2012299 (Refugee) - [2023] AATA 4834

2012299 (Refugee) [2023] AATA 4834 (8 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Sabinus Robi (Lawyer; MARN: 849550)
CASE NUMBER:  2012299
COUNTRY OF REFERENCE:                   Kenya
MEMBER:Katherine Harvey
DATE:8 December 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 08 December 2023 at 1:21pm

CATCHWORDS
REFUGEE – protection visa – Kenya – particular social group – homosexuals – beaten by family members - threats, discrimination and harassment – disowned by family – mental health – credibility issues – evidence vague and changing – lack of corroborative evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
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 15 July 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 [an age]-year-old man. He arrived in Australia [in] February 2014 as the holder of a student visa.
On 21 April 2016, he applied for a protection visa.
On 15 July 2020, a delegate of the Minister refused to grant the visa.
Engagement with the Tribunal
On 31 July 2020, the applicant applied for a review of that decision. He provided the Tribunal with a copy of the delegate’s decision. I am satisfied that the decision is reviewable under s 411(1)(c) of the Act.
On 8 March 2023, the Tribunal wrote to the applicant advising that it had considered all of the material before it relating to the applicant 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 28 March 2023 and to provide all documents on which he intended to rely to support his case by 21 March 2023.
On 9 March 2023, the applicant’s then representative Catherine Follett telephoned the Tribunal to advise that the applicant was experiencing some significant mental health concerns that may affect his ability to participate in the hearing. She advised that there had been several suicide attempts. She advised that the applicant had an upcoming appointment with his General Practitioner to develop a mental health treatment plan and obtain a referral to a psychologist. She flagged there may be difficulties in finding an available psychologist.
On 9 March 2023, the Tribunal agreed to postpone the hearing to a later date.
On 28 March 2023, the Tribunal contacted the then…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2012299 (Refugee)

Details

AGLC: 2012299 (Refugee) [2023] AATA 4834
Case: [2023] AATA 4834
Decision Date: 8 December 2023

CaseChat Overview and Summary

The applicant, a Kenyan citizen, sought a protection visa, claiming he feared persecution in Kenya due to his homosexuality. He alleged he had been disowned by his family and community, subjected to threats, discrimination, harassment, and physical violence, including an incident in 2013 where he and his partner were beaten and he was subsequently detained. The case was heard by Katherine Harvey.

The court was required to determine whether the applicant had a well-founded fear of persecution for a refugee nexus reason, or if he was owed complementary protection. Additionally, the court considered whether the applicant was a member of the same family unit as a non-citizen who was a refugee or owed complementary protection.

The court found that the applicant's evidence was vague and inconsistent, lacking corroboration. While acknowledging the applicant's claims of discrimination and fear, the court noted that the applicant's account of the 2013 incident, including the circumstances of his detention and release, contained inconsistencies. The court also considered the applicant's claims regarding his inability to reside in other East African countries. Ultimately, the court concluded that the applicant did not satisfy the criteria for a protection visa, specifically finding no basis to conclude he was a member of the same family unit as a person who met the refugee or complementary protection criteria.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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. Background The applicant’s personal details are set out in his application for protection. He is [age] years old and was born in Narok, Kenya. He provided details of his mother and his ex-partner [Partner 1] in Kenya. He claimed his ethnicity and religion are Christian, that he can read, speak and write English, Swahili and Maasai, and that his occupation is a student. He claimed to have completed qualifications [in] Australia and a Certificate [in one course] and a Diploma in [a second course] in Kenya. He claimed to have worked as [an occupation] in Australia and to have helped with the farming and livestock at his home in Kenya. He claimed that he had been convicted of driving with excess blood alcohol [in] June 2015. Country of reference The applicant claims that he was born in Narok, Kenya and is a citizen of Kenya. In his protection visa application he provided a certified copy of his Kenyan passport that expired [in] 2022. At the hearing, he explained that he had a new passport with an expiry date of [2033] but he was only able to show a soft copy of it on his telephone as he did not have the passport with him. I am 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. Summary of claims The applicant’s claims are set out in the application for protection and his statutory declaration dated 11 January 2017. He claimed that he was exposed to threats, discrimination and harassment at large and disowned by family, friends, the neighbourhood and authorities in general because he is gay. He claimed he and his partner [were] beaten [in] June 2013 by two uncles and people in the village. He claimed that he woke up in the neighbourhood clinic and, when he asked the nurse to let him go, she made a phone call. He claimed his uncle and two policemen arrived and took him to the police station, where he was locked up for three days. His cousin had him released and he stayed with her until he came to Australia. He claimed that he fears mistreatment, verbal harassment and prosecution in Kenya. He claimed that he could not live in other East African Countries as he would fear persecution.Evidence At the hearing, the applicant said that in Kenya he lived with his mother and grandmother and a large family of cousins and aunties. He said his mother now lives in [Village 1], where he was born, and that she is [an occupation] in the village. He said that he lived in [Village 1] all his life. He said that he does not have any brothers or sisters. He said that he had not worked in Kenya, just helped back home and studied. He said he first studied [one course] and received a Certificate, and then he obtained a Diploma in [a second course].

Evidence

Evidence Before The Court

He claimed that he could not live in other East African Countries as he would fear persecution.Evidence At the hearing, the applicant said that in Kenya he lived with his mother and grandmother and a large family of cousins and aunties. He said his mother now lives in [Village 1], where he was born, and that she is [an occupation] in the village. He said that he lived in [Village 1] all his life. He said that he does not have any brothers or sisters. He said that he had not worked in Kenya, just helped back home and studied. He said he first studied [one course] and received a Certificate, and then he obtained a Diploma in [a second course]. He said that in Australia he works as [an occupation]. He said that he is a casual employee and in the last month he had worked 30 hours a week. He said that he did not have a partner. The applicant said that he would feel like his life would be in danger if he returned to Kenya. He said he will not practise his freedom of association and would be on the run if they ended up identifying his situation and that he would end up being accused. When asked why this would happen, the applicant said that relying on what has been happening before, most of the gay and lesbian community have been facing difficulties, being persecuted and facing discrimination. The applicant said the government and the people themselves who are anti-homosexual would cause the problems because the community has not accepted them and because of the country’s laws; it is against the LGBT community. The applicant said that he would not get any help from the police if they recognise his sexuality because they follow their rules and according to the Kenyan Constitution, LGBT is not recognised. When asked what had happened in the past, the applicant said there had been a bit of discrimination that generated fear in him and also the 2013 incident back at home when he was beaten up and taken into custody. He said in 2013, he was at home in [Village 1] living with his grandmother and [Partner 1] had come to visit him. [Partner 1] came to his room, which was outside the main house, and they stayed in his room and because it was a while since they had met – [Partner 1] was in Nairobi and the applicant was in Narok – they were listening to music and catching up. Because of the heat, the doors were usually left open. The applicant said that they were chatting, listening to music and having a good time together and then his uncles came – he said he wasn’t sure if it was the music or what that drew attention to them – and that’s when they came and found out what they were doing. When asked what they were doing, the applicant said just having a good time together. When asked what he meant by that, the applicant said they were caressing and kissing each other. He said it created a big scene. When his uncles called his grandmother, they created a big scene. He said they started shouting and yelling and cursing towards them. A few of them came in. The applicant said that they were roughed up and beaten up and then taken out of there and they were going to be taken to the police but he woke up at the clinic. He said when he woke up, the nurse made a phone call and he was picked up - he said he didn’t see [Partner 1] there - and taken into custody. When asked who the nurse phoned, the applicant said he thought the police because after the phone call the police came.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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.Material before the Tribunal With his application for protection, the applicant provided:·a certified copy of the applicant’s passport, and·a certified copy of the applicant’s birth certificate. His representative at the time, Libby Hogarth, provided:·a written submission detailing the applicant’s claims, refugee law and country information dated 3 April 2017·a statutory declaration from the applicant dated 11 January 2017·a letter from [Agency 1] dated [July] 2016 providing a medical report for [name deleted]·a letter from [Psychologist 2], Psychologist, dated [January] 2017 about the applicant·an article by Daniel Politi, ‘Zimbabwe President Robert Mugabe vows to behead gays’, The Slate (28 July 2013)·an article ‘“No room” for gays in Kenya, says deputy president’, Reuters UK (4 May 2015) The Department file also contains:·an Austrac report on financial transactions involving the applicant dated [April] 2020·social media extracts for [Partner 1], [Uncle 1] and [name deleted], and·the applicant’s IELTS test report form from [January] 2013. On 13 May 2020, in a post-interview email to the Department, the representative provided a statutory declaration from the applicant dated 12 May 2020 in response to possible adverse information discussed at interview. On 7 July 2020, the applicant provided a notification of changes in circumstances form dated 2 July 2020 advising that he had been in a committed relationship with [Mr A], an Australian citizen, since 19 May 2020 and they were living together. On 28 March 2023, the applicant’s then representative Catherine Follett provided a copy of the applicant’s Mental Health Treatment Plan dated 17 March 2023. On 26 May 2023, his representative provided a letter from [Psychologist 1], Clinical Psychologist.