2101760 (Refugee)

2101760 (Refugee) [2021] AATA 3957 (16 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2101760
COUNTRY OF REFERENCE:                   Kenya
MEMBER:Tania Flood
DATE:16 August 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 August 2021 at 2:21pm
CATCHWORDS
REFUGEE – protection visa – Kenya – religion – Rastafarianism – race – Kalenjin – Kipsigis – threats of harm by stepfather and associates – victim of sexual assault – fear of being linked to Kikuyu Mungiki sect – no bloodline/inheritance/property – economic hardship – no familial or community support – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 February 2021 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Kenya, applied for the visa on 10 December 2020. The visa was refused as the delegate was not satisfied that the applicant has a well-founded fear of persecution for reason of his belief and practise of his Rastafarian religion. In addition, the delegate was not satisfied that there is a real risk that the applicant would suffer significant harm on return to Kenya at the hands of his stepfather and his associates.
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 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicant will suffer serious harm if he returns to Kenya for reason of his race, religion, nationality, membership of a particular social group or political opinion or alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Kenya there is a real risk he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
According to information contained in his protection visa application forms, the applicant is a [age]-year-old citizen of Kenya. He belongs to the Kipsigis ethnic group and follows the Rastafari religion. He resided at multiple addresses in Kenya, including the Rift Valley, [Kericho], and Nakuru. His mother, stepfather, stepbrother, and [stepsisters] reside in Kenya. His fiancé lives in Australia. He completed primary school, high school, and a bachelor’s [degree] in Kenya. He is currently enrolled at [University 1], completing [Qualification 1]. Before coming to Australia, he was employed in various jobs at [Employer 1] between 2010 and 2015, as [several other positions] between 2015 and 2017.
The applicant arrived in Australia [in] April 2017 as the holder of a Student visa (Class TU)(Subclass 500). His visa ceased on 15 September 2018 and he remained unlawfully in Australia.
The applicant was convicted of a variety of criminal offences and made his application for a Protection visa from prison. He lodged an application for a protection visa on 10 December 2020. On 4 February 2021 a delegate of the department refused his protection visa application.
The applicant was released from [prison] on 6 April 2021 and was detained in immigration detention.
The applicant made the following claims on his protection visa application form:
He was born in Kericho Town, Lonoiani District, in the Rift Valley Province of Kenya. He identifies as a member of the Kalenjin community and Kipsigis ethnicity. However, he does not know his true roots, as he has never known his biological father. He grew up in the Protestant Christian church but is now a Spiritualist Rasta which is ‘not very attractive’ in Kenya. Culturally he has no bloodline and does not share the same family name as his mother, stepfather and stepsiblings.
His stepfather is abusive and he claims to have ‘suffered harm for the entirety of [his] existence’, with school and church being his only escape’. He has been physically harmed by his stepfather.
He was circumcised in 2005 and was made to stay in a house 6 kilometres away from his family. In his culture, after a male is circumcised, he cannot sleep under the same roof as his mother or sisters. He was sexually assaulted by a male occupant at that house. Afterwards, he was sent to boarding school and never spoke about it. He spent time at his grandmother’s house over the school holidays.
In mid-2008, his mother fled to her parents’ home because she had been violated and badly assaulted by the applicant’s stepfather. The applicant was also punched by his stepfather.
His mother and stepfather ‘partially separated’ in 2008 and were living apart. While visiting his mother over the school holidays, the applicant advised her to leave his stepfather. She yelled at him and fell against a barbed wire fence and passed out. He never spoke about the subject again.
In February 2010 his stepfather chased his mother to her parents’ home after beating her up. He also beat up the applicant and chased him with a machete, but he managed to escape. He was sent to his mother’s sisters house in Nairobi for his safety and to start his university education.
In 2012-2013, his family formed groups on [social media] and left him out, claiming that he was not a part of the family.
In early 2014 his stepfather chased his mother out of their then [residence] in the outskirts of Nakuru Town. His stepfather chased him around the village with a machete. He went to help his mother get her stuff and managed to ‘dispose’ his stepfather of his weapons. However, he fled after his stepfather bashed him.
He sought refuge at educational institutions and abandoned buildings and became homeless with no friends or family. He continued his education and was accepted to study at [University 1 in Australia] in 2016.
The applicant held a fundraiser to pay for his flight to Australia in early 2017. His stepfather tried to ‘end [his] life’ by paying rogue police officers to execute him. The applicant’s brother and mother shielded him and he was able to leave Kenya.
He claims that if he returns to Kenya, his stepfather and the rogue police officers will target him again. His mother and siblings treat him as an outcast. He will be mistreated because he deviated from Protestant Christianity, does not carry his family’s name, and would be viewed as ‘economically useless’ as has no bloodline or property.
He tried to relocate by moving amongst his relatives’ houses but they got tired of him and treated him as an outcast.
The authorities cannot protect him as they are ‘ethnically, politically and economically allied’. He had gone to the local police but they told him he had to abide by his stepfather as ‘he is the head of the family’.
Documents submitted to the Department
The applicant submitted a letter from his partner, [Ms A] (undated) which provides details about their relationship. Ms [A] stated that the applicant ‘has been a victim of his environment’ and wants to move on from his previous life. She stated that she speaks to him over the phone during his incarceration. She claims that he has ‘learnt his lessons’ and hopes that they can be together again in future.
The applicant submitted a copy of his Kenyan passport, indicating that he was born in Kericho, Kenya. He also submitted a copy of his NSW photo card.
Protection visa Interview
The applicant attended an interview with the Department on 3 February 2021. The interview was conducted in English.
Documents submitted to the Tribunal
The applicant submitted the following documents to the Tribunal in support of his review application:
Copy of an admission letter from [University 1] dated 2 December 2020 and copy of an Overseas Student Confirmation-of-Enrolment (CoE) in relation to his enrolment in [Qualification 1] at [University 1], from 3 August 2020 to 31 December 2020.
Copy of a STARTTS report dated 27 May 2021and prepared by Clinical Psychologist [Ms B]. The report indicates that the applicant underwent a psychological assessment on 12 May 2021 at [an] Immigration Detention Centre. The report outlines the applicant’s background and family history as self-reported by him, as well as the incidents that led to his incarceration and detention. It states that the applicant reported a history of illicit substance abuse, which ceased following his imprisonment in 2020. Ms [B] stated that the applicant’s psychological assessment, the results of psychometric tests, and his presentation during the assessment indicate that he experiences ‘clinically significant symptoms associated with anxiety as well as symptoms associated with depression’. The report states that the applicant reported that he experiences ‘occasional, fleeting passive suicidal ideation’ and recommends that he attend ongoing psychological therapy and long-term trauma counselling.
On 19 July 2021 the applicant submitted a statement to the Tribunal in which the following additional information is provided:
He received threatening calls on different occasions while studying and moving around Juja and Nairobi from people who claimed to be police.
His stepfather blames him for the state of his marriage to his mother.
His maternal relatives have treated him as an outcast and completely cut ties with him. This was a big part of the reason for him leaving Kenya.
He will be recognised by others as a [Kalenjin-Kipsigis]. This puts his self-identification in jeopardy and he fears persecution for failing to identify with or fit into where he supposedly should identify.
As a Rastafarian he has to congregate and hold fellowships in fear. He had his dreadlocks forcibly shaved off numerous times to deter him practicing Rastafarianism and was shunned by his maternal relatives.
His biggest fear is being mistaken or likened to the Kikuyu sect known as “mungiki”.
He has been beaten up, arrested and held overnight by law enforcement officers and other state agencies just because of his appearance. He was ill-treated by city council askaris while hustling for work simply because of his dreadlocks.
He is less economically empowered.
He was sexually assaulted in Australia and there has been no legal reprieve to date. This situation continues to cause him trauma and it would be cruel to remove him under such circumstances. His mental health will suffer and he will be unable to access psychological services.
His life as an unemployed student in Kenya with no stable income was very difficult but he nevertheless managed to graduate from University. However, it took him two years from the time he concluded his studies to graduate as he had to pay for accrued fee arrears.
His capacity to earn a living in Kenya is limited.
Attached to his statement are two certificates verifying the only employment he ever had – [Occupation 1 Trainee] July 2013 to April 2014; [Occupation 2] 16 November to 26 November 2015
Oral evidence to the Tribunal
The applicant is in detention and appeared before the Tribunal by video link. During the hearing the Tribunal discussed with the applicant his background in Kenya, his connections with family in Kenya and the reasons why he fears returning to Kenya. His testimony and answers to response to issues raised with him by the Tribunal is summarised as follows:
He came to Australia in 2017 holding a student visa. He discontinued his studies but later enrolled in [Qualification 1] at [University 1]. He did not complete those studies.
While in Australia he has worked as a labourer in the construction industry and also in a [specified role].
His mother resides in Kenya; he does not know his biological father.
He grew up with his stepfather who is now approximately [age] years old. He does not know where his stepfather is now because he has no contact with him. Before he left Kenya his stepfather was living in his own home in Nakuru Town.
He has one stepbrother and [number] stepsisters. One stepsister, with whom he has contact, is studying at a University in Nairobi and one is living with his mother in Nakuru.
To his knowledge his mother is still legally married to his stepfather but they no longer enjoy a relationship and do not live together.
He has contact with his mother from time to time. She is a [Occupation 3]. His mother does not like to discuss problems with him. He believes his mother and stepfather still have some problems.
He has some maternal aunts and uncles in Kenya but he has not communicated with them since he came to Australia. Before he left Kenya some of those persons were living in Nairobi and some in Kericho.
Before he left Kenya his maternal family members ceased contact with him and didn’t want him to go to their homes any longer. He said this was partly due to his religion and partly due to his family situation.
While he was in Kenya his maternal uncle let him stay with him while he was finishing high school and gaining entry to University. This assistance lasted a couple of months only.
He completed his primary schooling in Kericho where he attended a boarding school. He also boarded while completing high school in Nakuru. Since primary school he only resided with stepfather during some school holidays. He said his stepfather never wanted him in his house.
After finishing high school he moved to Juja where he enrolled in [a bachelor degree] at [university]. After living with his uncle for the first two months he struggled to pay rent. He said he hung around the student residences on the pretext of having to do assignments with other students. He said he passed the nights there or in the TV rooms. He said he survived like that for a long time.
The Tribunal put it to the applicant that he told the delegate he was living in share accommodation with friends and that his mother paid for his university education. The Tribunal also observed that the information he provided in submissions indicates he graduated with 2^nd class honours which would likely have been a difficult achievement if his living conditions were so dire. He responded that the seriousness of his situation could have been lost in the way he expressed it. He agreed that his mother paid a large part of his tuition fees. He completed his course work and exams in 2013 but did not graduate until 2015 when he was able to pay outstanding fees.
After completing University he was employed as a [Occupation 1 Trainee] from 2013-2014. After that he obtained a few days’ work as an [Occupation 2]. When the Tribunal indicated that information provided in his submissions indicates he held other positions in 2015 and 2016 he said he registered a business name and was hoping to conduct some business. He said he managed to help a few students to purchase study equipment etc and that is how he survived. He said he had no other stable employment until he departed Kenya.
Immediately before he departed Kenya he was staying in a rented apartment in Eldoret, which is about five hours from Nairobi. He said his mother rented the accommodation for about three months.
When he left Nakuru town in 2009 he lived briefly in Nairobi and again for another couple of months in 2020 when he was staying with his uncle. He said that if he is required to return to Kenya he would reside in Nairobi.
When asked when he last lived under the same roof as his stepfather he said not since primary school. When asked when he last encountered his stepfather he said it was on the day of a fundraiser which was held to finance his travel to Australia. He said his stepfather came to the event which was held in a hotel in Nakuru. He said his stepfather arrived with two plain clothed police officers who claimed they were there to arrest him. He said they had no warrant and he was whisked away from them and placed in hiding. He said he was told his stepfather had hired those people to take him away and execute him for reasons unknown to him. When asked what would have motivated his stepfather to do that given their virtual estrangement he said it was because of the issues between him and his mother. He said there was discord in the house because they fought over him. When the Tribunal put it to the applicant that it seems strange his stepfather would interfere with his departure from Kenya given his attitudes toward him he replied that his stepfather wanted to stop him becoming his own person. He said he was told his stepfather thought he might try to take revenge on him.

He said that prior to that incident at the hotel he saw his stepfather about a year earlier when he went to see his mother in Nakuru. He said that on that occasion his stepfather threatened him and dragged him to the police station where his friends work. He said he was beaten up and threatened by them. When the Tribunal pointed out that he had not mentioned this before he said his memory of events comes and goes. The applicant confirmed that other than the incident at the hotel he only ever experienced problems with his stepfather in Nakuru. He added that his stepfather also once approached him at his aunt’s house in Eldoret when he stayed with her for a while towards the end of 2013.
When asked about the police officers involved in those incidents he said they are friends of his stepfather and they drink together and don’t act within the law. He confirmed those police officers are based in Nakuru.
The Tribunal put it to the applicant that his stepfather may no longer have any interest in him now that he is a grown man and has had nothing to do with him for many years. He said that he threatened him before and he doesn’t think that his absence will cause him to lose interest in him.
The Tribunal asked the applicant why he did not apply for a Protection visa immediately upon arrival in Australia. He said he hoped to finish his studies at [University 1] and apply for a graduate visa. He said he also didn’t know about the process of applying for protection.
The Tribunal put it to the applicant that it appears he could relocate within Kenya to avoid his stepfather given the problems he experienced in the past were largely contained to Nakuru. He said he tried to get away from him in the past but still received calls from him. He said he doesn’t understand why his stepfather acted the way he did.
He said that it will be difficult for him to survive and to access basic services without having a job and people will be unwilling to help him. The Tribunal noted that he appears to be quite a resilient person having managed to graduate from University despite his difficult circumstances and that he managed to find some work in Kenya before. He replied that he has been away for some time and if he goes back to Kenya his struggles will start all over again.
The applicant was asked why having no bloodline, no inheritance and no property will mean he will suffer serious or significant harm in Kenya. He replied that life will be hard without the ability to make a living for himself. He said he has nothing of his own and his life in the past was hard. He said he thinks he has more opportunities to better himself in Australia than in Kenya.
The Tribunal asked the applicant to explain his submissions in respect of him being Kalenjin-Kipsigis because on the one hand he appears to suggest he will have a problem because others will identify him as such while on the other hand he self identifies as such in his application. He replied that he is Kalenjin of Kipsigis ethnicity. He said that members of his community will ask where he comes from and who is father is but he doesn’t know him. This means he has no lineage and will be cut off from community and won’t be able to survive. The Tribunal pointed out that he had nevertheless survived for many years on his own in difficult circumstances.
The Tribunal asked the applicant why he will be likened to the Mungiki sect and replied it is because of his religion and his dreadlocks. He was asked if he had been identified as a Mungiki in the past and said he was arrested for a couple of nights. He said it was just harassment and he was always released the next morning.
As to his religion he said he converted to Rastafarianism in his late teens before he started University. When asked about past harm he said that when he went home from boarding school his family forcefully shaved off his dreadlocks and he found this offensive. As to future harm he said he won’t be received well when looking for a job or a place to stay.
The Tribunal put it to the applicant that his past experiences in Kenya don’t support his claimed fear of discrimination because on his evidence he was accepted into University and offered reputable employment in Kenya. He replied that because he hasn’t lived there for a while he won’t know how to about things immediately.
The Tribunal put it to the applicant that Rastafarianism has reportedly become quite popular in Kenya and was recently recognised by the judiciary as a religion. Further, the Tribunal pointed out country information indicates that a Rastafarian advocate was recently admitted to the Bar. The Tribunal suggested that it doesn’t appear he would encounter official discrimination but if he did it would appear that legal redress would be available to him. He said he doesn’t know about that.
As to his mental health the applicant said he underwent some treatment in jail and has been under a counselling program in detention. He said he also once spoke to men’s group in [location]. The Tribunal advised that it appears therapy and counselling services, including online services, are available in Nairobi and he replied that such services are commercial and require payment of a fee.
When asked if there is any other reason why he fears returning to Kenya he said he was sexually assaulted in Australia by a Kenyan male and because of this people will look at him in different way. He said he spoke about his experience on [social media] and some people in Kenya are aware of it. He said they could misinterpret his sexuality and twist the information to suit their purposes. He confirmed his mother is aware of the assault but just brushed it off when he spoke to her.
The applicant asked the Tribunal to take evidence from his mother during the hearing. She said she is in contact with her son and last spoke to him about a week ago. She confirmed the applicant experienced problems with his stepfather as a child. She said she left her husband in 2013 and has no ongoing relationship with him. She said she has no problems with him any longer. When asked if she thinks her son would encounter any problems with her ex-husband she said that now he is a grown man and can live on his own there will be no problem. She did not think that her ex-husband will search for him with a view to harming him.
The applicant’s mother confirmed that she is working as a [Occupation 3]. When asked if she would be able to assist her son to re-establish himself on return to Kenya she said she would have no problem doing that. She said it is unfortunate he never completed his studies in Australia and given this she thinks he should return home.
The Tribunal put it to the applicant, pursuant to the requirements at s.424AA of the Act, that his mother’s evidence does not support his claim that he will be at risk of harm from his stepfather on return to Kenya. He responded that his mother’s evidence is driven by her desire to see him again. He said she hasn’t taken into consideration the issues he has raised with the Tribunal. He said she doesn’t appreciate the impact the sexual assault has had on him or the implications of him not knowing his biological father. He confirmed his mother is aware that he has applied for a Protection visa.
FINDINGS AND REASONS
Country of reference
Attached to the Department’s file is a copy of the applicant’s passport which verifies his claimed identify and nationality. In the absence of any information to the contrary the Tribunal accepts the applicant is a national of Kenya.
Fear of harm from stepfather
The applicant claims he was mistreated by his stepfather, who physically assaulted him many times and made it impossible for him to live at home with his mother and stepsiblings while growing up. The Tribunal accepts this to be true based on his oral evidence and the testimony of his mother.
In his application for a protection visa the applicant claimed that just prior to him departing Kenya the problem with his stepfather escalated when he enlisted the help of rogue police officers to kill him. In his oral evidence he also said that his step-father’s police friends once dragged him to the police station and beat him up and threatened him when he went to visit his mother about a year before the incident which occurred at the hotel prior to his departure.
The Tribunal has considered his testimony in regard to the above but has doubts about the veracity of the claimed involvement of the police and his threatened execution. As discussed with the applicant during the hearing he never previously mentioned being taken to the [police station] and beaten and threatened and his evidence as to why his stepfather was motivated to have him executed by rogue police officers on the eve of his departure to Australia was in the Tribunal’s view vague and not convincing. Further, as discussed with the applicant, having endured such a frightening experience it is difficult to see why he waited more than three years after his arrival in Australia to seek protection. The applicant responded that he had hoped his University studies would lead to permanency in Australia and in any event he was unaware of the process of applying for protection. As discussed with the applicant during the hearing his hopes of gaining residency following completion of his studies was by no means a certainly. In regard to the latter explanation the Tribunal notes the applicant was University educated in Kenya and gained entry to an Australian University. The Tribunal is not persuaded he was without the ability to access the required knowledge to lodge a protection visa application. In the Tribunal’s view the delay between the applicant’s arrival in Australia and his application for a protection visa is not adequately explained and this causes the Tribunal to doubt the abovementioned aspect of his claims. The Tribunal finds that the applicant’s stepfather did not pay or encourage police officers to harm, threaten or kill him in Kenya as is claimed.
Notwithstanding the above, the applicant maintains that if he is required to return to Kenya his stepfather will remain motivated to harm him for the same reasons that motivated him previously. Essentially, that is for reason of the animosity which arose between his mother and stepfather over him. As discussed with the applicant he is an adult now and has not lived under the same roof as his stepfather or otherwise relied on him for support since he attended primary school. Based on the available evidence his mother has been separated from his stepfather since 2013 and no longer encounters problems with him despite that they continue to live in the same town. According to the applicant the problems he had with his stepfather occurred in Nakuru town and he testified that should he be required to return to Kenya he would likely reside in Nairobi. He has not claimed to have been threatened by his stepfather in the years he has lived in Australia.
In light of the above, the Tribunal is not persuaded that the applicant’s stepfather will be motivated to harm him if he returns to Kenya. Significantly, this view was also echoed by the applicant’s mother who testified that her son is a grown man who has lived independently of his stepfather for many years. She said she does not believe that her ex-husband would search for her son with a view to harming him if he returns to Kenya. According to the applicant his mother’s evidence was motivated by her desire for him to return home but the Tribunal finds it significant that her evidence was given in the full knowledge that her son was seeking a protection visa to remain in Australia which if successful, would have afforded him greater opportunities in life. Given this, the Tribunal finds her evidence particularly persuasive.
Having considered the claims and the available evidence the Tribunal is not satisfied that there is a real chance or a real risk that the applicant will suffer serious or significant harm at the hands of his step-father and/or police officer friends of his step-father if he returns to Kenya now or in the reasonably foreseeable future.
Fear of harm for reason of Rastafarian religion
The applicant claims that he had his dreadlocks shaved off and he was shunned by his family in Kenya in the past for reason of his religion. He also claims he will be discriminated against when looking for work or accommodation if he returns to Kenya for reason of his religion.
Reportedly, Rastafarianism is increasingly popular in Kenya but its adherents say they often face discrimination and are viewed as criminals because of their pot smoking and their dreadlocked appearance.[1] That said, the 2020 Report on International Religious Freedom: Kenya[2] states that there shall be no state religion and the constitution and other laws and policies prohibit religious discrimination and protect religious freedom, including the freedom to practice any religion or belief through worship, teaching, or observance, and to debate religious questions. The constitution also states individuals shall not be compelled to act or engage in any act contrary to their belief or religion. The 2019 Report on International Religious Freedom: Kenya[3] states that the High Court ruled in the reporting period that a secondary school broke the law by asking a student to shave her dreadlocks, stating they were a manifestation of her religious beliefs and providing official recognition of Rastafarianism as a religion in Kenya. A Nairobi News article on 5 July 2020 indicates that a Rastafarian advocate was recently admitted to the Bar[4].
[1] ‘Rastafarianism, promising freedom, spreads among African youth’, Religion News, April 17, 2019.
[2] 2020 Report on International Religious Freedom: Kenya, Office of International Religious Freedom, May 12, 2021
[3] 2019 Report on International Religious Freedom: Kenya, Office of International Religious Freedom,
[4] ‘Kenya: Rastafarian Advocate Admitted to the Bar’, Nairobi News, 5 July 2020
While the Tribunal accepts the applicant may have had his dreadlocks forcibly shaved off when he was a teen by family members it does not consider this likely now that he is an adult who has lived independently from family for many years. Despite the positive developments outlined above, the Tribunal also accepts there is a possibility he might again encounter some negativity and harassment from some family and community members on account of his religion arising from negative views about dreadlocks and pot smoking. However, on the available evidence, the Tribunal does not accept that this would amount to serious or significant harm.
While the applicant claimed in his written statement that he will have to congregate and hold fellowships in fear in Kenya he gave no indication in the hearing that he practices his religion in such an open or organised manner. The only evidence he gave in respect of his religious practices related to him practicing vegetarianism and favouring not cutting his hair. In any event, in light of the abovementioned constitutional and legal provisions and judicial recognition of Rastafarianism as a religion in Kenya, the Tribunal does not accept that the applicant will be required to practice his religion in secret in order to avoid serious or significant harm.
As to his claimed fear that he will be discriminated against in employment and when searching for accommodation the Tribunal notes that his past experiences in Kenya do not support this as he was previously able to secure employment and accommodation despite being a Rastafarian. In any event, if he does encounter some discrimination in his search for employment and/or accommodation on account of his religion the Tribunal is satisfied, based on the above country information, that effective protection measures will be available to him. Accordingly, the Tribunal finds the applicant does not have a well-founded fear of persecution for this reason: s.5J(2). Similarly, the Tribunal considers the applicant could obtain from an authority of the country protection such that there would not be a real risk of him suffering significant harm: 36(2B)(b).
The applicant’s claims in respect of being beaten up and arrested by local authorities on account of his appearance are addressed below.
The Tribunal is satisfied that there is not a real chance or a real risk the applicant will suffer serious or significant harm if he returns to Kenya for reason of his Rastafarian religion.
Fear of harm for being likened to the Kikuyu Mungiki sect due to his dreadlocked appearance
In his submission to the Tribunal the applicant stated that being likened to the Kikuyu Mungiki sect is his biggest fear. He said this is because Mungiki members also dreadlock their hair. Curiously however, when asked to further explain his fears he merely said he was detained by local authorities for a couple of nights in the past but said it was just harassment and he was always released the next morning. He went into little detail about the claim and his evidence as to what occurred in the past was brief and undetailed. Despite claiming this is his biggest fear of returning to Kenya the Tribunal also finds it significant that the applicant only introduced this claim after the refusal of his application for a Protection visa and he offered no plausible explanation at hearing for the omission. Based on the available evidence the Tribunal is not prepared to accept that the applicant was likened to the Kikuyu Mungiki sect in the past or if he was that he was targeted or harmed for this reason by the authorities or indeed simply because he wore his hair dreadlocked. The Tribunal considers the applicant introduced this testimony in a bid to strengthen his claims for protection following the unfavourable decision of the delegate.
In light of the above, the Tribunal is not satisfied that there is a real chance or a real risk the applicant will suffer serious or significant harm in Kenya in the future for this reason.
Fear of harm for reason of being shunned by his maternal family
As noted above the Tribunal accepts the applicant may have been shunned by members of his maternal family at various points in time for reason of his religion and/or his personal circumstances. However, based on the available evidence he is in contact with, and will be supported by his mother if he returns to Kenya. In addition, he stated at hearing that he is also in contact with one of his stepsiblings who resides in Nairobi. The Tribunal is not satisfied that the applicant will be without some familial support if he returns to Kenya and even if some members of his maternal family continue to shun him for any reason the Tribunal is not satisfied that this would amount to serious or significant harm.
Fear of harm for reason of Kalenjin/Kipsigis ethnicity; no bloodline/inheritance/property; economic hardship

100. The Tribunal found the applicant’s evidence in respect of his ethnicity and lack of bloodline inadequately explained and difficult to understand. For instance, on the one hand he claims to self-identify as a Kalenjin/Kipsigis and on the other hand he claims he will have problems because others will identify him as such. During the hearing he explained he fears members of his community will ask where he comes from and who his father is and because he has no lineage he will be cut off from community and won’t be able to survive. As discussed with the applicant the circumstances surrounding his paternity and lineage existed prior to his departure from Kenya and yet he nevertheless managed to survive for many years, virtually on his own abilities, in difficult circumstances. Even if he were to experience some disconnection from his ethnic community on return for the reasons claimed the Tribunal again notes his connections with his mother and step-sibling and is not satisfied that his claimed fears in this respect will mean he will be unable to survive and/or would amount to serious or significant harm.

101. During the hearing the applicant linked his claimed lack of inheritance and property to his fear of suffering economic hardship on return to Kenya. The Tribunal acknowledges the applicant has been away from Kenya for a number of years but as noted above he will have the emotional and financial support of his mother to draw upon if he returns to Kenya. Further, as discussed with him he is University educated and despite the hardships he faced in Kenya he managed to secure some employment in the past, including in a customer service role [with Employer 1], despite claiming his appearance and religion is a hindrance. While the Tribunal accepts there will be a period of readjustment and the applicant may struggle financially, at least initially, the Tribunal is not persuaded that the applicant’s circumstances will result in him being destitute or unable to subsist. The Tribunal is not persuaded that there is a real chance or a real risk the applicant will suffer serious or significant harm arising from economic hardship on return to Kenya.
Fear that mental health will suffer
102. The applicant claims, and the Tribunal accepts, that he was sexually assaulted in Australia by a Kenyan male and that his mental health has suffered as a result. He claims that if he is required to return to Kenya his mental health will further deteriorate and he will be unable to access psychological services.
103. On the available evidence the applicant has been participating in a counselling program while in detention. During the hearing the Tribunal put it to him that it had conducted an internet search which reveals the availability of counselling services, including online services, in Nairobi. The applicant responded that the services which are available are on a fee for service basis. The Tribunal considers, based on the witness evidence that he will, at least initially, be financially assisted by his mother on return to Kenya. Therefore, the Tribunal is not persuaded that the applicant will lack the means to access counselling services if required.
104. The applicant further indicated that some people in Kenya are aware of the sexual assault because he mentioned it on [social media] and he said he believes that people will look at him differently because of this. He intimated that some people might draw incorrect assumptions about his sexuality and could twist that information to suit their own purposes.
105. The Tribunal has considered the applicant’s oral evidence but considers it somewhat speculative. He has not claimed to have been threatened by persons in Kenya for reason of their knowledge of the sexual assault and nor has he claimed he would be the victim of violence in Kenya for this reason. On the available evidence, the Tribunal considers he is more concerned that people might look at him differently.
106. Given the applicant has been away from Kenya since 2017 and that the assault occurred in Australia the Tribunal considers it likely that knowledge of the circumstances in Kenya is restricted to a relatively small number of people. Together with the somewhat speculative nature of his fears, the Tribunal is not satisfied that there is a real chance or a real risk that he will encounter serious or significant harm for this reason if he returns to Kenya.
107. For all the above reasons and having carefully considered the claims both individually and cumulatively, the Tribunal is satisfied that there is not a real chance or a real risk the applicant will suffer serious or significant harm on return to Kenya for the reasons claimed.
CONCLUDING PARAGRAPHS
108. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
109. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2) (aa). For the reasons already articulated above the Tribunal is also not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Kenya there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2) (aa).
110. 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
111. The Tribunal affirms the decision not to grant the applicant a protection visa.
Tania Flood
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.
…

[2021] AATA 3957

16 August 2021

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

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