2001388 (Refugee)

This matter concerned an application for a protection visa by a young woman born in Australia to Kenyan parents. The applicant's protection visa application had been refused by a delegate of the Minister, and she sought review of this decision before the Administrative Appeals Tribunal. The applicant's parents and sibling had a related application, which was considered concurrently. The Tribunal found that the applicant was a citizen of Kenya, and therefore Kenya was the relevant country for assessing her claims for refugee and complementary protection.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36 of the Migration Act 1958 (Cth), specifically concerning Australia's protection obligations under refugee or complementary protection grounds. The applicant claimed she would face harm if returned to Kenya, including culturally accepted violence against women and girls, and violence due to her family background and tribal affiliation. The Tribunal was required to assess the credibility of these claims and determine if there was a real chance of significant harm, considering the available country information and the specific circumstances of the applicant, including her itinerant lifestyle and lack of support networks.

The Tribunal reasoned that while female genital mutilation is illegal in Kenya, it is still a widespread practice, and the state may not provide effective protection against it. The Tribunal considered the cumulative effect of various risk factors, including the applicant's background, her father's potential retribution from a criminal gang, and her lack of established support networks. Based on this assessment, the Tribunal found that the applicant satisfied the criteria under section 36(2)(aa) of the Act. Consequently, the Tribunal remitted the decision under review with a direction that the applicant satisfies the requirements for a protection visa.