2202545 (Refugee)

This matter concerned an application for a protection visa by an individual who claimed to fear harm if returned to Kenya due to his membership in the particular social group of gay, bisexual, or LGBTQIA+ individuals. The applicant asserted that he faced threats to his life and liberty, serious physical harassment, denial of basic services, and inability to earn a livelihood, which he contended constituted serious harm and significant harm for the purposes of complementary protection. He also argued that he could not reasonably modify his behaviour to avoid persecution, including by concealing his sexual orientation through marriage or partnership.

The Administrative Appeals Tribunal was required to determine whether the applicant had a well-founded fear of persecution in Kenya, or alternatively, whether there were substantial grounds for believing that as a necessary and foreseeable consequence of removal to Kenya, he faced a real risk of suffering significant harm. The Tribunal considered the applicant's visa application, statements, submissions, country information, and the delegate's decision.

The Tribunal concluded that the applicant had not established a well-founded fear of persecution. Crucially, the Tribunal found that the applicant's choice to practice his bisexuality discreetly was not based on a fear of persecution, and that his evidence was inconsistent. Consequently, the Tribunal affirmed the decision under review, finding that the applicant did not satisfy the criteria for the grant of a protection visa.