2004066 (Refugee)

This matter concerned an application for a protection visa by a Kenyan national. The applicant claimed to have been attacked and severely burnt in Kenya in December 2007 by a mob from his own Kikuyu tribe, following his refusal to vote for a Kikuyu candidate in the presidential election and his public campaigning against political corruption. He alleged that the attack resulted in his cousin's death and left him with third-degree burns, requiring extensive hospitalisation. The applicant also raised health and mental health claims, and later introduced new claims of sexual abuse.

The legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution for a refugee nexus reason, or if he was owed complementary protection, or if he was a member of the same family unit as a person who met these criteria. Central to the determination was the applicant's credibility, given significant inconsistencies between his evidence provided to the Department, his evidence to the Tribunal, and his oral testimony. Specifically, the Tribunal had to assess the veracity of his claim that he was attacked by members of his own tribe, which contradicted his initial statement to the Department that he was attacked by the Kalenjin tribe.

The Tribunal found the applicant to be neither a credible nor a reliable witness. It noted significant inconsistencies in his evidence and found his oral testimony to be shifting and unpersuasive. While accepting that the applicant had scarring consistent with being burnt, the Tribunal gave greater weight to his initial statement that he was attacked by the Kalenjin tribe, rather than his later explanation that he blamed the Kalenjin to protect his own tribe. The Tribunal did not accept the applicant's explanations for the change in his account, concluding that he had not established a well-founded fear of persecution or a real risk of significant harm upon return to Kenya.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa, finding that he did not satisfy the criteria under section 36(2) of the Migration Act 1958.