2402448 (Refugee)

The applicant sought review of a delegate of the Minister for Home Affairs' decision to refuse to grant a protection visa. The dispute centred on whether the applicant qualified as a refugee under section 36(2)(a) of the *Migration Act 1958* (Cth) due to a well-founded fear of persecution in Kenya. The matter was heard by Senior Member Kate Millar of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was to determine whether the applicant was bisexual or homosexual, or would be perceived as such, and whether this characteristic, combined with the situation in Kenya, gave rise to a well-founded fear of persecution. This involved assessing whether the applicant could avail himself of the protection of Kenya, considering the criminalisation of homosexuality and the potential for abuse or harm. The Tribunal also had to consider the definition of a "particular social group" as it applied to the applicant's claimed sexual orientation.

The Tribunal's reasoning focused on the applicant's claims of attraction to men and his sexual relationship with another man in Australia, as corroborated by a statement from that individual. It considered that the applicant's sexual orientation, whether actual or perceived, constituted membership of a particular social group. Given the evidence presented regarding the applicant's sexual conduct and the legal and social context in Kenya, the Tribunal found that the applicant had a well-founded fear of persecution for reasons of membership of a particular social group.

Consequently, the Tribunal remitted the matter to the Minister for further consideration with a direction that the applicant satisfies the criteria under section 36(2)(a) of the *Migration Act 1958* for the grant of a protection visa.