2213791 (Refugee)

Case [2025] ARTA 1446

2213791 (Refugee) [2025] ARTA 1446 (17 March 2025)

Decision and
Reasons for Decision

Respondent:

Minister for Immigration and Multicultural Affairs

Tribunal Number:

2213791

Tribunal:

General Member F Robertson

Date:

17 March 2025

Place:

Perth

Decision:

The Tribunal affirms the decision under review

Statement made on 17 March 2025 at 1:32pm

CATCHWORDS
REFUGEE – protection visa – Kenya – ethnicity – member of majority inland tribe living in coastal area – political unrest and electoral violence – no direct harm or threats – two return visits – delay in applying for protection – country information – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), (5), 36(2)(a), (aa), (2A), 65

Migration Regulations 1994 (Cth), Schedule 2

CASES

ASB17 v MHA [2019] FCAFC 38; (2019) 268 FCR 271

AVQ15 v MIBP [2018] FCAFC 133; (2018) 361 ALR 227

CQG15 v MIBP [2016] FCAFC 146; (2016) 253 FCR 496

DQU16 v MHA [2021] HCA 10; 273 (2021) CLR 1

EIG17 v MICMA [2023] FedCFamC2G 804

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

MIAC v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505

MIEA v Guo [1997] HCA 22; (1997) CLR 559

Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA [1994] FCA 301; (1994) 34 ALR 347

Sundararaj v MIMA [1999] FCA 76

SZLVZ v MIAC [2008] FCA 1816

W375/01A v MIMA [2002] FCAFC 89; (2002) 67 ALD 757

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

INTRODUCTION

  1. This is an application for review of a decision to refuse to grant the applicant a Subclass 866 Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (the 'Act').

  2. The applicant is a [Age]-year-old male of Kenyan nationality. The applicant first arrived in Australia in February 2015 as the holder of a student visa and was subsequently granted a subclass 485 temporary graduate visa. The applicant applied for a protection visa in April 2020 shortly before the expiration of his subclass 485 visa. Following an interview, the application was refused by a delegate 2022.

  3. The applicant has applied for review of that decision. The application was heard on 14 March 2025. Following that hearing, I have determined that the decision under review should be affirmed. These are my reasons.

    CRITERIA FOR THE GRANT OF A PROTECTION VISA

  4. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is either, they are a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion or on other ‘complementary protection’ grounds or are a member of the same family unit as a person…

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AGLC
2213791 (Refugee) [2025] ARTA 1446
Case
[2025] ARTA 1446
Decision Date

CaseChat Overview and Summary

The applicant, a Kenyan national, sought a review of the delegate's decision to refuse his application for a protection visa. The applicant claimed a fear of persecution based on his Kikuyu ethnicity, his Catholic faith, and the political climate in Kenya. The primary issue before the court was whether the applicant had a well-founded fear of persecution if returned to Kenya, satisfying the criteria for a protection visa under the Migration Act 1958 (Cth). Additionally, the court examined if the applicant qualified for protection under the complementary protection criterion.

The court considered the applicant's personal circumstances, including his return visits to Kenya and the delay in applying for a protection visa. The applicant had returned to Kenya twice without incident and had not sought treatment for any alleged mental harm. The court also highlighted the absence of direct threats or harm to the applicant or his family. The country information provided indicated past political violence and tensions between different ethnic groups, but also suggested a decrease in election-related violence and attacks by terrorist groups. The court scrutinised the applicant's claims and evidence, questioning the genuineness of his fear of persecution and the validity of his claims.

In its decision, the court found that the applicant did not demonstrate a well-founded fear of persecution for reasons of race, religion, or political opinion. The court noted that while country information supported past incidents of violence, there was no evidence of direct harm to the applicant or his family. Furthermore, the applicant's return visits to Kenya and the lack of urgency in applying for a protection visa undermined his credibility. The court concluded that the applicant had not met the threshold for a protection visa or the complementary protection criterion.

The court affirmed the delegate's decision to refuse the applicant's protection visa application. The applicant's claims were deemed insufficient to meet the statutory requirements for protection, given the lack of direct evidence of persecution or significant harm. The court found that the applicant's concerns were speculative and did not establish a real chance of persecution or significant harm if returned to Kenya.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[8] As to what amounts to 'significant harm’, that term is exhaustively defined in s 36(2A) of the Act.[9][8] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 [246] (Lander and Gordon JJ), [296] (Besanko and Jagot JJ), [342] (Flick J).[9] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ); see also Migration Act 1958 (Cth), s 5 in respect of the definitions of 'torture', 'cruel or inhuman treatment or punishment' and 'degrading treatment or punishment'.BACKGROUND The applicant was born in [Year] in Mombasa, Kenya. He arrived in Australia holding a student visa in February 2015. In May 2017, he received a subsequent student visa, and in April 2018, he was granted a temporary graduate visa. Since arriving, the applicant has left Australia twice. The first time was in August 2018, when he travelled to Kenya, returning about a month later in September 2018. The second and final occasion was in September 2019, with the applicant coming back to Australia approximately nine days after he departed. On this trip, he also visited Kenya. Protection visa application The applicant's protection visa application was submitted on 2 April 2020. In July 2022, the applicant engaged a solicitor, [Ms A], to represent him regarding his protection visa application. [Ms A] provided a statutory declaration signed by the applicant and confirmed that both would attend the interview scheduled for 11 July 2022. The applicant's statutory declaration claimed that he feared returning to Kenya.[10] He claimed that his immediate family resided in Mombasa, located in the Coast Province of Kenya, an area that has faced high levels of violence due to ethnic, political, and economic tensions.[11] He asserted that these tensions would intensify during election periods.[12][10] Statutory Declaration of the applicant dated 6 July 2022, [3].[11] Statutory Declaration of the applicant dated 6 July 2022, [4].[12] Statutory Declaration of the applicant dated 6 July 2022, [4]. The applicant further claimed that he had experienced 'ethnic profiling' and 'targeting' from other ethnic groups, and there was a perception that individuals of Kikuyu ethnicity did not belong in the coastal region where his immediate family resided.[13][13] Statutory Declaration of the applicant dated 6 July 2022, [5]. The applicant referenced the 2007 elections and the violence associated with them.[14] He asserts that due to his ethnicity, he faced risks during this period.[15] The applicant specifically noted an incident at his father's [business] where a group attempted to loot but fled when his father called the police. He claims this incident occurred because his father had been 'profiled' as a 'non-resident' due to his ethnicity.[16] [14] Statutory Declaration of the applicant dated 6 July 2022, [7].[15] Statutory Declaration of the applicant dated 6 July 2022, [7].[16] Statutory Declaration of the applicant dated 6 July 2022,, [8].

Evidence

Evidence Before The Court

The applicant sought a review of the delegate's decision in September 2022. The review application was heard on 14 March 2025, with the applicant attending in person to provide evidence and make submissions. The applicant did not submit any further written evidence or country information before or during the hearing.Claims and evidence The applicant's evidence at the hearing indicates that he has [siblings]. The applicant's parents live separately in the Mombasa region, with his father residing in Mombasa and his mother along the coast. All of the applicant's siblings also live in and around Mombasa, except for one sibling who resides in Nakuru. Furthermore, the applicant has a partner in Kenya with whom he has been in a relationship since 2013, and he also has a stepchild in Kenya. I discussed with the applicant that the evidence before me seemed to indicate that, other than the incident in 2007 in relation to his father's business, the applicant's parents and siblings have lived in Kenya their entire lives and have not been harmed. The applicant was evidently reluctant to make such a concession. However, neither did the applicant cavil with the proposition or give evidence that there was any other harm that his immediate family had experienced, other than the incident in 2007. I asked the applicant whether he had ever been harmed in Kenya. After a long pause, the applicant claimed that he had been 'mentally harmed'. However, the applicant also said that he had never sought treatment for any mental harm he claims to have endured either in Kenya or in Australia. When asked about why he answered 'no' to the question in his protection visa about whether he had ever been harmed in his home country, the applicant claimed that he thought the question related to physical harm. When I asked the applicant about what he feared might occur if he returned, he mentioned uncertainty regarding his safety in the future. He expressed concern about not knowing whether his family was safe and carried the 'stigma' of being unable to provide a secure future for them (which I understood to include his partner and stepchild). When I explored what the applicant meant by that, he spoke about having the opportunity to be in Australia and work. The applicant referred vaguely to buses being halted in Kenya and to the absence of protection from Kenyan authorities. I discussed the applicant's return trips to Kenya and, in particular, why he felt safe to return. He claimed that it was safe for him to return because it was not election time. I also discussed the applicant's delay in applying for a protection visa. The applicant has claimed that he was unaware of the ability to apply for a protection visa until 2020. I suggested to the applicant that the information before me indicated that the applicant's subclass 485 visa was coming to an end in mid-April 2020 and he applied for the protection visa in early April 2020. I put my concern that the applicant applied for a protection visa as an alternative way to maintain ongoing residency in Australia rather than because he genuinely feared persecution or harm in Kenya. The applicant did not accept that he did not have a genuine fear of persecution or harm in Kenya, claimed that he was telling the truth.

Decision

Reasons for decision

The applicant was interviewed regarding the application. I have listened to that interview and am satisfied that its content was fairly summarised by the delegate in their decision. Delegate's decision Under the heading, findings of fact, the delegate found: The applicant arrived legally in Australia [in] February 2015 on a Student visa. The applicant subsequently returned to Kenya without incident in 2018 and 2019, returning to Australia on a Temporary graduate visa.The applicant claims in his Protection Visa (PV) application that he fears persecution due to the general political unrest in Kenya. He also claims that as a person of Kikuyu ethnicity, who’s family originally migrated from the country areas to the coastal region, that he fears persecution from coastal people. He also claims that he is in the minority as a Catholic Christian in Mombasa and fears persecution because of his faith from radical Muslims. During the Protection Visa (PV) interview the applicant stated that Christianity is the majority religion in Kenya, though it is in a minority in Mombasa where he usually resides.During the PV interview he claimed that people had come to his fathers property during elections to commit violence. He claims that he was not there at the time and his family were able to avert the violence.During the PV interview, the applicant stated that he had not been directly threatened by anyone for any reason. He also stated that there was no danger to him when he returned to Kenya in 2018, or in 2019 when he returned for his Grandfathers funeral.He also stated during the PV interview that there were no reasons that he could not relocate other than he would not have a job. The delegate then considered country information and observed, among other things, that:(a)country information supports the applicant’s claims that widespread violence occurred following the Kenyan general elections in 2007. Reports indicate that between 1,500 and 2,000 people were killed during this violence. Additionally, country information reveals that around 500,000 individuals were displaced;[30](b)political disorder in Kenya often escalates during election periods; however, data indicates that cases of election violence have dropped to roughly a quarter of what was recorded in 2017.[31](c)A terrorist group, al-Shabaab, conducted attacks in north-east Kenya, some of which targeted non-Muslims due to their faith. Additionally, there had been reports of religiously motivated threats of societal violence and intolerance, such as members of Muslim communities threatening individuals who converted from Islam to Christianity;(d)Country information confirms that tensions exist in Mombasa between Kenyans of Kikuyu ethnicity and those indigenous to the coastal area. The same reports also indicate that a significant portion of Kenya’s ruling elite and influential individuals hail from the Kikuyu ethnicity.[30] Delegate's decision, p 3. [31] Delegate's decision, p 3. The delegate then considered the applicant's personal circumstances and claims.

Ratio Decidendi

Legal Principle Established

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.[2] Among other things, persecution must involve serious harm[3] and systematic and discriminatory conduct.[4][2] Migration Act 1958 (Cth), s 5J(1); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).[3] Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act contains a non-exhaustive list of examples of harm that involve serious harm, without otherwise limiting the nature or type of harm that might come within s 5J(4)(b). [4] Migration Act 1958 (Cth), s 5J(4)(c). A fear of persecution will be 'well‑founded' if there is a 'real chance' that the person will suffer the feared persecution if returned to the receiving country and the real chance relates to all areas of that country.[5] A 'real chance' is a prospect that is not 'remote' or 'far‑fetched', it does not require a likelihood of persecution on the balance of probabilities.[6] [5] Migration Act 1958 (Cth), ss 5J(1)(b)-(c); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).[6] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 407, 429.Complementary protection criterion A person who does not satisfy the ‘refugee criterion’ in s 36(2)(a) of the Act, may satisfy the 'complementary protection criterion' under s 36(2)(aa). That criterion is prospective and asks whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a 'necessary and foreseeable consequence' of return to the receiving country.[7][7] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ). The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[8] As to what amounts to 'significant harm’, that term is exhaustively defined in s 36(2A) of the Act.[9][8] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 [246] (Lander and Gordon JJ), [296] (Besanko and Jagot JJ), [342] (Flick J).[9] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ); see also Migration Act 1958 (Cth), s 5 in respect of the definitions of 'torture', 'cruel or inhuman treatment or punishment' and 'degrading treatment or punishment'.BACKGROUND The applicant was born in [Year] in Mombasa, Kenya. He arrived in Australia holding a student visa in February 2015. In May 2017, he received a subsequent student visa, and in April 2018, he was granted a temporary graduate visa.