2209094 (Refugee)

[2024] AATA 2376

2209094 (Refugee) [2024] AATA 2376 (27 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Nguyet Thi Doan (MARN: 1795946)

CASE NUMBER:  2209094

COUNTRY OF REFERENCE:                   Kenya

MEMBER:Peter Katsambanis

DATE:27 February 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 February 2024 at 9:56am

CATCHWORDS

REFUGEE – protection visa – Kenya – particular social group – male homosexual – undermining the Kalenjin culture – fear of physical assault – attack on home by the Mungiki – killing of the applicant’s partner – tribal violence – state protection – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423, 499
Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB (2013) FCR 505

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 June 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Kenya, applied for the visa on 6 September 2019. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.

3. The applicant appeared before the Tribunal in Perth on 24 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Manager A].

4. The applicant was represented in relation to the review by a registered migration agent. The representative attended the hearing.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issues in this case are whether there is a real chance that if the applicant returns to Kenya he will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Kenya, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act.

    Protection Visa Application

12. In his application for a protection visa, lodged with the Department on 6 September 2019, the applicant stated that he was born on [date] in Uasin Gishu, Rift Valley, Kenya. He can speak, read and write English, Swahili and Kalenjin. He stated that he was of Kalenjin ethnicity and of Christian religion. He listed his occupation as a student. He claimed that he had never been married or been in a de facto relationship and had no children.

13. The applicant claimed that he came to Australia [in] May 2017 on a valid Australian student visa. He stated that he had not travelled to any other country in the previous years. He stated that he had lived in [Town 1 in] Uasin Gishu, Rift Valley from birth until he came to Australia in May 2017. He also listed several residential addresses in New South Wales where he had lived since he arrived in Australia.

14. On his application form the applicant listed two jobs he had held since he came to Australia. However, he did not list any previous employment in the past in Kenya. He claimed that he had completed high school in Kenya in [specified year] and had then completed a [Subject 1 course] at [College 1] in [Town 2], Kenya [between specified years]. He also stated that he was currently enrolled in a course at [College 2 in] New South Wales.

15. The applicant provided the Department with a copy of his Kenyan passport, which is due to expire [in] 2026, his birth certificate and his Kenyan national identity card. He claimed to the Department that he had lost his passport and ID card since he had been in Australia and that he had reported the loss of these documents to police in New South Wales.

    Statement of Claims

16. In a statement accompanying his protection visa application, the applicant stated that he was seeking protection so that he did not have to return to Kenya because he belonged to a particular social group being the gay community, which people think attacks the foundation of their cultural norms and practices.

17. The applicant claimed that he was born and raised in the village of [Village 1] in Kenya but he decided to leave Kenya in May 2017 with the hope of returning and settling after members of his community had forgotten about him and he would be able to settle and blend into the community again.

18. The applicant claimed he belonged to the Kalenjin ethnicity or tribe in Kenya and his village was a typical Kalenjin village in the Rift Valley region. He completed school and then completed a [Subject 1] course in [Town 2] where he met [Partner A] on 10 June 2013. He claimed that they both came from the same village, but they had never met in the village. [Partner A] was a passionate and courteous person and the applicant fell in love with him. During the school holidays they would return to their village and would live together in the village and in the neighbourhood.

19. The applicant claimed that everyone in the village considered them to be great friends until 29 December 2016 when people started becoming suspicious of them. He claimed that this was when he and [Partner A] both completed their courses in [Subject 1] and moved into shared accommodation in their village of [Village 1]. The people in the village became suspicious of them because they started to express their love to each other without knowing exactly what they were doing. They attended many community gatherings together including traditional weddings and burials. This was enough for the people in the community to conclude that they were definitely people of same-sex preference, which was considered to be undermining the Kalenjin culture because engaging in a same-sex relationship is considered to be a bad omen to the community as well as a bad influence the young ones in the community. The Kalenjin people are very proud of their culture and traditions, so they are determined to remove all obstacles and impediments to this culture.

20. The applicant claimed that he and [Partner A] were living together in [Village 1] and were happy to consummate their relationship. He stated that on 4 January 2017 [Partner A] travelled to Nairobi to pursue an opportunity for further education whilst the applicant remained in [Village 1]. As the applicant returned home from the village trading centre, he saw from a distance that the rented house where the couple lived had been set ablaze and people were chanting and singing songs of war and terror around the house. As he moved closer to the house, the applicant noticed that the people who surrounded the house were members of the Mungiki, which he described as a very notorious traditional force.

21. The applicant claimed that he realised he was in danger, so he ran for his life from [Village 1] to [Village 2] but he was pursued for about 20 minutes and then captured by three of the strongest men. He cried out for help, but no one would listen to him. The applicant stated that these men were so merciless on him. They told him that since he had defied the customs and traditions of his people, they would burn him alive to destroy all the bad luck. These men whipped him, pushed him and threw soil on him as they marched him from [Village 2] back to [Village 1]. He was pushed to the ground eight times over a stretch of 6 km.

22. The applicant claimed that it took four hours to arrive at [Village 1]. He was very tired, and the torture inflicted on him was too much, so he was ready to meet his death. He was brought to the compound of the chief who spoke to him and implied that he would be subjected to mob justice where he would be burnt alive after being tied to an old car tyre. He claimed that he was tied up and even had petrol poured on him, but he then heard gunshots in the air, and this scared the people away. He was untied by the police who had arrived on the scene, but he still had to run to the police station at [Town 1] that night. The police station was closed but he was so terrified that he could not leave the police premises. He reported the incident to the police at [Town 1], but he was told that these were community matters and there was nothing that they could do to assist him. He claimed that the police saved his life on that particular day, but they made him understand that he was on his own.

23. The applicant claimed that because he could not return to [Village 1] for fear of being killed, he decided to relocate to [Town 3] where his uncle lived. His uncle kept him on his farm which was around 20 km from [Town 3] so the Kalenjin could not find him and kill him. The applicant claimed that he lived on this farm for five weeks.

24. In his statement, the applicant claimed that his uncle told him that the Kalenjin people realised the uncle was helping the applicant to escape. The uncle immediately contacted agencies in [Town 1] to help the applicant relocate overseas as a student so he could stay away from his area until the local people forgot about him.

25. The applicant claimed that on 12 April 2017 with the assistance of his uncle he submitted an application for an Australian student visa and after the visa was granted, he travelled to Australia [in] May 2017. After his arrival in Australia, his uncle rang him on 28 June 2017 and told him that Kalenjin people had attacked the uncle’s farm and burnt down all his crops.

26. The applicant stated that on 24 June 2017, his uncle had also called him and told him that [Partner A] had been killed by the community [in] June 2017 at the village square in [Village 1] and that ‘his people’ were accusing the applicant of taking [Partner A] to the gay community. This information had scared the applicant so much that he could not return to Kenya because he feared for his life.

27. The applicant claimed that he had narrowly escaped from the Mungiki on [the day in] January 2017 when the police arrived to disperse the crowd, his uncle had his farm burnt down by the community for hiding the applicant and his partner had been killed. He stated that all this happened because of his involvement in the gay community which was an indication that if he ever returned to Kenya, he would not get any other chance of escaping with his life. Although his uncle kept him at the farm, they still managed to burn this farm because the applicant had lived there, which indicated that they were determined to find the applicant and kill him, which placed his life in great danger.

28. The applicant claimed that he faced the greatest shock of his life when his house was set ablaze and he was then tortured, beaten and threatened with death by the Mungiki. They poured petrol on him after tying him to a car tyre and they were going to kill him before they were disturbed. He claimed that he never saw his partner again after the house was burnt down on [the day in] January 2017. The applicant feared for his life and with the subsequent death of [Partner A] he was very disgruntled and had the worst shock of his life.

29. The applicant stated that it had always been very hard for people of the same sex to be protected in Kenya. He was lucky that the police intervened when he was about to be burnt and killed in January 2017 but the protection of the police in this particular situation was only in a given chance because the police were usually on the side of the community. When he reported the incident to the police in [Town 1] they simply sent him away even when he told them that he had been tortured and brutally handled after his false arrest by members of his own community. The police had informed him that he should return to his community and do what the community want.

30. The applicant claimed that after the police told him to return to his community, he decided to travel to [Town 3] to seek safety at his uncle’s farm but on 4 April 2017 his uncle told him that news had spread that he was protecting the applicant, which was why the uncle arranged for the applicant to leave Kenya and come to Australia. However, after the applicant left Kenya, the Kalenjin burnt down the uncle’s farm and killed the applicant’s partner, [Partner A], when he returned to the village.

31. The applicant stated that he had been lucky to escape death very narrowly when he was in Kenya after the timely intervention of the police that rescued him on that particular occasion. However, he stated that the police cannot protect him any further from being attacked or even killed. He feared that if he returned to Kenya he would definitely be harmed, mistreated or seriously harmed resulting in death. [In] January 2017 he had been held as a captive and only narrowly escaped death. He was also harmed when he heard that his partner had been killed in the cruellest way and he believed that if he went back to Kenya he would be killed.

32. The applicant claimed that it was clearly proven that the Kenyan authorities were not independent when it comes to exercising their powers and protecting the people against the masses or the community or what the community believes. The authorities are also part of the Kenyan community, so they do not want to protect individuals that are seeking protection against the community. He claimed that there was natural and inherent hatred for gay people in Kenya and nobody wanted to protect them. He stated that the Kenyan people and community look at gay people as being evil and demonic.

33. In relation to the ability to relocate in other parts of Kenya to avoid the harm that he feared, the applicant stated that he belonged to the Kalenjin ethnic group which was one of the largest ethnic groups in Kenya. The Kalenjin are found in all parts of Kenya and anything that happens to one community member is reflected to all parts of the country, which makes it very difficult for a person in his own situation who is running away from what is affecting the entire ethnic group. In addition, gay people have no place in Kenya because the concept is disputed by everyone and every tribe in Kenya. The applicant feared that he would not only be running from the Kalenjin people but from other tribes who would not accept him because he was looked at as a bad omen.

    Interview with Delegate

34. The delegate’s decision record indicates that the applicant was interviewed by the delegate on 3 June 2022.

35. The delegate’s decision record indicates that at this interview the applicant claimed that he completed his [Subject 1] studies [between specified years] in [Town 2], which was around 200 km from [Village 1]. He was subsequently employed at a [shop] in [Town 4], around 200 km from [Village 1], from 2014 to 2015. He was then employed [in] [Town 4] from 2015 to 2016. He returned to [Village 1] in 2016 after his work contract finished and his father supported him from 2016 until he departed for Australia in 2017.

36. According to the decision record, the applicant stated that his father was a subsistence farmer and his family members do not have any local influence or any political or religious profile in their village. Most of his family members live in [Village 1] and his paternal uncle lives in [Town 5], which is around 20 km from [Village 1]. One of his sisters lives in [Country 1] and [another sister] had recently completed her studies in Kenya and was intending to come to Australia to continue her studies.

37. The decision record reflects that the applicant described his sexual orientation as being bisexual. He stated that he was attracted to girls and added that he had hooked up with girls once in a while before and after he had met [Partner A]. He had not met any other men apart from [Partner A] in Kenya. He became attracted to [Partner A] when he was [age] years old. When asked if he could marry a girl, the decision record states that the applicant responded that whilst he could marry a girl, ‘it is a feeling’ and added that he is ‘not really into girls’.

38. The applicant confirmed that he met [Partner A] in 2013 at the [Subject 1] college they both attended in [Town 2]. They had both grown up in [Village 1] and were in the same class at the college. During school holidays they had spent a lot of time together in the village and enjoyed intimate sexual encounters at the applicant’s parents’ shed located some distance from the house. They started to live together in 2014 in a rented studio apartment in [Village 1] for which the applicant paid the rent. The applicant claimed that during this time he was working in [Town 4], which was around 200 km from [Village 1], and whilst he stayed in [Town 4] during the week he would travel to [Village 1] on weekends. He claimed that for three years nobody knew about their relationship.

1. According to the decision record, when asked what had happened to [Partner A] the applicant initially responded, ‘I do not know what he is up to’. The applicant then stated, ‘he is not alive, he died in 2015, he was murdered’. When asked when [Partner A] had been murdered, the applicant stated that this happened in 2014. However, according to the decision record, the applicant then added ‘he was murdered by people who were looking for me in 2016. I was working in [Town 4] and he was murdered. I was told by my parents he was buried in [Village 1]. I was lucky’.

2. The applicant stated at the interview that he had told his mother and his sisters about his sexual preferences, and they were sympathetic to his sexual orientation. He is in regular contact with his family in Kenya and financially supports them on a regular basis.

3. In relation to the incident [in] January 2017, the decision record indicates that the applicant claimed that he was running away from the Mungiki mob in [Village 1] and some people ordered a motorbike taxi for him to travel away from the Mungiki. He travelled by motorbike to [Town 5], which was around 20 km from [Village 1] and was where his uncle had a farm.

4. The applicant claimed that he was comfortable disclosing his sexual identity in Australia because he knew it was accepted here and his friends and colleagues knew about his sexual identity. He claimed that he was not involved in any same-sex relationship in Australia. He did not use dating apps or websites but had attended the Mardi Gras parade in Sydney.

5. The decision record indicates that the applicant claimed that he could not relocate to Nairobi, where some country information indicated that there was a vibrant LGBTIQ community, because the anti-LGBTIQ law was the same in Nairobi as it was in other parts of Kenya.

6. In relation to his delay in applying for protection after arriving in Australia, the decision record indicates that the applicant responded that he did not know about protection visas at the time and had only found out about them online. He also added that the LGBTI law had been passed in Kenya in 2018.

7. The delegate refused to grant the applicant a protection visa on 10 June 2022.

   Application for Review

8. The applicant applied to the Tribunal for a review of the delegate’s decision on 22 June 2022. The applicant also provided the Tribunal with a copy of the delegate’s decision and a copy of the accompanying notification letter.

   Statement from Applicant

9. In a statement dated 13 November 2022, the applicant outlined his personal details and claimed that he moved from Sydney to Perth in May 2022 because he was depressed over his personal life, he wanted to move for a change, and he was hoping his life would improve. He was working as a self-employed [occupation 1]. He described his sexual orientation as bisexual/gay.

10. The applicant stated that he was part of the Kalenjin tribe because his parents were Kalenjin. He claimed that he feared there would always the threat of civil violence around election time in Kenya because elections were always high-stakes ethnic contests and referred to violence between tribes at previous elections in Kenya.

11. The applicant claimed that his parents were still alive and living in [Town 1], Kenya. His mother was [age] years old and a housewife. His father was [age] years old and retired. Neither of his parents were wealthy. They were both Christians and did not follow any political party earnestly.

12. The applicant claimed that he had two sisters. [One] was [an occupation 2] and currently living in [Country 1]. [Another] was currently living in Kenya where she was unemployed after completing a university degree. She had previously studied in Queensland, Australia. He claimed that he had told his sisters about his sexuality, but they were not accepting of it. He was sad about this, but also understood and respected their feelings.

13. The applicant claimed that he had completed a [Subject 1] course in Kenya [between specified years]. In 2017 he had studied in Australia for a year however he did not complete this course because he was unable to afford to continue studying. He claimed that his uncle’s farm in [Town 3] had been burnt down by mob violence, so the uncle was unable to continue to financially support the applicant with his studies. He also had mental issues which distracted him from studying because his lover, [Partner A], died and even his own home in Kenya had burnt down.

14. In his statement, the applicant claimed that [Partner A] was not entirely happy that the applicant was bisexual as [Partner A] was gay but not bisexual. He claimed that there was an issue during their relationship as [Partner A] became jealous when the applicant told him he had girlfriends even if the girls were platonic. The applicant claimed that after the mob violence, [Partner A] went to Nairobi because he said that gays had an easier time there while the applicant went back to [Village 1]. When the applicant departed for Australia in May 2017, [Partner A] did not go to the airport because he thought the applicant was going to Australia to try to find a lady. [Partner A] could be very needy and obsessive at times, but the applicant still loved him.

15. The applicant claimed that he had worked [for] [Employer 1] in Kenya from 2014 to 2016. In Australia, he had worked as [an occupation 1] for a company in Sydney from 2017 to December 2020. He had then worked [in a similar role] for another company from January 2021 to May 2022. Since June 2022 he had been a contractor to [Employer 2].

16. The applicant claimed that in January 2017, when he returned home from [Village 2] to [Village 1], there was singing and chanting that his tribe, the Kalenjin people, were going to war against the other tribes. One day, from a distance, he saw members of the Mungiki tribe which was an ill-reputable tribe. He became very scared and ran away because his tribe was declaring war against other tribes including the Mungiki. He was also suspected of being a homosexual because people in the village had spread rumours about his sexuality due to his close relationship with [Partner A], even though the applicant had tried very hard to hide the fact that he was gay. He added that there were also tribal and racial riots even before the 2017 elections.

17. The applicant claimed that he was captured by members of the Mungiki tribe. He was abused, hit, whipped and threatened to be killed by this tribe. The police arrived with gunshots, and the men from the tribe got scared and ran away. The applicant claimed that he was taken to a nearby police station in [Town 1] where he reported the incident however, the police said there was nothing that they could do because there were intense rivalries between many tribes at the time. He claimed that it was his view that the police were complicit and corrupt, so he decided to move to [Town 3] and live there with his uncle.

18. The applicant claimed that his uncle tried to help but there was nothing the local authorities could do at the time, and he only stayed there for a few weeks. His uncle helped him to come to Australia, but this uncle does not want to be identified because he fears retribution as he had helped other gay men and lesbians to leave Kenya to seek asylum whether as a refugee or some other more orthodox pathways. His uncle had also been a target of mob violence from tribes.

19. The applicant claimed that he was afraid that members of the Mungiki tribe may capture him again and kill him because they had threatened that if they saw him again, they would kill him as he was not only from the Kalenjin tribe, but he also defied traditions by being homosexual. His uncle assisted him to obtain a student visa for Australia and he chose to come to Australia because it was a safe country that upheld human rights and accepted homosexuality.

20. The applicant claimed that he did not progress well in his studies in Australia because he was homesick and was missing his lover, [Partner A]. He was later devastated to learn from his uncle that [Partner A] had died through mob violence, and he could not focus on his studies anymore.

21. In his statement, the applicant claimed that he had some casual relationships with gay men in Sydney and made some friends who told him about applying for a protection visa, so he decided to claim asylum. His initial plans were to study in Australia and then look at a residence pathway after he completed his studies as a way of escaping persecution in Kenya. He also thought that if he had an Australian qualification, he would have better job prospects in Kenya and earn more money, which would give him more opportunities to find employment in overseas countries where homosexuality was not a crime and sexual orientation would not result in discrimination or persecution. The applicant added that apart from Australia he did not have a right to visit or reside in any other country.

22. The applicant claimed that he feared persecution if he returned to Kenya for reasons of his homosexuality and/or gender identity through his membership of a social group namely LGBTIQ people. He claimed that there was nothing he could do to avoid persecution such as modifying his behaviour because his religion, ethnicity and sexual preference is fundamental to his identity.

23. The applicant claimed that the authorities and the Kenyan police could not protect him in terms of his sexual orientation because homosexuality was a criminal offence in Kenya and the current president was well known for his anti-gay stance. He feared that if he was imprisoned because he was homosexual, he would be at risk of contracting Covid-19 and claimed that the Covid-19 pandemic in Kenya had impacted access and standard of care in hospitals and on the already weak and fragile health system.

24. The applicant claimed that in May 2019, Kenya’s highest court ruled that laws targeting LGBTQIA people was not unconstitutional. His family had told him not to return to Kenya as little had changed and, if anything, things had become much worse since Covid-19 because people are afraid of disease transmission and virus exposure, and there is a perception that gays are unclean. He also claimed that some tribes like the Kikuyu think that homosexuality brings bad omens and people who are gay need to be burned alive as they are demonic.

25. The applicant stated that he came from a typical Kalenjin village and relocation was not possible for him within Kenya. He added that homosexuality was illegal in the whole country so relocation would not make any difference to him. Tribal wars were pervasive and since the August 2022 elections, further civil unrest was expected because the rival tribes did not accept the election outcome.

26. The applicant claimed he had no faith in the Kenyan police or the government authorities to protect him. He stated that if they found out he was homosexual he would be arrested even though he was the victim. He claimed that with corruption was widespread in Kenya and that the Kenya National police service was ranked as the most corrupt institution in the country. He feared that he could not live his life by bribing all the time and stated that his vulnerabilities and homosexuality would put him at far greater risk than the general community.

27. The applicant claimed that he would find it difficult to reintegrate back into Kenyan society and to live discreetly as a gay person having tasted real freedom in Australia where he could openly live as a gay man. He claimed that he had attended the Sydney Mardi Gras and also welcomed participation in Perth’s pride festival. He claimed that as a homosexual he would find it difficult to find work in Kenya and could not rely on his family to financially support him. He would therefore be an easy target for criminal elements and human traffickers because of his vulnerabilities. Although the Kenyan government was trying its best to enforce anti-trafficking laws, their focus was on protecting children and women rather than adult males like himself. As he was gay, the government was unlikely to protect him, and it was also widely known that some officials are complicit with people smugglers.

28. In this statement, the applicant claimed that he was not a political activist, but he feared political violence because members of his Kalenjin tribe around [Town 1] in Kenya had been subjected to election-related violence in the past, including after the election of a president of Kalenjin ethnicity in August 2022. The applicant claimed that he did not raise these issues in the past because he did not know the refugee law or what claims were eligible for protection or complementary protection until he recently consulted his current representative.

29. The applicant claimed that when he was in Kenya, he had voted for the Orange political party, which he claimed no longer existed, but did not consider himself to be active politically. However, he feared that other people may perceive him to be active in politics because of his tribal origin and because the current president is from the same tribe, rivals from other tribes may target people of Kalenjin origin. He also stated that the current president is a conservative Christian who is strongly against gays and believes that homosexuality and lesbianism are aberrations and abhorrent.

30. The applicant listed the 7 main tribes in Kenya and stated that the tribal and ethnic diversity in Kenya was a cause of regular racial and ethnic tensions.

31. The applicant claimed that he did not want to register as a refugee with UNHCR because it would expose him to retaliation in Kenya where homosexuality is illegal. His uncle was of the view that a student visa would allow him easier access to Australia.

32. In relation to his activities in Australia, the applicant claimed that he had kept a low profile and avoided contact with other Kenyans as he was still haunted by his past. He was afraid of entering a serious relationship and was uncertain for his future due to his uncertain visa status. He claimed that he was afraid of being bullied or discriminated against by the Kenyan community in Perth and Sydney due to his homosexuality, so he did not mix with the Kenyan diaspora.

33. The applicant claimed that his Kenyan passport had been stolen and he had now applied to the Kenyan government for a new passport.

34. In relation to his delay in applying for protection in Australia, the applicant stated that he arrived in Australia in May 2017, and he stopped his studies after a year in Australia because he could not afford the tuition fees and his uncle was unable to support him after the uncle’s farm was burnt down. He claimed that he did not lodge his application for protection until September 2019 because he had bouts of depression, anxiety and panic attacks as his lover, [Partner A], had died in tragic circumstances. He also had nightmares due to the mob violence inflicted upon him.

35. The applicant also claimed that he feared he had unresolved mental issues due to living a double life in Kenya and keeping his sexuality secret for so long. The applicant also claimed that he was reticent about lodging an application for protection because he had heard rumours that some European countries conduct forced anal examinations to prove you are homosexual, and he feared that Australia would do the same. The thought of such examination brought back memories of the mob violence and threats of rape and genital mutilation he had endured in Kenya. He claimed he has also heard stories about such acts by Kenyan authorities, including police.

36. The applicant also claimed that he also delayed his application for protection because he was grief-stricken about the death of [Partner A].

37. In his statement, the applicant discussed his inconsistent evidence over time about when [Partner A] died. He claimed that he could not explain why he had stated at his interview with the delegate that [Partner A] had died in 2014, apart from suggesting that he was feeling unwell on the day of the interview. He claimed that he did not know [Partner A’s] exact date of death and was relying on information relayed to him by his uncle and parents.

38. In relation to reporting attacks to the police, the applicant stated that he did not tell the police he was gay as that would be considered to be a criminal offence in Kenya. He stated that he told the police that the mob attacked him because they suspected he was gay because he spent so much time with [Partner A].

39. The applicant claimed that there was a homosexual who had accused the applicant and [Partner A] of having a relationship. The applicant believed this person had feelings for [Partner A] and was jealous of the relationship, but he did not mention it at the interview with the delegate because he became distressed whenever he talked about the relationship with [Partner A].

40. The applicant stated that the distance between [Town 3] and [Town 5] was 186 kilometres and the driving distance was 226 kilometres. [Town 5] is an agricultural district and his uncle had a farm there, but his uncle’s home was in [Town 3] He claimed this proved there was no inconsistency in his evidence as [Town 3] was a large urban centre and you would not expect a farm to be in an urban area.

41. The applicant claimed that his mother and sisters were sympathetic about his homosexuality but would prefer that he was straight and, because he is bisexual, they are hoping that one day he would become fully heterosexual.

42. The applicant claimed that the claims about the Mungiki were sourced from his own experience and that if country information says differently then it must be out of date.

43. The applicant argued that although there are pockets of acceptance of homosexuality in Nairobi, on the whole Kenya is anti-gay and homosexuality was still a criminal offence. He was able to work in Kenya by living a double life and masking his homosexuality, but it was all an act, and [Partner A] told him to not keep living a lie. He had matured in Australia, and it was now very hard for him to act straight and wear a mask about his sexuality.

44. The applicant claimed that if other Kenyans had made similar claims to his own it was because they are also homosexual, and his uncle had told him that he had helped other people from the gay and lesbian community. He claimed that Kalenjin homosexuals were discriminated against by their own village, and he did not know of any large African tribes that accepted homosexuality.

45. The applicant claimed that he did not say much about [Partner A] at the interview with the delegate because his tragic death caused the applicant great pain and feelings of guilt. He claimed that the interview setting was intimidating and stressful, he was nervous and felt ill throughout the interview and he has sleepless night and lost appetite in the lead up to the interview. He also claimed that at times he did not understand some of the questions and found himself drifting. However, he did not point out which questions he did not understand.

46. The applicant claimed that his current representative had recommended that he undertake a psychological assessment to explore if he had any cognitive impairment and to assist with depression and anxiety. He was due to see a psychologist in December 2022. The applicant stated that he sometimes could not recall things very well and also tried to block unpleasant memories. He suggested that he was not feeling well and was not in a good place during the interview with the delegate. He stated that he had postponed this interview in April 2022 as he had problems getting out of bed, and the interview was conducted by telephone in June 2022.

47. The applicant claimed that he always had bouts of depression and anxiety in Kenya, but he did not seek medical help because he wanted to keep a low profile, there was limited availability of assistance, and it was taboo to admit to being depressed.

48. The applicant claimed that he always lived in fear of being found out to be homosexual and he told his closest friends and family that he was bisexual to gain acceptance and to say he was ‘partly straight’ so people could see hope that he may become totally straight one day. His mother and sisters knew he was homosexual but were not really accepting of it and would not give witness evidence on his behalf as they feared they may also be targeted for having a gay son or sibling.

1. The applicant also claimed that if he returned to Kenya, he would not be able to access good medical and psychological care.

   Witness statements

2. On 11 November 2022, the applicant’s representative provided the Tribunal with an undated witness statement from [Manager A], who is the managing director of [Employer 2]. [Manager A] stated that he first met the applicant in Perth around June 2022 when the applicant commenced contracting to this company as [an occupation 1].

3. In this statement, [Manager A] stated that the applicant had informed him that he was gay and asked if this would affect his work prospects because he had been bullied at his old workplace in Kenya because was ‘not one of the guys’ and not part of the ‘other real boys’ or alpha males. He claimed that the applicant did not promote his sexuality at work, but he did mention that he once had problems with a customer at his old workplace because he was gay.

4. [Manager A] claimed that the applicant ‘has some quirks that show that he is gay’ but [Manager A] accepts him, reassures him, respects his choices and has a very professional working relationship with him. He claimed that the applicant is very respectful when he interacts with women in the office and is not an overtly gay man. [Manager A] stated his opinion that he believes the applicant does his best to hide his sexuality away from others and [Manager A] keeps his knowledge of the applicant’s sexuality to himself out of respect for the applicant and to avoid jokes or abuse from other people.

5. [Manager A] stated that he did not work closely with the applicant, so he is unsure about any underlying mental issues but claimed that the applicant doesn’t talk about his personal matters beyond what he mentioned at the initial interview. The applicant does not socialise with any other guys at work and is more of a loner who keeps to himself. He stated that the applicant is a good worker who is one of the best [occupation 1s] in his team.

6. In a further statement dated 16 May 2023, [Manager A] stated that he met the applicant in June 2022 and over time the applicant slowly opened up to him about his life in Kenya. He claimed that the applicant told him that he was bisexual or gay, but the applicant was not sure himself. He claimed that the applicant became very emotional when talking about his lover who had died and about how gay men were persecuted in Kenya. The applicant was afraid to return to Kenya, saw Australia as his home and felt safer in Australia.

7. [Manager A] claimed that he would continue to employ the applicant if he remained in Australia. He expressed his fears about the applicant’s mental health as he was worried about his application to the Tribunal and fearful about returning to Kenya. [Manager A] stated that he had told the applicant to see a doctor after reporting headaches and nightmares, and added that the applicant had been depressed and anxious.

8. [Manager A] stated that the incidents in March 2023, where the applicant’s tools were stolen, and on [a day in] April 2023, where other items were stolen from the applicant’s motor vehicle, had affected his mental health symptoms as well as impacting on his income. [Manager A] claimed that the applicant had reported the incident on [that day in] April 2023 to police and received an incident number.

9. [Manager A] expressed his concerns that the applicant’s mental health would deteriorate if the review application was not successful and indicated that he would be available to give witness evidence at the hearing by telephone.

   Medical evidence

10. The applicant’s representative sought postponement of previously scheduled hearings to allow the applicant to seek psychological assessments. On 6 February 2023, the representative provided an email from [Psychologist A], clinical and forensic psychologist, indicating that he could not complete a report on the applicant until the end of April.

11. On this basis, the Tribunal agreed to postpone a hearing in this matter until 24 May 2023.

12. At the date of making this decision no report, statement or other evidence has been provided from either [Psychologist A] or any other psychologist, psychiatrist or other medical professional.

    Further statement from applicant

13. In a statement dated 17 May 2023, the applicant claimed that he had not seen a forensic psychologist as he could not afford the fees charged by this person. He claimed that on [a day in] March 2023 his work tools had been stolen, which limited his capacity to work and earn income to pay for the assessment and report from the psychologist. He also claimed that his motor vehicle had been broken into on [a day in] April 2023 and more goods were stolen from him. He stated that all of this had made him feel more depressed and anxious, and for a few weeks he had been unable to get out of bed.

100.   The applicant claimed that [in] March 2023 he had been admitted to hospital with chest pains and breathing difficulties, but he was found to have not suffered a heart attack. He claimed that the doctors thought it was probably due to the enormous stress and anxiety he was suffering.

101.   The applicant claimed that he had struggled emotionally with his sexuality and gender identity from a young age and, although there was more acceptance of same-sex couples in Australia, he felt there were still many people who judged and lack tolerance for LGBTI people. The applicant listed some of the challenges he claimed were faced by LGBTI people. He claimed that he had suffered from anxiety, depression and suicidality as a result of being different and being uncertain of his sexual identity. His parents had not provided him with a supportive environment, and he was effectively emotionally estranged from his parents and siblings.

102.   The applicant claimed that he did not want to return to Kenya as he would face persecution and even death because nothing had improved for the LGBTI community in Kenya and recent reports suggested that things were becoming worse.

Submissions by Representative

103.   On 17 May 2023 the applicant’s representative provided the Tribunal with country information from a variety of sources in support of the applicant’s claims. This included information about human rights practices in Kenya, the treatment of LGBTI people in Kenya and an Australian report about mental health and suicide prevention statistics for LGBTI people. The representative also made reference to a number of previous Tribunal cases.

104.   In a further submission dated 22 May 2023, the representative restated the applicant’s claims for protection as follows:

·as a Christian and member of the Kalenjin tribe, he will be killed by rival ethnic tribes;

·he holds different views from church authorities and elders in Kenya who do not accept homosexuality as they are largely conservative;

·he fears that as a person of Kalenjin ethnicity he will be perceived to be a supporter of the dominant political party and group in Kenya (as the current Prime Minister is from the Kalenjin tribe);

·he fears that as a person of Kalenjin ethnicity he will be targeted by non-Kalenjin tribes who will prevent him from purchasing land and operating a business or otherwise hamper his ability to earn a living;

·he fears serious harm from the Mungiki tribe or from supporters of the Mungiki;

·he risks the possibility of violence that might still erupt between different tribes after the general election held in August 2022 and continuing political tensions;

·he fears significant harm due to his mental health and particular vulnerabilities.

105.   The representative also provided further country information and arguments in support of the applicant’s claims.

106.   The Tribunal has read and considered the submissions and information provided over time on behalf of the applicant prior to making its decision in this matter.

107.   On 23 May 2023 the representative forwarded to the Tribunal a photograph of the applicant which was claimed to be taken in hospital in Perth [in] March 2023 and a copy of an automated response dated 23 May 2023 indicating that the applicant had lodged a freedom of information request with [Hospital 1].

Tribunal Hearing

108.   At the hearing, the applicant confirmed his personal details and claimed that he was born in [Town 1] but then grew up in [Village 1], which was around 50 kilometres away and which was located in the same county.

109.   His parents were now retired. His father was aged [age] and his mother [age]. His father had previously [worked] as [occupation] in [Town 1]. His mother had been [an occupation 3] and had operated her own [business]. Both parents had also farmed their 20-acre property where they grew [crops] on a seasonal basis. The father was now receiving a [pension] and the applicant regularly sends money from Australia to his parents.

110.   The applicant claimed that he had [a] sister living in [Country 1] and [another] sister living in Kenya. He claimed that he had made a mistake on previous statements when he claimed that [one] sister had previously lived in Australia. She had applied to go to Queensland, but this did not eventuate.

111.   The applicant claimed that he had studied and obtained a [Subject 1 qualification] at a college in [Town 2], which was around 100 kms from [Village 1]. He claimed that he studied at this college [between specified years] and finished his course towards the end of [year]. Whilst studying at this college he lived in student accommodation in [Town 2].

112.   The applicant claimed that after his completed these studies he worked for [Employer 1] and was based in [Town 4], which was around 100 kms or a 4-to-5-hour drive from [Village 1]. He claimed that he started this job around March 2014 and worked in [Town 4] until around November 2016. He stated that he stopped work because he wanted to come to Australia and added that he also had threats from home. He confirmed his claim that one of the reasons he stopped work was his intention to come to Australia. He claimed that when he was working in [Town 4], he lived in a rented house in that town and also had a rented house in [Village 1]. After he stopped working, he returned to [Village 1].

113.   The applicant confirmed that he had never been married and had no children. He had never been politically active and had never been a member of any political party in Kenya. He stated that he had never travelled outside Kenya prior to coming to Australia.

114.   The applicant claimed that when living in Kenya he had experienced a lot of threats and his house had been burnt down. He claimed that a mob associated with the Mungiki tribe had burnt down his house because he was in a relationship with [Partner A]. He claimed that being gay in his community and in Kenya was taboo and was not allowed, so he was attacked for that.

115.   The applicant claimed that this incident happened in 2016. He was on the way home and he saw a group of people chanting outside his house. He ‘took off’ and they yelled at him and chased him. He claimed that after this incident he went to his uncle’s house in [Town 3], which he stated was around 200 kms from [Village 1]. He claimed that he stayed in the [Town 3] area until he came to Australia and added that he stayed on a farm located around 20 kms from the centre of [Town 3].

116.   When asked if he has suffered any other problems in Kenya, the applicant stated that he had threats and there were rumours about his sexuality. People recognised him as homosexual, and he did not know what they were planning so he became fearful. In 2016, he had been beaten up on that day when his house was burnt down so he moved to [Town 3] because even the police could not protect him.

117.   The applicant claimed that his relationship with [Partner A] was the first relationship he had with a man. He claimed he had also had relationships with women. He stated that, apart from [Partner A], he had never had any other relationship with a man in Kenya. He added that whilst he was with [Partner A], he had cheated with women and [Partner A] had become jealous.

118.   When asked to describe his sexuality in his own words, the applicant stated that he was gay and bisexual. He claimed he was not currently in any relationship but added that he was attracted to women and men. He claimed he had not been in any relationships in Australia but had been involved in some casual hook ups in Sydney with both men and women.

119.   When asked if he could provide any details about his casual relationships in Australia, the applicant initially stated ‘no’ and then asked what details the Tribunal was asking for. When asked if he could tell the Tribunal who these people were, including their names, the applicant stated that they were just casual hook ups.

120.   The applicant claimed that he first met [Partner A] in [specified year] when they were at school and added that [Partner A] was from [Village 1 variant] too. [Partner A] was a bit younger than the applicant, being born around [year range]. He claimed that before they met in college, they had seen each other around the village but they didn’t talk much. They would talk a little ‘here and there’, but they had no relationship before college. He claimed that he commenced his relationship with [Partner A] in [year] at school, when they both realised they had feelings for each other and started dating.

121.   The applicant claimed that he continued his relationship with [Partner A] until he came Australia, even when [Partner A] relocated to Nairobi after the 2016 incident with the Mungiki. They continued to talk on the phone, and they were in a relationship for around 3 years. The applicant claimed that [Partner A] never told him his date of birth but had told him he had been born in [year]. He claimed that they did not celebrate birthdays. [Partner A’s] parents lived in [Village 1], but the applicant stated that he could not remember their names. He claimed that [Partner A] finished college around the same time as the applicant and then returned to [Village 1] where he lived with his parents. When the applicant returned to [Village 1] for weekends, [Partner A] would stay with that applicant at the house the applicant rented in that area.

122.   The applicant claimed that he had met [Partner A’s] father only on one occasion, when he visited the family farm with [Partner A]. He claimed that [Partner A] did some business in groceries and also helped on the family farm. He stated that they never actually lived together as a couple, but they were just people who were dating.

123.   The applicant stated that [Partner A] was now dead. He stated that [Partner A] had been alive when the applicant left Kenya, but he had been killed soon after the applicant came to Australia. The applicant stated that his uncle told him [Partner A] had died and added that he was killed because the mob suspected he was in a relationship with the applicant, so they killed him because he was gay. He claimed that he did not have any death certificate for [Partner A] because he was so upset at his death that he did not ask for details.

124.   The applicant was asked if he could provide any documents or other evidence, apart from his own claims, that he had been in a relationship with [Partner A]. He responded that he could not do so because his phone had died when he came to Australia, and everything was gone.

125.   The applicant claimed that his uncle in [Town 3] was [named]. He claimed that he had not experienced any problems whilst staying on the uncle’s farm prior to coming to Australia.

126.   The applicant claimed that he came to Sydney in May 2017 to study because his uncle told him to go overseas so he could set up his future. He was initially studying [subjects] but ceased his studies in September 2018 because he had a lot of financial problems, his mental state was bad, and he was very stressed out. He then started work as [an occupation 1]. He had no formal [occupation 1] qualifications but stated that he could do that job. He claimed that he came to Perth in May 2022 for a change because there was too much pressure in Sydney, and it was very expensive to live there. He was currently working as a self-employed [occupation 1]. He regularly paid GST and other taxes.

127.   The applicant claimed to the Tribunal that he had not applied for a Medicare card because he did not have time to do so, despite being entitled to one since 2019 when he first lodged his application for protection. He also stated that he had no evidence of any relationships with either men or women in Australia.

128.   The applicant stated that he feared persecution and feared being killed if he returned to Kenya because he was gay. When asked if he had any other fears about returning to Kenya, apart from his sexuality, he stated that life was hard in Kenya as it was a third world country. He claimed that there were also political problems. Although the president was of Kalenjin ethnicity, people did not like him.

129.   When asked how these political problems would impact on him given that he did not appear to be politically active, the applicant claimed that it would impact on him in an economic way. He added that risks can come up at any time.

130.   When it was pointed out to the applicant that he had managed to secure employment in the past in Kenya, he responded that he could get a job if he returned but he feared he would be persecuted because he was gay.

131.   The applicant was asked what he would need to do in Kenya to avoid harm for being gay. He responded that he did not know what he could do because he had tried to hide his sexuality in the past, but people still found out. Even 6 years later, he did not know what people might do to him.

132.   When asked if he feared he would suffer any other problems if he returned to Kenya, the applicant stated that he had no other fears about returning.

133.   The applicant was asked why the Tribunal should accept his claims that he had studied at the [Subject 1] college as claimed given that he had provided some inconsistent dates over time about when he actually studied there. The applicant responded that when he would say [one year] he really meant the [equivalent academic] year and when he would say [the next year] he would really mean the [next academic] year.

134.   The applicant confirmed his claim earlier in the hearing that [Partner A] was still alive when the applicant first came to Australia and had died soon after the applicant arrived here.

135.   The Tribunal pointed out to the applicant that he had provided inconsistent claims over time about when [Partner A] had died. In his statement dated 13 November 2022, and at the tribunal hearing, he had stated that he did not know [Partner A’s] exact date of death because he was relying on information from his uncle and his parents. However, in the statement accompanying his application for protection in 2019, the applicant clearly stated that [Partner A] died on [a specified date in] June 2017, after the applicant arrived in Australia, and he added that his uncle had called him a few days later to inform him about the death. Then, in an interview with the delegate on 3 June 2022, the decision record notes that the applicant first stated that [Partner A] had died in 2015. He then stated that [Partner A] had been murdered in 2014 and later in the interview he stated that [Partner A] had been killed by people looking for the applicant in 2016. In all three versions that the decision record indicates were provided at this interview, it was claimed that [Partner A] had died whilst the applicant was still living in Kenya. The applicant was asked to explain these inconsistencies over time.

136.   In response, the applicant stated that when he lodged his protection visa application, things were still fresh in his mind. At the interview he was stressed and was not thinking right. He added that he told the delegate that he was not well. Now, he simply did not want to remember details about [Partner A’s] death because of the pain that it caused him.

(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.

…