1935768 (Refugee)

1935768 (Refugee) [2022] AATA 4550 (29 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1935768
COUNTRY OF REFERENCE:                   Kenya
MEMBER:Peter Katsambanis
DATE:29 September 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 September 2022 at 3:12pm
CATCHWORDS
REFUGEE – protection visa – Kenya – religion –a practising Christian – feared Islamist extremists – delay in seeking protection – Islamist extremists do not actively target Christians in and around the region of Nairobi where the applicant’s family resides – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 425, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 November 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Kenya, applied for the visa on 9 April 2019. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 1 September 2022 to give evidence and present arguments.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b),(c).
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. However, in this particular matter, there are no such country information assessments for Kenya for the Tribunal to consider.
ISSSUES
The issues in this case are whether there is a real chance that if the applicant returns to Kenya he will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Kenya, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
CONSIDERATION OF Claims and evidence
Protection Visa Application
The applicant applied to the Department for a protection visa on 9 April 2019.
In his protection visa application, the applicant stated that he was born on [date] in Nairobi, Kenya. He had never been married. His mother, one brother and one sister were all currently residing in Kenya. He stated that he was of Kenyan ethnicity and listed his religion as Full Gospel Church.
The applicant claimed that he had lived in Nairobi, Kenya from birth until November 2000 and had then resided in [Country 1] from November 2000 to August 2015. He had returned to Kenya in August 2015 and had lived there until June 2016 when he came to Australia. The applicant claimed that whilst living in [Country 1] he had travelled to [a country] on a school trip in 2010 and had returned to Kenya on several occasions to visit family members.
The applicant stated that he arrived in Australia on [date] June 2016 on a valid Australian student visa. He stated that he had never worked prior to February 2019 when he commenced employment [in] a [shop] in Australia. He had completed primary school and high school in [Country 1] and had then failed to pass a pre-university course at [a] University in Nairobi, Kenya. In Australia, he had completed a tertiary preparation program [from] June 2016 to January 2017 and had then withdrawn from a [course] at the same university in May 2018. He claimed that he was currently studying a [qualification] at [a] school in [Western Australia] which he had commenced in February 2019.
In his protection visa application, the applicant stated that he was seeking protection in Australia because he could not return to Kenya. He stated that he was from the Kikuyu tribe in Kenya and that he was a passionate, unashamed Christian. He was the third of his mother’s children and his parents were divorced. He only communicated with his mother. He had moved to [Country 1] with his parents in 2000. He had lived with his father from 2003 to 2006 and subsequently lived with his mother from 2006 onwards. He returned to Kenya in August 2015 to commence tertiary studies and his mother returned to Kenya in December 2015 at the conclusion of her contract with [her employer] in [Country 1]. The applicant claimed that he took the opportunity to study in Australia and arrived here in June 2016.
The applicant stated that he did not have many family members. His mother, sister and brother all lived around the edges of Nairobi and it would be difficult for him to move elsewhere in the country as he had no aptitude for other Kenyan languages apart from English, he had no work experience and no connections. He feared risk of isolation from family in other parts of Kenya and was also concerned that he only spoke English and had no experience.
The applicant claimed that if he returned to Kenya as a practising Christian, he had justifiable evidence that he would be treated badly. He was afraid that if he practised his Christian faith, he would become a potential target for the Al-Shabab terrorist group. He stated that Al-Shabab were a ruthless, fierce group and highlighted an attack in 2014 where they had hijacked a bus and killed 28 people. The applicant claimed that during this incident gunmen forced people to convert to Islam and stated that he would not renounce his belief in Jesus Christ as Lord and Saviour for anything.
The applicant claimed that pastors in Kenya were also targeted by Muslim extremists. He stated that a pastor of a church had been attacked and suffered bruises and a broken thigh bone. He claimed that as a member of the congregation, if his pastor was to experience physical harm, he would be left without an authority in the faith to nurture his beliefs. He also claimed he would likely become a target for these violent individuals. The applicant referred to a news article from 2019 in relation to this attack.
The applicant claimed that his religious freedoms might also be restricted because the government was tightening the regulations on churches in Kenya. He claimed that in 2014, Nairobi County proposed a law that would charge clergy for the use of public parks for evangelic meetings. He claimed that clergy could be forced to pay $580 a day to preach from the park’s main podium or $463 from elsewhere in the park. He claimed that under Nairobi’s proposed Bill, even street preachers would have to pay $29 to pound the pavement. He referenced an online article in relation to this claim. The applicant claimed that if Christian officials were facing such harsh regulations, he as a believer would also be negatively impact. He stated that his freedoms would be restricted, and additional costs would come upon him if he attempted to attend an outdoor meeting. He claimed that churches might be forced to close down due to the constriction from the government. He stated that in 2014, 7000 churches were denied official registration from the government and not a single church was registered in 2015. He stated that this would affect him and his freedom to practice.
The applicant stated that if he returned to Kenya it was most likely that he would experience physical harm, threats to his life and a lack of peace around him. He stated that he would also be subject to corruption and would be asked to supply a bribe to an officer regarding a complaint he had made. He claimed that he would be a target for Al-Shabab who could strike anywhere at any time with any scale of damage. He claimed that if he was captured by this group, the severity of the carnage would range anywhere from beatings to beheading, simply because he was Christian. He stated that he did not even believe that universities were safe anymore. He claimed that in 2015, Garissa University had been attacked by Al-Shabab and 150 students had been slaughtered. He stated that on 15 January 2019 there were reports that depicted a ruthless terrorist group that is morphing and infiltrating the larger Kenyan society and referenced various online articles in support of this claim.
The applicant claimed that he would not be safe even from the police because Muslim police had attacked a Christian man on the outskirts of Nairobi after he refused to repent his Christianity. He referenced online articles in relation to these claims. The applicant claimed that he would be harmed on the basis of his faith in Jesus and would also be harmed for refusing to deny Him as God and for practising his beliefs. He stated that if he cannot visit Nairobi without fearing a terrorist attack, or even contact police through fear that they may be Muslim or reluctant to act without a bribe, as a Christian man he would have little to no freedom or justice.
The applicant stated that the authorities in Kenya could not protect him from the harm that he feared because the authorities in Kenya engage in corruption, often taking bribes in exchange for turning a blind eye to blatant crime. He stated that if anyone were to harbour malcontent towards him or any other Christian, the authorities would not think twice to accept a bribe and let injustice be carried out against him. He stated that the police themselves might even attack him and referenced an online article to support this claim.
The applicant stated that time and again, Kenyan authorities had been shown to dabble in corruption, therefore removing any trust. He stated that if he cannot trust the police or other authorities to protect him regardless of who he was, he would be in constant risk of danger. He claimed that according to a news article in Kenya, the police have once again topped the list of most corrupt government departments in a survey by the Ethics and Anti-Corruption Commission. He claimed that this study, conducted in 2016, indicated that most bribes were paid at police stations, county health departments, Chiefs’ offices, Office of the Registrar of Persons and county commissioners offices in that order. He claimed that the average bribe given out was now Ksh7,081, an increase from KSh5,648 recorded in the previous year. He stated that he did not have access to such money easily and even if he did, his conscience would not allow him to participate in corruption and he should not be forced to engage in unethical acts in order to receive justice. He referenced an online news article in relation to this claim.
The applicant claimed that he could not relocate anywhere within Kenya to avoid the harm he feared because he would be faced with the same dangers and circumstances wherever he relocated due to the firm grip corruption has in Kenya, especially in the police force. He stated that attacks from Al-Shabab were sporadic and unpredictable and the corrupt police were nationwide. The applicant claimed that he did not know his way around, had no connections outside his small family and would be estranged from extended communications with the community at large because his sole language was English. He would be none the wiser if someone were to be plotting against him right in front of him and he would have no trust in the people around him. He claimed that without the necessary work experience, he would not have the means to generate the funds to relocate. He stated the transport, rent, upkeep and grocery money would be minimal at best and he would need to rely on his family until he found a job because he would not be able to rely on the government. He claimed that the government had no provisional program that he could benefit from and in any case, corruption had permeated every government sector and he would be required to pay bribes everywhere. The applicant claimed that wherever he could go, the problems would still exist. All he would accomplish is being by himself and a stranger in his own country. He claimed that the danger of being targeted for his faith would only increase, considering he did not speak any local language and did not know his way around.
The applicant also provided the Department with copies of his passport, his birth certificate, employment details, a copy of his visa for [Country 1] valid from 11 July 2013 to 23 January 2016 and eight separate news articles that he had referenced in his protection visa application form. The Tribunal has read and considered these articles before making its decision in this matter.
The applicant was interviewed by a delegate from the Department in relation to his protection visa application on 12 September 2019. The delegate’s decision record indicates that at this interview the applicant discussed his religious practice in Australia, including his active proselytising and outreach in support of his religion. The decision record indicates that the delegate also spoke to the applicant’s pastor during this interview. The pastor confirmed that the applicant was an active member of his church who would proselytise with a group of other people in public places as well as regularly attend the church.
The delegate’s decision record indicates that the applicant had a strong desire to continue to proselytise about Christianity to non-Christians even if he was to return to Kenya. He indicated that he felt compelled to spread the word to non-believers, even if they were Muslim. Although his pastor indicated that proselytising was not a requirement of the church the applicant attended, the decision record indicates that the applicant insisted that it was his personal choice to proselytise and that he felt personally commanded by Jesus Christ to do so.
The delegate’s decision record states that the applicant feared harm if he spoke out in front of the ‘wrong people’ in Kenya who would then target him for harm as a Christian. The applicant claimed that the police were corrupt and would not assist him if he should find himself under attack or become an assault witness. He stated that to get any protection from the police he would need to pay a bribe and claimed he should not be forced to engage in such unethical acts. He also stated that he would resist contacting police for fear that they may be Muslim and attack him themselves.
A delegate of the Department refused to grant the applicant a protection visa on 26 November 2019.
Application for Review
The applicant applied to the Tribunal for a review of the delegate’s decision on 16 December 2019. Together with his application, the applicant also provided the Tribunal with a copy of the delegate’s decision dated 26 November 2019 and a copy of the accompanying notification letter from the Department.
Tribunal Hearing
At the Tribunal hearing on 1 September 2022, the applicant confirmed that he had been born in Nairobi, Kenya on [date] but stated that soon after he was born, his family moved to [Country 1] where he lived from 2000 to 2015. He claimed that around the time the family moved to [Country 1] his parents separated and later divorced. He lived with his father from 2002 to 2006 but then lived with his mother from 2007 onwards.

The applicant claimed that both his parents were [Occupation 1]s. His father practised as a [Occupation 1] in [Country 1], and he had also been [in a related role] for a period of time. He stated that his mother was a [Occupation 1] who worked for a government authority in [Country 1].
The applicant confirmed that both of his parents were still alive and that they were both now living in Kenya. However, the applicant stated that he was unsure of the exact locations where his parents lived but believed it was somewhere on the outskirts of Nairobi. He claimed that he had not spoken to his father since 2015 when he was still in [Country 1] and they did not have a good relationship.
The applicant stated that he was in communication with his mother through telephone calls and messages a few times a week. He claimed that his mother was no longer [working as an Occupation 1] and had opened a small business selling [products]. He stated that his mother wanted to [resume her work as an Occupation 1] but in Kenya you needed to pay bribes to move things forward and she did not want to do this because she did not believe it was the appropriate thing to do.
When asked if he could provide the name of the suburb or the town where his mother was currently living, the applicant stated that he would have to ask his mother, but he knew that it was not in Nairobi. It was pointed out to the applicant that given his claims that he was in regular communication a few times a week with his mother since he came to Australia it would be expected that he knew where she was living. The applicant responded that his mother had a good life in [Country 1], so she did not want to share details about what she was doing in Kenya. He added that his mother usually checked on him. He claimed that his mother had moved to a new place recently, but he was aware that she had been living in Nairobi two years ago.
The applicant was asked to clarify how he was aware that his mother had moved but was not aware where she had moved to. He responded that his mother told him the place where she was living but he did not know how to pronounce it and the name of the place was not in his memory.
It was pointed out to the applicant that it appeared as though he had changed his evidence during the course of the hearing, initially claiming that he did not know where his mother was currently living but then stating that his mother had told him where she was living but he was not able to pronounce the name of the place where she lived. In response, the applicant asked if he could provide a proper answer to the Tribunal. When asked to clarify why he had not provided a proper answer earlier in the hearing, the applicant stated he was not personally aware of where this place was, but his mother had provided him with the name of the place by text. He added that he could not pronounce the name of the place where she was living.
The applicant confirmed that he had one older brother and one older sister. He confirmed that the siblings had moved with the family to [Country 1] but stated that they were both now living in Kenya. He indicated that he did not regularly communicate with his siblings but claimed that they would exchange messages around once a month. He was aware that his sister was a [occupation] but was not sure what his brother did in Kenya. He added that he was not close to his siblings and was unaware where they were currently living in Kenya.
The applicant confirmed that he had completed primary and secondary school in [Country 1] and had received his high school diploma. He stated that he attended a private secondary school in [Country 1]. However, he indicated that his family residency permit in [Country 1] had now expired and he had no right to return to [Country 1] unless he made a new application to obtain a residency permit.
The applicant stated that he returned to Kenya from [Country 1] around the time that his family’s residency permit was expiring and around the time that he had finished secondary school. He indicated that his mother also decided to return to Kenya at this time. He claimed that when he returned to Kenya he went to college and he lived there for a while without doing anything significant. He claimed that he lived with his mother and his sister in a village outside Nairobi [but] stated that his mother was no longer living in this place.
The applicant confirmed that he had returned to Kenya from [Country 1] in August 2015 and then left Kenya to come to Australia in June 2016. He clearly stated to the Tribunal that he had not experienced any problems or any harm in the past in [Country 1] or Kenya and added that he had kept to himself and stayed indoors.
The applicant stated that he came to Australia in June 2016 on a student visa. He had intended to study [a major] but first needed to complete a bridging course. He stated that he had not passed this bridging course and had never commenced his intended [studies]. The applicant indicated that he stopped studying in Australia around May 2018 because he could not meet the condition on his visa that required him to pay fees for his study. He indicated that his mother no longer had the funds to pay the fees and claimed that he was not working in Australia at the time, despite having some work rights on his student visa. He stated that the only period of time he had worked in Australia was in the period after he had stopped studying and before the Department had issued him with a notice of intention to deport him from Australia. He claimed that he had worked at [a workplace] for around six months during this period. He could not recall the exact dates or the months when he had worked at [this workplace] but believed it was sometime in 2018.
The applicant was asked if he had informed the Department that he had stopped studying in May 2018. He responded that he told the Department that he had stopped studying only after he received a notice of intention to cancel his visa from the Department. He claimed that he told them that he could not pay fees and was therefore not able to attend his lessons. He confirmed that he had not informed the Department he had stopped studying until after the Department had contacted him to inform him of their intention to cancel his visa. The applicant could not recall the exact time frame when this happened but stated that he believed his visa had been cancelled in 2018.
The applicant stated that after the Department had cancelled his student visa, they had emailed him a list of visas he could apply for and also issued him with a notice of intention to deport him from Australia unless he applied for one of those visas that was on the list. He claimed that he looked at the list of options and chose to apply for a protection visa rather than be deported from Australia.
The applicant stated that he was not currently employed in Australia and claimed that he was living in the Perth suburb of [Suburb 1] in a warehouse that was attached to the premises of the church that he attended. He later added that his church was his main avenue of support in Australia, providing him with accommodation and with financial donations to enable him to survive. He claimed that he had never been married, did not currently have a partner and did not have any children.
The applicant was asked what fears he had about returning to Kenya now or in the reasonably foreseeable future. He stated that as a practising Christian people would seek out to harm him because of his beliefs. When asked why people would target him for harm, the applicant stated that as part of his Christian practice he liked to share the Gospel with others and if people saw him doing that in Kenya, they would harm him. When asked why people would choose to harm him simply for spreading the message of the Gospel, the applicant stated that in Kenya there were extremists and if they see him sharing something contrary to their own beliefs they would harm him.
The applicant claimed that he became a Christian in Australia around September 2017 and indicated that he regularly attended the [Church 1] in [Suburb 1], where the pastor was [Pastor A]. When asked if he could supply any supporting evidence to verify that he still regularly attended this church, the applicant at first asked what sort of evidence the Tribunal would be looking for. It was pointed out to the applicant that the Tribunal could not make his case for him but supporting evidence could take the form of letters from pastors or other church attendees, photographs of him at the church, witness evidence or any other form of evidence he believed would support his claims. It was also pointed out to the applicant that it had been almost three years since he had lodged his review application with the Tribunal, which had provided him with a lot of time to provide any supporting evidence he chose to provide but he had not provided any such evidence to the Tribunal. The applicant indicated that he understood this was the case and claimed that he would try to provide evidence after the hearing.
The applicant stated that he attended his church for services on Sunday morning and Sunday evening as well as Thursday evening. He stated that he would do the audio-visual work for the Sunday services and added that he would attend Bible study at a friend’s house on Wednesday evenings. The applicant also stated that he would meet fellow churchgoers for prayer nights, would do outreach work on Saturday mornings and would also attend social events with friends from his Bible study group. He claimed that around once a month he would go out in a group from his church to share the Gospel at public places like train stations or parks.
The applicant stated that when he went out to share the Gospel in public places, he would approach people and attempt to start a conversation with them so he could tell them about Jesus Christ and ask them to allow Him into their hearts. When asked how people reacted when he approached them in this way, the applicant responded that people reacted in a variety of ways. He claimed that some people tell him to leave them alone and he then does so. He stated that other people listen for a while and some people even ask him to stay with them and pray to the Lord with them.
The applicant was asked what he did in circumstances where people refuse to accept his request to talk to them. He responded that he thanked these people and left them to carry on with their day.
The applicant was asked why he could not simply continue to practice his Christianity in Kenya in the same way that he practised it in Australia. He responded that these were his beliefs and practices, and stated that if somebody saw him, they would harm him in Kenya whereas they wouldn’t harm him in Australia.
The Tribunal stated to the applicant that the country information it had accessed indicated that Kenya was a majority Christian country with more than 80% of the people being Christian. This information also indicated that there were no major barriers to people promoting or proselytising their faith and there was no indication from this information that people were targeted for promoting or proselytising their faith. This information would tend to indicate that he would not face the harm he feared if he returned to Kenya and continued to practice and proselytise as a Christian. In response, the applicant stated that the evidence he had provided to the Department with his application highlighted that other people who were not Christian would harm Christians and that the corrupt nature of the Kenyan government would allow these people to inflict harm on him. When asked to identify who these people were, the applicant stated that he feared Islamist extremists and confirmed that amongst these extremists he also feared the Al-Shabaab terrorist group that he had referenced in his claims for protection.
The Tribunal stated to the applicant that country information it had accessed indicated that the main Islamist extremist group in Kenya, Al-Shabaab, had in the past caused harm in places like Nairobi but its current activities were concentrated in the areas near the border with Somalia and the coastal areas that were also close to Somalia. The Tribunal also pointed out that there appeared to be no evidence of recent Al-Shabaab terrorist activity in or around Nairobi. This information would tend to indicate that in the area in and around Nairobi, where the applicant is originally from and where his family appear to live, he would not be at risk of harm from Islamist extremist groups including Al-Shabaab either because he was a Christian or because he chose to proselytise as a Christian or more generally by being at the wrong place at the wrong time if a terrorist attack happened.
The applicant responded that he understood that country information showed that, and he knew that extremist activity was strongest on the Somali border. However, he feared that the extremists are all over Kenya and they have access to the whole country including Nairobi so he believed he would be unsafe if he returned to Kenya.
The Tribunal stated to the applicant that country information it had accessed did indicate that there was a level of corruption in Kenya beyond the levels experienced in Australia and this included within the police force. However, there was no information to indicate that the police directly targeted people for bribery or that Muslim police officers targeted Christians either for bribery or for harm. In response, the applicant stated that Islamist extremists in Nairobi or across Kenya would be able to bribe police so that the police would disregard the activities of these extremists. He stated that he believed bribery was dishonest and unfair, so he did not want to participate in this practice.
The Tribunal pointed out to the applicant that the article he had provided to the Department claiming that Muslim police officers targeted Christians was actually referencing an incident between a group of Somali Muslims and a group of Somali converts from Islam to Christianity where police officers, who also appeared to be Somali Muslims, became involved and allegedly caused harm to the convert. Given that the applicant was not Muslim, was not a convert from Islam to Christianity and was not of Somali origin, the Tribunal asked the applicant to clarify how the fact circumstances in this article would apply to him if he returned to Kenya. In response, the applicant stated that the article he had provided the Department showed a Muslim police officer attacking a Christian. He claimed that this article proved that law officers committed violence against Christians, and he did not think that the police would help him in Kenya. When asked if he had any evidence apart from the article that he was referencing to support these claims, the applicant stated that he did not have any such evidence.
The Tribunal then discussed with the applicant the issue around his application for a protection visa, where he had applied for such visa more than three years after he arrived in Australia, after his student visa had been cancelled and after he had been issued with a notice from the Department indicating that they intended to deport him from Australia. It was pointed out to the applicant that the fact he made his protection visa application only after these circumstances had occurred may indicate that he did not genuinely hold the fears he claimed to have about returning to Kenya but may instead indicate that he had made these claims as an opportunity to enable him to obtain an Australian visa. In response, the applicant stated that when he arrived in Australia it was not his plan to have his student visa cancelled and he was not aware of any other visa options. He claimed that when he saw that he was able to apply for protection visa, he used it as an opportunity to apply based on his fears so that he could stay in Australia. When asked if he held these fears about returning to Kenya before he applied for a protection visa, the applicant stated that he did not hold such fears and added that this was because he was not a Christian when he came to Australia.
The applicant was asked if he had any other fears about returning to Kenya that he had not mentioned at the hearing. He responded that the basis of his fear was his Christianity and that’s all that he was focusing on. He added that he had no other issue he wished to discuss.
The applicant was asked if he would change the way he practised his Christianity in Australia if he had to return to Kenya. He responded that he would make no changes to the way he practised his Christianity if he returned to Kenya and added that apart from worshipping and reading the Bible, he also feels a strong personal conviction to go up to strangers and share the Gospel. The applicant was then asked what he would do if he returned to Kenya, approached someone to share the Gospel with them and that person refused to engage in a conversation but instead asked him to go away. The applicant responded that he would do exactly the same as he does here in Australia. He added that he cannot force his beliefs on other people so if they asked him to leave, he would have to leave.
The applicant stated that his current church did not have an equivalent operation in Kenya but agreed that there were other Pentecostal churches in Kenya and indicated that he would be able to access those churches if he returned.
When asked if he had anything else to add to his claims, the applicant stated that he understood the country information indicated that Kenya was a Christian country, but his fears were based on the fact that Kenya is very different to Australia. He claimed that he would suffer no harm in Australia because of his beliefs but in Kenya he would be an open target for extremists who don’t exist here in Australia. He added that he had freedom to be a Christian in Australia but in Kenya there was always a risk. He stated that he did not intend to change his beliefs regardless of any risk or fear of harm.
The applicant indicated to the Tribunal that he would attempt to obtain a statement from his pastor confirming that he was still regularly attending church in Australia and would provide this statement within one or two days after the conclusion of the hearing.
Post Hearing Submissions
After the hearing, the applicant provided the Tribunal with reference letters from [Pastor A] and 7 other people attesting that the applicant is a regular attendee at the [Church 1] in [Suburb 1] and that he is of good character. The applicant also provided twelve photographs showing the applicant attending church and socialising with others in both church and non-church settings.
FINDINGS AND REASONS
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
There is no issue as to identity. The applicant arrived in Australia on a valid Kenyan passport bearing a valid Australian student visa. The applicant did live in [Country 1] for many years but an examination of the [Country 1] visa in the applicant’s passport indicates that his [Country 1] visa expired in 2016. The Tribunal accepts the applicant’s explanation at the hearing that this visa for [Country 1] was based on his parents’ permit to work in that country, that the visa is now expired and that he has no current right to enter or reside in [Country 1]. Accordingly, the Tribunal accepts that the applicant is a national of Kenya and has assessed his claims accordingly.
The applicant has made no claims of have suffered any harm in the past in Kenya and at the hearing clearly stated that he had not suffered any harm in the past in Kenya or in [Country 1], where he lived for a large part of his life. Therefore, on the evidence before it, the Tribunal finds that the applicant has not suffered any harm in the past in Kenya.
The applicant has claimed that if he returned to Kenya now or in the reasonably foreseeable future, he fears that he would be harmed by Islamic extremists, including extremists from the Al-Shabaab terrorist group, because of his Christian beliefs and because his desire to actively proselytise his Christian faith to non-believers would incur the wrath of these extremists who would then seek out to harm him. The applicant has further claimed that he fears that he would not be protected by the police or the authorities in Kenya from the harm he fears from these extremists because his assailants would bribe the police to turn a blind eye to any harm that these assailants may inflict on him. He has also claimed that Muslim police officers may target him for harm because of his Christian beliefs and his proselytising of these beliefs.

In support of his claims of being a Christian, the applicant has stated that he embraced Christianity whilst in Australia and has been regularly attending the [Church 1] in [Suburb 1], Perth. The pastor of this church verbally verified that the applicant had been attending the church to the Department. The applicant provided reference letters from the pastor and several other fellow churchgoers to the Tribunal after the hearing to verify that he continues to attend this church regularly. He has also provided photographs showing him at church and in the company of other churchgoers. Based on this evidence, the Tribunal accepts that the applicant is a Christian as claimed.
The applicant has claimed that the nature or way that he proselytises his Christian faith is critical to his identity and core values as a Christian. The Tribunal accepts that individuals often choose to practice and express their faith in various ways and may at times choose to actively undertake activities that may not strictly be requirements or key elements of the faith they adhere to or the church they attend but are nevertheless considered essential parts of their practice by the individuals concerned. Accordingly, the Tribunal has assessed how the applicant may express or proselytise his faith if he returned to Kenya when considering his claims for protection.
At the interview with the delegate, the applicant portrayed himself as being very determined and aggressive in proselytising his faith in Australia and that he would continue to proselytise to people who refused to accept his message if he returned to Kenya, which would be expose the applicant to the risk of harm from people who simply did not want to be constantly proselytised to.
However, at the Tribunal hearing, the applicant provided a very different description of how he chooses to proselytise his faith in Australia and how he would proselytise his faith if he returned to Kenya. The applicant stated in his oral evidence that in Australia he regularly goes out into public places to ‘spread the word’ with his fellow churchgoers and that he attempts to engage people in discussion. However, the applicant emphasised that he respects people’s opinion and if they choose not to engage with him or hear his message, he then respectfully leaves these people alone. The applicant also indicated in his oral evidence at the hearing that if he returned to Kenya he would practice and proselytise in the same way he does in Australia by attempting to engage with people and starting a religious discussion with them but also by respecting their right not to engage and leaving them alone if they did not want to engage on discussion or listen to his message.
The Tribunal finds the applicant’s evidence at the Tribunal hearing to be far more persuasive than his evidence at the Department interview because being respectful is a basis tenet of Christian faith and belief. Accordingly, the Tribunal accepts that if the applicant returned to Kenya now or in the reasonably foreseeable future, he would continue to practice and proselytise as a Christian. However, the Tribunal finds, on the evidence before it, that the applicant would conduct this practice and proselytising in a respectful manner and would not continue to proselytise to people who indicated that they were not receptive to his message.
On this basis, the Tribunal has considered country information to determine how the applicant would be treated in Kenya as a practising Christian who would actively proselytise his Christianity in public.
The 2021 Report on International Religious Freedom Report from the United States Department of State highlights that Christianity is by far the predominant religion in Kenya and indicates that a large variety of Christian churches have an established presence in the country, including evangelical Protestant (such as Pentecostal) churches:
The U.S. government estimates the total population at 54.7 million (midyear 2021). The government estimates that as of 2019, approximately 85.5 percent of the total population is Christian and 11 percent Muslim. Groups constituting less than 2 percent of the population include Hindus, Sikhs, Baha’is, and those adhering to various traditional religious beliefs. Nonevangelical Protestants account for 33 percent of the population, Roman Catholics 21 percent, and other Christian denominations, including evangelical Protestants, African Instituted Churches (churches started in Africa independently by Africans rather than chiefly by missionaries from another continent), and Orthodox churches, 32 percent.
Most of the Muslim population lives in the northeast and coastal regions, with significant Muslim communities in several areas of Nairobi. Religion and ethnicity are often linked, with most members of many ethnic groups adhering to the same religious beliefs. For example, ethnic Somalis and Swahilis living in the coastal region account for the majority of the Muslim population. The five largest ethnic groups (the Kikuyu, Luhya, Kalenjin, Luo, and Kamba) are predominately Christian. There are more than 230,000 refugees and asylum seekers in the Dadaab refugee camps near the Somali border, mostly ethnic Somali Muslims. The Kakuma refugee camp in the northwestern part of the country has more than 177,000 refugees, including Somalis, South Sudanese, and Ethiopians, who practice a variety of religions.
In relation to the legal and constitutional framework, and government respect for religious freedom in Kenya, the same reports states:
The constitution stipulates there shall be no state religion and prohibits religious discrimination. The constitution provides for freedom of religion and belief individually or in communities, including the freedom to manifest any religion through worship, practice, teaching, or observance, and to debate religious questions. The constitution also states individuals shall not be compelled to act or engage in any act contrary to their belief or religion. These rights shall not be limited except by law, and then only to the extent that the limitation is “reasonable and justifiable in an open and democratic society.”
In relation to establishment of new religious groups or new places of worship, the same report states as follows:
According to the law, new religious groups, institutions or places of worship, and faith-based nongovernmental organizations (NGOs) must register with the Registrar of Societies, which in turn reports to the Attorney General’s Office. Indigenous and traditional religious groups are not required to register, and many do not. To register, applicants must have valid national identification documents, pay a fee, and undergo security screening. Registered religious institutions and places of worship may apply for tax-exempt status, including exemption from duty on imported goods. The law also requires that organizations dedicated to advocacy, public benefit, the promotion of charity, or research register with the NGO Coordination Board.
As far as discriminatory practices by the government in Kenya in relation to religious activities, the country information from the same report indicates that such practices are generally targeted by the government towards people of Islamic faith:
Human rights groups and prominent Muslim leaders and religious organizations continued to state the government’s antiterrorism activities disproportionately affected Muslims, especially ethnic Somalis and particularly in areas along the border with Somalia. The government continued to deny directing such actions, including extrajudicial killings, enforced disappearances, torture, arbitrary arrest, and detention.
The same report indicates that terrorist groups such as Al-Shabaab operate primarily in the northeast of the country and sometimes do target non-Muslims because of their faith. The same report also suggests that there is violence targeted at Muslims, people who convert from Islam to Christianity and people of Somali origin:
The Somalia-based terrorist group al-Shabaab again carried out attacks in Mandera, Wajir, Garissa, and Lamu Counties in the northeastern part of the country, sometimes targeting non-Muslims because of their faith. In January, the international Christian advocacy organization Open Doors noted what it described as a rise in violence against Christians, especially in the northeast where al-Shabaab was responsible for many threats and attacks. In June, al-Shabaab terrorists attacked two buses traveling through Mandera County near the Kenyan border with Somalia, killing three individuals. Media outlets reported the attackers were targeting non-Muslims.
According to NGO sources, some Muslims and their families believed they were threatened with violence or death, especially individuals who had converted from Islam to Christianity and those of Somali ethnic origin.
However, in the same report, there is evidence that relations between faiths in Kenya continue to improve:
Some interreligious NGOs and faith leaders, citing extensive interfaith efforts to build peace between communities, promote peaceful elections, and respond to the COVID-19 pandemic, said relations between religious groups continued to improve. For example, the national interfaith umbrella group the Inter-Religious Council of Kenya (IRCK) partnered with the governmental National Cohesion and Integration Commission to call on politicians to avoid inciting violence by adhering to an elections code of conduct in advance of the country’s general election in August 2022. It also encouraged members of its religious communities to register to vote and educate themselves about the electoral process. The interfaith Dialogue Reference Group, composed of prominent Christian, Muslim, and Hindu groups, continued to hold national and county forums to promote national reconciliation. The Dialogue Reference Group also regularly issued statements calling for national unity and urging the government to take necessary steps to conduct peaceful and credible elections.
Apart from the information referred to above regarding the operations of Al-Shabaab within Kenya, the 2021 Country Report on Human Rights Practices: Kenya from the United States Department of State states as follows:
Al-Shabaab staged deadly attacks on isolated communities along the border with Somalia, targeting both security forces and civilians. The government continued to prioritize investigations and prosecutions of terrorist activities. Human rights groups alleged security forces committed abuses, including extrajudicial killings, while conducting counterterrorism operations.
…
Al-Shabaab terrorists continued to conduct deadly attacks in areas close to the border with Somalia, targeting both security forces and civilians. On May 3, two government contractors working on a border security project died when their vehicle hit an improvised explosive device planted by al-Shabaab extremists in Lamu County. Al-Shabaab militants attacked two cell phone towers on May 12 in Mandera and Wajir Counties, killing three police reservists.
The same report also highlights the prevalence of corruption across all levels of government, including the police force in Kenya:
Impunity at all levels of government continued to be a serious problem. The governmental Independent Policing Oversight Authority, established to provide civilian oversight of police, investigated numerous cases of misconduct. The government took limited and uneven steps to address cases of alleged unlawful killings by security force members, although the Independent Policing Oversight Authority continued to refer cases of police misconduct to the Office of the Director of Public Prosecutions for prosecution. Impunity in cases of alleged corruption was also common.
In considering the applicant’s claims, the Tribunal has considered any fear of harm that the applicant may have from the authorities in Kenya, including the police, separately from any fear of harm he may have from non-state actors.
In relation to the applicant’s fear of harm from the authorities in Kenya, it is clear from the country information referred to above that Christianity is the predominant religion in Kenya and there is no evidence contained in this information to indicate that the authorities of Kenya, including the police, prohibit Christians from practising their or proselytising their faith in any way. Although the church that the applicant attends in Australia does not have a presence in Kenya, the country information referred to above and the applicant’s own oral evidence at the Tribunal hearing indicates that he would be able to access Pentecostal churches of a similar type if he returned to Kenya. In addition, the applicant did not raise any concern at the hearing that he would not be able to access the type of Christian church that he likes to attend, despite having the opportunity to do so.
The applicant has provided an article from 2014 highlighting a proposed local law in Nairobi that would attempt to charge fees for preaching in public places and attempt to place some restrictions on such public preaching. However, the Tribunal has not placed any weight on this article given the age of the article, given no indication that the proposed local law was ever passed or enforced and given that the more recent country information referred to above does not indicate in any way that such fees or restrictions are currently in place anywhere in Kenya. The applicant has provided no other evidence, and there is no other evidence before the Tribunal, that any such restrictions apply in Kenya.
On the basis of the country information referred to above and the country information provided by the applicant over time, the Tribunal accepts that there is a level of corruption within the police in Kenya, including some police officers who may be susceptible to bribes. However, none of this information indicates in any way that Christians in Kenya are targeted for bribes by corrupt police in order to practice or proselytise their faith and none of this information indicates that police accept bribes to turn a blind eye to violence against Christians.
In relation to the applicant’s fears that Muslim police officers would target the him directly for harm, the Tribunal has considered the country information referred to above and the article referred to by the applicant in support of his claims (Muslim Police Officers, Others Beat and Arrest Christian in Kenya - Morningstar News, accessed 15 September 2022). However, as discussed with the applicant at the hearing, this article relates to a Somali convert from Islam to Christianity who was targeted for harm by aggrieved followers of Islam, including some Muslim police officers, because he would not recant his conversion. The Tribunal has placed no weight on this article when considering the applicant’s claims given that the applicant is not of Somali origin and is not a convert from Islam to Christianity. There is no other evidence before the Tribunal, and none arises from the available country information, to indicate that Muslim police officers target Christians for harm in any way in Kenya.
Based on all of the above, the Tribunal does not accept that if the applicant returned to Kenya now or in the reasonably foreseeable future that he would suffer any harm from the authorities in Kenya for being a Christian or for proselytising his Christianity, including any claimed harm from restrictive local laws, from corrupt police subject to bribes or from Muslim police officers.
Accordingly, the Tribunal is not satisfied that if the applicant returned to Kenya now or in the reasonably foreseeable future that there is a real chance that he would suffer any harm for reasons of being a Christian or being a proselytising Christian from the authorities in Kenya, including any claimed harm from restrictive local laws, from corrupt police subject to bribes or from Muslim police officers.
In relation to the applicant’s fears of harm from non-state actors in Kenya, the Tribunal has considered the applicant’s claims that he fears harm from Islamist groups including the Al-Shabaab terrorist group for reasons of being a Christian or being a proselytising Christian.
From the country information referred to above, including some country information provided by the applicant, the Tribunal accepts that the Al-Shabaab terrorist group has been active in Kenya for many years. The Tribunal also accepts that this terrorist group has conducted attacks in the past in many places around Kenya, including in the region around Nairobi where the applicant’s family resides. Although the attacks of Al-Shabaab appear to be in protest at the involvement of the Kenyan government in neighbouring Somalia, the Tribunal accepts that these attacks have an Islamist and anti-Christian element to them.
However, as discussed with the applicant at the hearing, the country information referred to above from the indicates that the activities of the Al-Shabaab group now appear to be confined to the northeast of Kenya in the border and coastal regions close to Somalia. The applicant has claimed that such terrorist groups operate all over Kenya and has provided some reports from past incidents of Al-Shabaab activities in parts of Kenya beyond the northeast of the country in the border and coastal regions close to Somalia. However, on balance, the Tribunal has placed less weight on these reports because they relate to events that have happened some years ago. The Tribunal has placed more weight on the country information from the United States Department of State, referred to above, that indicates that activity of groups such as Al-Shabaab or any other Islamist extremists is confined to the northeast border and coastal regions close to Somalia and that these groups do not actively target Christians in and around the region of Nairobi where the applicant’s family resides.
The Tribunal has considered the claims of the applicant that Al-Shabaab and other Islamist terrorists are unpredictable and can strike at any time. However, based on the country information referred to above, the Tribunal finds that this possibility is remote given that the applicant has no identifiable links to the northeast of Kenya and to the border and coastal regions near Somalia.
Apart from Al-Shabaab, the applicant has not identified any other Islamist extremist group that he fears harm from, and no other group can be identified from the evidence before the Tribunal.
Based on all of the above, the Tribunal does not accept that if the applicant returned to Kenya now or in the reasonably foreseeable future that he would suffer any harm from Islamist groups including the Al-Shabaab terrorist group because he is a Christian or because he is a proselytising Christian.
Accordingly, the Tribunal is not satisfied that if the applicant returned to Kenya now or in the reasonably foreseeable future that there is a real chance that he would suffer any serious harm for reasons of being targeted by Islamist groups including the Al-Shabaab terrorist group because he is a Christian or because he is a proselytising Christian.
Having considered all of the applicant’s claims individually and cumulatively, on the evidence before it, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.

100. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).

102. The Tribunal has already found that it is not satisfied that if the applicant returned to Kenya that there is a real chance that he would suffer harm on the the basis of a Christian or on the basis of being a proselytising Christian or on the basis of being targeted by Islamist groups including the Al-Shabaab terrorist group because he is a Christian or because he is a proselytising Christian. Given that the real risk test for the purposes of s 36(2)(aa) imposes the same standard as the real chance test for the purposes of s 36(2)(a), the Tribunal is accordingly not satisfied that if the applicant returned to Kenya that there is a real risk that he would suffer any harm for the same reasons. Apart from these claims, the applicant has not made any claims that he fears harm for any other reason in Kenya and no other claims arise from the facts before the Tribunal.

103. Having considered all of the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing there is a real risk the applicant will suffer significant harm if he were to return to Kenya.
104. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
decision

106. The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Katsambanis
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 4550

29 September 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction