when cases like this come around (being gay), they can go against you. He compared attitudes of people from an African background who were born here rather than emigrated here. He said that for people born here, it would not necessarily be easier for them to be accepting, but they would more favourable and more understanding as they grow older.
110. The applicant said that he could show his involvement in the gay community by attending, for example, events or gay clubs, if that was what he did. But that was not what he did. He said that he did that once in a while but since getting out of detention, his main concern was financial but he does go to [Location 1]. He said that most people who go there are not gay and they go there because it is more peaceful. The people are different. He said that there were more straight people in gay clubs, and many women as they would not be harassed in gay clubs.
111. The applicant also said he did not particularly like clubbing but every once in a while, he would go. He said that he did not have a stable income as he relied on the SRSS program but once in while he could afford to go out.
112. The applicant said that during the period between being released from detention (December 2016) and the FCC remittal decision (November 2019), he relied on the church to support him, and provide help in the form of, for example, vouchers. The SRSS support started when the case was remitted to the AAT. Before the SRSS he was living with friends who were prepared to let him stay with them without paying rent. The SRSS program helps him with rent. The Tribunal is of the view that given his financial situation, it is understandable that the applicant does not have much of a social life, or the opportunity to meet partners.
113. The applicant said he had not been with any women for a long time. He socialises with both genders but is sexually attracted to guys. He said that he has not thought about being a serious relationship because, first he has not met someone, and he believes he must be stable to be in a serious relationship. He is unstable at the moment and has been since his release from detention. He said his life has been up and down and he may have to move again soon. He said that if that happens, he will of course inform the Department.
114. The applicant said that when people come to Australia on student visas, no-one advises them if they have issues or had reasons not to go back to their country, what they could do. At his interview in the detention centre, he answered as best he could.
115. The applicant said that the situation in 2006 when he left Kenya was the same as now. The Tribunal quoted from a US human rights document that referred to the Kenyan penal code that criminalises carnal knowledge. At the same time, Kenya has granted protection to people escaping persecution because of their sexuality.
116. The applicant said the situation has not changed since he left Africa, and the government is against homosexuality. He said back home people would keep it secret. He said most people would be against it. Even if someone said someone was gay without any proof, just saying it about someone would be enough to cause a problem for them.
117. The Tribunal asked the applicant about growing up in Kenya and whether being gay or not being gay – a person’s sexuality – were spoken about. He said that in Kenya you hardly speak about anything like that. For him, he grew up in a normal situation and he went to a boarding school. Girls went to an all-girls school and boys went to an all-boys school. He said that is where it really starts and you do not show it then. He said things could start then but no-one would talk about it.
118. The applicant said that now he could see it, guys sleeping together, having showers together, would not happen in other places but it was normal in that environment. It was not discussed as such but if other boys saw two boys being very close, they might start teasing them, saying they behaved like girls. It was not common but it was there and maybe teachers got involved and gave warnings. Older boys might bully and beat up younger boys about it.
119. The Tribunal asked the applicant that having grown up in a culture where such things were not openly discussed, how he found talking about his sexuality in the context of interviews and hearings.
120. The applicant said that it has changed over time. He said it took him a very long time to talk about it with his two friends who gave evidence at the RRT hearing. Referring to [Friend B], he said she is Australian, he has known her a long time and they had spoken about so many different things, and she not judgemental about people. He said it was easier to tell her than to tell an African.
121. The applicant said he was more comfortable talking about it here as it was more understand. When asked what it felt like when a decision-maker said they did not believe him, the applicant said it was frustrating and he started to think how could he cope or manage if he had to return to Kenya, him being who he is. He said it would be very hard for him to adapt to living there and to live freely. He would be constantly living in fear as to who knows about it.
122. The Tribunal asked him if it bothered him that he was not believed about his sexuality, given that a person’s sexuality is a central feature of who they are. He responded, “yes 100%” adding that it was difficult for him to not be believed because, as he previously had said, sexuality was not something where there was a way you could prove to someone what you are. He said it was a very complex topic where a person has to convince another person who they are.
123. The Tribunal took the applicant through evidence he had previously given. He said that he was with [Mr A] who was [an occupation], perhaps [an occupation 4]; he said the [term occupation 4] as if it had a question mark at the end and he was unsure of what type of [occupation] [Mr A] had been.
124. The applicant said that he met [Mr A] through a friend of a friend at a time when he looking for somewhere to live, and [Mr A] said he had a spare room. They caught up with each other again, and had a few drinks together, hooked up together and he (the applicant) ended up staying with [Mr A] for about five months. After that, [Mr A] moved to Sydney and the applicant moved from that house. The applicant said that for that five months, they were living together and they used to go out together.
125. The applicant said that it felt permanent at the time and if [Mr A] had stayed in Perth, they probably would have been together longer than that.
126. The applicant said that he did not think there was anything else he could add. He said he thought the relevant country information then was still the same now with regards to gay rights but it was unknown what would happen with the next election and if there would be post-election violence.
127. The Tribunal informed the applicant that it would be relying on current or recent country information in making its decision.
128. The Tribunal asked the applicant what he thought about a straight man in Kenya presenting himself as gay over a period of years. The applicant said that would be very hard, because of their religion, morals and their culture. He said it would really, really, really hard for a person in Kenya who was gay to say it, and most of the people around them would not want anything to do with them anymore, as the belief is, homosexuality is against the Bible. It followed then, if it was so hard for a gay man to admit publicly to it, it would be very hard for a straight man to claim he was gay if he was not.
129. The applicant referred to discussions between friends in Kenya when someone would say, what would you do if your son said he was gay, and the response was to disown him. He said that he had seen friends almost fall out because they held different views on the topic.
130. The applicant said in relation to the data breach, he feared that his personal information had been leaked out and he did not know whether it was just his name or if more information about him had been leaked out.
Departmental policy on assessing claims based on sexuality
131. The Tribunal has had regard to departmental policy on assessing protection claims related to sexual orientation. The following extracts are of particular relevance to this review:
While sexual orientation and gender identity may be determined at an early age for some people, for others these realisations can evolve over a lifetime.
The experiences of LGBTIQ+ individuals are diverse and are affected by a broad range of factors not limited to family, cultural, political and religious influences. The way a person expresses their gender identity or sexual orientation may be impacted by their background and life experience. LGBTIQ+ individuals are not characterised by any single set of qualities or characteristics.
132. Under the heading “Challenges related to considering LGBTIQ+ claims”, the policy states:
Claims relating to sexual orientation or gender identity are complex to assess due to their personal nature and because, other than the applicant’s claims, there is often little or no supporting objective evidence available...
Claims relating to sexual orientation or gender identity will often rely largely on the applicant’s own account of their experiences because:
·there is a lack of available corroborating evidence;
·the applicant may have deliberately hidden their sexuality or gender identity;
·the applicant may not have outwardly expressed their sexuality and/or gender identity;
·the applicant may not know how to outwardly express their sexual or gender identity;
·persecution, substantial discrimination and/or significant harm may have largely occurred in the private sphere and therefore be unverifiable; and
·official records may hide or deny the mistreatment of LGBTIQ+ people.
133. Under the heading “Interviewing”, the policy document states:
Some applicants may relish the opportunity to openly express their sexuality and/or gender identity in Australia. This presents a valuable opportunity for officers to test onshore evidence to potentially support their claims. However officers should be mindful that just because the applicant has moved to a country with more lenient attitudes towards LGBTIQ+ issues does not mean they will feel comfortable with manifesting their gender identity or sexual orientation publicly. Applicants may not have outwardly expressed their sexuality and/or gender identity for a range of credible reasons. This lack of outward expression by an applicant also presents a valuable opportunity to respectfully explore the reasons for this at interview.
134. Under the heading “Relationships”, the policy states as follows:
The extent of an applicant’s relationship experience will vary significantly and some applicants may not have had any close or intimate relationships at all. The absence of relationships does not mean that the applicant’s claim is false, but it may be useful to explore the reasons why...
135. Under the heading “Community”, the policy states that :whether the applicant has engaged with LGBTIQ+ communities in Australia will vary from case to case…some applicants may not feel comfortable with engaging with LGBTIQ+ communities, particularly if they are living in a community with others from their country of origin.
136. The policy identifies inappropriate lines of enquiry which include the following [PV stands for protection visa]:
It is also not appropriate to ask questions that assume an applicant will be familiar with Western gay cultural icons or, for PV applicants, the gay and lesbian communities in Australia. PV officers should carefully consider the value of asking about familiarity or knowledge of gay and lesbian culture or communities in Australia or activities in those communities, for example, night clubbing, music or literature. It may be appropriate for officers to question the applicant on these topics only if they are raised by the applicant in their claims and require further exploration. However, lack of knowledge of such topics should never be used to justify a denial of the applicants’ claims.
137. The Tribunal notes that one of the three reasons given by the delegate for refusing the applicant’s protection visa claim was his lack of knowledge of the gay community in Perth.
138. The policy section on credibility includes the following:
The issue of credibility is central to the assessment of LGBTIQ+ claims because of the personal nature of such claims, and the likely absence of objective supporting evidence. The assessment of credibility must be undertaken in an individualised and sensitive way...
The UNHCR Handbookon Procedures and Criteria for Determining Refugee Status at Part Two Section B Establishing the Facts gives guidance on assessing claims that cannot be proven by evidence or independent research. If the applicant’s statements are coherent, plausible and do not conflict with generally known facts, and if their account appears credible, the applicant "should, unless there are good reasons to the contrary, be given the benefit of the doubt”.
In other words, officers should give the applicant the benefit of the doubt in relation to a particular claim only when they are satisfied as to the applicant’s general credibility. Officers are not required to accept uncritically an applicant’s claims and should consider all available evidence that has been obtained and checked…
The significance of any delay in seeking asylum or providing information will depend upon the circumstances of the case. Therefore, if the officer considers that the delay may cast doubt on the credibility of the applicants’ claims, officers should ensure they thoroughly explore the reasons for the delay with the applicant at interview. A delay in seeking asylum or in presenting further information should not be the sole reason for rejecting an applicant’s claims or the further information provided and there should be other reasons to support a finding that the claims are not credible.
Assessing the applicant’s credibility
139. The Tribunal formed the view that the applicant was honest in giving his evidence. As noted earlier, he answered questions in a manner that was open and forthcoming. He acknowledged the difficulty in proving that he was homosexual as it was an internal thing. The Tribunal asked some open-ended questions to give the applicant opportunity to explain himself as he saw fit.
140. The Tribunal observed that the applicant’s claims at the delegate’s interview, the RRT hearing and the Tribunal have been consistent except for the following.
141. At the delegate’s interview in 2013, four years after the end of the relationship with [Mr A], the applicant said that [Mr A] was a [occupation 1] or that kind of thing and at the RRT interviewer, he said [Mr A] was [an occupation], perhaps [an occupation 4]. The evidence was essentially that [Mr A] worked in [industry 1] and either he had a number of skills or the applicant was unsure what his exact skill or skills were. The Tribunal considers this to be a minor inconsistency of no consequence.
142. At the delegate’s interview, the applicant said that he and [Mr A] had been together for two months and at the RRT and AAT hearings, he said they had been together for five months. While this inconsistency is more significant, the applicant was asked how long the relationship lasted four years after it ended. There was no clear explanation for this discrepancy apart from misremembering.
143. On the other hand, the applicant’s evidence has been otherwise consistent. During the three interview/hearing scenarios, he has responded to questions with answers that had more or less detail but were not inconsistent.
144. The Tribunal found that the applicant’s explanation for not wanting a permanent relationship at this time to be entirely credible; his situation is unstable because of his visa status and he has little money as he does not have work rights.
145. The Tribunal considers it appropriate to give due weight to the evidence of the two witnesses who both said that the applicant was gay. [Friend B] said she had noticed things about his behaviour that was different from other men in her circle of friends before he told her he was gay. She recalled the occasion when he told her, and while she could not remember the precise words used, she remembered how he looked.
146. Of particular note is that the applicant said he could not remember telling [Friend B] that he was gay. It would have been in his interests to confirm what she said was the case. That he did not suggests that he was being honest; he could not recall this conversation from about five years’ earlier. This was explained by reference to him being very drunk, so drunk that he may well not have remembered the next day what he had said or done the previous evening.
147. The applicant and the witnesses referred to drinking as being a part of how they socialised a number of times in their evidence, which supports the claim that the applicant could not remember because he had been drunk. The Tribunal finds that to be a credible explanation.
148. [Friend A] testified that she saw the applicant and [Mr A] together, and they held hands and kissed each other. She said that the applicant told her he was gay. On a separate occasion she and the applicant discussed the risks associated with him going back to Kenya. She said that she told him he should go to the Immigration Department and tell them about his sexuality.
149. One reason given by previous decision-makers for doubting the applicant’s credibility is that he did not make a claim for protection before being taken into immigration detention which was about four years after his first same-sex relationship.
150. The applicant’s explanation for not lodging a claim sooner was that he did not know that a person’s sexuality could be the basis of a protection claim. He told the delegate that he thought refugee visas were mainly for people fleeing conflicts in their home countries rather than someone afraid to return to their home country because of their sexuality. He only found out once in detention that he could lodge a protection claim. The Tribunal finds this to be a credible explanation for the following reasons.
151. In 2009, the applicant was [age] years old and working as [an occupation 5]. In 2013, he was [age] years old and had a similar level of work. There was no evidence of him having legal training.
152. The Tribunal notes that the Refugees Convention came into force on 22 April 1954. It was not until the mid-1990s that there were successful protection claims based on an applicant being a member of a particular social group because of their sexuality.[5]
[5] Millbank, J. (2002) Imagining Otherness: Refugee Claims on the Basis of Sexuality in Canada and Australia, Melbourne University Law Review 144 accessed 28 October 2021 at
153. The Tribunal is of the view that most people in the general community would have little or no idea of the concept of ‘a member of a particular social group’, unless they were familiar with the Refugees Convention. It is not improbable that the general view held by the wider community is that people who are refugees are people who have fled war and conflict, rather than people who meet the specific definition contained within the Refugees Convention.
154. In addition, it is not uncommon for people from particular countries to be wary of authorities. The applicant did not have a valid visa which would be a factor in his case.
155. In summary, the Tribunal found the applicant and his witnesses to be credible. It is satisfied that the applicant is homosexual. The Tribunal then considered whether this gives rise to a protection claim.
Membership of a particular social group
156. Section 5L of the Act is about membership of a particular social group, other than family. It sets out that a person is to be treated as a member of a particular social group if a characteristic (other than the fear of persecution) is shared by each member of the group, and the person shares, or is perceived as sharing, that characteristic. In addition, the characteristic must be innate or immutable and/or is so fundamental to the person’s identity that they should not be forced to renounce it and/or the characteristic distinguishes the group from society.
157. According to the Department’s Refugee Law Guidelines, a characteristic may remain immutable (unchangeable), even if a person can hide it or mask it.
158. The general principle that homosexuals in a particular country may comprise a particular social group is well-established.[6]
[6] See MMM v MIMA (1998) 90 FCR 324; Applicant A v MIEA (1997) 190 CLR 225; F v MIMA [1999] FCA 947, Shah v MIMA [2000] FCA 489, Applicant LSLS v MIMA [2000] FCA 211, MIMA v B (2000) 105 FCR 304, and MIMA v Gui [1999] FCA 1496
159. Having accepted that the applicant a Kenyan national and is a homosexual, the Tribunal accepts that he is a member of the particular social group – gay men in Kenya – as claimed.
160. The Tribunal will now discuss if the applicant has a well-founded fear of persecution in his home country, because he is a member of that particular social group.
Country information – treatment of homosexuals in Kenya
161. The applicant said that the situation in Kenya with regard to the treatment of homosexuals is the same now as it was when he left in 2006. Publicly available country information indicates that there have been improvements in recent years but the pandemic has given rise to greater intolerance of gay people in Kenya which has undone some of the improvements.
162. The UK’s Home Office issued a report in April 2020 titled “Kenya: Sexual orientation and gender identity and expression, for use in protection claims.” It notes that being gay is, of itself, not illegal but that same-sex sexual relations are, with a maximum penalty of 21 years, although the relevant sections in the penal code are sections 162 and 165, which provide for a maximum of 14 years imprisonment.
163. The Kenyan constitution provides for freedom from discrimination but does not explicitly say that that applies in relation to sexual orientation or expression.
164. The Home Office report noted that the Kenyan government, including its prime minister and deputy, have stated that discussion of LGBTI rights goes against Kenyan cultural and societal beliefs. The report concluded that in general, the available evidence did not establish that LGBT people, or those perceived to be LGBT, were likely to face mistreatment from state actors which, by its nature and frequency, would amount to persecution or serious harm by the state. (The Tribunal notes that this report was published in April 2020 and the situation for LGBTI people has reportedly deteriorated since then, as discussed below.)
165. The report stated that societal norms based on culture and religion, and the belief that homosexuality is a western import, meant that attitudes in Kenya were generally conservative and intolerant although there are signs that attitudes are changing, with variations across different ethnic groups and locations.
166. The report also stated that some LGBTI people have experienced harassment, verbal and physical assault, blackmail, intimidation and discrimination - the latter in employment, education, housing and accessing healthcare. They have also been the victims of violence including killings, rape and mob violence. One source noted that violence and discrimination against LGBTI persons was widespread.
167. The report noted that although religious leaders generally expressed homophobic views, some have welcomed LGBTI people into their congregations. There were indications of a growing tolerance towards LGBTI people.
168. The report concluded that the evidence available did not establish that LGBTI people were likely to face mistreatment from societal actors which, by its nature and frequency, amounted to persecution or serious harm, although each case had to be considered on its merits. (As already noted, the timing of the publication of this report – April 2020 – means that a hardening of attitudes towards LGBTI people because of COVID-19 was not recognised.)
169. According to a report from the United States Department of State entitled “Country Report on Human Rights Practices 2020 for Kenya”, significant human rights issues in 2020 included the existence and use of laws criminalising consensual same-sex sexual contact between adults, as follows:[7]
[7] US Department of State (2021) 2020 Country Reports on Human Rights Practices: Kenya, accessed 2 November 2021 at
The penal code criminalizes “carnal knowledge against the order of nature,” which was interpreted to prohibit consensual same-sex sexual activity and specifies a maximum penalty of 14 years’ imprisonment if convicted, and seven years for “attempting” said activity. The law also criminalizes acts of “gross indecency” between men, whether in public or in private, with five years’ imprisonment. Police detained persons under these laws, particularly persons suspected of prostitution, but released them shortly afterward. In August police arrested two men in Kakamega County for engaging in homosexual acts.
In 2016, LGBTI activists filed two petitions challenging the constitutionality of these penal codes. In May 2019, the High Court issued a ruling upholding the laws criminalising homosexuality, citing insufficient evidence they violate LGBTI rights and claiming repealing the law would contradict the 2010 constitution that stipulates marriage is between a man and a woman. The LGBTI community filed an appeal against this ruling. Leading up to the hearing of this case, and in its wake, the LGBTI community experienced increased ostracism and harassment.
170. The report also noted that according to LGBTI organisations, the police used public order laws more often than the same-sex legislation to arrest LGBTI individuals; and that police frequently harassed, intimidated or physically abused LGBTI individuals in custody. At the same time, authorities allowed LGBTI organisations to register and conduct activities.
171. The report indicated that the pandemic has had an adverse effect on attitudes to LGBTI people, in that communities suffered from losing jobs, and there was more hostility to LGBTI people along with an increase in conversion therapy and practices. The report noted that some LGBTI groups reported an increase in abuse against LGBTI people during the pandemic.
172. The report also noted that although Kenya grants refugee status to people who were persecuted because of their sexual orientation, some LGBTI refugees continued to face stigma and discrimination.
173. During an online discussion that took place in September 2020 between persons described as human rights defenders, Mr Vincent Obwanda reported that the LGBTI+ community in Kenya was being blamed for COVID-19.[8]
[8] Netherlands Helsinki Committee (2020) COVID-19 and Its Impact on LGBTI+ Communities, accessed 2 November 2021 at
…there exists a widespread misunderstanding in Kenya, where people blame the LGBTI+ community for the spread of COVID-19. Hate speech targeting the LGBTI+ community has consequently resulted in an increase in attacks against the LGBTI+ community and worsening of their physical and psychological health.
“Religious leaders have said that it is God’s punishment for the LGBTI+ community that we have this particular virus in the country. This has spread a lot of misinformation, which leads to a lot of hate speech and attacks against the LGBTI+ community” – Vincent Obwanda
174. A report from November 2020 stated that Kenya has acknowledged that COVID-19 restrictions are fuelling gender-based violence. The Gay and Lesbian Coalition of Kenya claimed that during the pandemic, it has been logging up to 10 attacks a month on the LGBTQ community.[9]
[9] VOA News (2020) Kenya's LGBTQ Community Faces Increased Abuse During Pandemic, accessed 2 November 2021 at
175. The article described how a 28-year-old woman was shunned by her family when they found out she was a lesbian. When neighbours found out, she was insulted and evicted from her home. On her way home from the market after work, she was attacked. A crowd gathered with some shouting at her that she should leave the neighbourhood. She was beaten and her purchases thrown away.
176. In March 2021, a US researcher reported that there was an urgent need for mental health support for the LGBTQ+ community in Kenya because of the social stigma and violence directed towards them. As co-author of a recent study, he recorded that from 527 study participants, 53% reported clinically significant levels of post-traumatic stress disorder symptoms, 26% reported clinically significant levels of depression and 11% reported clinically significant levels of psychological distress. He stated that this rates regarding trauma were far greater than were found in the general community.[10]
[10] University of Michigan (2021) LGBTQ+ people in Kenya urgently need mental health support, accessed 2 November 2021 at
177. Also in March 2021, there was a report entitled “How the pandemic has complicated life for LGBT communities”.[11] This report discussed a number of African countries. About Kenya, it stated as follows:
[11] Maenzanise, J. (2021) How the pandemic has complicated life for LGBT communities, accessed 2 November 2021 at
A study published in the European Journal of Public Health showed that the levels of depression, anxiety, suicidality (includes both suicidal ideation and actual suicide attempts), and substance use among LGBT people in Kenya and South Africa are higher than among the general population in these countries.
178. The report included a section covering both Kenya and Zimbabwe. It stated that the pandemic compounded the challenges already faced by LGBT people and that gender-based violence was on the rise with the LGBT community not “being spared by a society that frowns upon homosexuality”.
179. An article from July 2021 discussed LGBT rights in sub-Saharan Africa, and stated that tolerance towards LGBT people was in short supply in recent years. It stated that in large countries such as Ghana, Kenya and Tanzania, tolerance had declined over the previous five years.[12]
[12] Rouget, V. (2021) Tolerance still in short supply for LGBT rights in Sub-Saharan Africa, accessed 2 November 2021 at
180. According to a report dated 23 September 2021, Kenyan authorities banned a film which depicted romantic love between men. The head of Kenya’s classification board, Mr Christopher Wambua, said the documentary "propagates values that are in dissonance with our constitution, culture, values and norms” and “By deliberately advocating same-sex marriage in Kenya, the film blatantly violates Article 165 of the Penal Code that outlaws homosexuality" and that it was an affront to the country’s religious values.[13]
[13] DW.com (2021) Kenya bans film for 'advocating same-sex marriage', accessed 2 November 2021 athttps://
181. Also from September 2021 “Although Kenya comes off as being more tolerant of the LGBTI, homophobia and harassment is still evident, and gay sex is still illegal and punishable by up to 14 years in prison according to the country's Penal Code.”[14]
[14] The East African (2021) Minorities still face discrimination despite rights laws, accessed 2 November 2021 at
182. An article on the film published 3 November 2021 stated that “LGBTQ people in the East African country face social ostracism at minimum and at the extreme, violence and even death.”[15]
[15] Osanjo, T. (2021) Kenya Bans Gay-Themed Movie, Sparking Debate on LGBTQ Rights, accessed 4 November 2021 at
183. The Tribunal referred to the website of the Gay and Lesbian Coalition of Kenya (GALCK), according to which it represents LGBQ voices across Kenya.[16] In a statement issued in August 2021, there was a warning of a rise in reports of blackmail, that were happening after LGBTQ+ people arranged to meet someone for the first time. There were some 16 hotspots identified.
[16] See
184. An article from 2015 reported that blackmail and extortion of gay people was then on the rise in Kenya, enabled by the fact that homosexuality was unaccepted and illegal there.[17] The article stated that criminals would identify gay people on social media and then persuade them to meet for sex, sometimes luring their victims to rooms with hidden cameras. They would then use the videos to extort money. Sometimes the victims were beaten up as well.
[17] Langat, A. and Kushner, J. (2015) In Africa, being gay makes you a target for extortion, accessed 2 November 2021 at
185. The Tribunal is satisfied that although the laws against homosexual acts are rarely enforced, the criminalisation of them acts as a threat hanging over the gay community, and provides justification for discriminatory behaviours targeting them.
186. The Tribunal is satisfied based on the country information just set out, that there is a real chance of serious harm to members of the gay community in Kenya, because of the effect of criminalisation of same-sex activity, prevailing attitudes from the general community and from senior politicians including the Kenyan prime minister, and that these attitudes have been exacerbated by unfounded conspiracy theories blaming the LGBTIQ+ community for the spread of COVID-19, as well as societal tensions caused by the loss of work and the curfew.
187. As recorded above, according to the UK’s Home Office report from April 2020, LGBTI people have experienced harassment, verbal and physical assault, blackmail, intimidation and discrimination, with discrimination occurring in employment, education, housing and accessing healthcare. They have also been the victims of violence including killings, rape and mob violence, with one source claiming that violence and discrimination against LGBTI persons was widespread. Since that report was published, a range of sources have claimed that there has been an increase in hostility and discrimination towards the LGBTI community because of COVID-19, and also an increase in gender-based violence that also affected the LGBTI community. There are also reliable reports setting out the detrimental affect on the mental health of members of the gay community.
Does the applicant engage Australia’s protection obligations?
188. The Tribunal then considered the applicant’s situation. Should he return to Kenya, his parents have passed away. He has no siblings. He has cousins he was close to when he was growing up, some of whom he said he referred to as his sisters. His evidence was that his cousin who now lives in [Country 1] was the closest relative to him, and that she told her father the applicant was gay. As a result, that uncle no longer communicates with him.
189. The applicant told the delegate that he asked a cousin in Kenya to help him obtain some paperwork and she responded that she did not want anything to do with him. He said he did not know why and did not want to ask her but it could have been because she had learnt that he was gay. There is therefore the possibility, if not the probability, that if the applicant returned to Kenya he would be shunned by at least some of his relatives and would not be supported by them. Being shunned by relatives is not a reason to be granted protection as that is essentially a family matter which, of itself, does not reach the threshold of serious or significant harm. However as illustrated by the example of the 28-year-old woman, the shunning by relatives can be the precursor to physical violence from others.
190. Even though there is no evidence of widespread and commonplace violence against homosexuals in Kenya, there is ample evidence of widespread negative attitudes towards them and evidence that these have, and can, lead to violence.
191. The applicant told the Tribunal that if he was returned to Kenya, it would be very hard for him to adapt to living there and to live freely. He would be constantly living in fear as to who knew about his same-sex relationships.
192. The purpose of the Convention is to protect the individuals of every country from persecution on the grounds identified in the Convention.
193. Persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality. The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps - reasonable or otherwise - to avoid offending the wishes of the persecutors. Nor would it give protection to membership of many a “particular social group” if it were a condition of protection that its members hide their membership or modify some attribute or characteristic of the group to avoid persecution.
194. The High Court of Australia in S395/2002 v MIMA (2003) HCA 71; (2003) 216 CLR 473, specifically Justices McHugh and Kirby, rejected the proposition that applicants should be expected to conceal their race or nationality, or modify some attribute or characteristic, to avoid persecution.
195. Therefore, there should be no requirement on the applicant to hide or deny his sexuality in order to live safely in Kenya. The question is whether there is a real chance the applicant would suffer serious harm if he lived openly as a homosexual in Kenya.
196. The Tribunal has regard to McHugh J in MIMA v Haji Ibrahim, where he said that the Convention “protects persons from persecution, not discrimination” and went on to say:
Much will depend on the form and extent of the harm. Torture, beatings or unjustifiable imprisonment, if carried out for a Convention reason, will invariably constitute persecution for the purpose of the Convention. But the infliction of many forms of economic harm and the interference with many civil rights may not reach the standard of persecution. Similarly, while persecution always involves the notion of selective harassment or pursuit, selective harassment or pursuit may not be so intensive, repetitive or prolonged that it can be described as persecution.[18]
[18] MIMA v Haji Ibrahim (2000) 204 CLR 1 at [55].
197. Country information demonstrates that the discrimination against LGBTI people in Kenya has and does occur across a wide spectrum of services.
198. The Tribunal has already referred to reports of harassment, verbal and physical assault, blackmail, intimidation and discrimination, with discrimination occurring in employment, education, housing and accessing healthcare. LGBTI people have also been the victims of violence including killings, rape and mob violence. In addition, there have been indications that the situation has deteriorated since the onset of COVID-19.
199. Given the county information already cited, the Tribunal is satisfied that there is a real chance the applicant could experience serious harm, which could be in the form of a physical attack and/or discrimination of an ongoing nature which would reach the threshold of serious harm.
200. The Tribunal is satisfied that the applicant’s fear or persecution is well-founded as there is a more than a remote or far-fetched or insubstantial chance of physical harm and continuing discrimination being directed at the applicant as a gay man, as indicated by country information.
201. The Tribunal is also satisfied that any such harm has an official quality about it because same-sex sexual activity is a crime in Kenya, punishable by up to 14 years in jail. The Kenyan government, including its prime minister, have recently stated that discussion of LGBTI rights goes against Kenyan cultural and societal beliefs. That may be received as encouragement or endorsement by those who would want to inflict harm upon members of the gay community.
202. The Tribunal also notes reports that the police used public order laws more often than the same-sex legislation to arrest LGBTI individuals, and that police frequently harassed, intimidated or physically abused LGBTI individuals in custody
203. The Tribunal is satisfied that the harm feared by the claimant is serious and involves systematic and discriminatory conduct as required by s.91R(1)(b) and s.91R(1)(c) of the Act.
204. The Tribunal is satisfied that the harm feared is for one of the Convention reasons, with the essential and significant reason being the claimant’s membership of the particular social group of gay men in Kenya.
205. As same-sex sexual activity is a criminal offence in Kenya, then the state clearly plays a role in the persecution of gay men in Kenya. The Tribunal is not satisfied that state protection is available to the applicant. Safe relocation within Kenya is also not reasonably open to him as the Tribunal is satisfied that the applicant would face this same persecutory treatment anywhere he lived in Kenya as the same attitudes towards, and condemnation of, gay men exist throughout Kenya. Hence the Tribunal finds that the applicant has a well-founded fear of being persecuted throughout Kenya in the reasonably foreseeable future.
206. There is no evidence before the Tribunal to suggest that the applicant has any legally enforceable right to enter and reside in any safe third country for the purposes of s.36(3) of the Act. The Tribunal finds that he does not have the right to enter and reside in any safe third country.
207. The applicant also made secondary claims. One concerns the data breach whereby personal details of immigration detention centre detainees were inadvertently made available on DIBP’s website for eight days. The other concerned the possibility of violence that might erupt between different tribes during and after the general election to be held in August 2022.
208. These need not be considered further as the Tribunal is satisfied the applicant meets the definition of a refugee on the basis of his membership of the particular social group of gay men in Kenya.
CONCLUDING PARAGRAPHS
209. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).
DECISION
210. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Susan Hoffman
Member
- AGLC
- 1935215 (Refugee) [2021] AATA 4889
- Case
- [2021] AATA 4889
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Tribunal was whether there was a real chance the applicant would suffer serious harm or a real risk of significant harm if returned to Kenya, specifically in relation to his claim of being a homosexual man. The Tribunal was required to consider the applicant's claims in light of the provisions of the Migration Act 1958 (Cth), including the circumstances under which a real risk of harm might not be considered to exist, such as the possibility of internal relocation, obtaining protection from authorities, or if the risk was faced by the general population. The Tribunal also had to consider mandatory considerations under Ministerial Direction No. 84, including relevant guidelines and country information.
The Tribunal found that Kenya was the country of reference and the receiving country for the purpose of assessing the applicant's protection claims, and that the applicant was not excluded from protection under s.36(3) of the Act. While acknowledging the complexity and unusual history of the applicant's visa applications and periods of detention, the Tribunal ultimately concluded that the matter should be remitted for reconsideration. The specific reasons for this remittal are not detailed in the provided text, but it indicates that the Tribunal did not make a final determination on the merits of the protection claims at this stage.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.Mandatory considerations 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. There is no DFAT country information report in relation to Kenya. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case concerns the applicant’s sexuality and whether or not there is a real chance he would face serious harm or a real risk he would face significant harm should he return to his country of origin. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Background According to departmental records, the applicant has been known as [the applicant’s name], and not another name. He claimed to have been born in Nairobi, Kenya on [date]. He claimed to be of the Christian faith and, through his parents, now deceased, linked to the Luhya and Kikuyu tribes. The delegate accepted that the applicant is who he claimed to be and, on the evidence before it, the Tribunal is also satisfied as to the applicant’s identity. The Tribunal finds therefore that Kenya is the country of reference for the purpose of assessing the applicant’s refugee protection claims, and that Kenya is also the receiving country for the purposes of s.36(2)(aa) provisions. There is no evidence before the Tribunal to suggest that the applicant has an enforceable right to enter or reside, temporarily or permanently, in a third country. The applicant is therefore not excluded from protection by the operation of s.36(3) of the Act. The history of this case is unusual and complex. The applicant’s visa history was summarised in another AAT case, decided on 26 July 2016 which concerned the Department’s refusal to grant the applicant a bridging visa. The summary is as follows:·[The applicant] arrived in Australia [in] July 2006 as the holder of a [student] visa.·The visa was cancelled on 4 August 2009 because [the applicant] was neither enrolled nor studying in his course since October 2007.·[The applicant] was granted bridging visas on the grounds that he was seeking review of the cancellation decision. The Migration Review Tribunal affirmed the decision to cancel the visa on 31 August 2010.·The bridging visa ceased on 7 October 2010, and [the applicant] became an unlawful non-citizen. ·[The applicant] was detected working unlawfully [in] April 2013 and was taken into immigration detention.