2209094 (Refugee)

This matter concerned an application for a protection visa by a Kenyan national. The applicant claimed he belonged to the gay community, a particular social group perceived as undermining cultural norms, and feared persecution in Kenya due to tribal violence, including the killing of his partner and an attack on his home by the Mungiki. The applicant had arrived in Australia in May 2017 and lodged his protection visa application in September 2019. The decision reviewed was made by the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the applicant faced a real chance of persecution in Kenya for one of the five prescribed reasons under section 5J(1)(a) of the Act, thereby satisfying the refugee criterion under section 36(2)(a). If this criterion was not met, the Tribunal was required to consider whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's removal to Kenya, he would suffer significant harm, thus satisfying the complementary protection criterion under section 36(2)(aa).

The Tribunal considered the applicant's claims in light of relevant guidelines and country information. It noted that if the refugee criterion was not met, the complementary protection criterion under section 36(2)(aa) could still be satisfied if there was a real risk of significant harm upon removal. The Tribunal's reasoning, as indicated by the provided text, focused on assessing the applicant's eligibility under both the refugee and complementary protection provisions of the Act, taking into account the evidence presented and mandatory considerations. The decision affirmed the reviewable decision.