2004066 (Refugee)

2004066 (Refugee) [2023] AATA 4321 (20 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2004066
COUNTRY OF REFERENCE:                   Kenya
MEMBER:Katherine Harvey
DATE:20 September 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 September 2023 at 2:28pm

CATCHWORDS
REFUGEE – protection visa – Kenya – encouraged people not to vote in the 2007 election – campaigned against political corruption – refused to vote for Kikuyu candidate – targeted in post-2007 election violence by fellow Kikuyu – claims of threats and attempt to kill applicant – third degree burns from attack – unable to relocate as his tribesmen cover a wide geographical area – health and mental health claims – Australian partner – new claims of sexual abuse – credibility issues – delay in protection application – changing, inconsistent and contradictory evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 411(1)(c), 423A, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
GLD18 v MHA [2020] FCAFC 2
MIAC v SZQRB (2013) 210 FCR 505
SZRSN v MIAC [2013] FCA 751
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
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 20 February 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age]-year-old man who claims to be a citizen of the Republic of Kenya (Kenya). He arrived in Australia on a TU-572 student visa [in] July 2016 and applied for a protection visa on 4 July 2019.
On 20 February 2020 a delegate of the Minister refused the applicant’s visa application.
The review application
On 27 February 2020 the applicant applied for a review of the delegate’s decision. He provided the Tribunal with a copy of the delegate’s decision. The Tribunal is satisfied that the decision is reviewable under s 411(1)(c) of the Act.
On 1 September 2022 the Tribunal wrote to the applicant advising that it had considered all of the material before it relating to the application but was unable to make a favourable decision on that information alone.
The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 7 October 2022 and to provide all documents he intended to rely upon to support his case by 30 September 2022.
On 4 October 2022 the Tribunal wrote to the applicant advising that it was yet to receive a response from him and asked him to advise if he would be attending the scheduled hearing and providing further evidence.
On 4 October 2022 the applicant requested that the hearing be postponed to a later date. The Tribunal considered the applicant’s request and rescheduled the hearing to the following month.
The applicant appeared before the Tribunal on 7 November 2022 to give evidence and present arguments.
The applicant was not represented in relation to the review.
On 15 November 2022 the applicant requested advice about how to forward his additional information and asked if he could produce his information in hard copy. The Tribunal responded on the same day explaining how documents could be lodged electronically or in hard copy.
On 21 November 2022 the applicant provided a post-hearing submission.
On 5 September 2023 the applicant appeared before the Tribunal a second time to give evidence and present arguments. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. Where relevant, the applicant’s evidence to the Tribunal is referred to below in the Tribunal’s analysis.
The Tribunal invited the applicant to provide any further evidence on which he wished to rely by 19 September 2023. No further evidence was received by 19 September 2023, the applicant did not request an extension of time to provide evidence and no evidence was provided by the time this decision was finalised.
Summary of claims
In his protection visa application, the applicant made the following claims.
He left Kenya and came to Australia to study, settle and be safe from his tribesmen who had hurt and traumatised him because he refused to vote to elect someone from his tribe. They labelled him a traitor and treated him as an outcast and tried to kill him. He believes in voting by merit, not along tribal lines, and this is something he cannot change. Most of those who attacked him were his friends and tribesmen.
If he returned to Kenya the degrading treatment would continue and he would still be labelled a traitor. The threats to his life would continue. Those who incited others are now in control of government and he will be marked out.
His tribesmen cover a wide geographical area in Kenya and there is nowhere he can go.
He said before the elections, he received threats that he would be labelled a traitor if he did not vote for his tribesman. After the election, people would refuse to sell groceries to him and his cousin and they labelled him a traitor.
He was in his cousin’s bedsitter when his tribesmen shattered the windows and threw bags filled with petrol into the room. They attacked him and his cousin with clubs and he was stabbed in the stomach. Then they were doused in petrol and the petrol was set alight. He escaped the room and his tribesmen kicked him as he rolled to put out the flames. He awoke in hospital with third degree burns to 70–80 per cent of his body. His cousin died.
He did not seek help in Kenya as he was in hospital for 18 months and he feared he and his mother would be targeted. Also the people his tribesmen wanted him to vote for were now controlling the government.
After leaving hospital, he moved to [another location] to start afresh. Whenever anyone asked him about his scars, he would tell them what happened. They would then spread the story and he would be approached by people from his tribe who would say that he hoped he had learnt a lesson and next time he might not be so lucky if he did not do what was good for the tribe. He said this made his resolve to hold his own political beliefs even stronger. When he was treated as an outcast and the threats started, he would move.
When he was living in Mombasa, his tribesmen told him they would be the ones to finish him off and they would not live with a traitor in their midst. They told him to leave the country and that there was nowhere in Kenya that they would not be able to find him.
He fears being physically harmed and constantly threatened. He does not want to be denied the right to express his political opinion freely. He believes his tribesmen would mistreat him because of his unwavering belief that everyone should hold their own political opinion and he will not hide his beliefs.
The authorities could not protect him because they are very corrupt and they were not able to protect him in the past.
He already tried relocating but his tribesmen would keep up with their threats wherever he was. His tribesmen are populous and cover a wide area of Kenya.
On 27 November 2019, following his interview with a delegate on 25 November 2019, the Department wrote to the applicant inviting him to comment on country information that indicated as a Kenyan citizen, he has a legally enforceable right to enter and reside in South Sudan, Burundi, Rwanda, Tanzania and Uganda.
On 16 December 2019, the Department received a response from the applicant in which he explained that he chose not to enter South Sudan and Burundi because of the volatility in those countries. He said that if he was in Tanzania and inter-border conflicts arose with Kenya, that he feared being stigmatised and harassed or mistreated, and he would not enter or reside in Uganda or Rwanda as they do not have a democratic system of government.
On 4 October 2022, the applicant requested an adjournment of the hearing and wrote:
I am writing in relation to my hearing which is scheduled for 7^th October 2022, 10 am at the AAT offices in Adelaide.
I am kindly and sincerely requesting for an adjournment of my hearing for a later date. The reason for the adjournment is due to my mental state at the moment. I have been going through a lot of late, my depression ever since the incidence occurred, self medicating myself and my state of mind is not OK as I haven’t even gone through my transcripts to make sure everything is in order. Also, my mother has been in and out of hospital, this time she has been there since mid of last year and this has only added to my worrying and affecting me psychologically as she is very far away from me. I feel I won’t be able to respond 100% and I am kindly requesting for some more time to get myself in order and for this storm to pass (mother). Kindly bear with me. Thank you.
In response to an invitation at the hearing to provide any additional information, on 21 November 2022, the applicant made a post-hearing submission in which he made the following claims.
I am kindly and humbly asking to reconsider my request for application of a protection visa in my favour as I have endured a lot in my life and feel I’ve been punished for nothing at all.
Ever since I was a child I’ve been abused sexually and physically by someone very close to me and this has brought me irreparable trauma that I deal with day in and day out.
I have found acceptance here in Australia for which I’m forever grateful for a feel a sense of belonging from the community and those who support me emotionally, physically and mentally.
If I’m granted a protection visa, I will engage in nation building and applying the skills I gained while in Australia as [an occupation].
My love for Australia is unquestioned as I’m able to express myself openly without the fear of persecution. I will be able to prove to myself and others, I have the capacity to engage positively. I have also met someone who I love dearly and who we have bright plans for the both of us for the future and whose kindness and love have transformed me immensely. I would die of a broken heart if I don’t see her again.
My age has advanced too from the time I came to Australia and I have become accustomed to Australian customs and culture and way of life. All I have in my country is just sad and painful memories.
I have nothing to go to in Kenya. My life if granted a visa is now here.
No other information was provided.
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.
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.
CONSIDERATION
The issue in this case is whether the applicant has a well-founded fear of persecution for a refugee nexus reason, or if he is owed complementary protection, or if he is a member of the same family unit as a non-citizen who is a refugee or is owed complementary protection.
The Tribunal did not find the applicant to be a credible and reliable witness and for the following reasons has concluded that the decision under review should be affirmed. In reaching this view, the Tribunal has had regard to the significant inconsistencies between the applicant’s evidence to the Tribunal, his evidence to the Department and his other evidence, as well as the shifting and unpersuasive nature of his oral evidence at the hearing.
Background
The applicant’s personal details are set out in his application for protection. He is [age] years old and was born in Nairobi City, Nairobi Province, Kenya. He claims that he speaks, reads and writes English, Swahili and Kikuyu, that he belongs to the Kikuyu tribe and is a Christian. He listed his occupation as [an occupation] and claimed to have been unemployed and receiving support from friends from September 2017.
The applicant claimed that in Kenya he was a self-employed [person] from June 2009 until April 2014, when he went to [Country 1] and worked as [an occupation] for 20 months until December 2015. In Kenya he completed a Diploma [and] withdrew from a [another course]. In Australia, he withdrew from a TAFE Higher Diploma in [a third course] in December 2016.
He claimed to have been detained in Adelaide Immigration Transit Accommodation and that charges of assault, theft and breach of bail were pending. He lodged his application for a protection visa from detention.
In his application he provided details of his mother and [brother] who live in Kenya. At the hearing he claimed that his father had died in 1993.
Country of reference
The applicant claims he was born in Nairobi, Kenya and is a citizen of Kenya. He provided a copy of the biodata page from his Kenyan passport and a copy of his Republic of Kenya certificate of birth.
The Tribunal is satisfied that the applicant is a citizen of Kenya and that Kenya is the receiving country for the purpose of s 36(2)(aa) of the Act.
Assessment of claims and evidence
Has the applicant experienced harm?
At the second hearing, the applicant showed that he has scarring on his torso, arms and [and another area] that is consistent with being burnt. He said that he also has scarring on his legs. The Tribunal accepts that the applicant has extensive scarring that is consistent with being burnt.
At the hearing, the applicant claimed that he visited his cousin [in] the Rift Valley, to celebrate the Christmas holidays and New Year’s in December 2007. He said on [date] December he and his cousin were attacked at his cousin’s small bedsitter by a mob of people talking in his mother tongue, which is Kikuyu. He said people broke the windows and smashed the door and entered the house. Then they told the applicant and his cousin to sit down and started questioning them about not supporting the Kikuyu candidate in the Presidential election. He said that they hit them with iron rods then the organiser then told everyone to leave and smashed a bottle with a cloth sticking out the top that smelt of petrol and the applicant caught on fire. He said he ran outside and was trying to roll and people were kicking him and he lost consciousness. The applicant said that he woke up in hospital in Nairobi and heard that his cousin had died, and he spent 18 months in hospital recovering.
The applicant claimed that the people attacked him because he refused to vote for someone from his own tribe. He said that he knew the people from the marketplace where he had been hawking, that they were people that he used to see like the bus conductor, people who sell vegetables and some of his cousin’s neighbours. He said they would have discussions and the people would say, look man, he’s from our own tribe and the applicant would respond that the tribe is not the issue, that you vote for someone who does not have any integrity issues, who is not corrupt, someone who will help, someone who will not steal from the government.
The applicant provided the Tribunal with a copy of the decision record. As discussed at the hearing, the delegate records ‘that during his initial detention interview (on 25 June 2009) the applicant discussed the above attack and stated that it was another tribe that attacked him, subsequently naming the tribe, “the Kalenjin”.’ When this was put to the applicant, he said that he did not want to make his tribe look bad. He said that he is loyal to his tribe. He said that it was a mob and the majority of people there were talking Kikuyu. He also said that he heard someone speaking Kikuyu, that his cousin was talking to them in Kikuyu and that he is 100 per cent sure that someone was talking in Kikuyu.
The issue of the applicant’s changed story was raised again at the second hearing. The applicant repeated that it was Kikuyu who attacked him and said that he was trying to protect his people by blaming the Kalenjin. He also said he was concerned that if he went back to Kenya his tribe might say that he turned against them and he could be labelled a traitor. He said that he did not know the information would be kept confidential. When asked how he thought the information would get from Australia to Kenya he said that he thought it would go through the media. The Tribunal does not accept the applicant explanations for why his evidence changed from his initial detention interview. The Tribunal gives greater weight to the evidence of the applicant in his initial detention interview that he was attacked by the Kalenjin.
As discussed at the hearing, the country information available about the violence after the 27 December 2007 elections was that it was inter-tribal violence, not violence within ethnic groups:
The first phase began immediately after the announcement of the contested election results, when opposition supporters took to the streets in protest, especially in Kisumu and the Nairobi slum areas; the second wave consisted of organised attacks in the Rift Valley which appear to have targeted non-Kalenjin communities and those perceived as opponents of the opposition ODM party, including the Kikuyu, Kisii and Luyha communities. In retaliation, gangs of Kikuyu youths subsequently attacked non-Kikuyu groups in Naivasha, Nakuru and Mathare.[1]
[1] Office of the High Commissioner for Human Rights ‘UN human rights team issues report on post-election violence in Kenya

The country information states that violence broke out after the results of the presidential election on 27 December 2007 were announced on 30 December 2007.
Since the announcement of the contested presidential election results on 30 December 2007 giving a second term to Mwai Kibaki, Kenya has been in its worst political crisis since independence. Over 1,000 people have died and 300,000 have been displaced in violence with a serious ethnic character…
State authority collapsed in the political strongholds of the opposition Orange Democratic Movement (ODM). Supporters of its leader, Raila Odinga, took to the streets in violent protest against the theft of the presidency and to seek revenge on the Kikuyu and Kisii communities perceived to be loyal to Kibaki. The security forces reacted with great brutality and members of the communities supporting ODM were violently targeted by Kibaki supporters.[2]
[2] International Crisis Group 2008, Kenya in crisis, 21 February 2008, Africa Report No 137 1.
The Tribunal put it to the applicant that the country information would suggest that, if his injuries were as a result of post-election violence, he was caught up in the violence in the Rift Valley region rather than being individually targeted. The applicant responded that was why he was attacked, his tribe was being attacked and he got attacked for not supporting the Kikuyu. He said the tribe of Kikuyus was saying why don’t you support your own people. The country information does not refer to intra-ethnic violence during December 2007. The Tribunal gives greater weight to the country information that the violence was inter-tribal violence.
At the hearing, the Tribunal discussed its concerns that the applicant had told the delegate, as recorded in the decision record, that his cousin had voted in the election and that his cousin was killed because ‘I was with him’ but at the hearing he had said that his cousin shared his political opinion. The applicant responded that his cousin said they might get in trouble if they don’t have the ink to show they had voted and that his cousin used a dye to mimic the indelible ink and act like they had voted. When asked why the mob had attacked his cousin, the applicant said because he was with him and they were always talking in the pubs and always on the negative. The Tribunal did not find the applicant’s explanation of the contradictions in his evidence reasonable.
At the hearing, the Tribunal discussed that the applicant had not provided any documentary evidence to support his claims, such as a hospital report or medical report, which could lead the Tribunal to conclude that such reports would not support his claims that he was attacked by members of the Kikuyu tribe. The applicant responded that the system in Kenya is not computerised and that he ran out of hospital. He also claimed in relation to the police report that he was scared about raising things that had already passed and that the police side with the government.
Due to the changeable and shifting evidence from the applicant discussed above, the lack of supporting evidence from third party sources, and that his claims are not supported by the country information, the Tribunal does not accept that the applicant was attacked by Kikuyu people in December 2007. The Tribunal finds that the applicant was a victim of inter-tribal violence and attacked by Kalenjin. The Tribunal finds that the applicant’s claim that he was attacked by the Kikuyu because of his political opinion was manufactured for a migration outcome.
Harm from politicians
At the hearing, the applicant claimed that if he returned to Kenya he would be attacked again because people already think he is a traitor because he refused to vote for someone from his own tribe. He claimed to fear harm from his tribesmen or someone from the government because now they are in power. He also said that they might think he had something to expose.
When asked why he would be attacked, the applicant claimed to know ‘a lot of stuff’ about a couple of people. When asked who, he said that ‘they fear I might expose them so I’m sure they will try to eliminate me or hurt me – they tried it once, I’m sure they wouldn’t be bothered to attack me again’. He was asked why people would think he was trying to expose them. He said that he tried it once, that he tried to speak up to the community and tell them these people have been doing this and this and you cannot see, but you are still following them.
The applicant was asked who the people were and he replied a couple of politicians. He said there have been cases in the Hague, at the International Criminal Court. He said that most of the witnesses or people who witnessed what happened and how they organised people to attack just ended up disappearing. He said some were found dead and some have disappeared.
Later in the hearing, he claimed that if he goes back, they will think he tried to expose them and, at the moment, they are the ones in government. When asked who he was taking about, the applicant explained he was talking about the current President William Ruto and the former President and their associates. He said that they were the ones who organised the post-election violence in 2008 after the 2007 general elections. He said that the president would not do it himself, he would probably send his aides or his people.
As discussed at the hearing, the situation in Kenya is very different today to how it was after the 2007 election, with the Kenyan Supreme Court confirming William Ruto’s win over Raila Odinga in the August 2022 election. The applicant responded that some of the people who are there are the same people, that some of them are in power and he is scared. He said that where he is from, the authorities are Kalenjin majority and in the Kikuyu they are voting as a block. He said that he did not want to vote just because of tribe, that he was looking for someone who was clean and had no issues with integrity.
Country information explains that in the August 22 election the candidates ran issues-based campaigns rather than focusing on ethnic groups as they did in the past.
Both the electioneering and the vote went off peacefully, with a few disturbing exceptions, in a welcome break from the past. One reason for the relative calm was likely that both of the main presidential candidates mounted issue-based campaigns rather than trying to marshal support primarily along ethnic lines, as their predecessors have often done. Unemployment and the rising cost of living – and the candidates’ ideas about how to tackle those problems – took centre stage during this electoral cycle.[3]
[3] ‘A triumph for Kenya’s democracy’, International Crisis Group, 8 September 2022
When asked why anything would happen now, the applicant said because they might think that he has something to expose. He said that they will say he is a traitor, he tried to do this and he did not vote. He said that in social media sometimes he says that this happened to him and that his own tribe did this. And they will say that he is still denying and they will keep calling him a traitor, even when he goes back. The applicant was invited to provide evidence of his social media activity and he said that he can try to look for them. The Tribunal invited him to provide the evidence in two weeks. The applicant then said that he talked to people on the phone, not on social media. He said that he sometimes speaks to his mum because that’s the only number he has. He said that she updates him on what is going on but now he does not like disturbing her too much.
The applicant did not provide any documentation about his social media activity in the time given for post-hearing submissions, he did not request an extension of time and no information was provided by the time this decision was finalised.
The applicant was given a number of opportunities at the hearing to provide specific information about why he feared harm and from whom. The evidence that he provided was vague, generalised and nebulous. He did not provide any evidence after the hearing to support his claims that he used social media as platform for political comment. Based on the evidence before it, the Tribunal does not accept that the applicant has been politically active in the past and the Tribunal does not accept that he would be politically active in the future. The Tribunal does not accept that anyone would target the applicant because of his purported knowledge about political corruption.
Health and mental health claims
At the hearing the applicant claimed that he had been an alcoholic, became depressed, been paranoid and had attended [Hospital] many times. He was advised that he had not provided any documentation from Australian hospitals and advised that he could provide documentation like copies of hospital discharge notes or reports of any injuries he had received. The applicant said that he could get them from the [Hospital]. The Tribunal advised the applicant that he could provide evidence after the hearing.
At the hearing, the applicant was asked about his claim in his postponement request about his mental state. He was asked if he had any information to support that claim. The applicant said that he did not go to see the doctors because he was afraid that he would be told he was sick or had a mental illness. He said that he tries to control it himself. At the second hearing the applicant said that when he was in the [Hospital] a doctor said he should consider getting mental health treatment but he has not done so. He said that he does not want to be put on those drugs. He also claimed that his partner says that he talks and screams in his sleep.
At the second hearing the applicant said that he does not receive any ongoing treatment for his scarring. He said that he has learnt to live with it and uses creams for his [body] because his skin gets dry. At the second hearing, the applicant also said that his memory is not working the way that it used to.
At the second hearing the Tribunal reminded the applicant that he had not provided any medical information, such as documentation from Australian hospitals, to support his health claims. He said that he had been to the [Hospital] for different ailments, most of them alcohol related, and that he had been in ICU at [another] Hospital for [a medical condition]. He said that he is now taking five types of tablets including two vitamins and one for his [medical condition]. The Tribunal invited the applicant to provide supporting evidence such as documentation from Australian hospitals by 19 September 2023.
The applicant did not provide any evidence after the second hearing to support his claims. Based on the evidence before it, the Tribunal finds that there is insufficient evidence to substantiate the applicant’s claims about alcohol use, depression, paranoia, memory issues, mental health, disturbed sleep or that he has received treatment in Australian hospitals.
Delay in applying for protection
The applicant arrived in Australia [in] July 2016. He did not apply for protection until 4 July 2019.
The Tribunal is aware that there are a multitude of plausible and credible reasons why an applicant may not seek protection as soon as they arrive in Australia. However, it is well established that a decision maker may consider the question of delay between an applicant arriving in Australia and seeking protection.
At the hearing, when asked about the delay in applying, the applicant explained that he did not look at himself like a refugee because of his political beliefs. He also said that after he dropped out of his course and became homeless, he was in the streets and his state of mind was not correct. He claimed that he got paranoid and that he was scared for his mother and brother, who are the only family he has, that people at home might get hurt if it came out that he had applied for protection. The Tribunal notes that, as it has found above, there is insufficient evidence to substantiate the applicant’s mental health claims.
In the context of the applicant’s claimed fear, this considerable delay of almost three years is concerning. The Tribunal considers that this behaviour is not explained by the applicant if his claims are true, but rather, if he was genuinely in fear of returning to Kenya, he would have sought protection at some point earlier than when he did apply. The Tribunal finds that his reasons for this delay are implausible.
The significant delay in the applicant seeking protection causes the Tribunal to doubt his claims to fear harm on return. The Tribunal does not accept that a person genuinely in fear of being harmed on return would not seek a more permanent option to remain in Australia earlier than the applicant did.
Employment
At the hearing, the applicant explained that he had worked as a hawker in Kenya in a number of different towns and cities, as [an occupation] in [Country 1] and as [an occupation] in Australia when he had work rights. In his post-hearing submission, he expressed his desire to put his skills as [an occupation] to work in Australia. The Tribunal notes that the applicant’s scarring has not prevented him from working in a range of occupations.
At the second hearing, the applicant explained that his scarring limits some of his movements but he agreed that it does not stop him working. He said that he could be self-employed but if he went for an interview, he would be shunned away. He said that everywhere he was judged by his appearance and it was even hard for him to sell his stuff there. The Tribunal asked how he had been able to support himself if that was the case. He said that when he was in Kenya he was living hand to mouth and he could not expand his business. He said that he used to work with his cousin. The Tribunal asked why he could not work with his cousin again and he said he has not heard from his cousin in a long time. The Tribunal put to him that he would be able to subsist and he asked how he would start as he has no capital and no savings. The Tribunal put to him that he had people he could live with such as his mother or his cousin [Cousin A]. He claimed that he had stayed with [Cousin A], who lives in one of his mother’s houses and is the caretaker of a group of her houses, after leaving hospital. The applicant said that it would be pretty hard as everybody is for themselves. He also said it was a burden when he was living with [Cousin A] because [Cousin A] had a wife and [kids] and they were all living in one room. He said that if he goes back he would be able to stay with people but the trauma would cost him and mentally he would not be alright. He also said that he had been gone too long, that his life has stagnated and that his years are going. The Tribunal notes that, as it has found above, there is insufficient evidence to substantiate the applicant’s mental health claims. The Tribunal considered the applicant’s claim that he experienced societal discrimination because of his appearance. The applicant appeared before the Tribunal twice and it was not until he removed the clothing from his upper body that the scarring on his torso and arms became apparent. Based on this, the Tribunal does not accept that the applicant would experience societal discrimination because of his appearance. The Tribunal finds that there is no real chance and no real risk that the applicant would experience serious harm or suffer significant harm because of his appearance if he returned to Kenya now or in the foreseeable future.
Based on the evidence before it, the Tribunal finds that if the applicant returned to Kenya now or in the foreseeable future, he would have accommodation and be able to work to earn an income that allowed him to subsist.
New claims
Before the first hearing concluded, the applicant was advised that it was his responsibility to provide the relevant facts in as much detail as necessary for the Tribunal to establish the relevant facts, and that the Tribunal was not required to make his case for him. The Tribunal asked if there was anything that had not been covered at the hearing that was important. The applicant advised that he did not have anything else, that he could not provide the Kenyan documents because he was in Australia and that he was not given a discharge document from the hospital.
The applicant was then asked if there is any other reason that he fears to go back. He said that he feared being looked at by his friends and that people did not look at him and he could not sell his stuff and help himself to live. He was asked if there was anything else he wished to raise and he said ‘no’.
The Tribunal gave the applicant two weeks to provide any additional evidence to support his claims.
On 21 November 2022, the applicant provided the submission detailed at [28] in which he made new claims. The applicant claimed that ever since he was a child he had been abused sexually and physically by someone very close to him, which brought irreparable trauma that he deals with day in and day out. The applicant also claimed that he has nothing to go to in Kenya. The applicant did not provide any more detail to substantiate his claims and he did not provide an explanation about why the claims had not been made in his application, to the delegate, in a pre-hearing submission or at the hearing. The Tribunal notes that the first hearing was postponed for a month at the applicant’s request to allow him time to prepare, and that at the hearing the applicant was invited three times to raise any other claims.
The applicant was invited to a second hearing to discuss his new claims. At the hearing, the applicant claimed that his father sexually abused him when he was about 7–8 years of age, right before his father died. He claimed that he felt a pain in his backside, that he used to go to the toilet in pain and he would wake up with a headache. He claimed that he did not see a doctor as both of his parents refused to take him to the doctor and told him he was dreaming. He claimed that his mother later told him that his father had sexually abused him. He also claimed that both parents used to physically abuse him and that when uncles or aunties came to visit he would be locked in a room and hidden from everyone. He said that after his father died in 1993 his mother got new partners and they would also beat him. He said that his mother would beat him and then put salt on the wounds to help them heal and to give more pain.
The applicant said that he has never talked to a doctor about his experiences and he has never told anyone else, including his partner. He said that they are things he has kept secret and he was telling them at the hearing because he just wants to open up and let go. The Tribunal asked how his experiences would impact him if he returned to Kenya now and he said that his memories really affect him and that he does not socialise with Africans or associate with older men. He said just looking at them makes the memories come back.
The Tribunal explained s 423A of the Act and how it is to treat new claims and evidence that were not made before the primary decision was made. The Tribunal asked why the applicant had not raised the claim about sexual abuse before. He said that it has been private and he did not raise it with anyone but now he just wants to let it come out so that there is nothing in his heart or his mind. He said that it is a deep secret that has been there a very long time. He said that he just wants to open up and add any additional information that was there that would help him in his case. The Tribunal considered the applicant’s explanation about why this claim was not raised before the primary decision was made and does not accept that his explanation is reasonable. The Tribunal accepts that talking about sexual abuse can be traumatic and that people who have experienced sexual abuse may be reticent to discuss it, however the Tribunal does not accept that the only times the applicant would have been able to overcome this reticence was in his post-hearing submission and at the second hearing. The Tribunal does not accept that the applicant’s claims about experiencing sexual abuse as a child are credible.

The evidence the applicant presented about his mother and his relationship with her was shifting, inconsistent and contradictory across the two hearings and his submissions. During the first hearing he claimed that that he stayed with his mother after leaving hospital and that she helped him. Later in the hearing he said that his mother did not help him at all. He said that he was just staying in one of her little houses and there was a lady, one of his grandmother’s friends, who was helping him because he still had bandages. At the second hearing, he claimed that he stayed with his mother for a very short time and then she took him to his cousin [Cousin A].
At the hearing, the applicant claimed that his mother was now in hospital, that she had developed high blood pressure after what happened to him and her heart is failing. He claimed that she had been put in hospital earlier in 2022 but he was not sure what month. He said that when he tries talking to her on the phone she is so tired so they just talk through text. He also said that he is too afraid to call because he does not want to hear any bad news. The applicant then said that he rarely talks to her too much and that even before she got sick they were not that close. He said that there was never a day that he saw his mum and dad sober and when they were drunk, they beat him and his brother up. He said that when he grew up and matured, he stopped depending on her and became independent and they do not have a really tight relationship.
The Tribunal asked about his mother funding his study in Australia. He said that she did not fund it because he had sent that money from [Country 1]. He said that he did all the work for 20 months and sent the money. He said what his mother did was hook him up with the education thing to tell him that he could do a [third] course in Australia because he really wanted to be [in that field]. He said that was basically all she did and that she started coming close to him because he had money from [Country 1] but he told her that money is for his studies.
The applicant’s changing, inconsistent and contradictory evidence about his relationship with his mother undermines his credibility. Based on the information before it, the Tribunal does not accept the applicant was physically abused as a child by his father, mother or his mother’s partners.
The applicant’s Australian partner
At the second hearing the applicant said that he is in a relationship with [an] Australian citizen. He said that they have been together since December 2019 but they do not live together. He said they are not married but he calls her ‘wife’ because they have been together so long. He said that he would be happy if she wanted to return to Kenya with him but she has said she has a lot of things in Australia including caring for her elder brother and her grandchildren. The applicant said that he would be heartbroken and devastated if she remained in Australia and he returned to Kenya. He said that she had taught him how to do things in Australia after he came out of detention. The Tribunal asked why she had not come to the hearing and the applicant said that he did not know that it was mandatory to bring a partner. The Tribunal considered whether separation from the applicant’s partner if she remained in Australia and he returned to Kenya could be considered persecution involving serious harm and systematic and discriminatory conduct. The Tribunal finds that the heartbreak and devastation the applicant may suffer does not meet the threshold of serious harm. The Tribunal considered whether separation from his partner could be considered significant harm. The judgments in SZRSN v MIAC and GLD18 v MHA confirm that separation from one’s family members in Australia, where the claimed harm arises from the act of removal itself, will not meet the definitions of significant harm in s 36(2A).[4] The Tribunal applied this reasoning and finds that the removal of the applicant from Australia to Kenya and the separation from his partner does not constitute significant harm as defined in s 36(2A). The Tribunal does not accept that there is a real chance or a real risk that the applicant would experience serious harm or suffer significant harm by being separated from his partner.
[4] SZRSN v MIAC [2013] FCA 751 at [47]–[49] and GLD18 v MHA [2020] FCAFC 2 at [36]–[58].
For the above reasons, the Tribunal is of the view that the inconsistencies in the applicant’s testimony and other concerns identified fundamentally undermine the reliability of his account, the credibility of his claims and the truth of his evidence. The Tribunal finds the applicant not to be a reliable, credible and truthful witness. His evidence shows a propensity to tailor evidence in a manner to achieve his own purpose.
The Tribunal finds that the applicant has fabricated and concocted his claims for protection to achieve an immigration outcome. The Tribunal does not accept that the applicant encouraged people not to vote in the 2007 election. The Tribunal does not accept that the applicant campaigned against or spoke up against political corruption in Kenya. The Tribunal does not accept that he was targeted in post-2007 election violence by the Kikuyu.
Does the applicant have a well-founded fear of persecution for a refugee nexus reason?
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.[5] Considering all of the applicant’s claims individually and cumulatively the Tribunal finds that there is no real chance he will face serious harm in Kenya for reason of his race, religion, nationality, membership of a particular social group or political opinion if he returned to Kenya now or in the foreseeable future.
[5] Chan Yee Kin v MIEA (1989) 169 CLR 379.
Is there a real risk the non-citizen will suffer significant harm?
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB,[6] the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[7]
[6] MIAC v SZQRB (2013) 210 FCR 505.
[7] (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
On the information before it, considering the applicant’s claims individually and cumulatively, the Tribunal is finds that there is no real chance of the applicant experiencing serious harm and, for the same reasons, finds that there is no real risk of the applicant suffering significant harm on his return to Kenya now or in the foreseeable future.
Conclusion
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). 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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Katherine Harvey
Senior Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4321

20 September 2023

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