2115855 (Refugee)

2115855 (Refugee) [2023] AATA 2627 (24 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Cyrus Dhanjishaw Mistry (MARN: 0100178)
CASE NUMBER:  2115855
COUNTRY OF REFERENCE:                   Kenya
MEMBER:Peter Katsambanis
DATE:24 April 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 24 April 2023 at 8:41am
CATCHWORDS
REFUGEE – Protection visa – Kenya – race – Luo – political opinion – applicant was a party member of the opposition – family’s close relationship with the ODM party leader – passing on sensitive information to the party – inability to name any of the people who she claimed to have provided information about to the ODM – ethnic profiling – a strong relationship with the leader of the ODM – applicant was not a witness of truth – vague evidence –applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
MIAC v SZQRB (2013) 210 FCR 505
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 22 October 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Kenya, applied for the visas on 8 February 2018. The delegate refused to grant the visas on the basis that the delegate was not satisfied that the applicants were persons in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
The first named and second named applicants appeared before the Tribunal on 30 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A] by telephone from Kenya.
The applicants were represented in relation to the review by a registered migration agent. The representative attended the Tribunal hearing.
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b),(c).
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
issues
The issues in this case are whether there is a real chance that if the applicants return to Kenya they will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Kenya, there is a real risk that they will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicants applied to the Department for protection visas on 8 February 2018.
In the protection visa application, the first named applicant stated that she was born on [date] in Nakuru, Kenya. She stated that she was of Kalenjin ethnicity and Christian religion. She stated that she had commenced the relationship with the second named applicant on 10 November 2009 and the couple had married on [date] July 2015 in Kisumu County, Kenya.
The first named applicant stated that she had arrived in Australia on [date] June 2017 from Kenya with a valid Kenyan passport and a valid Australian student visa. She stated that her Australian student visa had been cancelled on 10 October 2017. The first named applicant indicated that she had lived at the same address in Nakuru County, Kenya from birth until August 2008. She had then lived at [location] from August 2008 to May 2009. From May 2009 to June 2017, she lived at the same residential address in Kisumu, Kenya.
The first named applicant indicated that she had been employed as a police officer conducting general duties in the Kenya Police Service from August 2008 to May 2017. She indicated that she had completed primary and secondary school in Kenya, had studied [a] course at [a college] and had also obtained a [qualification] from January 2015 to December 2015. The first named applicant claimed that in Australia she had studied for a [qualification] [from] August 2017 to December 2017.
In her application for protection, the first named applicant stated that she was seeking protection in Australia because she feared returning to Kenya. The first named applicant stated that she had migrated to Australia to join her husband, who is the second named applicant. She claimed that if she returned to Kenya, she feared that she would be arrested and possibly killed because some security personnel who did similar things had gone missing in the past and had never been found. The first named applicant claimed that since they cannot find her, they have been questioning her family members back home and are also asking about the whereabouts of her husband, the second named applicant, which would put his life at risk as well.
The first named applicant claimed that in the past in Kenya she had experienced emotional torture, for example colleagues spying on her and unexpected visits to her house by security personnel, as well as random interviews by her seniors. She stated that she did not seek help in Kenya because she did not want to give any indication that she was nervous and moreover, if she sought protection, it would have exposed her to more danger. She claimed she could not move to any other part of Kenya to avoid harm because of her job.
The first named applicant claimed that she feared she would be harmed or mistreated if she returned to Kenya because they were aware that she was a party member of the opposition and that she had given intelligence information to the party. She claimed that her family members and party members had informed her that security personnel were looking for her so, if she went back, she would be arrested at the point of entry and possibly persecuted. She claimed that she would not be protected by the authorities of Kenya because most security personnel, including senior police officers, are from the government tribe and loyal to the government. She claimed that she could not live anywhere in Kenya because the security forces are everywhere, and they would easily be able to trace her since she served in the same police force.
The second named applicant, who is the husband of the first named applicant, stated that he was born on [date] in Kisumu, Nyanza Province, Kenya. He claimed to be of Luo ethnicity and Christian religion.
The second named applicant indicated that he had arrived in Australia on [date] January 2016 on a student visa. He had returned to Kenya to visit his family in January 2017. The second named applicant claimed that his student visa was cancelled on 10 October 2017 and that he had been on a bridging visa in Australia since 17 October 2017. The second named applicant stated that he had completed primary and secondary school in Kenya and had then completed a [qualification] from November 2008 to December 2009. He had also obtained a [qualification] whilst in Kenya from February 2014 to May 2014. He had also completed two courses of study in Australia. He also stated that he had completed military service in Kenya.
The second named applicant listed his only employment in Kenya as his national service from September 2012 to June 2013. He listed a series of positions he had been employed in since his arrival in Australia. He indicated that he had been living at a residential address in Kisumu, Kenya from birth until he commenced national service and again from June 2014 to January 2016. He stated that from July 2013 to May 2014 he has been living in Siaya, Kenya. He also listed several addresses where he had resided since his arrival in Australia.
In his application for protection, the second named applicant stated that he migrated to Australia to study. He claimed that, if he returned to Kenya, he believed he would be killed by the same security agents that were after his wife. He claimed that whenever they visit his home in Kenya to search for his wife, they question everyone on her whereabouts and the whereabouts of her husband, which was a clear indication that his wife was also at risk.
The second named applicant claimed that he had not experienced any harm in the past in Kenya. However, he stated that if he returned to Kenya he would be persecuted. He claimed that it was very clear that his wife’s life was in danger because of her role in the opposition party, the Orange Democratic Movement (ODM) and this put his life at risk as well. He stated that his family members and his in-laws had informed him that they had been questioned about the whereabouts of his wife and himself. The second named applicant stated that the authorities could not protect him because they were loyal to the government and executed its orders. He claimed that there was no safe place for him to relocate in Kenya because security agents were everywhere within the country. He stated that he had a family, and his wife would be easily identified since she worked with the same security agents in the same government.
The third named applicant, who is the child of the first named and second named applicants, was born on [date] in Kisumu, Kenya. It was stated that she was of Luo ethnicity and Christian religion. She is currently a student. She had arrived in Australia on [date] June 2017 on her parents’ student visa.
In her application for protection, it was stated that the third named applicant had migrated to Australia together with her mother to reunite with her father. It was stated that if she returned to Kenya she would be arrested, tortured and killed by security agents who were after her mother. She claimed that many children whose parents were on the government wanted list had gone missing in the past. It was stated that she had not experienced any harm in the past in Kenya. It was claimed that she did not move to any other part of Kenya because she was under her mother’s care and because of the nature of her mother’s job.
It was claimed that if the third named applicant returned to Kenya the fate of her mother would befall her and she would be arrested and persecuted for her mother’s deeds. It was stated that security agents back in Kenya were after her mother’s life, which also jeopardised her own life. It was stated that the authorities of Kenya could not protect her because the security agents who are supposed to ensure her safety and maintain law and order are the same ones who after her mother’s life. It was claimed that they were loyal to the government and execute its mandate. Relocation was not an option because security agents are stationed on patrol everywhere in the country so there is no safe place to relocate to.
Together with their application, the applicants provided copies of their birth certificates, Kenyan passports, the marriage certificate of the first named and second named applicants, Kenyan identity cards, banking details, and taxation records.
The applicants also provided the following documents to the Department in support of their claims for protection:
·an undated certificate from the Orange Democratic Movement Party of Kenya indicating that the first named applicant was a life member of this party;
·a certificate dated 18 November 2016 from [an] Institute [indicating] that the first named applicant had completed the [qualification];
·an identity card for the first named applicant from Kenya Police;
·a letter dated 2 May 2017 from Kenya Police [confirming] the first named applicant’s account with this organisation and that she owed no liability to this organisation;
·a letter dated 22 October 2008 appointing the first named applicant as a police [officer];
·a letter dated 3 May 2017 from the first named applicant addressed to [an official] of the Kenya Police Service stating that the first named applicant wished ‘to resign from Kenya police service with immediate effect in order to pursue other private matters’;
·a letter dated [June] 2017 from the [official] of Kenya police service accepting the first named applicant’s resignation. In this letter it was stated “On behalf of the [official], Kenya Police Service I wish to thank you most sincerely for the services you have rendered to the Kenya people during the period of your service in the Kenya Police Service and wish you well in your endeavours”;
·declaratory affidavits from [Mr A], [Ms B] and [Ms C] in support of the claims made by the first named applicant;
·various photographs of the first named applicant in police uniform and photographs of the applicant family;
·an online article published on 7 July 2013 on Standard Digital titled ‘I killed Rasta, Wanugu and Wacucu, then my colleagues came for me’. This article discussed a case about a commander in a now-disbanded unit within the Criminal Investigations Department of Kenya Police who had been dismissed from the police force in 2001 after 17 years of service;
·an online article published on 16 December 2009 on Standard Digital titled ‘Soldier’s disappearance that’s a mystery to military’ discussing the disappearance of a soldier in September 2006;
·an online article published on 13 November 2011 on Standard Digital titled ‘Who ordered the killing of Chemorei?’ discussing the killing of a person six years previously who had been alleged to be on the police most wanted list.
·an online from Aljazeera published on 30 October 2012 titled ‘Politician’s death prompts Kenya violence’ discussing the death of an Orange Democratic Movement politician in Kisumu, Kenya in 2012;
·an online article from BBC News published on 18 October 2017 titled ‘Kenya election official Roselyn Akombe flees to US’ discussing how a Kenyan election official had fled to the United States of America in the aftermath of a disputed election in Kenya in 2017; and
·an online article from BBC News published on 2 August 2017 titled ‘Kenyan election official Chris Msando tortured to death’ discussing the death of an election official in the lead up to the 2017 election in Kenya.
Affidavit of [Mr A]
In his affidavit dated 1 November 2017, [Mr A] states that he is the chairman of [a] branch of the Orange Democratic Party of Kenya and claims that he is aware that the first named applicant, who is of Kalenjin extraction, is a life member of the party and used to work as a police officer until April 2017. [Mr A] states that the first named applicant was married to the second named applicant, who was a member of the party and of Luo extraction, and during her tenure with the police service the first named applicant became aware of ethnic profiling of members of the Luo community by the government. He stated that he knew from his own knowledge that the first named applicant used to pass critical confidential information to her party whenever such ethnically profiled persons were in danger of being abducted and such abducted persons would often disappear without trace. He claimed that he knew from his own knowledge that certain persons within the police service got wind of this and the first named applicant’s own life was threatened forcing her to resign and flee the country. Together with his affidavit, [Mr A] provided a copy of his identity card and a copy of an undated certificate indicating that he was a life member of the Orange Democratic Movement Party of Kenya.
Affidavit of [Ms B]

In her affidavit dated 18 January 2018, [Ms B] stated that she was the sister of the first named applicant who she claimed had been working with the Kenya police service at [Location 1] before she resigned and went abroad. The sister stated that after the first named applicant had left the country, strangers had come to their house looking for her on 14 July 2017, 28 September 2017 and 26 December 2017. She claimed that the strangers had never shown official badges or identification cards, but they claim to be security officers from Nairobi. She claimed that they had never disclosed the reasons they were looking for the first named applicant but had demanded to know whether the first named applicant was home. The sister claimed that this made her live with fear not knowing why strangers were looking for her sister and wondering about her safety. Together with this affidavit, an identity card for [Ms B] was also provided.
Affidavit of [Ms C]
In her affidavit dated 18 January 2018, [Ms C] stated that she was the sister-in-law of the first named applicant who had travelled to Australia in June 2017 to join her husband. It was claimed that on 29 August 2017, people who identified themselves as security officers from Nairobi came to their homes [and] questioned all the members of the family on the whereabouts of her sister-in-law, who was a police officer but had resigned to join her husband in Australia. These officers also asked when they would be back. It was stated that the same security officers again came to their house asking the same questions and the consistent visits of the police officers were disturbing the peace of the family. It was also stated that these officers did not get any response from the members of the family and on both occasions they just left. It was confirmed that the security officers had visited their homes twice to make enquiries over the whereabouts of her sister-in-law and her husband. Together with this affidavit, a copy of an identity card for [Ms C] was also provided.
Interview with Delegate
The first named applicant was interviewed in relation to her application for protection by a delegate from the Department on 28 July 2021. The delegate’s decision record indicates that at this interview the first named applicant confirmed that she was not a supporter of the ODM and that she only joined the party as a ‘life member’ once she had decided to provide them with confidential information. She also stated that she joined the ODM in order to gain their trust. She claimed that she would have provided information to this party, which is traditionally supported by people from the Luo tribe, even if she had not been married to a Luo because the police force was ethnic profiling and was against human beings. As a Christian, she had sworn an oath on the Bible to protect Kenyans, but the police were going against the law.
The decision record notes that the first named applicant claimed she would inform the ODM about the locations where police were conducting raids, the names of people they would be focusing on (such as leaders of the party) and places where police would be stationed during rallies. She claimed that she obtained this information from listening to police radio communications and she would contact the chairman of her local ODM, [Mr A], by telephone and then meet with him at a secret place to relay information to him. She confirmed that [Mr A] was the only person that she dealt with in the ODM.
The decision record notes that the first named applicant claimed her supervisor started to become suspicious of her at the end of 2016 and questioned her about her activities. She claimed that throughout 2016 she was often questioned by police who would randomly come to her home. She claimed that she was followed by plain clothed police officers. The first named applicant claimed that this harassment prompted her to apply for an Australian visa and also claimed that she continued to provide information to the ODM until she departed for for Australia in June 2017, to join her husband who was here on a student visa.
The decision record notes that the first named applicant claimed that she did not provide information to the ODM over the phone because she feared her phone conversations might be tracked by police, but it is noted that she also stated during the interview that she would initially call the ODM representative to arrange a meeting so that she could provide the information.
In the decision record, the delegate notes that the first named applicant stated that she could name some of the Luo leaders who had been targeted or killed by police, however she did not provide any such names at the interview.
The decision record notes that at the interview the applicant claimed that the police were suspicious of her because she was married to a Luo and indicated that she was unaware if other police officers were also being questioned in a similar way about the provision of information to the ODM. She also indicated that there were two or three officers of Luo background or ethnicity in her branch.
It is noted in the decision record that the first named applicant claimed she only gave 24 hours’ notice when she resigned from the police force because ‘I was scared for my life’ and because she ‘couldn’t take it anymore’. However, when asked why she waited five more weeks before she departed Kenya, she variously stated it was because she was waiting for money for her flight to Australia, she wanted to have more money when she came to Australia and because she needed to sell some of her possessions including her vehicle.
The decision record notes that at the interview the first named applicant initially stated that she managed to depart the airport in Kenya without any issues because the authorities were not aware that she was leaving. She then added that she knew a former work colleague who worked in immigration at the airport, and it was this person who processed her passport without incident. The first named applicant also stated that she believed that the police would have seen her resignation from the force as an admission of guilt. It is also noted in the decision record that the first named applicant claimed that at one interview, she was told by the officers questioning her that she had been seen meeting with ODM officials in a particular place.
It is noted in the decision record that the first named applicant claimed that she did not apply for protection in Australia for around 8 months after her arrival because she held a valid student visa and saw this visa as a pathway to permanent residency and added that she did not want the title ‘refugee’.
At the interview, as noted in the decision record, the first named applicant stated that since she had departed Kenya, plain clothed police officers visited the homes of her family and her husband’s family to make enquiries about her whereabouts and she referenced the affidavits she provided to support these claims. She also stated that these visits from police had continued on a regular basis from her departure in 2017 through to the time of the interview.
The delegate refused to grant protection visas to the applicants on 22 October 2021.
Application for Review
The applicants applied to the Tribunal for a review of the delegate’s decision on 4 November 2021. Together with their application, the applicants also provided the Tribunal with a copy of the delegate’s decision dated 22 October 2021 and a copy of the accompanying notification letter.
In a written statement dated 23 August 2022, the first named applicant stated that she joined the Kenya police service in August 2008 following in the footsteps of her sister [and] her father who were both police officers. She loved her job and aspired to become a commissioned police officer to make her family proud and to be a role model for other young women. Her determination to achieve her career goal made her juggle between policing, family commitments and studies. She stated that she studied [to] gain the skills needed to work in a supervising role.
The first named applicant claimed that as a sworn police officer she was not allowed by law to engage in any political activities including party politics and the consequences for involvement in politics can be dire. For that reason, she could not publicly show indications of her support or association with any political party. However, she claimed that her husband’s family was associated with the Orange Democratic party (ODM) whose leader, Hon Raila Odinga, is a close friend of her father-in-law, [Mr D].
The first named applicant stated that her father-in-law operated a [business] at [Location 1], and she first met her husband there when she had been stationed at the [Location 1] police station. She claimed she would frequent the [business] regularly while she was working at the police station and during her leave days, she would help [once] or twice a week. She recalled first meeting Raila Odinga in person at this [business] when her father-in-law introduced her to him. She recalled that Raila Odinga would sometimes [visit] the [business] after landing at the airport.
The first named applicant claimed that she also recalled seeing Raila Odinga visit her in-laws at their rural home [on] two occasions since she had been married. She added that her father-in-law would travel to Odinga’s [home]. The first named applicant stated that she had met also [Mr A], the chairman of the local ODM branch, at the [business].
The first named applicant stated that while working as a police officer she saw there was a pattern of police violence towards opposition supporters. She claimed that the security forces in Kenya were comprised of the army with the General Service Unit (GSU) and the National Police Service, which had the Administrative Police (AP) and the Kenya Police (KP). She claimed that the GSU was responsible for border security and big riots and stated that they had no rules, and the majority of their training was just fighting. She claimed that the GSU commits most of the violence and most of the killing.
The first named applicant stated that she swore an oath to protect lives and property and to defend the Constitution of Kenya, but she felt that this duty was violated by some elements in the police force. She claimed that the police would use excessive force against ODM supporters during political rallies and during peaceful protests. She claimed that there were occasions when the anti-riot police would use live bullets against unarmed protesters and there were occasions where lawmakers associated with the ODM party had been mysteriously shot dead, which was later discovered to be police work.
It was claimed by the first named applicant that her motivation to provide information to the ODM party was to protect the lives of the Luo community who on many occasions experience police violence due to their political stance. She stated that her husband and daughter were of the Luo tribe, a fact that automatically makes them vulnerable to being harmed by police.
The first named applicant stated that she was determined to protect the family who could be harmed by the police because of their association with the ODM party leader. She claimed that her husband and her in-laws had traditionally supported the ODM party and, given that she was now part of this family through marriage, she felt she had the responsibility to protect them. She claimed that the ODM was the main opposition party and the main party of the Luo tribe with almost 95% of this tribe supporting the party. She repeated her claims that Raila Odinga was a close friend of her father-in-law who had visited the family home [and] [visited] the family’s [business]. She stated that an uncle of her husband, [Mr E], was a [staff member] to Raila Odinga and claimed that this uncle had sponsored her husband to study in Australia. She claimed that being part of the [family] by virtue of marriage, she wanted to protect her in-laws, her daughter and herself.
The first named applicant claimed that she decided to provide information to the local ODM chairman so that his party members could avoid some of the violence from the police but, even though she had previously met him, it was initially hard for him to trust her because she was a police officer and she was from the Kalenjin tribe. She claimed that he told her that he believed she was working undercover for the police to gain information about the party. She stated that her tribe had been supporters of the government and she also believed that being female was an issue. She claimed that for these reasons, the only way she could be accepted to pass on sensitive information regarding the intentions of the police against the ODM party and the Luo tribe was to register as a life member under the ODM party constitution.
The first named applicant claimed that during her interview with the delegate she did not have much time to recount the number of times she had passed on information to the party but could now confirm that she met the local branch chairman on 14 occasions to pass on to him the information that she was privy to. She stated that the information regarding police operations that were passed on the police radio were highly coded and only insiders could understand. She gave an example of how a code would be used to indicate that plainclothes officers would be dispatched to disrupt crowds attending an opposition rally in the [Village 1] area. She also stated that a colleague of hers who had joined the GSU would share information with her whenever his squad was assigned to such operations. She claimed she also obtain some information about illegal police operations from her father and her sister who was a police officer. She stated that her father used to be in [a section], but they moved him to [another area] when he got older.
The first named applicant claimed that she worked under [a unit] and had been stationed at [Location 1] where she met her future husband. She claimed that this [workplace] was in the Luo Nyanza, which was a bedrock of the ODM party and opposition politics. She claimed that whenever the party was scheduled to hold political rallies in the region or in the western part of Kenya, two or three helicopters full of armed plainclothes personnel would land at the airport a day prior and as a trained police officer such operations were more than just coincidental.
In her statement, the first named applicant claimed that she provided the party with names of individual officials who the police were targeting for arrest and about the venues and places that the GSU police were planning to conduct raids. She informed the party on occasions when the plainclothes police would be sent to political rallies and the strategic points where they would be stationed. She believed that providing such sensitive information would help the party plan well for their political activities. The targeted individuals would also take caution on their personal security and that of their families by hiding or changing their routine. She stated she was proud of what she did and believed that she helped save many lives, which was her core duty as a police officer.
The first named applicant stated that she did not provide any sensitive information over the phone for fear of being recorded and would only provide the information to [Mr A] when they met in person. She claimed that she did not use her personal phone every time she wanted to meet [Mr A] because she was very cautious, so she would request her father-in-law to arrange the meeting.
The first named applicant stated that she believed the police strongly suspected her of passing on information because of his family’s close relationship with the ODM party leader. She claimed that she faced harassment and intimidation. She stated that some police bosses tried to transfer her to a remote station very far away from her family, but she appealed this decision since she had a small child, and it would have been very hard for her to balance police work and taking care of her child. She stated that had they succeeded, she may have been harmed or gone missing forever.
The first named applicant stated that [details deleted]. She stated that there were [number] officers from the Luo tribe at the same station, but she was not sure if they had been questioned.
The first named applicant stated that despite indications that her life was at risk, she made a personal decision to continue passing on information to the party in 2016 and right through to 2017 because she wanted to save as many lives as she could. She claimed that going by the pattern of previous presidential elections in 2002, 2007 and 2012, it was quite clear that police violence towards opposition supporters was very high during campaign periods. She claimed that 2016 was a critical year because ODM party members were busy campaigning to be able to form the next government in the upcoming presidential election of 2017.
The first named applicant stated that she knew she would temporarily visit her husband in Australia during his studies because his education program was four years in length, and this was such a long time for them being a young family. She claimed that she only decided to move to Australia permanently after her personal circumstances changed because her career dream was to serve her beloved country as a law enforcement officer and to develop personally and professionally.
The first named applicant stated that she only gave 24 hours’ notice to resign her position in the police force on 3 May 2017 because she wanted to exit the country as soon as possible. But her bosses took a long time to approve her resignation and she was not informed until June 2017. She claimed that as a civil servant, attempting to exit the airport without clearance had the potential to raise suspicion with the immigration authorities and she needed to have a clearance before travelling. She stated she mentioned this at the interview with the delegate. She claimed that during this period of waiting she tried to sell the things that she owned because her husband was struggling to raise money for their air tickets and for their upkeep once they arrived in Australia. Once she received approval from the police, her husband booked the air ticket on the next available flight on [date] June 2017. She claimed that she knew one immigration officer who worked at the local airport before being transferred to the international airport in 2014. This person helped facilitate her exit.
The first named applicant claimed that although the people who visited and questioned her family members introduce themselves as officers, nobody could ascertain whether they were real police officers as they had never produced their official badges. She stated that the Kenyan police would not harm their targets directly in all cases. She claimed that in some cases, the security agents have hired hitmen to harm people they target and gave the example of Shem Onyango Kwega, a Luo ODM politician who had been shot dead by armed unidentified men after he had complained of police harassment.
The first named applicant also claimed that her father, [Mr F], who was a [police] officer had also suffered two traumatic events. She stated that on [date] April 2018 when her father was driving home from work an unmarked SUV pulled over in front of him and blocked his way. Suddenly two masked men jumped out and accosted him. These masked men asked him to provide an account of any intelligence information that his daughter had passed on to the ODM party. They also demanded to know if he was associated with the ODM party and his possible involvement in releasing any information. The men also asked him to hand over any material evidence in his possession. The first named applicant claimed that her father did not give any information to these people and denied having any knowledge of what the men were talking about. After an argument that lasted almost 20 minutes the men let him go but before they sped off, one of the masked men told him he will bear the consequences if he did not cooperate. The first named applicant stated that when her father got home, he informed other family members of what had transpired. Her father did not report the matter to police for fear of victimisation. She claimed that he was aware that police were involved. However, he shared the matter with a confidant in the force, who advised him to immediately file a formal complaint with the independent police oversight authority.

The first named applicant stated that two days later, early in the morning on [date] April 2018, her father was driving [when] an unmarked truck drove from nowhere and rammed his [car]. [His] car rolled several times before coming to a stop on the edge of the bridge. She stated that the first responders managed to pull her father out of the wreckage, he was rushed to hospital and was in a critical condition, but the doctors managed to stabilise him. The first named applicant claimed that, according to witnesses, the truck involved had no numberplates and he didn’t get a clear look at the occupants as the truck sped off immediately after the incident.
The first named applicant claimed that her father continued to receive therapy treatment from home but was still not fit to return to work. She claimed that at the interview with the delegate she mentioned that her father was in an accident however she did not include the whole story as she was reluctant to involve him as he is still in the police force. The first named applicant claimed she asked her father to confirm these events by appearing as a witness or writing a statement, but he told her he does not want to give evidence since he was still in the police force and may be in danger if it was found out that he was giving evidence in support of her protection visa. She claimed that she knew the police had been trying to make her father’s life difficult because they want him to come back to work and send him to a station which is in a violent area despite knowing his age and his injury.
In a written statement dated 23 August 2022, the second named applicant stated that he arrived in Australia in January 2016 is the holder of a student visa. His wife and daughter had applied as secondary applicants. He claimed that his family were from the Luo tribe and were linked to the ODM which is an opposition party. He claimed that his father was a close friend of Raila Odinga and his family supports the ODM. The second named applicant stated that in Kenya a lot of the police violence is directed at the Luo tribe and the political party supported by that tribe, such as the ODM. He claimed that his family knew a few of the politicians in the ODM that had been targeted including [names]. He stated they were close family friends.
The second named applicant stated that his student visa was cancelled on 10 October 2017 and on 27 February 2019 when he attended the hearing for the student visa cancellation, the Tribunal member asked him about the consequences of his student visa cancellation. He had explained about the culture of violence in Kenya, that 2017 was an election year and that in the lead up to elections politicians incite acts of violence against supporters and members of rival parties. He stated that his uncle, [Mr E], who had been a sponsor for his student visa, had been a victim of the violence and he experienced property damage with some of his businesses being targeted and destroyed. He stated that his uncle was [a staff] to the head of the ODM, Raila Odinga.
The second named applicant stated that he had told the Tribunal member at the time that his wife was a police officer in Kenya, and she would tell him that she was being harassed and intimidated by police officers because she had been passing information to the opposition party and the police had become aware or suspicious. His wife had told him that she was in danger of being intimidated and harassed, and police officers would come to their house to question her. He stated that when his wife resigned from the police force, he worked hard to make travel arrangements for his wife and daughter so that they could come to Australia as soon as possible. He claimed that this was one of the reasons that he ended up working more hours whilst on his student visa so that his wife and daughter could come to Australia. He claimed that when his wife arrived in Australia, she told him that she was passing information to the ODM party with the help of his father. He believed that his wife was still in danger as they had been told by family members that police officers were still looking for her.
In a submission to the Tribunal dated 23 August 2022, the applicants’ representative outlined the background of the applicants. It was stated that the second named applicant had come to Australia on a student visa on [date] January 2016, with the first named and third named applicants joining him as secondary applicants on that student Visa on [date] June 2017. It was claimed that the student visa was cancelled by the Department on 10 October 2017 on the basis that the second named applicant had been working in excess of 40 hours a fortnight. The applicants applied for a review of this decision and then applied for a protection visa on 6 February 2018. On 18 March 2019, the decision to cancel the student visa was set aside by the Tribunal (differently constituted).
The representative then outlined the background of the first named applicant and her claims for protection. He provided arguments in support of these claims for protection on the grounds that the first named applicant is a refugee and on the alternative grounds that she is entitled to complementary protection.
In this submission, the representative provided arguments in relation to the findings that had been made by the delegate. It was stated that the first named applicant had not applied for protection when she first arrived in Australia because she was already the holder of a valid substantive visa and that she had applied for protection within four months after that visa was cancelled. It was submitted that four months was not an unreasonable amount of time to prepare and submit a protection visa application, and that at the time the applicants were holders of valid bridging visas. It was stated that at the Tribunal hearing in relation to the student visa cancellation, the second named applicant had provided evidence that his wife was in danger if she was to return to Kenya and that the Tribunal had accepted this evidence.
The representative explained the first named applicant’s motivation in passing on information to the ODM and claimed that it was unreasonable for the delegate to find that her reasons for doing so were not compelling. It was also argued that it was not unreasonable for the first named applicant to delay her departure from Kenya after resigning from the police force given that she had to obtain a clearance letter from the force before departing the country and the family had to organise and fund travel to Australia.
The representative also outlined how the first named applicant had obtained sensitive information in her role as a police officer and how she had passed that information on to representatives of the ODM.
The representative referenced a number of sources of country information in relation to Kenya and the operations of the police force in Kenya. The representative submitted that the culture of policing in Kenya was vastly different to Australia and claimed that the harm perpetrated by the police in Kenya has consistently been disproportionate, and there was no evidence to suggest that the harm inflicted on the first named applicant would be reasonable. The representative argued that relocation would not be reasonably expected in the circumstances and that no protection from the authorities could be obtained, given that the harm being inflicted was by state authorities. The representative stated that although there were oversight authorities in Kenya, the country information indicated that relying on oversight authorities would be unreliable. In addition, oversight authorities are engaged after harm has been inflicted, which would not be useful in this matter.
Together with the submission submitted on 23 August 2022, the representative provided the Tribunal with the following additional information:
·extracts from the Kenyan Law Reform Commission website relating to the establishment of the National Police Service;
·extracts from the National Police Service website relating to the functions of the Administration Police Service, the Kenya Police Service and the General Service Unit;
·country information dated 5 January 2011 from the Refugee Review Tribunal regarding the Luo ethnic group, the Kisumu area, and levels of police and state protection available in Kenya;
·a country report from Freedom House titled Kenya: Freedom in the World 2021;
·the Prohibition of Torture Handbook 2002;
·a news article dated 2 July 2017 titled ‘Kajulu Ward ODM nominee Clifford Mwallo goes missing’;
·a news article dated 19 July 2017 titled ‘Rangwe MP aspirant Ezra Odhiambo goes missing’;
·a news article dated 7 July 2017 titled ‘Newton Ochieng Babior, author of The Raila Conspiracy, resurfaces after five days’;
·a news article dated 20 August 2022 titled ‘Pain as ODM party official mysteriously goes missing’;
·the Kenya 2021 Human Rights Report from the United States Department of State;
·a news article dated 30 October 2012 titled ‘Politician’s death prompts Kenya violence’;
·a BBC news article dated 18 October 2017 titled ‘Kenyan election official Roselyn Akombe flees to US’;
·a news article dated 13 November 2011 titled ‘Who ordered the killing of Chemorei?’;
·a news article dated 4 October 2019 titled ‘Lamu police probe officer’s disappearance’;
·an undated news article titled ‘Search for missing GSU officer intensifies after car found abandoned in Mwiki’;
·a news article dated 18 March 2019 titled ‘GSU man disappeared in 2010 – family’s agony in long wait for missing presidential guard’;
·an undated news article titled ‘Missing Embakasi East returning officer Daniel Musyoka found dead’;
·a report from Amnesty International and Human Rights Watch titled ‘Kill Those Criminals’ which outlines security forces violations in Kenya during the August 2017 elections;
·the Amnesty International Report 2017/18 – Kenya;
·a news article dated 30 October 2017 titled ‘Kenya: violence, killings and intimidation amid election chaos’;
·a news article dated 25 March 2020 titled ‘Kenya’s killing and raping game and the despots who run it’;
·an undated article by Tessa Diphoorn from Utrecht University titled ‘The pure apples: Moral bordering within the Kenyan police’;
·a report from the report dated 9 June 2022 from the International Crisis Group titled ‘Kenya’s 2022 election: high stakes;
·a news article dated 24 July 2022 titled ‘Kenya’s young voters have a dilemma: they dislike ethnic politics but feel trapped in it’
·a report dated July 2021 titled ‘Seizing East Africa’s opportunities for peace’;
·an article from Human Rights Watch dated 22 April 2020 titled ‘Kenya: police brutality during curfew’;
·an article from Human Rights Watch dated 1 August 2022 titled ‘Kenya: police impunity raises election risk’;
·a publication from the Department of Home Affairs titled ‘Life in Australia - Australian values and principles’
·a report from Human Rights Watch titled ‘Kenya: Events of 2020’;
·various identity documents for the applicants;
·a copy of an undated certificate from the Orange Democratic Movement Party of Kenya indicating that the first named applicant was a life member of this party;
·a printed document from [media] listing Raila Odinga’s top aides and employees as Prime Minister, which includes the name of [Mr E];
·a photograph of two men who are claimed to be [Mr D] and Raila Odinga;
·documents relating to the first named applicant’s service in the Kenya police force, which had previously been provided to the Department; and
·identity and police service documents for the first named applicant’s father. The police service document indicates that the father was appointed to the police service on 15 January 2019.
In a further submission dated 27 August 2022, the representative provided identity documents for the second named applicant’s father together with documents and taxation records to evidence his operation of a [business] at [Location 1].
On 30 August 2022, after the conclusion of the Tribunal hearing, the applicants’ representative provided the Tribunal with copies of documents including a Kenyan ID card in the name of [Mr F]; a Kenyan National Police Service card in the name of [Mr F]; a letter dated 5 December 2018 from [a hospital] stating that [Mr F] had been treated for multiple injuries from 9 April 2018 to 16 April 2018 and had attended regular follow up appointments; a copy of a medical report dated 26 June 2018 indicating that [Mr F] had been injured in a road traffic accident on [date] April 2018; a copy of an X-ray; 2 photographs of the [Mr F] in hospital; and two photographs of a badly damaged [vehicle].
On 31 August 2022, the applicants’ representative provided the Tribunal with a copy of [a degree] conferred on the second named applicant by [a] University on 2 February 2022.
The Tribunal has read and considered all of the documents provided on behalf of the applicants prior to making its decision in this matter.
Tribunal Hearing
At the Tribunal hearing, the first named applicant confirmed that she had been born in Nakuru, which was located in the Rift Valley in Kenya. She claimed that she was a member of the Kalenjin tribe and confirmed that this was the majority tribe in the Rift Valley as well as the second largest tribe in Kenya.
The first named applicant stated that her parents were still alive and living in their local area. Her father was a police officer, and her mother was a farmer. She had [siblings] who were all living in the same area. Her older siblings were married but her [younger] siblings were still studying. She confirmed that she had studied for a [qualification] in Kisumu, Kenya.
The first named applicant stated that after she finished high school in her local area, she took a break for a year before joining the police force in 2008. She completed her police training in Kikango and was then immediately posted to Kisumu in 2009, where she remained until she came to Australia. She claimed that she met her husband around 2009 when she was posted to work at [Location 1], where her husband’s family operated a [business]. She claimed that she officially married her husband in 2015 but they had been living together since 2010 and their daughter was born in [year]. She claimed that she lived together with her husband in a rented property in [Village 1], which was close to [Location 1], from 2010 until she came to Australia.
The first named applicant stated that she had married her husband in a traditional marriage ceremony in 2015. She claimed that her parents were in attendance at the ceremony and her husband’s family had paid a traditional bride price which she described as being some money and some cows. She then clarified that the bride price was around 80,000 Kenyan shillings, or around $1000, and three cows.
The first named applicant stated that her husband came to Australia in January 2016 and confirmed that before he came to Australia, he had been working in his family [business] helping his father. She claimed that her husband came to Australia to study with the intention of returning to Kenya after he completed a Bachelor degree. She stated that she did not come with him because she was working in Kenya and had no plans to come to Australia. She confirmed that her husband had not applied for a visa for his wife and daughter when he applied for his original student visa. She stated that her husband did apply for his family to come to Australia in 2016, after he had arrived, but she could not recall in which month the application was made. She confirmed that the visa for herself and her daughter had been granted around April 2017. She claimed that when she came to Australia she studied for a [qualification].
The first named applicant confirmed that the family’s student visas were cancelled in October 2017 but her husband had appealed the cancellation and was successful. She indicated that her husband had then continued to study and had graduated with a [degree] in 2022.
The first named applicant stated that her husband applied for her to come to Australia because her life was in danger. She claimed that the police had found out she was giving information to the local party chairman of the Orange Democratic Movement (ODM). She claimed that she had been providing this information from 2015 to 2017, and when asked to provide more specific dates the first named applicant claimed that she had been providing this information from November 2015 until the day before she came to Australia.
The Tribunal asked the first named applicant what sort of information she had been providing to the ODM. She responded that it was information about members of the ODM who were being targeted by police during political rallies. When asked who these members actually were, the first named applicant mentioned Raila Odinga, the leader of the ODM. When asked to clarify if she had provided information to the local party chairman about Mr Odinga, the first named applicant responded that she had also provided information about the rest of the members and when again asked to name some of the members she mentioned the name of [Mr G].
When again asked to provide names of other members of the ODM who she had provided information about to the local party chairman, the first named applicant stated that she had also provided information about civilians who were members of the ODM. When asked if she could name any of these civilians, the first named applicant stated that she could not remember the names because these names were Luo tribal names. The Tribunal asked the first named applicant how she could provide information about these people if she did not know their names. She responded that they were not famous so she could not remember and added that she could remember the names of the Members of Parliament. She then added that she could remember the name of [Ms H].
The first named applicant was asked to clarify if [Ms H] had been a member of the ODM. She responded no, however added that she was of Luo ethnicity and was [an official]. When asked what information she had provided to the ODM about this woman, the first named applicant stated that she told them her life was in danger because she was Luo. She claimed that she had received information that she would be kidnapped and stated that she had obtained this information through the police. She claimed that she collected information in her role studying [and] from her father who had been in the [police]. She also stated that she would gather information from police radio about people who would be targeted at rallies.
The Tribunal asked the first named applicant why she had not mentioned this claim about providing information to the ODM about [Ms H] until the Tribunal hearing. She responded that she believed she had mentioned that during her interview with the delegate.
When again asked if she could provide names of any of the civilians, she had claimed to have provided information about to the ODM, the first named applicant stated that she could not remember all of them. When asked if she could remember any of them, the first named applicant did not provide an answer.
The Tribunal pointed out to the first named applicant that the three people she had mentioned in her evidence to the Tribunal all had a high public profile, were well-known and their details were publicly available and easily accessible, however she had been unable to name any civilians who had no public profile, despite her claims that she had provided information about such people to the ODM. In response the first named applicant stated the police target innocent civilians who were not armed. She added that it had been too long, and she could not remember all the names.

The first named applicant stated that she had joined the ODM in October 2016 as a life member in order to provide them with information. She then stated that she had actually joined in 2015. When asked to clarify whether she was claiming to have joined in October 2016 or in 2015, the first named applicant stated that it was October 2015. She indicated that she had stated October 2016 because of a slip of the tongue. She claimed that she had paid 20,000 Kenyan shillings to become a life member and stated that she had not been issued with a membership card but had been issued with a certificate, which she had provided to the Tribunal. When it was pointed out that the certificate did not have a date on it, the first named applicant stated that they did not normally date these certificates but when asked why not, she stated that she did not know.
The first named applicant stated that she did not attend any meetings of the ODM. She claimed she joined the party to gain their trust because she was a police officer and wanted to pass on information to them. When asked why she joined as a life member rather than as an ordinary member, the first named applicant stated that it was in order to gain their trust because she was a police officer. She added that she was opposed to the ethnic profiling being done by the government.
The Tribunal pointed out to the first named applicant that it had some concerns about the general nature of her evidence and her inability to name any of the people who she claimed to have provided information about to the ODM, apart from three people with a high public profile whose names were publicly available. The first name applicant stated that she could name another person. She claimed that this person was [name] and added that he was a member of the ODM. When asked why she had not been able to name this person earlier in the hearing, the first named applicant stated that she had just remembered the name because it had been a long time. She then added the name of [name].
When asked why she had not been able to recall these names earlier in the hearing but was now able to do so, the first named applicant stated that she could not remember all of them at the same time.

100. The first named applicant indicated that she provided information to the ODM that she had gathered in her work as a police officer because she had sworn an oath to protect life. She claimed that in Kenya she had seen police target members of the opposition, including ODM members and supporters. She claimed she joined the ODM because police were going against the rule of law, and she also wanted to protect her husband and her daughter from ethnic profiling.
101. When asked if her husband and her daughter had ever been ethnically profiled, the first named applicant stated that they had not been but added that as Luo people there was always a chance.
102. The first named applicant confirmed that the Luo were the majority tribe in the Kisumu region where the family lived. When asked if people of Luo ethnicity suffered discrimination in that area, the first named applicant stated that there was ethnic profiling at rallies and police used excessive force, including live bullets, against them. She added that some people were abducted and tortured.
103. The Tribunal indicated to the first named applicant that country information verified that political campaigning in Kenya often lead to heightened tensions and even dangerous situations. However, the Tribunal asked the first named applicant if she was claiming discrimination against the Luo in the Kisumu region outside of this political environment. She claimed that there was discrimination from the government because the Luo had been in opposition for a long time and there was an unequal distribution of infrastructure in the area.
104. The Tribunal asked the first named applicant how the police found out that she was providing information to the ODM. After a significant pause, the first named applicant stated that maybe somebody saw her with them. She added that they also suspected her because her husband’s family were closely linked to Mr Odinga through both her husband’s father as well as her husband’s uncle.
105. When asked what happened after the police found out or suspected that she had been providing information to the ODM, the first named applicant stated that her superiors would come to visit her on her days off. She claimed that this started happening in late 2015 and sometimes she would be summoned to the office of her supervisor. When asked if she had suffered any harm as a result of these events, she stated that she had not done so because she denied everything but added that mentally she was concerned about being followed and about being regularly interviewed. She stated that she was interviewed about these matters almost every month from 2015 until she came to Australia.
106. The Tribunal asked the first named applicant if she had been punished, demoted, suspended or dismissed from the police force because of these issues. She claimed that she had been transferred to a remote area in 2016 but she appealed against the transfer and managed to avoid it with the help of her father-in-law. When asked if she had any documentation to confirm this alleged transfer, she stated she could not get the records because they were within the police station. She indicated that she had simply been told she was going to be transferred but had not been given a letter to verify it.
107. The Tribunal asked the first named applicant to confirm her claim that the police in Kenya became concerned that she was a political operative providing information to the ODM whilst being employed as a police officer. She responded that they suspected her of doing so. She added that they visited and questioned her a lot. The Tribunal asked the first named applicant why she would be issued with a letter thanking her for her service and wishing her all the best upon her resignation from the police force, if the force suspected her of being involved in such matters. She responded that she did not understand why. She added that she had followed procedures to resign and wanted to resign within 24 hours, but it took more than one month to gain approval of her resignation.
108. The first named applicant was asked why the police force would deliberately delay approving her resignation if at the same time they had concerns about her passing on information from the police force to an opposition political party. She responded that she did not know and added that maybe it was because they suspected that she would leave the country. When it was pointed out to the first named applicant that the police would have the power to stop her from leaving the country if they wanted to do so and the fact they didn’t may indicate that they had no interest in her whatsoever, the first named applicant responded that this was not the case. She added that immediately she got the letter approving her resignation she flew out of Kenya on the next available flight.
109. When asked if anybody in the police force had pressured her to resign, the first named applicant responded that she wanted to resign but she was waiting for her visa before she could resign. She then confirmed that nobody in the police force ever pressured her to resign. When asked why the police force had not tried to get rid of her if they suspected her of involvement in leaking police information to opposition political parties, the first named applicant stated maybe that was what was behind the attempted transfer and added that perhaps this was an attempt to push her to resign. When it was pointed out to the first named applicant that the police could have sacked her from her employment if they suspected her of such involvement, she responded that maybe they didn’t have the proof and needed to find the proof before they could remove her.
110. The Tribunal pointed out to the first named applicant that her submissions in her claims for protection, which were substantiated in many parts by the country information she had provided to the Tribunal, indicated that the police in Kenya don’t always have regard for the Rule of Law. The first named applicant responded that they needed to have proof before they could remove her because she could take legal action and added that maybe they were looking to find some evidence.
111. The first named applicant stated that since she had left Kenya and come to Australia, civilians and police had visited her family members and the family members of her husband questioning them about her whereabouts. She added they had been to her parents’ home asking about her and her husband. She claimed that they had questioned her father, but he did not know anything about her providing any information. The first named applicant stated that the last time these people had visited her family home was around August 2020 and the last time they had visited her husband’s family was around August 2018.
112. When asked if any of her family members had suffered any harm during any of these visits, the first named applicant stated that her father had been in an accident in April 2018, three days after he had received a threat. However, she clarified that no other harm had occurred to any other family member. In relation to her father’s accident, the first named applicant stated that two people had started questioning her father about her in April 2018. He had denied any knowledge of anything, and these people had threatened him. Three days later, when he was [working], a truck blocked his way and there was an accident in which he was hurt. She claimed that her father broke his leg, was critically hurt, underwent surgery, had to remain in hospital for a few weeks to receive treatment and was still not back at work more than four years later. The first named applicant claimed that she had provided her representative with documents evidencing her father’s injuries, and the representative indicated that although he believed he had already provided these documents to the Tribunal, he would provide another copy of these documents as soon as possible after the hearing.
113. The Tribunal asked the first named applicant to clarify when she had first found out that her husband’s family were close friends with the leader of the ODM, Raila Odinga. In response, the first named applicant stated that she was first introduced to Mr Odinga at her father-in-law’s [business] some time in 2010 and clarified that she had met Mr Odinga before her daughter had been born. She also claimed that Mr Odinga had visited her father-in-law’s home.
114. The first named applicant was asked why she had not mentioned this close relationship between her husband’s family and Mr Odinga when she had made her application for protection, at the interview with the Department delegate or at any time prior to her written statement dated 23 August 2022. After a significant pause, the first named applicant stated that she did not want to involve family members and wanted to fight her matter on her own. It was pointed out to the first named applicant that she had involved family members in other aspects of her claim, including that both her own family members and her husband’s family members had been visited by people seeking her whereabouts after she departed from Kenya. In response, the first named applicant stated that the main reason police followed her was the family relationship with Mr Odinga and also the relationship between her husband’s uncle and Mr Odinga. She stated that they suspected that she provided information to the ODM because of this relationship. She claimed that because of these family ties and this deep relationship she would be the first to be suspected because they would regularly see Mr Odinga at the [business].
115. The Tribunal asked the first named applicant why she had not previously made this claim that the relationship between her husband’s family and Mr Odinga was a key reason the police suspected her of providing information to the ODM. The first named applicant responded that she did not want to involve the family and it didn’t come into her mind at the time that it could be a reason. It was pointed out to the first named applicant that the fact that she had not mentioned this information at an earlier stage may create credibility concerns about the evidence she was providing to the Tribunal. In response, the first named applicant stated that when she was filling out the application, she needed to collect a lot of information and she didn’t think it would have a big weight. When it was pointed out to her that a claim of the family relationship with Mr Odinga could have been made without the need to provide any other information or documents, the first named applicant stated that she had previously mentioned the family supported the ODM.
116. It was pointed out to the first named applicant that there was a significant difference between a claim that a person or family of Luo ethnicity would support the ODM and the claim that a family had a strong relationship with the leader of the ODM. On this basis, the first named applicant was asked why she had not mentioned this strong relationship at an earlier stage of her application for protection. The first named applicant responded that she had no answer.
117. The first named applicant stated that if she returned to Kenya now or in the reasonably foreseeable future, she feared that she would be persecuted. When asked why she feared persecution, she responded that many police officers who went against the government had been kidnapped and killed. She then referred to one senior police officer who had been killed in front of his family. When asked when this episode had occurred, the first named applicant stated that she did not know but claimed that she could look at some of the news articles that she had brought along in a folder with her. The first named applicant was asked if she knew about this matter regarding the senior police officer from her personal knowledge or because she had read about it in news articles. She responded that she had heard about it on the news but could not recall when the event had happened.
118. The Tribunal asked the first named applicant to outline why she personally feared harm in Kenya and she responded that she feared that she would be kidnapped, tortured and killed. She claimed that this was the way police acted against people who had gone against the government.
119. The first named applicant clearly stated that if this particular issue relating to the police force being aware that she had passed on information to members of the ODM party did not exist she would not have any other fear about returning to Kenya.
120. When asked if she had anything else that she wanted to say, the first named applicant stated that the way the police worked in Kenya was different to the way they worked in Australia. She claimed that in Australia the police would work closely with civilians, but it was very different in Kenya. She claimed that in Kenya, a police officer would not take you to court if you went against them but instead, they would torture you or kill you or even pursue your family. When asked if she had done any of these things as a police officer herself, the first named applicant stated that she had not done so and added that it was the reason why she had joined the ODM and provided them with information because she was concerned that the police were working against people and using excessive force.
121. The representative asked the Tribunal to clarify with the first named applicant why she had not previously disclosed the relationship between Mr Odinga and her husband’s family. The representative added that she had provided more information about this to the representative than she had provided to the Tribunal. The Tribunal pointed out to the representative that the first named applicant had already been given an opportunity at the hearing to outline why she had not made this disclosure at an earlier point in her application for protection. However, the Tribunal accepted the representative’s suggestion and asked the first named applicant if she had any more to add in relation to this issue. After a very long pause, the first named applicant stated that she wanted to get evidence from her father-in-law including an affidavit about his connection to Mr Odinga, but he had refused to provide her with one. She then stated she had now decided to provide this additional information as extra evidence and added that she was allowed to provide more evidence along the way during her protection claims.
122. It was pointed out to the first named applicant that her own evidence to the Tribunal indicated she was aware of the link between Mr Odinga and her husband’s family from around 2010 but had chosen not to mention it at all during her claims for protection until around a week before the Tribunal hearing. It was also pointed out to the first named applicant that this knowledge was her own personal knowledge and did not require any affidavit or other documents before a claim could be made, although any such corroborating documents could be provided at a later date. In response, the first named applicant indicated that she had nothing else to add.
123. In his evidence to the Tribunal, the second named applicant confirmed that he had been born in Kisumu, Kenya and that he was of Luo ethnicity. He claimed that his parents were still alive and stated that he was from a polygamist family. He indicated that his mother had given birth to [number] children including himself, but one had now passed away. His father’s other wife had also given birth to [number] children but only four were still alive. His parents still lived in the Kisumu area and ran a successful [business] located at [Location 1]. Two of his half siblings lived in [a country], two half siblings were currently living in Australia and the rest of his siblings were still living in Kenya.
124. The second named applicant stated that he had completed a [qualification] [in] 2009. After that time, he had helped his parents to run their [business] until 2016 when he came to Australia to study. He claimed that he had been married in 2015 and indicated that the wedding was a small civil ceremony at which some of his family members had attended. He stated that his wife’s parents were not in attendance at the ceremony because they lived in a different town. He confirmed that his father’s family had paid a bride price to his wife’s family and indicated that this had been done at an initial ceremony according to the Kalenjin tribal customs of his wife’s family. He could not remember when this traditional ceremony had taken place but confirmed that had taken place when he had visited his wife’s family in Nakuru. He stated that this initial acceptance ceremony had taken place sometime after his daughter had been born. He indicated that he could not recall what bride price his family had paid to his wife’s family, and he added that it was tradition that the groom did not find out about these things.
125. The second named applicant indicated that his wife and daughter did not come with him to Australia in January 2016 because his wife had a job with the police, and she wanted to continue in that job. He confirmed that when he applied for his initial student visa, he had only applied for himself and had not included his wife or daughter in the application. The second named applicant stated that he later applied for his family to join him in Australia after his wife had shared with him that she was being targeted by her supervisor, so he made arrangements fearing that his wife’s life was at risk. He stated that his wife’s life was at risk because she had passed information to the ODM party, and she felt that police might become suspicious about her activities. He added that during that process she had been harassed.

191. Having considered all of the first named applicant’s claims individually and cumulatively, on the evidence before it, the Tribunal is not satisfied that the first named applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
192. For the reasons given above, the Tribunal is not satisfied that the first named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the first named applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).

194. The Tribunal has already found that if the first named applicant returned to Kenya, she would not face any harm because of any alleged membership of the ODM or because of any actual or imputed support for the ODM or because of any suspicion that she passed on sensitive information of any kind that she obtained as a police officer to the ODM as claimed or because of any ongoing interest that the police or the security authorities may have in the first named applicant as claimed.
195. Apart from these claims, the first named applicant has not made any other claims, and none arise from the facts before the Tribunal, that she fears any harm for any other reason if she returned to Kenya.
196. Having considered all of the first named applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing there is a real risk the first named applicant will suffer significant harm if she were to return to Kenya.
197. Accordingly, the Tribunal is not satisfied that the first named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Claims of the second named applicant
198. The second named applicant is the husband of the first named applicant. The Tribunal accepts that the second named applicant is of Luo tribal or ethnic origin.
199. In his evidence at the Tribunal hearing, the second named applicant made some vague claims that he had suffered some discrimination in the past in Kenya because of his Luo ethnicity. He claimed that he been denied opportunities in the past in Kenya because of his Luo ethnicity and that he did not get what he described as a ‘fair chance’.
200. However, the second named applicant did not state at the hearing what opportunities had been denied to him, when these opportunities had been denied to him or who had denied him these opportunities. He also did not offer any explanation as to how or why he had been denied a ‘fair chance’. As discussed with the second named applicant at the hearing, he managed to obtain a tertiary education in Kenya and his family were able to run a successful [business] in Kenya, which would strongly indicate that the second named applicant and his family did not face discrimination in Kenya because of their Luo ethnicity.
201. On the evidence before it, the Tribunal does not accept that the second named applicant suffered any discrimination in the past in Kenya because of his Luo ethnicity. Accordingly, the Tribunal finds that the second named applicant did not suffer any discrimination in the past in Kenya because of his Luo ethnicity. On the basis of this finding that the second named applicant did not suffer any such harm in the past in Kenya, the Tribunal is not satisfied that there is a real chance at the applicant would suffer any harm if he returned to Kenya now or in the reasonably foreseeable future for reasons of his Luo ethnicity.
202. The second named applicant stated at the Tribunal hearing that he feared that he would be harmed if he returned to Kenya because of his wife’s problems arising from her provision of sensitive information that she obtained as a police officer to the ODM. He clearly stated that apart from the issue that directly related to his wife’s problems, he had no other fears about returning to Kenya.
203. The Tribunal has already found that the second named applicant’s wife, being the first named applicant, would not face any harm if she returned to Kenya now or in the reasonably foreseeable future for reasons of any alleged membership of the ODM or for reasons of any actual or imputed support of the ODM, or for reasons of any suspicion that she passed on sensitive information of any kind that she obtained as a police officer to the ODM or for reasons of any ongoing interest that the police or the security authorities may have in the her. Based on these findings, the Tribunal is not satisfied that if the second named applicant returned to Kenya now or in the reasonably foreseeable future that there is a real chance that he would suffer any harm for reasons of his wife’s claimed problems arising from her alleged provision of sensitive information that she obtained as a police officer to the ODM.
204. Apart from these claims, the second named applicant has not made any other claims that he fears harm for any other reason if he returned to Kenya, including for reasons relating to his actual or implied political opinion as a member and supporter of the ODM more generally (apart from the claims related to his wife) and no such claims arise on the facts before the Tribunal. At the hearing, the second named applicant clearly stated that apart from the problems relating to his wife, he did not have any other fears of harm about returning to Kenya.
205. Having considered all of the second named applicant’s claims individually and cumulatively, on the evidence before it, the Tribunal is not satisfied that the second named applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
206. For the reasons given above, the Tribunal is not satisfied that the second named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the second named applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).

208. The Tribunal has already found that if the second named applicant returned to Kenya, he would not face any harm because of his Luo ethnicity or because of his wife’s problems arising from her alleged provision of sensitive information that she obtained as a police officer to the ODM.
209. Apart from these claims, the second named applicant has not made any other claims that he fears harm if he returned to Kenya, including any claims relating to his actual or implied political opinion as a member and supporter of the ODM more generally (apart from the claims related to his wife), and no other claims arise on the facts before the Tribunal.
210. Having considered all of the second named applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing there is a real risk the second named applicant will suffer significant harm if he was to return to Kenya.
211. Accordingly, the Tribunal is not satisfied that the second named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Claims of the third named applicant
212. The third named applicant is the infant female child of the first named and second named applicants and is currently [age] years old. The applicants have claimed that the third name applicant is considered to be of Luo tribal or ethnic origin, based on her father’s lineage, and the Tribunal accepts this claim.
213. It has been claimed that if the third named applicant returned to Kenya, she would face harm from the police and the security forces because of the problems that her mother (the first named applicant) arising from her alleged provision of sensitive information that the mother obtained as a police officer to the ODM.
214. However, the Tribunal has already found that the third named applicant’s mother would not face any harm if she returned to Kenya now or in the reasonably foreseeable future for reasons of any alleged membership of the ODM or for reasons of any actual or imputed support of the ODM, or for reasons of any suspicion that she passed on sensitive information of any kind that she obtained as a police officer to the ODM or for reasons of any ongoing interest that the police or the security authorities may have in the her. Based on these findings, the Tribunal is not satisfied that if the third named applicant returned to Kenya now or in the reasonably foreseeable future that there is a real chance that she would suffer any harm for reasons of her mother’s claimed problems arising from her alleged provision of sensitive information that she obtained as a police officer to the ODM.
215. Apart from these claims, no claims have been made on behalf of the third named applicant that she would face any harm for any other reason if she returned to Kenya, including for reasons relating to her Luo ethnicity or any actual or implied political opinion more generally (apart from the claims related to her mother), and no other claims arise on the facts before the Tribunal.
216. Having considered all of the third named applicant’s claims individually and cumulatively, on the evidence before it, the Tribunal is not satisfied that the third named applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
217. For the reasons given above, the Tribunal is not satisfied that the third named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the third named applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).

219. The Tribunal has already found that if the third named applicant returned to Kenya, she would not face any harm because of her mother’s problems arising from the mother’s alleged provision of sensitive information that she obtained as a police officer to the ODM.
220. Apart from these claims, no other claims have been made on behalf of the third named applicant that she would face any harm for any other reason if she returned to Kenya, including any claims relating to her Luo ethnicity or her actual or implied political opinion generally (apart from the claims related to her mother), and no other claims arise on the facts before the Tribunal.
221. Having considered all of the third named applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing there is a real risk the third named applicant will suffer significant harm if she was to return to Kenya.
222. Accordingly, the Tribunal is not satisfied that the third named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Conclusion

For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION

224. The Tribunal affirms the decision not to grant the applicants protection visas.
Peter Katsambanis
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 2627

24 April 2023

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