2004305 (Refugee)

2004305 (Refugee) [2023] AATA 2306 (21 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2004305
COUNTRY OF REFERENCE:                   Kenya
MEMBER:Katherine Harvey
DATE:21 March 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 March 2023 at 11:42am

CATCHWORDS
REFUGEE – protection visa – Kenya – homosexuality or perceived homosexuality – memory affected by alcohol – mental health issues – psychotic episode – suicidal thoughts – domestic violence from stepfather – capacity to subsist – mother’s financial difficulty – credibility concerns – shifting evidence – lack of corroborative material – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089
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 10 February 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be a citizen of the Republic of Kenya (Kenya) and is [age] years old. He first arrived in Australia [in] November 2013 on a student visa.
On 29 November 2018, he applied for a protection visa.
Claims
In his protection visa application, the applicant made the following claims.
He left Kenya because his mother wanted to protect him from the harm he was experiencing at the hands of his stepfather.
He claimed that on one occasion, his stepfather was arguing and fighting with his mother in an upstairs bedroom. The door was locked and he broke it and went inside to separate them. He received some blows from his stepfather. His stepfather pulled out a walking stick that had a long knife in it and told he and his mother to get out. He and his mother went downstairs. She had a swollen head. The stepfather walked out with a bag of clothes and said he was going to the police station. The applicant and his mother walked to the police station at 2 am and she made a complaint. When they returned home, his stepfather was not there. This incident was one of the last incidents of domestic violence. What made it different is that he physically stood up for his mother.
On another occasion, his stepfather beat him up and he fell and now has a scar on his left palm. His stepfather kicked them out and, after that incident, his mother went to a women’s organisation called FIDA that helps victims of domestic violence.
He claimed that the harm he experienced was physical violence and he was affected psychologically. For example, in primary school he could not concentrate. He said he would run away from school, a three-hour drive from his home, hoping to reach his mother so she would not be beaten up.
He claimed that his stepfather never liked him because he was not his child and the stepfather’s family did not like him either.
He claimed that he did seek help, when they approached the police (as described above), but his mother was reluctant to go to the police. Sometimes his mother would go to his aunt’s house or his grandmother’s. He would try to avoid harm by staying with friends and by staying out of the house.
He claimed that his stepfather and his stepfather’s family are unpredictable. He does not know if they would try to harm him. He thinks most likely they would because they do not like him, his mother and his little brother.
He claimed that if he is forced to return, he would have to return to his mother’s and stepfather’s house. He does not have any funds to pay to live elsewhere. He is worried that he could not handle the situation. He is worried that he would harm himself.
He claimed that he does not think that the authorities would protect him because domestic violence happens so much it looks normal and people are not put in jail for domestic violence.
He claimed that he cannot relocate because he has no funds and his mother has exhausted her funds. She is looking to the applicant to support his younger brother.
He claimed that he also has difficulty remembering dates and other things because he has lived a reckless life since he was 15, when he began drinking. In Kenya, the alcohol is bad and some of the cheaper alcohol contains other things. He continued drinking heavily in Australia, drinking a bottle of spirits a night, until a girlfriend told him he was easily forgetting things. He went to a doctor who said it was the alcohol.
He claimed that he tried to harm himself in jail in Australia. Since then, he has a series of these thoughts and any time he feels like that he looks for someone to tell or talk to.
He claimed that he has been in a relationship with [Ms A] since October 2017, and they have lived together at her parent’s homes since December 2017. They would like to continue living together.
Department consideration
The Department scheduled an interview with the applicant on 27 March 2019.
On 27 March 2019, the applicant’s agent emailed the Department advising that the applicant had instructed him to inform the Department he would not be attending the interview. When the Department contacted the agent, he advised that the applicant intended to lodge a partner visa application but was not looking to withdraw his protection visa application at this stage.
On 9 December 2019, the applicant attended a protection visa interview. The Tribunal has listened to a recording of that interview. In the interview, the applicant advised that there was nothing he wished to change in his application. At the end of the interview, the delegate confirmed twice that they had talked about everything the applicant wanted to talk about and he had nothing further to raise. The delegate advised that the applicant could email any further information after the hearing. Nothing further was provided.
On 10 February 2020, a delegate of the Minister refused the applicant’s protection visa application.
The review
On 4 March 2020, the applicant applied for a review of the delegate’s decision and provided a copy of his protection visa decision record by hand. The Tribunal is satisfied that the delegate’s 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 the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 11 October 2022.
The applicant provided a hearing response dated 6 September 2022, advising that he had been having regular toothaches, which may affect his ability to take part in the hearing. He also said that he was in the process of collecting his documents, which he would submit by 4 October 2022, and he gave the names of two witnesses, his partner [Ms B], with whom he has been trying to start a family, and [Mr C], a close friend.
On 3 October 2022, the applicant submitted:
·   a letter from his mother dated 7 September 2022. She said her husband (the stepfather) had married a 30-year-old girl in 2018 and his behaviour deteriorated so much that he could become very angry and insult everyone. Her son started getting stressed as other stepfamily members started mistreating him and he wished to leave the country. She took out a loan in 2019 but COVID-19 affected her business and there is a balance of the loan she has been unable to pay. She asked that her son be granted a protection visa to continue his studies as she cannot sustain him given her current debt.
·   a letter dated 2 September 2022 from [a financial institution] addressed to his mother about overdue loan arrears and seven pages of account statements.
·   An article by Elijah Marangu et al ‘Assessing mental health literacy of primary health care workers in Kenya: a cross-sectional study’, International Journal of Mental Health Systems (2021).
The applicant appeared before the Tribunal on 11 October and 9 November 2022 and 12 January 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr C], a friend of the applicant.
The hearing on 11 October 2022 was adjourned to allow the applicant to provide evidence to support his new claim that his is homosexual.
On 4 November 2022, the applicant provided a handwritten note with the names of witnesses: [Dr D] at [medical service provider], [Mr E] and [Mr F], the lawyer in charge of house sale in Kenya along with a Kenyan phone number. He further wrote that he ‘was not sure how to send a video I have got in my phone which am comfortable to show at the hearing since my phone cannot access the internet at the moment’. He provided the following attachments:
· a copy of a script for Venlafaxine 75 mg Capsule, modified release dated 3 November 2022 prescribed by [Dr D], and
· a medical certificate signed by [Dr D] and dated 3 November 2022 stating:
This is to certify that I saw [the applicant] today and it is my opinion that he is/and have (sic) been suffering from severe Anxiety and Depression for at least the last 12 months. He has now taken the first steps towards addressing these issues and I will follow his progress.
The hearing on 9 November 2022 was adjourned after the applicant said that he was feeling unwell after starting his new medication on 5 November 2022; his symptoms were diarrhoea, sweating when sleeping and headaches every now and then.
On 9 November 2022, after the hearing, the applicant advised that [Ms B], his partner, was booking tickets for them to travel to Canberra [in] November 2022 to provide biometrics for new passports.
On 29 November 2022, the Tribunal invited the applicant to a resumption of the adjourned hearing on 14 December 2022. The Tribunal also sent him SMS reminders about the hearing five business days and one business day before the scheduled hearing.
On 13 December 2022, the applicant contacted the Tribunal and said that he did not know if he could come to the hearing the next day as he was ‘beat up over the weekend’. He said he had not attended the hospital. He was advised that any request for a postponement needed to be in writing and he should provide documentation from a registered medical practitioner. He was advised that if he did not attend, the Tribunal may dismiss his application or make a decision without taking further action to enable him to appear before the Tribunal. The applicant did not provide a request in writing to the Tribunal.
On 15 December 2022, the Tribunal advised the applicant that, as he had not attended the resumed hearing, it had decided to dismiss his application for review without further consideration of the application or the information before the Tribunal.
On 22 December 2022, the applicant requested a reinstatement of the hearing and provided a medical certificate dated 14 December 2022 stating that he was unfit for work on 14 December 2022. The Tribunal considered the applicant’s request and reinstated the application and listed the hearing to be resumed on 12 January 2023.
On 12 January 2023, the applicant appeared before the Tribunal for the conclusion of the adjourned hearing.
At the hearing on 12 January 2023, the applicant requested three weeks to provide supporting evidence. The Tribunal agreed to this request and invited him to submit information by 2 February 2023. No information was received by 2 February 2023, the applicant did not request additional time and no information had been received at the time this decision.
On 12 January 2023, at the hearing, the applicant advised that he had changed his address to [Address 1]. The Tribunal emailed him a change of contacts details form on 12 January 2023. At the time of this decision, the Tribunal had not received a response from the applicant.
The applicant was not represented in relation to the review.
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 relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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 he is owed complementary protection, or he is a member of the same family unit as a non-citizen who is a refugee or is owed complementary protection.
Background
The applicant’s personal details are set out in his application for protection. He is [age] years old and was born in [Town 1], Kenya. He speaks, reads and writes English, Kikuyu and Swahili.
In his application for protection, the applicant provided details of his de facto partner [Ms A], an Australian citizen with whom he was living in Australia at the time of application, and his family in Kenya: his mother, stepfather, younger half-brother, two older stepsisters and one older stepbrother.
Country of reference
The applicant claims that he is a citizen of Kenya. He provided a copy of the biodata page of his Kenyan passport to the Department, which lists his place of birth as [Town 1], Kenya.
Taking into account the available evidence, 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.
Claims and evidence
At the hearing, the applicant made the following new claims.
He claimed that his relationship with [Ms A] ended in 2019 and that he met his current partner [Ms B] in 2019 and they moved in together as soon as they met.
He claimed that he has experienced an episode of psychosis and called the police. He claimed to have problems with his mental health.
He claimed that he was attracted to the same gender and had gay relationships.
He claimed that his mother’s house was being sold and he would not have anywhere to live in Kenya.
He claimed that he would be unemployed if he returned to Kenya and his mother could not support him.
Analysis, reasons and findings
In reaching its decision, the Tribunal has considered the information in the Department file, including the applicant’s response to questions from the delegate, information submitted by the applicant, information provided at the hearing and relevant material from external sources.
The Tribunal did not find the applicant to be a credible, reliable or forthright witness and for the following reasons has concluded that the decision under review should be affirmed. In reaching this view, the Tribunal had regard to the significant inconsistencies between his application, his evidence to the Department and his written and oral evidence to the Tribunal, as well as the shifting and unpersuasive nature of his oral evidence at the hearing.
In assessing his evidence, the Tribunal had regard to the applicant’s claim that his memory had been affected by alcohol consumption. At the hearing, he claimed that he had gone to a general practitioner in 2014 or 2015 on the advice of his then girlfriend and the doctor had concluded his memory was affected by alcohol use. The Tribunal explained that the applicant had not provided any corroborative evidence to support his claim and invited him to comment or respond. The applicant said that the general practitioner he first saw is not at the clinic any longer. The applicant did not provide any corroborative evidence, such as a diagnosis from a registered medical practitioner or a summary of his medical notes from the clinic, to support his claim that his memory had been affected by alcohol. At the hearing, he spoke of returning home and putting his phone somewhere and then forgetting where he had put it. The Tribunal did not find this evidence persuasive of significant memory loss. Based on the evidence before it, the Tribunal does not accept that the applicant’s memory is affected by alcohol consumption in a way that affected his ability to participate in the hearing and provide credible evidence to support his claims.
The Tribunal advised the applicant that it is his responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
Homosexual

At the hearing, the applicant made a new claim, that he is attracted to the same sex and has gay relationships. He provided contradictory evidence about how long he had been attracted to the same sex. He said that he has kept his attraction to the same gender a secret for a long time. He said that he used to hide his sexuality ‘back home’ and that nobody knew apart from the people in Kenya with whom he had had intercourse. However, he also told the Tribunal that ‘I just discovered my sexuality because I’ve been hanging around people with the same mindset.’
When asked how someone would know that he is gay, the applicant said ‘because I’m not hiding it anymore.’ When asked who knows that he is gay, he said ‘just my partners, I can give you contacts’. When asked what his female partner [Ms B] thinks about him being gay, he said ‘I’m not sure she knows’. He claimed that his best friend [Mr C] does not know. Later in the hearing, the applicant said that news of him being gay had reached Kenya and that ‘everyone knows, everyone despises me’ and that even his mother has barely been speaking to him lately and had pretty much disowned him.
The applicant claimed that he found his partners on [instant messaging app 1] and [instant messaging app 2]. He said that one of them was in 2018 and one of them was recently, while the others are just random one-night stands. The Tribunal notes that the applicant applied for his protection visa on 29 November 2018 and participated in a protection visa interview on 9 December 2019 but he did not raise this claim in his application or at the interview with the delegate.
The Tribunal adjourned the hearing to allow the applicant to provide corroborative evidence to support his new claim. The applicant said he would try to get his partner [Mr E] to attend the hearing. When the hearing resumed, [Mr E] did not attend. The only evidence that the applicant provided was his shifting and unpersuasive oral evidence. No corroborative evidence was provided after the hearing and by the time this decision was finalised.
At the hearing, the Tribunal advised the applicant that if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made. The Tribunal asked why he had not raised the claim earlier. The applicant said that he is trying to come out slowly. As the applicant also claimed at the hearing to have had male partners in Kenya before he arrived in Australia in 2013 and male partners in Australia from 2018, the Tribunal did not find this explanation persuasive or satisfactory. The Tribunal is not satisfied that the applicant has a reasonable explanation why his claim to be homosexual was not presented before the primary decision was made in 2020. Based on the information before it, the Tribunal is not satisfied that the applicant is homosexual, nor that he has gay relationships, nor that he would be perceived as gay. The Tribunal finds that the applicant does not face a real chance of serious harm or a real risk of significant harm in Kenya now or in the foreseeable future for reason of homosexuality or perceived homosexuality.
Mental health
At the hearing, the applicant claimed that he had experienced an episode of psychosis and had called the police on himself. He said that he called 911 and two police officers came and took him to the watch house. The Tribunal asked who else he had seen in the watchhouse. In response, he said he guessed that the police thought he was drunk. He said that they asked him if he was OK and kept him there until three in the afternoon of the next day. The applicant could not remember when this occurred, but he thought it was ‘not that long ago, either the beginning of this year (2022) or the end of last year (2021).’
When the hearing resumed, the Tribunal explained that the applicant had not provided any corroborative evidence to support this claim and that it was concerned about the credibility of the claim. The applicant said that the video he had previously mentioned (at [28]) showed the aftermath of his mental breakdown. He said that before he did anything, he called the police and asked them to get him because he was feeling like self harm. He said that he smashed and trashed the house and the police came and took him to the watch house. He said that the video shows the following morning when [Ms B] came home and took a video of everything. The Tribunal advised the applicant that he could email the video to the Tribunal. The applicant did not provide a copy of the video. The applicant said that he had asked for the medical record and the police had charged him $35. He said that he should have it in two to three weeks. The applicant did not submit a medical record, the video or any other evidence to corroborate his claim that he had a psychotic episode and was taken to the watch house either three weeks after the hearing nor by the time this decision was finalised. Based on the evidence before it and the lack of corroborative material, including from the police, the Tribunal is not satisfied that the applicant has experienced an episode of psychosis, nor that he was taken to the watch house.
The applicant said that he really had trouble with his mental health. After the first hearing was adjourned, the applicant consulted [Dr D], a General Practitioner, who provided a medical certificate that certified that, in his opinion, the applicant had been suffering severe anxiety and depression for at least 12 months. The Tribunal notes that [Dr D] is a General Practitioner who made his assessment after one consultation. The applicant claimed that this is the first time he has taken a medical step with his mental issues. However, the applicant also claimed that he had reported anxiety when he was in jail and in immigration detention and he had been given Valium. The applicant did not provide any corroborative evidence to support this claim of receiving medical treatment for anxiety in jail or detention.
The Tribunal is satisfied that the applicant’s mental health has not impacted his ability to give evidence and that he is competent to participate in the review process. The applicant presented as articulate the three times he spoke with the Tribunal. He did not suggest that his mental health issues impacted his ability to give evidence and the hearing on 9 November 2022 was adjourned due to the side effects from his new medication.
Based on the scant evidence before it, including that the medical certificate from [Dr D] is two sentences long and the result of one consultation, the Tribunal is not satisfied that it has been established that the applicant is suffering from severe anxiety and depression. However, the Tribunal will proceed on the basis that a protection claim has arisen on the material.
The applicant submitted the article ‘Assessing mental health literacy of primary health care workers in Kenya: a cross-sectional study’ that showed primary health care workers had low diagnostic accuracy for serious and common mental disorders. The Tribunal accepts the information, noting that the applicant currently has a diagnosis and medication to treat anxiety and depression.
The Tribunal reviewed country information to assess whether people with a mental health issue face discrimination or are targeted in a way that would put the applicant at risk of serious or significant harm in Kenya.
At the hearing, the Tribunal discussed the country information that President Uhuru Kenyatta had signed the Mental Health Act 2022 into law that:
…will ensure that all persons with mental health needs receive the highest attainable standard of care in line with the Kenyan Constitution while mandating both the national and country governments to provide the necessary resources for the provision of the mental health care and treatment.[1]
[1] ‘Kenya’s landmark decision to inaugurate the Mental Health Act 2022’, HealthCare Middle East & Africa, 21 July 2022.
The applicant responded that the government has changed and they have a new president and people are complaining that he is not delivering what he promised. He also claimed that people in Kenya do not really believe in having mental health issues, they believe mental health issues means crazy. He said that people do not even believe in depression as a sickness.
On 20 March 2023, the homepage of the Kenyan Ministry of Health Taskforce on Mental Health described the Kenya Mental Health Policy 2015–2030 as follows:
The Kenya Mental Health Policy 2015-2030 provides for a framework on interventions for securing mental health systems reforms in Kenya. This is in line with the Constitution of Kenya 2010, Vision 2030, the Kenya Health Policy (2014- 2030) and the global commitments. The Constitution of Kenya 2010, in article 43. (1)(a) provides that “every person has the right to the highest attainable standard of health, which includes the right to healthcare services” 1. This necessarily includes mental health. The 65th World Health Assembly adopted Resolution WHA65.4 on the global burden of mental disorders and the need for a comprehensive coordinated response from the health and social sectors at country level. Subsequently, during the 66th World Health Assembly, Resolution WHA66.8 was adopted. It called on member states to develop comprehensive mental health action plans in line with the Global Comprehensive Mental Health Action Plan 2013-2020. [2]
[2] Homepage for Kenya’s Ministry of Health, The Taskforce on Mental Health
Based on the country information, the Tribunal is satisfied that there is not a real chance that serious harm or a real risk that significant harm would be directed at the applicant because of his mental health if he returned to Kenya now or in the foreseeable future.
Suicide
At the hearing, the Tribunal discussed the applicant’s claim to have had suicidal thoughts. The Tribunal considered this claim in light of the Federal Court’s finding that it does not consider that self-inflicted harm constitutes ‘harm’ for the purpose of ss 36(2)(aa) and 36(2A).[3] The Tribunal finds that voluntary suicide is not serious harm for a Convention reason for the purpose of s 36(2)(a) nor significant harm for the purposes of s 36(2)(aa) or s 36(2A).
[3] CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089 at [65]–[68].
Stepfamily
In his application, the applicant claimed to fear harm from his stepfather and said he had previously experienced physical violence from his stepfather. At the hearing, he said that his stepfather had disowned him after his stepfather flew from the Gold Coast to Adelaide and the applicant did not show up. The Tribunal discussed with the applicant that this was not consistent with the evidence he provided to the delegate, as detailed in his protection visa decision record, a copy of which he provided to the Tribunal. The applicant then said his stepfather did not say that he disowned him by mouth but he expressed it and they now barely talk. He said his stepfather will leave him unread (on social media), which he never used to do. He said that since that day it has been a different attitude and his stepfather just was not interested any more. The applicant did not suggest that his stepfather had threatened to harm him nor did he express serious concerns about his personal safety.
The Tribunal discussed its concerns with the applicant as his mother’s claims about his stepfather did not align with the applicant’s claims. In the letter, his mother claimed that:
In 2018, at the age of [age], my husband married a young girl aged 30 and together they have a child Since he married this girl, his behaviour deteriorated so much that he could become very angry and insult everyone. My son started getting so stressed as the other step family also started mistreating him. He wished he would leave this country to go somewhere else where he could not see him.
However, as discussed at the hearing, his protection visa decision record details that the applicant told the delegate that his mother and stepfather had separated a month before his interview on 9 December 2019. Further, the applicant arrived in Australia [in] November 2013, well before 2018, when his mother claimed that his stepfamily started mistreating the applicant. The Tribunal places no weight on the evidence provided by the applicant’s mother.
Initially at the hearing, the applicant had said that his stepfather and stepsiblings had moved out of the home he shared with his mother before he left Kenya. He said he could not remember when they moved out but he remembers how it made him feel. He said he was shopping with his mother when a neighbour rang and asked if he was moving because there was a truck outside the house moving stuff. He said that he felt broken because the family was breaking up and he tried so hard not to let them separate. Later in the hearing, the applicant told the Tribunal that his stepfather ‘started moving stuff bit by bit’ in 2018 or 2019.
In his application, the applicant claimed to be afraid of his stepfather’s family. At the hearing, he said that he has not had contact with his stepbrother and two stepsisters since before he left Kenya. When asked what he feared, he said that his stepfamily was unpredictable, and he does not know what they are capable of. He said that when he was at primary school an aunt tried some witchcraft on him by leaving blood and some other thing under his bed. He said that his mother found it when she was making his bed, before he returned home from boarding school. He said he does not believe in witchcraft but that was clearly abnormal. When asked if anything else had happened, the applicant said that there was nothing physical but they make it clear that they do not like him. The applicant did not detail any threats from his stepfamily. The Tribunal accepts that his stepfamily may not like the applicant but the Tribunal does not accept that his stepfamily seeks to harm him. The Tribunal is not satisfied that the applicant’s stepfather or stepfamily have threatened him with harm. The Tribunal is not satisfied that there is a real chance that the applicant will face serious harm nor a real risk that he will suffer significant harm from his stepfather or the stepfamily.
Work in Kenya
The applicant claimed that if he returned to Kenya he would not be employed to begin with. He also said that he could barely get a job as he did not finish his [specified] course. However, earlier in the hearing the applicant had explained that he obtained a Diploma [qualification] from [University 1] in 2013. The Tribunal discussed the applicant’s work history running a [specified] business in Kenya before he came to Australia and his work in Australia in aged care, on farms and in maintenance when he had work rights. The Tribunal explained that there was no information before it to suggest that he could not continue doing such work in Kenya. The applicant said that when he was in Kenya, you could do [specified business] from your house and now you have to be certified. He said he was just doing it as a hobby with friends in his gap year. The applicant said that as a labourer in Kenya he would be in people’s eyes, meaning that his sexuality would be exposed more. As discussed above, the Tribunal does not accept the applicant’s claims about his sexuality. The applicant said that when employers did background checks his record with the police in Australia and his having been to jail in Australia would be known. The applicant said he went to jail in 2015 for one month for a mistaken assault case and he explained that it was mistaken because he had not intended to assault his girlfriend. The applicant did not provide any corroborative evidence to support his claim that background checks for labouring jobs in Kenya would extend to Australia. As the applicant is of working age, he has completed tertiary studies in Kenya and Australia and he has worked in both Kenya and Australia, the Tribunal does not accept that the applicant could not support himself by working if he returned to Kenya. Based on the information before it, the Tribunal is not satisfied that there is a real chance that the applicant will suffer significant economic hardship that threatens his capacity to subsist nor a real risk that he will suffer significant harm.
Home in Kenya and mother’s financial difficulty
The applicant claimed that his mother and stepfather were selling their house and, when it was sold, he would have nowhere to live. He also claimed that his mother was in financial difficulty because she was in debt to loan sharks. To support this claim, the applicant provided a letter from his mother dated 7 September 2022 and a letter from [a financial institution] dated 2 September 2022 addressed to his mother. When asked to talk about the letter at the hearing, the applicant said that he had not read it through because he knew about the situation that his mother was in with his dad (his stepfather). When reminded about the content of the letter and asked how it related to him, the applicant said that his mother has used up all the money to educate his younger brother, that she has a loan and that she is about to lose the house.
The Tribunal discussed its concerns with the applicant about the credibility of the documents submitted with his mother’s letter. The concerns include that the account number in the letter dated 2 September 2022 from the [financial institution] does not match the account number in the statements submitted from [the financial institution]; the amount owing in the letter does not align to the debt in the statements submitted, and the date in the stamp on each page of the statements is partially obscured, with only ‘02’ being legible. The applicant said the documents were credible and true and that he could ask him mum about that but that he does not know anything. He claimed that he was just forwarding anything that came from his mum and that, given the chance, he could correct it because he was just forwarding anything. At the hearing, the applicant requested three weeks to provide supporting evidence. The Tribunal agreed to provide three weeks and invited him to submit information by 2 February 2023. No evidence was received by 2 February, the applicant did not request additional time to provide evidence, and no evidence had been received by the time of this decision. Based on the information before it, the Tribunal does not accept that the applicant’s mother is in financial difficulty nor that she is in debt to loan sharks.
The applicant claimed that his mother and stepfather’s home, where his mother and younger brother live, was being sold. He claimed that his mother has been telling him that the house might get bought very soon and that he would have no place to stay. Based on the information provided, the Tribunal accepts that the house is for sale. The Tribunal put to the applicant that he could continue to live with his mother even if the house was sold. The applicant claimed that he did not know what is going on because his mother has not talked to him. He also claimed that he was not really paying attention when she explained what was happening with the house and, later, that she expected the house to be sold by May. The Tribunal does not accept that the applicant would have nowhere to stay in Kenya. The Tribunal is satisfied that the applicant could live with his mother if he returned to Kenya.
Conclusion
For the above reasons, the Tribunal finds the applicant not to be a credible, truthful and reliable 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 to achieve a favourable migration outcome. The Tribunal, therefore, does not accept that the applicant is homosexual. The Tribunal does not accept that the applicant’s memory is affected by alcohol, or that he has had a psychotic episode in Adelaide. The Tribunal does not accept that the applicant will experience serious harm or suffer significant harm in Kenya because of severe anxiety and depression. The Tribunal does not accept that the applicant’s stepfather or stepfamily will inflict serious harm or significant harm on him. The Tribunal does not accept that there is a real chance that the applicant will face significant economic hardship that threatens his capacity to subsist or that he will be denied the capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist. The Tribunal does not accept that the applicant would not have anywhere to live in Kenya, and the Tribunal does not accept that the applicant’s mother is in financial difficulty.

After considering all of the applicant’s claims, both individually and cumulatively, the Tribunal finds that there is no real chance that the applicant will face serious harm in Kenya for the reason of his race, religion, nationality, membership of a particular social group or political opinion. The Tribunal finds that the applicant does not have a well-founded fear of being persecuted. Therefore, the applicant does not satisfy the criteria set out in 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 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 be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)-(e) of the definition of ‘torture’ in s 5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s 5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s 5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty. The Tribunal is therefore 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 2306

21 March 2023

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