2218380 (Refugee)
[2023] AATA 2448
•26 April 2023
2218380 (Refugee) [2023] AATA 2448 (26 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Hannah Gray
CASE NUMBER: 2218380
COUNTRY OF REFERENCE: Kenya
MEMBER:David McCulloch
DATE:26 April 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 26 April 2023 at 11:29am
CATCHWORDS
REFUGEE – protection visa – Kenya – Federal Circuit and Family Court remittal – member of particular social group – bisexual or homosexual man – exploration and relationships in Australia – credibility – delay in applying for protection – applied after criminal convictions and cancellation of student visa – prison and immigration detention – inconsistent claims and evidence, and limited information about sexuality growing up in home country – country information – laws and social attitudes – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2CASES
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275Any 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
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 February 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Kenya, applied for the visa on 3 December 2021. The applicant attended an interview with a delegate of the Minister on 7 January 2022. The delegate refused to grant the visa.
The Tribunal (as previously constituted) affirmed the delegate’s decision on 23 June 2022. The relevant Tribunal hearing had taken place on 6 May 2022. That decision was set aside by the Federal Circuit and Family Court of Australia on 9 November 2022. The court held that the language used by the Tribunal indicated the Tribunal treated its non-acceptance of the applicant’s claim to have had sex with either of his witnesses as entirely determinative of the question of his sexual identity. By doing this, the court held that there was a misconstruction and/or failure to answer the applicant’s claims by the Tribunal. The court also held that the Tribunal did not engage with or consider the material that was before it to the extent the law required. Further, it was held that the Tribunal’s reasons did not disclose its basis for rejecting the proposition that the applicant’s choice to act discreetly may foreseeably change at some point in the future, despite the applicant’s evidence.
The matter is now before the Tribunal pursuant to an order of the court.
The applicant appeared before the Tribunal on 11 April 2023 at 9.30am to give evidence and present arguments. The applicant attended in person. The Tribunal also received oral evidence from two witnesses, [Mr A] and [Mr B]. The witnesses appeared by video using Microsoft Teams.
The applicant was represented in relation to the review. The representative attended the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s migration history is set out in his Movement Record. The applicant entered Australia [in] December 2018 on a Student (Subclass 500) visa. That visa was cancelled on 17 September 2021 under s 116(1)(g) of the Act, on the basis of multiple drink driving offences. The applicant lodged the protection visa application on 3 December 2021.
The following information is apparent from the protection visa application form. The applicant was born on [Date] in [Town], Nandi County, Kenya. The applicant is of Kenyan ethnicity, and his religion is Christianity. The applicant speaks, reads and writes Swahili and English. The applicant has never been married but has been in multiple relationships. The applicant’s mother, [brothers], one half-brother and [sisters] were born and reside in Kenya. The applicant’s father is deceased. The applicant has [cousins] who currently reside in Australia. The applicant contacts his mother approximately once a month. On his application form, the applicant stated he lived in [Town], Nandi, Kenya from [Birth] to July 2021, despite arriving in Australia in December 2018. On his application form, the applicant stated he completed primary school in Kenya and that he would provide his full education history later. In his personal statement, the applicant stated he completed primary and high school in [Town] and went to college in [Town] where he studied for a Certificate in [Subject 1]. No employment history was provided despite a question asking for this in the application. In his personal statement, the applicant claimed he worked for a [company] as a manager for approximately three years. The applicant also stated he worked as [an Occupation] for a [Workplace] for approximately two years, after he completed his college certificate.
The applicant submitted the following statement to the Department (dated 3 December 2021), which sets out his claims for protection (headings omitted):
1. My name is [the applicant]. My date of birth is [Date]. I was born in [Town], Kenya.
2. I grew up in [Town] with my mum, dad and [siblings] – [sisters] and [brothers].
3. My dad passed away in [Year] when I was about [Age] years old. He had health issues.
4. One of my brothers and my [sisters] are married and are living in separate houses in [Town]. My other [brothers] are still living at home with my mum.
5. I completed primary school and high school in [Town]. I finished high school when I was about 19 years old. I also went to college in [Town] and studied a Certificate in [Subject 1].
6. Between high school and college, I worked for a company managing their [Job function]. I think I did that job for about three years.
7. I worked in some other jobs, including as a checkout assistant at a supermarket. I also helped my family with our farm.
8. After completing my college certificate, I worked as [an Occupation] for a [Workplace]. I think I did that for around 2 years.
9. While I was working at the high school, I applied for a student visa to come to Australia and study an Associate Degree in [Subject 1].
10. I arrived in Australia in early November 2018 on a student visa.
11. In 2011, around the age of [Age], I was working in a [company] after high school. A few months after I joined the company, I met a colleague named [Mr C].
12. At the time I was dating a girl named [Ms D]. Her and I had met in a chemist near where I was working.
13. I thought [Mr C] was handsome, and I wanted to hang out with him and be close to him. However, I thought this perspective and these feelings were wrong for me to have. So I never said anything to [Mr C], and I avoided dealing with my feelings. We just stayed friends.
14. This is the first time I remember being attracted to a man.
15. While I was still working at the [company], my relationship with [Ms D] started having problems. I thought she might have been cheating on me so I asked her about this. She said she was. We broke up.
16. I was single for a while, about 1.5-2 years. I was single while I was in college.
17. In about 2016, after college, I started dating another girl named [Ms E]. We dated for about 1.5-2 years. We were still together when I came to Australia in 2018.
18. When I first came to Australia in 2018 I moved into a share house in [Suburb 1] with my cousin [Mr A]. He offered to host me. My other cousin, [Mr A’s] brother, [Mr F], was also living there. There were also three other men living at the house who I didn’t know.
19. In 2019, one of my cousins told me that [Ms E] had visited him. She hadn’t told me about this, which was weird. Soon after this my friends told me that she had started seeing someone else. I called [Ms E] to ask her about all of this and she confirmed that she had been seeing another man.
20. We never broke up but I started avoiding her calls. We haven’t spoken since then.
21. Around this time, in mid-2019, I moved to [Suburb 2] with [Mr A] and [Mr F]. I became closer to [Mr A]. We started to go and see friends together.
22. [Mr A’s] girlfriend moved in with him soon after we moved into the new house in [Suburb 2]. She started to complain that I was closer to [Mr A] than she was. I think she was suspicious that something was happening.
23. [Mr A] and I used to drink together a lot. Sometimes she would be included, and sometimes [Mr F] would join in too. But usually it was just us.
24. [Mr A] started sleeping in my room every now and then. We would have sex when he stayed in my room. We didn’t talk about this when it was happening, or afterwards. I don’t know why [Mr A] didn’t ever bring it up, but I didn’t want to because I felt like what we were doing was wrong.
25. Being with a man was a new experience for me and I enjoyed it. I had never felt like this about anyone else. But at the same time I felt like it was so wrong and I wanted to push it away.
26. [Mr A] broke up with his girlfriend in about July 2020 and started dating another girl.
27. In about November 2020 I moved out. [Mr A’s] new girlfriend had moved in and I had started dating my current girlfriend, whose name is [Ms G].
28. I moved into a house in [Suburb 3] with [Ms G].
29. I moved out of the house in [Suburb 2] because I was worried about [Mr A’s] new girlfriend or [Ms G] coming into the house and noticing the relationship between [Mr A] and I.
30. After I moved out, [Mr A] and I didn’t have sex again.
31. In around early 2021, [Mr A] and his new girlfriend, and [Mr F], moved to [Suburb 4]. I used to come and visit them. I never stayed over. [Mr A] and I never really spoke about us, or what might happen in the future. We both avoided this conversation.
32. While I was living in [Suburb 2], I met a friend of [Mr A] named [Mr B]. He would come over when we had parties and gatherings. We would also hang out at [Mr A’s] house in [Suburb 4].
33. After moving to [Suburb 3], I was still in touch with [Mr B]. He used to invite me to his place in [Suburb 5] for a drink once or twice a week. He lived with two other people. I would usually drop [Ms G] to work in [Suburb 6] and then go to see him. We would also go to gatherings or parties together, with other people, but we didn’t go out on dates together.
34. When I went to [Mr B]’s house we would play PlayStation and drink together. We used to cook together as well. We would also have sex. This continued until I was taken into custody in July 2021.
35. [Mr B] and I are still in contact now.
36. [Ms G] doesn’t know about [Mr B] or [Mr A]. She doesn’t know that I am attracted to men. She has asked me a few times about why I am so close to [Mr A], and if I think [Mr A] is gay. I said I didn’t know.
37. I used to delete my phone conversations with [Mr A] and [Mr B] because I didn’t want [Ms G] to see them.
38. I am still trying to figure out who I am. I could call myself ‘bisexual’ but often my sexual experiences with women were not enjoyable and have left me disappointed. I don’t know what this means for my sexuality.
39. I want to be with [Ms G] but I am not sure how she will react if I tell her.
40. I think that I will soon have to tell her about myself.
41. She might want to break up with me, I don’t know if she would accept that I am attracted to men.
42. My sexual identity is complicated because I have been raised in Kenya which has strong homophobia and strong prejudice against any other form of sexuality, which is illegal.
43. In Kenya, you are required to reject and conceal any kind of sexual orientation which is not ‘straight’ to cope with the stigma.
44. This has meant that have for many years acted as ‘straight’ as I could in public and indeed for myself.
45. I still don’t feel comfortable disclosing my sexual orientation as anything other than straight to family, friends unless necessary, co-workers or members of the public. If I meet members of the LGBT community I might feel more comfortable telling them, as they might have the same perspective as me. I will feel like I am on the right side of the community there.
46. I still struggle with feelings of personal shame associated with my sexual orientation as bisexual. I am not comfortable voicing my sexuality, even with the person closest to me – my current partner, [Ms G].
47. I am gradually coming to feel more myself, and more connected to my feelings, since being in Australia. However this is still difficult for me.
48. My family do not know about my sexuality. I think my mother would be very disappointed in me. My family supported me and paid for me to come to Australia so they would not want to support me if I return to Kenya. My mother won’t let me live with her if she finds out about me.
49. My mother wants me to get married and have a baby. I can never tell her that I have been with men and that I am attracted to men.
50. My siblings don’t know about me either. I have been thinking about telling my brother [Mr H], who I am closest to in my family. However, I have found it very hard to try and have this conversation with him.
51. I don’t know what [Mr H] would think about me. I hope that he would respect me for who I am.
52. I have been convicted of some drink driving offences between 2019-2021. I pled guilty to all charges.
53. I used alcohol to try and fit in with friends and appear normal. I drank alcohol when I felt stressed. It helped me to feel alright and I would forget about my problems. However, the more I drank, the more I started to feel sad and wanted to be alone.
54. I take responsibility for my behaviour. I acknowledge I have put peoples’ lives at risk by getting behind the wheel of a car. I understand that I have had a problem with alcohol, and that driving under the influence of alcohol can cause injury or death to innocent people.
55. I want to overcome my alcohol abuse issues. I don’t want to rely on alcohol anymore.
56. Earlier this year before I arrested, I was completing a drug and alcohol rehabilitation course in [Suburb 7], run by [Organisation]. It was called ‘[Course name].’ I intended to finish this course but I was unable to after being arrested.
57. While in custody in Silverwater I asked about completing a course in alcohol abuse. I was on remand so they said I couldn’t do a course. I asked again to do a course at Geoffrey Pearce but they also said I couldn’t do a course. I have now run out of time to complete a course before my release date.
58. I would like to find another alcohol abuse program or course to do as soon as possible if I am released from detention. The course in [Suburb 7] taught me about addiction and the negative effects of alcohol on your body, mind and behaviour. I want to learn more about this.
59. If I am returned to Kenya, the community will suspect that I am doing the wrong thing by being with a man. If they find out that I am bisexual, or attracted to men, they will harm me or kill me.
60. I think people will eventually suspect this about me because I cannot hide it forever. As I have been in Australia longer and longer, I have become more certain of myself and my sexuality. If I meet a man that I want to be with I will not be able to hide my feelings.
61. I fear harm from the community in any part of Kenya. I don’t think even the capital city Nairobi is safe. I’ve read about queer people such as transgender people leaving Nairobi as they didn’t feel safe.
62. The police won’t be able to protect me. If the community where I am living discover that I am in a relationship with a man, or that I am attracted to men, they will come to my house and harm me. There won’t be enough time for the police to help.
63. Even if they were able to help I don’t think they would want to help me. Police in Kenya are the same as the community, everyone believes that it is not ok to be gay or attracted to the same sex.
64. For all of the East African countries, it is very easy for law enforcement to track you wherever you go. Also, it is illegal to be involved in same sex relations in most of Africa. I don’t think I’d be safe anywhere else in Africa.
The applicant provided the following statement to the Tribunal, dated 4 April 2023:
Same-sex sexual relations in custody
3. I had sex a few times with someone while I was in jail, named [Mr I]. I called him [Short form of name]. We weren’t in a relationship. We decided after having sex a few times that we weren’t really feeling anything for each other so it never developed into a relationship.
4. I talked to [Mr I] once while I was in detention. He was out in the community. That was in February or March last year. We haven’t spoken since then or seen each other. I thought he might call back but he didn’t. I’ve considered calling [Mr I] again to catch up but it’s a bit awkward because I’m not sure if [Mr I] wants to speak to me, since he never called me after our first chat.
5. I had pain in my anal area that started when I got to detention. It started slowly but got intense as time passed. I eventually decided I had to go to see the doctor. By that stage I felt like I was in so much pain that I couldn’t twitch any muscles in my bottom. I was feeling pain when I tried to use the toilet. I thought it was possibly because of having sex with [Mr I], although I hadn’t experienced this before after having sex with other men.
6. I told the doctor that I had had anal sex while I was in jail. I told the doctor about the pain I was experiencing. The doctor told me it wasn’t related to having anal sex, and that they wanted to do a bowel screen if it kept happening. I think they were worried it might be cancer.
7. After that time the pain got slowly better so I didn’t go back and I haven’t had a bowel screen.
8. I felt too embarrassed speaking about this before now. I feel like [Mr I] was taking me for granted. Even though it was just sex, I still felt a bit used by him so I never wanted to bring it up.
9. I have only brought this up after reviewing my health records with my lawyer.
Relationship in detention
10. While I was in detention I had a relationship with my roommate. We first met in late 2022 when we started sharing a room in [Section of detention centre].
11. He has told me that he doesn’t want his details to be included in this statement.
12. When he moved in he was the kind of person with a lot of jokes. He was friendly and talkative. This made it easy for us to end up in a certain place.
13. The first time we had sex it just kind of happened. there was no discussion beforehand about it. Neither of us said ‘I’m gay’, or ‘I’m interested in men’.
14. Afterwards we didn’t discuss it either. It has happened several times, when we felt in the mood and were alone in our room.
15. Even though he was an easy person to engage in a conversation and friendly he generally kept to himself about more personal things.
16. He was released from detention over a month ago. He got his visa.
17. We have never talked directly about what happened, it was just sex for that time but it was something we both wanted to keep doing if we both got out of detention.
18. Even though we never spoke much about what was happening between us, we indicated in other ways that we like each other, for example we’ve talked about maybe living together if I get out of detention.
19. We are still talking to each other. We talk about general things, not the relationship we had in detention.
20. I’m not in his mind so I don’t know if he would still like to be with me. I’m also working out what I want for myself. In here it’s hard, we were both feeling stressed at times about our visas and if we were getting out. It can be hard to think about that and also about being in a relationship with someone. But if I get out maybe I can more openly discuss things with him.
21. I have been hoping that [Ms G] might visit me in detention too. We were friends during our relationship, rather than being romantic. I told [Ms G] about my sexuality she distanced herself from me and later she called me to say she doesn’t have feelings for me anymore. I think she found it hard. Now we only talk once a month and she hasn’t come to see me.
[Mr A] and [Mr B]
22. I am still talking with [Mr A] but more often with [Mr B].
23. With [Mr A] it’s more like our relationship ended and we speak as friends. We speak about once a week – sometimes a call, sometimes text messages.
24. When I speak with [Mr B] we say we miss each other and are looking forward to the day I might get out and we can see each other again.
25. I thought [Mr B] might visit me, but he hasn’t. I don’t want to ask him to visit, I don’t like to push people to do things if I don’t know what they feel like doing. Maybe he has his own reasons for this.
26. My phone deletes older call logs progressively. It only shows calls from the last two weeks. So I can’t show a history of all my calls to them but I’d say I speak to both [Mr A] and [Mr B] pretty often.
Connections with the LGBTQI+ community
27. While in detention I’ve been looking at some LGBT Instagram accounts and social media accounts. I’ve included some screenshots in my statement of social media pages that I’m following.
28. In February and March this year I was following the events of the world pride festival through different websites. I could see lots of different events were happening. I went to the Mardi Gras website first – then I saw there was a link to the World Pride page so I was looking at that as well.
29. Seeing all of this content online makes me feel more comfortable in myself. I am seeing people just like me.
30. I watched the show ‘Heartstopper’ on Netflix while I’ve been in detention. I really relate to the characters in the show. They are two boys in high school and one of them likes the other. One of them is public about being gay but the other isn’t, and at first they keep their relationship a secret. I feel like I can relate to this, when two people like each other but it’s hard to be public about it. The show is also about how there is community pressure and how people don’t always understand. I found it helpful to watch this show.
31. The main character feels like me in detention. Sometimes the boys talk behind my back and say things about me, making jokes about me. This happens to the character in the show too. I’m working on my reaction to this. Now I try to remind myself that when people say mean things, this is a reflection on them rather than on me. Sometimes they are my friends and this is just their humour.
32. I am still someone who keeps everything to myself. I am a very private person. It is very hard for me trying to learn how to share things that are very personal to me. I find it hard to talk about such personal things. This is something I’ve been working on with the counsellor in detention.
33. In Kenya it is different community, I had to learn to keep it to myself about wanting to be with men. It has not been so easy to unlearn that here. I’m taking time to adapt. I need to be around the right people to change this,
34. I’ve spoken to the counsellor in detention about feeling more confident, and to cope with people saying things to me about my sexuality. We’ve spoken about the importance of LGBTQIA+ support groups in the community that can help.
35. At the moment I’m having a break from seeing the counsellor, as I sometimes find it overwhelming. I am trying to patch things up about my life while I have a break. I’m planning to see the counsellor again soon.
36. At first in Australia I wasn’t seeing many things about the LGBT community. But there are a lot of things I’ve come to realise about the LGBT community after being in Australia. Even with World Pride, I’ve realised there is a whole community that lets you explore and meet people. I’m feeling more positive about exploring my sexuality.
37. I find it hard to use dating apps while I’m in detention. I always get to the point where I have to say I’m at Villawood and it’s awkward. We can’t really meet up unless they come to visit me. It feels too hard to try something like that in detention but I’d like to try that if I’m the community.
Attached to the April 2023 statement were screenshots showing the applicant:
·following the ‘sydneyworldpride’ page on Instagram;
·following a post by ‘sydneyworldpride’ dated 5 March 2023;
·following the ‘pride’ page on Instagram;
·following the ‘heartstoppertv’ page on Instagram, which is a show about two boys in high school who fall in love;
·following the ‘LGBT’ page on Instagram;
·following the ‘sydneymardigras’ page on Instagram;
·following the ‘queers’ page on Instagram;
·viewing a video of the Mardi Gras, which he claims to have watched.
The applicant submitted the following witness statement to the Department in support of his application for protection (headings and footings omitted):
1. My name is [Mr A]. My date of birth is [Date]. I was born in [Town], Kenya.
2. I arrived in Australia in June 2018 on a Student Visa. I still hold this visa now. I am studying a Bachelor of [Subject 2].
3. I have known [the applicant] since I was young. My dad and his dad are brothers. I don’t remember the first time we met as it was so long ago.
4. I came to Australia before [the applicant]. We talked about coming to Australia, and I knew he was coming here on a Student Visa. We stayed in contact and when he got here I hosted him at my house in [Suburb 1].
5. We lived together in [Suburb 1] until 2020, when he decided to move out.
6. While we were living together in [Suburb 1], there was some connection between us. We were intimate together, in a sexual way.
7. We were intimate very often, mostly when no one else was home. Sometimes even when people were home, we would go to [the applicant]’s room or my room to be intimate together. We would make sure we were quiet if someone was home.
8. While this was happening I had a girlfriend. She was living with us, in the same room as me. She didn’t know anything about us. Usually [the applicant] and I were intimate together when my girlfriend wasn’t home, or when she was in the loungeroom watching a movie. In July 2020 we broke up and I started dating another woman. She also never found out about [the applicant] and I. Her name is [Ms G] but she is not the same [Ms G] who was dating [the applicant].
9. [The applicant] and I continued to be intimate together until he moved out in around October or November 2020.
10. My girlfriend still doesn’t know anything about [the applicant] and I. She doesn’t know that I am bisexual. I am scared that if I tell her, she will break up with me. She has made comments in conversations between us, and with friends, that indicate she doesn’t like people who identify as gay, bisexual, or queer in any way. This is very typical of Kenyan culture. It’s the way we are brought up.
11. I would say that I am bisexual. I am attracted to men and women. I haven’t dated other men in Australia. I dated a couple of men in Kenya, but we had to be very secretive. We couldn’t be seen in public together because it is strictly not allowed. I think I would have gone to jail if I had been caught with another man. It was very hard for me growing up in Kenya. I felt like I didn’t really belong there.
12. I haven’t spoken to [the applicant] for a while. I think I spoke to him once while he was in prison. Nothing bad happened between us, but I decided it wouldn’t be healthy for [the applicant] and I to speak to each other. I am trying to avoid speaking to him. This is also for the sake of my relationship with my girlfriend.
The applicant also submitted the following witness statement to the Department in support of his application for protection (headings and footings omitted):
1. My name is [Mr B]. My date of birth is [Date]. I was born in Eldoret, Kenya.
2. I arrived in Australia in early 2018 on a Student Visa. I have applied for a permanent protection visa. I am on a Bridging Visa.
3. I would say that I am bisexual. I am attracted to men and women.
4. I first met [the applicant] in Australia, just after he arrived. I met [the applicant] through his cousin [Mr A]. I met [Mr A] at a party in 2018, and since we were fellow Kenyans around the same age we got along. We have been friends since then.
5. I met [the applicant] at his house when I went to visit [Mr A] at his house in [Suburb 1].
6. [The applicant] and I got to know each other and spent time together. This continued until about late 2020 when we started being involved as more than friends. We started dating.
7. We would usually hang out at my place while we were dating. We didn’t go out much on dates because of the stigma that is associated with people who are LGBTQI+ in the Kenyan community.
8. We dated for about a year, until [the applicant] was taken into custody. I knew that he was dating [Ms G] at the same time as he was dating me. I am also aware that [Ms G] does not know that [the applicant] is attracted to men, or that he was dating me.
9. [The applicant] and I still talk now. We have been speaking since he went into detention, but we didn’t talk very much while he was in prison because it was hard for us to be in contact. I would like to keep dating [the applicant] if he is released from detention. We haven’t spoken about this since [the applicant] went to prison but I hope he feels the same way.
Also provided are medical reports in relation to the applicant, relevant aspects of which are outlined in the following extracts of the submission by the applicant’s representative provided on 4 April 2023. The submission also refers to the additional statement extracted above from the applicant:
Supplementary statement of [the applicant]
[The applicant]’s supplementary statement provides additional information relevant to his claims for protection. Some of this information pre-dates the decisions of the Department and the Tribunal – specifically, information about a brief relationship between [the applicant] and another inmate named [Mr I] while he was in custody in 2021. [The applicant] notes that until now he has felt too embarrassed to speak about this particular relationship, as he felt ‘used’ by the other inmate. We note that [the applicant] did disclose this relationship earlier in the context of a medical issue for which he received treatment in detention, discussed further below.
The statement also includes information about a relationship between [the applicant] and another detainee, his roommate, while in detention. This relationship occurred in late 2022, after [the applicant]’s hearings at the Department and the Tribunal. As noted by [the applicant], the person he was in a relationship with does not feel comfortable disclosing his identity, and as such is unfortunately unable to provide evidence to the Tribunal regarding this relationship. [The applicant] describes a brief sexual relationship with his roommate over the space of a few months, which ended when his roommate was released from detention. [The applicant] has not since engaged in any relationships and finds it difficult to use dating apps while he is detained but hopes to begin dating if he is released.
The statement also confirms that [the applicant has been working with a counsellor in detention to become more confident about his sexuality, and to engage with the LBGTQIA+ community for support. [The applicant] reports to be benefiting from the counselling and growing in confidence although he notes that it is very difficult for him as someone who grew up in a conservative community and who suppressed his sexual identity for many years.
A selection of screenshots are also included in [the applicant]’s statement to demonstrate the engagement he has with the LGBTQIA+ community via social media while in detention. [The applicant] followed the events of mardi gras and Sydney worldpride earlier this year and follows several LGBTQIA+ Instagram accounts. [The applicant] notes that this engagement with his community has helped him to feel positive about his future knowing that ‘there is a whole community that lets you explore and meet people.’
IHMS clinical record
The IHMS clinical records make several references to [the applicant]’s sexuality, including:
·Pages 4, 26: GP Consultations for pain in genitalia recorded last anal intercourse or ‘receptive anal sex’ was approximately December 2021
·[The applicant] notes in this regard in his statement that in 2022 he told the doctor he had a sexual relationship while in custody ‘last year’ and believes the doctor then recorded ‘December 2021’ in their notes
·Page 9: Counsellor notes indicate the counsellor spoke to [the applicant] about how to ‘handle his family and friends’. When read in context with other parts of the clinical record it appears this was partly in reference to coming out to his family and friends.
·Page 10: Counsellor notes state:
We continued work around his identification of being LGTBQ +.
We looked at several strategies to look at how he could start talking to his family about this.
We looked at his identity and self-esteem and techniques to help with confidence and insecurity.
We looked at ongoing strategies to help with positive self-talk.
We looked at ways to develop positivity and a good routine.IHMS mental health reports
The enclosed ‘mental health reports’ from IHMS include notes from [the applicant]’s counsellor, [Mr J]. [Mr J] notes that [the applicant] in March 2022 began opening up about his sexuality and his fears of deportation. [The applicant] stated that he feared being attacked and killed in Kenya due to his sexuality.
[Mr J]’s notes also reflect [the applicant]’s concerns around coming out to his family – he has considered coming out to his brother to whom he is close but fears becoming an ‘outcast’ and being ‘seen as a bad person’ if he does. He also noted experiencing similar concerns when speaking to friends in detention from Kenya due to ‘cultural taboos’.
Further, [Mr J] notes that [the applicant] has been engaging with online content to read relevant information about the LGBTQIA+ community.
We note any references to ‘[Name]’ in the notes appear to be references to [the applicant].
The IHMS documents provide evidence consistent with [the applicant]’s statement as to his relationship in custody, his engagement with counselling in terms of becoming more confident about his sexuality, his engagement with the LGBTQIA+ community, and his continued fears of persecution in Kenya on the basis of his sexuality.
After the hearing the representative provided a submission dated 18 April 2023 responding to a number of the credibility concerns put in the hearing. Relevant details of that submission are referred to in the assessment below.
Independent evidence
In terms of the situation facing the LGBT community in Kenya, the Tribunal notes the following research undertaken by the Country of Origin Information Services Section of the Department of Home Affairs dated 13 April 2021:
1. Please provide any country information about whether the laws criminalizing homosexual acts are enforced or what the position is regarding homosexuals/bisexuals in Kenya.
Information on the treatment of homosexuals in Kenya has been previously provided by the Country of Origin Information Services Section (COISS) in a research response that was completed in September 2019. The details of the previous research response can be found in the ‘Additional Reading’ section below. This response will provide information on the treatment of LGBTIQ individuals in Kenya from sources that have mostly been published after September 2019.
Section 162 of Kenya’s Penal Code criminalises ‘carnal knowledge of any person against the order of nature’ and allowing ‘a male person to have carnal knowledge of him or her against the order of nature’; it provides for a punishment of 14 years’ imprisonment for these offences.[1] This provision has been interpreted by Kenyan courts to prohibit consensual same-sex sexual activity.[2] Section 163 of the Penal Code provides that a term of seven years’ imprisonment will apply for ‘attempting’ such activity.[3] In addition, Section 165 of the Penal Code stipulates that any male person who ‘commits any act of gross indecency with another male person’, either in public or private, will be liable to receive a term of five years’ imprisonment.[4] Reports indicate that these provisions are rarely enforced in Kenya.[5] The US Department of State reported that during 2020 persons were detained by police under these laws, particularly persons suspected of prostitution, but then released shortly afterwards.[6] Two men were arrested in Kakamega County in August 2020 for engaging in homosexual acts.[7] Three suspected homosexual men were arrested in September 2019.[8] Human Rights Watch also reported in May 2019 that it was ‘aware of two prosecutions against four people under article 162 in the last 10 years’.[9]
[1] 'Laws of Kenya: Penal Code', Republic of Kenya, 2012, p.62, 20210409123122
[2] 'Country Reports on Human Rights Practices for 2020 - Kenya', US Department of State, 30 March 2021, Section 6, 20210331155944; 'Kenya 2020 Crime & Safety Report', Overseas Security Advisory Council (OSAC), 5 March 2020, p.5, 20200803142507
[3] 'Laws of Kenya: Penal Code', Republic of Kenya, 2012, p.63, 20210409123122
[4] 'Laws of Kenya: Penal Code', Republic of Kenya, 2012, p.63, 20210409123122
[5] 'LGBT+ refugees call on U.N. for safe space after Kenya camp attacks', Bhalla, N, Thomson Reuters Foundation, 6 March 2021, 20210309104155; 'Investigation after gay refugee found dead at U.N. refugee office in Kenya', Bhalla, N, Thomson Reuters Foundation, 13 April 2020, 20210408160724; 'Data Collection and Reporting on Violence Perpetrated Against LGBTQI Persons in Botswana, Kenya, Malawi, South Africa and Uganda', Arcus Foundation, October 2019, p.32, 20200421103543; 'Kenya: Court Upholds Archaic Anti-Homosexuality Laws', Human Rights Watch, 24 May 2019, 20190923144749
[6] 'Country Reports on Human Rights Practices for 2020 - Kenya', US Department of State, 30 March 2021, Section 6, 20210331155944
[7] 'Country Reports on Human Rights Practices for 2020 - Kenya', US Department of State, 30 March 2021, Section 6, 20210331155944; 'State-Sponsored Homophobia 2020: Global Legislation Overview Update', Mendos, L R, International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), 15 December 2020, p.117, 20201222140105
[8] 'State-Sponsored Homophobia 2020: Global Legislation Overview Update', Mendos, L R, International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), 15 December 2020, p.117, 20201222140105
[9] 'Kenya: Court Upholds Archaic Anti-Homosexuality Laws', Human Rights Watch, 24 May 2019, 20190923144749
LGBTIQ organisations have reported, however, that police in Kenya more frequently use public order laws rather than legislation criminalising same-sex sexual relations to arrest LGBTIQ individuals. It has also been reported that police have frequently harassed, intimidated or physically abused LGBTIQ individuals in custody.[10] In addition, it has been reported that Kenyan police have frequently used the provisions in relation to same-sex sexual relations as a pretext to harass and extort money from LGBTIQ individuals, or to deny services to LGBTIQ individuals who are victims of violence.[11]
[10] 'Country Reports on Human Rights Practices for 2020 - Kenya', US Department of State, 30 March 2021, Section 6, 20210331155944
[11] 'Kenya: Court Upholds Archaic Anti-Homosexuality Laws', Human Rights Watch, 24 May 2019, 20190923144749
Although the provisions in Kenya’s Penal Code relating to same-sex sexual relations are rarely enforced, the Arcus Foundation has stated that they ‘create an environment of fear and stigmatization’.[12] In addition, Human Rights Watch has reported that these legal provisions ‘underpin a broad array of human rights abuses and contribute to a climate of discrimination and violence’.[13] Homosexuality has been described as being ‘socially unacceptable in Kenya’,[14] with LGBTIQ individuals ‘largely ostracized’ and ‘often seen as mentally ill, immoral, or un-African’.[15] Reports have been located which refer to LGBTIQ persons in Kenya either keeping a low profile or presenting as heterosexual in public in order to avoid mistreatment.[16] Reports have been located which refer to LGBTIQ individuals in Kenya being subject to forms of mistreatment which include physical attacks, including mob violence,[17] sexual violence,[18] verbal abuse and harassment,[19] rejection by family,[20] social marginalisation and stigmatisation,[21] discrimination in accessing employment and housing,[22] expulsion and suspension from school,[23] and limitations in accessing healthcare due to fear of revealing their sexual orientation.[24] In addition, it has been reported that LGBTIQ victims of violence in Kenya have been turned away by police when attempting to report these incidents, and also that they have often suffered ‘secondary victimization’ at the hands of the police.[25] This has resulted in LGBTIQ victims of violence not seeking protection out of fear of further victimization, outing, or abuse at the hands of law enforcement.[26]
[12] 'Data Collection and Reporting on Violence Perpetrated Against LGBTQI Persons in Botswana, Kenya, Malawi, South Africa and Uganda', Arcus Foundation, October 2019, p.32, 20200421103543
[13] 'Kenya: Court Upholds Archaic Anti-Homosexuality Laws', Human Rights Watch, 24 May 2019, 20190923144749
[14] 'Funds running out, Kenya LGBT refugee program seeks help', Cassell, H, The Bay Area Reporter, 4 March 2020, 20200408155917
[15] 'Kenya - OutRight Action International', OutRight International, n.d. (accessed 8 April 2021), 20210408150052
[16] 'LGBT refugees find a haven in Kenya despite persecution', Odula, T, Associated Press, 20 June 2020, 20210408155027; 'This intimate documentary reveals what it’s like to be gay in Kenya', Anderson, T, Xtra Magazine, 25 June 2020, 20210409115518
[17] 'Kenya - OutRight Action International', OutRight International, n.d. (accessed 8 April 2021), 20210408150052; 'Two gay men burned in Kenya refugee camp attack', Lavers, M K, Washington Blade, 30 March 2021, 20210409154643; 'Country Reports on Human Rights Practices for 2020 - Kenya', US Department of State, 30 March 2021, Section 6, 20210331155944; 'LGBT+ refugees call on U.N. for safe space after Kenya camp attacks', Bhalla, N, Thomson Reuters Foundation, 6 March 2021, 20210309104155; 'Freedom in the World 2021 - Kenya', Freedom House, 3 March 2021, 20210304113512; 'Kenya's LGBTQ Community Faces Increased Abuse During Pandemic', Ombuor, R, Voice of America (VOA), 24 November 2020, 20201128200325; 'Kenya’s LGBTQ Refugees Face Threats, Attacks at Kakuma Camp', Voice of America, 13 August 2020, 20200814150420; 'LGBT refugees find a haven in Kenya despite persecution', Odula, T, Associated Press, 20 June 2020, 20210408155027; 'This intimate documentary reveals what it’s like to be gay in Kenya', Anderson, T, Xtra Magazine, 25 June 2020, 20210409115518; 'Gay refugees in Kenya report repeated attacks from locals', Fitzsimons, T, NBC News, 11 January 2020, 20210409120956; 'Data Collection and Reporting on Violence Perpetrated Against LGBTQI Persons in Botswana, Kenya, Malawi, South Africa and Uganda', Arcus Foundation, October 2019, p.31, 20200421103543
[18] 'This intimate documentary reveals what it’s like to be gay in Kenya', Anderson, T, Xtra Magazine, 25 June 2020, 20210409115518
[19] 'Freedom in the World 2021 - Kenya', Freedom House, 3 March 2021, 20210304113512; 'Kenya's LGBTQ Community Faces Increased Abuse During Pandemic', Ombuor, R, Voice of America (VOA), 24 November 2020, 20201128200325; 'This intimate documentary reveals what it’s like to be gay in Kenya', Anderson, T, Xtra Magazine, 25 June 2020, 20210409115518; 'Data Collection and Reporting on Violence Perpetrated Against LGBTQI Persons in Botswana, Kenya, Malawi, South Africa and Uganda', Arcus Foundation, October 2019, p.34, 20200421103543
[20] 'Kenya's LGBTQ Community Faces Increased Abuse During Pandemic', Ombuor, R, Voice of America (VOA), 24 November 2020, 20201128200325; 'Data Collection and Reporting on Violence Perpetrated Against LGBTQI Persons in Botswana, Kenya, Malawi, South Africa and Uganda', Arcus Foundation, October 2019, p.34, 20200421103543
[21] 'Country Reports on Human Rights Practices for 2020 - Kenya', US Department of State, 30 March 2021, Section 6, 20210331155944; 'Human Rights Watch World Report 2021', Human Rights Watch, 13 January 2021, p.394, 20210114072851; 'Kenya's LGBTQ Community Faces Increased Abuse During Pandemic', Ombuor, R, Voice of America (VOA), 24 November 2020, 20201128200325; 'This intimate documentary reveals what it’s like to be gay in Kenya', Anderson, T, Xtra Magazine, 25 June 2020, 20210409115518; 'Data Collection and Reporting on Violence Perpetrated Against LGBTQI Persons in Botswana, Kenya, Malawi, South Africa and Uganda', Arcus Foundation, October 2019, pp.31 and 34, 20200421103543
[22] 'Kenya's LGBTQ Community Faces Increased Abuse During Pandemic', Ombuor, R, Voice of America (VOA), 24 November 2020, 20201128200325; 'Kenya: Court Upholds Archaic Anti-Homosexuality Laws', Human Rights Watch, 24 May 2019, 20190923144749
[23] 'Kenya: Court Upholds Archaic Anti-Homosexuality Laws', Human Rights Watch, 24 May 2019, 20190923144749
[24] 'Kenya's LGBTQ Community Faces Increased Abuse During Pandemic', Ombuor, R, Voice of America (VOA), 24 November 2020, 20201128200325; 'Growing a movement: Uniting the Kenyan LGBTQ community', Frontline Aids, 2 October 2020, 20210409113432
[25] 'Data Collection and Reporting on Violence Perpetrated Against LGBTQI Persons in Botswana, Kenya, Malawi, South Africa and Uganda', Arcus Foundation, October 2019, p.40, 20200421103543
[26] 'Kenya - OutRight Action International', OutRight International, n.d. (accessed 8 April 2021), 20210408150052
Some sources have been located which indicate that Kenya has been relatively more tolerant of LGBTIQ persons than nearby countries, and has provided refuge for LGBTIQ refugees from Uganda, as well as Tanzania, Ethiopia, Burundi, Democratic Republic of Congo and Somalia.[27]
[27] 'LGBT+ refugees call on U.N. for safe space after Kenya camp attacks', Bhalla, N, Thomson Reuters Foundation, 6 March 2021, 20210309104155; 'Country Policy and Information Note - Kenya: Sexual orientation and gender identity and expression', UK Home Office, April 2020, pp.35-36, 20200731113900; 'On the run from persecution: how Kenya became a haven for LGBT refugees', Wesangula, D, The Guardian, 23 February 2017, 20210413102113
Relevant Kenyan legislation regarding same-sex sexual relations
Section 162 of Kenya’s Penal Code states:
162. Unnatural offences
Any person who –
(a) has carnal knowledge of any person against the order of nature; or
(b) has carnal knowledge of an animal; or
(c) permits a male person to have carnal knowledge of him or her against the order of nature,
is guilty of a felony and is liable to imprisonment for fourteen years:
Provided that, in the case of an offence under paragraph (a), the offender shall be liable to imprisonment for twenty-one years if –
(i) the offence was committed without the consent of the person who was carnally known; or
(ii) the offence was committed with that person’s consent but the consent was obtained by force or by means of threats or intimidation of some kind, or by fear of bodily harm, or by means of false representations as to the nature of the act.[28]
[28] 'Laws of Kenya: Penal Code', Republic of Kenya, 2012, p.62, 20210409123122
Section 163 of the Penal Code states:
163. Attempt to commit unnatural offences
Any person who attempts to commit any of the offences specified in section 162 is guilty of a felony and is liable to imprisonment for seven years.[29]
[29] 'Laws of Kenya: Penal Code', Republic of Kenya, 2012, p.63, 20210409123122
Section 165 of the Penal Code states:
165. Indecent practices between males
Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.[30]
[30] 'Laws of Kenya: Penal Code', Republic of Kenya, 2012, p.63, 20210409123122
Relevant information on the treatment of LGBTIQ individuals in Kenya
Recent reports from non-government organisations (NGOs) and foreign government agencies have been located which provide relevant information regarding the treatment of LGBTIQ individuals in Kenya. An undated webpage on the website of OutRight Action International,[31] accessed on 8 April 2021, provided the following overview of the situation for these persons:
[31] According to its website, OutRight Action International is a US-based NGO that ‘fights for the human rights for LGBTIQ people everywhere’ and ‘works at the international, regional and national levels to research, document, defend, and advance human rights for LGBTIQ people around the world’:
Notable progress has been made in the recognition of the human rights of LGBTIQ people in Kenya in the last decade, largely through victories in the courts. LGBTIQ organizations have been allowed to officially register and it has become possible for transgender Kenyans to receive legal gender recognition. Forced anal examinations have been ruled unconstitutional. In 2019, Kenya became the first country in Africa to incorporate an intersex category into the national census. However, also in 2019, Kenya’s High Court upheld a colonial law criminalizing same-sex relations between consenting adults, claiming that the law is not discriminatory and would, if abolished, open the door to same-sex marriage which is unconstitutional in Kenya. LGBTIQ people are largely ostracized in Kenya and are often seen as mentally ill, immoral, or un-African. Hate speech from politicians and religious leaders is prevalent, and legitimizes the violence and discrimination that LGBTIQ people face. Hate crimes against LGBTIQ people, including mob violence, are common, and due to the continuing criminalization can be perpetrated with impunity, as LGBTIQ people do not seek protection for fear of further victimization, outing, or abuse at the hands of law enforcement.[32]
[32] 'Kenya - OutRight Action International', OutRight International, n.d. (accessed 8 April 2021), 20210408150052
In its 2020 Country Report on Human Rights Practices for Kenya, published on 30 March 2021, the US Department of State provided the following relevant information regarding the treatment of LGBTIQ persons in that country:
The penal code criminalizes “carnal knowledge against the order of nature,” which was interpreted to prohibit consensual same-sex sexual activity and specifies a maximum penalty of 14 years’ imprisonment if convicted, and seven years for “attempting” said activity. The law also criminalizes acts of “gross indecency” between men, whether in public or in private, with five years’ imprisonment. Police detained persons under these laws, particularly persons suspected of prostitution, but released them shortly afterward. In August police arrested two men in Kakamega County for engaging in homosexual acts.
In 2016 LGBTI activists filed two petitions challenging the constitutionality of these penal codes. In May 2019 the High Court issued a ruling upholding the laws criminalizing homosexuality, citing insufficient evidence they violate LGBTI rights and claiming repealing the law would contradict the 2010 constitution that stipulates marriage is between a man and woman. The LGBTI community filed an appeal against this ruling. Leading up to the hearing of this case, and in its wake, the LGBTI community experienced increased ostracism and harassment.
LGBTI organizations reported police more frequently used public-order laws (for example, disturbing the peace) than same-sex legislation to arrest LGBTI individuals. NGOs reported police frequently harassed, intimidated, or physically abused LGBTI individuals in custody.
Authorities permitted LGBTI advocacy organizations to register and conduct activities.
The 2010 constitution does not explicitly protect LGBTI persons from discrimination based on sexual orientation or gender identity. Violence and discrimination against LGBTI individuals were widespread. In October an LGBTI rights organization reported an increase in conversion therapy and practices. It attributed this increase to the fact many LGBTI persons had returned to hostile community environments after losing their jobs during the pandemic. Some LGBTI groups also reported an increase in abuses cases against LGBTI persons during the pandemic.
In 2019 a government-appointed task force found only 10 percent of the intersex population completed tertiary education, only 5 percent recognized themselves as intersex due to lack of awareness, and the majority lacked birth certificates, which caused numerous problems, including inability to obtain a national identity card.
While the country grants refugee status to persons whose persecution is due to the individual’s sexual orientation, some LGBTI refugees continued to face stigma and discrimination. They were often compelled to hide their sexual orientation or gender identity to protect themselves. National organizations working with LGBTI persons offered support to refugees who were LGBTI, including access to safety networks and specialized health facilities. In July, UNHCR released a statement calling for dialogue between refugee communities in Kakuma refugee camp following conflicting reports of violence, including reports by a small group of LGBTI refugees that they were the victims of harassment and violence. Police and local authorities increased security measures in response.[33]
[33] 'Country Reports on Human Rights Practices for 2020 - Kenya', US Department of State, 30 March 2021, Section 6, 20210331155944
In its 2021 Freedom in the World report for Kenya, published on 3 March 2021, Freedom House stated that:
Consensual same-sex sexual activity is criminalized under the penal code, with a maximum penalty of 14 years in prison. In May 2019, the High Court dismissed a challenge to the law. LGBT+ people face discrimination, abuse, and violent attacks.[34]
[34] 'Freedom in the World 2021 - Kenya', Freedom House, 3 March 2021, 20210304113512
In its 2021 World Report, published on 13 January 2021, Human Rights Watch provided the following relevant information:
Kenya punishes consensual same-sex relations with up to 14 years in prison. Its High Court rejected a constitutional challenge to the ban in 2019. In April 2020, the court upheld a Kenya Film Classification Board ban on Rafiki, a love story about two young women. At time of writing, activists were appealing both rulings.
Intersex groups celebrated Kenya’s November 2019 census results, the first in Africa to include data on intersex populations. Lack of awareness, stigma, and inconsistency in asking respondents’ sex means data on intersex populations may not have been adequately captured.[35]
[35] 'Human Rights Watch World Report 2021', Human Rights Watch, 13 January 2021, p.394, 20210114072851
In a December 2020 report, the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA)[36] provided the following information regarding Kenyan legislation in relation to same-sex sexual relations and the enforcement of these laws:
[36] According to its website, the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) ‘is a worldwide federation of more than 1,600 organisations from over 150 countries and territories campaigning for lesbian, gay, bisexual, trans and intersex human rights’:
The Penal Code (1930), as amended by Criminal Law (Amendment) Act (2003), prescribes under Section 163 a prison sentence of up to 14 years for consensual “carnal knowledge of any person against the order of nature”. Section 165 also prescribes a 5-year sentence for men found guilty of “gross indecency”.
…In 2015 during the second UPR cycle, Kenya claimed that “on the rights of LGBT, not a single individual could confirm the application of the criminal law on the basis of his/her sexual orientation”.
Despite this, there are several reports of anal examinations being carried out in order to find “proof” of proscribed same-sex sexual conduct, while 2019 saw the arrest of 3 suspected gay men in September.
In May 2019, Deputy County Commissioner in Kiambu (a county in the vicinity of Nairobi) announced that authorities were “investigating claims of an increase in homosexuals” (sic) and vowed to arrest and prosecute those involved”.
In August 2020, a further 2 men suspected of being gay were assaulted by their neighbours before being taken into custody by police.[37]
[37] 'State-Sponsored Homophobia 2020: Global Legislation Overview Update', Mendos, L R, International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), 15 December 2020, p.117, 20201222140105
In its 2020 Crime & Safety Report for Kenya, published on 5 March 2020, the US Department of State’s Overseas Security Advisory Council (OSAC) also provided the following relevant information regarding the treatment of LGBTIQ individuals in that country:
Kenyan penal code criminalizes “carnal knowledge against the order of nature,” which courts interpret to prohibit consensual same-sex sexual activity, and specifies a maximum penalty of 14 years’ imprisonment. A separate statute specifically criminalizes sex between men and specifies a maximum penalty of 21 years’ imprisonment. Police have detained persons (particularly suspected sex workers) under these laws. Authorities have permitted LGBTI advocacy organizations, such as the Gay and Lesbian Coalition of Kenya, to register and conduct activities. However, societal discrimination based on sexual orientation is widespread.[38]
[38] 'Kenya 2020 Crime & Safety Report', Overseas Security Advisory Council (OSAC), 5 March 2020, p.5, 20200803142507
An October 2019 Arcus Foundation[39] report provided the following overview of the situation for the LGBTIQ community in Kenya:
[39] According to its website, the Arcus Foundation is based in New York, USA and Cambridge, UK and partners ‘with experts and advocates for change to ensure that LGBTQ people and our fellow apes thrive in a world where social and environmental justice are a reality’:
Kenya’s LGBTI community faces a significant climate of violence and social hostility with little protection provided by the state. While there is a strong culture of organizing and an embedded social safety network among the LGBTI community, anti-LGBTI violence is perpetuated through an interconnected web of criminalization, social stigma and exclusion. There have been some major victories in achieving policy protections for LGBTI people, however overall this protection is limited and those protections that are legally mandated are seldom adequately implemented. In fact, overall, the state’s stance towards the LGBTI community, both formal and informal, exacerbates the vulnerability of LGBTI people. Government officials and civil servants often turn a blind eye to violations of LGBTI people and even directly perpetrate acts of violence.[40]
[40] 'Data Collection and Reporting on Violence Perpetrated Against LGBTQI Persons in Botswana, Kenya, Malawi, South Africa and Uganda', Arcus Foundation, October 2019, p.31, 20200421103543
This report also provided the following information regarding Kenyan legislation which criminalises same-sex sexual relations and the enforcement of this legislation:
The Kenyan Penal Code criminalizes all same-sex relations including consensual and private sexual conduct between adults. In March of 2019 the Kenyan High Court ruled against a petition to decriminalize homosexuality, upholding the existing penal code violations. These laws are rarely enforced but create an environment of fear and stigmatization. In 2015 case two men were charged under Section 162 (a) and (c) of the penal code in Kwale County on the coast of Kenya. During the investigation the men underwent forced anal examinations, and HIV and Hepatitis B tests. The Kenyan High Court later went on to rule that forced examinations were an acceptable means of evidence gathering in Section 162 cases.[41]
[41] 'Data Collection and Reporting on Violence Perpetrated Against LGBTQI Persons in Botswana, Kenya, Malawi, South Africa and Uganda', Arcus Foundation, October 2019, p.32, 20200421103543
The Arcus Foundation also stated that:
Stigma and discrimination continue to be the major problems faced by LGBTI persons in Kenya. An atmosphere of widespread social rejection both encourages the violation of LGBTI persons and enables such violations to go unchallenged communally.
The data on violations of LGBTI persons suggests that exclusion and discrimination make up the everyday experience of violation. Verbal harassment, rejection by family, the denial of services, exclusion from learning institutions and evictions from housing are all examples of LGBTI people’s exclusion from the everyday means of life and social fabric.[42]
[42] 'Data Collection and Reporting on Violence Perpetrated Against LGBTQI Persons in Botswana, Kenya, Malawi, South Africa and Uganda', Arcus Foundation, October 2019, p.34, 20200421103543
In addition, the report noted that there was ‘a general reluctance’ to report anti-LGBTIQ incidents of violence to the police in Kenya, ‘in part because LGBTI victims have repeatedly been turned away when attempting to report, and often suffer secondary victimization at the hands of the police.’[43]
[43] 'Data Collection and Reporting on Violence Perpetrated Against LGBTQI Persons in Botswana, Kenya, Malawi, South Africa and Uganda', Arcus Foundation, October 2019, p.40, 20200421103543
Although it was published prior to September 2019, it should be noted that a May 2019 Human Rights Watch article also provided the following relevant information regarding the criminalisation of same-sex sexual relations in Kenya and the wider impact this has on the treatment of LGBTIQ individuals:
Kenya’s anti-homosexuality laws are a colonial relic, first imposed by British colonizers in 1897. Article 162 punishes “carnal knowledge against the order of nature” with up to 14 years in prison, while article 165 makes “indecent practices between males” liable to up to five years in prison.
The laws are rarely enforced – Human Rights Watch is aware of two prosecutions against four people under article 162 in the last 10 years. But they underpin a broad array of human rights abuses and contribute to a climate of discrimination and violence. Police use the laws as a pretext to harass and extort money or sex from LGBT people, or to deny services to LGBT people who are victims of violence. Kenyan human rights and LGBT organizations report that the laws have been used to justify employment and housing discrimination, to expel or suspend students from schools, to censor artistic expression related to LGBT issues, and to prevent LGBT organizations from registering.[44]
[44] 'Kenya: Court Upholds Archaic Anti-Homosexuality Laws', Human Rights Watch, 24 May 2019, 20190923144749
Recent media reports have also been located which refer to the treatment of LGBTIQ individuals in Kenya. For example, a March 2021 report from the Washington Blade, a US-based LGBTIQ news publication, referred to a violent attack on LGBTIQ refugees and asylum seekers at the Kakuma refugee camp that had taken place on 15 March 2021:
An attack at a Kenya refugee camp earlier this month that left two gay men with second-degree burns has once again drawn attention to the plight of LGBTQ refugees and asylum seekers who live there.
A press release the Minnesota-based Black Immigrant Collective sent to the Washington Blade last week notes “petrol bombs were thrown into a group of LGBTQ+ refugees, allies and their children who live in” Block 13 of the Kakuma refugee camp on the morning of March 15.
“This attack not only set people on fire, but also destroyed beddings and personal belongings as many of the refugees sleep in the open air,” reads the press release.
The press release also notes the men who are described as “organizers” suffered second-degree burns throughout their bodies.
Gilbert Kagarura, a human rights activist and refugee from Uganda who lives in Block 13, on Tuesday sent the Blade a series of pictures of the two men that show burns on their arms, legs and other parts of their bodies. Shifra, an 18-year-old refugee who also lives in Block 13, on March 24 during a virtual press conference the Black Immigrant Collective and other advocacy groups and human rights activists in the U.S., Kenya and elsewhere around the world organized recalled the attack.
“I thought we were all going to die,” said Shifra. “Everyday I relive this horrible experience that I have.”
The U.N. Refugee Agency in a March 25 statement notes it “organized” the men’s transfer to a hospital in Lodwar, a town that is roughly 75 miles away from the camp. The men are now receiving treatment at a public hospital in the Kenyan capital of Nairobi.
“UNHCR organized their transfer to a regional hospital in Lodwar and, following expert advice from burn specialists, to a Nairobi hospital,” says UNHCR in its press release. “Both are receiving specialized treatment for their burns and progress in their recovery is being closely monitored by the local medical team and a UNHCR doctor.”
Kakuma, which is located in northwest Kenya near the country’s border with Uganda and South Sudan, is one of two refugee camps the UNHCR operates in the East African nation. The other, Dadaab, is located near Kenya’s border with Somalia.
Kagarura told the Blade that UNHCR created Block 13 within a section of the camp known as Kakuma 3 in May 2020.
…Kagarura on Tuesday noted to the Blade that LGBTQ refugees and asylum seekers who live in Kakuma have endured attacks, harassment and discrimination for years.[45]
[45] 'Two gay men burned in Kenya refugee camp attack', Lavers, M K, Washington Blade, 30 March 2021, 20210409154643
A March 2021 Thomson Reuters Foundation report also provided the following information which referred to earlier violent attacks on LGBTIQ refugees at the Kakuma refugee camp:
LGBT+ people living in a refugee camp in northwestern Kenya urged U.N. officials on Friday to move them to a safer area following a series of homophobic attacks by other residents and locals.
The refugees, who come from countries including Uganda, Burundi and the Democratic Republic of Congo, said a section of the Kakuma camp occupied by 135 LGBT+ refugees had been attacked at least five times since the start of the year.
In one incident last month, three gay men needed hospital treatment for burns after attackers set their bedding alight as they slept.
LGBT+ refugees have also been beaten, pelted with rocks and stabbed, said Gilbert Kagarura, spokesman for the camp’s “Block 13” area.
“We left our homes and came here to be safe, but even here we are hunted and attacked. We want to be moved to another area of camp,” said Gilbert Kagarura, who fled persecution in Uganda two years ago.
“Violence against LGBT+ people in Kakuma camp has been happening for years. Homophobia is ingrained here. The other refugees and community members simply look for excuses to come after us and attack us,” he said.
The U.N. refugee agency (UNHCR), which runs the Kakuma camp, said Kenyan police were investigating the suspected arson attack and that the victims had received psychological support.
It said relocation decisions are made on “an individual and case by case basis” following a thorough assessment jointly with Kenyan authorities and local partners.
“UNHCR has continued to engage individually with LGBTIQ+ refugees. Some 30 persons have been relocated to other areas of the camp over the past few months,” said a UNHCR statement emailed to the Thomson Reuters Foundation.
LGBT+ refugees said they want to be relocated as a group for safety reasons.
Over the last three years, LGBT+ refugees in Kakuma - a sprawling camp home to more than 160,000 people - have repeatedly complained about their security and have staged demonstrations to demand safe shelter.
In December 2018, the UNHCR relocated about 200 LGBT+ refugees from the camp to Nairobi as an emergency measure after a spate of violent attacks against them.
But Kenya requires most refugees to stay in designated camps and some of them were returned to Kakuma. New LGBT+ refugees are also mostly being sent there.
There are currently about 300 LGBT+ refugees in the camp in total, with the vast majority living in relative safety, according to the UNHCR, adding that more police had been deployed to areas where LGBT+ refugees reside.
Although gay sex is punishable with up to 14 years in jail in Kenya, the law is rarely enforced and the east African nation is seen as more tolerant than neighboring Uganda and Tanzania, though discrimination is widespread.[46]
[46] 'LGBT+ refugees call on U.N. for safe space after Kenya camp attacks', Bhalla, N, Thomson Reuters Foundation, 6 March 2021, 20210309104155
A November 2020 Voice of America report indicated that there had been a rise in attacks on LGBTIQ persons in Kenya since the beginning of the COVID-19 pandemic in March 2020:
Kenya has acknowledged that COVID-19 restrictions are fueling cases of gender-based-violence but has been less open on abuses against the LGBTQ community. Homosexuality is illegal in Kenya and activists say many are afraid to report abuse or get medical help because of stigma.
Twenty-eight year-old Rebecca Adhiambo’s family shunned her after discovering two years ago that she is a lesbian.
When her neighbors found out, she was insulted, evicted, and - in September - attacked.
She says she was on her way home from the market to prepare a meal after a long day of doing casual work in Eastleigh. Someone approached her from behind, a crowd gathered, and some were shouting that she should leave the neighborhood. They started beating her and threw away all that she bought at the market.
Said Athmani documents cases of attacks on the LGBTQ community. Since the COVID-19 outbreak began in March, he says there’s been a jump in cases of abuse.
“Curfew is in place, some people don’t go to work, so they stay in their locality. Our locality here is Pumwani, when people notice and recognize that in our neighborhood, we have LGBTQ+ persons, they start to abuse them, they start to victimize them, in a way they feel that they do not want them here,” Athmani said.
The Gay and Lesbian Coalition of Kenya (GALCK) says during the pandemic it has been logging up to 10 attacks per month on the LGBTQ community.
Kenya’s government raised an alarm on increased cases of gender-based-violence but has offered no targeted help for LGBTQ people.
Donna Awuor, the security coordinator at the Gay and Lesbian Coalition of Kenya, says it all boils down to acceptance.
“Inclusivity is still foreign to most of these mainstream organizations and they try to sideline us because they feel like we do not deserve to be in those spaces, that we do not deserve to get the opportunities or resources that are available because of who we are or how we identify,” Awuor said.
Kenya is considered among the most progressive African countries. But the country's High Court in 2019 upset activists by upholding a colonial-era law that punishes homosexual acts with up to 14 years in prison.[47]
[47] 'Kenya's LGBTQ Community Faces Increased Abuse During Pandemic', Ombuor, R, Voice of America (VOA), 24 November 2020, 20201128200325
An October 2020 report from Frontline Aids[48] referred to the impact that the criminalisation of same-sex sexual relations has on the treatment of LGBTIQ individuals in that country:
[48] Frontline Aids is a UK-based organisation which works ‘with marginalised people who are denied HIV prevention and treatment simply because of who they are and where they live’:
“The law has mostly been used to oppress us,” says Solomon Wambua, activist and coordinator of the Key Populations Consortium.
“When you are criminalised, someone can beat you up but you cannot go to the police because you are seen as a criminal. You cannot go to hospital for fear of outing yourself. Access to health services is limited in so many ways.”[49]
[49] 'Growing a movement: Uniting the Kenyan LGBTQ community', Frontline Aids, 2 October 2020, 20210409113432
An August 2020 Voice of America report provided the following information which also referred to LGBTIQ refugees at Kenya’s Kakuma refugee camp being subject to violent attacks:
LGBTQ refugees in Kenya's Kakuma refugee camp say they are subjected to violent attacks and destruction of property by other refugees and local Turkana people. Some have fled to Nairobi and accuse authorities of failing to prevent the attacks.
In a June video shared with a reporter, a crowd of people surround a group of LGBTQ refugees in Kenya’s Kakuma Refugee Camp and thrash them with stones and sticks.
Photos of bloodied LGBTQ refugees circulated on social media.
Transgender Ugandan refugee Doreen Andrews Kigongo was in the camp that day and confirmed the authenticity of the video.
Kigongo was among a group of LGBTQ refugees who were transferred to Kakuma in late 2019, after her Nairobi safe house was raided by police.
“I’m coming there in December, and other people told me, ‘Oh my god, you are going to die here," she said. "First of all, you’re trans. And you want to live that life, where you’re expressing as a trans person?’”
Another transgender Ugandan refugee, Anita Sebuuma, was among those attacked in the video and says that police were called but took hours to arrive.
At a safe house in Nairobi, Sebuuma shows a reporter a long belly gash and scalp and forehead scars.
Sebuuma said the wounds are from previous attacks by other refugees and locals who don’t want them in the camp.
Sebuuma said after a while, people got to know the house where they lived and started coming both day and night, throwing stones and threatening to kill them.
But East Africa’s LGBTQ refugees have few options.
Kenya is the only country in the region that accepts LGBTQ refugees but, homosexuality is still illegal and punishable by up to 14 years in prison.
Refugees and asylum seekers are required to stay in camps with exemptions given only on a case-by-case basis.
Just days after the June attack, the United Nations refugee agency (UNHCR) released a statement saying Kenyan authorities were sending five LGBTQ refugees in Nairobi back to Kakuma.
The five had been moved out of the camp in 2018 over threats to their safety.
The spokeswoman for UNHCR Kenya, Eujin Byun, said they have attempted to organize dialogue between refugees and community leaders.
“We have to find a solution, even temporarily. Because this violence is not acceptable. And for UNHCR, their well-being is the priority,” she said.
But LGBTQ refugee Kigongo notes if homophobic violence could be solved through talks, she would not hve had to leave Uganda.
Craig Paris is the executive director for the Refugee Coalition of East Africa. He said that few LGBTQ refugees stayed in camps until just a few years ago.
Police raids on safe houses increased, he said, and LGBTQ refugees demanded protection.
“But the problem came with visibility and security – general security around queer refugees – and, you know, the host community being homophobic itself,” he said.
Activists helped some of the LGBTQ refugees attacked in June get to safe houses in Nairobi.
But an estimated 300 LGBTQ refugees remain in Kakuma, where few of them feel welcome or safe.[50]
[50] 'Kenya’s LGBTQ Refugees Face Threats, Attacks at Kakuma Camp', Voice of America, 13 August 2020, 20200814150420
A June 2020 Associated Press report provided the following information regarding a Ugandan refugee who had been attacked in Nairobi for being homosexual:
When he was attacked by a mob for being gay, Martin Okello said the kicks and blows from his assailants came so fast that he couldn’t stop them or flee. He passed out and was left for dead in Nairobi’s low-income neighborhood of Kawangware.
Okello had fled to Kenya from his native Uganda to seek asylum and protection under the U.N. refugee agency, he said, “but for the time I have been here, I could say we have been facing so many insecurities.”
Before the attack, the 29-year-old former radio journalist had kept his sexual orientation a secret for months as he worked as an educator for the LGBT community at a clinic in Kawangware. Still, he never expected to be persecuted in Kenya.
“We try as much as possible to keep a low profile, but in one way or another, you find yourself having a high profile because you can’t deny you are an LGBTI,” he said. “So it just comes out, and when it comes out, someone is like, ‘Whoa! We can’t tolerate this in the community.’”[51]
[51] 'LGBT refugees find a haven in Kenya despite persecution', Odula, T, Associated Press, 20 June 2020, 20210408155027
The Associated Press report also stated that:
Uganda enacted anti-gay legislation in 2014, at one point calling for the death penalty for some homosexual offenses, although that law later was declared unconstitutional and jettisoned after international pressure.
Kenya is a rare regional haven. It is the only East African nation where someone can seek asylum and be registered as a refugee based on their LGBT status. And yet, there is still discrimination and harassment in Kenya. Gay sex is illegal, with sodomy punishable by up to 14 years in prison.[52]
[52] 'LGBT refugees find a haven in Kenya despite persecution', Odula, T, Associated Press, 20 June 2020, 20210408155027
A June 2020 article from Xtra Magazine, a Canada-based LGBTIQ publication, provided information regarding a documentary named I Am Samuel, which outlined the experience of a homosexual man in Kenya over a five year period. The article stated that:
I Am Samuel, which recently premiered at the Hot Docs festival and had its U.S. premiere at the Human Rights Watch Film Festival earlier this month, follows its titular subject, who grew up in rural Kenya where certain traditions (like men getting married to women and having children) are expected. Samuel is close to his mother, but his relationship with his father, a local pastor, is a little strained—mainly because his dad consistently implores him to find a wife. But after Samuel moves to Kenya’s capital, Nairobi, for work, he falls in love with Alex and finds belonging within a small queer community. The film, shot over five years, follows their love story as well as how Samuel’s family adjusts to discovering that he is gay.
For the unaware, Kenya represents a number of African nations that still operate under colonial-era laws. Although it is not illegal to be queer and to fall in love, queer intimacy and same-sex acts are criminalized. Coupled with prevailing anti-queer and -trans sentiments, LGBTQ and intersex people and their allies are often targets of verbal and physical assault, sexual violence and social marginalization. This is demonstrated in I Am Samuel by the inclusion of a graphic clip of a gay man, who is actually one of Samuel’s friends, being brutally beaten by a mob.
“We thought it was important for the wider community to look in the mirror to see the trauma and horror we inflict on our fellow citizens,” Murimi says about the decision to include the scene. “It is very wrong that human beings can do this to one another, and sometimes taking a step back and seeing what monsters we can be can hopefully create empathy and stop such violence.”
That violence leads many to live “double lives,” presenting as straight in public but building small queer communities in private. As Alex describes in the film, his own family grapple with his identity: “They might know the truth but they’re willing to believe the lie.”
“This is very common in Kenya,” Murimi adds, detailing how terms like “twin” and “best friend” are sometimes used to mask romantic partners. “African communities are closely knit and many parents find it hard to explain to their extended family and neighbours why their children do not conform to traditional expectations.”[53]
[53] 'This intimate documentary reveals what it’s like to be gay in Kenya', Anderson, T, Xtra Magazine, 25 June 2020, 20210409115518
A May 2020 Washington Post report provided the following information regarding the existing legislation in Kenya in relation to same-sex sexual relations and its enforcement:
Sexual minorities are persecuted in Uganda, where lawmakers have made serious attempts to institute the death penalty for gay sex. In Kenya, those acts are also illegal and theoretically punishable by up to 14 years in jail.
More commonly, the law is used by the police as a pretext to extort and harass members of the LGBT community. In Kenya, as in Uganda, outspoken local Christian ministers and foreign missionaries have used their pulpits to denounce homosexuality.[54]
[54] '‘We were so ready’: LGBT refugees in Kenya live in fear as global resettlement is put on hold', Bearak, M, Washington Post, 27 May 2020, 20210408161624
An April 2020 Thomson Reuters Foundation report stated that ‘[g]ay sex is punishable with up to 14 years in jail in Kenya although the law is rarely enforced.’[55] A March 2020 report from the Bay Area Reporter, a San Francisco-based LGBTIQ publication, stated that ‘[h]omosexuality is criminalized and socially unacceptable in Kenya’ and that ‘[u]nder Kenya's laws, LGBT people, mostly gay men, face 14 years in jail if convicted under penal code articles 162 and 165’.[56] A January 2020 NBC News report also referred to violent attacks on LGBTIQ refugees at Kenya’s Kakuma camp:
[55] 'Investigation after gay refugee found dead at U.N. refugee office in Kenya', Bhalla, N, Thomson Reuters Foundation, 13 April 2020, 20210408160724
[56] 'Funds running out, Kenya LGBT refugee program seeks help', Cassell, H, The Bay Area Reporter, 4 March 2020, 20200408155917
For years, Ugandan refugee Mbazira Moses has been typing out emails to dozens of international humanitarian organizations and United Nations officials with a message: LGBTQ refugees at the Kakuma Refugee Camp in Kenya need your help.
The Kakuma camp and nearby Kalobeyei Integrated Settlement, both operated by the U.N. Refugee Agency, or UNHCR, are together home to nearly 200,000 refugees from dozens of countries. Many, if not most, have fled overland from Kenya’s conflict-stricken neighbors: Uganda, South Sudan and Somalia.
But according to Moses and experts on refugees and migration, the lesbian, gay, bisexual, transgender and queer refugees in Kakuma – many of whom fled homophobic and transphobic violence in nearby Uganda – continue to face threats and violence from locals and other refugees for the simple reason that they are LGBTQ. While the situation for sexual and gender minorities may generally be more dire in neighboring countries, Kenya is still among the nearly 70 nations that criminalize homosexuality.
On Tuesday night, Moses sent out another such email: Over 50 queer refugees camped outside the UNHCR reception center at Kakuma for safety reasons were again attacked, this time by Turkana-speaking locals and other Kakuma refugees.
“They were kicked out by the UNHCR and forced into the homophobic community with other refugees," and then local residents from the area, the Turkana, "attacked them some time ago,” Moses wrote in the email sent to human rights officials and journalists.
“They fled to the reception center where they were denied entry," he wrote. "The two groups hate them badly.”
Moses alleged that the refugees were attacked with “knife stabs, stones and clubs,” and included images of people with head injuries. Police hesitated, the ambulance was slow, and the refugees fled through holes and over fences, Moses said. The Turkana locals allegedly blamed the gay refugees for a local drought. Seven refugees were injured.
Kakuma camp is “very hard to administer,” said Bruce Knotts, director of the Unitarian Universalist United Nations office, who has for decades worked in refugee advocacy and relief – including a visit to Kakuma years ago.
“You have got a handful of UNHCR officials, so bad things can happen, and bad things do happen in refugee camps – not only to LGBT people, but women and other people as well, so it’s unfortunately not surprising,” Knotts said.
In June 2018, Moses and Refugee Flag Kakuma, an LGBTQ rights group he leads at the camp, hosted its first gay pride event. The march attracted hundreds of Kakuma onlookers, but soon after it finished, a series of murderous threats were posted around the camp: Leave or be killed “one by one.”
The dire situation at the camp worsened in December 2018, when an attack on LGBTQ refugees at Kakuma injured 20 and was so brutal that UNHCR officials relocated hundreds of refugees to a gated school compound 450 miles south in Nairobi, where some remain today. And yet, according to Moses, new lesbian, gay, bisexual, transgender and queer refugees continue to arrive for registration at UNHCR offices in Kakuma and Nairobi.
In a WhatsApp message sent to NBC News on Friday, Moses said he and other members of Refugee Flag Kakuma question “the logic of returning and housing LGBT refugees in a place where others had been withdrawn because of insecurity.”
“Some of the 200 LGBT refugees who were relocated from Kakuma camp last year were arrested and returned to camp,” Moses said. “At the same time, some new ones have been reporting both in Nairobi and Kakuma. Those who report in Nairobi are always sent to Kakuma refugee camp.”
The staffers in UNHCR’s offices in Nairobi and Kakuma have been widely accused of soliciting and accepting bribes to speed the processing of refugee status applications, including by interviewees in an NBC News investigation last year about corruption at Kakuma and other Kenyan camps. The UNHCR strongly denied the allegations in that article.
LGBTQ refugees also routinely accuse the camp’s administrators of turning a blind eye – due to homophobia and transphobia – to their plight and to the continued violence they face.
In an interview with NBC News after the attack on the camp’s June 2018 pride event, Yvonne Ndege, a UNHCR Kenya spokesperson, said, “The community can sometimes feel isolated.”
"UNHCR and the government of Kenya with other relevant stakeholders are striving to promote the rights of all asylum-seekers and refugees and are ensuring partners are trained on how to work with LGBTI in a displacement context,” Ndege said. “Their rights as human beings shall be considered as such."
In a statement shared with NBC News on Monday, UNHCR spokesperson Dana Hughes acknowledged that 175 refugees and asylum seekers are located in and around Kakuma and said UNHCR is committed to providing them “necessary protection and support.”
“It is important to note that a number of LGBTI+ refugees and asylum seekers are residing among the community in Kakuma as well as in urban areas and have been able to live in relative safety, some for several years,” Hughes wrote, adding that UNHCR could not verify all reported anti-gay attacks, and that the agency has no control over whether third countries agree to resettle refugees and asylum seekers.[57]
[57] 'Gay refugees in Kenya report repeated attacks from locals', Fitzsimons, T, NBC News, 11 January 2020, 20210409120956
Hearing, credibility, findings and assessment
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 that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by suppliants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Kenya and accordingly his claims will be assessed against Kenya.
The applicant is currently in immigration detention. In the hearing, the applicant indicated that he was in criminal detention from July 2021 to December 2021. This was owing to a term of imprisonment after a fourth drink driving offence. The applicant is in immigration detention because he was denied a bridging visa.
The applicant indicated towards the beginning of the hearing that he now identifies as homosexual as opposed to bisexual.
The Tribunal has a number of credibility concerns with the applicant’s claims as to his sexuality.
At the commencement of the hearing the Tribunal indicated it would need to explore sensitive and intimate details of sexual activity and acknowledged the difficulty of giving this evidence and its personal nature. The Tribunal indicated, however, that it needed to be satisfied of key substantial claims and to explore personal and sensitive issues. The Tribunal was mindful of the sensitivity of questions asked and potential embarrassment and reluctance to reveal personal information.
The credibility concerns follow.
Firstly, there are a significant number of inconsistencies in evidence as between the applicant and [Mr A] regarding the details of their sexual relationship. [Mr A] gave evidence at the hearing of the Tribunal as currently constituted.
In relation to [Mr A], in the hearing he indicated that he does not currently hold a valid visa and has applied for a bridging visa based on a protection visa application, which is in turn based on his sexuality. For the record, [Mr A] indicated in hearing that the only same-sex relationship he has had in Australia has been with the applicant.
In the hearing [Mr A] indicated that the sexual relationship began with the applicant at the end of the period that he lived with the applicant in [Suburb 1] and continued when they moved together to [Suburb 2]. [Mr A] indicated that in [Suburb 2] sexual relations would mainly take place in his bedroom during the day when his girlfriend was out of the house. Less frequently, sexual relations would happen in the applicant’s room during evenings when [Mr A]’s girlfriend was out of the house. In these encounters [Mr A] would only stay in the applicant’s room for about 20 minutes and would not sleep there.
In contrast, on the applicant’s evidence, the sexual encounters with [Mr A] commenced when they moved to [Suburb 2], rather than commencing when they lived in [Suburb 1]. They would mainly occur in his own bedroom, and [Mr A] would often sleep in the applicant’s room. This is in contrast to [Mr A]’s evidence that he never slept in the applicant’s room. From the applicant’s prior evidence, the sexual encounters between the applicant and [Mr A] would occur on occasions in his room when [Mr A]’s girlfriend was in the house, in contrast to [Mr A]’s evidence that the encounters only occurred when the girlfriend was out of the house.
In response to inconsistencies, the applicant maintained his version of what occurred. He referred to the very impactful nature of them first having sex, which was the first occasion he had sex with a man and not easily forgotten. The representative made oral submissions indicating that potentially the witnesses have not placed the same weight on the relationships and therefore have mis-remembered aspects.
The written submission provided following the hearing deals with these inconsistencies, together with inconsistencies in relation to the sexual relationship with [Mr B] (the second credibility concern, below). It is submitted that the witnesses were required to remember extremely specific and objectively unimportant elements of the relationship. It is submitted that the inconsistencies are minor, particularly when taking into account the length of time that has passed since the relationships occurred.
It is submitted that the fact that the Federal Circuit Court determined that it was an error for the previously constituted Tribunal to determine that if the sexual relationships with two witnesses did not occur, it did not logically follow that the applicant could not be bisexual. It is submitted that if the Tribunal is not minded to accept that the applicant engaged in relationships with these witnesses, the Tribunal must separately evaluate probative evidence provided by the applicant as to his sexuality outside of his relationships with the two witnesses.
The Tribunal certainly does not expect perfect recollection of precise circumstances of a relationship and sexual encounters. However, there are numerous inconsistencies between the evidence of the applicant and [Mr A] as to details of their sexual relationship.
The Tribunal does not consider that, cumulatively considered, the inconsistencies between the applicant and [Mr A] are minor or matters easily confused. In which home the sexual relationship commenced, in whose bedroom sexual relations mainly occurred, and whether or not [Mr A] regularly slept in the applicant’s room are not insignificant contextual matters that the Tribunal does not consider would be completely misremembered by either the applicant or [Mr A], or that they would be confused about, if there was indeed a sexual relationship.
The multiple inconsistencies on their own cause the Tribunal to disbelieve that the applicant was in a sexual relationship with [Mr A] even leaving aside the impact of the other credibility concerns identified below.
Secondly, there are key inconsistencies as to details of the claimed first sexual encounter between the applicant and [Mr B].
The applicant’s evidence, including in the Tribunal hearing, was that the first sexual encounter with [Mr B] occurred when the applicant was visiting his home and at a certain point asked to have a nap in [Mr B]’s room. [Mr B] later came into the room and sex was initiated. In contrast, in the original Tribunal hearing, [Mr B] stated that in the first sexual encounter he was already in the bedroom when the applicant came in. He was asked by the Member if it was possible that the applicant went to the bedroom first and was followed in by [Mr B]; the response by [Mr B] was that he was the one who went in first.
In the hearing before the current Tribunal, unprompted by details of this earlier evidence, [Mr B] indicated that the applicant was the one who went into the room first. This was after they both decided to go into the bedroom to have sex, with [Mr B] following the applicant into the room for this purpose. It was put to [Mr A] that this evidence was inconsistent with the clear evidence he had given in the prior Tribunal hearing, including confirming that he had gone into the room first. In response, [Mr B] indicated that remembering is difficult because it was a long time ago and they had been drinking.
The Tribunal put to the applicant in the hearing that even on the new version of [Mr B]’s evidence that the applicant had gone into the room first, this was not for the purpose of the applicant having a nap but for the purpose of having sex with [Mr B], who followed him into the room. In response, the applicant indicates that he is not sure what was in [Mr B]’s mind but they were already attracted to each other.
The Tribunal maintains credibility concerns in relation to this evidence. [Mr B] has changed the very firm evidence given in the original Tribunal hearing that he went into the room first, telling the currently constituted Tribunal at hearing that the applicant went into the room first. The Tribunal has concerns that the evidence given in the most recent hearing has been manufactured to overcome the clear inconsistency with the evidence given in the original Tribunal hearing. The Tribunal has doubts that [Mr B] is confused due to the passage of time or the drinking of alcohol given the firmness of [Mr B]’s evidence in the original hearing that he went into the bedroom first.
In any event, there remains the inconsistency between the evidence [Mr B] gave in the most recent hearing that they both went into the bedroom to have sex, and his prior evidence that he went into the bedroom to have a nap.
The Tribunal notes the oral submission of the applicant’s representative that the applicant has placed more weight on the sexual encounter and has a more accurate memory of it. The Tribunal notes the written submission provided after the hearing that the inconsistencies are minor and the detail of the encounters could be confused given the passage of time.
The Tribunal accepts that this concern is delving into the minutiae of the first sexual encounter and that there is potential for confusion by both the applicant and the witness as to details. However, both the applicant and [Mr B] in the original Tribunal hearing were quite clear as to their evidence as to who entered the bedroom first and for what purpose. [Mr B] was asked to confirm his recollection that he went into the bedroom first and he confirmed that that was the case.
Credibility concerns identified as to this first sexual encounter between the applicant and [Mr B] are reinforced by the next credibility concern.
Thirdly, in relation to the lead up to the sexual encounter with [Mr B], there is an inconsistency in evidence as to what caused the applicant and [Mr B] to initiate the sexual encounter and in relation to what made them both understand that they were sexually interested in men. In the original hearing, [Mr B] indicated that he knew that the applicant was open to a relationship because there was discussion about them joining groups like Mardi Gras online. In the most recent hearing, the applicant initially said that there was discussion in advance of their sexual encounter about them both being interested in men and about investigating Mardi Gras. The applicant then changed this evidence to say that the investigation into Mardi Gras did not occur until after they had sex the first time.
The Tribunal notes that the inconsistency is compounded by evidence that the applicant gave in the original hearing in May 2022, which was some time after their first sexual encounter, that he did not know what Mardi Gras was.
In response, the applicant indicated that although he had some prior knowledge of Mardi Gras, it did not come to the forefront of his mind in the original Tribunal hearing.
The Tribunal has some limited credibility concerns as to the shifting evidence regarding whether the applicant and [Mr B] explored an interest in Mardi Gras before or after they had their first sexual encounter, accepting that this is an issue of relative detail. The Tribunal has more significant credibility concerns as to the inconsistency between claims of an exploration of Mardi Gras at around the time of this claimed first sexual encounter and evidence by the applicant at the original Tribunal hearing that he did not know what Mardi Gras was.
The Tribunal considers it most likely that if the applicant had investigated Mardi Gras, which the Tribunal accepts is plausible if he was homosexual or bisexual and had arrived in Sydney in 2018, he would remember, when specifically prompted by the prior Tribunal Member, whether he was aware of Mardi Gras.
This evidence is undermining of the applicant’s credibility in relation to his evidence about his sexuality and about having a sexual relationship with [Mr B].
Fourthly, there is an inconsistency and disconnect between the applicant’s written claims that he used to delete his phone conversations with [Mr A] and [Mr B] as he did not want his girlfriend to see, and evidence by both these witnesses as to whether the applicant sent any text messages that would have disclosed the relationships.
[Mr A]’s evidence in the hearing was that the applicant did not send any intimate message or messages that would have indicated a sexual relationship and he therefore has no text message record on his mobile phone that would corroborate this. [Mr B] was not clear if there were any intimate messages but indicated that in any event, he has a new mobile phone and he cannot provide earlier messages from the applicant.
When, in the hearing, the Tribunal explored with the applicant what intimate messages he may have sent to [Mr A] and [Mr B], he initially indicated that he would not send messages that would disclose a relationship, but then indicated that he might say that he missed them. The representative asked the Tribunal to clarify whether the applicant had deleted all text message correspondence between the applicant and the two individuals. The Tribunal asked the applicant this question and he indicated that he had deleted all communications.
The Tribunal asked the applicant why he would delete all communication if it was mostly not indicating a relationship. The applicant maintained that he wanted to be sure that his girlfriend did not suspect a relationship.
The Tribunal has difficulty accepting that if there was no intimate text message correspondence, there would be any need for the applicant to have deleted messages. The Tribunal’s doubts as to the applicant sending anything intimate to either individual are reinforced by [Mr A] indicating that the applicant did not send him anything intimate or incriminating in regard to the relationship.
Fifthly, the applicant was vague and non-specific in the original Tribunal hearing as to LGBT organisations or groups that had been investigated.
In the original Tribunal hearing, the applicant indicated that he was thinking about how he could get more information and more connection with the LGBT community and that he joined some of the groups. The applicant was asked what groups he joined. The applicant responded ‘LGBT’. The applicant was asked if he had joined some of these groups and he said ‘yes’. He stated that he wanted to get more information and learn how to be comfortable with someone that he loves.
The Member sought clarification about whether the applicant had already joined these communities. The applicant responded that he had. The applicant was then asked which communities he had joined and he responded again, ‘LGBT’. He was asked how he joined them. The applicant indicated that he followed these groups and ‘we are a member’. The applicant was asked for the name of the group. The applicant responded, ‘it is just called ‘LGBIT’. He then said he thought it was ‘LBGTQ or something like that – on Instagram’.
The Tribunal noted to the applicant that this evidence was vague and non-specific as to which LGBT organisations that he had joined, with only generic names provided. It was indicated that the way this evidence was given cast doubt on the applicant having been involved in specific groups. In response, the applicant indicated that he knew about LGBT groups and was following them. The representative submitted orally there should not be adverse interest drawn as to different acronyms. The Tribunal indicated that this was not the source of concern; rather, the Tribunal was concerned that the applicant had not provided the name of any specific groups. The representative indicated that some of the groups comprise only the generic acronym. The Tribunal accepts this is the case but remains concerned at the lack of specificity about particular groups the applicant was involved with, especially as there was no mention of Mardi Gras, and at the original hearing the applicant had no knowledge of Mardi Gras.
In the most recent hearing the Tribunal put to the applicant that his failure to indicate a knowledge of Mardi Gras at the original hearing could compound concerns as to a lack of genuine exploration of LGBT groups and organisations at the time of the original hearing. The applicant indicated that he did not have anything further to say on this.
In the written submission provided following the hearing, it is indicated that the applicant was not vague or imprecise when identifying relevant groups, and the more generic names given were a product of misinterpretation as to what ‘communities’ the Member was seeking details of. It is also indicated that a number of the groups have names that are generic.
The Tribunal does not expect absolute precision and detail regarding the applicant’s investigation of LGBT organisations and groups. The Tribunal accepts that some organisations have only generic names. Nevertheless, the Tribunal maintains some concern about the applicant’s credibility as a result of the generality and vagueness of his evidence in the original hearing, including in the context of him indicating he had no knowledge of Mardi Gras.
Sixthly, the applicant did not provide a narrative of his childhood and adulthood in Kenya, up until coming to Australia at the age of [Age], that demonstrated conflict or confusion in relation to him having significant sexual interest in men. The applicant’s written claims are reasonably detailed regarding growing up in Kenya and the relationships he had into adulthood. Yet, the written claims provide no account of sexual confusion during puberty, and there is no indication of him being attracted to other boys until his interest in one individual, [Mr C], at the age of 23 or 24.
The applicant did indicate in the hearing that he had an emotional connection in his youth with boys, rather than a sexual connection.
The applicant indicated in hearing that [Mr C] was the only male in Kenya that he had a sexual interest in. The Tribunal asked the applicant what attracted him to [Mr C]. The applicant referred to his dress sense being a key source of attraction. The Tribunal asked the applicant if [Mr C]’s personality was a factor and he indicated that it was.
The Tribunal asked the applicant about his level of confusion and how unsettled he felt growing up, and whether he realised he was different during this period. The applicant indicated that he felt ‘weird’.
The written submission provided after the hearing deals with the issue of the applicant not appearing to have developed sexual attraction to men during puberty. It is acknowledged that this may generally be the case but the applicant’s circumstances need to be considered, given that he was in a country where same-sex relations are considered to be entirely unacceptable and are criminalised. It is possible that he was not aware of the idea of sexual attraction to men being an option. The applicant gave evidence of feelings of ‘closeness’ to boys rather than ‘attraction’. It is submitted that this description of the applicant is entirely reasonable and demonstrates the journey he was on to discover his sexuality, which is different for every person. The submission also argues that the fact that the applicant did not develop a sexual attraction to men during his puberty has no bearing on his credibility.
The Tribunal accepts that human sexuality is complex. The Tribunal is conscious of not imposing stereotypes when assessing a person’s sexuality. However, the totality of the applicant’s evidence does not provide a narrative of his youth, puberty and adulthood in Kenya, up until coming to Australia at the age of [Age], that was overly persuasive in terms of confusion and conflict regarding his sexual identity and sexual interest in men, when sexual interest mostly develops during puberty, particularly given that he was living in a culture that reviles bisexuality and homosexuality. The Tribunal notes the applicant has had multiple relationships with women in Kenya and Australia but now indicates that he identifies as homosexual rather than bisexual. The Tribunal has some concerns about the applicant now having an exclusive interest in men, given that he stated that he only had a sexual interest in one male in Kenya, where he lived until the age of [Age].
These matters are given some limited adverse weight. However, these adverse credibility findings are not determinative, but are considered cumulatively together with other matters.
Before considering these six credibility concerns further, the Tribunal notes the following.
The representative in oral submissions conceded that there were significant inconsistencies in terms of the claimed sexual encounters between the applicant and [Mr A]. Nevertheless, it was argued that even if the sexual encounters with the witnesses had not occurred, the applicant had otherwise provided a believable account of his sexuality. The Tribunal asked the applicant if he was conceding that the sexual encounters with the two witnesses did not in fact occur. He said he was not.
The Tribunal firmly disbelieves claims by the applicant of sexual encounters in Australia with [Mr A] and [Mr B]. The Tribunal acknowledges the possibility of the applicant having been bisexual or homosexual without those encounters having occurred. However, the fact that the applicant has concocted sexual encounters in collaboration with two witnesses is significantly undermining of his broader credibility as to his sexuality. These credibility concerns are compounded by the cumulative impact of the other credibility concerns identified, which the Tribunal acknowledges are less significant.
Considering the cumulative impact of the credibility issues outlined, the Tribunal is not satisfied that the applicant is a truthful or credible witness and it cannot be satisfied as to the substantive claims as to his sexuality.
The Tribunal is not satisfied that the applicant is homosexual or bisexual. The Tribunal is not satisfied that the applicant has engaged in any same-sex activity in Australia with either the two witnesses or the two individuals in criminal custody and immigration detention that the applicant has referred to. Other than the medical reports discussed below, there is no independent corroborative evidence of this sexual activity. The Tribunal’s cumulative credibility concerns also contribute to its disbelief about the applicant’s claims of sexual activity with the two individuals in prison and detention.
In making these findings, the Tribunal has taken into account corroborative evidence of the applicant from 2022 concerning his disclosure to medical professionals that he was conflicted about his sexuality. It further notes the report by the applicant to a doctor on 5 August 2022 indicating that anal pain had occurred in the previous two weeks, with the applicant reporting that he had had receptive anal sex the previous year.
The Tribunal put to the applicant in hearing that given its consideration of all of the evidence and its credibility concerns, it could form the view that these claims to medical professionals were untruthfully constructed to support a claim for the protection visa. It was maintained that the reports are genuine.
In relation to the complaint of anal pain, the Tribunal questioned why the applicant would consider that sexual activity more than six months earlier was the cause of this pain, when the medical report dated August 2022 indicated that the pain had only occurred for the two weeks prior. In response, the applicant indicated the pain had in fact occurred for about a month prior to the consultation. The Tribunal put to the applicant that this still does not explain why sexual activity many months before would be a reasonable cause of the pain.
The Tribunal also asked the applicant why his doctor was worried (as written claims indicate) that the cause might be cancer and why he did not have the appropriate screening. In response, the applicant indicated that this was because the pain got better.
The written submission provided following the hearing indicates that the doctor wrote ‘?Could be the cause?’, in relation to the applicant disclosing that he had had anal sex. It is therefore submitted that the doctor indicated that this could be the cause. However, as the applicant indicated in his statement that the doctor stated that that would not be the cause, the Tribunal considers that the question marks in the notation are more reflective of the applicant asking if anal sex could be the cause of the pain.
It is also noted that these health records have not previously been obtained by his legal representatives and it is unlikely that the applicant would have been cognisant that this information would likely be admitted as evidence in protection proceedings.
In relation to this issue, the Tribunal has concerns, given all the credibility issues identified, that the two witnesses have provided untruthful evidence and that there has been a well-organised, coordinated attempt to concoct claims for protection, and it remains concerned at the truthfulness of the claimed same-sex activity report to a doctor.
The medical evidence does not overcome the cumulative impact of the credibility concerns identified.
The Tribunal has also taken into account evidence provided just before the Tribunal hearing in April 2023 of the applicant belonging to LGBT online groups and evidence of watching the 2023 Mardi Gras parade online and has watched gay themed television shows.
In the written submission provided following hearing, comments are made as to the Tribunal’s concerns that this evidence may have been constructed to strengthen claims for protection given the delay in the provision of this information for years after arriving in Australia. In response, it is submitted that the applicant has provided evidence of his slow and believable journey in terms of identifying as homosexual, making plausible the delay in the applicant engaging in and providing evidence of involvement with LGBT groups and activities.
The Tribunal notes the submissions but this evidence does not persuade the Tribunal that the applicant is genuinely homosexual or bisexual in the context of the cumulative credibility issues identified.
The Tribunal is not satisfied that on return to Kenya the applicant would interact sexually in any way with men such that he would be identified as homosexual or bisexual. The Tribunal is not satisfied that the applicant would be identified as homosexual or bisexual such as to lead to a real chance of him being subject to serious or significant harm.
Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a reason set out in s 5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Kenya, there is a real risk of him suffering significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is 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) on the basis of 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 criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David McCulloch
MemberAttachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
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.
…
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
0
7
0