2202545 (Refugee)

2202545 (Refugee) [2022] AATA 2531 (23 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Hannah Gray
CASE NUMBER:  2202545
COUNTRY OF REFERENCE:                   Kenya
MEMBER:Mark O'Loughlin
DATE:23 June 2022
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 June 2022 at 4:09pm

CATCHWORDS
REFUGEE – protection visa – Kenya – particular social group – bisexual – gay – LGBTQIA+ – fear of harm by community – applicant has never lived openly as gay or bisexual – applicant’s choice to practice bisexuality discreetly not based on fear of persecution – inconsistent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
S395/2002 v Minister for Immigration and Multicultural Affairs [2003] 216 CLR 473
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 25 February 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Kenya, applied for the visa on 3 December 2021. The delegate refused to grant the visa on the basis that they did not accept the applicant’s claim that he is bisexual or homosexual.
The applicant appeared before the Tribunal by video link on 26 May 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A] who gave evidence by video link and from [Mr B] who gave evidence by telephone.
The applicant was represented in relation to the review. 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). S36(2)(a) requires that, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion and (aa) provides for protection owed on other ‘complementary protection’ grounds.
S36 (2) (b) and (c) provide for members of the same family unit as certain persons holding a protection visa of the same class. The applicant does not claim to fall within these subsections and therefore the Tribunal restricts its consideration to s36(2)(a) and (aa).
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).
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, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs. There is no relevant country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of persecution if he returns to Kenya and, if not, are there substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Kenya, there is a real risk that he will suffer significant harm as defined? For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In considering this application the Tribunal has relied on the visa application, statements provided by the applicant and referred to in the decision, submissions including country information, the delegate’s decision of 25 February 2022, a copy of which was provided by the applicant and other documents referred to in the decision.
Claims
The applicant’s claims were summarised in submissions made by his representative to the Department on 6 January 2022.
They are that he fears harm if returned to his home country of Kenya because of his membership of the particular social group of men who identify as gay, bisexual or, more widely, LGBTQIA+ people in Kenya.[1]
[1] Par. 1.1
The submissions state that the harm he fears if he returns to Kenya is serious harm per s. 5J of the Act in the form of:
·Threats to his life or liberty;
·Serious physical harassment and ill-treatment;
·Denial of access to basic services; and
·Denial of capacity to earn a livelihood of any kind.[2]
[2] Ibid par. 1.2
The applicant further claims that he is at risk of persecution if he were to be returned to Kenya.[3]
[3] Ibid par. 1.3
He says that the harm he fears also constitutes significant harm for the purposes of the complementary protection criterion including torture, cruel and inhumane treatment and punishment. [4]
[4] Ibid par. 1.4
In this context the submissions say that per s 5J(3)(c)(vi) of the Act [the applicant] cannot take reasonable steps to modify his behaviour by altering or concealing his sexual orientation to avoid a real chance of persecution. The submissions say this specifically includes an act such as marriage or long-term partnership with a woman for the purposes of concealing his identity. [5]
[5] Ibid par. 1.5
The Tribunal finds that the provision cited by the applicant, s 5J(3)(c)(vi) of the Act, exempts the applicant from being obliged to alter his sexual or gender identity to conceal his sexual orientation, gender identity or intersex status in order to avoid a real chance of persecution in Kenya.
The applicant provided statements from 2 witnesses with the submissions of 6 January 2022.
In further submissions of 12 January 2022 the applicant’s representatives provide a “detailed summary of protection claims” drawn from the submissions made in the application, the further submissions made by the representative on 6 January 2022 and claims made in an interview with representative of the department on 7 January 2022.
Those claims all arise from the applicant’s claim that he is a member of the particular social group of men who identify as bisexual, or gay, or more widely LGBTQIA+.
The applicant claims that he has never been married although he had a couple of female partners in Kenya.
He described feeling attracted to a male colleague named [Mr C] when he was living in Kenya.
He did not, however, have any homosexual relationships in Kenya and said in his interview that he was scared that if he exposed himself as being in a same sex relationship, he would risk being killed or physically harmed.
The submissions say that the applicant has a sense of difference or shame and “an experience of concealment or hiding his identity”.
He said that when he was attracted to [Mr C] he pushed it away but when he came to Australia and met [Mr B] he realised “that’s how I am and what’s in there and how inside I am different.”
He claimed in his statement that he had difficulty fully understanding his sexuality given he had problems being attracted to women. He also noted some disappointment in heterosexual relationships.
The submissions state that the applicant struggles with the stigma attached to same sex attraction in his culture and said in his statement “In my background it is not right to be bisexual. I’m trying to be with her so my friends can see that I have a girlfriend.” The submissions suggest that this shows that the applicant is attempting to “conform to family and/or cultural expectations to avoid mistreatment.”
He also mentioned in the interview that he “was just trying to live in a way that most other people live.” The submissions support this with the observation that in his statement at paragraph 49 he speaks of his mother’s desire for him to marry and have a baby.
The submissions say that in the interview he said that he doesn’t get satisfaction in a relationship with a person who has a different sex.
The submissions claim that [the applicant]’s sexual relationship with [Mr B] was confined to [the applicant]’s bedroom but that he thought she may have been suspicious that the applicant and [Mr B] were having sex.
The submissions point out that [Mr B’s] statement says that there were other times that he and the applicant had sex, times when [Mr B’s] girlfriend was not there.
The submissions claim that there are important details about the applicant’s relationship with his other witness, [Mr A], which are revealed in their statements.
The submissions say that the applicant said in his interview that he was too afraid to tell anyone, even his friends, family or girlfriend, that he is attracted to men. He also says this fear has led him to continue to hide his sexuality from mostly everyone in his life. He claims to feel shy about opening up, even in Australia.
The submissions state that the applicant said in his interview that he hasn’t joined any LGBTQI+ community organisations because he is “still trying to understand his sexuality himself”[6].
[6] Submissions 12 January 2022 par. 1.27.
The submissions say that the applicant has begun to explore his feelings for men through relationships with [Mr B] and [Mr A] and that he has begun a process of self-acceptance which continues today.
The submissions state that the applicant has expressed the hope that in future he can become involved with the LGBTQI+ community and engage in other activities such as going to a Mardi Gras parade. The Tribunal notes that in his evidence the applicant claimed that he does not know what the Mardi Gras is.
The submissions say that the applicant has expressed a wish to learn more about healthy, functional relationships through his engagement and connection with the LGBTQI+ community in general. The submissions do not indicate where the applicant made this claim.
The submissions note that the applicant sees himself as someone who will increasingly be involved with other men and who is concerned that he will not be able to “hide it forever” and that he has become more certain of himself and his sexuality and “if I meet a man that I want to be with I will not be able to hide my feelings.”
In his interview he expressed a fear of returning to Kenya because he will be harmed by the community and he will not be safe in any area of Kenya. He says the views in Kenyan culture towards same sex relationships are that they are “deviant” and “going against normal traditions”.
The applicant says that it is common practice for a community to kill someone in Kenya if they have done something wrong.
The submissions also note country information supporting [the applicant]’s views and suggesting that the Kenyan authorities appear to be unwilling to protect individuals such as [the applicant].
Evidence - Written Statements
Applicant
The applicant provided a statement dated 3 December 2021 with his visa application. He adopted that statement under oath.
In it he states that in 2011 when he was about [age] years old, he was working in a [Industry 1] company in Kenya. At that time he was dating a girl.
He said that he had a colleague named “[Mr C]” who he thought was handsome and to whom he was attracted. He thought this was wrong and did not say anything to [Mr C]. This was the first time he remembers being attracted to a man.
He says that he and the girl later broke up and he was single for about 1 ½ to 2 years. Then in about 2016 he entered a further relationship with another girl whom he dated until he came to Australia in 2018. After he came to Australia the relationship ended in 2019 when she started seeing someone else.
He said that in about mid 2019 he was living with his cousin, [Mr B], and [Mr B’s] brother. He said that [Mr B’s] girlfriend then moved in too and she seemed suspicious that something was happening between the applicant and [Mr B].
He said that [Mr B] would sometimes sleep in his room and that he and [Mr B] would have sex. They did not discuss this. He does not know why [Mr B] did not bring it up but the applicant did not because he felt as though it was wrong for them to have sex with each other.
He said that [Mr B] started dating another girl in about July 2020.
In about November 2020, the applicant moved to another house with his new girlfriend. He and [Mr B] did not have sex after that although he did see him fairly regularly.
The applicant’s statement says that after he moved to [location] (in November 2020) he would visit another friend, [Mr A] for a drink once or twice a week. They would cook, play video games, drink and have sex. That continued until the applicant was taken into custody in July 2021.
The statement says the applicant’s girlfriend does not know about him having sex with other men and that he used to delete his phone conversations with [Mr B] and [Mr A] so that she would not see them. He believes she was suspicious that [Mr B] is gay.
The applicant says that he is not sure about his sexuality. He could call himself “bisexual” but that often his sexual experiences with women were not enjoyable and left him disappointed.
He says that he wants to be with [Ms D] but she may not want to be with him if he tells her about his bisexuality. Nonetheless, he believes (at the time of the statement in December 2021) that he will soon have to tell her about himself. The Tribunal notes he had not done so at the time of his evidence in early May 2022.
He says “In Kenya you are required to reject and conceal any kind of sexual orientation which is not “straight” to cope with the stigma[7].
[7] Statement of applicant 3 December 2021, p. 3 par. 43
He says that he still doesn’t feel comfortable disclosing his sexual orientation as anything other than straight. He thought that if he meets members of the LGBT community, he might feel more comfortable telling them[8].
[8] Ibid p. 4 par. 45.
He says that he still struggles with feelings of personal shame associated with his bisexuality and he is not comfortable voicing his sexuality[9].
[9] Ibid p. 4 par. 46.
He says “I am gradually coming to feel more myself, and more connected to my feelings, since being in Australia. However this is still difficult for me [10].”
[10] Ibid p. 4 par. 47.
The applicant says that he thinks his mother would be very disappointed if she knew about his sexuality and his mother would not want him to live with her.
The applicant says his mother wants him to get married and have a baby but he can never tell her that he has been with men and is attracted to men. He also says that his siblings do not know about him either and he has found it very hard to try to discuss it. He hopes that his [brother], would respect him but he does not know what he would think.
On the 5^th page of the statement under the heading “My fears if I am returned to Kenya” he says the community will suspect that he is doing the wrong thing by being with a man. If they find out he is bisexual or attracted to men, they will harm him or kill him.
He also says he thinks people will suspect eventually because he cannot hide it forever. He says as he has been in Australia longer and longer, he has become more certain of himself and his sexuality. He says if he meets a man he wants to be with, he will not be able to hide his feelings.
He says he does not believe he will be safe in any part of Kenya including Nairobi because he has read about queer people leaving Nairobi because they did not feel safe.
He also says the police won’t protect him if the community find out he is in a relationship with a man or is attracted to men, because they will come and attack him and there will not be time for the police to help and in any event, he doubts they would.
[Mr B]
[Mr B]’s statement is dated 5 January 2022.
He says he and the applicant were sexually intimate until about October or November 2020.
In it he says he is bisexual, but his girlfriend does not know that or about him and [the applicant]. He says he is scared that if he tells her she will break up with him. He believes that she doesn’t like people who identify as gay or bisexual or queer in any way and that this is very typical of Kenyan culture. He says “It is the way we are brought up.”
He said he dated a couple of men in Kenya but that they had to be very secretive. He said they couldn’t be seen in public because it is not allowed and he thinks he would have gone to gaol if he had been caught with another man.
He also says he has not spoken to [the applicant] for a while and he decided it would not be healthy for them to speak to each other. He says this is also for the sake of his relationship with his girlfriend.
[Mr A]
[Mr A]’s statement is dated 4 January 2022.
He says he is bisexual and was involved with the applicant sexually from late 2020.
He says he saw the applicant for about a year until the applicant was taken into custody. He knew the applicant had a girlfriend at the same time as he was dating [Mr A].
He says the applicant’s girlfriend does not know that the applicant is attracted to men.
He would like to keep dating the applicant if he is released from detention and hopes he feels the same way, though he has not discussed that with him despite having spoken with him regularly since he has been in detention.
Interview with the Department
The Applicant was interviewed by a representative of the Department on 7 January 2022.
He provided background information about his school and work history and his family.
He said that he had had 2 girlfriends in Kenya and had a girlfriend in Australia at the time of the interview.
He said that he identifies as someone who is in a same sex relationship.
He said that he believes in the future he will end up only having same sex relationships.
He spoke about his experience of being attracted to his colleague, [Mr C] when he was in Kenya in about 2011.
He said that he did not have any sexual relationships with other men in Kenya because he was scared that his life would be in danger.
He said that he presents as bisexual but fears his family’s rejection.
He said he had not told his girlfriend about his bisexuality because she may break up with him.
He said that he continues his relationship with her so that his friends see that he has a girlfriend.

He said that he had been living with her for about 7 months at the time he was taken into custody.
It having been explained to him that he is obliged to set out his claims for protection, he was asked what they were. He said that he is a person who identifies as being in a same sex relationship which is not accepted in Kenya.
He said that he identifies as bisexual and in the future thinks he will end up in only same sex relationships.
He said that he did not explore a sexual relationship with [Mr C] in Kenya because he feared he would not be accepted ty the community.
On being asked why he was maintaining a relationship with a woman when he was increasing identifying himself as sexually attracted to men he said that his background is that it is not right and he wants his friends to see that he has a girlfriend.
He said that his first sexual experience with another man was with [Mr B] and that he fell in love with the way [Mr B] did things like his dress, his music and the way he organised himself to go out.
He said that [Mr B] and his girlfriend argued a lot and [Mr B] would often spend the night in the applicant’s room. The sexual relationship developed from that.
The applicant was not sure if [Mr B’s] girlfriend suspected that he and [Mr B] would have sex, but said she never said anything.
He was asked if he and [Mr B] had ever been caught and said that [Mr B’s] brother had knocked on the door once but did not catch them.
He said that he had also had sex with [Mr A], who was a friend of [Mr B]. He said that their relationship started in early 2021.
He said he did not tell his family or friends about his sexuality. He said that he did consider telling [Ms D] but was worried that then all of his family and friends would know.
He was asked why he maintained a heterosexual relationship if it was not satisfying. He said he was trying to live the way that other people live.
He was asked why he needs to hide his gender ID in Australia. He said he doesn’t want friends and family to know and is shy of telling them who he is.
He said that he had not joined any LGBTQI organisations in Australia because he was still considering his orientation.

100. He was asked if he had been to a Mardi Gras and said he had not although he thinks he would like to in the future.
101. He said that if he returns to Kenya community members will think he is deviant and will harm him physically, possibly killing him and that mob justice is common.
102. He said that aside from his sexual orientation there is no reason he cannot return to Kenya.
Oral Evidence
103. The applicant gave evidence that he was born in [Town 1] in Nandi County in the west of Kenya. He was [age] years old at the time of the hearing.
104. He said that sexual activity between men is taboo in [Town 1] and he has heard that there is a risk community members would kill men found to engage in such activity.
105. The applicant said that in 2011 when he was working for a [Industry 1] company, he had a colleague named [Mr C]. He told the Tribunal that he found [Mr C] attractive and tried to figure out why. He said that it came into his mind that it is wrong for a man to do that. He said that given his background it was not wise for a man to even talk about such a thing, so he kept it to himself and he and [Mr C] just remained friends.
106. When asked the applicant said that although his upbringing was Christian, it was not very strongly so and that his reservations about expressing his feelings came more from concern about the reaction of the people he lived with than due to religious reservations.
107. He said that he was not attracted to any other men while he was living in Kenya and that he stopped working with [Mr C] in 2012.
108. He said that he left Kenya in December 2018 and agreed that after he worked with [Mr C], he lived in Kenya without being attracted to other men. He said that he believed it was the wrong thing and so he suppressed his feelings and tried not to do “the wrong thing”.
109. The applicant told the Tribunal that he came to Australia in 2018 because he had always been passionate about advancing his education and career.
110. He said that one of his cousins told him how good the education is here so he enrolled at the [university] in Melbourne.
111. He said that he arrived in Australia [in] December 2018 and stayed with his cousins in Sydney. He went to Melbourne to attend university and spent almost a week there between February and March 2019.
112. He said he had trouble finding accommodation as he did not have enough money, and ultimately he did not start classes. He said it was difficult because he was sleeping in his car but also that he faced other challenges and he ran.
113. He said he suffered from stress and depression because his fees had been paid but he was not studying. He said his fees had been paid partly by his family, who had sold land to pay for the first semester. That had raised about ¾ of the money needed and the rest was contributed by well wishers.
114. He said that he returned to Sydney where he looked for work so that he would have money to go back to Melbourne to study. He tried to get work in construction and as a cleaner. He hoped to get enough money to move to Melbourne by working for 2 weeks to a month.
115. He said that in May or June 2019 his enrolment was cancelled because he could not pay his fees for the next semester. He said his uncle (who had guaranteed his fees) had died and he could not raise the money elsewhere.
116. He said he did not consider returning to Kenya because he believed he would get money by working and would then be able to complete his studies.
117. He said after about a year he did get work in Sydney, first in a [factory] also worked with [an agency] and in construction. Generally he made about $500 to $600 per week after tax in this work.
118. Despite finding work, he was unable to save money to return to study. He said he sometimes sent money home to Kenya in amounts of about $40.00 to about $70.00 but once he had paid his regular expenses he would usually spend any leftover money.
119. He said he was having personal problems including difficulty with depression and distress because he saw himself as a failure.
120. He had started drinking heavily which he said was part of his depression.
121. The applicant was asked about his criminal convictions. He advised he had been convicted and sentenced to 5 months imprisonment and 6 months parole because of drink driving offences.
122. He believed he had been convicted of 4 drink driving offences, drive while disqualified and he had also failed to complete an Intensive Corrections order.
123. He said his student visa had been cancelled while he was in gaol so after his release he was placed in immigration detention.
124. In relation to sexual activity in Australia, he said he moved in to share accommodation with his cousin, [Mr B], and [Mr B’s] brother in about mid 2019.
125. Although he could not say exactly how long it took, a few months after he moved in he and [Mr B] had sex in the applicant’s room, on his bed. He said that he remembers the first time very well.
126. He said that he and [Mr B] had sex a couple of times a week from about August 2019 to November 2020.
127. He said he felt confused because in the back of his mind he still had doubts and he was aware that in his culture what he was doing was wrong. He said he was not sure whether to believe his culture, by which the Tribunal understands him to mean he was worried that having sex with another man was wrong.
128. He said he and [Mr B] would have sex when they got the chance but that they were restricted because they did not want [Mr B’s] girlfriend to know.
129. He said that they would sometimes have sex in the car and that once they were interrupted by [Mr B’s] brother knocking on the door.
130. The Tribunal asked the applicant about his other male sexual partner, [Mr A].
131. He said he met [Mr A] who used to visit [Mr B] at home. He said he did not know that [Mr A] was sexually attracted to men until one day when he was at [Mr A’s] house. He said he asked to have a sleep in [Mr A’s] bed and that [Mr A] followed him into the bedroom.
132. He could not say when that was, but he did say they had sex 2 or 3 times a week at [Mr A’s] house until the applicant went into custody.
133. The applicant was not sure when he went into custody. The Tribunal accepts that he was released in late December 2021 and he served 5 months in gaol. That suggests he was imprisoned in July or August 2021.
134. At this point of the hearing the witnesses, [Mr A] and [Mr B] were interposed.
135. [Mr A] gave evidence first. He attended by video link.
136. He adopted the statement of 4 January 2022 and attested that its contents are true.
137. He told the Tribunal that he came to Australia from Kenya on a student visa but has since applied for a protection visa on the basis of his sexuality.
138. He said that the first time he had sex with [the applicant] was in early 2020 but he could not remember the date more accurately. They had been at a barbecue drinking vodka and went to [Mr A]’s room to play a car racing video game. The Tribunal notes that in his statement he said he and [the applicant] started dating in late 2020.
139. He said that he remembered the first time they had sex and that he went into his room first and [the applicant] followed him. He was adamant about this.
140. He said that after that [the applicant] would come to his place for sex 2 or 3 times a week. They could not have sex at [the applicant]’s place because [the applicant] needed to keep his homosexual activity secret from his girlfriend.
141. [Mr A] said before they started having sex he believed that the applicant would be open to it because he was open to joining groups like Mardi Gras online.
142. [Mr A] said that due to the stigma attached to African gay people, no one else knew about them.
143. He said that the community in Kenya was very strict and his parents wanted him to marry and continue the line. He said that he was abused and his life was in danger.
144. [Mr B] then gave evidence via a telephone link. He started by adopting his statement of 5 January 2022 and confirming its truth.
145. He said that he had had other male sexual partners in Kenya from about 2016 onwards. He left Kenya in 2018 and came to Australia.
146. [The applicant] came to live with him and his girlfriend in October or November 2018.
147. He said that he remembered the first time he had sex with [the applicant], although he did not remember when it was. He said that it happened in [the applicant]’s room. He said that it just happened.
148. He told the Tribunal that after the first time, it happened about once a week until about October 2020 and that [the applicant] moved out shortly after that.
149. He said that they had to be careful not to alert his girlfriend to their sexual encounters because she would not have been accepting.
150. He said that they had not discussed their sexual encounters since.
151. On being asked about memorable incidents or characteristics of their sexual encounters, [Mr B] gave the same 2 examples as had been given by the applicant. He said that they sometimes had sex in the car and that once his brother had knocked on the door, interrupting them.
152. He said that they stopped having sex and later [the applicant] moved out. He thought that they stopped having sex in about October 2020.
153. [The applicant] then resumed his evidence. He was asked whether he could safely be more open about his sexuality in Kenya if he moved from his home to a different part of Kenya, such as Nairobi.
154. He said that he does not believe that is so because the law against homosexuality is the same across Kenya.
155. He also said that he is not aware of any LGBTI or similar groups in Nairobi and doubts that there are any. He believes that any people who are in that category, they are “laying low”. The Tribunal takes this to mean that they are keeping their sexuality secret.
156. He said that no one other than his two witnesses know that he is bisexual.
157. He said he has kept his bisexuality a secret and continues to do so because in Australia the people he knows have the same mentality as back home.
158. The Tribunal asked if the people he associates with in Australia are essentially Kenyans. The applicant agreed and said that is why he keeps his sexuality a secret.
159. The Tribunal asked whether it would be any more difficult to keep his sexuality a secret in Kenya than it is in Australia. The applicant replied that he thinks it would be because in his home region people follow each other’s lives closely and it would be more difficult to keep a secret.
160. The applicant finished by saying that he is no longer sure about his relationship with his girlfriend, who he understands may now be living with another man.
Consideration - The Applicant’s Sexuality
161. The applicant called 2 men with whom he claimed to have had sex, [Mr A] and [Mr B].
162. The Tribunal has some concerns having compared [Mr A]’s evidence with the applicant’s.
163. There is an inconsistency about the period over which he and the applicant engaged in sexual activity. In his oral evidence [Mr A] said that it started in early 2020 but in his he written statement he said that it started in late 2020.
164. The Tribunal has regard to the evidence which suggests that the applicant’s sexual relationship with [Mr A] started in late 2020. In his oral testimony [Mr A] overstated the length of the sexual relationship by about 8 or 9 months, or about double.
165. [Mr A] was adamant that on the first occasion that they had sex, he was the first to enter the bedroom. [The applicant] was adamant that he had gone into the room first. Neither would be moved from their evidence on this point and each claimed to remember the occasion clearly. That was a significant inconsistency in their evidence.
166. [Mr A] said that he and the applicant had visited websites related to homosexuality and that the applicant was open to joining groups like Mardi Gras online.
167. The applicant said that he had done some internet searches, but he had done them alone. He said he had joined an LGBTQI Instagram group but had never told anyone about that. He also denied knowing anything about the Mardi Gras. That was a significant inconsistency in their evidence.
168. The evidence from [Mr B] was broadly consistent with his written statement.
169. Both the applicant and [Mr B] were asked about any particularly memorable incidents or aspects of their sexual relationship.
170. Both identified the fact that they sometimes had sex in the car. Both also identified an occasion on which [Mr B]’s brother interrupted them by knocking on the door. [Mr B] was somewhat hesitant and unconvincing in his testimony.
171. Neither suggested anything else remarkable about their sexual relationship although [Mr B] did say that the sexual activity in the car was usually in a park.
172. The Tribunal finds it unlikely that on being asked to provide examples of unusual aspects of their relationship so that their versions could be compared, they would both choose the same relatively mundane examples.
173. The Tribunal is not satisfied that the applicant and [Mr B] did have a sexual relationship.
174. On balance the Tribunal is not satisfied that the applicant has had sex with either of the witnesses he called.
175. On that basis, the application must fail. All the applicant’s claims in relation to both the refugee criterion and the complementary protection criterion depend on his identity as bisexual, or at least as being perceived as bisexual or homosexual.
Applicant’s likely future conduct
176. Having made that finding, the Tribunal acknowledges that it is often difficult to obtain compelling evidence of a sensitive matter such as sexuality.
177. In contemplation of the possibility that the applicant is in fact bisexual but has had difficulty compiling sufficient evidence of that, the Tribunal has considered whether the application would succeed if it had been satisfied of his bisexuality.
178. Taken at its highest, the evidence suggests that the applicant will choose to have sex with men in the future.
179. The Tribunal must therefore consider the applicant’s likely future conduct in that event. In doing so, the Tribunal has considered a series of issues.
Will living “discreetly” avoid a real chance of relevant harm to the applicant?
180. In his statement the applicant accepts that he will not be at risk if he lives discreetly, but that he thinks he will not be able to hide his feelings.[11]
[11] Statement applicant 3 Dec. 2021 par. 60.
181. In his testimony he said that it would be difficult to hide his sexuality in Kenya because of the closeness of the community.
182. On the other hand, his evidence is that he has generally lived and associated with Kenyans while he has been in Australia.
183. He said both in his statement and in his evidence that he disguised his bisexuality not only from the community but from his own girlfriend, the partner with whom he was living and “the person closest to me”[12].
[12] Ibid par 46.
184. The submissions made on the applicant’s behalf direct the Tribunal to various pieces of country information that suggest that members of the LGBTQI+ community in Kenya are subjected to varying acts some of which amount to relevant persecution.[13]
[13] Submissions dated 6 January 2022, 12 January 2022 and 12 May 2022.
185. The Tribunal observes that these acts appear to have generally been perpetrated on people expressed as being “members of the LGBTQI+ community” or “LGBTQI+ people”.
186. The information appears to relate to Kenyans who are not living “discreetly”. It does not satisfy the Tribunal that a person who is living discreetly is at a relevant risk.
187. The submissions do not point to examples of persecution of persons who are not in the LGBTQI+ community.
188. The submissions of 12 May 2022 refer to the applicant’s choice to live discreetly and, at paragraph 2.22, state;
“Acting discreetly would not be a choice but a necessity to avoid persecution” (emphasis in the original).
189. This submission contemplates that acting discreetly will avoid persecution. The Tribunal is satisfied that acting discreetly will have the effect of avoiding persecution.
Will fear of persecution cause the applicant to disguise his sexuality if he is returned to Kenya?
190. In submissions the applicant’s representative stated in relation to relocation within Kenya;
“ As noted by [the applicant], he cannot relocate to Nairobi, nor can he live safely in any part of a country that criminalises same sex activity. To do so [the applicant] would be required to conceal his sexuality and live discreetly, as he was forced to do for several years prior to coming to Australia.”[14]
[14] Submissions 12 May 2022 para 2.3.

191. The submission say “…s 5J(6) of the Act … states that an applicant cannot be asked to conceal their sexual identity in order to avoid harm and fear of persecution.”
192. The submissions characterise the Tribunal in this matter as having posed to the applicant a question to the effect of “So you’re saying if you went back to Kenya you’d have to keep it a secret, but you’re keeping it a secret in Australia anyway, so what’s the difference?”
193. The submissions say “Crucially, [the applicant]’s decision to remain relatively discreet about his sexuality in Australia at this point in time is a choice he is making. At a point where he may feel more comfortable in himself, and with his sexual identity, he may choose to “display” his sexuality more outwardly, tell people that he trusts about his sexuality, or enter into a longer term and/or more public relationship with a man.”[15]
[15] Paragraph 2.20

194. The submissions go on to say:
“Alternatively, [the applicant] may choose to remain relatively private about his sexuality. This is also a choice open to him and does not negate the fact that he is owed protection, since identifying as LGBTQI+ is not defined by the act of being public about one’s sexuality and/or entering into relationships with people.”[16]
[16] Paragraph 2.21

195. The submissions about this topic finish by saying;
“A finding that [the applicant] can continue to suppress his feelings, and therefore his sexual identity, since he is doing this already in Australia, would be in direct contravention of s 5J(6) of the Act.”[17]
[17] Paragraph 2.22

196. The submissions might be summarised as being that, although the applicant may minimise the risk of relevant harm by choosing to live discreetly (as regards his sexuality), it is not appropriate for the Tribunal to impose a requirement on him to do that.
197. In considering this proposition, the Tribunal has had regard to the decision of the High Court of Australia in S395/20002 v Minister for Immigration and Multicultural Affairs[18] (“S395”).
[18] [2003] 216 CLR 473
198. That matter involved two homosexual Bangladeshi men. It had been found by the Tribunal at first instance that they had conducted themselves in a discreet manner and there was no reason to suppose that they would not continue to do so if they returned home. It appears that that was a major consideration in the Tribunal refusing the applications for protection visas.
199. The majority reasoning is set out in two decisions, one written by McHugh and Kirby JJ[19] and one by Gummow and Hayne JJ.[20]
[19] Starting at 16 on p. 482
[20] Starting at 62 on p. 496
200. McHugh and Kirby JJ noted that the Tribunal had concluded that there was no real chance that the appellants would face persecution in Bangladesh due to their sexuality. The reasons note that it is central to this conclusion that homosexual men will not be subjected to persecution if they act discreetly.
201. Their honours emphasise the importance of considering whether the appellants’ choice “was a voluntary choice uninfluenced by the fear of harm if they did not live discreetly.”[21]
[21] Ibid par. 35
202. The decision later says;
“In so far as decisions in the Tribunal and the Federal Court contain statements that asylum seekers are required, or can be expected, to take reasonable steps to avoid persecutory harm, they are wrong in principle and should not be followed.”[22]
[22] Ibid par. 50
203. At paragraph 53 Their Honours observed (in relation to evidence about persecution of homosexuals in Bangladesh given by a Mr. Khan);
“The Tribunal’s findings on the attitude of Bangladesh society and the statements of the appellants indicate that they were discreet about their relationship only because they feared that otherwise they would be subjected to the kinds of discrimination of which Mr. Khan spoke.”
204. Their Honours indicated in the same paragraph that if the applicants had chosen to live discreetly to avoid the consequences of being identified as homosexuals, it would be incumbent on the Tribunal to consider whether their fear of harm was well-founded and amounted to persecution.
205. In the decision of Justices Gummow and Hayne, their Honours identify the error made by the Tribunal in that matter thus;
“The Tribunal did not ask why the appellants would live “discreetly”. It did not ask whether the appellants would live “discreetly” because that was the way in which they would hope to avoid persecution.”[23]
[23] Ibid par. 88
206. The Tribunal has further had regard to the persuasive decision of the United Kingdom Supreme Court in HJ (Iran) v Secretary of State for the Home Department[24] (“HJ”).
[24] [2010] UKSC 31
207. That involved consideration of two claims that had failed because the applicants would be able to live discreetly in their home countries, and thus avoid the persecution they would otherwise have faced due to their homosexuality.
208. In his reasons, which are generally approved by the others on the bench, Lord Rodger sets out what he describes as “the approach to be followed by tribunals”[25]. He notes that the Tribunal must consider what an individual applicant would do if returned to their country of nationality.
[25] Ibid par. 82
209. He says that if the Tribunal concludes that the applicant would live discreetly and so avoid persecution, it must ask itself why the applicant would do so. This reflects the approach in S395 discussed above. It also reflects the position in which the Tribunal finds itself in this matter.
210. Lord Rodger in HJ goes on to say;
“If the tribunal concludes that the applicant would choose to live discreetly simply because that was how he himself would wish to live, or because of social pressures, eg. Not wanting to distress his parents or embarrass his friends, then his application should be rejected. Social pressures of that kind do not amount to persecution and the Convention does not offer protection against them. Such a person has no well-founded fear of persecution because, for reasons that have nothing to do with any fear of persecution, he himself chooses to adopt a way of life which means that he is not in fact liable to be persecuted because he is gay.”[26]
[26] Ibid.

211. In this matter the applicant says he would suffer relevant harm if he returned to Kenya and chose to live openly as a gay or bisexual man.
212. He says that he increasingly feels that he is gay rather than bisexual.
213. The submissions filed on his behalf say that an applicant “cannot be asked to conceal their sexual identity in order to avoid harm and fear of persecution.”[27] The Tribunal accepts that this is a fair summary of the majority reasoning in S395.
[27] Post Hearing Submissions 12 May 2022 at 2.18
214. It is incumbent on the Tribunal in this matter to consider whether the applicant will live discreetly (as regards his sexuality) if he is returned to Kenya, and if so why he will choose to live discreetly.
Will the applicant live “discreetly” if he is returned to Kenya?
215. The applicant’s evidence and the submissions made on his behalf suggest that the applicant will live discreetly if he is returned to Kenya.
216. The submissions say that the applicant’s decision to remain relatively discreet about his sexuality in Australia is a choice he is making.[28] That choice is ongoing and will presumably continue in Kenya.
[28] Ibid 2.20.
217. This is effectively conceded by the submission that at a point in the future the applicant may “choose to ‘display’ his sexuality more outwardly, tell people that he trusts about his sexuality, or enter into a longer term and/or more public relationship with a man.”[29]
[29] Ibid.
218. This submission shows that the choice to live discreetly is an ongoing one. There is nothing in the evidence that contradicts that.
219. The submissions say;
“…[the applicant] may choose to remain relatively private about his sexuality.”[30]
[30] Ibid. 2.21.
220. Again, this shows that the applicant chooses to continue to live discreetly.
221. The applicant’s written statement of 3 December 2021 appears to suggest that at some point in the future he may want to live in a way that suggests he is gay or bisexual. That is also suggested in the submissions. It is speculative. The Tribunal is satisfied that, if he is returned to Kenya, the applicant will choose not to live as openly gay or bisexual.
222. That choice may change at some point in the future but that is speculative and not relevant to this decision.
223. The Tribunal is satisfied that the applicant will choose to continue to live discreetly or in other words to not live as openly gay or bisexual.
Why will the applicant continue to choose not to live as openly gay or bisexual?
224. The Tribunal must decide why the applicant will live discreetly, as directed by the authorities discussed above. The important question is whether the need to avoid persecution drives the applicant’s choice.
225. The applicant believes that Australia affords him the protection he needs to live openly as a gay or bisexual man if he chooses to do so.
226. The applicant has never lived openly as a gay or bisexual man.
227. In particular, he has not done so in Australia despite the protection that is offered here.
228. He has given many reasons for not doing so. One reason is that he has not adequately defined his sexuality and that makes it difficult for him to determine how he wants to identify in Australia.
229. Another is that he does not want to disappoint or anger his family.
230. Another is that he does not want to be stigmatised by the Kenyan community in Australia.
231. The Tribunal is satisfied that the applicant will live discreetly in Australia if he continues to live here. These reasons do not include a fear of persecution or of significant harm as defined.
232. It follows that he would choose to live discreetly in Kenya whether or not there is a risk of persecution were he to live openly. It cannot, therefore be said that it is fear of persecution that would drive him to live discreetly.
233. He gave evidence that he was attracted to another man once during his time in Kenya. This happened in 2012. He said that he supressed his feelings at that time and in the next 6 or 7 years because he wanted to help his mother since his father’s death and he tried not to do the wrong thing.
234. In his statement of 3 December 2021 he says;
“In Kenya you are required to reject and conceal any kind of sexual orientation which is not ‘straight’ to cope with the stigma.”[31]
[31] Applicant’s statement 3 December 2021 at par. 43.
235. He also says;
“I still struggle with feelings of personal shame associated with my sexual orientation as bisexual. I am not comfortable voicing my sexuality, even with the person closest to me – my current partner [Ms D].”[32]
[32] Ibid par. 46.
236. He goes on to explain that his family would not support him if he was open with them about being bisexual.
237. It is true that the applicant expresses further concerns under the heading “My fears if I am returned to Kenya”[33]. He says if the Kenyan community find out he is not straight they will harm him or kill him.
[33] Ibid par. 59 to 60
238. He also says that people will eventually suspect he is not straight, and he cannot hide it forever.
239. He says that if he meets a man that he wants to be with he will not be able to hide his feelings.
240. There is an obvious tension between the applicant’s prediction that in future he will not be discreet about his sexuality and the fact that (other than the men with whom he says he had sex) he has in fact kept it a secret from everyone - including his partner with whom he lived.
241. The Tribunal is satisfied that the applicant is able to keep his bisexuality a secret, that he has kept it a secret, and that he will continue to keep it a secret whether he lives in Australia or is removed to Kenya.
242. The Tribunal is satisfied that if he is bisexual the applicant will keep his bisexuality a secret for reasons that are not related to a reasonably held fear of persecution.
243. The Tribunal is satisfied that the applicant’s reasons for continuing to live discreetly fall within the reasons contemplated by Lord Rodger cited at paragraph 210 above who says that they do not fall within the convention.
244. The Tribunal is satisfied that if the applicant is bisexual, he will live discreetly and any fear he has of being persecuted by reason of his membership of the social group being bisexual men is not a well-founded fear for the purposes of the definition of “refugee”.
Complementary Protection
245. As the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal must consider whether the complementary protection criterion contemplated at s 36(2)(aa) is met.
246. The provision will be satisfied if there is a “real risk” of an applicant suffering significant harm as a necessary and foreseeable consequence of being sent back to Kenya.
247. The only reason the applicant suggests he will suffer harm if he is returned to Kenya is because of the reaction to his bisexuality.
248. The Tribunal is not satisfied that the applicant is bisexual, so his claims are not made out.
249. As was the case in considering the refugee criterion, the Tribunal accepts that it is appropriate to consider the likely outcome if the Tribunal is mistaken in its assessment of the applicant’s sexuality.
250. As was the case in considering the refugee criterion, there may be a risk, possibly a relevantly “real risk”, of significant harm if the applicant does not live discreetly.
251. The Tribunal is satisfied that the applicant will live discreetly upon his return to Kenya and does not therefore face a real risk of significant harm as a necessary and foreseeable consequence of being removed to Kenya.
252. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION

255. The Tribunal affirms the decision not to grant the applicant a protection visa.
Mark O'Loughlin
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.
…

[2022] AATA 2531

23 June 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction