2101760 (Refugee)

This matter concerned an appeal by a Kenyan national against the refusal of his protection visa application. The applicant claimed he would face harm in Kenya due to his Kipsigis ethnicity and adherence to the Rastafari religion. He also alleged he had suffered harm from his stepfather and feared being linked to the Kikuyu Mungiki sect. The applicant had arrived in Australia on a student visa, which subsequently ceased, and he remained in Australia unlawfully before making his protection visa application from prison following criminal convictions.

The court was required to determine whether there was a real chance the applicant would suffer serious harm in Kenya by reason of his race, religion, nationality, membership of a particular social group, or political opinion. Alternatively, the court had to consider whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Kenya, the applicant faced a real risk of suffering significant harm, as defined by the complementary protection criterion.

The Tribunal considered the applicant's claims in light of Ministerial Direction No. 84, the Refugee Law Guidelines, and Complementary Protection Guidelines. It found that while the applicant identified as Kipsigis and Rastafari, these affiliations did not, in themselves, establish a real risk of serious harm or significant harm upon return to Kenya. The Tribunal noted the applicant's claims of abuse by his stepfather and fear of association with the Mungiki sect, but concluded that these did not meet the threshold for protection. The Tribunal also took into account the applicant's delay in applying for protection and his criminal convictions. Ultimately, the Tribunal affirmed the decision under review, finding that the applicant had not established a claim for a protection visa.