2307602 (Refugee)

[2023] AATA 4575

2307602 (Refugee) [2023] AATA 4575 (9 November 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  2307602

COUNTRY OF REFERENCE:                   Kenya

MEMBER:  Damian Creedon

DATE:  9 November 2023

PLACE OF DECISION:  Perth

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

Statement made on 09 November 2023 at 3:55pm

CATCHWORDS
REFUGEE – protection visa – Kenya – political corruption – minority ethnicity and bullying at school – economic hardship – mental health – social media activity under criminal investigation – honest witness but vague, unsupported and unpersuasive claims – delay in applying for protection – criminal convictions and immigration detention – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 56, 36(2)(a), (aa), (2A), 65

CASES
MIAE v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

In accordance with s 431 of the Migration Act 1958 (Cth), the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant.

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 31 May 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

Background:

1. The applicant, a [Age]-year-old citizen of Kenya, arrived onshore [in] December 2016 as the holder of a student visa.

1. The applicant applied for a protection visa on 17 April 2023. Although the applicant has been in immigration detention, by the time of his hearings he had been released into the community, and he is presently onshore on a Bridging visa pending the outcome of his application for a protection visa.

Protection visa application:

1. The applicant’s written claims for protection are set out in his protection visa application; they may be summarised as follows:

a.The applicant left Kenya in 2016 to study and upgrade the living standards of his family, church, and community.

b.He travelled to Australia as he experienced many challenges when he grew up in Kenya.

c.He experienced trauma and depression for cultural and political reasons that affected both him and his family.

d.He witnessed the killing of relatives and the separation of their families.

e.Due to political corruption the people responsible for his difficulties were never taken into justice.

f.He feared for his life because of the ongoing political differences, insecurity, and corruption in Kenya.

g.He reported his difficulties to the authorities but due to the corruption nothing was done.

h.He spoke with community elders about the problems he experienced.

i.He moved from place to place to avoid being depressed and suffering from mental harm.

j.He will be considered to be a failure if he returns to his community as people were dependant on him when he lived in Australia.

1. The applicant did not participate in an interview with the delegate.

1. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.

1. The applicant applied for a review of the delegate’s decision.

Application for review:

1. The applicant was not represented in relation to the review.

Evidence

1. The Tribunal has before it a range of material, including, relevantly:

a.A copy of the applicant’s Republic of Kenya Passport;

b.A national identity card issued by the Republic of Kenya;

c.The applicant’s protection visa application forms;

d.The delegate’s protection visa decision record dated 31 May 2023 (delegate’s decision record); and

e.The review application form lodged by the applicant with the Tribunal on 31 May 2023 which included a copy of the delegate’s decision record.

1. The Tribunal has read and had regard to numerous items of material provided by the applicant both to the department and to the Tribunal, including copies of the following documents:

a.a document entitled “Republic of Kenya, Land Sale Agreement Form” dated [October] 2016;

b.letters of support from members of [Location 1 Church], Kenya, and [Church 2], Kenya;

c.a handwritten letter of support dated 10 April 2023 from [Mr A], Assistant Chief, [Location 1];

d.a handwritten letter dated [April] 2023 from the National Police Service from [Mr B], [Job title];

e.a handwritten letter dated [April] 2023 from by [Mr C] ([Mr C] Letter);

f.various health records, including a document entitled “General Health Summary” comprising records maintained by International Health and Medical Services relating to the applicant’s period in immigration detention (IHMS Record).

1. Much written information has been submitted by the applicant. This information has been read and factored into the Tribunal’s decision. The Tribunal does not propose to list and separately consider each item of information but to engage with it as needed to establish the broad themes which emerge. The fact that an item of information has not been specifically referenced in the decision does not indicate it has not been considered.

1. The Tribunal has also had regard to:

a.the United Kingdom Home Office’s Country Background Note: Kenya, May 2022 (UKHO Note); and

b.the United States Department of State Country Report on Human Rights Practices 2022: Kenya, 20 March 2023 (USDOS Report).

Section 56 invitation

1. The delegate’s decision record contains the following relevant information:

On 27 April 2023 the applicant was sent correspondence inviting him to provide additional information about their claims under s56 of the Act.

…

In response to the invitation to provide further information the applicant provided statements7 to the Department. The information of relevance to the applicant’s claims for protection in this submission is summarised below:

·He did not apply for a Protection visa on his arrival in December 2016 as he was the holder of student visa and he did not fear returning to Kenya.

·He experienced depression because he was young and he did not know how to cope with the situation in Kenya.

·The people responsible for his difficult situations were not arrested due to the corruption of the government.

·Due to his personal problems he had difficulties completing his school and studies.

·He feared for his life in Kenya because there were “many things going on” that was not reported in the media.

·There is corruption, and political differences between the government and the opposition in Kenya which may lead to the same situation that had occurred in 2007.

·Due to the situations he faced in 2012 and 2013 he approached others for guidance and counselling.

·He experienced depression and mental health issues after he had a number of seizures.

·It will be ‘disastrous’ if he returns to Kenya as now that he is living in Australia he can distance himself from those who sought to abuse him including community elders.

·He did not attend a hospital in Kenya and he is not able to submit medical evidence.

·He did not report in his application that he posted information on [Social media] about Kenya as he did not think it was necessary.

·He is not able to submit evidence of his [Social media] posts as he sought to permanently close his [Social media] account as the person used his pictures and names on the posts.

·He has not received documents from the Kenya authorities before April 2023 but he will do his best to obtain them.

·In reference to [Mr B]’s retirement as the [Job title] he is uncertain as to why he signed the Criminal Record document as he does not follow the corrupt politics in Kenya and many people use the same names.

·He did not report in his application he was under criminal investigation as he had not been convicted and his [Social media] account was closed.

Hearings

1. The applicant appeared before the Tribunal on 24 July 2023 and 14 September 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Swahili and English languages.

Applicant’s oral evidence

1. The following is a summary of the applicant’s evidence to the Tribunal:

a.The applicant stated that his home province is Nandi, Kenya. He is one of [Number] siblings, with one of his [siblings] resident in Australia. His remaining siblings and his parents are resident in Kenya. The applicant is not married, although he was in a de facto relationship, and his ex-partner has returned to [Country]. The applicant was unsure whether his ex-partner was pregnant when she returned to [Country].

b.The applicant completed primary and secondary schooling in Kenya. He did not complete any further qualifications in Kenya and did “small labouring jobs” while a student. Since arriving onshore, the applicant has been resident in Perth. The applicant has completed [courses] in Australia.

c.When asked why he fears returning to Kenya, the applicant stated:

The reason why I fear for my life is because of the ongoing political differences insecurities and corruption.

d.When pressed, the applicant stated that he grew up in a “difficult part” of Kenya; he stated that his parents moved “from place to place” and that they were often “strangers” in their local community. The applicant stated that he was bullied at school as he was perceived as an “outsider”. When further pressed that applicant stated that he was of Masai ethnicity, and was different from the other children, and that he was “beaten”, harassed, and called names for this reason.

e.When pressed as to the violence he experienced, the applicant stated that he and he elder brother were attacked when they were “going home from school” as they were outsiders.

f.The applicant stated that he became aware from “family friends” of the prospect of studying in Australia and he saw this prospect as a migration pathway; he stated that he was a shy person and that he wanted to get out of his situation in Kenya. He stated that his parents sold property and made financial sacrifices to send him to Australia to study.

g.When pressed as to what he feared would happen to him if he returned to Kenya now or in the reasonably foreseeable future, the applicant stated that he did not like what he went through when he “was a kid”, and that his parents made sacrifices to send him to Australia.

h.When asked if he feared violence, the applicant stated that he did; when pressed as to why, the applicant stated because of what he went through, “being called names”. The applicant stated that he was “bullied and tortured” when he was young and suffered depression because of his experiences.

i.The applicant stated that he lacks the experience to obtain work in Kenya, and that he would be perceived as a failure, having left there as a “good student”; he stated that he did not feel he had achieved all that he could in Australia. When asked what it was that he wished to achieve here, he stated that his “target” was a master’s degree in [Subject]. The applicant agreed that he felt he had not lived up to his family’s expectations.

j.When asked about his studies onshore, the applicant stated that could not get enough money for his school fees and that he suffered from depression; he stated that he “spiralled downwards”, abused alcohol and was convicted of a criminal offence.

k.The Tribunal stated to the applicant:

I wish to assure you that none of the materials relating to your criminal offending will be weighed against you in arriving at my decision concerning your status as a refugee, or considering whether you are owed complementary protection.

l.The applicant stated that he did not want to return to Kenya, that he was mentally disturbed at the prospect and feared he would be depressed.

1. At the conclusion of the hearing the applicant sought and was granted 14 days to provide further material to the Tribunal, however no further material has been received by the Tribunal as at the date of this decision.

Country of reference:

1. The applicant claims to be a citizen of Kenya. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Kenya is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.

Assessment of evidence:

1. 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. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, 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. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

1. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

1. The Tribunal also accepts that ‘if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

Analysis:

1. The Tribunal has had regard to the President's Directions and in particular the direction that members are to take all reasonable steps to complete papers allocated to them as quickly as possible, and that generally in reviewing a decision to refuse the grant of a protection visa members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.

1. In assessing the applicant’s circumstances the Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:

In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.1

1. However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.2

1. For the avoidance of doubt, and as explained to the applicant during the hearing, the Tribunal places no weight upon the applicant’s criminal convictions in the assessment of his credibility, or in the assessment of his claims to refugee status, or to be owed complementary protection. The Tribunal considers these criminal convictions to be irrelevant considerations to these assessments.

1. The Tribunal notes the numerous character references filed on the applicant’s behalf of which the following, from the [Pastor D] of the “[Church 2] Local Church”, [Location 1], Kenya is illustrative (uncorrected):

I am writing to attest to character of [the applicant] whom have known him for a length of time in my capacity as pastor at [Church 2] local church, [Location] district church council. [The applicant] has been an active member of our church. Participating in youth ministry leadership, programme and attending services meeting. He has been an excellent role model for those seeking more active and rewarding relationship with GOD. Have been pleased to witness [the applicant] spiritual growth over time and I look forward to seeing it blossom further I respect him as a person of good moral character and as a bright spot in our church congregation.

1 Guidelines on the Assessment of Credibility (July 2015) Available at elin es-on-Assessment-of-Credibility.pdf

2 Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.

1. Overall, the Tribunal accepts the applicant as an honest witness.

Bullying

1. The Tribunal accepts the applicant’s account of having suffered bullying at school, including, on occasion, being “beaten”, harassed, and called names. The Tribunal also accepts that the motive for the bullying may have been the applicant’s ethnicity and the perception of him as an “outsider”.

1. The Tribunal finds, however, that this behaviour was proximate to the applicant’s situation as a school student during childhood and adolescence. There is no evidence before the Tribunal that the applicant suffered bullying or discrimination in Kenya unconnected with his schooling. The Tribunal finds that there is no real chance or real risk of this type of behaviour persisting into the applicant’s adulthood. Further, the Tribunal is not satisfied that the behaviour described in evidence by the applicant meets the definitions of “serious harm” in s 5J of the Act, or of “significant harm” in s 36(2A) of the Act.

Ethnicity

1. Notwithstanding this finding, the Tribunal has considered the applicant’s fear of discrimination based upon his ethnic identity in the broader context in contemporary Kenya. In this regard the UKHO Note records that (citations omitted):

1.2.1  The population [in Kenya] is heavily concentrated in the west along the shore of Lake Victoria. Other areas of high density include the capital of Nairobi, and in the southeast along the Indian Ocean coast. The urban population is 28% of the total population (2020).

1.2.2  The population estimated in Nairobi in 2020 was 4.735 million and Mombasa, 1.296 million.

…

1.8.1  A wide variety of languages are spoken in Kenya. The lingua franca is Swahili, which is the language of local trade and is also used (along with English) as an official language in the Kenyan legislative body, the National Assembly, and the courts.

…

1.9.1Kenya’s ethnic groups

Kenya’s ethnic groups (2019 estimate)

NamePercentage of the total population

Kikuyu  17.1%
Luhya  14.3%
Kalejin  13.4%
Luo  10.7%

Kamba  9.8%
Somali  5.8%

Kisii  5.7 %

Mijikenda  5.2%
Meru  4.2%
Maasai  2.5%
Turkana  2.1%
others  9.2%

1.9.2  According to World Atlas, the Kikuyu, Luhya, Luo, Kalenjin, and Kamba are the largest ethnic groups in Kenya. The Kikuyu are a Bantu-speaking group that is widely found in the central region of Kenya. The Luhya ethnic group, the second largest ethnic group in Kenya, also belongs to the Bantu group of people. Luos mainly live in the Nyanza Province in western Kenya whilst Kalenjins mostly reside in the Rift Valley region in Kenya.

1.9.3  Minority Rights Group, Kenya: Minorities and indigenous peoples, updated January 2018, noted:

‘Ethnic/national minorities, such as the Nubians and Somalis, are not recognized as such by the Kenyan government and have problems accessing citizenship documents. In recent years political conflict on ethnic lines has increased dramatically…Nevertheless, ethnic categorizations are complex and sometimes overlapping. Such linguistic minorities as the Terik, Sengwer and Suba are challenged by the near-extinction of their languages. Agriculturalists and pastoralists often have competing claims to land, and nomadic pastoralists are in ceaseless conflict with the authorities, most of whom come from farming tribes.

‘No ethnic grouping is numerically dominant, and while a few groups have had opportunities at political power with its associated economic benefits, the Kikuyu, who make up 22 per cent of the population, have tended to dominate politics in the post-independence era. Some groups have never held political power. Competition for power and exclusion from it on an ethnic basis has been a major source of tension in Kenya. Particularly vulnerable minorities include Muslims, such nomadic pastoralists as Somalis and Maasai, and hunter-gatherers.’

1. The USDOS Report notes the following (citation omitted):

Systemic Racial or Ethnic Violence and Discrimination

Although the constitution declares the state shall not discriminate against any person based on race, societal discrimination against persons of different racial and ethnic groups was common. Enforcement of laws prohibiting discrimination was inadequate, according to human rights groups. The 2019 census recognized 45 ethnic groups in the country; none were a majority.
The Kikuyu and related groups dominated much of private commerce and industry and often purchased land outside their traditional home areas, which sometimes resulted in fierce resentment from other ethnic groups, especially in the coastal and Rift Valley areas.
Competition for water and pasture was especially serious in the north and northeast.

There was frequent conflict, including banditry, fights over land, and cattle rustling, among the Somali, Turkana, Gabbra, Borana, Samburu, Rendille, and Pokot ethnic groups in the arid northern, eastern, and Rift Valley areas that at times resulted in deaths. Disputes regarding county borders were also a source of ethnic tensions. Banditry-related violence in parts of the Rift Valley, especially in Kerio Valley, rose during the year.

The International Crisis Group reported at least 35 persons died, and dozens of homes were burned in western Laikipia County between September 2021 and July in violent clashes between armed cattle herders and farmers, ranchers, and conservancies. A two-year drought forced pastoralists to trespass on privately run nature conservancies in search of water and grazing land for their livestock. Government forces deployed to the region to quell the violence, but the situation continued to be tense.

1. The applicant states that he is of Maasai ethnicity, which the Tribunal accepts. The Tribunal notes the assessment in the country information cited that the “Maasai” are among groups considered “particularly vulnerable” in the competition for power in Kenya.

1. Notwithstanding this, the Tribunal infers from the country information set out above that while some tension and discrimination exists between ethnic groups in Kenya, when considered in the context of the size of the Kenyan population these attacks do not occur on a scale on which the Tribunal could find that there is either a real chance that the applicant will suffer serious harm, or a real risk that he will suffer significant harm, on this ground.

1. The Tribunal also infers that while members of minority ethnic groups may encounter both official and societal discrimination, this varies across Kenya and is unlikely to occur to a degree that equates with a real risk or real chance of the applicant suffering serious or significant harm on that basis. Overall, the Tribunal infers that the risk of the applicant suffering serious or significant harm in Kenya on the ground of his ethnic identity is remote

Family situation

1. The Tribunal accepts the applicant’s evidence that he, his family, and his community have made sacrifices to support his study in Australia, and that he feels that he may not have lived up to their expectations. The Tribunal notes the [Mr C] Letter in this regard, and the sentiments expressed by the applicant’s father. The Tribunal also notes that the applicant made no claims to fear violence or ill-treatment as a result of this situation. While the Tribunal sympathises with the applicant, his feelings that he has not lived up to his family’s expectations do not amount to a well founded fear of persecution, or a real risk of significant harm should the applicant return to Kenya now or in the reasonably foreseeable future.

Mental health claims

1. In respect of the applicant’s claims to have suffered depression or other mental health issues, there is no evidence corroborating any such claims before the Tribunal. In contrast, the IHMS Record indicates that, during his time in immigration detention, the applicant was subjected to regular “welfare checks” from both Primary Health Nurses and Mental Health Nurses; the Tribunal notes from the IHMS Record that:

a.the applicant was regularly asked specific questions concerning his mental health and that he did not raise any issues of concern, including depression; and

b.the observations of the applicant by the medical professionals concerned did not raise any concerns for them.

1. While the Tribunal accepts that the applicant wishes to remain in Australia, based upon his IRMS Record the Tribunal finds that there is no evidence that he is presently suffering from any mental health issues, including depression.

Economic hardship

1. Although the applicant expressed concern at the prospect of finding work in Kenya, in its most recent overview of Kenya’s economy,3 the World Bank reports that:

NAIROBI, June 7, 2023 — With a GDP growth at 4.8 percent in 2022, economic performance softened after the strong rebound from the COVID-19 crisis at 7.5 percent in 2021. The growth rate, however, has remained in line with Kenya’s long-term growth trajectory, even though the economy faced challenging global financial conditions, fuel, and food price shocks, and a historic drought that affected the economy, especially in the second half of 2022.

The growth momentum was driven by the service sector which contributed about 80 percent of the increase in total GDP. Financial services, tourism, and transport sectors performed especially strongly. According to the latest Kenya Economic Update (KEU), Kenya’s GDP growth outpaced that of Sub-Saharan Africa which is estimated to have grown at 3.6 percent in 2022.

The strong headline GDP growth amid the poly-crisis highlights the resilience of the Kenyan economy. Like many countries across the world, Kenya faced inflationary pressures amid

3 See: the-polycrisis-but-challenges-remain.

commodity price volatility, tightening global financing conditions that put major pressure on the exchange rate and foreign exchange reserves, further aggravated by the worst drought in four decades, significantly increasing food insecurity and affecting millions of livelihoods.

Macroeconomic policy aimed at striking a balance in a complicated economic environment through a combination of greater exchange rate flexibility, fiscal consolidation, and a tighter monetary policy. Fiscal consolidation, that Kenya embarked on in recent years to address mounting debt sustainability challenges and which was interrupted by the pandemic, continued in 2022 helping to reduce external and domestic imbalances.

1. In view of this information the Tribunal is not persuaded that the applicant would be subjected to significant economic hardship in Kenya that threatens his capacity to subsist there. The Tribunal finds, therefore, that the applicant does not have a well-founded fear of persecution in Kenya based upon a claim of economic hardship.

1. The Tribunal accepts the applicant has concerns about being able to find work if he returns to Kenya and the general economic situation there. The Tribunal also accepts that he may face some difficulty in doing so at least initially. However, the applicant did not suggest that any person or group will seek to harm him for any reason relating to his economic situation. There is no evidence before the Tribunal that he has ever been discriminated against or otherwise prevented from obtaining work in Kenya.

1. Accordingly, the Tribunal finds that any economic hardship the applicant might experience if removed to Kenya would not amount to significant harm for the purposes of the Act, because the harm would not be as a result of any deliberate act or omission of any group or person done with the intention of causing him to suffer significant harm.

1. The Tribunal has considered whether any economic or financial hardship the applicant might encounter as a necessary and foreseeable consequence of being returned to Kenya would amount to “significant harm” as exclusively defined in s.36(2A) of the Act.

1. On the information and evidence before it, the Tribunal finds that any harm faced by the applicant due to the economic situation in Kenya would not involve the applicant being arbitrarily deprived of his life or being subjected to the death penalty. The Tribunal finds that experiencing some economic hardship does not involve the applicant being subjected to torture, or to cruel or inhuman treatment or punishment. It does not involve his being subjected to degrading treatment or punishment. The Tribunal finds that the economic hardship the applicant may encounter if he is returned to Kenya due to the general economic and living conditions there would not be “significant harm” as that term is defined in the Act, and that there would therefore not be a real risk that he would suffer significant harm for this reason as a necessary and foreseeable consequence of his being returned to Kenya.

1. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Kenya now or in the reasonably foreseeable future.

1. The Tribunal is satisfied there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflected on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk he will suffer arbitrary deprivation of his life or the death penalty. The Tribunal finds no grounds that suggest the applicant will be subject to significant harm for any reason if he returns to Kenya. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.

Other claims

1. The applicant presented no evidence during the course of the hearing to support his written claims to have been the victim of “corruption”, or “political corruption”, in Kenya, or to have experienced “difficulties” or “difficult situations”. The Tribunal finds the applicant’s written claims in this regard to be vague and unpersuasive.

1. Similarly, the Tribunal finds the applicant’s claims to have suffered “abuse” in Kenya, or to have “posted information on [Social media] about Kenya” that was the subject of “criminal investigation” to be vague and unsupported on the evidence.

1. The Tribunal finds the applicant’s oral evidence that he fears for his life because or “ongoing political differences insecurities and corruption” vague and unpersuasive.

1. The applicant did not expand upon, advance, or provide any evidence at the hearing in relation to his written claims to be under criminal investigation in Kenya, or to be the subject of a “criminal record document” there.

Conclusion: Refugee Criterion

1. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion, or membership of a particular social group). His fear of persecution is not well-founded as required by the Act and therefore he is not a refugee.

Conclusion: Complementary Protection

1. Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Kenya that there is a real risk that he will suffer significant harm.

Overall conclusion:

1. 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).

1. 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).

1. There is no suggestion that the applicant satisfies the Act 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 criterion in s.36(2).

DECISION

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

Damian Creedon 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.

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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.

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36     Protection visas – criteria provided for by this Act

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(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.

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