2206193 (Refugee)
[2025] ARTA 2094
•5 September 2025
2206193 (REFUGEE) [2025] ARTA 2094 (5 SEPTEMBER 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2206193
Tribunal:Clyde Cosentino
Date:5 September 2025
Place:Brisbane
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 05 September 2025 at 2:04pm
CATCHWORDS
REFUGEE – protection visa – Kenya – religion – atheist – fear of disowning by devout Catholic family and ostracism by community – appearance – tattoos – mental health and treatment – late claims of membership of student union and parents’ professional employment and community status – conduct in Australia not for purpose of strengthening claim – country information – social intolerance, political isolation and limited legal protections – relationship between churches and government – stigma, discrimination and limited treatment for mental health – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
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
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 April 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 national of Kenya, applied for the visa on 31 December 2018. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.
The applicant appeared before the Tribunal on 7 July 2025 to give evidence and present arguments. The applicant was represented in relation to the review. The representative attended the Tribunal hearing by video.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
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 ion the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Department
Protection visa application
The applicant applied for a protection visa on 31 December 2018. In his protection visa, the applicant claims as follows:
·He is a Kenyan citizen, providing details of his Kenyan passport (expiry [2023]) in support of his application.
·He was born in Kisumu, Nyanza, Kenya.
·He has never married.
·He was [Age] years old at the time of lodgement of his protection visa application.
·He last lived in Kenya at [Suburb], Nairobi City in January 2016. He had lived there since 1998.
·He identifies his religion as “Atheism”.
·He does not have a current passport as he has lost his old passport.
·He completed high school in Nairobi. He also completed a Diploma of [Subject] at [University] in May 2014.
·He makes the following claims for protection:
oHe will be forced to follow government ideologies without freedom of expression
oHe fears that he will be kidnapped, tortured or forced to put out a government agenda against his will.
oHis mother does not want him to return for fear of what might happen to him.
oHe is afraid that his “appearance” will result in him being harmed. He now has a “[design 1]” and “[design 2]” tattoo. Such tattoos are seen as “taboo” in Kenyan society and for bringing “bad luck and curses to the community”.
oHe also has long hair and piercings.
oHe was raised a Catholic but currently practices Atheism. He fears that he will be forced to practice Catholicism again which he does not want to. He is scared and does not want to return to Kenya.
oHe cannot relocate to another part of the country as they have the same attitudes as well. There are language barriers and different tribal languages. His physical appearance will place him at risk elsewhere.
He also provided a copy of his Kenyan National ID card.
Department interview
The Tribunal has taken into account his interview with the Department dated 22 March 2022. In that interview the Tribunal notes the following points:
· The delegate accepted on the evidence before them that the applicant had tattoos and piercings, including a tattoo of a [design 1] and a [design 2] on his [body part].
· The delegate accepted from the applicant’s interview responses and all other considerations before them that the applicant is an atheist as claimed.
Evidence before the Tribunal
Evidence provided prior to hearing
The applicant appointed an authorised representative (representative) to act on his behalf in his review application. His representative provided several documents in support of the applicant including a character reference from “[Organisation]”, and education documents pertaining to the applicant’s studies in Australia.
His representative provided a copy of the applicant’s medical report from [Professor A], Consultant Psychiatrist and dated 24 November 2023. This was an independent medical report provided to Workcover Queensland. In this medical report he reports that the applicant is being seen by another psychiatrist on a fortnightly and monthly basis, as well as a psychologist on fortnightly basis. [Professor A] reports that the applicant is on certain medication while under psychiatric care. [Professor A]’s summary and conclusions are that the applicant suffered from “continuing symptoms of adjustment disorder that he has been diagnosed in 2021, which is characterised mainly by an anxious mood, anxious worries about being attacked, significant fears that have led to reduced interest in socialisation and disturbed sleep.” [Professor A] provided the final diagnosis of the applicant to be “Adjustment Disorder with Depressed and Anxious Mood along with Secondary Alcohol Use Disorder”. In [Professor A]’s opinion “there is not any further medical treatment that could lead to any significant improvement in [the applicant’s] physical state”. In [Professor A]’s opinion the applicant had “reached maximum medical improvement status and should be referred for permanent impairment assessment (addressing this latter opinion to Workcover Queensland for their independent assessment).
His representative provided submissions in support of the applicant’s claims. In particular, his representative argues that the applicant has a well-founded fear of persecution for reason of the applicant’s “Atheist beliefs” and the harm that he fears “from his family and his wider community, in addition to Kenyan society in general, owing to his previous religious practice of Catholicism that was imparted on him since birth”. The Tribunal has had regard to the following country information submitted:
“With regards to the Applicant’s claims for protection on the grounds of his religion and specifically his atheist beliefs, the most compelling evidence available, to suggest that his well-founded fear of persecution is indeed established in reality, and he is therefore at a risk of suffering both serious and significant harm if returned to Kenya, is provided by the United States Commission on International Religious Freedom (USCIRF). The USCIRF provide comprehensive information on the targeting in Africa of the group of individuals labelled as nonbelievers. In a factsheet created in June 2021, the USCIRF provide that the definition and meaning behind the term nonbelievers refers to:
‘[T]hose who identify as atheist, agnostic, freethinker, humanist, secularist, and those who do not identify with any religion.’[1]
[1] USCIRF, Factsheet: Nonbelievers in Africa, June 2021, Factsheet: Nonbelievers in Africa , p 1
The USCIRF open this particular factsheet by stating that:
‘[The] number of Africans who do not believe in or identify with any religion is growing. These individuals, and the organizations that have emerged in recent years to advocate for their rights and freedoms, face immense challenges, including government restrictions and societal discrimination.’[2]
[2] USCIRF, Factsheet: Nonbelievers in Africa, June 2021, Factsheet: Nonbelievers in Africa , p 1
Furthermore, the USCIRF posit relating to the significant difficulties that nonbelievers in Africa are subjected to on an almost daily basis that:
‘[Due] to the paucity of legal protections, political isolation, and social intolerance in many societies, the ability of African nonbelievers to organise to advocate for their rights is severely limited. Throughout the continent, these groups also face widespread challenges to publicly share their views. These challenges include legal barriers, organizational limitations, financial shortages, and social stigmas associated with being a nontheist.’[3]
[3] USCIRF, Factsheet: Nonbelievers in Africa, June 2021, Factsheet: Nonbelievers in Africa , p1
Therefore, despite only making up a small population in various countries across Africa, nonbelievers are heavily victimised and forced to endure considerable persecution and stigmatisation pertaining to their beliefs surrounding the topic of religion, that in turn exposes them to a vulnerable risk of harm from members of the wider society. Hence, nonbelievers’ classification therefore as a ‘minority’ group will further enhance the understanding of their alarming vulnerability and resulting need for protection of their human rights, safety and dignity. As a direct example of the level of harm for nonbelievers specifically from the Applicant’s home country, Kenya, USCIRF investigations report Harrison Mumai, the President of the Atheists in Kenya Society (AKS), stating that:
“[M] public atheism made it more difficult for me to secure employment,” after he was fired from the Kenyan Central Bank. Mr. Mumai has interviewed for more than 200 jobs and stated that many employers made it clear to him that they were worried about his outspoken atheism impacting their businesses.[4]
[4] USCIRF, Factsheet: Nonbelievers in Africa, June 2021, Factsheet: Nonbelievers in Africa , p3
The USCIRF then conclude by stating that:
“[N]onbelievers in Africa, and activists and organizations advocating on their behalf, face immense challenges in expressing their views and living out their beliefs. They face egregious discrimination in schools and employment, including in the public and private sectors. Furthermore, governments cited in this factsheet fail to protect nonbelievers from societal harassment and threats. Members of the nonbelieving community continue to live in constant fear due to lack of adequate government protection.[5]
[5] USCIRF, Factsheet: Nonbelievers in Africa, June 2021, Factsheet: Nonbelievers in Africa , p3
The 2023 International Religious Freedom Report on Kenya from the US Department of State, provides further information regarding the persecution of and discrimination against nonbelievers in Kenya, including testimony from the Atheists in Kenya (AIK) Society believing that:
‘[T]here was less tolerance of nonbelievers, and its members continued to experience intolerance and indirect discrimination. They cited cases of companies firing employees who has publicly identified as atheists. Members of AIK said many atheists were unable to disclose their lack of religious belief openly with their family, community or employer. An official with AIK said she experienced online harassment, including being called a “devil worshipper,” after the announcement of her appointment with the group in November.’[6]
[6] United States Department of State, 2023 International Religious Freedom Report: Kenya, p 12.
At the root of Kenyan society, at both the individual level and for politicians at the governmental level, is an unbroken chain and connection between religion and politics. As such, the persecution of atheists and other non-believers in Kenya can occur on a state sponsored basis from the government itself, and thus exacerbating the risk of harm. This would also result in a significant lack of ability to challenge the existing status quo in Kenya regarding the level of human rights protections for nonbelievers. Hence, nonbelievers in numerous African countries including Kenya continue to be actively targeted by governments and ruling parties in positions of power and extending to members of the police force acting as a puppet of the persecutory and oppressive regimes. As recently as July 2023, The Guardian reported in an article entitled ‘Our biggest challenge is simply to exist’: atheist society fights for legal recognition in God-fearing Kenya that:
Kenya elected its first openly evangelical president, William Ruto, last year. Before
the election, he signed a memorandum of understanding (MoU) “to protect the
church”, which included government funding for pastors, building grants, the
appointment of clergy to government roles, and the lifting of a moratorium on the
registration of new churches.[7][7] The Guardian, ‘Our biggest challenge is simply to exist’: atheist society fights for legal recognition inThis showcases the highly cosy relationship that the church and the Ruto government of Kenya share, resulting in the above-mentioned targeting of nonbelievers owing to their supposed direct opposition to the will of the government. Therefore, tolerance and acceptance of the right to freedom of religion in Kenya under international human rights law is absent, and in turn the dangerous stigmatisation of atheists and other nonbelievers places their lives in significant danger of harm, including as feared by [the Applicant]. The US Department of State 2022 International Religious Freedom Report further highlights that:
“[W]hile Kenyans were generally tolerant of different faiths, they were less tolerant of
nonbelievers.[8]The immense challenges and stigmatisation leading to the possibility of suffering serious and even significant harm in Kenya, on the basis of a belief in atheism or a form of non-belief in God, is despite Section 32 of the Constitution of Kenya concerning the ‘Freedom of conscience, religion, belief and opinion.’ Therefore, information especially from the USCIRF regarding the ill-treatment and persistent discrimination of non-believers across Africa and including the Applicant’s home country of Kenya, must be carefully considered as relevant to the Applicant and his fears of returning to Kenya in light of his religious views and atheist beliefs, owing to practice in Kenya of inflicting harm against individuals like the Applicant in violation of Kenya’s own constitutional protections that ‘[every] person has the right to freedom of conscience, religion, thought, belief and opinion,’ pursuant to Article 32(1) of the
Constitution of Kenya. Hence, the prospect of suffering in effect ‘unofficial discrimination’ yet instigated by the state of Kenya, owing to his non-belief in God and the ceasing of the practice of his Catholic religious beliefs, remains a real risk for the Applicant that in turn places his life, dignity and safety in Kenya in jeopardy.[8] United Stated Department of State, 2022 International Religious Freedom Report: Kenya, p 7.
The Tribunal has also had regard to the applicant’s representative’s submissions about lack of access to mental health care services in Kenya and the “extreme level of stigma attached on a deep-rooted level within Kenyan society that prevents vulnerable individuals such as the applicant from even seeking assistance in the first place”. His submissions are as follows:
The culture within Kenya, regarding mental health challenges and the justification for these issues as simply being based on the fault of the individual suffering or that he or she is possessed and requiring an exorcism, presents an extremely harmful landscape for the Applicant if returned to Kenya, owing to his long-term struggles with depression and mental health issues during his late childhood in Kenya and duration of stay in Australia. Mental healthcare services, owing to the persecutory nature of the stigma attached in Kenyan society with seeking psychological or psychiatric assistance, are blatantly not sought out or trusted in Kenya. International NGO, Doctors Without Borders or more widely known as Médecins Sans Frontières (MSF) confirm the latter in their assessment of mental healthcare services in Kenya that:
‘[Lack] of awareness among healthcare workers, non-friendly service delivery, and accessibility issues are main contributors to vulnerable people not seeking mental healthcare. “Health care workers have no idea how to support people like me. They say we have disorders, but the reality is the treatment we get drives one to stay in seclusion, and anxiety takes over.” Facilitating attitude change towards marginalised communities among health care workers at public health facilities is paramount. “Giving audience to someone willing to open up about their experience is the first step in doing away with stigma by health care workers.[9]
Hence, if returned to Kenya, the Applicant could reasonably be prevented from accessing mental health care support and associated services from Kenyan society itself and their discriminatory views towards those who seek to address those challenges. If unable to receive access to proper mental health treatment and care in Kenya owing predominantly to his fears of being attacked and persecuted for his non-belief in religion, this could undoubtedly place the Applicant at a further risk of both serious and significant harm particularly regarding his mental health. Although the Applicant, through the support of a psychologist and psychiatrist in Australia, has made numerous positive strides in his mental health, if forced to return to Kenya, the society that he sought to escape in 2018 owing to the significant mental health pressures he suffered owing to his religion, without access to proper care and support, the Applicant undoubtedly remains in an extremely vulnerable position and could face a relapse into an extremely harmful and depressive state of mind. As a result, the persecutory stigma in seeking mental health support that is engrained in Kenyan society and coupled with the overall lack of high-quality mental health support services, adds comprehensively to the Applicant’s protection claims and further illustrates a compelling factor for ensuring the Applicant’s continued protection and safety in Australia.
[9] MSF, Stigma and Discrimination: Persistent Barriers to Mental Healthcare Access for Vulnerable
The Tribunal has had regard to his representative’s legal submissions about why the applicant falls within s 5 H of the Act, and also notes the following submission:
Based on the Applicant’s vulnerability, any exposure to an environment that could subject him to a risk of serious and significant harm could result in further and more detrimental mental health challenges and as a result, placing the Applicant in an extremely dangerous situation if forced to return to Kenya. Owing to his fear of persecution and harm from his family, the Applicant would if targeted based on his non-belief in God and Catholicism from his immediate and extended family, have no support network to turn to and be instead forced to navigate an unfamiliar Kenyan society on his own, whilst forcing himself to conceal the expression of his religious beliefs to avoid persecution. Hence, the prospect of being ostracised from his family, forced to live in a hostile and unfamiliar society by himself with no support network to protect him, corroborates [the Applicant’s] well-founded fear of persecution owing to his religious beliefs and in turn exposes him to a real risk of both serious and significant harm. Therefore, owing to his isolation from his family, atheist beliefs and risk of persecution and serious physical and mental harm, the Applicant’s life, liberty and dignity in accordance with the protection of his danger if returned to Kenya.
Tribunal hearing – 7 July 2025
At the hearing, the Tribunal explained the meaning of refugee and complimentary protection as they applied to a protection visa in Australia.
The applicant confirmed at the start of the hearing that he was aware of the legal submissions and medical report provided to the Tribunal by his representative.
The applicant gave the following oral evidence at the hearing:
·He did not receive any assistance with his protection visa application. He put it together himself. The claims in that application were true and correct, and that these were the claims he wished to discuss at the hearing.
·He last resided (in Kenya) at [Suburb], Nairobi. He lived there for five or more years. He lived there while also studying at [a] University. The university is more in the [area] of Nairobi. [Suburb] was called an Estate but was like a small suburb of Nairobi. It had a population of only a few thousand people. Nairobi was a large city.
·He spoke English, Swahili and [Language]. The main language in Kenya is English and Swahili.
·He has never married. He has an Australian citizen child who is [Age] years old.
·He spent his childhood in Kisumu. At the age of [Age], he moved to Nairobi. He has lived in both the East and West of Nairobi.
·He is a Kenyan national and was born in Kenya.
·His Kenyan National Identification has not expired.
·He has a current Kenyan passport.
·When asked why he could not live within the East African bloc of countries, he stated that he has never lived outside of Kenya and certainly never in the other Eastern African countries who are part of this community. He stated that many of the countries who are part of this bloc are war torn countries and he would have never been safe going to those countries.
·He stated that his parents are both alive. He has three siblings not including himself. One sibling (a sister) lives in Australia and the other two siblings (his two [brothers]) live in Nairobi. He is in contact with his sister in Australia and is in contact with his [two] brothers in Nairobi, though not frequently.
·His mother works in Nairobi and, when she is not working, she goes back to her ancestral village in [Village 1] which is near the [Country] border. His father is presently not working and lives in his ancestral village of [Village 2].
·Before coming to Australia, he studied [subjects] at [University]. He did not finish this degree. He, instead, moved to Australia to study a degree here. He did not finish his degree in Australia. He completed a Diploma of [Subject] at [University]. He also completed his [a grade] in Kenya.
·In Kenya, all is family are practicing Catholics and are devout in their practice. The applicant recalls having to undertake Catholic rituals as a child such as going to Catechism classes, being an altar boy, going to Church, helping with bible studies and going to special ceremonies such as Easter and also praying the rosary. He was required to fast during lent.
·He is now an atheist in Australia. This became real in Australia although he had questioned his religious practice for a longtime in Kenya before that. When he grew up, he was required to be heavily involved in religious activities. He was required to undertake these activities no matter if he believed in them or not. When considering not to practice in Catholicism, he had no choice. He had his doubts about his faith but was not given a choice in deciding whether to participate in these beliefs or not. He did what he was asked to do and what was expected of him by his family. When he arrived in Australia, he realised that he could exercise his choice in not having to be religious, which is what he had wanted to do in Kenya but did not because he had not been given the power to do so.
·While in Australia, he has learnt that he can express his atheism. The choice is now his. He has been able to challenge his previous practice as a Catholic in Australia – a choice he did not have when he was back in Kenya.
·When it was put to him that he is now an adult and he is in contact with his family and that he can make choices on his own if he returned to Kenya, he stated that he was fearful of what his family might do to him and that he would be disowned by his family and community and ostracised if he told them that he has been an atheist and non- Christian believer for a long time now. He stated that if he was disowned by his family, he would also be disinherited from his ancestral family land as well. He would not be able to work, and he would not be able to meet his relatives.
·When asked why it would be any different for him now as opposed to when he was in Kenya about his atheistic beliefs, he stated that back in Kenya he was living a lie. He had no choice before in what he could or could not do about his religious practice. He learnt not to question his faith. He simply obeyed. He stated that one does not question what one’s traditional family beliefs. He stated that his family, village and community all practice religion which is a way of life as well. He was under his parents’ roof. If he stopped these religious practices, he would be kicked out and disowned. He would have no other way to sustain himself. There is no other support except family in Kenya. He would be forced to practice these beliefs if he returned and would be forced to face it with his mental health cocnerns.
·When asked why he raised several different claims together and all at once on his protection visa application when he first lodged it with the Department, he stated that he did not have any experience in putting together an application for protection at the time. He realised that it was not the best written application. In truth, he was fearful. He did not know how to unpack these fears and concerns and articulate them clearly in his application. He wrote his application by himself and received no assistance. He was on his own when he did this.
·The Tribunal then referred to his claims where he wrote that his mother stated that she was fearful for the applicant and that he should not come home. The Tribunal asked what she was referring to here when referring to political fears. The applicant stated that when he was studying at [University], he would help organise peaceful protests there against bad governance. He would help in putting up posters. He helped to organise meetings. He was part of an organisation called the [Organisation]. When asked why his mother would be afraid for the applicant’s life here, he stated that classmates have gone missing or have been killed who were part of this organisation. When asked who was killed, he named [Mr A] who was killed in 2016 and who was part of this organisation. Her was killed at [University]. He does not know who killed him. Another student, [B] was part of the [Organisation] and was also killed in 2019.
·When asked why he did not raise this particular claim in his original application, he stated that he has just answered the Tribunal’s question about his political life. He did not know how to write this up properly at the time of application as he put his application together on his own and he did not know how to articulate his fears clearly in writing. He did not get any legal assistance from a lawyer until 2022, after he was refused his protection visa by the Department.
·When asked about his Department interview, he stated that he went to the interview on his own and did not have the assistance of anyone to give him proper immigration advice. He also did not mention it at the time because his mother was [an occupation 1] at [Employer]. He feared that if he spoke about what took place at the university, this would place his mother at risk of harm. It has only been at the hearing, when the Tribunal stated that everything he said was private and confidential, that he has been able to speak more freely about this. Prior to this, he did not want to risk saying this.
·When asked why it was a concern for him that his mother, who is [an occupation 1] at [Employer] would have issues about the applicant becoming a non-Christian believer or an atheist. The applicant stated that it would be a very big concern for her. Religion is a very big part of her culture and identity. It is deeply ingrained in her culture and tradition and in his father’s culture and tradition.
·When asked how he identified as an atheist, he stated that he does not practice religion. He does not believe in the spirituality side of religion. He also advocated for the removal of compulsory Christian religious education. He strongly believed that these types of lessons should be optional. Religion should be a personal thing and that it should not be forced upon them.
·When asked what he meant by advocating for the removal of compulsory Christian religious education he stated through social media, messages and conversations. He stated that there were limits on his capabilities here. When asked whether he had done this openly already, he stated that he had. The Tribunal indicated that it did not have anything from him that showed that he had been active in this regard. The applicant did not respond to this.
·When asked whether his father was associated with [work sector], he stated that his father has studied a [Qualification 1] at [University 2] in [Country 1]. His mother had a [Qualification 2] and was a senior [occupation] at [University]. Her name was [Ms C].
·The Tribunal then went to the [Employer] website and identified a woman who was a senior [occupation 1] there called [Ms C]. It identified this person as a senior [occupation 1] and [departmental position] of the [Department].[10] After seeking consent from the applicant and his representative, the Tribunal invited the applicant to approach the computer to confirm that the person in the webpage was the applicant’s mother. The applicant confirmed that the person identified to him by the Tribunal was his mother.
[10] [URL]
·When asked about his father, the applicant stated that he took his father’s middle name as his surname is customary in Kenya. He confirmed his fathers’ full name as [Mr D].
·When asked whether both his mother and father would be concerned if he was an atheist, he stated this would be of great concern to them and to his detriment.
·When asked why his mother would be concerned about him becoming an atheist, he stated that it would be the whole community and his family, not just his mother. They all have the same religious beliefs. He would be disowned. He would not be permitted to go to his ancestral home. He would be ostracised. He would be seen going against cultural norms.
·When asked whether his mother and father knew that he was an atheist, he stated they did not. He did not think his siblings knew either as he did not discuss this with them.
·The Tribunal then referred to his claims of having tattoos, earrings and dyed hair. It observed that, at present, he was not wearing earrings, nor did he have dyed hair. The applicant confirmed this to be the case. The Tribunal indicated that country information did not appear to point to there being discriminatory and systematic discrimination of people who had tattoos in Kenya. It might be frowned upon, but this might not amount to serious harm or significant harm. The applicant commented that there was discrimination against Kenyans who had tattoos. The tattoo that he had on his forearm was large and would be viewed as a devil and that he was a devil worshipper. He then showed the Tribunal his [body part]. The Tribunal observed a large tattoo on the [part] of his [body part] which had an image of a [design 2]. The applicant stated that he would be seen as being anti-Christian and going against the Christian faith or worshipping the devil.
·When asked where he got his tattoo, he stated in Australia. When asked why he did this, he stated because he liked what he saw about [Country 2] culture. It had nothing to do with religion at the time. He did it because he had the choice of freedom at the time and wanted to get a tattoo when he knew in Kenya that it would be a problem. He stated that he realises that the tattoo will be a very big concern for him if he returns.
·The Tribunal asked him about his mental health concerns. The applicant stated that he suffered from depression, anxiety and PTSD. He stated that he has been diagnosed with adjustment disorder by a psychiatrist which the Tribunal confirmed in the report given to it by his representative. The applicant stated that he did not know what this meant. However, he has suffered from depression and anxiety and has been on medication for his condition.
·When asked to describe his present mental health condition, he stated that he has suffered with depression since high school. He was mistreated back in Kenya. He was mistreated at school. One example was when he was suspended for not attending Mass. He was so depressed he could not speak to anyone. He was not ever taken to see a psychologist. He was taken to a priest instead who gave the applicant “spiritual guidance”. The applicant stated that he needed psychological help – not spiritual help at the time. He was depressed at the time. His mental health was very bad. He was the one in the wrong for not accepting his culture. In Australia, he was triggered again when an incident happened at work as [an occupation 2]. Presently, he was not seeing a psychiatrist because it was too expensive. His mental health was very bad. His sister had to recently call the police to do a mental health check on the applicant at home. The applicant cannot afford medicine and healthcare.
·The applicant stated that there was no help for him medically in Kenya and he will not be able to speak to be heard. There was nowhere to go to help him for his mental health. He does not want to see a priest and get spiritual guidance which is what he will be forced on him if he returns. He will just be “prayed over”. There is no medication that he can get there.
·When asked how life would be if he returned to Kenya, he stated that he would not be able to stay anywhere. He will be homeless. His tattoo is a very large tattoo on his [body part] and people will be able to see this anywhere. By being an atheist and because of his tattoo, he will not be able to go to his ancestral home or village. He will be excluded from his family’s share of the inheritance. He will not be able to get the proper health care for his mental health condition. He will not be able to find work in government jobs and he will not get government support. His situation would be dire.
·He stated that he feared he would be profiled by police because of his tattoo. He fears that he will be ridiculed by people in general. He does not have any religious beliefs but he will be excluded from his family. All traditions are intertwined by religion.
·The Tribunal indicated that in determining whether the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, any conduct in Australia by him is to be disregarded unless he satisfied the Minister that he engaged in the conduct otherwise than for the purpose of strengthening his claim to be a refugee. The applicant responded that when he first moved to Australia, he would keep his body fit at the gym. He did not know about protection visas or in applying for protection before he got a tattoo. The sole purpose of him getting a tattoo was because he liked what the [Country 2] tattoos meant in life. That is why he got a tattoo. He referred to his [design 1] tattoo. He stated that it symbolised courage and bravery. It symbolised to be able to come out and be true to oneself. He stated that even though it might be frowned upon, his tattoo with [design 2] portrays bravery. He had the choice to get this tattoo, something he could never do if in Kenya. This was the only reason for him getting a tattoo. He stated that the dreadlocks and earrings which he also had at the beginning are now gone.
·The applicant stated that as an atheist, having a tattoo which is noticeable will be a problem for him if he returns.
·The Tribunal then asked the applicant’s representative if he had any submissions to make on the applicant’s behalf outside of the submissions already provided to the Tribunal in writing. The representative referred again to the applicant’s mental health concerns and the fear of returning that had built up over the years while living in Australia.
·When asked why he had provided character references, he stated that the evidence provided goes to the applicant’s character and the fact that he has been able to move forward in his achievements as a result of support that he has received here and has been able to move on from his past trauma in Kenya.
·The Tribunal asked the applicant again whether there would be repercussions from his parents were he to return as a non-Christian believer or atheist. The applicant stated that he would be disowned from his family. He stated that his mother and father are very well respected within their family and community because they have achieved so much [work-related]. Other family members will listen to them about family matters. If his parents disown him, the other family members will follow and do the same. Family is very important in Kenya. Family support is very important in Kenya. Ancestral village and community is very important.
·When asked why he could not live safely elsewhere within Kenya such as Nairobi, he stated that he would face tribalism. There are different tribal practices all over the place. He would have nowhere to go if he was disowned by family.
·The applicant stated that his mental health issues are his major concern on top of all the other concerns. He has so much anxiety at this time. He has suffered much by way of depression and mental health. Back in Kenya there would be no proper medical support and no medication for him. He would be secluded from everyone and he would be left on his own. This is major fear for him.
·He stated that his family would not support him as an atheist if he returned. He would be under their roof. There are rules about this. He has to follow family religious beliefs. He would have to do what they say. He would have no choice. This means that if they require him to see a religious leader about his mental health issues, he would have no choice. He does not want to have a spiritual leader forced upon him. He is an atheist. He does not believe that a priest can help him but he would have to listen and follow tradition and family culture if he was forced to live with them. He cannot live anywhere else anyway.
Country information
“Non-Christian believers” and “atheists”
There are no current country information assessments for Kenya prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
However, the Tribunal has considered country information provided by the applicant’s representative as noted above, to the extent that the country information is relevant to the decision under consideration, as well as other independent country information discussed below.
The Tribunal has had regard to country information relating to the rise of atheism in Kenya and the formation of the “Atheists in Kenya Society”. A 7 February 2022 Religion News Service article reported tensions between the “Atheists in Kenya Society” and other Christian groups/individuals. Mike O'Maera, a former editor of the Catholic Information Service for Africa, said that “atheism is becoming an alternative for some of the Christians."[11]
[11] Religion News Service, Frederick Nzwili, 7 February 2022, “After moving out of their comfort zone, atheists in Kenya gain visibility”, After moving out of their comfort zone, atheists in Kenya gain visibility
The same Religion News Service article also reported around 755,000 atheists in Kenya at the time:
In a country where 85% of the 50 million citizens are Christian, about 755,000 are atheists, according to Kenya’s 2019 Population Census Report. Atheist leaders say their polling shows the number closer to 1.5 million. “We are receiving many new members, and we are engaging with them,” Mumia said in an interview: “Kenya is changing. This should be the next earthquake.”[12]
[12] Religion News Service, Frederick Nzwili, 7 February 2022, “After moving out of their comfort zone, atheists in Kenya gain visibility”, After moving out of their comfort zone, atheists in Kenya gain visibility
The Tribunal notes that the “Atheists in Kenya Society” has faced societal resistance in its registration with the government:
Religious leaders have long resisted the atheist society’s attempts to be registered with the government as an official faith group. After sustained pressure the government issued the group a registration certificate in 2016, three years after it was founded at a meeting in Nairobi in 2013.[13]
[13] Religion News Service, Frederick Nzwili, 7 February 2022, “After moving out of their comfort zone, atheists in Kenya gain visibility”, After moving out of their comfort zone, atheists in Kenya gain visibility
An article published by The Nation (Nairobi) in January 2018, updated on 28 June 2020, reported that two months after its registration, the “Atheists in Kenya Society” was suspended due to pressure from religious leaders in Kenya who called for the disbandment of the group for the concerns that this group threatened the peace. Following a petition by the Society to the High Court, it overturned the deregistration of the atheist group on procedural grounds in January 2018.[14]
[14] Nicholas Komu, Nation, The (Nairobi), Updated 28 June 2020, High Court overturns suspension of atheist society | Daily Nation
Aid to the Church in Need (ACN) reported in April 2021 that the “Atheists in Kenya Society” subsequently faced issues with the Office of the Attorney General:
Atheists in Kenya, an advocacy group for atheists and agnostics, was first registered in February 2016 but was suspended two months later by the Office of the Attorney General, after the latter received complaints from the public regarding its activities and statements. The group challenged its suspension by filing a case before the High Court of Kenya, which overturned its deregistration in January 2018. Thereupon, the group demanded the resignation of the Attorney General, who eventually left office in February 2018 for reasons unknown.[15]
[15] Aid to the Church in Need (ACN), 20 April 2021, p.1, ACN Religious Freedom Report
A 12 August 2019 Pew Research Centre article reported that ‘[t]he religiously unaffiliated (including atheists, agnostics and people who don’t identify with any religion) were harassed by governments, private groups or both in 23 countries in 2017, up from 14 the previous year.’[16] The article stated that Kenya was among four of the total 23 countries where the religiously unaffiliated faced harassment from government restrictions, and social harassment occurred.[17]
Mental illness
[16] Virginia Villa, Pew Research Center, 12 August 2019, More countries saw harassment of religiously unaffiliated people in 2020 | Pew Research Center
[17] Virginia Villa, Pew Research Center, 12 August 2019, More countries saw harassment of religiously unaffiliated people in 2020 | Pew Research Center
‘The Nation (Nairobi)’ article (5 August 2021) reported that culture and language fuel stigma upon mental illness in Kenya:
One only has to reflect on how our local languages refer to mentally ill people to realise the societal or cultural perceptions and attitudes towards the issue. In my native Gikuyu, such a person is branded “mundu wangoma” — which loosely translates to “a person of the devil or evil spirits”. The alternative term, “muguruki”, is no more endearing. Many other languages have similar terms. My friend informs me that in her Oluluyia, Marama sub-tribe dialect, mental illness or any associated sickness is referred to as “obulalu”, meaning madness, which is often linked to witchcraft. Sometimes it is seen as karma — payment for a wrong committed. If one kills another person, for instance, he might become a victim of obulalu. The national language, Kiswahili, uses the term “mwenda wazimu” — “one who has gone mad”. It is telling that many of our local languages do not have any specific terms for stress or depression, an indication that our cultures did not pay much attention to the different types of mental health. ‘Mad’ people Instances of men and women who are considered ‘mad’ aimlessly roaming the streets in Kenyan tow ns and cities is all too familiar a feature. Society does not have sympathy for them. It stigmatises the ‘mad’ people and avoids them at all costs. Families probably quickly give up on their mentally ill kin for lack of help and proper information.[18]
[18] The Nation, Margaret Njeru, 4 August 2021, Culture fuels stigma upon mental illness | Daily Nation
A June 2021 International Journal of Mental Health Systems article reported socio-cultural stigma against people with mental health, and cited that ‘Kenya is a resource-poor country that faces significant challenges to provide health services to its population, especially those living in rural and remote areas’:
It has an aggregate medical personnel to population ratio of 13:10,000, which is far below the minimum of 41:10,000 set by the International Labour Organisation as being adequate to achieve Sustainable Development Goals in LMICs. This shortage of medical personnel is reflected in most of the health sector, but especially in mental health care where the specialist mental health workforce consists of only 116 psychiatrists and less than 500 registered psychiatric nurses. Additional constraints to mental health care provision in Kenya include lack of adequate financing, poor health infrastructure, limited therapeutic resources and socio-cultural stigma. Recent research by Mutiso et al. (2020) using the WHO Assessment Instrument for Mental Health Systems (WHO-AIMS) has pointed to lack of administrative structures for mental health care provision such as policies and governance. This has resulted to low prioritisation of mental health care in Kenya.[19]
[19] Elijah Marangu, Fethi Mansouri, Natisha Sands, David Ndetei, Peterson Muriithi, Karen Wynter & Helen Raw son, International Journal of Mental Health Systems, 1 June 2021, Assessing mental health literacy of primary health care workers in Kenya: a cross-sectional survey | International Journal of Mental Health Systems | Full Text
A 2023 Human Rights Watch Report made the following observations of the stigma attached to persons with mental illness in Kenya:
Over the years, Kenya has developed numerous policies and action plans on mental health. Some of these include the Kenya Mental Health Policy (2015-2030); Kenya Mental Health Action Plan (2021-2025); Kenya Health Policy (2015-2030); and Kenya National Patients’ Rights Charter 2013. Other related documents include the Kenya Mental Health Investment Case 2021 and the Suicide Prevention Strategy (2021-2026).
Stigma against people with mental health conditions is a universal phenomenon. But a country’s culture influences its impact, including in Kenya. Despite all the policies and plans, discrimination against people with mental health conditions is systemic and deeply entrenched, including in language used in relation to mental health. The Penal Code uses “imbeciles” and “idiots” when referring to people with mental health conditions. The Constitution uses “unsound mind,” and the Evidence Act uses “lunatic.” And, when patients “escaped” from Mathari Hospital in 2013 and in 2016, social media had a field day mocking people with mental health conditions.
Despite using human rights terminology, the Mental Health (Amendment) Act of 2022 fails to adequately protect those rights. In addition to involuntary treatment, the Act allows coercion in other forms including restraints and seclusion, which does not align with frameworks that respect and protect the rights of people with mental health conditions.
Stigma has resulted in the-ill treatment of people with mental health conditions over the years, including chaining. As recently as February 2020, Human Rights Watch researchers interviewed Paul, a man with a mental health condition chained in the Holy Ghost Coptic Church in Kenya.[20]
[20] Elizabeth Kumundia, Human Rights Watch Commentary, Kenya’s Troubled 60-Year Mental Health Journey, 9 December 2023, Kenya’s Troubled 60-Year Mental Health Journey | Human Rights Watch
Human Rights World Watch Report 2025 reports that:
Men, women, and children with real or perceived psychosocial disabilities continue to be shackled—chained or locked in small, confined spaces—due to inadequate support and mental health services, and prevalent stigma.[21]
[21] Human Rights Watch World Report 2025, World Report 2025: Kenya | Human Rights Watch
REASONS AND FINDINGS
The issue in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in
s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Receiving country
The Delegate, in their decision record, accepted from the evidence before them that the applicant was a Kenyan citizen and born in Kenya. As there is no evidence before the Tribunal to the contrary, the Tribunal finds that the applicant is a citizen of Kenya, and that Kenya is his receiving country for the purposes of assessing his claims for protection.
There is no information before the Tribunal that indicates that the applicant has a right of residence in any other country outside of Kenya.
Consideration
The Tribunal has carefully considered the applicant’s written claims, his oral evidence at the Department interview, his oral evidence at the hearing and the submissions and material (including a psychiatrist report) provided, on his behalf, by his representative.
The Tribunal has some concerns about the reliability of his claims that he has been targeted by authorities in Nairobi for reason of his membership of [Organisation], a university-based student organisation at [University]. As indicated to the applicant at the hearing, the Tribunal had concerns that this claim was first raised at the hearing and not raised at an earlier stage when he had the opportunity to do so. While the Tribunal has taken into account the applicant’s response that he raised this claim at the hearing because the Tribunal had asked him directly about his “political life” and that the Tribunal had pointed out that his oral evidence would remain private and confidential, the Tribunal still finds on the evidence that the applicant has embellished his political claims in an attempt to assist his other claims for protection, given that he has provided substantial evidence to support his main claims (as indicated below) but not the claim based on his association with [Organisation].
The Tribunal, however, does not consider this embellishment of his claims as undermining his overall claims for protection given that it was a secondary claim made only at the hearing and does not take away from the consistency of evidence provided for his other claims made from the outset. The Tribunal finds that the applicant’s claims as it relates to his religion (as an atheist and non-Christian believer), coupled with his claims related to his significant ongoing mental illness as evidenced by the psychiatrist report provided, to be consistent with written and oral evidence given by him throughout his protection visa process and consistent with independent country information before the Tribunal.
The Tribunal has had regard to the consistency of the applicant’s evidence that he fears suffering serious harm for reason of his practicing “atheism” or being an active “non-Christian believer” in a practicing Christian society which includes his family and community at large. It has had regard to it being his main claim raised in his protection visa application lodged on 31 December 2018, presented and discussed at his Department interview and at the Tribunal hearing, and argued in legal submissions made on his behalf by his representative. The Tribunal notes the delegate’s decision record that they accepted from the “applicant’s responses provided at [the] interview” that the applicant is an atheist.
At the hearing, the Tribunal found the applicant to be someone who was reliving his experience in Kenya in the telling of his story of how he grew up in a very conservative Catholic family and Christian society and was given no choice in the practice of Catholicism, even though he entertained not practicing his faith. It found plausible his evidence of why he has given up on his Catholic faith and his fear of returning and being forced into practice again of this religion. It found plausible his evidence that he has spent his time in Australia being openly atheist given that he was unable to do so in his conservative Christian setting at home. It found plausible his evidence of why he chose to get a tattoo in Australia in opposition to his family’s (and Kenyan society’s) religious conservative attitude and culture and that this was another example of his freely choosing to move away from his Christian upbringing.
It accepts on the evidence before it that he comes from a highly respected family, given his mother’s [work sector] position at Kenya’s highly regarded [Employer] and his father’s [work sector] background as well and that their status gives them substantial influence in decision-making within the immediate and extended family and in their community. It found plausible his evidence that his significant mental illness makes him extremely vulnerable if he was to return forcing him to have to live under the influence of his conservative Christian parents and family and, as a result, will need to conceal his true religious beliefs or cease to be involved in the practice of being a non-Christian believer or atheist.
Having considered all the evidence before it, the Tribunal accepts that the applicant is a practicing atheist or non-Christian believer. It accepts that he is very vulnerable given his mental illness which has been diagnosed by an Australian psychiatrist [Professor A] (see evidence above) as an “Adjustment Disorder with Depressed and Anxious Mood along with secondary Alcohol Use Disorder”. His diagnosis concluded that his present mental illness means that he does not have “functional capacity for work in his substantive or alternative role.” It accepts that his mother has a [Qualification 2] and is [departmental role] of the [Department], and Senior [Occupation 1] at Kenya’s [Employer]. It accepts that his father is educated in a [Qualification 1] at [University 2] in [Country 1]. It accepts that his family are conservative Christians in the Catholic tradition as are his immediate and extended family. It accepts that he has attempted to move away from his conservative Catholic faith over periods of time while he lived in Kenya only to have his parents’ take control of his faith.
It accepts that he has a subjective fear that, were he to return he would be forced to conceal his true religious beliefs or cease to be involved in the practice of being a non-Christian believer or atheist, given his vulnerability because of mental illness and his having no place to live but under the control and authority of his parents and family who are conservative Christians. It accepts that he has a subjective fear that, were he to return, and chose not to live with his parents and family, he would suffer serious harm from Kenyan society in general due to societal discriminatory attitudes to mental illness and that the harm that he suffers will be the result of discriminatory and systematic conduct.
The Tribunal is satisfied from the evidence before it that he has not engaged in conduct otherwise than for the purpose of strengthening his claim to be a refugee, given that the Tribunal has accepted on the evidence before it that the applicant’s conduct of practicing atheism or as a non-Christian believer occurred while he lived in Kenya and did not arise solely when he lived in Australia.
Is there a chance the applicant will suffer persecution upon return to Kenya
The Tribunal finds on the evidence before it that the applicant would return to his home area in [Suburb], Nairobi, given this is where he lived much of his life before coming to Australia.
The Tribunal’s overall finding that the applicant falls within the meaning of refugee arises only after having considered the cumulative circumstances of his main claim of fear due to his religious beliefs as an atheist and non-Christian believer which is the essential and significant reason for the persecution, and his secondary claims of fear due to his mental illness, due to his parents influence within family and community as conservative Christians and due to his vulnerability in society at large, all which elevate the chance of the applicant suffering harm for reason of his practice as an atheist or non-Christian believer to a level of their being a real chance the applicant will suffer serious harm for reason of his practice as an atheist or non-Christian believer.
As noted above, while there is no DFAT country report to guide in the consideration of these claims, other independent sources (and cited above) make clear that the religiously unaffiliated in Kenya faced harassment from government restrictions and social harassment.[22] In particular, the Tribunal has given careful consideration to, and accepts as relevant to the applicant’s main claims, the 2023 International Religious Freedom Report on Kenya from the US Department of State, where the Atheists in Kenya (AIK) Society testified that:
‘[T]here was less tolerance of nonbelievers, and its members continued to experience intolerance and indirect discrimination. They cited cases of companies firing employees who has publicly identified as atheists. Members of AIK said many atheists were unable to disclose their lack of religious belief openly with their family, community or employer. An official with AIK said she experienced online harassment, including being called a “devil worshipper,” after the announcement of her appointment with the group in November.’[23]
[22] Virginia Villa, Pew Research Center, 12 August 2019, More countries saw harassment of religiously unaffiliated people in 2020 | Pew Research Center
[23] United States Department of State, 2023 International Religious Freedom Report: Kenya, p 12.
While the Tribunal accepts that the applicant is not part of the AIK, the testimony from Kenya’s main and seemingly only registered atheist society gives no doubt to Kenyan society’s discriminatory and systematic conduct towards atheists and non-believers generally. On the country information before it, the Tribunal accepts that atheists and non-Christian believers do face societal and government harassment amounting to discriminatory and systematic conduct.
However, country information points to this occurring when one is overtly practicing as an atheist or non-Christian believer otherwise the chance that societal or government harassment will amount to discriminatory and systematic conduct will remain remote. The Tribunal finds in the applicant’s circumstances that his mental illness, his parent’s status in Kenyan society (particularly his mother’s status at [Employer]), their influence within their family and community as conservative Christians and his vulnerability in society at large, will elevate the chance of the applicant suffering harm for reason of his practice as an atheist or non-Christian believer to a level of their being a real chance the applicant will suffer serious harm for reason of his practice as an atheist or non-Christian believer.
The Tribunal accepts country information that the applicant’s mental illness will restrict the places he can return to, namely his parent’s or family’s home, the very place he found that he was forced to conceal his true religious beliefs or the place where he ceased to be involved in the practice of being a non-Christian believer or atheist. The Tribunal has given particular regard to Medicines San Frontiers article, “Stigma and discrimination: Persistent barriers to mental healthcare access for vulnerable and marginalised people in Kenya”, which reported that:
According to WHO in 2021, 1 out of 4 persons seeking healthcare in Kenya has a mental health condition. However, stigma influences how mental health is addressed.
For vulnerable and marginalised persons and key populations – who include people who use drugs, adolescents and youth populations, people living on the street, female sex workers, men who have sex with men, LGBT and related communities – ostracisation by family and community is common as their behavior is seen as out of the guarded social norm. Therefore, these people are often ashamed and reluctant to go seek medical care for fear of being judged or mismanaged.
This stigma and discrimination predispose them to violence, exploitative working conditions and societal prejudice leading to not only social exclusion but also with little to no coping capacity, creating a looming public health crisis as this extends in healthcare access too.[24]
[24] Medicins San Frontiers, “Stigma and discrimination: Persistent barriers to mental healthcare access for vulnerable and marginalised people in Kenya”,1 December 2022, Stigma and discrimination: Persistent barriers to mental healthcare access for vulnerable and marginalised people in Kenya | 1Médecins Sans Frontières Australia | Doctors Without Borders
Given this country information, the Tribunal finds that the applicant’s mental illness, were he to live on his own away from the strictures of his family, would be “predispose[d] … to violence, exploitative working conditions and societal prejudice leading to not only social exclusion but also with little to no coping capacity.[25] It finds on the evidence before it that, were he forced to live within his family’s religious strictures, he would be forced to conceal his true religious beliefs (as an atheist) or cease to be involved in the practice of being a non-Christian believer or atheist. Were he to return to his family home, on the country information before it and on the evidence given by the applicant of how his religious family have previously dealt with his mental health, the applicant’s mental health will be treated through spiritual means at best and not in any clinical way that would treat his diagnosed mental illness over time. The Tribunal accepts the applicant’s evidence at the hearing of his family’s previous attempt to deal with the applicant’s mental health by seeking spiritual guidance from a priest when he really needed psychological care and assistance, which was not given to him.
[25] Medicins San Frontiers, “Stigma and discrimination: Persistent barriers to mental healthcare access for vulnerable and marginalised people in Kenya”,1 December 2022, Stigma and discrimination: Persistent barriers to mental healthcare access for vulnerable and marginalised people in Kenya | 1Médecins Sans Frontières Australia | Doctors Without Borders
Given the country information above whereby persons with mental illness are stigmatised in Kenyan society, the is a real chance that his family will either ostracise him for having a mental illness or force upon him a social exclusion away from community at large, given his mother’s prestige and status at one of Kenya’s largest [Employers]. Having regard to the country information, as well as the applicant’s significant mental illness and his mother’s status in society, there is a real chance, which is not a remote chance, that the applicant will return to his family home and his community in his home area and be unable to practice being an atheist or non-Christian believer, and, in his vulnerable state, be forced to be socially excluded given that his behaviour as a non-Christian and a person with significant mental illness will be “seen as out of the guarded social norm”.[26]
[26] Medicins San Frontiers, “Stigma and discrimination: Persistent barriers to mental healthcare access for vulnerable and marginalised people in Kenya”,1 December 2022, Stigma and discrimination: Persistent barriers to mental healthcare access for vulnerable and marginalised people in Kenya | 1Médecins Sans Frontières Australia | Doctors Without Borders
The Tribunal finds on the evidence before it that the applicant will suffer serious harm, by way of a threat to his life or liberty, significant physical harassment or significant ill-treatment or denial of access to basic services by way of his family, extended family, community and Kenyan society at large for reason of his practice as an atheist or non-Christian believer in combination with his significant mental illness.
On the basis of its assessment of country information before it, the Tribunal finds that there is a real chance, which is not a remote one, that he will be persecuted for reason of his religion were he to return in the reasonably foreseeable future. The Tribunal is satisfied that the persecution will be directed at the applicant for the essential and significant reason for his religious beliefs (practicing as an atheist or non-Christian believer) and that the chance of persecution occurring is elevated to a level of real chance that persecution will occur when considering cumulatively his mental illness and family status in Kenyan society. The Tribunal is satisfied, on the country information before it, that this serious harm involves systematic and discriminatory conduct that is deliberate or intentional and that it involves by way of a threat to his life or liberty, significant physical harassment or significant ill-treatment or denial of access to basic services.
The Tribunal finds on the evidence that this is not a case where the applicant can modify his behaviour. He cannot remove himself from his family’s influence given his dependency on them because of his mental illness. This will mean that he cannot practice as an atheist or as a non-Christian believer given his family’s conservative Christian religious strictures.
The applicant cannot live in Kenyan society at large given his mental illness and the stigma that is attached to persons with mental illness across Kenyan society (given the country information assessed above) and how they are and will be treated by society outside of their own family strictures. Therefore, the Tribunal finds the applicant cannot live safely outside of his home area without the proper psychological and medical treatment he requires, which is greatly lacking in Kenya.
The Tribunal finds that there are no effective protection measures for the applicant inside his home area or outside of his home area. He will not be able to live on his own and practice his religious beliefs freely in a conservative Christian society given his accepted mental illness. He will not survive on his own if not provided adequate medical treatment. In this regard, the Tribunal is mindful of the June 2021 International Journal of Mental Health Systems article which indicates:
Additional constraints to mental health care provision in Kenya include lack of adequate financing, poor health infrastructure, limited therapeutic resources and socio-cultural stigma. Recent research by Mutiso et al. (2020) using the WHO Assessment Instrument for Mental Health Systems (WHO-AIMS) has pointed to lack of administrative structures for mental health care provision such as policies and governance. This has resulted to low prioritisation of mental health care in Kenya. [27]
[27] Elijah Marangu, Fethi Mansouri, Natisha Sands, David Ndetei, Peterson Muriithi, Karen Wynter & Helen Raw son, International Journal of Mental Health Systems, 1 June 2021, Assessing mental health literacy of primary health care workers in Kenya: a cross-sectional survey | International Journal of Mental Health Systems | Full Text
CONCLUSION
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.
Date of hearing: 7 July 2025
Representative for the Applicant: Mr Vivek Kumar Chopra
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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God-fearing Kenya, 28 July 2023, ‘Our biggest challenge is simply to exist’: atheist society fights for legal recognition in God-fearing Kenya | Global development | The Guardian
and Marginalised People in Kenya, 1 Dec 2022, available at:
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