2305726 (Refugee)

[2024] AATA 4427

2305726 (Refugee) [2024] AATA 4427 (11 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2305726

COUNTRY OF REFERENCE:                   Kenya

MEMBER:David McCulloch

DATE:11 September 2024

PLACE OF DECISION:  Sydney

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

Statement made on 11 September 2024 at 8:32am

CATCHWORDS

REFUGEE – protection visa – Kenya – religion – apostasy – renouncing Islam – fear of killing – attacks by Al Shabaab – inconsistent evidence – credibility – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424AA, 499
Migration Regulations 1994, Schedule 2

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (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 275       

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 March 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Kenya, applied for the visa on 22 April 2016. The delegate refused to grant the visa.

3. The applicant was invited to an interview with the delegate and requested a postponement on medical grounds. A request for further supporting medical evidence was made but nothing provided; nevertheless, the postponement request was granted. The applicant was requested to attend another interview. The applicant subsequently requested for the interview to be postponed on medical grounds. No evidence was provided to support assertions as to the applicant’s poor mental health. The request to postpone the interview was declined and the delegate made the decision without interviewing the applicant.

4. The applicant appeared before the Tribunal on 28 August 2024 at 10am to give evidence and present arguments. The Tribunal also received oral evidence from [Partner A], the applicant’s partner.

   CRITERIA FOR A PROTECTION VISA

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

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

7. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

8. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.

9. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is the credibility of the applicant and whether, on accepted claims, protection criteria are met. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background and claims

12. The delegate’s decision provides the following information about the applicant’s migration history:

Date	Event details
7 April 2014	Submitted an application for a subclass FA-600 Tourist Stream Visitor visa
9 May 2014	Granted a subclass FA-600 Tourist Stream Visitor visa
[February] 2015	Departed Kenya via Jomo Kenyatta Airport in Nairobi
[Later in] February 2015	Arrived in Australia
19 March 2015	Submitted an application for a subclass TU-572 Vocational Education and Training Sector visa
23 May 2015	Subclass TU-572 Vocational Education and Training Sector visa application refused
13 April 2015	Submitted an appeal for the Department’s decision to refuse his TU-572 Vocational Education and Training Sector visa application to be reviewed by the Migration Revue Tribunal (MRT)
9 June 2015	The MRT affirmed the Department’s decision to refuse the TU-572 Vocational Education and Training Sector visa application
[June] 2015	Submitted an application for Ministerial Intervention
[April] 2016	Ministerial Intervention outcome – not referred
28 April 2016	Submitted an application for a XA-866 Permanent Protection Visa (PV)
27 August 2020	Submitted an application for a Combined subclass UK-820 Temporary Partner visa and subclass UK-820 Temporary Partner visa
28 August 2020	Combined subclass UK-820 Temporary Partner visa and subclass UK-820 Temporary Partner visa application deemed invalid
11 September 2020	Submitted an application for a Combined subclass UK-820 Temporary Partner visa and subclass UK-820 Temporary Partner visa
14 September 2020	Combined subclass UK-820 Temporary Partner visa and subclass UK-820 Temporary Partner visa application deemed invalid
14 November 2022	Submitted an application for a Combined subclass UK-820 Temporary Partner visa and subclass BS-801 Permanent Partner visa
18 November 2022	Combined subclass UK-820 Temporary Partner visa and subclass BS-801 Permanent Partner visa deemed invalid
24 January 2023	Submitted an application for a Combined subclass UK-820 Temporary Partner visa and subclass BS-801 Permanent Partner visa

1. The application forms for the protection visa include the following information about the applicant. The applicant was born on [date] in [Town 1], Western province, Kenya. The applicant speaks, reads and writes English, Swahili and Luwya. The applicant belongs to the Bukusu ethnic group and is a Catholic. The applicant lists his occupation as [an occupation 1]. The applicant has never been married or in a de facto relationship. The applicant lists both parents, [and specified family members] living in Kenya. The applicant talks with relatives on the phone once a week. The applicant travelled to Australia legally.

2. From birth until [specified year] the applicant lists living at [his home] Village, [in Town 1]. From [specified year] until February 2001 the applicant lived at [University 1]. From February 2001 until February 2015 the applicant lived at an address in Nairobi City.

3. In terms of education, the applicant completed his secondary education in [specified year]. From [a later year] until December 2001 the applicant studied a [qualification] in [occupation 1] at [University 1], which he completed. In Australia from March 2015 until June 2015 the applicant studied a [further course] from which he withdrew.

4. In terms of employment, from February 2002 until March 2010 the applicant worked as [an occupation 1] at a government [agency 1]. From March 2010 until February 2015 the applicant worked as [an occupation 1] at [an agency 2]. From February 2014 until June 2014 the applicant worked part time as [an occupation 1] in [an occupation 2 business], named [Employer 1] located in capital [Suburb 1], [Location 1].

5. The application form asks the applicant why he left his country. The applicant claimed he had been threatened by Muslim leaders as a result of him abandoning Islam. It was not life‑threatening at that time. The closest the applicant faced death was an attack on the shopping mall in Nairobi. On arrival in Australia the applicant had peace of mind and forgot about threats on his life, even enrolling in school. However, at Easter everything changed with the shooting of the applicant’s colleague. The attachment extracted below is referred to.

6. The applicant indicates that if he returns to Kenya he will be shot dead by Al‑Shabaab who have been trailing him ever since he stopped being a Muslim. He has already lost his business and the manager to the group. The manager was asked several times about the applicant’s location and was not cooperative. Eventually he was shot dead.

7. The applicant provided a statement as part of the 2016 application as follows (not corrected for spelling or grammar):

   My name is [applicant’s name] born on [date]. I come from a family of [number of children] in the family. I am [an occupation 1] by profession and been running a business under the name [Business 1] since 2010.

   I was a Catholic since childhood but converted to Islam in [1995]. My Muslim name is [Alias 1] as given by [a named Sheikh].

   I stopped being a Muslim in 2009 after the religion was associated with terror and the Kenya Government openly discriminated Muslims. It was difficult even to get employed because of the name [Alias 1]. I was a very active member heading youth groups and organising for classes for young Muslims. I never missed any Friday going to the mosque and was once approached by a man called [name] who wanted me to join his Jihad activities. I later learnt that he was associated with Al-Shabaab which is a terrorist group. This was in Nairobi’s [Mosque 1] in March 2009. He said that he admired my dedication to the religion and its philosophy. He told me that Islam requires faithful like me to spread the religion for the sake of God. He promised that if I helped to spread the faith I would be given a car a house and money. Al-Shabaab became a very wealthy and notorious group.

   Reluctantly, I went with him to Garissa which is in the northern part of Kenya where he said I needed training so that I could be able to teach in the youth classes. It is here that I met other ten teachers but the lessons they taught didn’t augur well with me. I was to use any means possible even if it meant death to further the religion. It is from this meeting that I stopped being a Muslim. This was in the month of June 2009. I stopped attending prayers and even joining other Muslims in fasting during the holy month of Ramadhan. I gave up on religion all together and concentrated on personal growth. I told the Sheik that am no longer interested in Islam and he didn’t take it well saying I will be punished if I deserted the faith.

   I didn’t take the threat serious till 2014 when people started trailing me in Nairobi and some would come to my business and ask for my whereabouts. On the day Al-Shabaab attacked a shopping mall in Kenya, I was supposed to have been working on that weekend in 2014 but fortunately had been transferred to another branch. I escaped death narrowly because more than 150 people died.

   I came to Australia [in] February, 2015 on a tourist visa. I lost my passport on that night from the airport. I applied for a Student visa and was denied and went through MRT and Ministerial Intervention all with negative results. I have not applied for a protection visa because I felt safe when I was in Australia and there was nothing life threatening. But on Easter Friday some men shot my business manager after he told them he doesn’t know where I went. He died while undergoing treatment in [a named] Hospital on [a specified day].

   It is from this incident that I feel I am at serious risk and my going back to the country is not advisable and therefore seek protection from the Australian Government. The Kenyan government lacks the capacity to protect me and has lost many citizens even innocent ones to the terror group. Recently the country lost close to 200 soldiers to the group. It lacks capacity to protect me owing to poor intelligence, resources and my not being a politician.

   As I am seen to have deserted the faith, they will hunt me to the end of the earth and will never leave me alone. Al-Shabaab are everywhere and they have even infiltrated Police circles with members being secretive affiliates and supporters of this group. As such the police cannot protect me. It is clear to me that I am a targeted individual rather than a bystander of general and collective violence due to my previous status within this group.

8. The applicant provided an additional Statutory Declaration dated 4 January 2023 which provided as follows (not corrected for spelling or grammar):

   I converted to Islam [in] February 1995 at [location] located in [Town 1] County.

   My reason for conversion was related to attempted sodomy by one of Catholic priests and the brotherhood offered to give me by [names] [handwriting not clear]

   I was made to teach Madrasas (children) because of my aptitude and interest in Islam

   Unfortunately a group of extremists the Al Shababb asked me to introduce to the teachings violence and punishing the Kafir (those opposed to Islam)

   I declined and suffered the consequences of losing my [business 1] because of death of my principal assistant

9. The applicant provided the following additional statement on 22 August 2024 (not corrected for spelling or grammar):

   My name is [applicant’s name] born on [date] in Kenya. I currently live [at address] with my lovely partner [named] with [number] children namely, [named]. I am [an occupation 2] and [occupation 3] by specialisation with over 15 years of experience working with the government, in private practice and [other agencies].

   I arrived in Australia [in February 2015] on a visitor subclass 600 [details deleted]. [That day] when checking in was asked for photo identification. That’s when I realised that I didn’t have my passport which had been checked at the airport. It was very difficult for me as I couldn’t access basic services like even banking. I reported the issue to [a named] Police station the following day and got a statutory declaration. I visited the airport the following day and inquired the lost and found items but to no avail.

   I touched base with the Kenya High Commission regarding replacement of the document who are the authority concerned and advised on the requisites that included birth certificate, stat Dec, Kenyan witness national identification and a completed passport application form. I complied with their requirements and within a week had mailed them to the Kenya High Commission. Unlike other Embassies because of security concerns, the commission does not process passports. They are done from Kenya at the passport process control centre and as such, the embassy is just a conduit and has no control over processing time.

   RELIGIOUS ACTIVITIES

   I was born in a catholic family and religiously attended mass and adhered to the teachings. In [grade] I went to a boarding schoo in [year]. The  School was called [School 1], which was very strict on religion and following numerous rules to the book. It was here that I became an alter boy till [year] and helped the priests during church services. I finished [grade] [in specified year] and volunteered in dispensary operated by [catholic] priests but never lasted a week. The head of the priests tried to sodomize me and I totally quit catholism.

   In the year 1995, I converted to Islam and was actively involved in religious activities among them teaching children (Madrasa) refer to attached document 2 on Al-Shabaab teaching syllabus in the Quran. In [year] just before going to University for my undergraduate, [Mr A] a [professional], running the [Town 1] [business 1] and [related] services with his wife [named] who was the [occupation 2] approached me. I had initially volunteered in their property when I was in [grade] and regularly attended prayers together in the local mosque. In the company of other sheikhs, they asked that there was need to change aspects of training to emphasize the Sunni aspects of Islam (see attachment). This training was majorly salafilism. Salafi Muslims oppose bid’a (religious innovation) and support the implementation of sharia (Islamic law). In its approach to politics, the Salafi movement is sometimes divided by Western academics and journalists into three categories: the largest group being the purists (or quietists), who avoid politics; the second largest group being the activists, who maintain regular involvement in politics; and the third group being the jihadists, who form a minority and advocate armed struggle to restore the early Islamic movement. In legal matters, Salafis usually advocate ijtihad (independent reasoning) and oppose taqlid (adherence) to the four or fice schools (madhahib) of Islamic jurisprudence while some remain largely faithful to them, but do not restrict themselves to the “final” edicts of any specific madhhab. This meant reverting to training towards purism akin to the Christian’s Old Testament. I made a decision not to teach this tenets as they centred on radicalisation.

   SAFETY IMPLICATIONS

   My safety concerns started when I registered my sole proprietor business after my [occupation 2] degree in 2007  after completing my [occupation 2] degree from the neighbouring country. The university is located almost [distance away]. This would make me untraceable and the telephone network is different from Kenya. My line while in Kenya was from service provider called safaricom while the one in [Country 1] was [named]. I was safe when was out of the country for the 4 years.

   When I completed my internship, (find-attached document) I worked for the government in the [Authority 1] in the Northern part of the country as the superintendent [occupation 2] in [an agency 1] called [name] in [District 1]. It was here that I was seriously traumatised with the abduction of my four colleagues working in the [same agency] who had gone [for a project]. I was lucky I was not in the team because I had gone to supervise restocking of facilities within the district. I also was at Westgate during the attacks but hid in the toilets but lost two of my colleagues

   My serious safety concerns after the registration of my business started when suspicious clients would visit my premises. They always inquired of my whereabouts from my assistant [named] and sometimes without knocking, entered the [private work] rooms. After several attempts and frustration, he was shot within close range and nothing was taken from the facility. This was during the time  I was in Australia. My brother [named] who had close resemblance with me was shot by some person who said Allah Hu Akbar in December 2021. The term in Islam  means God is great and acknowledges success when the group has achieved victory.

   PLEA

   In reference to the attached documents, I would want your consideration of how grave the situation is. I have tabulated the number of attacks on both police officers, the army and private individuals. Data indicates that security operatives cannot match the militia group and who are well organised and believe in rewards in killing Christians, deserters or any person that appears to take a different opinion.

   Something worth noting is that the group operates under high secrecy and even involves the Kenya government’s security personnel. With business in charcoal, collecting taxes in larger Somali ,Sudan, Ethiopia and mining in DR Congo, it’s a force to reckon. Notwithstanding international faction of AL QAEDA running the Arab faction.

   I know my life would be in grave danger having heard from [Mr B] who was my colleague teaching Madras and later deserted the group and worked in [Camp 1] refugee camp until he was abducted in 2014. He was paraded in public, forced to reconvert to Islam, given a Muslim woman, and forced to marry her. I have settled here with new family and undergone counselling with great mental heal growth. Im no longer on prescription medication and settling very well apart from normal PTSD.

   I request your honour that you give me a second chance while I faithfully strive towards reaching my potential and an example as a role model to any asylum seekers saved by your department.

1. The attachments referred to in this statement were not in fact attached to what the applicant provided to the Tribunal. The Tribunal gave the time following the hearing to provide the attachments. The applicant did not respond within the timeframe requested or thereafter.

2. The applicant provided the following relevant documents to the Department:

   ·Certificate of Reversion to Islam, [detail deleted] issued [in] February 1995, indicating the reversion of the applicant to Islam [in] February 1995.

   ·Police Clearance Certificate for [Alias 1] dated [in] June 2021.

   ·Report from [a named medical centre], dated 2 March 2022, indicating that the applicant has an adjustment disorder related to acute grief. This is indicated to be a trigger for PTSD. It indicates he may require some leave and is getting some counselling.

   ·Prescription for the applicant dated 2 March 2022 for diazepam.

3. The applicant provided to the Tribunal on 21 August 2024:

   ·a spreadsheet showing what appears to be multiple instances of harm, mostly claimed to be perpetrated by Al-Shabaab. Internet links are provided as the sources of information.

   ·Update Briefing, International Crisis Group dated 25 September 2014, Kenya: Al‑Shabaab – Closer to Home.

   Independent information

4. For the purpose of this decision, the Tribunal made a research request of the Country of Origin Information Services section of the Department of Home Affairs (COIS). The following response was provided on 20 August 2024 (additional reading references omitted):

   PLEASE OUTLINE THE CURRENT STATUS AND OPERATIONS OF AL-SHABAAB IN KENYA PARTICULARLY THE EXTENT TO WHICH THEY ARE ENGAGING IN HARMFUL ACTIVITY.

   COIS located recent information on the current status and operations of the Somalia‑based militant group Al-Shabaab in Kenya. Country information indicates that, since 2011, Al‑Shabaab-related insecurity continues in Kenya with a number of attacks being carried out on Kenyan soil. Al-Shabaab has a history of targeted Kenyan military personnel, civilians, infrastructure and religious groups. In June 2023, Kenya’s Defence Ministry pledged the withdrawal of Kenyan troops from Somalia by the end of 2024.

   COIS published two Q&A reports in May 2012 and October 2019 which outline background information on Al-Shabaab. Please see Additional Reading for further information.

   A July 2023 Institute for Security Studies article highlights counter-offensive operations against Al-Shabaab in Somalia resulted in Al-Shabaab militants fleeing to neighbouring countries such as a Kenya. The deployment of Kenya Defence Force (KDF) troops into Somalia since 2011 to fight against the militant group has instigated Al-Shabaab attacks throughout Kenya:

   In the past three weeks, over 30 security force officers have been killed by improvised explosive devices (IEDs) in more than 10 attacks across north‑eastern Kenya’s Garissa and Lamu counties. The violent extremist group Al‑Shabaab is believed to be behind these and other attacks that have occurred over several years.

   […]

   IEDs have become al-Shabaab’s preferred weapons in Kenya and Somalia due to their portability, easy assembling, devastating impact on vehicles, and the fear they instil in road users. Between 13 and 25 June, the attacks became deadlier, resulting in 20 deaths of KDF soldiers, officers travelling in public service vehicles, and civilians in Lamu and Mandera counties.

   After the KDF entered Somalia in 2011 to help fight al-Shabaab, the group demanded Kenya’s unconditional withdrawal. The KDF displaced the terrorist group from the Kismayu port in southern Somalia and other key towns, and after that Kenya’s forces joined the African Union’s (AU) peace support mission in Somalia.

   Kenya is one of the key regional partners in Somalia’s stabilisation and reconstruction efforts. Since 2011, al-Shabaab has retaliated by carrying out devastating attacks in Kenya’s frontier counties and against critical infrastructure in its major cities. The group also recruits local youth by capitalising on discontent and discourses of real and perceived historical injustice and underdevelopment in Muslim-majority counties.

   Kenyan security experts believe the recent surge in attacks could be due to counter-offensives in Somalia by the Somali National Army, KDF, AU peace mission and international partners’ drone attacks. These operations have put al-Shabaab on the back foot, forcing the extremists to take refuge in neighbouring countries. This collaborative effort targeting Somalia’s Jubaland and Southwest states has killed over 3 000 insurgents in Galmadug and Hirshabelle.

   Many militants have been displaced or have reportedly escaped to Kenya due to the counter-offensive in south and central Somalia. Intelligence reports claim that small numbers have been crossing the border for weeks, and have joined nearby local communities.

   […]

   The Kenya-Somalia border posts, which have been closed since 2011, were set for phased reopening between 15 June and 15 August following a ministerial meeting between the two countries on 15 May. But on 5 July Kenya’s government announced that the reopenings would be delayed following the spate of cross-border attacks.[1]

   [1] ‘Kenya’s rise in al-Shabaab attacks calls for localised solutions’, Halkano Wario, Institute for Security Studies, 12 July 2023, 20240724170119 < June 2023 Africa News article reports Kenya’s Defence Ministry pledged the withdrawal of Kenya troops from Somalia by the end of 2024:

   The planned withdrawal was confirmed by Defence Cabinet Secretary Aden Duale to the Senate.

   “The last troops are expected to leave Somalia on 31 December 2024 as per the AU and UN Security Council resolution and plan,” Duale said.[2]

   [2] ‘Kenya confirms last troops to leave Somalia by end of 2024’, Aisling Redden, Africa News, 10 June 2023, 20240724165429 < June 2024 Reuters article reported the withdrawal of peacekeeping forces from Somalia was expected but that there were some concerns about whether the draw down would create a security vacuum and the timing:

   Somalia’s government is seeking to slow the withdrawal of African peacekeepers and warning of a potential security vacuum, documents seen by Reuters show, with neighbouring countries fretting that resurgent al Shabaab militants could seize power.

   […]

   The government had previously recommended, in a joint assessment with the AU [African Union] in March, reviewed by Reuters, that the overall withdrawal timeline be adjusted “based on the actual readiness and capabilities” of Somali forces. The joint assessment, which was mandated by the U.N. Security Council, warned that a “hasty drawdown of ATMIS [African Union Transition Mission in Somalia] personnel will contribute to a security vacuum”. [3]

   [3] ‘Exclusive: Somalia asks peacekeepers to slow withdrawal, fears Islamist resurgence’, Reuters, 20 June 2024, 20240819161935 < August 2024, the UN Security Council voted unanimously to authorise the African Union to maintain its peacekeeping operation in Somalia until the end of 2024, but called for a successor mission. ATMIS will draw down by the end of the year, and the African Union Peace and Security Council has endorsed the formation of a successor mission from January 2025.[4]

   [4] ‘Somalia: Vote on the AU Transition Mission in Somalia (ATMIS)’ 15 August 2024, Security Council Report, 15 August 2024, 20240820123412 < located recent information on the security threat environment in Kenya and Al‑Shabaab related attacks.

   An August 2024 report by the International Crisis Group provides insight into the most recent terrorist threat environment in Kenya:

   Al-Shabaab-related insecurity persisted. Clash between Al‑Shabaab insurgents and security forces 11 July left at least five militants and four police officers dead in El Wak area, Mandera county.[5]

   [5] ‘CrisisWatch 2024 - July Trends and August Alerts – Africa’, International Crisis Group (ICG), 5 August 2024, p.6, 20240805145534 < July 2024 International Crisis Group report describes the discovery of explosive devices and attacks on civilians:

   Attacks bearing Al-Shabaab hallmark persisted in north east. Gunmen 2 June killed village elder in Malamande village in Lamu county, while police 5 June discovered explosive device at border point with Somalia in Mandera county, and assailants 7 June killed four construction workers near border in Garissa county.[6]

   [6] ‘CrisisWatch 2024 - June Trends and July Alerts – Africa’, International Crisis Group (ICG), 2 July 2024, pp.6–7, 20240724120525 < June 2024 International Crisis Group report highlights the military operation to address the Al-Shabaab related insecurity in Kenya:

   Kenya Al-Shabaab-related insecurity continued in north east while govt burnished international standing including through security mission to Haiti and President Ruto’s visit to U.S. Militant activity persisted in several areas. Notably, Al-Shabaab 10 May killed border police officer in attack in Garissa county’s Yumbis village near border with Somalia. Meanwhile, military 1 May said forces had killed six Al-Shabaab fighters during operation in Kumba area of Lamu; operation follows stepped-up troop deployment in late April to address insecurity amid reported increases in attacks in Garrissa, Lamu and Mandera counties in recent months.[7]

   [7] ‘CrisisWatch 2024 - May Trends and June Alerts – Africa’, International Crisis Group (ICG), 2 July 2024, pp.5–6, 20240724121311 < 2024 Freedom House report on Kenya highlights the nature of the security threat environment and Al-Shabaab’s ongoing attacks until Kenyan troops withdraw from Somalia:

   Somali Kenyans, especially in Nairobi’s Eastleigh community and in coastal and northeastern areas, have been the target of government crackdowns ostensibly combating the Shabaab militant group, and are underrepresented politically.

   […]

   The government generally respects the constitutional guarantee of freedom of religion. However, counterterrorism operations against the Somalia‑based Shabaab militant group have left Muslims exposed to state violence and intimidation. Shabaab militants have at times specifically targeted Christians in Kenya.

   […]

   Following their 2019 terrorist attack on the DusitD2 complex in Nairobi, which killed over 20 people, Shabaab has continued to pose a security threat, with militants threatening to continue attacks until Kenyan troops withdraw from Somalia. Kenya experienced a string of attacks by Shabaab in mid‑2023, including the killing of eight police officers in Garissa County in mid‑June and five civilians in Lamu County in late June. Officers who were ambushed in Mandera in July reportedly killed 20 militants in a firefight.[8]

   [8] ‘Freedom in the World 2024 – Kenya’, Freedom House, 2024, B4, D2 & F3, 20240725153254 < US State Department’s 2023 Report on International Religious Freedom: Kenya, published in June 2024 highlights that Al-Shabaab militants may have targeted religious groups:

   The Somalia-based terrorist group al-Shabaab again carried out attacks in Mandera, Wajir, Garissa, and Lamu Counties, in the northeastern part of the country. Some attacks may have targeted non-Muslims because of their faith. In August, al-Shabaab raided a predominantly Christian village in Lamu West, where they killed two persons and burned down at least 10 homes and a church.[9]

   [9] ‘2023 Report on International Religious Freedom: Kenya’, US Department of State, 26 June 2024, Section III, p.8, 20240627112115 < PROVIDE BRIEF DETAILS OF THE (2013, 2014?) ATTACK BY AL‑SHABAAB ON THE WESTGATE MALL IN NAIROBI.

   Country information indicates the Somalia-based militant group Al-Shabaab launched an attack and siege from 21 – 24 September 2013 on the Westgate Mall in Nairobi, Kenya. Civilians, military personnel and attackers died whilst many other were left wounded. The attack was intended as a response to Kenya’s military presence in Somalia since 2011.

   A December 2020 journal article published by the International Centre for Counter‑Terrorism reports the Al-Shabaab terrorist group attack on Westgate Mall in Nairobi on the 21 September 2023 was followed by a four day siege:

   On 21 September 2013, around noon East Africa Time (09:00 GMT), Somali militant group al-Shabaab commenced an attack on the upmarket Westgate Mall in the Westlands suburb in Kenya’s capital city Nairobi. The raid was one of the most high-profile terrorist attacks in the country, but not with the highest casualty figures.

   The attack by four masked gunmen, which police at first presented as an armed robbery incident, quickly developed into a hostage situation that lasted until 24 September when Kenyan security forces (military, paramilitary units and police) finally secured the building. The attack left seventy-one people dead, including sixty-two civilians, five Kenyan soldiers, and the four attackers. Another 200 people were wounded, during the worst terrorist attack on Kenyan soil since the August 1998 bombing of the US embassy in central Nairobi by al-Qaeda. The four-day siege left large parts of the shopping centre destroyed. The Somali militant group al-Shabaab said its members staged the attack in response to Kenya’s army carrying out operations on Somali territory.

   […]

   Westgate was the most serious terrorist incident inside Kenya since the country deployed troops in Somalia in October 2011 to fight al-Shabaab.[10]

   [10] ‘Westgate Attack’, International Centre for Counter-Terrorism, December 2020, pp.3–4, 20240801164856 < dated 2014 report, Freedom in the World 2014 – Kenya, corroborates the events of the Westgate attack and siege:

   …the brutal terrorist attack launched on September 21 by Al-Shabaab at Nairobi’s Westgate shopping complex in Nairobi, in which an undetermined number of heavily armed militants entered and laid siege to the mall. The security services did not regain complete control of the complex for three days.[11] 

   [11] ‘Freedom in the World 2014 - Kenya’, Freedom House, May 2014, Section F, CX321261< dated 2014 International Crisis Group article reports that, since 2011, ‘apparent Al‑Shabaab operatives have attacked different parts of Kenya, including Nairobi’s Eastleigh estate and its environs.’[12] The article notes that:

   [12] ‘Al-Shabaab – Closer to Home’ International Crisis Group, 25 September 2014, pp.3–4, CISEFCB23F6983 < pernicious, but potentially containable, campaign was suddenly overshadowed by the attack on the Westgate shopping mall, from 21‑24 September 2013. Al-Shabaab was initially slow to claim responsibility, but later stated it was a direct response to the Kenyan intervention in Somalia.[13]

   A September 2013 article by The Guardian corroborates Al-Shabaab’s intent and responsibility for the attack:

   Somalia’s militant group al-Shabaab is claiming responsibility for the attack on a Nairobi mall on Saturday that has killed at least 30 people, saying it was retribution for Kenyan forces’ 2011 push into Somalia. The group threatened more attacks.

   […]

   Al-Shabaab, on its Twitter feed, said that it has many times warned Kenya’s government that failure to remove its forces from Somalia “would have severe consequences”. 

   […]

   The attack at #WestgateMall is just a very tiny fraction of what Muslims in Somalia experience at the hands of Kenyan invaders,” al-Shabaab said. Another tweet said: “For long we have waged war against the Kenyans in our land, now it’s time to shift the battleground and take the war to their land #Westgate.

   Al-Shabaab threatened in late 2011 to unleash a large-scale attack in Nairobi.[14]

   [13] ‘Al-Shabaab – Closer to Home’, International Crisis Group, 25 September 2014, pp.4, CISEFCB23F6983 < ‘Kenya mall attack: Somalia’s al-Shabaab group claims responsibility’, The Guardian, 22 September 2013, 20240801160240 < credibility, findings, and assessment

5. 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 (Randhawa).

6. In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa 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 supplicants’. 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.

7. As noted by the delegate, and conceded by the applicant in the hearing, the applicant has multiple identities and variations of his name. For the purpose of the decision the Tribunal accepts the applicant’s claim that he is a citizen of Kenya and accepts his claimed identity, and accordingly his claims will be assessed against Kenya. The issue of the applicant having multiple identities is a relevant credibility issue as further discussed below.

8. The Tribunal has multiple and significant credibility issues with the applicant and his claims for protection.

9. Firstly, there are significant variances in the applicant’s educational and work history as between the original claims for protection and what has been more recently claimed.

10. The original claim for protection indicates the applicant completing a [qualification] in [occupation 1] at [University 1] but refers to no other tertiary qualifications. In contrast, in the recent written statement as confirmed in the hearing the applicant refers to [an occupation 2] degree obtained in [Country 1].

11. In relation to work, the applicant in the application for protection form refers to various jobs in Kenya as [an occupation 1]. However, in more recent claims the applicant refers to 15 years of experience as [an occupation 2] and [occupation 3] working with the government, in private practice and with [another agency]. In the hearing the applicant made reference to working at [that agency] on the outskirts of Nairobi.

1. The Tribunal explored with the applicant in the hearing why this inconsistent, more recent information provided in relation to education and employment was not provided in the information as part of the original application.

2. In response the applicant referred to the application being made with assistance and that he was not asked relevant questions in relation to these issues as explaining the information not being included.

3. The Tribunal has difficulty accepting, given the relative detail of information in the application form and supporting statement, that these key issues in terms of education and work would not have been included in the original application or identified in the supporting statement provided. The Tribunal has difficulty accepting in the context of the information that it was provided because the person helping the applicant make the application did not ask the right questions.

4. Secondly, there are differences in terms of specifics of the applicant’s claimed employment. The application form for the protection visa indicates that the applicant was [an occupation 1] for [Business 1] from March 2010 until February 2015.

5. In contrast, in the hearing the applicant indicated that he worked for this organisation after he finished his [occupation 1] internship in 2002 all the way up until coming to Australia, albeit having other jobs and activities during this period.

6. A further inconsistency is that the more recent written statement of the applicant indicates that he registered his sole proprietor business, which he agreed in the hearing was [Business 1], after he finished his [occupation 2] degree, rather than the business operating from 2002 after completing his [occupation 1] degree.

7. In response to these inconsistencies, the applicant indicated that the application form mentions only this employment from 2010 because it was only at this point he became the registered proprietor of one of the two branches of the business, in [Town 2].

8. The Tribunal put to the applicant that earlier in the hearing he had indicated that he became the registered proprietor of this branch soon after he started in 2002. The applicant indicated different interpretations in what is meant by registration.

9. The Tribunal does not consider this explains the multiple inconsistencies on this issue. In any event, the application form says that from March 2010 the applicant was [an occupation 1] in the business, not the registered proprietor, which is undermining of his claim that he only mentioned his employment from this time as this was when he became the registered proprietor.

10. The inconsistencies are undermining of the applicant’s credibility.

11. Thirdly, the applicant initially in the hearing indicated that he worked continuously at [Business 1] from 2002 up until coming to Australia on average 20 hours a week with variations over time. The Tribunal questioned the applicant as to how this could have been the case given his more recent claims that he undertook a [occupation 2] degree for four years in [Country 1] subsequently.

12. In response, applicant indicated that there would be breaks of periods of study where he could return to his employment in Nairobi.

13. The Tribunal considers there is an inconsistency with the applicant in the hearing indicating that he worked continuously at [Business 1] from 2002 on average 20 hours a week, with some variations, but also claiming to have spent four of these years studying in [Country 1]. The Tribunal considers that, in response to the earlier question in the hearing about average hours a week worked in the business, he would have, if true, referred to substantial subsequent periods of not working in the business because he was studying in another country.

14. Fourthly, the applicant has been inconsistent in terms of when he undertook his [occupation 2] degree in [Country 1]. In the hearing, the applicant indicated that he started this degree in 2007. In contrast, the applicant’s recent written statement indicates that this degree was completed in 2007, after which he registered his business.

15. The applicant in response to this inconsistency said that the discrepancy is because he was anxious and in fact finished the [occupation 2] degree in 2007.

16. This inconsistency creates credibility concerns for the Tribunal.

17. Fifthly, the applicant has not been consistent in terms of having lived in [Country 1]. The application form for the protection visa indicates the applicant indicating he has lived in no countries other than Kenya or Australia.

18. The Tribunal noted to the applicant that this is inconsistent with his subsequent indication that he studied for a number of years in [Country 1]. In response, the applicant indicated that effectively Kenya and [Country 1] are in the same economic unit and are thus the same country.

19. The fact is that Kenya and [Country 1] are separate countries.

20. In any event, this explanation does not account for the fact that in the application form, he listed only addresses in Kenya prior to coming to Australia.

21. The Tribunal draws adverse inference as to the applicant’s credibility as a result of him originally claiming to have lived in no other countries and listing addresses lived at only in Kenya, but subsequently claiming to have lived in [Country 1] for four years.

22. Sixthly, the applicant has not been consistent in terms of when he claims to have stopped being a practising Muslim. In the hearing the applicant indicated that he stopped being a Muslim in 1995. The Tribunal on two occasions asked the applicant to confirm that he stopped being a Muslim in this year and he confirmed that this was correct.

23. The Tribunal put to the applicant that in his original written claims for protection he indicates that he stopped being a Muslim in 2009. The applicant in response indicated that this is the year in which problems started as a result of him stopping being a Muslim.

24. The Tribunal noted to the applicant that this cannot be correct, because that written statement indicates that problems as a result of not being a Muslim did not commence until 2014.

25. The applicant indicated that this inconsistency is a product of linguistic issues.

26. The Tribunal is not persuaded of this and considers that the multiple inconsistencies in relation to this issue are a product of the lack of truthfulness and lack of credibility of the applicant.

27. Seventhly, the applicant has not been consistent in terms of his involvement in the attack by Al-Shabaab at Westgate Mall which, as independent information extracted indicates, occurred in September 2013.

28. The original application for the protection visa indicates that the applicant escaped difficulties because on that day he was working in a different branch in another location. In contrast, in the more recent statement the applicant indicates that he was in the mall when the attack happened but managed to escape by going into a toilet. The applicant confirmed this in the hearing.

29. The Tribunal put to the applicant the inconsistency in terms of him being present during the attack against his original claims. In response, the applicant indicated that the person who wrote the original claims made a mistake and he did in fact escape harm by hiding in a toilet.

30. The Tribunal has difficulty accepting that the applicant, particularly accounting for his English, would allow this important detail as part of the original application for the protection visa to be inaccurate.

31. The Tribunal considers that the inconsistency is undermining of the applicant’s credibility.

32. Eighthly, multiple aliases and different identities of the applicant create credibility concerns for the Tribunal.

33. The Tribunal put to the applicant pursuant to the procedural requirements of s 424AA of the Act certain adverse information. The Tribunal indicated that the information was that contained in the delegate’s decision of the applicant having at least 19 aliases and different variations of his name. This involved identities in other visa applications as well as other information before the Department. Aliases are apparent to the Department from the applicant’s social media profiles on Facebook and Instagram.

34. The information also includes information before the delegate that the applicant claims to have lost his passport on the day that he arrived in Australia.

35. The Tribunal put to the applicant that the information is relevant because it is inconsistent with the indication in the protection visa application that the applicant has not been known by other names. It is relevant because it raises doubts about the veracity of the applicant’s claimed identity as well as broader credibility concerns in relation to his claimed circumstances, including in relation to claims for protection.

36. The Tribunal put to the applicant that the information is relevant because, similarly to the assessment of the delegate, the claimed loss of a passport soon after arriving in Australia could be an indication of identity fraud.

37. The applicant elected to respond orally. In response the applicant indicated that the multiple aliases are a product of the fear of harm that he faced and avoiding being recognised.

38. The Tribunal accepts the plausibility of an individual fearing harm changing their identity to avoid harm. However, if that were true, the Tribunal considers that the applicant would have revealed his need to create multiple identities in the application for the protection visa, rather than incorrectly to state that he was not known by other names.

39. The fact of these multiple aliases is undermining of the broader credibility of the applicant and his claimed situation and circumstances.

40. Before assessing credibility issues cumulatively, and identifying one other potential credibility concern that the Tribunal does not draw adverse inference from, the Tribunal notes the evidence of [Partner A], the applicant’s partner, before the Tribunal.

41. It is clear from the evidence in the hearing of the applicant that he and [Partner A] have been in a relationship in Australia for the last four years. There are [number] children as part of the family unit from a prior relationship of [Partner A].

42. [Partner A] gave evidence at hearing that she has observed mental health issues suffered by the applicant and behaviour, including nightmares, consistent with him fearing harm on return to Kenya for the reasons claimed.

43. In terms of a final potential adverse credibility issue, the Tribunal put to the applicant additional information pursuant to the procedural requirements of s 424AA of the Act. The Tribunal put to the applicant that the information was that contained on the Departmental file indicating contact by different individuals with the Department making comment in relation to the applicant.

44. The first individual contact the Department recorded on 6 May 2016 is in relation to the applicant using the name [the applicant’s name variant 1]. This person indicates that the applicant failed to disclose his criminal records to the Department and is scamming and defrauding innocent citizens. It is indicated that the applicant is living under false pretences.

45. The second individual contacted the Department on 17 November 2016. The individual is a lawyer and migration agent. They indicate they are instructed by clients engaging them for the purpose of advising that the applicant may have created fraudulent documents and entered Australia under a false name. It is indicated that he could be a fugitive from [Country 2] who was associated with a ring of criminals. Reference is made to a news article relating to [an occupation 1] and fake documents, implying that this could relate to the applicant. Various supporting documents are provided to the Department by the lawyer, having been provided to them by the clients.

46. The Tribunal noted to the applicant in the hearing that this information is relevant because it could raise questions as to the genuineness of the applicant’s claimed circumstances and situation and to his credibility, including in terms of substantive claims for protection.

47. The consequence of relying on this information could be to draw adverse inferences in relation to the applicant’s claimed circumstances, claims for protection and overall credibility.

48. In response, the applicant indicated that he is not from [Country 2], he is [an occupation 1] and [an occupation 2]. He indicates that the adverse information is unfortunate and outrageous. It is outrageous that these individuals are not available to make the allegations directly.

49. The Tribunal noted to the applicant that given the inability of the Tribunal to question the individuals who made these allegations it was not likely to give them significant adverse weight.

50. The applicant reiterated the outrageous and untrue nature of the allegations.

51. The Tribunal does not draw any adverse weight from these allegations.

52. However, as put to the applicant in the hearing, the various credibility issues as canvassed in the hearing are overwhelmingly adverse to the applicant’s credibility. The Tribunal put to the applicant that the issues are so overwhelmingly adverse it was difficult to be satisfied of anything the applicant was claiming.

53. In response, the applicant wanted the Tribunal to ask him more questions, presumably about substantive claims for protection. The Tribunal did not proceed down this path because the cumulative impact of the credibility concerns identified were so overwhelming that the Tribunal was not satisfied to any degree as to the truth of his substantive claims for protection.

54. The applicant expressed alarm and displeasure at not being able to provide further evidence.

55. The Tribunal considers that the adverse credibility issues identified in this decision are overwhelmingly adverse to the applicant and that he is not a truthful or credible witness in any way.

56. The Tribunal is not satisfied that the applicant renounced Islam because of being pressured to advocate extremist ideology or activity. The Tribunal is not satisfied that the applicant has been targeted by any individuals or group as a result, including by Al-Shabaab. The Tribunal is not satisfied that the applicant was being sought for the purpose of inflicting harm on him by any individual or group in Kenya. The Tribunal is not satisfied that individuals came looking for the applicant at his current or former employment or that they harmed and shot the applicant’s former work assistant on account of them looking for and wanting to harm the applicant.

57. The Tribunal is not satisfied that there are any individuals or groups in Kenya, including Al‑Shabaab, that have targeted the applicant and have an intention to find and inflict on him serious or significant harm if he should return to Kenya.

58. 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.

59. In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons 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, he faces a real risk of significant harm.

60. 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).

61. 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).

62. 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 any of the criteria in s 36(2).

    DECISION

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

    David McCulloch

    
    

    Member

    ATTACHMENT  -  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.

    …