2113682 (Refugee) - [2024] ARTA 634

2113682 (REFUGEE) [2024] ARTA 634 (13 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2113682
Tribunal:General Member B Butler
Date:13 November 2024

Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(b)(i) of the Migration Act.

Statement made on 13 November 2024 at 1:09pm
CATCHWORDS
REFUGEE – protection visa – Kenya – ethnicity – Indian – discrimination, attacks, electoral violence and bribery – business owner perceived as wealthy – member of neighbourhood watch group harassed, detained and beaten by police – mental health – inconsistent claims and evidence – country information – relatively stable political situation – general socio-economic conditions, including for Indians – protection visa application and review application made with wife and child – relationship ceased, intervention order and reviews separated – wife and child accepted as refugee – applicant as member of family unit of child – intervention order not relevant consideration – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5CA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (b)(i), (2A), 65
Migration Regulations 1994 (Cth), rr 1.03, 1.12(3)(a), (4)(b)(i), Schedule 2
CASES
AWC21 v MHA [2022] FCA 1568
GLD18 v MHA [2020] FCAFC 2
SZRSN v MIAC [2013] FMCA 78; [2013] FCA 751
SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362
WZARI v MIMAC [2013] FCA 788
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

The applicant is a [Age]-year-old man who is a national of Kenya of Indian ethnicity. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant him a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 9 January 2017. The applicant’s wife and son were also included in the visa application. The delegate refused to grant the visa on 17 September 2021.
On 7 October 2021, the applicant, his wife and their son together lodged an application for review of the delegate’s decision with the former Administrative Appeals Tribunal (the AAT).
On 6 September 2024, the AAT was informed that the applicant and [Ms A]’s relationship had broken down, a Family Violence Final Intervention Order had been made on 9 July 2024 with the applicant’s wife and son as protected persons (which ceased on 8 December 2024), and that [Ms A] and her son were living separately from the applicant. [Ms A] also appointed a different representative for herself and her son, and requested that her and her son’s review applications be separated from the applicant’s review application.
Given the circumstances, the review applications were separated. This review application before me concerns [the applicant] only.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the ART or the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal.
The applicant appeared before the Tribunal on 21 October 2024 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
BACKGROUND
Evidence before the Department
The applicant had a representative when he lodged his protection visa application. This was a different representative from his current representative.
In his protection visa application, the applicant set out his protection claims, which are summarised as follows:
·He left Kenya in 2008 as the security situation was deteriorating and discrimination was increasing against Indians. He had to remain in lockdown at his house during elections. Indians were also targeted in a terrorist attack in Kenya. He didn’t want to raise his child in an unsafe place, so he decided to leave Kenya.
·The situation became worse the year the visa application was lodged (2017). The applicant’s brother told him not to return to Kenya as it is not safe. Indians are targeted and harmed by criminal gangs because they are seen as wealthy.
·Indians also face discrimination and harm from the authorities. He did not seek help from the authorities as they are corrupt.
·He was threatened and mugged at gunpoint for his wallet in 2005.
·He was also caught up in violence during the elections in 2008. When he was returning home from work, protesters threw stones at his car and were holding machetes. He believes he is at greater risk of harm as an Indian.
·There is no safe place for Indians in Kenya, and it happens all over the country.
·He fears being harmed by criminal gangs, terrorists and the Kenyan authorities if he returns to Kenya. He also fears being required to pay a bribe at the airport because Indians are targeted.
In a statutory declaration dated 28 May 2018, the applicant provided further details about incidents of harm he claimed to have experienced in Kenya, which are summarised as follows:
·During 2008, there were significant protests around the general election period. Protests can become violent. He was returning home from work with his father when the protests started. The protests became violent and the police came. He and his father had to hide. Protesters threw stones at their car and were holding machetes. There was an office building nearby and they ran into the building and waited there for four to five hours. He believes they are at greater risk because they are more easily identified.
·Indians in Kenya are targeted for being wealthy, and so are at a greater risk of being held up by criminal gangs and the police. People are paid cash on a Friday or Saturday and gangs know this and frequently rob Indian businesses. The husband of one of his school mates was shot dead in an incident the year before.
·In 2011, in another incident, the watchman of their flat was kidnapped by four men with AK-47s along with two other tenants. They rent out their flat to Indians, and this couple were kidnapped and robbed.
·He was detained in 2003 or 2004 and had to pay money to secure his release.
·His father has passed away. His father had a business which was doing very well, and he had a lot of money. He thinks this is why his family have been singled out for attention by the authorities of Kenya. He also had an uncle who was deported from Kenya for speaking out against the government when the applicant was very young.
·His sister in law’s uncle owned a [business] and was killed in 2006 by thugs hired by an employee. The employee was injured at work and was not satisfied with the compensation offered, and so he hired thugs to kill the uncle because he was wealthy.
·He was subjected to attention in 2015 when he returned to Kenya for his father’s funeral. He had to pay a bribe at the airport. He also had to pay a bribe on his way back from India. He thinks he is targeted because he is an Indian.
·In 2015, he had to pay a bribe to a traffic cop. He was also targeted on another occasion on a public bus and mugged for his phone, gold chain and money.
·His friend was recently subject to an attempted robbery.
·The situation has become worse over the last 15 years for Indians and business owners, who are subject to racism and discrimination by the government and general public. He doesn’t think he can relocate as Indians are targeted throughout the country.
The applicant was interviewed by the delegate in respect of his protection claims. After the interview, he provided another statutory declaration dated 18 August 2021. In this statutory declaration, he sought to clarify parts of his claims for protection. This is summarised as follows:
·He provided information to his previous legal representative who prepared and submitted his protection visa application about his issues with the police in Kenya, about an occasion in 2003 in which he was detained and an incident in 2005 when he was stopped by police and a gun was planted in his car. He doesn’t know why the representative did not include this information in his initial application. He acknowledged that the statutory declaration he signed did not include this information, but he was under the mistaken belief that it would be added at a later date. He was made aware that his application did not include this information when a different lawyer at the firm took over the file. He brought up the incidents during his interview with the delegate.
·In relation to the 2005 incident, he was driving to work when he noticed that two cars were following him. They were known to be vehicles driven by plainclothes policemen. Four men got out and they had AK-47s. He got out of the car and the men said they had stopped him because they knew he had been in the neighbourhood watch group, and they wanted him to stop all his activities with the group. They identified themselves as police, threatened him and told him to stop working with the group. They also planted a gun in his car and falsely claimed they had found it on the seat of his car. He denied having a gun and said that the neighbourhood watch group did not carry guns. They eventually allowed him to leave. He drove to the temple, and was followed by the cars. He waited at the temple for several hours and the police left during this time.
·In relation to the 2003 incident, he was detained for approximately three days at a police station. He was arrested while buying street food in the evening. He was handcuffed and taken to the [Suburb 1] Police Station. He was not told why he was arrested, and his ID was taken at around 6pm. His boots were taken, and he was left in a cell overnight with 25 other detainees. The next morning at 7am, a senior officer came to the cell and asked a junior officer to place him in another room. He was told that he had to pay a large bribe so that they would let him go. He said he hadn’t done anything wrong, and the police said that they knew he was in the neighbourhood watch group and accused him of having a gun when they arrested him. They said they could make big problems for him, and he again refused to pay the money. He was then put in a cell by himself, and 10 minutes later the officers returned with wooden batons. They beat him for 10 minutes. One of the officers told him to put his hands on the wall and held him in that position while the other officer beat him on his legs. He was then told to stand in the middle of the cell. One officer held him while the other hit him in the genitals with the baton. He was again told that he needed to pay them and was returned to the overcrowded cell. The next day the senior officer said to him that if he didn’t stop working with the neighbourhood watch group, they would kill him, and that they would find him and kill him wherever he was. In the evening he was released. An Indian man saw him, drove him home and then his family took him to a hospital. He remained in hospital for about a week. He had suffered bruising and a dislocated shoulder.
·He joined the neighbourhood watch group in 2003, and that it was five to six months after he joined that the 2003 incident (described above) occurred. He had misspoken at the delegate interview when he said he joined the neighbourhood watch group in 2004 or 2005.
The delegate found that [the applicant] would not suffer treatment amounting to serious harm in Kenya, and was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Kenya, there was a real risk he would suffer significant harm.
Evidence before the Tribunal
Pre-hearing material
Before the hearing, the representative provided a submission, which I have considered.
The applicant provided a statutory declaration dated 11 October 2024, which provides further details on his claims for protection. This is summarised as follows:
·The applicant and his wife separated [in] August 2024. He is going through a difficult time in his life due to the breakdown of his marriage, his uncertain status in Australia and the fear of returning to Kenya. He also fears being separated from his son.
·His circumstances have affected his mental health. He has been feeling depressed, anxious and suicidal. He has been receiving support.
·He does not have Indian citizenship or a right to live and reside in that country.
·Indians are discriminated against in Kenya, despite having lived there for generations, and are perceived as outsiders. Indians are also targeted because they are perceived as wealthy. The Indian community owns a lot of businesses, and Indian-Kenyans are disproportionately targeted for violent crimes such as robberies and kidnappings.
·His father’s business was successful and they were targeted for robberies on several occasions. He worked for his father’s business from 2002 to 2008. He was personally present on two occasions when his work vehicle was held up by criminals demanding they hand over workers’ salaries to them. The first time was in 2005. Six men approached him with AK-47 guns and demanded the money. He hesitated and one of the men held the gun close to his head. His father told him to give them the money. The second time it happened was in 2006. He didn’t hesitate to give them the money the second time. They reported these incidents to the police but no action was taken.
·In approximately 2003, he joined a neighbourhood watch group. It was set up by an Indian ex-police officer named [Mr B], and its purpose was to address crime perpetrated against Indians in the [Suburb 1] area of Nairobi. It was called the [Group name]. He signed up to join the group with two of his friends, [Mr C and Mr D]. The three of them made [a] Division of the group. They would patrol the area in pairs in a car, and if they saw any incidents they would report them to a special division of the police called the ‘Flying Squad’, with which [Mr B] had established a relationship. He reported a number of crimes, including a carjacking, a robbery at a shop, and the kidnapping of an Indian man. Some crimes they saw themselves and others were reported to them, and they reported them to the police. Despite [Mr B]’s relationship with the police, the police did not take action.
·After joining the neighbourhood watch group, he started being harassed by the police, who threatened him and told him to stop his involvement with the group. He thinks that the police officially agreed to receive reports from the group, but the police are corrupt and many police are involved in criminal activity themselves or taking money from criminals. He believes that the corrupt officers did not want their criminal involvement to be uncovered.
·The applicant also referred to the 2003 incident in which he claimed that he was detained by police and assaulted, and the 2005 incident in which his car was stopped by plainclothes police and was eventually allowed to leave (these incidents are summarised above). After the 2005 incident, he left the neighbourhood watch group as he considered it was too dangerous and he was putting himself and his family in danger. Other members of the group also had similar experiences and decided to leave. The group was disbanded because [Mr B] recognised it was too dangerous to continue.
·He claimed that the harassment and threats continued. On numerous occasions the police stopped him and said that they knew he was part of the neighbourhood watch group. He told them he was no longer part of the group but the did not care, they demanded money and because of who his father was (with a successful business), he was a target.
·He married his wife in [Year] in India. They returned to Kenya in May 2006. He hoped that because he had been away for a little while, the police would have forgotten about him, but the threats and harassment continued. After his son was born in [Year], he decided they should flee the country and he looked for visa options.
·The election violence of 2008 further strengthened his conviction that his family was not safe in Kenya.
·He referred to incidents in 2015 when he returned to Kenya and was required to pay bribes and also other incidents involving Indian-Kenyans (noted above in the summaries of his earlier statutory declaration).
·He did not realise that applying for a protection visa was an option earlier, and that is why he did not apply for a protection visa until 2017.
·He fears harm from the authorities and criminal gangs in Kenya because of his Indian ethnicity and because he has lived in Australia, and therefore he would be perceived to be wealthy. He also thinks he will be targeted by the authorities because he has been targeted in the past, and because they perceive him as someone who wants to expose their illegal activities. He also fears that he could be targeted by terrorist groups that target non-Muslims.
·He cannot obtain protection from the authorities as they want to harm him, and he cannot relocate as Indians are targeted throughout the country.
The hearing
At the hearing the applicant spoke of his experiences in Kenya and his mental health. He said he doesn’t understand why his son and his wife have left and that he talks to his son every so often.
He confirmed that his previous lawyers filled out the protection visa application based on what he told them.
He works in a [workplace] in regional Victoria and [does a job task]. He said that he entered Australia on a student visa, and his wife was the primary applicant.
He said he was born in Nairobi, Kenya. He has a brother and a sister who live there. He said they live in an area of Nairobi called [Suburb 2]. His mother is currently in India receiving medical treatment. He said that his father moved to Nairobi, Kenya when he was very young.
His brother is [an occupation 1] for a [workplace] and his sister’s husband is a supervisor in a [company]. His sister has worked off and on because of her health, and has recently been visiting Sydney.
He said his father’s [business] was very successful but that it was wound up in 2015 when his father passed away. His brother didn’t have [specified] knowledge to continue the business, and they thought there was too much risk continuing with the business.
He confirmed that he completed his education in the [Suburb 1] area of Nairobi, and while he completed a Diploma in [Subject], he wasn’t an office person. He joined his father’s company and worked for his father in 2002. He said that his role in the business was to [do job tasks].
I asked him whether he had faced any issues or harm in Kenya. He described being targeted by police when he was working in the business and having to pay a bribe to police if they alleged that the truck was overweight. He said that his truck was not overweight, but the police would sometimes stop him and ask for a bribe to allow him to continue. He said that he would sometimes ask them to weight it again and on one occasion, he had to pay a bribe.
He described the incident referred to in his statutory declarations where he was driving with workers’ salaries and was held up at gunpoint, and his father told him to hand over the money. He said that the incident happened as he was entering the company’s compound, and he said they would honk three times at the gate and the security guard would open the gate so that they could enter the compound but on this occasion they were not able to enter the compound in time. He said that they handed over security footage of the robbery to the police, and they investigated but couldn’t find the thieves. He said that the security footage did not show the number plates of the vehicles involved. I asked whether they had been able to make an insurance claim for the theft of the money. He said that the insurance company had asked for proof. He said that they had the withdrawal receipt for the funds from the bank and CCTV evidence but that wasn’t taken into account. His father told him the insurance company rejected the claim. He said that the company was targeted on a few occasions, and that he was present for another robbery. On the second occasion he handed over the money without question.

He also described being harassed by police, and described his involvement in the neighbourhood watch program, which he said was one of the reasons he was harassed.
He said he was a member of the group from 2002 to 2005, and so he performed tasks for them for three years. He explained how he joined the group, that it was set up by a [Mr B] who had connections in the police, and that they would report incidents to the ‘Flying Squad’ in the police. He said that he and his friends would cover an area of 50 to 60 kilometres. He said they patrolled the area from 6pm to midnight. The group was primarily set up to assist Indians.
I asked him how he was able to work for his father and also patrol parts of Nairobi at night for the neighbourhood watch group. He said that he started working around 6:40am for his father’s business, would finish at 5pm, go home and then start the patrol.
I asked him if he could tell me about his work in the patrol and if he could recall any particular incidents where he had to intervene. He said that he saw a supermarket being robbed, and that there were six to seven men walking inside with AK47 guns. He said they were at the supermarket because it had been targeted before.
He said that the Kenyan police themselves are corrupt, and that in Australia once a police officer finishes their duty, they leave their gun in the station, but in Kenya once they sign off, they give their guns to thugs and that thugs will then share their loot with police. I asked him how he knew this, and he said it was well known and has been reported in the media.
I asked him what the main objective of the neighbourhood watch group was, and he said that if they saw something, they were meant to report it, and they also helped people.
He said that he ceased his involvement because he was being harassed by police, and was detained by police. He could not remember when he was detained. He said he was coming home from work, stopped on roadside to get street food, and some police placed a gun in his car while he was talking to the police and they arrested him. He claimed they put him in a cell which was overcrowded with 25 people. They removed his shoes and kept for an hour. He said he was then taken to a different room where they hurt him with a baton. He said that he required medical assistance after this, and was traumatised. He said that he was kept for three days at the police station, they told him to leave the neighbourhood watch group and that they wanted a bribe but he did not pay a bribe. He described being beaten, and said he was traumatised by the incident.
I asked him what prompted them to let him go. He said he didn’t tell them he was going to leave the neighbourhood watch group, but that given the amount of beating he had received, he said they probably thought he would quit.
He said he was taken to the police station on another occasion, but the second time was for one hour, and that on that occasion they had said he had an illegal gun with him. He told them he didn’t have a gun, and said that he was told if he didn’t leave the neighbourhood watch group, they might kill him.
He continued with the neighbourhood watch group and thought the situation might change but he continued to be harassed and so he quit.
He said that he was the one who was harassed. I asked why his friends didn’t face problems and he said it was because he was the one who was reporting matters to the police, so he had a profile.
I asked him whether he had faced any other difficulties in Kenya. He said that in 2008 there were riots in Kenya and when they started, businesses would shut. He said that he was just about to get into the car and saw a big crowd approaching, and some people started hitting his car. He said he was hurt with a machete, he closed the car door quickly and drove even thought he was injured. I asked where he went. He said he went home, and then added he went to the hospital.
He also said that when he returned to Kenya in 2015 for his father’s funeral, he had to pay bribes. He was told at the airport he couldn’t take certain products into the country, but he knew they were allowed, and the officers just wanted a bribe.
I asked what he feared now if he returned to Kenya. He said he fears the police who harassed him, and that he thinks some of them are now in senior positions. He also said that, as he has been living in Australia for a long time, people will think he has money, and so he might be targeted. He said that there was a recent case where an Indian guy was shot dead even though he gave the thugs money, and it was later revealed that the police were the ones who shot him. He is also concerned about thieves, and said that people can be killed for a mobile phone. He added that Somalia is right next to Kenya, and there is also Sudan and South Sudan, and that people enter Kenya from those countries to steal cars. He said that they can shoot you and don’t give a warning. He also referred to the Westgate shopping mall attack, and said that some people were killed because they were Hindu and couldn’t recite the Koran.[1]
[1] Terror in Nairobi: the full story behind al-Shabaab's mall attack | Westgate mall attacks | The Guardian, 4 October 2013 ( accessed 13 November 2024.
He said that his brother and sister have told him that Kenya is not a good place to live. I asked whether they had faced harm. He said that where his brother lives and works is in a compound, so he doesn’t need to go out.
Post-hearing material
In a post hearing submission, the applicant’s representative submitted that inconsistencies between the applicant’s statutory declarations and oral evidence at the hearing should not affect his credibility. I identified at the hearing that the applicant had told me that he was beaten on the same day he was detained, in the evening, whereas in his statutory declaration he had stated that he was beaten the next morning, on the second day of his detention. He also referred to escaping harm at the riot in 2008 by driving home, whereas in his statutory declaration he said that he had entered a building with his father and they waited four to five hours before being able to leave.
The applicant’s mental health is reported to be poor because of the breakdown of his marriage to his wife. He also fears being separated from his son. The representative also submits that the applicant would face persecution in Kenya as a person with mental illness, and that if his mental illness became known, he may be denied employment. It was also submitted that because of stigma in the community around mental illness and the criminalisation of suicide, the applicant would be deterred from seeking support and disclosing his suicidal ideation.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have 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.
REASONS AND FINDINGS
The issue in this case is whether either applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or under the complementary protection criterion.
For the following reasons, I have concluded that the matter should be set aside and remitted for reconsideration with a direction that the applicant satisfies s 36(2)(b)(i) because he is a member of the same family unit as his son who has been recognised as satisfying the refugee criteria.
I address s 36(2)(b)(i) first, and then will consider his substantive claims for protection. I have found that applicant does not satisfy the refugee criterion or complementary protection criterion.
I do not have jurisdiction to consider any matters which may arise out of the family violence evidence before the Tribunal (the Family Violence Intervention Order), and I have not made any findings in respect of the applicant’s character.
The applicant satisfies s 36(2)(b)(i) as he is a member of the same family unit as a person who satisfies s 36(2)(a)
I am satisfied that the applicant is the father of [Master A], his son, who has been found to satisfy s 36(2)(a) in Tribunal decision 2432211. The applicant has provided his son’s passport, which shows that his son is also a national of Kenya, and has consistently stated he is the father of [Master A]. [Master A] confirmed to the Tribunal in 2432211 that the applicant is his father, as did the applicant’s wife. [Master A] has previously been granted visas on the basis that he is the son of the applicant and his wife.
Section 36(2)(b) provides that a criterion for a protection visa is that the applicant for the visa is: (i) a non-citizen in Australia who is a member of the same family unit who is mentioned in s 36(2)(a) (being a person who is a refugee recognised under the Act); and (ii) holds a protection visa of the same class as that applied for by the applicant.
The meaning of the term ‘member of the same family unit’ is defined by s 5(1) of the Act. It provides:
"member of the same family unit": one person is a member of the same family unit as another if either is a member of the family unit of the other or each is a member of the family unit of a third person.
Regulation 1.12(3)(a) of the Migration Regulations 1994 (‘Migration Regulations’) provides that a person is a member of the family unit of another person, for the purpose of a Protection (Class XA) visa, if they fulfill one of the types of relationship prescribed by 1.12(4) of the Migration Regulations. Of relevance to this case is Regulation 1.12(4)(b)(i) which provides a person is a member of the family unit of another person (the family head) if the person is: .. (b) a dependent child of: …(i) the family head.
‘Dependent child’ is defined by Regulation 1.03 of the Migration Regulations to mean relevantly:
dependent child, of a person, means the child or step‑child of the person (other than a child or step‑child who is engaged to be married or has a spouse or de facto partner), being a child or step‑child who:
(a) has not turned 18; or
…
A child of a person is defined by the Act, in s 5CA, to mean:
(a) someone who is a child of the person within the meaning of the Family Law Act 1975 (other than someone who is an adopted child of the person within the meaning of that Act).
The applicant’s son has not turned 18. In according with the Migration Regulations, the applicant’s son is a dependent child of his father, and is therefore a member of his (the applicant’s) family unit. I note that in this analysis the father (the applicant) is the family head.
I acknowledge that, based on the available information before the Tribunal, there is a Family Violence Intervention Order in place which affects the contact between the applicant and his son. However, this is not a relevant consideration when considering the definition of ‘dependent child’.
Both the applicant and his son applied for Class XA visas. The decision in 2432211, in which the applicant’s son was found to satisfied s 36(2)(a), was made on 8 November 2024. There is no information before me to suggest that the applicant’s son holds a protection visa at the present time.
In the definition of ‘member of the same family unit’, the applicant is a member of the same family unit as his son because the definition is satisfied if either person is a member of the family unit of the other. As the applicant’s son is a member of the applicant’s family unit, the applicant satisfies s 36(2)(b)(i) of the Act.
The applicant will satisfy s 36(2)(b)(ii) of the Act if his son is granted a Protection (Class XA) visa.
Accordingly, in these circumstances, I remit the matter with a direction that the applicant meets s 36(2)(b)(i) of the Act. I note that no issue appears to arise under s 91WB of the Act as the applicant applied for the protection visa in the same visa application as his son.
Does the applicant satisfy the refugee criterion for protection?
I have considered all the evidence and material before me. I accept that the applicant has faced difficulties in Kenya in the past (discussed below) and that some of these difficulties can be in part attributed to his Indian ethnicity. However, for the reasons that follow, I do not accept that he faces a real chance of serious harm or a real risk of significant harm now or in the reasonably foreseeable future on the basis of his Indian ethnicity, his status as someone perceived to be wealthy because he is Indian and/or someone returning from Australia, because of his family history, because of his reported mental illness, or for any other reason.
Country information – Indians in Kenya; crime
I have considered available information on Indians in Kenya. Kenya has a population of approximately 52 million people.[2] Of this, about 80,000 to 100,000 people are of Indian ethnicity.[3] They are therefore a small community and largely reside in Nairobi, the capital.
[2] Kenya National Bureau of Statistics - Kenya's Top Data Site ( accessed 13 November 2024.
[3] Multipolarity in East Africa: India’s Role in Kenya - Stiftung Wissenschaft und Politik ( ), accessed 13 November 2024.
Indians migrated to Kenya in significant numbers during the late 19^th and early 20^th centuries, and came to work as traders during the period of British rule.[4] By the 1960s, 35% of the population of Nairobi was of Indian heritage. [5] After Kenya achieved independence from the United Kingdom in 1963, the Indian population declined, with large numbers of Indians migrating to the United Kingdom.[6] Indians have been recognised as Kenya’s 44^th tribe due to their contributions and commitment to building the education and health sectors in the country.[7]
[4] Passage from India | MIT News | Massachusetts Institute of Technology ( accessed 13 November 2024.
[5] Passage from India | MIT News | Massachusetts Institute of Technology ( accessed 13 November 2024.
[6] Indian Africa - East African Indians: How Many Are They? - Africae ( accessed 13 November 2024.
[7] Multipolarity in East Africa: India’s Role in Kenya - Stiftung Wissenschaft und Politik ( ), accessed 13 November 2024.
While Indians have lived in Kenya for a century, they are perceived to be outsiders, and have been reported to be in a difficult position, on the basis that they are economically privileged compared to the majority African population but are less deserving of rights.[8]
[8] Research Directorate, Immigration and Refugee Board of Canada, “Kenya: Situation of persons of Indian origin; in particular, businessmen in Nairobi and Kisumu; whether there have been any reports of attacks against or looting of Indian businesses in these cities; availability of state protection (2007-2009)” 16 October 2009, accessed 13 November 2024.
Crime, such as theft and robbery, occur in Kenya,[9] as they do in many cities. The situation in Nairobi is reported to have improved in recent years, with stories of home invasions in wealthy neighbourhoods being rarer than a decade ago and that it is generally considered safe to drive at night in all by the most notorious neighbourhoods.[10] The reason for the improvement has been cited as CCTV used to catch criminals and deter crime, a heavy-handed police force and the use of community watch groups.[11]
Neighbourhood watch group, police interest
[9] How crime rate has gone up in Kenya ( accessed 13 November 2024.
[10] Nairobi’s reputation for crime is outdated ( 19 September 2024, accessed 13 November 2024.
[11] Nairobi’s reputation for crime is outdated ( 19 September 2024, accessed 13 November 2024.
The applicant has made a number of claims about treatment faced by him, his family and other Indians in Kenya. Central to the applicant’s claims is that he was a member of a neighbourhood watch group from 2002 to 2005, and that during this time he was harassed by police on multiple occasions including being detained and assaulted by police. It is surprising then that in his protection visa application and statutory declaration of 28 May 2018, there is no reference to a neighbourhood watch group or being detained and assaulted by police. There is a reference to being detained in 2004 or 2005 and having to pay a bribe to be released, but there is no explanation for why this occurred.

While the applicant has attributed the omission of the claim about his involvement in the neighbourhood watch and assault by the police to his former lawyer, I am not persuaded that if he had told his lawyer about being assaulted by police in the manner described by the applicant at the hearing and in his later statutory declaration, that his lawyer would not have included this information. The protection visa application and May 2018 statutory declaration included claims about riots in 2008 and being mugged in 2005 and also having to pay a bribe to the police when he was detained, and so it is apparent that the lawyer included a number of incidents put forward by the applicant. The applicant signed the statutory declaration of 28 May 2018 without having it corrected. I do not accept that he thought he would be able to add it later, rather I find that he has embellished aspects of his claims and has added key details at the interview to exaggerate the level of harm he faced in Kenya with the delegate and then provided a statutory declaration, blaming his lawyer. This has led me to question whether he was detained and assaulted in the manner described, and that he was detained because of his involvement in the neighbourhood watch.
The applicant claimed to have been involved in the neighbourhood watch group. He described doing this for three years, and that he worked for his father from 6:30am to 5pm, and then patrolled an area of 50 to 60 kilometres from 6pm to midnight. While I find it difficult to accept that he would be able to sustain such a routine for this period of time, I accept that he had some involvement in a neighbourhood watch group. This is because he described in detail the person who set up the group, the process of reporting incidents to the police and how they would assist people in trouble. While I accept that he was involved in this group, the omission of his involvement in the protection visa application and May 2018 statutory declaration has led me to question whether he faced any difficulties because of his involvement.
At the hearing he said that he was the only person from the group who faced difficulties and harassment from the police because he was the one reporting matters to the police, however in his statutory declaration of 11 October 2024 he said that others faced problems and left the group. This inconsistency has also caused me to doubt whether he faced problems, or whether he was attempting to exaggerating at the hearing his particular profile in the group.
During the hearing, the applicant recounted the claimed incident when he was detained by the police and kept in a cell and assaulted. At the hearing he said that he was assaulted the same night he was detained, whereas in his statutory declaration he said that it happened the next morning. I have considered the representative’s submission that the events in question were highly traumatic for the applicant and that this affected his memory, and that central details were remembered (such as the assault) but not peripheral details (such as the timing). I do not accept this submission. The applicant did not, at the hearing, say he couldn’t recall the timing of the events because of his mental health or because he had experienced trauma, rather he said that the assault and beating by the police occurred on the same day he was detained at night. If he considered that he was unable to recall specific details, it was open to him to state this at the hearing. I find the difference in the account significant, given in one version of events he was detained and the assaulted the same day at night, whereas in the other he was held overnight in a crowded cell and then beaten the next morning. This has caused me to doubt whether the events in question occurred.
Further, at the hearing the applicant said that the police planted a gun in his car and that this was the reason he was detained and then beaten, whereas in his statutory declaration he did not refer to the planting of a gun on this occasion and said when he asked why he had been detained, he was not told the reason.
Given my concerns about the discrepancy in the account and the omission of the claim in his protection visa application and May 2018 statutory declaration, I do not accept that the applicant was detained by the police and assaulted in a cell as claimed in connection with his involvement in the neighbourhood watch group.
He claimed at the hearing that he thought he was detained another time by police, whereas in his statutory declaration of 18 August 2021, he claimed that the police pulled him over in 2005 and placed a gun in his car and they then accused him of having a weapon. However, in his statutory declaration, he did not refer to being detained by police in connection with this incident but that he was let go and he went to a temple, was followed by the police and waited until they left before going home. I have considered whether both incidents occurred and whether, because of the passage of time, the applicant has not included all incidents in his written statement or at the hearing. I do not accept that these factors account for the differences in the applicant’s evidence. I do not accept that he was detained by police in connection with the neighbourhood watch at any time. Having regard to my findings, I do not accept that the applicant has a particular profile with the police because of his involvement with the neighbourhood watch.
I do however accept that the applicant has been detained by police and had to pay a bribe for his release in 2003 or 2004 (the incident referred to in his statutory declaration of May 2018). I have considered whether this incident was the 2005 incident when he claimed he was detained and assaulted, however, at the hearing he said he did not pay a bribe, whereas the 2003 or 2004 involved the payment of a bribe for his release. I do not accept that the 2003 or 2004 incident was in connection with his involvement in the neighbourhood watch or that it involved assault.
Family business
I accept that the applicant’s father owned a successful [business] in Kenya. I accept that the applicant worked for his father in his father’s business. The applicant provided detailed testimony about the business and how trucks were weighed by authorities at the roadside. I also accept that, based on the information about the economy in Kenya, that the applicant’s father’s business may have been targeted by criminals, and that the applicant was required to hand over money to the criminals (including money which was going to be used to pay the workers’ salaries). While these incidents would have been traumatic for the applicant, he and his father did not come to any harm during the incidents. The applicant said that the insurance claim was unsuccessful, because of a lack of evidence although it is not clear why it was unsuccessful given there was security footage of the incident.
The family business has been wound up. If the applicant returned to Kenya, he would not work in the family business and therefore would not be transporting money and targeted by criminals.
Bribes
The applicant has described paying bribes on a number of occasions, including in 2015 when he returned to Kenya for his father’s funeral, and in 2003 and 2004 to secure his release (which I have accepted). I accept that, in Kenya, bribes are paid to police and authorities, and that they may be paid as a way of avoiding adverse attention or interest by police or the authorities.
I acknowledge that having to pay bribes is unfair and would be frustrating for the applicant, particularly because he considers he has been targeted because of his ethnicity and perceived wealth. Having regard to the non-exhaustive list of instances of serious harm, and the definition of significant harm, I do not accept that being required to pay bribes, amounts to serious or significant harm. His father was able to run a successful business in Kenya, despite having to pay bribes, and also having salaries stolen. The applicant has, on each occasion, been able to pay the bribe. I note that his brother and sister reside in Kenya and, while they have told him that the situation in Kenya is not good, he said they have not come to harm. Accordingly, given his family’s overall situation in Kenya (where they own property and his brother has employment), I find that he would be able to pay bribes in the future and that having to do so would not amount to serious or significant harm in his circumstances. I also note that the applicant speaks Swahili and English, has experience working in Kenya and also in Australia, and I find that he will be able to find employment if he returns, which will assist him to pay any bribes that may be required.
I have considered whether having to pay bribes over a period of time may cumulatively amount to serious or significant harm, however I do not accept that it would be in the applicant’s circumstances. In the past, he has paid bribes sporadically which did not affect his or his family’s capacity to subsist, and I find that in the future, while he may be required to pay bribes, it would not be frequent (having regard to the low frequency he claims to have paid bribes in the past and the information which indicates that the situation in Kenya in relation to overall crime has improved).
2007-2008 election violence
It has been widely reported that there was widespread violence in Kenya during the 2008 elections, particularly during December 2007 and January 2008.[12] I accept that the applicant, as someone was working for his father’s business during that time and moving around the Nairobi, was caught up in the violence. However, the political situation in Kenya has been relatively stable and the widespread violence of the time has not been repeated. The last presidential election was held in 2022 and it was not affected by widespread political violence.[13] It is speculative as to whether future political violence may occur in Kenya, and I find there to be a remote chance, and therefore less than a real chance, that such violence would occur in the reasonably foreseeable future and the applicant would be targeted in such violence.
Perceived to be a wealthy Indian
[12] Elections in Kenya in 2007, Department for International Development – UK Aid ( accessed 13 November 2024.
[13] Havoc to Hope: Electoral Violence in the Kenya 2022 General Election, E-International Relations, ( 24 February 2024, accessed 13 November 2024.
I accept that the applicant, as an Indian, and as an Indian who has lived abroad, may be perceived to be wealthy. This means that he may be targeted by police and/or others for bribes, as he has been in the past.
He has claimed that Indian couple who were renting the family were targeted and robbed. He has provided this example to support his claim that he considers he will be targeted if he returns as an Indian.
While I accept that this incident occurred and it is very unfortunate, robberies occur in many cities. The situation in Kenya is said to have improved, and that it is generally considered safe to drive at night in all by the most notorious neighbourhoods, and that home invasions in wealthy neighbourhoods are much rarer than a decade ago.[14] The applicant said that his brother lives and works in Nairobi and has not been recently affected by violence, noting he lives and works in a compound. It is open to the applicant to obtain security, and live in a secure area, or to live with his brother. Given these findings, while I accept that crime exists in Nairobi (as it does in most cities), I find that the chance the applicant would be targeted for a violent home invasion to be less than a real chance.
[14] Nairobi’s reputation for crime is outdated ( 19 September 2024, accessed 13 November 2024.
I have not accepted that the payment of bribes amounts to serious or significant harm in relation to the applicant. If he is requested to pay a bribe, I find that he will do so, as he has done in the past and that he will pay it to avoid the prospect of violence. Accordingly, I am not satisfied that he faces a real chance of serious harm or a real risk of significant harm now or in the reasonably foreseeable future because he is an Indian and/or because he is perceived to be wealthy as an Indian, including as an Indian who has returned from abroad.
I acknowledge that the Indian government advised its citizens (which the applicant is not) to exercise utmost caution and restrict non-essential movement amid violent protests in June 2024.[15] This is because there were protests about the government’s proposed tax hikes. This warning was in relation to violence which affected the community generally, which Indians might become caught up in, and not because Indians were being specifically targeted in response to the government’s tax hikes. The situation appears to have calmed down and there are no recent reports of warnings. Accordingly, I do not accept that there is a real chance or real risk that the applicant as an Indian or perceived wealthy Indian will be targeted by protesters now or in the reasonably foreseeable future.
Mental health
[15] Indians In Kenya Asked To Limit "Non-Essential" Movement Amid Violent Protests ( 26 June 2024, accessed 13 November 2024.
The applicant’s representative has claimed that the applicant may not be able to obtain treatment in Kenya and that his mental health may deteriorate if he returns to Kenya. It is also submitted that, as Kenya’s laws criminalise attempted suicide,[16] the applicant may be deterred from seeking help and disclosing suicidal ideation.
[16] Kenya’s laws make it a crime to attempt suicide – this hurts vulnerable people, The Conversation, ( 9 October 2024 (accessed 13 November 2024).
Country information indicates that stigma exists in Kenya in relation to mental health, and that there are gaps in mental health service delivery in Kenya.[17] Despite this, the Kenyan government has a Mental Health Policy for 2015-2030, and is investing in mental health interventions.[18] There is also a Kenyan Suicide Prevention Strategy in place, indicating that the Ministry of Health in Kenya recognises the seriousness of the problem, that it is a public health priority, and that it coordinates steps at a national level to implement measures to prevent suicide in Kenya.[19]
[17] Talk it Out CBO, “Universal Periodic Review - Theme: Economic Social and Cultural Rights, Mental Health Rights Cluster”, 11 October 2024.
[18] Mental Health (MoH Kenya) ( Mental Health Task Force Report - Mental Health and Wellbeing Towards Happiness & National Prosperity - Mental Health (MoH Kenya) ( accessed 13 November 2024.
[19] Ministry of Health (Kenya), Suicide Prevention Strategy 2021-2026 ( accessed 13 November 2024.
For the purpose of the ‘refugee’ criterion, the harm has to be directed at the applicant for one or more of the five refugee reasons in s 5J(1)(a), and in terms of the complementary protection assessment, ‘significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’ for the purposes of s 36(2A)(d) is exhaustively defined in s 5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The pain or suffering must be intentionally inflicted, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114]. The final type of significant harm listed in s 36(2A) is degrading treatment or punishment: s 36(2A)(e). Degrading treatment or punishment is exhaustively defined in s 5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].
There is no indication that the Kenyan authorities would deny the applicant access to mental health treatment for a reason in s 5J(1)(a) such as his Indian ethnicity or for any other reason or, in relation to the complementary protection assessment, that any agent would intend to inflict or cause harm to the applicant by withholding treatment. Rather, I find that the Kenyan government attempts to provide mental health treatment to its citizens but is constrained by available funding and resources within the country, which may affect the availability of services. I acknowledge that the applicant may receive treatment in Australia which is not as readily available to him in Kenya, however, I do not accept that the availability of mental health treatment in Kenya amounts to a well-founded fear of persecution for a refugee reason and does not amount to significant harm in the circumstances of this case.
Notwithstanding my finding in relation to the provision of mental health services in Kenya, I also note that the applicant’s family have been able to afford for the applicant’s mother to receive medical treatment in India (which they consider is superior to Kenya), and the applicant’s brother works in Kenya. If mental health treatment was required in Kenya, I find that it is likely that the applicant’s family would be able to pay for it.
I have considered whether the applicant’s mental health may affect his ability to work. Despite his mental health concerns, he has been able to maintain employment in Australia, and I find that he would be able to do so in Kenya as well. In making this finding, I have taken into account that he would have the support of his siblings in Kenya and his mother (when she resides in Kenya), which are protective factors for the applicant and may improve his mental health.
It has also been submitted that the applicant may be discriminated against in Kenya if his mental health condition were known, and this may affect his ability to find employment. The applicant is from a successful family in Kenya, and I find that he would be able to find employment upon return, through his family’s connections. As the applicant is recently separated from his wife, it can be expected that he will face a difficult adjustment period. I do not accept that the community would target him or treat him poorly (despite reports of stigma affecting mental health issues), or withhold employment from him, because of his mental health which can be attributed to the separation. The applicant’s current mental health can be explained by the separation from his wife, which may ameliorate any potential stigma he would face in the community (as it provides an explanation for his condition). As I have found above, the applicant speaks Swahili and English, has experience working in Kenya and also in Australia. I find that he will be able to find employment if he returns.

I accept that the applicant would prefer to remain with his son, and that returning to Kenya now without his son may be difficult for him. However, the emotional situation, where he is separated from his son would not be directed at him for any of the five refugee reasons in s 5J(1)(a), and I also do not accept that it amounts to serious harm. There is no act or omission on the part of another person in relation to his situation in Kenya where he is separated from his son. Separation from family in Australia, where the claimed harm arises from the act of removal itself, will not meet the definition of ‘significant harm’.[20]
Other incidents
[20] SZRSN v MIAC [2013] FCA 751 at [47]–[49] (upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 at [61]–[65]); GLD18 v MHA [2020] FCAFC 2 at [36]–[58]; AWC21 v MHA [2022] FCA 1568 at [29]. Similarly, in WZARI v MIMAC [2013] FCA 788 at [31]–[32] the Court upheld the Tribunal finding that the applicant would not face ‘degrading treatment’ for the stress and pain of being separated from his family if he were returned to his home country (special leave to appeal dismissed: WZARI v MIAC [2013] HCASL 201).
The applicant claimed that his uncle was deported from Kenya, when the applicant was young. He claimed that his uncle had spoken out against the government. No further information about this incident has been provided. I do not consider that the deportation of his uncle, in the circumstances described, will cause any adverse or negative consequences for the applicant. The applicant grew up in Kenya and lived there until 2008. His brother and sister reside there, and his mother spends time in Kenya. Given this history, I do not accept that he will have any risk profile because of his connection to his uncle, and therefore does not face a real chance of harm or a real risk of harm on this basis.
He has also claimed that his sister in law’s uncle was killed in 2006 by thugs hired by one of his employees, as the employee was not satisfied by the level of compensation for a workplace injury. I understand that this incident was put forward as indicative of the level of violence in Kenya, which can affect Indians. While I accept that it occurred, it appears to have been a personal dispute between an employer and employee, and that the employee resorted to killing to exact revenge. I do not accept that the applicant faces any harm in relation to this particular incident.
The applicant has also claimed that he fears harm from terrorists and criminals who enter Kenya from other countries and steal cars. While there is a possibility of terrorism and terrorist attacks do occur in Kenya, these are primarily in the border region with Somalia (and not in Nairobi, where the applicant’s family resides).[21] The Kenyan authorities respond to terrorist threats and are reported to have demonstrated improved procedures regarding protection of human rights in response to terrorist threats and attacks.[22] If the applicant were to return to Kenya, I find that he would reside in Nairobi in a neighbourhood most likely near his brother, which would be relatively secure. As noted above, security in Nairobi is said to have improved. While he may find employment driving trucks and be required to drive around the city, given I have found he will be located in Nairobi, I find the chance of him being targeted in a terrorist attack or by criminals from another country to be remote, and therefore less than a real one.
Conclusion

100. In summary, I accept that the applicant, if he returns to Kenya, would at times have to pay bribes to avoid adverse interactions with the police, other government agencies and some groups. I accept that Indians may sometimes be targeted for the payment of bribes in Kenya because of their ethnicity and perceived wealth. However, I do not accept, in the context of the applicant’s circumstances that this amounts to serious or significant harm. While I have accepted that the applicant was involved with a neighbourhood watch group, I have not accepted that he has a profile with the police or the authorities, and have not accepted that he was detained and beaten by police in the past and do not accept that he faces a real chance or real risk of being harmed by police or authorities now or in the reasonably foreseeable future. I accept that he will be able to find employment upon return and he will not be denied mental health treatment for a reason in s 5J(1)(a) or that there is an intention to cause significant harm to him in relation to the availability of such treatment.
101. For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
[21] Kenya - United States Department of State Country Reports on Terrorism 2022: Kenya ( accessed 13 November 2024; Kenya Situation Update: July 2023 | Al-Shabaab Attacks Surge Ahead of Somalia-Kenya Border Reopening ( accessed 13 November 2024.
[22] Kenya - United States Department of State Country Reports on Terrorism 2022: Kenya ( accessed 13 November 2024.

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

103. I have found that the applicant satisfies s 36(2)(b)(i) on the basis of being a member of the same family unit as a person (his son) who satisfies s 36(2)(a).
DECISION
104. The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(b)(i) of the Migration Act.
Date(s) of hearing: 21 October 2024
Representative for the Applicant: Ms Eliza Considine

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.
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36     Protection visas – criteria provided for by this Act
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(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.
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