2118006 (Refugee) - [2025] ARTA 1352

2118006 (REFUGEE) [2025] ARTA 1352 (20 MAY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2118006

Tribunal:General Member B Butler
Date:20 May 2025

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

Statement made on 20 May 2025 at 10:01am
CATCHWORDS
REFUGEE – protection visa – Kenya – particular social group – bisexual men – fear of detention – physical and verbal abuse – criminalisation of homosexuality – state protection – right to enter and reside within East African Community states – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Appellant S395/2002 v MIMA, Appellant S396/2002 v MIMA (2003) 216 CLR 473
ESD17 v MIBP [2018] FCA 1716
MIMAC v SZRHU (2013) 215 FCR 35
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

The applicant is [an age]-year-old man who is a national of Kenya. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant him a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant arrived in Australia as the holder of student visa in June 2008. He applied for the protection visa on 15 March 2017. The delegate refused to grant the visa on 11 November 2021.
The applicant applied to the former Administrative Appeals Tribunal (AAT) for review of the delegate’s decision on 30 November 2021.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal on 9 April 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Swahili and English languages, however the applicant preferred to speak in English for the majority of the hearing.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
BACKGROUND
Evidence before the Department
The applicant claimed to be a bisexual, and that he interacts sexually with both men and women. He stated that he left Kenya because he needed the freedom to be himself and to practise his sexuality without fear of persecution, victimisation or harassment. He acknowledged that he also left Kenya so that he could study in Australia.
He stated that if he remained in Kenya, he would have been on a “collision path with the authorities” as sexual relations with men are prohibited under section 162 of the Kenyan Penal Code, with a penalty of up to 14 years’ imprisonment.
He considered that his circumstances made him live like a prisoner in his own country, and that he never made a conscious decision to be attracted to other males. He stated that he has the right to live and fall in love with a person irrespective of their gender and that living a life where one is denied such freedom constitutes harm. He does not want to be considered an outcast because of his sexuality, and does not think he deserves ridicule or humiliation.
Given same-sex relations are criminalised in Kenya, he did not consider that he could seek protection from Kenyan authorities, and he did not believe he could relocate as the treatment of sexuality within Kenya is widespread and universal.
He was interviewed by the delegate. During the interview the applicant referred to bisexuality being a taboo within Kenyan society, and said that other boys at school avoided him and he speculated that it was because of his sexuality.
The applicant provided a statement to the delegate after the interview, and photographs of text messages purportedly between the applicant and another man in Australia. In the statement the applicant stated as follows:
“A question was put to me querying why I have had only very few sexual relationships with men since I came to Australia. As stated in the interview, I am an introvert. I am not a confident person at all. I am now [age] years of age. I have never had a long-term relationship. If I could change my personality and sexual orientation maybe I would have become a father like most men of my age. I would have loved to be a grandfather as well. No one has ever expressed a desire to enter a long-term relationship or commitment with me. I have never made a woman pregnant. I do not have children. I feel that growing up in an intolerant and deeply conservative society like Kenya destroyed my chances of developing emotionally. I look back at my life with a deep sense of sadness and regret. Sad, perhaps for not being ‘straight’. Sad for not giving my parents any grandchildren. Sad for living a life of always trying and pretending to fit in.”
In his statement, he also stated:
“It is frankly difficult for me to discuss private sex matters to strangers. As a young person growing up in Kenya from about the age of 7 to 15 years of age, I felt that I was not as curious, keen or excited about girls as the other boys. I was, in fact, able to mix and play with girls without a problem. I remember during my adolescence feeling anxious and confused about how I felt as I developed into puberty. I did not quite understand the excitement and interest other boys had in girls. I felt most comfortable with girls as friends but starting to feel attracted to boys. I was confused and I thought this was not normal and it would go away. I tried hard at dating a girl at high school but at the same time I was attracted to a certain boy whom I ended up kissing, touching, and fondling at some point. I interacted with both of them sexually during my high school time.”
He continued, as follows:
“The environment I grew up in made me understand that the normal thing is that girls are romantically and sexually attracted to boys and vice versa. Anything outside of that was not even spoken about or considered normal, it was, as I stated in the interview, considered shameful or taboo. Even now perhaps it is only my brother out of the entire family who may have noticed that I sometimes have men.”
The delegate, having regard to the interview, found that the applicant was trying to construct incidents that occurred at school to support his claim that he experienced problems because of his sexuality. The delegate also asked the applicant about his experiences in Australia and found them to be vague and lacking in detail. The delegate concluded that the applicant was not a bisexual as claimed, having regard to the finding that his evidence was vague and unconvincing in relation to his realisation of his sexuality, his history of same-sex encounters and the nine-year delay in lodging his protection visa application.
Evidence before the Tribunal
On the morning of the hearing, the applicant’s representative emailed the Tribunal to provide a brief medical report, dated 19 December 2024, for the applicant. It states that the applicant has been diagnosed with Klinefelter syndrome.
Following the hearing, the applicant provided a medical report, prepared by [Doctor A] dated 14 April 2025. The report provides further information about the applicant’s medical condition. [Doctor A] states that:
“Klinefelter syndrome refers to a collection of characteristics in males that are caused by having two or more X chromosomes. In addition to its impact on development and fertility, Klinefelter syndrome is associated with many health problems, mainly due to reduced testosterone levels. Men with Klinefelter syndrome are more likely than men without to have: psychosexual and social problems which may include language delay and learning difficulties; anxiety and depression; and difficulties with social relationships; obesity; metabolic disease (e.g. type 2 diabetes); cardiovascular disease; autoimmune disease (e.g. multiple sclerosis, lupus).”
At the hearing, the applicant gave evidence largely consistent with his written statement to the delegate and claims in his visa application.
He said that he prepared the protection visa application himself with the assistance of his lawyer. He said that when he was nearing the end of his studies, he realised it would be difficult for him to return to Kenya, he explained to his lawyer what would happen if he returned to Kenya and his lawyer gave him advice on how to apply for a protection visa.
He said he is from Nairobi in Kenya, and has [specified family members]. One brother lives in Australia. [A sibling], who currently lives in Kenya, may return to Australia to live. He thinks that [these siblings] applied for skilled visas to remain in Australia.
He said that his parents paid for his studies in Australia, and that he studied [specified subject]. He works as [an occupation 1].
During his time in Australia, he has lived with other Kenyans in shared accommodation. He also referred to living with a [Nationality 1] gentleman man for a period of time. He said he is part of the Kenyan community in Australia and attends some events. He also attends church in Melbourne on Sundays and is a Christian.
I asked him to try to explain his understanding of his sexuality to me. He said that when boys at school spoke about girls, he was interested in girls but on the side, he knew that he had an eye for the boys, and that he felt confused. I asked him when he had this realisation. He said that it was during puberty, but he was not sure of the exact age. He said that he felt that it was out of the norm, and nobody else spoke about having such feelings. He noted that it was a forbidden topic to talk about, as a man, and that he should not talk being interested in men. I asked whether anyone noticed that he was interested in males. He said no, but when he was maturing, around the age of 15, he had friends who spoke about the art of sleeping with girls and discovering themselves, but he was interested in a boy.
He said that the boy, named [Mr A], was a gentleman and was very popular in the school. He said that [Mr A] had several friends and was outspoken. He clicked with everybody. I asked him to explain his interest in [Mr A]. He said that he had a subtle relationship with [Mr A], but that it was hidden, and nobody knew. He recalled meeting [Mr A] at night after everybody else had gone to sleep, and that they met in the toilet block in their boarding school. He said that they would kiss, fondle each other and just talk.
I asked whether anyone found them. He said that it went on for two years, but no one found them and that they did not meet every day. He said that [Mr A] knew where to meet him in the evenings. Their relationship ended when the applicant suspected that [Mr A] had spoken to others about him. He said that he was fearful because [Mr A] was a popular person, and sometimes when the applicant passed people, they would laugh. He said that after he had finished school, he realised that [Mr A] had never said anything about him to others. However, he ended the relationship because he could not trust [Mr A] as the laughter from other boys made him feel insecure.
I asked him why he thought being with a man was taboo. He said that he was brought up in a Christian family, and they are taught these matters in society and at church. However, his parents never mentioned it, and his brothers never mentioned it. It was not spoken of in the family.
I asked the applicant whether he had any other interactions with men in Kenya. He said that his family owned a [product 1] shop, and there was a regular customer, who was [an occupation 2]. He recalled that one day the man entered the shop around closing time, when the applicant was shutting the doors. He said that in the back section, they had an area where they made [other products], he said that he gave him the product he had asked for, and the man then touched him on the groin. He said that he was startled as he did not expect this behaviour from him. This led to the applicant and the man talking. He said that they fondled each other, and that he would sometimes come to the [product 1] shop, and they would spend time together. However, the applicant did not want him to stay at the shop for too long on each visit as he was concerned people may notice that the man was visiting the shop and then start speculating about their activities. He said that the customer came to visit him off and on for about eight months. His parents were not aware.
He said that he had also met men and women at social gatherings and realised he was interested in both genders.
I asked him what made him decide to come to Australia in June 2008. He said that his brothers encouraged him and told him that he should not continue his comfortable life in Kenya with his parents, and that it would be good for him to come to Australia to see another part of the world and study.
I asked him whether he had had any relationships in Australia. He said that he considered his housemate, who was a man from [Country 1], as a fling of sorts. He said he had gone to visit a Kenyan friend who lived with the [Nationality 1] man. He recalled that on their first encounter, he just said hello to him. He described how the man came to be his housemate, and that they would go for lunch and dinners together and occasionally attend the gym together. He said that the man taught him how to cook [Nationality 1] food and described some dishes and that they sometimes spent time lying on the couch together and that there was a sexual attraction. He said that this happened around 2018 to 2019. They also sent each other text messages. However, because of their religions, they did not take their relationship further and his housemate had to move away.
He said that he has visited a rooftop bar to meet men, when he was lonely. He said that he wanted to date somebody, and thought he should try. He did not meet anyone there with whom he could have a relationship, but he met people and had a casual chat about concerts, football and Kenya.
He said that he has had relationships with women in Australia, including in 2021 when he was in a relationship with a woman from [Country 2]. They parted ways after a year. He also had a relationship with a woman from Kenya, but they ended their relationship when he realised that she was talking to someone else.
He said that if he would not want his colleagues from his workplace, and from the Kenyan community, to have this information about his bisexuality. He said that they would discuss it with neighbours, and that this would adversely affect his family’s reputation in Kenya. He said that his family had a strong Christian upbringing and so his encounters with men, and his sexuality was a taboo. The concept of bisexuality being a taboo was repeated throughout the hearing.
I asked him how he reconciles his sexuality with his religious beliefs. He said that no one at his church knows anything about his sexuality, but it is a part of his life. He has not revealed it to the church, and he is living with two lives: one for the church and one for his personal issues.
He said that he has a fear of returning to Kenya because he does not want anyone to know about his sexuality, and he does not want to have look over his shoulder or be cautious. In summary, he said he wants to live a free life.
The applicant also referred to his recent medical diagnosis and pondered whether it had led to him having difficulty forming relationships. The applicant’s representative submitted that his medical condition, Klinefelter syndrome, may explain the vague nature of some of the applicant’s responses to the delegate and also before the Tribunal.
The applicant’s representative submitted a post-hearing submission which reiterated some of the applicant’s concerns that he has difficulties with expressing himself and that he is an introvert, and that the Tribunal should focus on the consistency of the applicant’s claims and the broader context of his situation, rather than expecting a detailed narrative about his same-sex encounters.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS

The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or under the complementary protection criterion.
For the following reasons, I have concluded that the matter should be set aside and remitted for reconsideration.
Applicant’s sexuality
I accept that the applicant is a bisexual. I found his testimony about his sexual experiences in Kenya and also in Australia to be consistent with his claim to be bisexual. He did not appear to embellish his account and noted that his experiences with men were short in duration.
In relation to his experience at boarding school and at the [product 1] shop, he emphasised that he wanted to keep the arrangements secret because he was concerned about what may happen if others found out. He provided a significant amount of detail about the incidents, which did not appear to be rehearsed, such as the location of the block where he met the boy at school and, in relation to the [product 1] shop, he did not want people to notice that the man, the [occupation 2], regularly attended and visited him around closing time. He appears to have thought that others considered him to be different, however, his family and others in society never directly confronted him. His behaviour and actions appear to have been shaped by his view that Kenyan society would not accept his same-sex attraction.
I accept that when he was in Kenya his behaviour in relation to potential male partner, such as at his school and the [product 1] shop, was motivated by a fear of being ostracised by the community and being harmed for his bisexuality. His interactions in Kenya were few in number, and I attribute this to his personality, which may have been affected by Klinefelter syndrome, as well as the environment in Kenya in which he did not feel that he could explore his sexuality for fear of being harmed. He has stated that he considers growing up in Kenya, which he described as deeply conservative, destroyed his chances of developing emotionally.
While the applicant has had some interactions with men in Australia, he has not had a long-term male partner (or female partner). He described visiting a gay bar and also having a ‘fling’ with his [Nationality 1] housemate and claimed that he provided a series of text messages between him and the man. He has also had a small number of relationships with women in Australia. The applicant did not appear to embellish his evidence or seek to exaggerate his experiences in Australia, rather he sought to explain that while he likes men, he has not had the opportunities in Australia to meet them and when he did have an opportunity, cultural factors (such as his and the other man’s religion) meant that they did not develop their relationship further. He appeared to have a fondness for his housemate and enjoyed cooking, spending time with him and going to the gym. In respect of the applicant’s behaviour in Australia, I accept that he is a shy person, and that because of this, he has not actively sought out relationships. I accept that his recently diagnosed condition, Klinefelter syndrome, may have affected his development as well as his social interactions, having regard to the medical evidence before me. His evidence at the Tribunal and also in his statement to the Department indicates that he does wish to have a companion, but because of his perceived personality traits, as a shy man, and also his past history, he has not been able to establish a long-term relationship.
I note that the representative has submitted that the delegate's conclusion about the applicant’s sexual orientation was legally unreasonable, having regard to the level of detail expected from the applicant given his background and that being gay or bisexual does not necessarily imply that an individual will have a long list of homosexual encounters. Having regard to the decision record, I do not consider that the delegate proceeded on the assumption that a gay or bisexual individual would have a long list of homosexual encounters. At the time of the delegate’s interview, the applicant’s medical condition had not been diagnosed, which I consider explains, in part, some of the applicant’s evidence. The applicant had received some treatment by the time of the Tribunal hearing. I also accept that it is difficult to discuss such matters with strangers.
The applicant has acknowledged his lack of relationships with men and women in Australia, and attributes that to being an introvert. I note that he has maintained contact with the Kenyan community in Australia, including at church and his family, and I accept that his contact with this community has similarly affected whether he could seek out relationships with men in Australia, given he considers that the same conservative views about bisexuality exist within the community. I accept that the applicant’s behaviour in Australia has been affected by his history in Kenya in which he considered he had to hide his sexuality, his involvement with the conservative Kenyan community in Australia, and his cultural background which appears to have caused him to internalise stigma towards his own sexuality. Despite these factors, he has had some limited interactions with men in Australia. Given he is now receiving treatment for Klinefelter syndrome, some aspects of his personality, such as his perceived lack of confidence, may adjust, such that he may seek out relationships.
Country information about situation in Kenya for LGBT people
I find that the applicant is a bisexual man who has Klinefelter syndrome and is being treated with a regime of testosterone injections. I have considered the situation for bisexual men in Kenya.
Kenya criminalises same-sex activity under its Penal Code; acts of ‘gross indecency’ and carnal knowledge against the order of nature’ are criminalised which criminalises activity between men.[1] While prosecutions under these acts are not common, police in Kenya reportedly use public order laws rather than legislation criminalising same-sex sexual relations to arrest LGBTIQ individuals. Kenyan police have also been reported to have used the provisions in relation to same-sex sexual relations as a pretext to harass and extort money from LGBTIQ individuals, or to deny services to LGBTIQ individuals who are victims of violence.[2]
[1] Human Dignity Trust, ‘Kenya’, (Web page, 12 May 2025) < UK Home Office: Country Policy and Information Note - Kenya Sexual orientation and gender identity and expression, Version 3, April 2020 (
[2] Human Rights Watch ‘Kenya: Court Upholds Archaic Anti-Homosexuality Laws', (Web page, 24 May 2019) <Kenya: Court Upholds Archaic Anti-Homosexuality Laws | Human Rights Watch>.
In February 2023, the Supreme Court of Kenya ruled that the constitution prevented discrimination on the basis of sexual orientation and therefore the Kenyan government’s decision to refuse the application of the National Gay and Lesbian Human Rights Commission (NGLHRC), a rights group in Kenya, for registration as a non-governmental organisation denied the affected persons their constitutional rights.[3] While the Court ruling was celebrated by the LGBT community in Kenya, it led to a backlash within Kenya with anti-LGBT protests held in Nairobi and Mombasa.[4] There was also a political response with politicians decrying the Court’s decision, with one saying that homosexuality is a foreign practice from the West which is not aligned with African values, and that homosexuality is worse that murder.[5]
[3] Daniel Kipchumba, ‘Ruling by Kenya's Supreme Court buoys LGBTQ+ community’, Reuters, (Online, 10 October 2023) < Isaac Kaledzi, ‘LGBTQ+ community in Kenya defies anti-gay protests’, DW, (Online, 17 October 2023) < Isaac Kaledzi, ‘LGBTQ+ community in Kenya defies anti-gay protests’, DW, (online, 17 October 2023) < The Star, ‘LGBTQ is worse than murder for us - Farah Maalim’, The Star, (Online, 1 March 2023) < Lise Woensdregt, Naomi van Stapele, ‘Queerphobia in Kenya: a supreme court ruling on gay rights triggers a new wave of anger against the LGBTIQ+ community’, The Conversation, (Online, 2 May 2023) <>
A bill, known as the Family Protection Bill,[6] seeking to criminalise homosexuality, same-sex marriages and ‘LGBTQ behaviours’ has been submitted to Parliament by MP Peter Kaluma.[7] He is reported to have said that if the bill is passed into law, it will criminalise the promotion, recruitment, and funding of homosexuality and LGBTQ, and will ban sexual health and sexual health rights and education.[8] The parliament is reported to be considering the Bill.[9] While the Bill has not passed Kenya’s Parliament, it existence and support within Parliament appears to be indicative of widespread animosity towards the LGBT community in Kenya.
[6] The Family Protection Bill (2023) ( Erpetua Etyang, ‘Details of Kaluma's bill on criminalising LGBTQ’, The Star, (Online, 8 April 2023) < Erpetua Etyang, ‘Details of Kaluma's bill on criminalising LGBTQ’, The Star, (Online, 8 April 2023) < ‘Kenya's anti-gay bill proposes 50-year jail term’, Africanews (Online, 13 August 2024) <>
In terms of community attitudes, there is reported strong opposition to LGBT rights, which reportedly reflects homophobic sentiments within the country.[10] In a 2013 survey conducted by the Pew Research Centre, 90% of Kenyans surveyed believed homosexuality should not be accepted by society.[11] However, in 2016, a survey found that 53% of people didn’t agree that being LGBT should be a crime and 46% of people did not have concerns with their neighbour being gay or lesbian.[12] Notwithstanding these responses, there is reported to be deeply entrenched stigma against LGBT people in Kenyan society and the most common rhetoric against same-sex attracted people comes from the religious and political elite who characterise homosexuality as being against African tradition and biblical teachings.[13]
[10] LGBT Rights in Kenya, Equaldex (Webpage) < UK Home Office: Country Policy and Information Note - Kenya Sexual orientation and gender identity and expression, Version 3, April 2020 ( 6.2.1.
[12] UK Home Office: Country Policy and Information Note - Kenya Sexual orientation and gender identity and expression, Version 3, April 2020 ( 6.2.2.
[13] UK Home Office: Country Policy and Information Note - Kenya Sexual orientation and gender identity and expression, Version 3, April 2020 ( 6.1.1.
In the region of Africa, Kenya is sometimes considered a haven for LGBT people fleeing oppressive laws in neighbouring countries, because laws in Kenya are not enforced.[14] However, the US Department of State has reported that LGBT refugees in Kenya face stigma and discrimination, and delays in processing their asylum applications.[15]
[14] Reuters, ‘Kenyan LGBTQ Community Encouraged to Push for Rights’, Voice of Africa, (Online, 14 October 2023) < 2023 Country Reports on Human Rights Practices: Kenya, US Department of State, <>
The UK Home Office in its 2020 report on sexual orientation in Kenya reports that the size, location and openness of an LGBTI ‘community’ in Kenya is unclear; that there are vibrant social, cultural and artistic movements in some parts of Kenya and sources indicate that there is a LGBTI community in parts of Nairobi where people are able to express their sexual/gender identities.[16] In Nairobi, following a court decision to lift a ban on the screening of a lesbian themed film, Rafiki, it played to sold-out crowds.[17] However, this does not mean that homophobic attitudes are not common within Kenya, as evidenced by the current Family Protection Bill and protests following the Court ruling which has allowed the NGLHRC to register as a non-governmental organisation. Violence against LGBT people by nonstate actors was reported to be widespread according to the US Department of State’s 2023 Country Reports on Human Rights Practices in Kenya.[18] In respect of education, the US Department of State reported that there were media reports that boarding school administrators sometimes expelled LGBT students.[19]
[16] UK Home Office: Country Policy and Information Note - Kenya Sexual orientation and gender identity and expression, Version 3, April 2020 ( 2.4.17.
[17] UK Home Office: Country Policy and Information Note - Kenya Sexual orientation and gender identity and expression, Version 3, April 2020 ( 6.2.17.
[18] 2023 Country Reports on Human Rights Practices: Kenya, US Department of State, < 2023 Country Reports on Human Rights Practices: Kenya, US Department of State, <>
The UK Home Office found in its 2020 report that the evidence available does not establish that LGBTI persons, or persons perceived as such, are likely to face mistreatment from societal actors which, by its nature and frequency, amounts to persecution or serious harm, with each case, needing to be considered on its facts, with the onus on the person to demonstrate that they face such a risk.[20] The available information indicates that there are pockets of acceptance within Kenyan society, predominantly in Nairobi, and that there is a burgeoning LGBT rights movement.[21] However, attitudes towards LGBT are generally negative within broader society.
[20] UK Home Office: Country Policy and Information Note - Kenya Sexual orientation and gender identity and expression, Version 3, April 2020 ( 2.4.19.
[21] See e.g. Gay and Lesbian Coalition of Kenya, galck+, (Website) < the applicant satisfy the refugee criterion for protection?
The applicant has not lived in Kenya since 2007. When he lived in Kenya, he was not harmed because of his sexuality, as he acted discreetly. I have accepted that he acted discreetly to avoid being ostracised by his family and his community, and also to be avoid being harmed.
If he were to return to Kenya and act in a discreet manner, as he did previously, I do not consider that he would be identified as a bisexual man, and he would not face harm on the basis of his sexuality.
Section 5J(3) provides that a person does not have a well-founded fear of persecution if he or she could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country. However, this does not apply to a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or that would conceal an innate or immutable characteristic, or to a modification that would require the person to enter into or remain in a marriage to which that person is opposed, alter his or her sexual orientation or gender identity, or conceal his or her true sexual orientation, gender identity or intersex status. Therefore, the applicant cannot be required to conceal his sexual orientation.
The Explanatory Memorandum to the Bill which introduced s 5J into the Act states that s 5J(3) is intended to clarify that an assessment of a person’s well-founded fear of persecution should take into account what a person could do to avoid a real chance of persecution in contrast to the Court’s ruling in Appellant S395/2002 v MIMA[22] that an assessment under the Convention concerns what a person would do.[23] The Explanatory Memorandum further states that as s 5J(3) allows consideration of reasonableness and sets out certain modifications which cannot be required, it is not inconsistent with S395.[24] According to S395, where an applicant would act discreetly or modify their behaviour upon return, it would be an error for a decision-maker to fail to ask why they would do so, and what would happen to them if they did not do so. If the reason for the modification is the applicant’s fear of persecution, and that fear is well-founded, then the person may be a refugee within the meaning of art 1A(2).
[22] Appellant S395/2002 v MIMA, Appellant S396/2002 v MIMA (2003) 216 CLR 473.
[23] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p 174 at [1194].
[24] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p.174 at [1194]. See also ESD17 v MIBP [2018] FCA 1716 at [29] where the Court considered that there was no indication in the Explanatory Memorandum of any intention that the principles in S395 should not apply in considering whether s 5J(1)(b) is satisfied.
I consider that the reason the applicant lived his life in a discrete manner in Kenya, and may seek to do so in the future, is because of his fear that if it became known that he is bisexual, he may be harmed by people within his society because of his sexual orientation. This harm is in the form of physical violence, threats, discrimination, being ostracised, and being excluded from job opportunities.
Pursuant to s 5J(3)(c)(vi), the applicant cannot be required to conceal his true sexual orientation so as to avoid a real chance of persecution in Kenya. I have considered whether the applicant’s behaviour and discrete nature are inherent to him and indicative of his personality, rather than because of external societal factors within Kenya and a fear of persecution. Given the applicant’s understanding of views within Kenyan society on homosexuality and bisexuality and his concern for his safety and his family’s reputation, I find that he has been motivated, and would continue to be motivated, to conceal his sexual orientation to avoid harm in Kenya. If the situation in Kenya were different, and bisexuality was not considered to be a taboo, it appears that the applicant may have had space to further develop or understand his sexuality while growing up in Kenya.
While there appear to be pockets of acceptance within Kenyan society of LGBT people, the extensive harassment or discrimination appears to relate to the whole country where homophobic attitudes are reportedly common. He has two sisters who reside in Kenya, but they are not aware of his bisexuality. Given the lack of a support network in Kenya, it does not appear that he would be able to access a space where he could live openly and seek out relationships with men. The applicant is an introvert with a limited social circle who has recently started testosterone therapy. It is reasonable to consider that as a result of the treatment for his condition, he may wish to seek out men (and women) for relationships. Based on the country information, I find that, as homophobic attitudes are reported to exist throughout Kenya, if it becomes known in his community that he is attracted to men, he may face opposition, including physical harm and threats to his safety from the broader community. To avoid this harm, he would have to live discreetly. Accordingly, I find that the applicant faces a real chance of harm on the basis of his sexuality in Kenya, now and in the reasonably foreseeable future.

This type of harm, possible physical violence, and extensive societal discrimination which would impose a significant psychological burden on him when experienced over an extended period of time, I find amounts to serious harm.
I find that applicant is a member of a particular social group consisting of bisexual men (which is recognised as a particular social group).[25] The characteristic, his sexual orientation, is shared by each member of the group, the applicant shares this characteristic, and that sexual orientation is an innate or immutable characteristic. I find that he would be targeted for harm in Kenya because he is a member of a particular social group consisting of bisexual men. The characteristic of the identified group is not a fear of persecution. I also find that the essential and significant reason for the persecution is because of his membership of the particular social group of bisexual men. I am also satisfied that the persecution involves systematic and discriminatory conduct in the sense it is not random conduct, and the applicant would be targeted for harm solely because of his sexuality.
[25] See e.g., Appellant S395/2002 v MIMA, Appellant S396/2002 v MIMA (2003) 216 CLR 473.
The hostile situation towards LGBT people appears to be consistent throughout Kenya, and is not confined to a particular area (except pockets of acceptance in Nairobi, which do not apply to the applicant’s situation). Accordingly, I find that the applicant faces a real chance of serious harm on the basis of his sexuality, and that the real chance of serious harm exists throughout Kenya (as required by s 5J(1)(c)).
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection. A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).
The applicant faces harm in the form of being possibly physical violence, and societal discrimination because of his sexuality. While Kenya has a police force, given the prevailing views towards LGBT people, there is no indication that the Kenyan state would assist the applicant such that it would prevent the harm. The police or authorities are unlikely to be able to, or willing, to offer assistance in respect of the real chance of harm he would face. Kenya’s police are reported to not be generally trusted by the local population which affects the effectiveness of the police to carry out its role.[26] Given the widespread perceptions of the police, I do not accept that the Kenyan police would provide protection for him in respect of protecting him from violence and harassment on the basis of her sexuality. Having regard to the available information, I do not accept that there are effective protection measures available to the applicant in Kenya.
[26] Emma Elfversson, ‘Why Kenya’s Urban Residents Don’t Trust The Police’, African Liberty (Online, 22 January 2024) < Kristine Höglund, Emma Elfversson, ‘Urban Kenyans mistrust police even more than rural residents do: study sets out why it matters’, The Conversation, (Online, 19 May 2025) <>
I find that the applicant has a well-founded fear of persecution on the basis of his sexuality as a bisexual man in Kenya and is unable to avail himself of protection of the state. In reaching this conclusion, I am cognisant of the fact that the applicant has lived in a discreet manner both in Kenya and also in Australia. I do not find that his discreet lifestyle in Australia is indicative that he is by nature discreet and would live this way in Kenya irrespective of whether he could be open or not. I accept that, in Kenya, his behaviour was shaped by his fear of persecution if his sexuality were revealed to his family or to his community, and that he was also a shy and introverted person. In Australia, I accept that he has similarly lived a discreet life because of his personality which has been shaped by his cultural upbringing and possibly his medical condition, but that he has engaged in limited interactions with men. Having regard to his recent medical diagnosis, I find that because of his treatment, he may pursue relationships more actively in the near future.
For the reasons given above I am satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
This is not the end of the Tribunal’s assessment as Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national: s 36(3).
Safe third country protection – s 36(3)
Section 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. They provide as follows:
Protection obligations
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that
(a) the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A) Also, subsection (3) does not apply in relation to a country if:
(a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.
The Full Federal Court in MIMAC vSZRHU (2013) 215 FCR 35 has held that the term ‘right’ in s 36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.
In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully given to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s 36(3) does not apply because of the operation of s 36(4), (5) or (5A).
I have considered whether the applicant, as a national of Kenya, has a right to enter and reside in a member state of the East African Community.
The East African Community (EAC) is a regional intergovernmental organisation of eight Partner States, comprising the Republic of Burundi, Democratic Republic of Congo, Republic of Kenya, Republic of Rwanda, Federal Republic of Somalia, Republic of South Sudan, Republic of Uganda and United Republic of Tanzania.[27] The free movement of people is one of the goals of the EAC.[28]
[27] East African Community (Webpage) < Common Market, East African Community, (Webpage) <>
According to the frequently asked questions on the EAC website, possession of a valid passport from an EAC country is required to enter another member state, and citizens of EAC partner states do not require a visa to travel to any of the countries within the EAC bloc.[29] The applicant currently possess a current Kenyan passport with an expiry date in 2034.
[29] EAC: Frequently Asked Questions, East African Community, (Webpage) <>
Article 7 of the Protocol on the Establishment of the East African Community Common Market (2009) (CMP) sets out the provisions around entry and freedom of movement for nationals of EAC countries within EAC partner states.[30] It provides for the free movement of persons who are citizens of partner states within the territories of other partner states, and that each partner state shall ensure non-discrimination of the citizens of other partner states based on their nationalities by ensuring the entry of citizens of the other partner states into the territory of the partner state without a visa.[31] There are reported to be five categories of persons who are allowed to ‘stay in’ partner states, which include visitors, and holders of such passes are not permitted to undertake employment except in limited circumstances. Nationals of EAC partner states may travel freely in the region for a period of six months.[32]
[30] Protocol on the Establishment of the East African Community Common Market < Common Market, East African Community, (Webpage) < EAC - Free Movement of Persons | United Nations Economic Commission for Africa < see also, e.g., Air Kenya, Travel Requirements and Documentation (Webpage) < which stipules that citizens of EAC partner states are exempted for six months from applying for a visa to enter an EAC partner state such as Kenya.
Therefore, it appears that, as a national of Kenya, he has the right to enter in other EAC countries and he can do so using his valid Kenyan passport. I find that the applicant has not taken all possible steps to avail himself of his right to enter and reside in the EAC partner states temporarily for a period of up to six months.
A citizen of an EAC country has the right to take up employment in another EAC country, according to the treaty. This does not extend to an unqualified right to travel to and remain in another country of the EAC. I find that if the applicant were able to secure employment in another EAC state he may be able to apply for a residence permit to extend his stay. However, given he is [an age]-year-old man with experience in the disability and care sector, which is unlikely to lead to employment in Kenya and given the EAC countries have similar cultural attitudes towards caring for family members, I accept that he would not find employment in another EAC country.
A citizen of an EAC country has the right to take up employment in another EAC country, according to the treaty. This does not extend to an unqualified right to travel to and remain in another country of the EAC.[33] Regulation 5 of the Free Movement of Persons Regulations[34] provide that a citizen of an EAC partner state may seek an extension of the pass, but it is not apparent on what basis the applicant would be able to seek an extension given I have found that he would not be able to obtain employment, or any employment would not be ongoing, and would not have a reason to remain in the country.
[33] Free Movement of Workers in the EAC', Chapter 11 of East African Community Law: Institutional, Substantive and Comparative EU Aspects, Caroline Kago and Wanyama Masinde, pp. 345 – 353, p. 350.
[34] 'The East African Community Common Market (Free Movement of Persons) Regulations - Annex 1', East African Community Common Market, 1 November 2009.
There is limited information in respect of how EAC states would address the situation for a person whose lawful period of stay has ended. While it may be open to the applicant to seek asylum in another EAC member state, he would do so as a bisexual man. I do not accept that any of the EAC states would afford him protection on this basis given cultural considerations within the cultures of those countries,[35] and having regard to reports that Kenya is viewed as a desired destination for LGBT asylum seekers from countries in the region because of persecution in their own country, indicating that he is unlikely to find safety in another EAC partner state. At the end of his stay in an EAC state, I find that the applicant would be required to return to Kenya and, if he were discovered by the authorities in another EAC state once his permission had lapsed, he faces a real chance that the country would return him to Kenya as he would no longer hold permission to remain in the country. Accordingly, s 36(5) applies in his circumstance and s 36(3) does not apply to him.
[35] See e.g., Rael Ombuor, ‘LGBT Communities in E. Africa Fight for Rights, Recognition’, Voice of Africa, (Online, 31 May 2018) < ‘Viewpoint: East Africa's battle over culture and homosexuality’, BBC, (Online, 12 April 2023) < which outlined that a wave of anti-homosexuality sentiment is reported in the region, blaming politicians who attack homosexuality to exploit ‘cultural or religious beliefs’ and appeal to voters’ emotions, as a way of scapegoating the LGBT community to deflect from the politicians’ failures in respect of developing their countries.
Given s 36(5) applies to the applicant, I have not considered whether he would face a real chance of serious harm or a real risk of significant harm on the basis of his sexuality in another EAC country. However, I note that given cultural considerations in the EAC countries as explained by the applicant and his representative, and having regard to country information,[36] it is more likely than not that he would face some degree of harm and discrimination on the basis of his sexuality, to the same or to a greater degree than in Kenya (where I have accepted that he faces a real chance of serious harm).
[36] See e.g., Rael Ombuor, ‘LGBT Communities in E. Africa Fight for Rights, Recognition’, Voice of Africa, (Online, 31 May 2018) < ‘Viewpoint: East Africa's battle over culture and homosexuality’, BBC, (Online, 12 April 2023) <>
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Dates of hearing(s):  9 April 2025
Representative:   Mr Norman Ngwenya
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.
…