2103111 (Refugee)

2103111 (Refugee) [2024] AATA 4184 (1 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2103111
COUNTRY OF REFERENCE:                   Kenya
MEMBER:Clyde Cosentino
DATE:1 August 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 01 August 2024 at 11:28am
CATCHWORDS
REFUGEE – Protection Visa – Kenya – religion – Islam – race – Ogaden-Abduwak – land disputes in Garissa – perceived as being Somali – actual/imputed political opinion – holds a subjective fear of being harmed by Islamic terrorists – has been abroad for 12 years without returning – lack of a Kenyan National identity card – there are not effective protection measures available – applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 46, 65, 499
Migration Regulations 1994, 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 11 March 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Kenya, applied for the visa on 13 November 2015. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.
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 ion the attachment to this decision.
Receiving country
In the Department Decision Record, the delegate accepted from the evidence before it that the applicant was a Kenyan citizen and born in Kenya. As there is no evidence before the Tribunal to the contrary, the Tribunal finds that the applicant is a citizen of Kenya, and that Kenya is his receiving country for the purposes of assessing his claims for protection.
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 the applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in
s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Evidence before the Department
The applicant applied for a protection visa on 13 November 2015. In his protection visa, he makes the following claims. He was born in [year] in Garissa, North-eastern province, Kenya. He has Kenyan citizenship. His mother and father also have Kenyan citizenship. He speaks, reads and writes, Somali, English and Swahili. The ethnic group he belongs to is “Ogaden-Abduwak”. He is Muslim by religion. He is unemployed. He has immediate family members living in Garissa. He travelled to Australia on [date] July 2012 on a student visa. He departed from Nairobi, Kenya. His Kenyan passport expired on [date] 2021. On 20 October 2015 he was issued with a Bridging Visa E. Prior to coming to Australia, he lived all his life in Garissa, North-eastern Province, Kenya (from [birth] to July 2012). He was never employed in Kenya. He undertook primary and high school in Garissa, North-eastern province, Kenya.
The applicant’s claims, as they are relevant to his protection visa application, can be summarised in his Commonwealth Statutory Declaration dated 13 November 2015 as follows:
·He was born in Garissa, Kenya in [year].
·He has a Kenyan passport
·He came to Australia on a student visa on [date] July 2012
·His student visa was cancelled but he was not aware of this until he went to the Department to find out about his immigration status.
·He obtained a Bridging Visa E on 20 October 2015.
·He is Ogaden-Abduwak by ethnicity.
·His religion is Islam.
·His parents were born in Kenya.
·He cannot return to Kenya as it is not safe for him to do so. His family has enemies, and he is the eldest son and will be targeted.
·There are clan wars which are due to land disputes in Garissa.
·His hometown borders Somalia and terrorist groups come to their towns and kill people. Kenyan police also kill people in Garissa.
·The Kenyan government does not care about what happens in Garissa.
·The Kenyan government treat the applicant and Ogaden-Abduwak’s/Somali Kenyans as if they belong to Somalia even though the applicant is a Kenyan citizen.
·Ogaden-Abduwak’s/Somali Kenyans have been marginalised since Independence Day when the border was drawn up to include their home area into Kenya rather than into Somalia.
·He has been harassed by police. They always accuse him of having a fake National Identity card. They also ask for bribes and when he does not give them anything they hit him and beat him and threaten him.
·His father was almost killed in clan wars as he was travelling from Garissa to Dadaab.
·His father works for an Internationa Non-Government Organisation called [Organisation 1]. [Details about his work deleted]. Because of his work, he is targeted by different clans and also the Kenyan authorities.
·He believes that he will be harmed or even killed by Kenyan police and family enemies.
·He has experience past harm by being beaten by Kenyan police even though he identified himself through his Kenyan National Identity card. He has been harassed many times by the Kenyan police who have threatened to send him back to Somalia as he is not a true Kenyan.
·He has also been harmed by men from different clans.
·He has not sought help from the Kenyan police because they perceive him as a Somali national and therefore see him as a Somali terrorist. The government does not care about people who come from Garissa.
·He cannot move elsewhere in Kenya because Somali persons (or those who are perceived as Somali) are hated by Kenyans across the country. They are hated because of what Al Shabaab has done in Kenya by way of terrorist attacks. Ogaden-Abduwak’s/Somali Kenyans are tainted as terrorists because of Al Shabaab by police and by the Kenyan population, especially those who come from Garissa. This is even more evident in Somali dominated suburbs in Nairobi such as Eastleigh.
·If he returns, the security forces and/or police force will put him in jail for no reason and harm him.
·He is afraid of the enemies of his family, the clan enemies, and the Al Shabaab terrorist group who come from Somalia.
·The applicant has been beaten several times simply because he is perceived as being Somali.
·The applicant cannot change the way he looks or acts to fit into Kenyan society. He was born in Garissa which is a very Somali orientated area. He speaks Somali. Even in Brisbane, he lives among Somalis rather than Kenyans. He was brought up with Somali values. He cannot be anyone else.
The applicant’s authorised representative provided legal submissions, country information and documents in support of the applicant’s claims. One of the documents provided by the applicant’s authorised representative was a copy of the applicant’s father’s Personal Identification as an employee for “[Organisation 1]”. A copy of the applicant’s passport was also provided along with a faded copy of the applicant’s birth certificate indicating that he was born in Garissa.
At the Department interview dated 5 February 2021, the applicant provided evidence in support of his application. The Tribunal notes the following arising from that interview:
·His father is now retired. His parents and siblings live in Garissa.
·The security situation in Garissa continues to be dangerous. Persons from Garissa are treated as second rate citizens. Clan wars continue in the region making it an unsafe place to reside.
·He has two Australian citizen children. He is no longer in a relationship with the Australian citizen mother.
·He came to Australia to study. He was unaware that his visa had been cancelled which is the reason for delay in lodging his protection visa application.
Delegate’s decision
While the Tribunal is not bound by the delegate’s findings and decision dated 11 March 2021, the Tribunal has noted particular country evidence before the department at that time. The Tribunal also notes the delegate’s acceptance at the time of decision that the applicant is a Muslim and an ethnic Ogaden Abduwak from Garissa, Kenya and that he fears harm at the hands of the Kenyan authorities as a consequence of his ethnicity and actual/imputed political opinion. The Tribunal also notes the delegate’s acceptance that that applicant has lived in Garissa, Kenya all his life prior to his arrival to Australia and that he holds a subjective fear of being harmed by Islamic terrorists, more specifically Al Shabaab.
The delegate recognised that there was a history of racial tensions in Kenya, tied to religion, and that Somali Kenyans including persons of Ogaden ethnicity have faced harassment, discrimination, abuse and harm from the general community and the authorities and that some reports indicate that Somali Kenyans continue to be treated with suspicion.
Notwithstanding this finding, the delegate indicated that weight was placed on more recent sources of country information (as was before the delegate at the time of decision - 11 March 2021) that showed the Kenyan authorities had improved their approach and implemented measures to increase engagement with the Somali-Kenya Community. The delegate’s final consideration on this point was that the chance of the applicant facing serious harm on account of his race and/or his actual/imputed political opinion from the authorities and the members of the public in Kenya to be remote and less than a real chance.
Documents provided prior to hearing by the applicant
The applicant provided media reports of attacks in Kenya by Al Shabaab and by masked men, as well as indiscriminate shots fired by police into a crowd. These are reports of incidents that occurred several years back.
Tribunal hearing – 29 July 2024
The applicant appeared before the Tribunal on 29 July 2024 to give evidence and present arguments. A summary of the applicant’s evidence is provided below:
·The applicant lodged his protection visa with the assistance of his authorised legal representative at the time. All the claims he made in his application were true and correct at the time of lodgement.
·Before coming to Australia, he lived in Garissa, Kenya. It is one of the major towns in the Northeast Province in Kenya. It is a border town with Somalia. The borders are very fluid there.
·He is not married. He is single. He has three Australian citizen children in Australia.
·His mother and father acquired Kenyan citizenship by naturalisation when they came to Kenya. He has lived all his life in Garissa before coming to Australia. He was born in Garissa. He is a Kenyan citizen as a result of his parents being Kenyan citizens. He acquired his Kenyan National Identity Card at the age of [age] or [age]. His parents are still alive.
·He stated that Somali Kenyans have to pay a lot of money to acquire a Kenyan National Identity card through bribes even though they should be entitled to get it through their citizenship. The applicant does not have a Kenyan National Identity Card and his passport has long since expired.
·His father worked as an employee with [Organisation 1]. [Details about this work deleted].
·He is identified as Ogden Abdulwak and is Somali by ethnicity.
·The Kenyan community, police and government see him as a Somali Kenyan as a result of his appearance and the region that he lives in. In response to why he fears returning to Kenya, he stated that his region is not seen as being part of Kenya. The Somali Kenyans (which he belongs to) have been marginalised and persecuted and treated as second class citizens. This is still happening. It is not safe for him to return there. He was always being stopped by the police and security checked. He was always asked for his identity card. He was told by the police that they did not believe that the identity card was a real card and that it was fake. They would take him away for questioning and on some occasions, put him in a holding cell, and wait until his father came to bail him out. It was a way for the police to make money. There were checkpoints through Garissa. He would have to go through these and show them his identity card. He would always have to show them his identity card.
·When asked why it was that he was able to complete his education even though he was Somali Kenyan, he stated that he completed his secondary schooling at a private secondary school and not a State-run school which would have been different for him if he did. He understands that state run secondary schools do restrict Somali students from attending.
·When asked why he fears harm if he returns to Garissa when country information suggests that 36 per cent of the North-eastern province are Ogaden, he stated that it is this very percentage in that region that results in their being discriminated against. It is a historical issue between Kenyans and Somali. A majority of the Kenyan population is Christian and Somali are Muslim, particularly in Garissa. This means that there is a greater reason for them being targeted.
·The Tribunal asked why he would have any difficulty returning to Kenyan if he was a Kenyan citizen notwithstanding that he has no National Identity Card. He stated that if he did not have an identity card then there is a much greater chance that he will be imprisoned for being perceived as a Somali as he has nothing to prove otherwise. If he does not have a National identity card, they will jail him and there would be a real chance that he will be deported as a Somali even though he is not. He is of Somali descent and he comes from Garissa so it greatly increases the suspicion that he is Somali. It has been 12 years since he had a National identity card. He has been in Australia for 12 years. If he was to arrive to Kenya by plane into Nairobi, he would be taken aside and questioned about why he was abroad for 12 years. He would be asked to produce his National Identity card. It would be noted on any passport that he was born in Garissa. He would definitely be targeted and taken away and detained. If he did not have a national identity card on him they may deport him to Somalia notwithstanding that he would have a Kenyan passport. The applicant stated that as a Somali Kenyan, if he did not have a National Identity card, life would be made very difficult for him. Police would harass him and detain him. He would not be able to find work. He would not be able to travel through the checkpoints in and around Garissa. The police will always be suspicious of him given his Somali appearance and where he is from in Garissa.
·When asked how he would travel back to Garissa if he arrived in Nairobi, he stated that he would have to catch a bus which was an 8-to-9-hour journey. He would have to go through a number of checkpoints on his way to Garissa. At each checkpoint, people are asked to hop off the bus and their identity cards are checked. If he does not have one, then he will be detained, and he does not know what will happen then. He is afraid of what might happen to him here.
·When asked whether things would be different if he flew into Wajir (near Garissa) from Nairobi, instead of travelling by bus, the applicant stated that the same problems arise. He will have to show a valid identity card at both Nairobi airport and at Wajir airport. Again, if he does not have one, then he will be detained indefinitely and possibly removed.
·When asked why being away from Kenya for 12 years would be an issue for him, the applicant stated that the suspicion would be increased dramatically if he did not have an identity card. Because he looks Somali and because he can be identified as coming from Garissa, this just compounds his fear and the real chance of him being targeted by police and security forces. The authorities are already suspicious of Somali Kenyans given the attacks by Al Shabaab in Nairobi at Westgate and at the university there several years ago. The length of time will only mean far more scrutiny being given to him by the police and authorities. Also, the Kenyan people feel angry to Somali people. He is a stranger among them having been away for such a long period of time. He will therefore be targeted.
·When asked why he did not apply at the first available opportunity, he stated that he did not realise that his student visa had been cancelled. He only found out about it when he went to check on his visa status. He only became aware of a protection visa in 2015 when he applied.
·He stated that he stays in touch with his family in Garissa. They tell him that it is getting much worse in Garissa. Police come and arrest Kenyan Somali’s and residents have even been shot by police. His family have been pastoralists for a long time. They keep [animals]. This has been their business. They have land as a result. This has been one of the reasons for the deadly family dispute.
·When asked why he fears that Al Shabaab would harm him, he stated that Al Shabaab believe that Kenyan Somalis are traitors because they now live and work in Kenya. Therefore, they are targeted by Al Shabaab. They attack and kill Kenyan Somalis. They put Somali Kenyans (who are citizens) in bad light with the government because the government believes that the attacks are made by Somali Kenyans and not by Al Shabaab.
·The applicant stated that he has been on a Bridging visa E since 2015 and has had no work rights since that time. He has been supported by different organisations in [Australia].
·The applicant has three Australian citizen children in Australia aged [age], [age] years and [age] years respectively.
·The applicant has not approached the Kenyan embassy about a passport or about anything because he knows that they will not treat him with well. He does not want to let them know that he has been out of the country for 12 years.
Analysis, Reasons and Findings

The Tribunal has read the delegate’s decision and listened to the Department interview with the applicant. The Tribunal has read the applicant’s application and considered the submissions made by his authorised representative with attachments in support of the applicant’s application.
The Tribunal found the applicant to be a credible witness at the hearing. His claims and evidence were consistent with his protection visa application, the Department interview and independent country information that the Tribunal had before it. The applicant was able to answer the questions with detail when they were asked of him. The applicant presented his evidence in a way that did not lead the Tribunal to have doubts about the genuineness of his fear of returning specifically to Garissa, Kenya (where he has lived all his life prior to coming to Australia) for reasons of his race. The Tribunal has given very careful consideration to the most recent country information relating to persecution of persons who are Ogaden-Abduwak or Somali Kenyans in Garissa, Kenya which lie in the border region of North-eastern Kenya. The Tribunal has also given careful consideration to country information that was before the Department which has been dovetailed by more recent country information (discussed below), which was not before the Department at the time of its decision.
The Tribunal found the applicant’s evidence to be highly consistent with independent country information before the Tribunal. The applicant provided consistent oral and written evidence about his fear of what harm he will face if he returns to Garissa in Kenya after being away, overseas, for 12 years and returning without a National Identity Card. The Tribunal accepts that the applicant has a subjective fear of suffering serious harm at the hands of Kenyan police, security forces and government officials for reason of being a person who is Ogaden-Abduwak or Somali Kenyan having lived all his life in the Garissa region in North-eastern Kenya, who has been abroad for 12 years without returning and who does not have Kenyan National identity card.
The Tribunal has considered cumulatively the evidence of the applicant’s Ogaden-Abduwak and Somali ethnicity living in Garissa, his living overseas out of Kenya for 12 years, his lack of a Kenyan National identity card that the applicant has not had since coming to Australia, and, if returned, his requirement to travel either by bus from Nairobi airport to the border region of Garissa via several Kenyan checkpoints or by plane from Nairobi airport to Wajir airport (near Garissa) where he would be security checked at each stop over. The Tribunal has looked at these claims and evidence cumulatively.
The Tribunal accepts on the evidence that the applicant is a person who is Ogaden-Abduwak or Somali Kenyan ethnicity and that he has been living all his life in the border region of Garissa in North-eastern Kenya. It accepts that he was born to Somali parents who were naturalised Kenyan citizens when they arrived in Kenya. It accepts on the evidence that the applicant has been subject to discrimination and harassment by Kenyan police and authorities while living in Garissa and that he was required to have a national identity card on him wherever he went. It accepts his evidence that he was stopped, harassed and checked by police on many occasions because of his Somalian appearance and because of where he lived and that he was required to produce his Kenyan National identity card as proof of who he was. It accepts that he has been living outside of Kenya for 12 years. It accepts that if he was to return to Kenya, he will have to find his way back to Garissa either by bus or by plane and that he would be security checked at several different checkpoints and asked to produce a Kenyan National identity card, which he does not have.
The Tribunal has considered, as relevant, independent country information that certain Muslim communities, especially ethnic Somalis in areas along the Somalia border, continued to be the target of government-directed anti-terrorism activities, such as extrajudicial killings, enforced disappearances, torture, arbitrary arrest, detention without trial, and denial of freedom of assembly and worship.[1]
[1] ‘2019 Report on International Religious Freedom: Kenya’, US Department of State, 10 June 2020
The Tribunal notes that country information indicated that official discrimination targeting people of Somali Kenyan profile generally intensified following the beginning of Al-Shabaab activities in Kenya from around 2011 onwards. Subsequently, a form of what many commentators refer to as ‘collective punishment’ followed, in which Kenyan authorities targeted Somalis in a manner some sources have described as indiscriminate, attributing to Somalis a risk-profile based on perceived links to Al-Shabaab. Sources indicated that this approach shifted following the attack on Garissa University in 2015, to one which sought to build ties with the Somali community.[2]
[2] For reports documenting forms of indiscriminate targeting of Somalis by security forces as part of wider counter-terrorist operations see: '2017 Annual Report', United States Commission on International Religious Freedom, 26 April 2017, p.200; 'Deaths and Disappearances - Abuses in Counterterrorism Operations in Nairobi and in Northeastern Kenya', Human Rights Watch, 20 July 2016; ‘Insult to Injury: The 2014 Lamu and Tana River Attacks and Kenya's Abusive’, Human Rights Watch, 15 June 2015.
The Tribunal notes that the UK Home Office stated: “Ethnic/national minorities, such as the Nubians and Somalis, are not recognized as such by the Kenyan government and have problems accessing citizenship documents”.[3] More generally, a 2017 report notes the scarcity of government services in Garissa County: “More broadly, many Somalis and Muslims still feel like second-class citizens in Kenya. To make progress on the integration of Somalis and Muslims, the long-term marginalisation of Garissa has to be rapidly addressed – including tackling such issues as unemployment, weak infrastructure and poor service provision”.[4]
[3] Country Background Note: Kenya', UK Home Office, 20 May 2020, p.10,
[4] Inside Kenya’s war on terror: breaking the cycle of violence in Garissa', Saferworld, Christopher Wakube, Thomas Nyagah, James Mwangi and Larry Attree, 28 July 2017
The Tribunal has considered more recent independent country information relevant to the applicant’s situation back in Garissa, Kenya, and in particular to recent independent country information which clearly points to persecution involving systematic and discriminatory conduct towards Somali Kenyans including persons who are Ogaden-Abduwak. Moreover, the Tribunal is mindful of the fact that the applicant has been away from Kenya for 12 years and that this is a significant prolonged period of time. This will no doubt draw particular attention to him upon his return, given his Somali ethnicity, his lack of an identity card and that he was born and has been a lifelong resident from the troubled area of Garissa in Northeast Kenya. The Tribunal has considered the following independent sources in coming to this conclusion.
The Tribunal notes an independent study relating to Kenya’s treatment of Kenyan Somalis, particularly in the North East region of Kenya:
People had been leaving Somalia for Kenya since the 1970s as the Barre regime became increasingly restrictive (Lochery, 2012). The biggest group of the Somali population in Kenya live in the North East of Kenya, bordering Somalia and Ethiopia (Scharrer, 2018). Virtually all Somalis in Kenya are Muslim (Menkhaus, 2015). Kenyan Somalis share their socialisation with other fellow Kenyans but are treated as if not quite belonging to Kenya (Scharrer, 2018). The way in which the Kenyan state has historically viewed and treated the Somali population has contributed to the ‘othering’ of Kenyan Somali citizens, placing their lived experience of citizenship and the equality of rights at risk (Lind et al., 2015).[5]
[5] EIR_36_Conflict_analysis_of_Northern_Kenya.pdf (cve-kenya.org), pg.14.
The Tribunal notes that the Ogaden clan are one of several ‘Somali’ clans resident in stretches of Kenya, with most sources typically referring to ‘Somali’ Kenyans or Muslim Kenyans rather than specifying clan identities. Somali/Ogaden people reportedly comprise 36 percent of Kenya’s Northeastern province.[6]
[6] 'Ethnicity and Politicization in Kenya', Kenya Human Rights Commission, May 2018, p19,
(quoting a 2004 source).
Minority Rights Group International writes that the Ogaden are one of several Somali clan groups who inhabit the northern parts of Eastern Kenya, noting in a 2018 report that these clan groups perceive themselves to be treated as ‘second-class citizens’:
Somali-speaking pastoralists attracted the greatest government hostility under the Moi regime [1978- 2002]. The eastern parts of northern Kenya are traditionally inhabited by Somalis of the Degodia, Ajuran and Ogaden clans. These areas have long been claimed by Somalia, with disavowals having limited impact on Kenyan suspicions. The inhabitants voted to secede from Kenya in a referendum held shortly before independence in 1963. The results were ignored by the incoming government, leading to a three-year secessionist war. A mixture of secessionist insurgency, inter-ethnic and clan warfare, and outright banditry has characterized the region ever since. The 1977-8 war between Ethiopia and Somalia, and the civil war in Somalia in the 1990s, which created over a quarter of a million refugees, have led to armed incursions from Somalia and exacerbated instability.
Hostility between Somalis and the authorities have led to continuous conflict over efforts to control movement, such as the impounding of cattle, resulting in extremely serious abuses, including massacres in Garissa in 1980 (300 people) and Wajir in 1984 (up to 2,000) and 1987 (300). The impact of such killings affects all Kenyan Somalis – including those long-resident in urban areas – who feel themselves treated as second-class citizens. A specific grievance was the requirement since 1989 for Kenyan Somalis to carry a separate pink identity card, in addition to the national identity card carried by all Kenyans. This was ostensibly to distinguish them from Somali refugees, numbering about 220,000, who also suffered abuse at the hands of the authorities, including alleged rape by soldiers.[7]
[7] 'Kenya: Pastoralists', Minority Rights Group International (MRG), 31 January 2018,
More generally, a 2017 report notes the scarcity of government services in Garissa County:
More broadly, many Somalis and Muslims still feel like second-class citizens in Kenya. To make progress on the integration of Somalis and Muslims, the long-term marginalisation of Garissa has to be rapidly addressed – including tackling such issues as unemployment, weak infrastructure, and poor service provision.[8]
[8] Inside Kenya’s war on terror: breaking the cycle of violence in Garissa', Saferworld, Christopher Wakube,
Thomas Nyagah, James Mwangi and Larry Attree, 28 July 2017,
The applicant has also made claims about his fears of the harm he will face if he returns to Kenya and to Garissa without a Kenyan National identity card. The Tribunal has considered independent sources which indicate that acquiring identity cards is a particular challenge for Muslim/Somali Kenyans in Garissa, blocking opportunities to access services and employment opportunities:
A knock-on effect of the tense security environment and the high refugee population is that many people in Garissa find that “getting an ID is almost impossible”. Security concerns led the government to close the Garissa regional passport office in September 2014. For most Kenyans, proof of your parents’ nationality is required, but local Somalis complain that they are required to produce proof of their grandparents’ identity too. As ISS have noted, this is a significant reason why Kenyan Muslims feel discriminated against.
This issue matters a great deal. Even for those who have ID, checkpoints and random searches make moving freely a challenge. Without proof of identity, there is no chance of a job as a teacher, a policeman, a soldier or a civil servant, and it is difficult to access government services. As a group of young people explained to us, “There is a general marginalisation from the national government on issuing IDs, education and health programmes”.[9]
[9] 'Inside Kenya’s war on terror: breaking the cycle of violence in Garissa', Saferworld, Christopher Wakube,
Thomas Nyagah, James Mwangi and Larry Attree, 28 July 2017,
The Tribunal finds that this report is consistent with the applicant’s fears of what will happen to him if he returns without an identity card, and that he will face significant challenges in acquiring a new one (having been away from Kenya for 12 years, having been born and lived all his life in Garissa and being a Somali Kenyan) if he is to survive and move freely in and around Garissa, Kenya. The Tribunal finds that there is a real chance that the applicant will be denied essential services and employment if he is not able to obtain an identity card when returning to Garissa, Kenya given the country information before it. The Tribunal finds that there is a real chance that he will be questioned and detained by Kenyan authorities for not having a national identity card on him.
The Tribunal also notes a report from the UK Home Office which states:
Ethnic/national minorities, such as the Nubians and Somalis, are not recognized as such by the Kenyan government and have problems accessing citizenship documents.[10]
[10] ‘Country Background Note: Kenya', UK Home Office, 20 May 2020, p.10,
The Tribunal has accessed recent and credible independent reports on systematic and discriminatory conduct to Somali Kenyans from Kenyan police, security forces and Kenyan authorities, as well as systematic and discriminatory conduct on not issuing National Identity Cards to Somali Kenyans.
The Tribunal notes that the stipulation that all voters possess a National Identity Card hinders historically marginalized groups from obtaining greater access to the political process, particularly the nearly seven million pastoralists from the upper Rift Valley and North-eastern Province. There are significant implicit barriers to the participation of non-Christians in national politics. Somali Kenyans, especially in Nairobi’s Eastleigh community and in coastal and North-eastern areas, have been the target of government crackdowns ostensibly combating the Shabaab militant group, and are underrepresented politically.[11]
[11] Kenya: Freedom in the World 2024 Country Report | Freedom House
The government generally respects the constitutional guarantee of freedom of religion. However, counterterrorism operations against the Somalia-based Shabaab militant group have left Muslims exposed to state violence and intimidation. Shabaab militants have at times specifically targeted Christians in Kenya.[12]
[12] Kenya: Freedom in the World 2024 Country Report | Freedom House
Following their 2019 terrorist attack on the DusitD2 complex in Nairobi, which killed over 20 people, Shabaab has continued to pose a security threat, with militants threatening to continue attacks until Kenyan troops withdraw from Somalia. Kenya experienced a string of attacks by Shabaab in mid-2023, including the killing of eight police officers in Garissa County in mid-June and five civilians in Lamu County in late June.[13]
[13] Kenya: Freedom in the World 2024 Country Report | Freedom House
In response to its own question “Do laws, policies, and practices guarantee equal treatment of various segments of the population?”, the Freedom in the World 2024 Country Report on Kenya answered:
Reports of police abuses against refugees and asylum seekers continue. Somali Kenyans are often stereotyped as refugees and terrorists and have been targeted by government crackdowns as a result. Coastal communities have long experienced government underinvestment and political marginalization, resulting in worse educational, health, and economic outcomes in the region.[14]
[14] Kenya: Freedom in the World 2024 Country Report | Freedom House
In response to its own question “Do individuals enjoy freedom of movement, including the ability to change their place of residence, employment, or education?”, the Freedom in the World 2024 Country Report on Kenya answered:
While the constitution provides protections for freedom of movement and related rights, they are impeded in practice by security concerns and ethnic tensions that lead many residents to avoid certain parts of the country.[15]
[15] Kenya: Freedom in the World 2024 Country Report | Freedom House
According to responses to Information Requests from the Research Directorate, Immigration and Refugee Board of Canada (dated 27 July 2023):[16]
[16] Responses to Information Requests - Immigration and Refugee Board of Canada (irb-cisr.gc.ca)
Obtaining a National Identity Card
Sources indicate that the Kenya national ID card is "mandatory" (Lawyer 2023-07-07; The Citizen 2023-02-23). Sources note that upon turning 18, Kenyan citizens are "expected to" (Lawyer 2023-07-07) or "must" apply for the card (The Citizen 2023-02-23). In correspondence with the Research Directorate, a Kenya-based lawyer stated that the ID card cannot be obtained by third parties (Lawyer 2023-07-07).
According to an article by the Citizen, a Tanzania-based newspaper, the national ID card is free and has no expiration date (The Citizen 2023-02-23).
According to the lawyer, the ID is a basic document of personal identification and the "foundation for KYC [Know Your Client] requirements," as well as being required when applying for a passport for individuals over 18 (2023-07-07). According to Freedom House, a national ID card is required to vote (2023-03-09, sec. B4).
1.1 Challenges
Freedom House notes that all voters must have a national ID card, which "hinders historically marginalized groups from obtaining greater access to the political process" (Freedom House 2023-03-09, sec. B4). The New York Times states that the "government has long made it harder — or even impossible — for members of some ethnic groups, among them Nubians, Somalis, Maasais, Boranas, Indians and Arabs, to apply for the documents required for national ID cards" (emphasis added); additional requirements may include asking for land titles, being questioned by security agents and restricting the days of the week or "certain seasons" when they are allowed to apply, resulting in "at least" five million people being affected (The New York Times 2020-01-28). The article further notes that "[m]any" individuals in towns and villages outside of Nairobi and other "major" cities are far away from their local registration centres or experience "longer" waits as these registration centres are "overwhelmed" (The New York Times 2020-01-28).
According to a report by the Kenya Human Rights Commission (KHRC) summarizing a 2019 meeting on IDs attended by the KHRC, UNHCR and Kenyan legislators, "many" youth face "challenges" when trying to apply for identity cards (KHRC 2019-01, 6). The same source notes that there is no "clear cut standard" for applying for registration documents (KHRC 2019-01, 6).
Regarding supporting documents required for the national ID card, the KHRC report notes that Kenyans face the following challenges when obtaining proof of their citizenship:
Proof of citizenship by birth to a parent with Kenyan citizenship: a birth certificate is not proof of citizenship as it does not indicate the parent's citizenship; a "document of proof from either or both parents" is required, and if there is "doubt," the applicant must provide such proof going back "several generations."
Proof of citizenship by registration: For individuals who are married to a Kenyan citizen, obtaining the necessary papers is a "challenge due to the bureaucracy and duration" resulting in "[s]ome" individuals "resor[ting] to dubious means" such as "corruption" to get the required registration documents (KHRC 2019-01, 1, 5, 6).

The US Department of State 2023 Country Report on Human Rights Practices: Kenya reported on discrimination based on race in Kenya:
The constitution prohibited discrimination against any person based on race, but enforcement of laws prohibiting discrimination was inadequate, according to human rights groups. Societal discrimination against persons of different racial and ethnic groups was common.[17]
[17] USDOS – US Department of State (Author): “2023 Country Report on Human Rights Practices: Kenya”, Document #2107746 - ecoi.net
The US Department of State 2022 Report on International Religious Freedom on Kenya states:
The constitution stipulates there shall be no state religion and prohibits religious discrimination. The constitution provides for freedom of religion and belief individually or in communities, including the freedom to manifest any religion through worship, practice, teaching, or observance and to debate religious questions. The constitution further provides for special qadi courts to adjudicate certain types of civil cases based on Islamic law.
Human rights and Muslim religious organizations stated that certain Muslim communities, especially ethnic Somalis, continued to be the target of extrajudicial killings, enforced disappearances, torture, arbitrary arrest, and detention. Many of the victims were from the coastal region and Nairobi. The prior government denied directing such actions. The new government elected in August, however, acknowledged that certain security forces conducted extrajudicial killings in the past and pledged reforms. In July, the Registrar of Societies released strict new guidelines for the registration of new religious societies, including the requirement that applicants must hold a diploma or degree from a recognized theological institution.
The Somalia-based terrorist group Harakat al-Shabaab al-Mujahideen (al-Shabaab) carried out attacks in the northeastern part of the country and in the coastal region, and some attacks may have targeted non-Muslims because of their faith. Muslims from ethnic minority groups, particularly those of Somali descent, reported continued harassment by non-Muslims.[18]
[18] USDOS – US Department of State (Author): “2022 Report on International Religious Freedom: Kenya”, Document #2091948 - ecoi.net
Further on, under the heading “Government Practices” it has been reported:
Some predominately Muslim ethnic groups, including Kenyan Somalis and Nubians, continued to report difficulties obtaining government identification cards. These communities stated government officials at times requested supporting documents not required by law and implemented vetting processes in a biased manner.
During the year, there were reports that non-Muslims generally continued to harass or treat with suspicion persons of Somali ethnicity, who are predominantly Muslim. Police officers typically did not serve in their home regions, and therefore officers in some Muslim-majority areas are largely non-Muslim. NGOs stated this often led to misunderstandings between police officers and the communities they served.[19]
[19] USDOS – US Department of State (Author): “2022 Report on International Religious Freedom: Kenya”, Document #2091948 - ecoi.net
Given all the country information before it, and the applicant’s own credible evidence, the Tribunal accepts, looking at all the evidence cumulatively, that there is a real chance that the applicant will suffer serious harm from police and security forces as a person of Ogaden-Abduwak and Somali ethnicity, who has lived and grown up in the North-eastern area of Garissa, who has lived outside of Kenya for 12 years, and who has not had a valid Kenyan National identity card since coming to Australia, if returned in the reasonably foreseeable future. Moreover, the Tribunal accepts that there is a real chance that the applicant will suffer serious harm as a person of Ogaden-Abduwak and Somali ethnicity, who has lived and grown up in the North-eastern area of Garissa, who has lived outside of Kenya for 12 years, and who has not had a valid Kenyan National identity card since coming to Australia if returned, as he would come to the attention of police and security forces at one of the number of checkpoints between Nairobi and Garissa (were he to return to Garissa by bus from Nairobi) or at one or both of the security checks at Nairobi and Wajir airports (were he to return home by plane after arriving in Nairobi).
Given that the applicant has not lived anywhere in Kenya but in Garissa, given that he is person of Ogaden-Abduwak and Somali ethnicity and is identified as such, and given that the serious harm he fears will come from security forces or police anywhere in the country, the Tribunal finds that the real chance of persecution relates to all areas of Kenya.
The Tribunal is satisfied that the persecution will be directed at the applicant for the essential and significant reason of his race, it involves serious harm to him and that it involves systematic and discriminatory conduct that is deliberate or intentional and that it involves a threat to his life or liberty, significant physical ill-treatment and significant physical harassment.
The applicant is not able to seek protection of the authorities of Kenya as it is the Kenyan authorities who are the agents of persecution. On this basis, the Tribunal finds that effective protection measures are not available to the applicant in Kenya.
The Tribunal finds that the applicant cannot take reasonable steps to modify his behaviour so as to avoid a real chance of persecution in Kenya because a modification would require him to conceal his true race or ethnicity.
The Tribunal finds that the applicant is outside the country of his nationality and, owing to a well-founded fear of persecution, he is unable or unwilling to avail himself of the protection of that country. Therefore, the Tribunal finds that he meets the definition of refugee in s 5(H)1 of the Act.
As the applicant meets the definition in s 5H(1), the Tribunal is satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
As the Tribunal has found that the applicant meets the refugee criterion in s 36(2)(a) of the Act, it is not necessary to consider whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
Conclusion
For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Clyde Cosentino
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.
…

[2024] AATA 4184

1 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Standing