2012299 (Refugee)

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 representative to ascertain progress and she advised the applicant had received a mental health treatment plan and she provided a copy of the plan to the Tribunal.
On 15 May 2023, the Tribunal requested an update and advised that it would like to schedule a hearing for early June unless there was current medical evidence that the applicant would be unable to participate with appropriate accommodations.
On 16 May 2023, the applicant’s then representative advised that the applicant was being treated by his regular psychologist, who would be providing a detailed psychological report. She requested that the hearing not be held for three months to allow the report to be finalised.
On 26 May 2023, the representative provided a copy of a letter dated [May] 2023 from the applicant’s clinical psychologist [Psychologist 1] advising that he could provide a treatment summary report after six months.
On 4 August 2023, the Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 24 August 2023 and to provide all documents on which he intended to rely to support his case by 17 August 2023.
On 17 August 2023, the then representative requested the hearing be postponed as she was finding it difficult to obtain coherent instructions because of the applicant’s significant mental health challenges. She advised that she formed this view after meeting with her client.
On 18 August 2023, the Tribunal agreed to postpone the hearing.
On 23 August 2023, the Tribunal wrote to the representative noting the Tribunal’s aim is to provide a review process that is fair, just, economical, informal and quick and requesting evidence from the clinical psychologist that would assist the Tribunal in assessing whether the applicant is presently capable of attending a hearing, and if not, when he will be capable of doing so. The Tribunal requested that a response be provided by 7 September 2023.
On 6 September 2023, the applicant telephoned the Tribunal and advised that he is no longer represented and is seeking a new representative. He enquired about the document due on 7 September 2023. The Tribunal sent a change of contact details form for him to complete and advised that he could request an extension of time to respond to the Tribunal’s request.
On 6 September 2023, the applicant submitted a change of contact details form and requested an extension as he had appointed a new representative.
On 7 September 2023, the Tribunal granted a two-week extension to 21 September 2023.
On 18 September 2023, the applicant requested a copy of his file. The Tribunal provided him with an FOI request form to complete.
On 19 September 2023, the applicant submitted a completed FOI form.
On 20 September 2023, the Tribunal released the applicant’s file in full.
On 22 September 2023, the Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 25 October 2023 and to provide all documents on which he intended to rely to support his case by 18 October 2023.
On 4 October 2023, the applicant’s new representative provided a hearing response and a completed appointment of representative form.
On 18 October 2023, the representative provided prehearing submissions, detailed at [44].
The applicant appeared before the Tribunal on 25 October 2023 to give evidence and present arguments. He was supported by a [friend]. At the hearing he confirmed that there were no medical or accessibility issues that would prevent him participating fully in the hearing. I am satisfied that the applicant was given a fair opportunity for evidence to be given and arguments presented on his behalf.
The applicant was represented in relation to the review and his representative attended the hearing by MS Teams video.
At the end of the hearing, the applicant was given two weeks until 8 November 2023 to provide any further evidence on which he wished to rely. No evidence was provided.
On 6 November 2023, the representative emailed the Tribunal and confirmed that the applicant had no more information to provide to the Tribunal.
For the following reasons, I have concluded that the decision under review should be affirmed.
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.
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.
In the pre-hearing submission on 5 October 2023, the applicant’s current representative provided:
·a ‘Submission to the Committee against torture concerning Kenya’s third periodic report’ from Redress dated 18 March 2022
·National Gay & Lesbian Human Rights Commission and Amnesty International ‘Kenya: “Justice like any other person”’, Amnesty International (London, 2023)
·UK Home Office, ‘Country policy and information note – Kenya: Sexual orientation and gender identity and expression’, Version 3.0 (April 2020)
·Astraea Lesbian Foundation for Justice, ‘Kenya: LGBTI landscape analysis of political, economic & social conditions’, Astraea Lesbian Foundation for Justice (New York, 2015)
·Galck+, ‘The impact of outdated laws on sexual orientation and gender identity in Kenya today’ (Submission to OHCHR, 4 August 2023)
·Human Rights Watch ‘The issue is violence: attacks on LGBT people on Kenya’s coast’ (September 2015)
·Nicholas Wasongo Orago, Siri Gloppen & Matthew Gichohi, ‘Queer lawfare in Kenya: shifting opportunities for rights realisation’ book chapter in Adrian Jjuuko, Siri Gloppen, Alan Msosa and Frans Viljoen, Queer lawfare in Africa: Legal strategies in contexts of LGBTIQ+ criminalisation and politicisation (Pretoria University Law Press 2022).
·UNDP & KNCHR ‘Inclusive governance initiative: Kenya baseline report’ (2022).
No other information was provided and the representative did not detail how the provided materials related to the applicant’s claims.
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.
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].
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.
The applicant was asked what happened after they were listening to music and having a good time and caressing and kissing each other. He said that is when his uncle came, he thinks because the loud music drew their attention. When asked which uncles came, the applicant said he thought it was just [Uncle 2]. When asked what happened, the applicant said when he came, he started shouting and that drew the attention of his grandmother, and when they came there was shouting and some few neighbours came in too. I clarified that his uncle came in and started shouting and then his grandmother came in and started shouting. He said they confronted them in a high tone. When asked what happened then, the applicant said some neighbours came and they were wrapped up and dragged and beaten up. When asked who dragged him, the applicant said it was his uncle who dragged him and after that he couldn’t ‘sustain’ who was doing it, but he said that everyone was doing it. He said they were dragged outside the house into the compound area. He explained that beating up meant punching and kicking. When asked if his grandmother was doing it, the applicant said that his grandmother was there but he could not be certain that she was doing it. He said that he can’t really pick who did it. When asked what was happening to [Partner 1] while he was being beaten up, the applicant said that [Partner 1] was there and he was beaten up too.

The applicant was asked what happened after they were beaten up. He said that he and [Partner 1] were picked up, he thought by the police, and he woke up at the clinic. The applicant said that’s when the nurse made the call. When asked if the police came and took him and [Partner 1], the applicant clarified that [Partner 1] was not there at the clinic. The applicant said when he was picked up at the clinic, he did not see [Partner 1].
The applicant was asked how the police had picked him and [Partner 1] up at the compound. He said they picked them up in their van. He said there were three police officers. He said he and [Partner 1] and two police officers were in the back of the van. When asked where they took him, the applicant said that he was unconscious and woke up in the clinic and he can’t tell what happened in between being picked up and waking at the clinic. When asked what time of day he woke up, the applicant said that he couldn’t say exactly – afternoon or in the evening.
He said that after the nurse made the phone call, two police officers and a driver (who was also a police officer) came. He said they took him in a police van to the police [station]. When asked what happened at the police station, the applicant said nothing much. He said he was put inside the cells and they asked him a few questions like what was he doing and what happened that he end up being homosexual?
The applicant said that he was held over the weekend, so he was there for three days. He said he was arrested on either a Friday or a Saturday and held for two nights and on the third day he came out. He said his auntie [Aunt 1] helped him out and he does not know how she did it. He said he was not certain how she helped him out. He said the police did not charge him. After he got out, he went to his aunt’s place in Nakuru, two-and-a-half hours drive from Nairobi. When asked what he did at his aunt’s place, the applicant said they just had a discussion about what happened and that his aunt was a bit lenient towards him. He said he stayed there for a while. His aunt was trying to communicate with his grandmother and uncles to find out if there was a way to help him out and sort it out, but she was not successful making peace between him and them. When asked what his mother was doing about it, the applicant said that she was not in the picture at that time and that he has not had a very good relationship with her.
The applicant said he and his aunt started thinking about how he could be safe. He said he started applying for jobs and that he couldn’t stay long in Nakuru so he would go to Nairobi so that the family didn’t know exactly where he was. The applicant said he started applying for jobs. He said that his aunt came up with the idea of him going to the US but that was not successful as he did not meet the requirement. He said that’s when they started looking at coming to Australia.
When asked why he thought the police had not charged him when he was in custody, the applicant said he thought because according to what he used to hear through the news, that they couldn’t accuse you of homosexuality to protect the country’s image, so they would look at other charges to put on you and he suggested that maybe his aunt was able to communicate with them and maybe bribe them but he was not sure.
When asked if he had asked his aunt what she did to get him out, the applicant replied that at that time he didn’t even ask and she was more concerned with his wellbeing and she didn’t exactly tell him what happened. He said that she is just the one who came through to assist him. When asked why he had not asked her in the last 10 years, the applicant said that they don’t communicate anymore. He said that when he came over (to Australia) they had a one-on-one agreement that once he came he would settle all his payments because he thought he would have made that money in a short period of time, but that is not what happened. When asked what money he was talking about, the applicant explained that his aunt paid school fees for him when he first came of close to AUD10,000. He said they never spoke about the exact amount but they had had a conversation that he had to make sure he paid her back. He said that, based on his knowledge of the school fees he later paid, it was around there (AUD10,000). When asked why he had not paid her back, the applicant said that he had lots of other expenses and being a student he could only work 40 hours a fortnight. He said he had to pay bills and rent and have money for the next semester and he didn’t think she understood. When asked if he had paid any money back, the applicant shook his head. When asked why not, he spoke about the amount of money for his school fees and his upkeep.
When asked what happened between June 2013 and February 2014, when the applicant came to Australia, he said that he was working on coming to Australia and moving from one place to another, that he did not have a permanent place to live. The applicant had previously said he was living with his aunt. When this was put to him, he said that was not like his permanent place. When asked why it wasn’t his permanent place, he said in Africa your aunt’s place is not your permanent place, he said she’s just like a host for you. He said he refers to his mum’s place as his home and his aunt’s place is just his aunt’s place.
The applicant was asked if he was living at his aunt’s place between June 2013 and February 2014. He said yes. He said he went to Nairobi on weekends and when he was progressing his application. When asked if anything happened to him during that time, the applicant said not really because he was not outgoing that much. When asked if he was safe and whether anyone threatened him, he said personally he was not settled. He said that the freedom of going out to meet people was not there. He said that if he wanted to leave his aunt’s house, it was for specific reasons and mostly he didn’t go out. When asked why he didn’t have the freedom to go out in Nairobi, the applicant said that he still had the fear in him, the fear of what had happened before. He said there was a lot of anti-homosexuality and there was that fear of him going out and also in terms of finances he was not stable at all.
The applicant said that he met [Partner 1] in college in 2009 when he was doing [the first course]. When asked when they progressed from being friends, the applicant said in early 2010. When asked what happened in early 2010, the applicant said they used to live in the same hostel. He said as they were living in a hostel they were just picking up on some jokes they used to make. He said they got in touch and used to be buddies hanging out together and they were doing the same course. He said by 2010 they were really close, they were partners together. He said it was between him and [Partner 1]. He said he doesn’t know if anyone else suspected because they had a history of friendship.
When asked how their relationship developed, the applicant said it developed positively. He couldn’t remember when but the same year, 2010, they rented a house and moved out of the hostel. He said they lived together for approximately two years while studying and after [Partner 1] finished studying the applicant was still studying and they were together while [Partner 1] was mostly looking for a job. The applicant said that his grandmother was providing the finances and it was a bit cheaper than the hostel and [Partner 1] got some support from his family too before he finished school. He said they stopped living together after he finished his diploma in around 2012. He said he thought [Partner 1] moved to his sister’s house. He said after that they used to communicate but there was a bit of difficulty because he had no reason to get really good money from his grandmother because he wasn’t studying and the only time he used to get money was when he applied for jobs. He said after 2012 they did not see each other frequently.
The applicant said that [Partner 1] came to visit him twice in 2013. When asked what happened after June 2013, he said that he spoke with [Partner 1] about it. He said [Partner 1] was already looking for a job and stuff. The applicant told him that his plan was to go to either the US or Australia. He said that [Partner 1]’s plan was to get a job and [Partner 1] was still safe because he didn’t think [Partner 1]’s family knew about it.
When asked how many times they spoke on the phone the applicant said it was hard to tell. When asked if they spoke ‘lots’ before he left, the applicant said ‘not like lots, not every day, maybe twice’. He said that he spoke to him when he was successful in coming to Australia. Then he said maybe he spoke three times or four.
When asked if he saw [Partner 1], the applicant shook his head. When asked why not, the applicant said he was more concerned about himself at that time and he was really training all his energy on coming to Australia. After resuming after a brief break, the applicant said that he and [Partner 1] had two main discussions, about the incident and before he came, plus one or two others.
When asked what was happening with his family in Kenya, the applicant said that his grandmother had died [in] April 2018 and his mother had moved from where she was living to his grandmother’s compound. He said after that things became a bit hard for him because at the time he was still going through a lot in Australia and he wished so much that his grandmother could have lived to see that he had succeeded in Australia. He said that he has started building rapport with his mum and he is still trying to build a relationship but it is currently superficial because they don’t have lots of stories to share. He said that his concentration has been more on himself in Australia. He said that his psychologist [Psychologist 2] said he could not fix everything at once and he should concentrate on being here and his health and education. He said he was carrying so many things in his mind at the same time. He said [Psychologist 1] told him to go step by step.
When asked when he became aware of his sexuality, the applicant said when he was maybe [age range] and that he could not say exactly. When asked how he became aware, he responded that it was like how he was relating to the opposite sex and also some small things he was doing. When asked if he could explain, the applicant said like the love he had towards things like accompanying ladies to do their hair. He said he never used to talk with teenagers about girls, that he was not interested in those conversations. He said also that he was living a close life and being more into the house.
The applicant said that according to ‘the African thing’, you have to show you are a man and he does not have that in him. When asked what he meant, the applicant said like being the head of the family, things like you can’t go into the kitchen. He said those are things he used to do a lot, cleaning up and cooking. He said in his community, men were mostly meant to be outside and looking after cattle and doing farm work and doing some business.
When asked what else made him aware of his sexuality, the applicant said that he is soft and delicate. When asked if it was people telling him that or him feeling that, the applicant said being soft was other people. He said it was a joke at school, people saying ‘oh man, you are so soft’. When asked if that made him feel gay, he responded that he was asking if they were trying to get to know him. When asked what that made him think, the applicant said when they were young, it was a ‘dissing’ word to say that you’re a girl so he was trying to prove that he’s not and it was not coming out.
When asked what he did to try and prove that he was not soft, the applicant said he was standing up for himself. He said mostly at that age when someone tells you that you are soft and they are dissing you and calling you a girl, they want you to fight back. He said he tried to stand up for himself. When asked what happened, the applicant said sometimes he got hurt. In high school he became a social guy but did not involve himself in many activities. He said that he never went to football or races or did things that needed a lot of his energy. He said that he was into drama.
When asked why he realised he was gay at [age range], the applicant said the way he was presenting himself and the kind of things he was doing that were a female’s responsibility, like going to the kitchen, doing the cooking. He said this was bringing a lot of emotions towards him. When asked whose emotions, the applicant said his.
When asked if there was anything else that made him think he was gay, the applicant said mostly just the kind of lifestyle because at that time he was not an outgoing person. He said he was mostly with his cousins who are ladies. He said that he would wear their clothes, just in the compound at home, not outside. He said they were just playing up and having fun. When asked when he wore his female cousins’ clothes, the applicant said on holy days. He said they were just playing and having fun and imitating people. When asked what age he was the applicant said he couldn’t say what age he was, it was in the school breaks when he was at high school. When asked if he still dresses up in ladies clothing the applicant said no.
When asked how he expressed his attraction to men, the applicant said it was hard because he is a shy person. He said in Australia he expresses himself when he goes out and has a drink and speaks to someone and engages them. When asked about in Kenya, the applicant said that he did not involve himself a lot because there is so much limitation. He said that he was under the care of his grandmother and that bringing up in Kenya is not like in Australia. Here he could get a job and have his own money whereas back home he was dependent on his grandmother.
The applicant said that his first relationship was with [Partner 1] in 2010. When asked about his first romantic encounter, he said it was still with [Partner 1]. When asked about people with whom he was romantic in Australia he said he’d had several but not an intense relationship here. When asked how many relationships ‘several’ was, the applicant said he had had two, with [Mr A] and [Mr B]. He said that [Mr B] was the first before COVID, but it didn’t go for long, maybe a month, and that [Mr A] was after COVID at the end of 2020, around August or September. He said that relationship lasted until March 2021. I note that the applicant referred to [Mr A] as ‘[given name]’ and ‘[another name]’ interchangeably throughout the hearing and I accept that he is referring to the same person.
When asked what happened, the applicant said that he didn’t know much about [Mr B] and with [Mr A], he became a bit of a burden to him. The applicant said that he was working. When asked how they talked about it, the applicant said they used to talk a lot about it but [Mr A] became an alcoholic and he took advantage of the applicant because the applicant was vulnerable. He said that [Mr A] said you know I’m a citizen and nothing is going to happen to me and that [Mr A] would drag him into drinking. The applicant said that he was the one who quit the relationship. He said after that [Mr A] would call him and they still communicate but on the level of ‘how are you doing’ and ‘what’s your plan for today?’ He said he will even visit [Mr A] and sometimes [Mr A] sends him out to buy stuff for him. When asked where [Mr A] lived, the applicant said he didn’t know the actual address but it was in [suburb]. He said that [Mr A] used to live at [address].
When asked what had happened to him romantically since March 2021, the applicant said that a lot has been going on. He said in terms of romantic, he had been sensitive with it because it blocked him and he doesn’t go out to clubs and stuff. He said he has become cautious about himself. The applicant said he had a discussion with the psychologist [Psychologist 1] who suggested it was good for him to solve one thing at a time. He said he’s been more into focusing on his wellbeing now.
When asked how he engaged in the gay scene in Adelaide, the applicant said he was going into [social media]. He said he had some time in [social media]. He said he did not feel secure about the conversation that is coming because its more about intimacy. He said before that he used to go out. The applicant could not remember the name of the street and said it was in the city near [named] Street. He said it was an LGBT place and he used to meet there every week, and he had somebody he used to see [at] [Organisation 1] who used to connect him to activities they used to host once a month, like [at a location]; his name was [Mr C].
The applicant said that after all the things that were happening with [Mr B] and [Mr A] he met [Mr C] who worked at [Organisation 1]. He called [Organisation 1] and told them he wanted to speak to a counsellor and the lady asked if he wanted to speak to somebody who was part of LGBT and he said yeah. The applicant said that is when he engaged with [Mr C]. He said he didn’t know if [Mr C] was still there but he still receives the emails about the activities. He then clarified that [Mr C] is not at [Organisation 1] anymore. He said that the last time he spoke to him [Mr C] said he was transferring to a new field. He said that the last time they spoke was in 2021 and that they communicated mostly by emails.
When asked if he contacted [Organisation 1] after he broke up with [Mr A], the applicant said that at the time he was feeling that it was not working well. He said that if he worked for a fortnight and had money, [Mr A] would join him and there would be four days drinking and there was his exam and his visa. [Mr A] was not being helpful, so he reached out to [Organisation 1]. He said at that time [Mr A] was in the picture but it was at the end of when they were together.
When asked what activities he participated in with [Mr C], the applicant said that it took a while because [Mr C] noticed that he was not that open. [Mr C] did suggest some events but the applicant would not turn up to them. He would let [Mr C] know he was not coming. And for some events when they were happening he was working. He said that he participated in two or three events, at [location] and to a hall around [another location], where it was a snack and interaction thing. He said there was an event in [suburb] but he didn’t go. He said that [Mr C] was checking on him and still making appointments to see him because he was still getting close to him.
The applicant said that he also used to go to a place in between [named] Streets where there was an organisation called ‘sexual something’ that had offices and a hall above. It is where he tested his HIV status.
When asked if that was the extent of his social activities in Adelaide, the applicant said yes, that’s most of his social activities in Adelaide because at the time he was working. When I pointed out that he works 30 hours a week, the applicant said 30 hours as a minimum and it depends on his availability because he is a casual. He said that he is on call and does not have exact hours or specific shifts. He might be rostered for three shifts this week and the other four days are on call, in case someone calls in sick or they need extra staff. When it was pointed out that this did not mean the applicant had to be sitting at home waiting, he said he needed to be available. He said he prefers to be at home or somewhere when he can get his stuff and go.
He said he participates in a few social activities, like seeing friends and he has recently done a few movies. He said they go for drives and go out to a club, currently he goes to the Woolshed. The applicant said that he doesn’t have a specific day that he goes, if he’s available on Friday or Saturday nights. He said if he has enough hours, he takes a day off.

When asked if he went to any gay nightclubs, the applicant said that he used to go to a club but it is closed. He said they used to have shows. He couldn’t remember where it was and said he wasn’t good with streets and he would go at night. He said that it was off [a certain location]. He said they used to have activities like dancing and ‘fashion’ and it was a famous club because it had downstairs and upstairs. When asked what he meant by ‘fashion’, the applicant said showing off how they dress. He said they would have the dancing part and there was lap dancing later on as the night goes by and that upstairs was a small club with a DJ and music. He said there was a bit of stand-up comedy. The applicant remembered the club was called Mars.
When asked if he had hook ups with people, the applicant said he did a few. He said ‘we met, had a cup of tea, yeah but when I leave I just cut them off’. He said that recently there is one messaging him on his phone, he said they had a chat and at the end the conversation went in a different direction and he blocked him off.
When asked how people treated him in Kenya, the applicant said he would not say he had a really good connection with other people. He said his life was really enclosed, if he got out of the house he was heading to the market and back. He said he didn’t have a specific friend in his childhood and during his teenage time. He said he was more into indoors.
When asked if he had specific friends in Adelaide, the applicant said there are many. He indicated his support person was one of them. He said he has friends from work, friends he’s met in clubs and friends through [Mr A] and [Mr B]. He said some are still there, and some he speaks to once in a while or meet up with accidentally. He said he also has friends he met online. When asked how he became friends with people he met online, the applicant said he’s met some and others by chatting online. When asked if he was out with his friends, the applicant repeated the question and said sometimes yeah. When I clarified and asked if his friends knew he was gay, the applicant said that some of them know but he doesn’t think all of them and a few of them they had a discussion. Some he is not sure if they know or not. When asked if his work colleagues know, he said three of them that he is sure of because he has shared his story.
I asked the applicant how the eight pieces of country information his representative had provided related to his claims. He explained that having come from the LGBT community and the kind of discrimination and harassment they are receiving at home puts him in a risk. I asked if he was involved in any LGBT organisations in Kenya and the applicant said no, he was just reading about them because he didn’t come out.
When asked about the letter from psychologist [Psychologist 2], the applicant said he can’t remember the letter but he remembers the counselling sessions and that he was trying to open up about himself. He said the things he was opening up about were not linked to his sexuality. He was looking for his father at the time and there were emails from his dad that he sent to the Department. I clarified that these emails are not on the Department’s file and that they were not referred to in the decision record and that the evidence before the Tribunal was that the applicant did not know who his father was. The applicant explained that his mother said the man was his father but the man said he was not. When asked how this related to his claims for protection, the applicant said that it was about him opening up to the psychologist and the psychologist trying to find out his family structure.
When asked about the mental health plan dated 17 March 2023 that his previous representative had provided to the Tribunal, the applicant said that he had a chat with Catherine (his former representative) and she found that when she was telling him things he was forgetting. She said it is good if you can get someone to help manage yourself. That’s when he went to the GP and got a referral. When asked if he told Catherine that he was suicidal, the applicant said yes. He said it was in 2022. When asked if he told the GP that, he nodded. When asked when he told the GP he said that he couldn’t remember exactly but after he had spoken with Catherine. When asked if that was when he went to talk through the mental health plan, the applicant said yes. When asked what he told his GP, the applicant said that it feels like things are not working for him and he doesn’t want to be around anymore. He said that he had the thoughts of not existing anymore because things are not working out even though every day he tries to do his best. When asked what the GP advised, the applicant said that she first of all checked who he is living with and whether he was getting support from family members. She asked if he was still feeling the same thing at the moment and asked about his work relationships and whether he was using any drugs or alcohol and then gave him a number. The applicant said that the GP assessed him and got him a number in case of anything and said that he needed to see a psychologist. He claimed she said he had depression and anxiety and prescribed some medication – he could not remember the name – but when he went to buy it, it cost over $100 and he didn’t take it. He said that he knew it was medication about depression and that it was in 2022, and then he corrected himself and said early this year (2023). The applicant said that he had a prescription way back but cut it short after a few days and the doctor told him he was meant to complete the full cycle, and this year he had a prescription but didn’t use it.
I clarified that we were talking about the mental health plan from 17 March 2023. The applicant explained the mental health treatment plan he gave to the Tribunal was his second one and he later got a third one. I checked that the applicant told the GP he was feeling suicidal and he said that’s when he spoke to her. I checked whether he told her he was currently feeling suicidal or was talking about in the past and he said, ‘I said that I didn’t feel like I want to exist’. He said the GP asked him to clarify and asked if he had taken any action. He told her he had not taken action but had the thoughts. He said that’s when she asked who he was living with and about his work and who he communicates to when he’s not working. In the medical health treatment plan dated 17 March 2023 that the applicant provided to the Tribunal the GP records current medications as ‘nil’ and current risk assessment as ‘NIL currently’.

100. I said that on the mental health treatment plan it said his contact was his uncle [Uncle 3] and asked who that was. The applicant said that [Uncle 3] is his uncle, his mother’s brother, who lives in [location]. When asked why his uncle was not at the hearing supporting his application, the applicant said that he finds it difficult to discuss with him. I asked him what he found difficult to discuss and the applicant said he has family still around here and he has never discussed it with them. He said he tried once when his application was refused and his uncle told the applicant not to tell him more about it.
101. The applicant said that when he had suicidal thoughts he called his cousin and brought it up with him. He said he was really disengaging himself from the ones (family) here. He said he didn’t attend things like Christmas. He said when he had those suicidal thoughts, he spoke to his cousin and his cousin spoke to his uncle and they had a meeting at [a] Hotel. He said his cousin managed to take him there and they had a discussion. He said all they told him was that they wished him luck but that he should not think of anything like taking his life because he would affect so many people. They suggested that he live with his uncle [Uncle 1] in [suburb]. After the meeting, the applicant went to live with him.
102. When asked why the applicant did not have any family members at the hearing supporting his application, he said when the other representative asked if they would write something, he never thought they would refuse. When he spoke about it, they did not want to involve themselves because since he came they had never spoken about it and they said because he is here, he can fight it. The applicant said that [Uncle 1] is not an Australian citizen but [Uncle 3] is.
103. When asked why [Uncle 1] was not at the hearing, the applicant said that his grandfather had two wives and, coming from a polygamy family created some issues. He said that his mother came from the first wife and [Uncle 1] came from the favourite and there was a conflict of interest. He said that [Uncle 1] had not accepted him completely and even now there are some small things in the house. He will say that he is going to help the applicant out but does not put things into action. I explained to the applicant that it is difficult to believe that his uncle with whom he lives in Adelaide is not prepared to support the applicant at his protection visa hearing.
104. I advised the applicant that the Tribunal did not have a copy of a mental health treatment plan subsequent to the 17 March 2023 plan and that if he wanted the Tribunal to consider it he needed to provide a copy. The applicant said OK. The applicant did not submit any evidence after the hearing and his representative advised on 6 November 2023 that the applicant had no more information to provide.
105. Regarding the letter dated [May] 2023 from clinical psychologist [Psychologist 1], the applicant said he had sessions with him that were going well, where they were solving one thing at a time like getting a job, step by step. The applicant said that he was seeing him fortnightly and in between his moods came up and sometimes he doesn’t want to talk to anyone and he would communicate with him later on. The applicant said that he missed two sessions and the psychologist wasn’t happy but they sorted it out. They continued until the sessions ended and the applicant needed a new mental health treatment plan. He said when he got one, he couldn’t get a spot with [Psychologist 1]. He said the GP gave him other places to call and advised him to find somewhere with a shorter waiting list. The applicant has not seen a psychologist since [Psychologist 1] as he could not get a bulk billed spot.
106. I asked the applicant how he is managing his mental health. He said by trying as much as possible to work and be positive and avoid alcohol. When asked how that was going, the applicant said that ‘it helps a bit but now the problem is it gives him too much thinking’. He said after the talk with his family, at least he can call his uncle now and talk. He said his uncle has told him that he’s not open to discussion, when he asks the applicant how he is, the applicant tells him that he’s really good and he’s just going to work.
107. I reminded the applicant that he had notified the Department on 2 July 2020 that he had been in a committed relationship with [Mr A] since 19 May 2020 and that they were living together at [address]. When asked why he had not notified the department when they broke up the applicant said, to be honest, he had so much going on and he was not sure if he changed his address that it was his obligation to notify. He said that he was relying on his representative Catherine and any communication is through her. He said that he was going through a lot. He said that he did not notify Catherine of his breakup. When asked why not, he said he just kept quiet about it. When asked why [Mr A] was not at the hearing supporting his claims, the applicant said that they are not together. When I pointed out that did not stop [Mr A] coming and saying that they had had a relationship, the applicant said OK and that he did not update him about coming to the hearing. He said that after they broke up he hadn’t spoken about the immigration process with him. He claimed that before that, Catherine had given him a statutory declaration and [Mr A] was happy to sign it but the applicant had not given it to him.
108. The applicant confirmed he had read the decision from the delegate and said he ‘kind of’ understood it. As discussed with the applicant, in the decision the delegate very clearly said that he did not believe the applicant’s claims. The applicant said yeah I know. Further, that he had not provided any supporting material to support his claims that he is gay. I read the applicant a quote from the decision record, a copy of which he provided to the Tribunal:
Similarly, I found the applicant’s account of living as a homosexual in Australia to be lacking in detail, particularly given the fact he has now resided in Australia for over four years. I note that the applicant has not provided any letters of support from anyone within the gay community in Australia, including his claimed Australian citizen partner.

I explained that three years later that there was still no supporting evidence from anyone in the gay community in Australia or his former partner. The applicant said that his previous representative sent him documents to take to [Mr A] and he had told [Mr A] he would take it to him and [Mr A] said it was fine. He said that Catherine had told him she had tried to get in touch with [Mr C] but was unsuccessful.
109. I explained that it was the applicant’s responsibility to establish his claims and that he had had three representatives and I thought they all would have told him that he had to establish his claims and satisfy the Tribunal. I explained that there was no supporting evidence before the Tribunal from external sources.
110. I asked the applicant why he did not provide any witnesses to support his claims to be gay. He said that he did not reach out to ask them to be his witnesses. When asked why not, he said he felt like he was not settled. He said with [Mr A] it was his mistake for not giving him the form. I asked again why he did not have people talking to the Tribunal who could be questioned and the applicant said he did not think that was important. When asked why not, the applicant said he thought maybe that submitting what he had, what he knows, was enough.
111. I asked the applicant what he thought he had submitted that was so compelling, and I explained that the country information that had been submitted was very general and not specifically about him. I reminded him that he’d seen what the delegate said, which was that there was not enough information or evidence, and that he had not provided anything that went further than what he told the delegate. The applicant said he thought his stability was just running over.
112. I reminded the applicant that when he had been invited to a hearing in March, his representative said that he needed more time and he had been given more time. Then that [Psychologist 1] was writing a report, and he was given more time. And then the Tribunal asked that [Psychologist 1] answer six questions about the applicant’s ability to give evidence and instruction, and the applicant contacted the Tribunal and said Catherine was no longer his representative and he requested an extension of time, which he was given.
113. The applicant was asked if he remembered writing to the Tribunal that he was no longer represented by Catherine. He said he wrote to Catherine requesting her to send all the documents and he wrote to the department requesting all the documents. He said he tried to reach [Psychologist 1] and [Psychologist 1] wrote back to Catherine and the applicant that he cannot bulk bill and there is a line but he would be happy to make a report and charge $1500.
114. I reminded the applicant that he had telephoned the Tribunal and advised that he was no longer represented by Catherine and in that same phone call he had asked about a letter that the Tribunal had send, a response to which was due the next day. The Tribunal advised that he needed to send an email, which he did, and he asked for a two-week extension. He said he remembered. He also phoned and requested his file and was advised to complete an FOI form and send it back, which he did the next day. I explained that whenever he had interacted with the Tribunal he had been very responsive and clearly understood what needed to happen. I explained that when the Tribunal had engaged with him, it found him to be responsive. I explained that he had first been invited to a hearing in March and now in October we were having the hearing, and there was no more information before the Tribunal from third parties to support his claims. The applicant said yeah.
115. I asked if the applicant if he could explain why he had not provided any supporting evidence. He provided a rambling response including that he thought the representative would know whatever information he wanted to present and that his on and off moods affected it. I explained that over this time he had able to go to work and hold down a job and have responsibilities. He agreed. I said that he had certainly had time for [Mr A] to complete a statutory declaration.
116. At the hearing, we discussed the applicant’s claim that his family had disowned him after the alleged incident and yet, as recorded in the decision record, a copy of which he provided to the Tribunal, the applicant sent money to his [grandmother]. The applicant said that when he came here, after a while he sent her money and that was just a way of like ‘I’m here’, he said as much as things went bad he wanted to bring things together. He said that she never called to say thank you. I put to the applicant that he had also sent money to his mother, to an uncle [Uncle 3] and to ‘Aunt [name]’. I explained that in his application, the applicant claimed that his family had disowned him and yet he had sent money to his grandmother, mother and uncle in Kenya and he was living with his uncle in Adelaide, which made it difficult to believe that his family had disowned him. The applicant said that he was trying to bring them back towards him by sending money and that he had never had that discussion with the uncles who were already in Australia. He said his uncle said that he doesn’t want to know much about it and doesn’t want to talk about it.
117. As discussed with the applicant, if the applicant had been found with his boyfriend and beaten and disowned by his family in Kenya then I believed that his uncles in Australia would have heard about it. The applicant said ‘yep, yep, they did’. I asked the applicant what he meant when he said his uncles don’t know much about it. He said they don’t want to talk now about it. I ensured that the applicant understood that it was very difficult to accept his claim that his family had disowned him. He said he understood.
118. As discussed with the applicant, the decision record records that he did his IELTS test in January 2013 and he got his passport in [2012]. I explained that suggested that he had plans to leave Kenya before the claimed incident in June 2013. The applicant said he had finished studying and was looking for jobs in [Industry 1] that could be in or outside Kenya. When asked if these [Industry 1] jobs required an IELTS test, the applicant said that was in case they secured a job outside the country, that some countries required IELTS and he did it to be on the safe side.
119. I asked if the applicant was still in touch with [Partner 1]. He said he was. He said that when he spoke to him, [Partner 1] told him he is struggling to get out of the country. He said [Partner 1] has a family, a wife and daughter, and that [Partner 1] told him he is looking to leave for a better life.
120. As explained at the hearing, in the decision record the delegate was concerned regarding the applicant’s claims about when he spoke to [Partner 1] after the claimed incident [in] June 2013. The decision record shows in his written claims and at the beginning of the interview, the applicant claimed that he did not speak with [Partner 1] before leaving Kenya, and then later in the interview, he said he spoke with him approximately three weeks after the incident and then numerous times before finally seeing him before he left Kenya. At the Tribunal hearing, the applicant said he spoke with [Partner 1] two times significantly and maybe one or two times otherwise, but he did not see him before he left Kenya. The applicant was asked if he could explain why the information was changing and inconsistent. He said he might have misunderstood the delegate’s questions. He said it was a telephone interview. When asked what he could misunderstand when asked ‘did you see him?’ and you replied ‘yes’, the applicant said he didn’t see him.

121. I explained that the first psychologist, who reported on what the applicant told him, stated that the applicant did not hear from [Partner 1] until he was about to leave the country and that the issue was the information was inconsistent with the applicant’s evidence. I asked the applicant if he had a reason why the information was inconsistent and changing over time. He thought he was just mixed up. I asked if he was mixed up about whether he saw [Partner 1] or not and spoke to him or not, and he said that he didn’t see him. When asked why he didn’t see him, he said that at the time he was not financially stable. He said mostly when he was going to Nairobi it was about the application. I asked again why he didn’t see him when he was going to Nairobi. The applicant said mostly when he was going to Nairobi he was doing the application for his visa and he did not contact him. He thought [Partner 1] was doing his own thing. He said that he never called him for a catch-up meeting. When asked why not, the applicant said that at that time he was just focusing on his own and he was just selfish. I put to the applicant that this was someone he said he lived with and had a relationship with and he didn’t even try and see him. I explained that Nairobi’s population at the time was 3.627 million[1] and it wouldn’t have been like anyone would have seen them seeing each other. The applicant said he was just concentrating on himself at that time because he had got an opportunity.
[1] Macrotrends, ‘Nairobi, Kenya Metro Area Population 1950–2023 (Website) As explained at the hearing, I was concerned that in his written application he claimed that he was knocked unconscious when he was beaten (at the family compound), but at the hearing, he said that the police came and picked him up from the compound and put him in the back of the van and then he became unconscious. The applicant said it was just a mix up of locations. I explained that I believed the beating would have been a significant incident in his life and it was difficult to believe that he did not know if he was conscious or not when the police picked him up. I reminded the applicant he had earlier claimed that three policemen came to pick him up and that he, [Partner 1] and two policemen were in the back of the van and that when he woke up he was in the medical centre. I pointed out that in his application he said he was knocked unconscious and woke up in the medical centre, not that the police had taken him there. The applicant said he mixed up the locations.
123. As discussed at the hearing, the applicant arrived in Australia in February 2014 and applied for a protection visa in April 2016 and this delay in applying would suggest that he was not fleeing persecution in Kenya. The applicant said the delay was because he was not aware of the protection visa. He said his knowledge was for him to study, get work and then apply for his residency.
124. I explained to the applicant that it was his responsibility to establish his case and that the Tribunal was not required to accept uncritically any and all the allegations made by him. I asked if there was anything that we hadn’t covered that he thought was important. He shook his head.
125. As discussed at the hearing, the applicant has tertiary qualifications in Kenya and Australia and he has work experience in Australia, where he has worked about 30 hours a week. I discussed with the applicant that I thought that if he returned to Kenya now or in the foreseeable future that he could live with his mother and that with his education and work experience he could find work to subsist. The applicant he said that he did not think he would find work to survive and that his work experience in Australia was not applicable back home. He said with who he is, he would not be able to practice it. He said his family know that, because he is here, he is going to help them in a way but once he goes there he thinks that they will still bring the incident that happened up again.
126. I explained that because of the inconsistencies of what he had told me about the incident, that I doubted that it happened. From the information that the delegate had in the decision record about his concerns about inconsistencies and again my concerns about inconsistencies in what the applicant had told me at the hearing, I did not accept that his family has disowned him, and I did not accept that he was beaten on 8 June 2013. I explained that he had not described his life in a way that fills out his claims.
127. I asked if there was any reason that he feared to return. The applicant said what he’d said about his life and living a life that is not his.
128. At the end of the hearing, the representative advised that there was nothing else he thought the Tribunal should discuss with his client and that he personally did not have anything to add.
129. I asked if the applicant wished to submit more information to the Tribunal. The applicant asked if he could speak with his representative. I gave the applicant a fortnight to provide further information and advised that he could request additional time if necessary. The applicant did not submit any other evidence in post-hearing submissions and his representative confirmed that the applicant had no more information to provide to the Tribunal.
Mental health
130. Before the hearing, the applicant’s former representative Catherine Follett made a number of claims about the applicant’s mental health including:
·in March 2023 that:
o the applicant was experiencing some significant mental health concerns that may affect his ability to participate in the hearing
o there had been several suicide attempts, and
o the applicant had an upcoming appointment with his General Practitioner to develop a Mental Health Treatment Plan and obtain a referral for a psychologist
·in May 2023 that the applicant was being treated by his regular psychologist, who would be providing a detailed psychological report
·in August 2023 that she was finding it difficult to obtain coherent instructions because of the applicant’s significant mental health challenges and that she formed this view after meeting with him.

131. On 23 August 2023, the Tribunal wrote to the then representative seeking evidence from the applicant’s clinical psychologist by 7 September 2023 that would assist the Tribunal in assessing the applicant’s ability to attend and participate in a hearing and requested the clinical psychologist directly address the applicant’s capacity, including by responding to the following six questions:
·Is the applicant capable of providing instructions to his representative?
·Is there anything preventing the applicant from understanding the Tribunal’s questions and being able to answer them?
·Does the applicant understand the purpose of the proceedings? If the answer is no, then why not? When will the applicant be able to understand the purpose of the proceedings?
·Is there anything preventing the applicant from providing evidence under oath? If yes, then what is it? When will the applicant be able to provide evidence under oath?
·Can the applicant present arguments in support of his claims? If not, why not? When will the applicant be able to present arguments in support of his claims?
·Has the applicant been prescribed medication? If so, what is it and when was it prescribed? How does the prescribed medication affect the applicant?

132. The Tribunal did not receive a response from the clinical psychologist or representative.
133. On 6 September 2023, the applicant telephoned the Tribunal and advised that he was no longer represented and that he was seeking a new representative.
134. On 6 September 2023, the applicant wrote requesting an extension of time in which to respond to the Tribunal’s questions. The Tribunal granted a two-week extension to 21 September 2023.
135. The Tribunal did not receive a response to the questions.
136. At the beginning of the hearing, the applicant was asked if there were any medical or accessibility issues that would prevent him from participating fully in the hearing and he said ‘no’ and I accept this.
137. In the hearing, the applicant claimed that three mental health plans had been prepared for him. As discussed at the hearing, the only mental health treatment plan on the Tribunal file was the one dated 17 March 2023. The applicant did not provide copies of any other mental health treatment plans.
138. Based on the information before the Tribunal, I accept that in the mental health treatment plan dated 17 March 2023 the applicant’s General Practitioner made a problem/provisional diagnosis of anxiety with depression and alcohol dependence. Based on the letter from [Psychologist 2] dated [January] 2017, I accept that the applicant was diagnosed with depression, anxiety and stress. Based on the letter from [Psychologist 1] dated [May] 2023, I accept that the applicant attended his practice in 2023 and engaged in cognitive behaviour therapy for depression, anxiety and possible borderline personality disorder. Based on the information from his GP, [Psychologist 2] and [Psychologist 1], I accept that the applicant has been diagnosed with depression, anxiety and stress and possible borderline personality disorder.
139. I do not accept that the applicant suffering anxiety with depression, anxiety and stress and possible borderline personality disorder confirms his claims to be true and for the reasons below I do not accept that the central claims made by the applicant are true.
140. At the hearing, the applicant advised that he is not currently seeing a mental health professional. He claimed that he had a new mental health treatment plan and was looking for someone to consult, but he did not provide a copy of his new mental health treatment plan at the hearing or after the hearing and I do not accept that he has a new mental health treatment plan. At the hearing he advised that he is managing his mental health without medication and by working, being positive and avoiding alcohol. The applicant claimed that he had been prescribed medication in the past but he did not provide any supporting evidence, such as a prescription, to support his claim. At the hearing he claimed that he was not taking any medication. Based on the information before me, I accept that the applicant is self-managing his mental health without medication by working, being positive and avoiding alcohol.
141. As discussed at the hearing, in his direct engagement with the Tribunal the applicant had been responsive and clearly understood what was needed. I note the applicant provided correctly completed forms in a timely manner.
142. Having regard to the applicant’s ability to detail his claims and respond appropriately to questions and concerns raised at the hearing, and to the opportunity afforded to him at the hearing and his competent representation, I am satisfied that in the context of his mental health symptoms as accepted that the applicant was given a real and meaningful opportunity to appear before the Tribunal to give evidence and present arguments.
Findings
143. Being satisfied that the applicant was given a real and meaningful opportunity to give evidence and present arguments, I carefully weighed the claims made by the applicant against my concerns discussed during the hearing and detailed below. I am not satisfied that the applicant provided the evidence required to make his case. For the following reasons I have concluded that the applicant’s claims are not credible.
Has the applicant experienced harm?
144. In his protection visa application, the applicant claimed that his two uncles and his grandmother came to his room and his uncles started mercilessly beating him and later the neighbours joined in. He claimed that while his grandmother was shouting he was being beaten and became unconscious and woke up in the neighbourhood clinic. When recounting the alleged incident at the hearing, he provided a different version of events, stating that he thought it was only one uncle, his uncle [Uncle 2], who came to his room and that his uncle’s shouting attracted his grandmother and then neighbours who dragged them into the compound and beat them. He claimed that after the beating he was put into the back of a police van with [Partner 1] and two police officers and that he became unconscious in the van, rather than being beaten unconscious at the compound.
145. At the hearing, the applicant claimed he did not know how his aunt [Aunt 1] was able to have him released from police custody and that he had never asked her, despite residing with her during the week from June 2013 to February 2014. He also claimed that he and his aunt do not communicate anymore because they had an agreement that the applicant would pay her back for his school fees in Australia. At the hearing, the applicant was unable to explain the agreement in any specificity, including the sum of money involved. I find it implausible that the applicant would not seek to find out how he was released from police custody in the seven months he was residing with his aunt during the week and I find it implausible that he and his aunt had an arrangement for him to repay an unknown sum of money.
146. As discussed at the hearing, the applicant claimed that his family had disowned him following the alleged beating yet he sent money to various family members in Kenya, including his grandmother. At the hearing he claimed that his was to bring them back towards him and then he disclosed that he lived with one of his mother’s brothers in Adelaide, is in contact with another uncle in [location] and is in contact with his mother in Kenya. Based on the evidence before me, I do not accept that the applicant has been disowned by his family.
147. As discussed with the applicant, undertaking his IELTS test in January 2013 and obtaining his passport in [2012] suggested that he had plans to leave Kenya before the claimed incident in June 2013. The applicant said he had finished studying and was looking for jobs in [Industry 1] that could be in or outside Kenya. When asked if these [Industry 1] jobs required an IELTS test, the applicant said that was in case they secured a job outside the country, that some countries required IELTS and he did it to be on the safe side. I am satisfied that the applicant was seeking to travel overseas before the claimed incident [in] June 2023.
148. Taking into account the applicant’s evidence as a whole, including the changing nature of his evidence over time about who came to his room and when he became unconscious, together with him being unable to explain how he was released from police custody, and him sending money to family members in Kenya despite claiming that they had disowned him, and him acquiring a passport in [2012] and undertaking his IELTS test in January 2013, I do not accept that he was beaten by his family members and the community on 8 June 2013 because of a homosexual encounter with [Partner 1]
Gay / homosexual
149. At the hearing, when asked how he became aware of his sexuality, his evidence included his love of accompanying ladies to do their hair, being soft and delicate, people telling him he was soft, taking on traditionally female responsibilities like being in the kitchen and doing the cooking, and not being outgoing. When pressed, he spoke about having fun dressing up in women’s clothing and imitating people while he was still at school. I do not accept this evidence is evidence of homosexuality, that is ‘being sexually attracted to people of the same sex as oneself’.[2]
[2] Macquarie Dictionary Online.
150. As discussed at the hearing, in the decision record, a copy of which was provided to the Tribunal, the delegate detailed his concerns that the applicant’s evidence about living as a homosexual in Australia lacked detail. These concerns were discussed at the hearing, together with my concerns that some three years later – having lived in Australia for nine years – he was unable to elaborate or provide cogent detail about living as a gay man in Australia. At the hearing, the applicant claimed he engaged in the gay scene in Adelaide through [social media], yet he did not provide any corroborative evidence of his social media activities. While the applicant’s Australian-based family members may have declined to provide evidence, the applicant had many other sources to draw upon to support his claims. At the hearing, the applicant claimed that [Mr A] was prepared to sign a statutory declaration, yet no statutory declaration was provided after the hearing. At the hearing, the applicant claimed that he had mostly corresponded with [Mr C] by email yet he failed to provide copies of the emails from [Mr C] or the emails he claimed he still received about the activities after the hearing to support his claims. At the hearing, he claimed his previous representative had tried unsuccessfully to get in touch with [Mr C] but he did not provide any corroborative evidence from her to this effect. At the hearing, he claimed that he had told three of his colleagues that he was gay, yet he did not provide witness statements from them after the hearing. The applicant was clearly on notice that his lack of evidence from third parties, such as witnesses or witness statements from the gay community, including his claimed former partner [Mr A] with whom he remains in contact, undermined his claims, yet he failed to provide corroborative evidence after the hearing or any explanation for not providing such evidence. Based on the evidence before me, I do not accept that the applicant is gay or homosexual.
151. Considering the applicant’s changing and vague evidence as a whole and the lack of corroborative evidence from third parties, I do not accept that the applicant is homosexual and I do not accept that he was beaten by his family members and the community [in] June 2013 because of a homosexual encounter with [Partner 1]. It follows that I do not accept that the applicant was taken to the neighbourhood clinic or held in police custody. Nor do I accept that the applicant was exposed to threats, discrimination and harassment because he is gay, or that he was disowned by his friends, family, the neighbourhood and authorities because he is gay, or that he is at risk of witchcraft if he returns to Kenya. Based on the evidence before me, I do not accept that the applicant has had a homosexual relationship with [Mr A] or [Mr B] in Australia or with [Partner 1] in Kenya and I do not accept that the applicant has engaged with [Mr C] at [Organisation 1] or attended LGBT events in Australia. I find the applicant manufactured his claims for a migration outcome.
Delay in seeking protection
152. The applicant arrived in Australia in February 2014 and applied for a protection visa in April 2016.
153. I am 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.
154. At the hearing, I put to the applicant that this delay in applying for protection would suggest that he was not fleeing persecution in Kenya. He claimed that the delay was because he was not aware of the protection visa and he planned to study, get work and then apply for his residency.
155. The applicant’s delay in seeking protection causes me to further doubt his claims to fear harm on return. I do 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.

Mental health
156. As discussed above, I accept that the applicant has been diagnosed with depression, anxiety and stress and possible borderline personality disorder and I accept that the applicant is self-managing his mental health without medication by working, being positive and avoiding alcohol.
157. Following the hearing, the applicant did not provide any further evidence about his mental health claims. I am satisfied that the applicant understood what evidence was before the Tribunal and understood the need to make his case and to provide the relevant information.
158. I considered the applicant’s claim that he has previously experienced suicidal ideation informed by the Federal Court decision that held that a decision maker must be satisfied that another actor is intent on dispossessing someone of their life in a despotic or tyrannical fashion or otherwise subject to whim or caprice.[3] A person committing suicide is not being arbitrarily deprived of their life because the action is not done by a separate actor, they are doing it to themselves.
[3] EZC18 v MHA [2019] FCCA 464 at [74]. However, the Department’s Complementary Protection Guidelines state that although intention can be a relevant indicator of arbitrary deprivation of life, it is not a necessary element: Department of Home Affairs, Complementary Protection Guidelines, section 3.4.1.1, as re-issued 29 February 2020. This is despite the fact that the Guidelines were re-issued after both the EZC18 judgments at first instance and on appeal were delivered.

I considered the applicant’s claim of previous suicidal ideation in light of the Federal Court’s finding that it does not consider that self-inflicted harm constitutes ‘harm’ for the purpose of s 36(2)(aa) and s 36(2A). I find that voluntary suicide does not involve serious harm for the essential and significant reason of his race, religion, nationality, membership of a particular social group or political opinion for the purpose of s 36(2)(a) nor significant harm for the purpose of s 36(2)(aa) and s 36(2A).

160. Based on the evidence before me, including that the applicant is employed and self-managing his mental health, I am not satisfied that the applicant’s mental health will so impact his ability to work and care for himself as to amount to a real chance of serious harm or a real risk of significant harm if he returned to Kenya now or in the reasonably foreseeable future.
Employment
161. As discussed at the hearing, the applicant has tertiary qualifications from Kenya and Australia, he works in Australia and the evidence suggests that he could return to live with his mother in Kenya and, with his education and work experience, he could find work to subsist. The applicant said that he did not think he would find work to survive and that his work experience in Australia was not applicable back home, but he did not provide any country information or other evidence at the hearing or in post-hearing submissions to support these claims. Based on the evidence before me, I find that if the applicant returned to Kenya now or in the reasonably foreseeable future, he would have accommodation and be able to work to earn an income that allowed him to subsist.
Does the applicant meet the refugee criterion?
162. Taking into account the findings set out above and having considered the claims singularly and on a cumulative basis, I am not satisfied that if the applicant returns to Kenya now or in the reasonably foreseeable future he faces a real chance of persecution for reason of his race, religion, nationality, membership of a particular social group or political opinion.
163. Accordingly and for the reasons above I do not accept that the applicant will face serious harm now or in the reasonably foreseeable future if he returns to Kenya. I do not accept that he will face serious harm because of his membership of a particular social group or for any other refugee nexus reason.
164. I am not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in section 5J(1) of the Act.
Does the applicant meet the complementary protection criterion?
165. Having found that the applicant does not meet the refugee criterion, I considered whether on the evidence before me there is a real risk that he will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Kenya.
166. I have taken into account my findings on material questions of fact. For the reasons set out above, I consider that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. I am also not satisfied that there is a real risk he will suffer arbitrary deprivation of life or the death penalty. I find no grounds that suggest he will be subjected to significant harm for any reason if he returns to Kenya.
167. Having considered the applicant’s circumstances singularly and on a cumulative basis, and for all the reasons set out above, I am 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 that there is a real risk he will suffer significant harm.
Conclusion
168. For the reasons given above, I am 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), I considered the alternative criterion in s 36(2)(aa). I am 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

171. 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 4834

8 December 2023

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