2213791 (Refugee)
[2025] ARTA 1446
•17 March 2025
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 affirmedLEGISLATION
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
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').
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.
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
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 who satisfies either s 36(2)(a) or (aa).
Refugee criterion
Section 36(2)(a) of the Act 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 decision‑maker 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.[1]
[1] Migration Act 1958 (Cth), s 5H(1)(a).
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.
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].
The applicant claimed that he commenced studying for a Bachelor of [Subject 1] in Nairobi around the time of the 2007 elections. He resided in Nairobi during the term and would return to Mombasa for the holidays.[17] The applicant otherwise refers to the 2013 elections, noting that issues of politics and ethnicity were still prevalent and referencing political leaders being charged with crimes against humanity.[18]
[17] Statutory Declaration of the applicant dated 6 July 2022, [11].
[18] Statutory Declaration of the applicant dated 6 July 2022, 12.
The applicant's statutory declaration also discusses his travel to Perth and his enrolment in a Master of [Subject 2] before he withdrew and enrolled in a Master of [Subject 3]. He completed his Master of [Subject 3] in December 2017.
The applicant mentioned hearing reports about the political tension and violence during the 2017 elections, as well as the dispute that followed. However, he also acknowledges that despite his fear that the outcome of 2017 would be a 'trigger for further chaos,’ the situation eventually calmed down.[19] He asserts that his cousin was sent away as a precaution and expresses his belief that had he been in Kenya at that time, he would have been at risk of harm or even death.[20]
[19] Statutory Declaration of the applicant dated 6 July 2022, [15]-[17]
[20] Statutory Declaration of the applicant dated 6 July 2022, [17]
The applicant's statutory declaration mentions his two return trips to Kenya in August 2018 and September 2019.[21] He states that he 'kept a low profile' in 2018.[22] His return in September 2019 was for his grandfather's funeral.[23] He noted feeling a 'general environment of tension, corruption and hate speech which made [him] nervous.'[24]
[21] Statutory Declaration of the applicant dated 6 July 2022, [18].
[22] Statutory Declaration of the applicant dated 6 July 2022, [18].
[23] Statutory Declaration of the applicant dated 6 July 2022, [18].
[24] Statutory Declaration of the applicant dated 6 July 2022, [18].
He claims that when he first arrived in Australia, he was unaware of the option to apply for a protection visa and only became aware of it in 2020.[25] The applicant also expressed his fear that the 2022 Kenyan election would lead to similar political tensions and violence, resulting in deaths. He[26] elaborates on why he holds that view.[27] Furthermore, he claims to have experienced 'profiling' in the past, and while his family is not directly involved in politics, they express their support and share their opinions with others.[28] He indicated his support for Raila Odinga based on his tribal leader's preference.[29]
[25] Statutory Declaration of the applicant dated 6 July 2022, [19].
[26] Statutory Declaration of the applicant dated 6 July 2022, [20].
[27] Statutory Declaration of the applicant dated 6 July 2022, [21]-[24].
[28] Statutory Declaration of the applicant dated 6 July 2022, [23].
[29] Statutory Declaration of the applicant dated 6 July 2022, [23].
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.
Regarding the applicant's claims about political violence, the delegate acknowledged that 'violence during Kenyan general elections is common,' but concluded that the applicant's fear of political violence was not credible because the applicant had provided evidence of not being involved with political parties.
Regarding the applicant's claims about his religion,[32] the delegate found that Christianity is the predominant religion in Kenya. The delegate also acknowledged that while violence against Christians has occurred in the North-Eastern region, it is primarily directed at Muslims who have converted to Christianity. Additionally, the delegate seems to have given considerable weight to information indicating that Muslims face more frequent persecution than non-Muslims.[33]
[32] Delegate's decision, p 5.
[33] Delegate's decision, p 5.
In terms of the applicant's ethnicity, the delegate acknowledged that the applicant was Kikuyu but ultimately concluded:
While I accept that there are ethnic tensions in his home region, he has demonstrated through his own actions and statements that the risk of harm to him due to his ethnicity is low.
The delegate also considered that the applicant could live in Nairobi.[34]
[34] Delegate's decision, p 5.
Given the circumstances, the delegate did not accept that the applicant met the definition of a refugee as outlined in s5H(1) of the Act or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Kenya, there was a real risk that the applicant would suffer significant harm, as defined in s36(2A) of the Act.[35]
[35] Delegate's decision, pp 6-7.
Review application
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.
When I asked the applicant why he faced a 'real chance' of serious harm, he struggled to explain. Initially, he seemed to suggest that if he returned to Kenya and was harmed, then there was clearly a real chance of harm. He then argued that it is impossible for anyone to predict whether he will be harmed in the future, but there certainly was a possibility of that occurring. After further discussion about the concept of 'real chance', the applicant stated, 'maybe there is no real chance,' but maintained that there was a 'possibility' of harm.
The applicant submitted that he faced a real chance of serious harm due to his ethnicity, political opinion and religion. He mentioned the possibility of being harmed while safeguarding property owned by himself or his father. He also stated that being 'religiously affiliated' and 'politically affiliated' meant it was 'guaranteed' he would be harmed and that he could only avoid this harm by ‘laying low'. The applicant further claimed that if the current president were to serve another term and if he decided to protest or engage in politics in the future in Kenya, the likelihood of him being harmed would increase. He also referred to protests that occurred in 2024, during which a person was killed.[36]
[36] 'Kenya finance bill: Anger after Rex Kanyike Masai shot dead during anti-tax protests.', 21 June 2024, BBC, < FINDINGS AND REASONS
An applicant is responsible for providing sufficient evidence to establish their claim to be a person in respect of whom Australia has protection obligations.[37] When assessing the claims made, I am not required to uncritically accept any or all the allegations made.[38] I do not need rebutting evidence before finding a particular factual assertion is not made out.[39]
[37] Migration Act 1958 (Cth), s 5AAA; AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 [43] (Kenny, Griffiths and Mortimer JJ); EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804 [148] (Ladhams J).
[38] SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 (Middleton J).
[39] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 [65] (McKerracher, Griffiths and Rangiah JJ); Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347 [7] (Heerey J).
I have considered the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs. However, there is no Department of Foreign Affairs and Trade Country Information Report for Kenya.
Credibility
The assessment of credibility is a difficult task,[40] which should be careful, thoughtful, and conducted fairly and reasonably.[41] Inconsistencies in an account may or may not be significant[42] and allowances may be required where an account is given through an interpreter.[43] I should usually give the benefit of the doubt to those who are generally credible but are unable to substantiate their claims.[44]
[40] See Fox v Percy [2003] HCA 22; 214 CLR 118 [31] citing Samuels JA in Trawl Industries v Effem Foods Pty Ltd (1992) 27 NSWLR 326, 348.
[41] See AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 [22]–[28] (Kenny, Griffiths and Mortimer JJ).
[42] ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271 [39]–[45] (Griffiths, Mortimer and Steward JJ).
[43] See, for example, Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 [5] (Burchett J), W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; 67 ALD 757 [15]–[19] (Lee, Carr and Finkelstein JJ); AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 [22]–[28] (Kenny, Griffiths and Mortimer JJ) and ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271 [39]–[45] (Griffiths, Mortimer and Steward JJ).
[44] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; see also Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines); UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, HCR/1P/4/ENG/REV 4 [203]-[204].
Country of nationality
The applicant claims to be a national of Kenya. The applicant travelled to Australia on a passport which appears to have been regularly issued by that country. I am satisfied that Kenya is the applicant’s country of nationality and the receiving country.
Country information
Kenya has a diverse population comprising various ethnic and tribal groups. The Kikuyu, a Bantu-speaking group predominantly found in the central region of the country, constitute approximately 17% of the population, making them the largest ethnic group by percentage.[45] Historically, many of Kenya’s ruling elite and influential figures have been of Kikuyu ethnicity.[46] Kenya's religious demographics show that approximately 83% of the population identifies as Christian, with 48% being non-evangelical Protestants, 23% Roman Catholic, and 12% belonging to other Christian denominations, including evangelical Protestants and Pentecostals.[47] Muslims account for approximately 11% of the population,[48] primarily residing in the northeast and coastal regions, where religion often overlaps with ethnicity, particularly among the Somali and Swahili communities.[49]
[45] 'Country Background Note: Kenya', UK Home Office, 20 May 2020, 20200731113352, [1.9.1].
[46] Kenya election: The struggle for land in Mombasa', BBC News, 27 February 2013, 20200303150139; 'Kenya. When the political descends to the personal', Africa Confidential, 21 July 2022, 20220805150722
[47] 'Country Background Note: Kenya', UK Home Office, 20 May 2020, 20200731113352, [1.10.1].
[48] 'Country Background Note: Kenya', UK Home Office, 20 May 2020, 20200731113352, [1.10.2].
[49] '2021 Report on International Religious Freedom: Kenya', United States Department of State, 01 June 2022, 20220603141520, pp 1-2
Tensions have been reported between Kenyans of Kikuyu ethnicity and indigenous coastal communities, including in Mombasa.[50] These tensions have historically been linked to land ownership disputes, economic competition, and political dynamics.[51] The coastal region has long been a focal point of grievances related to historical marginalization and perceived economic exclusion, contributing to periodic unrest and social divisions.[52]
[50] 'Kenya election: The struggle for land in Mombasa', BBC News, 27 February 2013, 20200303150139; 'Kenya. When the political descends to the personal', Africa Confidential, 21 July 2022, 20220805150722.
[51] See generally 'Ethnicity and Politicization in Kenya', Kenya Human Rights Commission, May 2018, 20200304124643.
[52] See generally 'Ethnicity and Politicization in Kenya', Kenya Human Rights Commission, May 2018, 20200304124643.
The general political landscape in Kenya has been shaped by ethnic alliances and competition.[53] However, the August 2022 elections marked a notable shift from past patterns, as candidates largely moved away from ethnicity-based campaigns and instead focused on policy and governance issues.[54] This departure from traditional ethnic campaigning was praised as a significant development in Kenya’s political evolution, though ethnic identity continues to play a role in the country’s broader socio-political environment.[55]
[53] 'A triumph for Kenya’s democracy’, International Crisis Group, 8 September 2022 < 'A triumph for Kenya’s democracy’, International Crisis Group, 8 September 2022 < 'A triumph for Kenya’s democracy’, International Crisis Group, 8 September 2022 < THE APPLICANT SATISFY THE REFUGEE CRITERION?
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or is for the reason claimed.[56]
[56] Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 1997 CLR 559 [124] (Brennan CJ; Dawson, Toohey, Gaudron, McHugh, Gummow JJ).
Does the applicant have a well-founded fear of persecution?
As I have already observed, 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.[57] The issue in this case is whether the applicant faces a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future. Serious harm is non-exhaustively defined in s 5J(5) of the Act.
[57] 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.
I accept that the applicant is of Kikuyu ethnicity and that he is a Christian Catholic. I accept that he has [siblings] who, together with his parents, all live in Kenya. I find that none of them has been seriously harmed in the past for any reason.
I do not accept that the applicant was 'mentally harmed' in Kenya in the past. The applicant's evidence regarding this was vague and unconvincing. It was also inconsistent with the claims made in the applicant's protection visa application about not having been harmed. Furthermore, I place weight on the applicant's failure to seek treatment for this mental harm, either in Australia or Kenya. I also regard the applicant's voluntary return trips to Kenya as undermining his claims of having been mentally harmed in the past or fearing harm in Kenya more broadly.
I do not accept the information and evidence before me indicating that the applicant faces a real chance of serious harm due to his Kikuyu ethnicity, either in general or in and around Mombasa and the Mombasa coastal areas, which I consider his home area. While there is information suggesting tension between ethnic groups in the applicant's home area, he did not provide any country information establishing that individuals of Kikuyu ethnicity faced a real chance of serious harm in Kenya overall, or specifically in his home area, based on their ethnicity or that this tension was such that it result in a real chance of serious harm to him.
While I accept that historically ethnicity has been closely entwined with politics, I note that politics in Kenya has begun to shift from ethnic campaigns to issues-based campaigns. Although the applicant referred to the ongoing political divide continuing to involve ethnic and tribal lines, I am not convinced that the situation in Kenya in 2025, or in the reasonably foreseeable future, is likely to revert to an environment akin to what Kenya experienced in 2007 and the aftermath of the 2007 elections.
I have considered the applicant's claims about the harm he would face if he protested or became involved in politics upon his return to Kenya. I do not accept that the applicant is likely to protest or that there is a real chance he will engage in politics. I am satisfied that any hesitation or reluctance on the applicant’s part to participate in politics is not driven by a fear of harm, but rather by a lack of genuine interest in engaging in protests or politics more broadly. There is no evidence before me that the applicant has been involved in Kenyan politics in the past while he has had the opportunity to do so in Australia, nor that he is likely to do so if he returns to Kenya.
I have considered the applicant's claims regarding the 2007 election and the events surrounding it. I am willing to accept that a group of individuals threatened to loot a business run by the applicant's father but were deterred from doing so. However, I do not accept that this incident was directed specifically at the applicant's father (or his family in general). Instead, I believe this was part of the broader violence and looting that characterised Kenya in 2007.
I do not accept that the current political landscape in Kenya poses a real chance of serious harm to the applicant, nor do I believe that the future political environment presents such a risk in the reasonably foreseeable future. I am not willing to accept that there is a real chance that the 2027 election will involve significant violence. To the extent that some violence may occur, I am not convinced that there is a real chance of the applicant facing serious harm in those circumstances in the future.
I have also considered the applicant's religion. I do not accept that Christians generally, or Catholics specifically, face a real chance of serious harm in Kenya. There is no indication that the applicant, or his family, have ever been targeted on that basis or that there is a real chance they will be targeted in the future. While I acknowledge that some terror attacks have taken place in Kenya and that victims have included Christians, I am not convinced that the applicant would face a real chance of being seriously harmed by terrorists in his home area of Mombasa. There was no persuasive evidence presented before me that Christians were being systematically targeted in or around Mombasa. I do not accept that if the applicant were to return to his home area, he would encounter a real chance of serious harm either now or in the reasonably foreseeable future because of his religion.
To the extent that the applicant referred to 'stigma' due to his inability to remain in Australia and, consequently, keep his family safe, I do not accept that this involves a real chance of serious harm. I do not accept that the applicant will be harmed or that anyone will seek to harm him because he is returning to Kenya from Australia or for any other reasons related to his time spent overseas, including the duration he has spent here in Australia. To avoid any doubt, I have also considered the applicant's claims that he would be harmed while protecting his father, family, and their property. Nevertheless, I do not accept that there is a real chance the applicant would be required to act in such a way as to necessitate providing such protection, and for this reason, I do not accept that he faces a real chance of serious harm in this regard.
I have also taken into account the applicant's fear of harm based on the cumulative nature of his claims, which may include what could be considered a fear of harm arising from generalised violence. I am not satisfied with the evidence provided by the applicant, and I do not accept that he faces a real chance of serious harm.
I do not accept that there is a real chance the applicant will be killed or lose his liberty. I also do not accept that were the applicant to return to Kenya, he would face a real chance of significant physical harassment or significant physical ill-treatment.
I do not accept that the applicant would experience significant economic hardship that could threaten his capacity to subsist or that he would be denied access to basic services or access to a livelihood that would threaten his capacity to subsist. The applicant has a Master's Degree in [Subject 3] and whilst his work experience in that field is limited, the applicant has experience working in Australia as [an occupation] among other things.
I otherwise do not accept that there is a real chance that the applicant would be harmed by the authorities in Kenya, including central police, county police or the military, for any reason.
Considering all the applicant's claims and circumstances, I do not accept that he faces a real chance of serious harm, either now or in the reasonably foreseeable future, if he is returned to Kenya.
For these reasons, I am not satisfied the applicant has a well-founded fear of persecution within the meaning of s 5J(1) of the Act or that the applicant is a refugee within the meaning of the Act. The applicant does not satisfy the refugee criterion in s 36(2)(a) of the Act.
DOES THE APPLICANT SATISFY THE COMPLEMENTARY PROTECTION CRITERION?
To satisfy s 36(2)(aa) of the Act there must be 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 they will suffer significant harm.[58] When dealing with factual claims that overlap, I am permitted to refer to and rely on my relevant findings when considering the refugee criterion under s 36(2)(a) when assessing whether the applicant satisfied s 36(2)(aa).[59]
[58] Migration Act 1958 (Cth), s 36(2)(aa); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
[59] See DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [27] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) and the authorities there cited.
For the same reasons that I have found that the applicant does not face a real chance of serious harm, I find the applicant does not face a real risk of significant harm. On that basis, I am not satisfied that 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 they will suffer significant harm.
I am not satisfied that the applicant will face a real risk of significant harm for any other reason, including on a cumulative consideration the claims raised. As such, and for the above reasons, I find the applicant does not satisfy the complementary protection criterion in s 36(2)(aa) of the Act.
CONCLUSION
The applicant is not a person in respect of whom Australia has protection obligations under the refugee criterion in s 36(2)(a). I have also considered the alternative criterion in s 36(2)(aa) and find that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) based on being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2). The decision under review should be affirmed.
DECISION
The Tribunal affirms the decision under review.
Date of hearing:
14 March 2025
Representative for the Applicant:
Not applicable
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