2409176 (Refugee)
[2025] ARTA 1780
•29 July 2025
2409176 (Refugee) [2025] ARTA 1780 (29 July 2025)
Decision and Reasons for Decision
Representative: Ms Deanne Temple Scott (MARN: 0006911)
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2409176
Tribunal: Jessica Henderson
Date: 29 July 2025
Place: Perth
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration with the direction that the applicant meets the criteria in s 36(2)(a) of the Migration Act.
Statement made on 29 July 2025 at 6:37pm
CATCHWORDS
REFUGEE – protection visa – Kenya – particular social group – female English-speaking child returned to Kenya after being raised in Australia – born in Australia to Kenyan parents – never been to Kenya – father plans to apply for Australian permanent residency once he meets the criteria – father in core skills occupation – deep-rooted rigid social and gender norms that position men and boys as superior to women and girls – violence, including sexual violence, against women and girls – decision under review remitted
LEGISLATION
Births, Deaths and Marriages Registration Act 1998 (WA)
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 56, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
Statement of reasons
APPLICATION
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 March 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
Except where otherwise indicated, the following information is drawn from the Department’s records in respect of the applicant’s migration history and the migration history of her parents.
Family immigration history
The applicant is a national of Kenya who was born in Australia to Kenyan parents. She has not departed from Australia since her birth. She is Christian who has regularly attended a small rural Catholic primary school since she reached school age.
On 5 January 2015 the applicant’s mother was granted a subclass 573 visa to study [Area of study 1].1 The applicant’s mother arrived in Australia [in] February 2015, and the applicant’s father arrived in Australia [in] March 2015. The applicant’s [siblings] arrived in December 2015.
The applicant was born [on date] and was automatically included on her mother’s subclass 573 visa upon her birth. The applicant’s birth was registered by her parents pursuant to the Births, Deaths and Marriages Registration Act 1998 (WA) on [date].2
The applicant’s mother’s subclass 573 visa ceased on 15 September 2018, and as a matter of law the applicant’s visa ceased on the same date.3
On 17 September 2018 the applicant’s father applied for a subclass 500 visa.4 The applicant was not included in the application form as a secondary applicant.5 The applicant’s parents and siblings applied for bridging visas the same day; the applicant was not included in the bridging visa application.6
Bridging visa Cs with ‘no work’ conditions were granted to the applicant’s parents and siblings on 18 September 2018.7 On 18 September 2018 the applicant’s father and mother applied for Bridging visa A’s “to seek permission to work”.8
1 Department records for the applicant’s mother, provided by the Department in response to summons as file [deleted]
2 Applicant’s birth certificate issued by the Government of Western Australia on [date]
3 Manual grant request for a baby born on shore; PID 0123585595 on Department file [deleted], provided by the Department in response to summons.
4 Application for a Student Visa Record of Responses generated 17 September 2018 and supporting evidence provided on Department file [deleted].
5 Application for a Student Visa Record of Responses generated 17 September 2018 provided on Department file [deleted].6 Application for a Bridging Visa Record of Responses generated 17 September 2018 provided on Department file [deleted].
7 Grant notification dated 18 September 2018 provided on Department file [deleted]provided to the Tribunal pursuant to summons.
8 Application for Bridging visa, provided on Department [file] .
On 19 September 2018 the Department sent a request for further information and evidence.9 On 25 September 2018 an email was sent from the father’s email address which referred to his “[children] to support” and attached [birth certificates]; those of the applicant’s [siblings] and one for an unrelated child with different parents. Evidence of financial hardship was also attached, notably including evidence that as of July 2018 the applicant’s father was unable to pay his electricity bill.
On 28 September 2018 a further email was sent to the Department from the applicant’s father’s email address attaching the applicant’s birth certificate and apologising for the previous incorrect birth certificate.10
On 4 October 2018 the applicant’s parents were each granted bridging visa Cs with the ‘no work’ condition removed.11 On the same date, an internal email sent within the Department noted that the applicant appeared to have been born onshore.12 On 8 October the same case officer submitted a manual grant request form for a baby born onshore to reflect that the applicant had held a TU 573 visa from the date of her birth until the date on which her mother’s visa had expired. The officer then sent an email to the applicant’s father explaining that a request had been sent to have the applicant’s visa record manually updated. The email also explained that the applicant could not be added to a student visa application after lodgement and that a new student visa application setting out the reasons why the applicant was not included in the first application would need to be submitted to include the applicant.
The applicant’s father did not file a further student visa application including the applicant. Subclass 500 visas were granted to the applicant’s parents and siblings on 29 November 2018. The applicant remained an unlawful non-citizen until the intervention of her migration agent some four years later.
The issue with the applicant’s passport
On 16 November 2018 the Department received an email from the applicant’s father’s email address in the following terms:
As per the request, I would like to explain why my above named daughter has not been included in our visa for sometimes now. When [the applicant] was born we started the passport application in Kenya which has been delaying until today. The reason for the delay has been attributed to the changes in the passport control centre in Nairobi.
We shall notify the immigration as soon as we receive the document.
The Tribunal understands the reference to the reasons for delay in the applicant’s father’s email. On 2 March 2016 the East African Community launched the East African e-passport, which replaced former National Passports of the EAC Partner States.13 Kenya was the first member state to issue the EAC e-passport, from 1 September 2017.14 The deadline by which all passports had to be updated was initially January 2019, extended to February
9 S 56 request for more information sent by the Department on 19 September 2018 provided on Department [file].
10 Department [file].
11 Bridging visa grant notification 4 October 2018 provided on Department [file] .12 Email from Visa Processing Officer to Adelaide Student Centre sent on 4 October 2018 at 14:15pm provided on Department [file].
13 accessed by the Tribunal on 29 July 2025.
14 accessed by the Tribunal on 29 July 2025.
2021, and further extended to 31 December 2021.15 The transition was attended by significant maladministration; investigations by the Kenyan Commission on Administrative Justice (Office of the Ombudsman) (CAJ) highlighted issues in the Immigration Department including lack of stock, overcharging, and unnecessary recommendations to applicants to cancel passport applications and make new applications (with a significant associated cost) to speed up their application process.16
As of 2020 the process for issuing the passports required both an online application and an in-person visit to an accredited Passport Issuance Centre in Kenya or an accredited Mission abroad; the only places outside Kenya initially accredited to issue the e-passports were Johannesburg (South Africa), Berlin (Germany), London (UK), Paris (France), Washington DC (USA) and Dubai (UAE).17 From 1 November 2021 the High Commission of the Republic of Kenya in Australia started receiving applications for the issuance of the new e-passports, but still required an in-person attendance in Canberra.18
The Covid 19 Pandemic started interfering with international travel from Australia in February 2020, and formal border closures commenced from 20 March 2020. Restrictions did not start to ease until November 2021, but free transit into and out of Western Australia did not resume until February 2022.19
The applicant’s first passport issued in August 2022, concurrently with the issue of her father and [siblings’] replacement EAC e-passports, when her father travelled to Kenya in person. In the circumstances the Tribunal does not consider that a poor reflection on her family, or a sign that they did not appreciate the need to regularise the applicant’s visa status.
It is curious, however, that in that four year period the Department did not make any enquiries about the applicant, given that she was an identified unlawful non-citizen.
Attempts to regularise the applicant’s visa status
On 23 November 2022 the applicant’s father applied for a subclass 408 (AGEE stream visa). The applicant’s unlawful non-citizenship status rendered her ineligible for this visa. The applicant’s agent urgently emailed the Department to confirm whether the applicant could be issued a student visa before the expiration of her father’s so that she would be eligible for the subclass 408.20 By return email the Department confirmed that it was not possible to add the applicant to her father’s student visa.
On 5 December 2022 the applicant submitted an application for a bridging visa E (BVE), on the basis that she was applying for a substantive visa.21 At that stage, however, she was not eligible for the substantive visa that her family had applied for and the applicant’s agent says
15 generation-e-passport/ accessed by the Tribunal on 29 July 2025.
16 ‘An Investigative Report on Alleged Manifest Injustice in the Issuance of Passports by the Department of Immigration’ released 1 June 2023, available at 10/ALLEGED%20MANIFEST%20INJUSTICE%20REPORT%20AT%20IMMIGRATION%20-
%20MAY%202023.pdf accessed by the Tribunal on 29 July 2025, at pp 10-14.
17 generation-e-passport/ accessed by the Tribunal on 29 July 2025.
18 accessed by the Tribunal on 29 July 2025.
19 "Covid: Australia's border reopens to international visitors". BBC News. 21 February 2022; "Western Australia border reopens after 697 days as the 'hermit state'". The Guardian. 2 March 2022. Retrieved 12 October 2022.
20 Email to the Department and associated Notification of incorrect answers filed 23 November 2022.
21 Bridging visa E application 5 December 2022
that the Department advised her to consider a protection visa instead. On 6 December 2022 the application for a BVE was withdrawn. The applicant’s protection visa application was filed on 8 December 2022. The Department’s records reflect that the applicant was granted a subclass 030 bridging visa C (BVC) on 5 January 2023, which remains in effect as of the date of this decision.22
On 21 September 2023 the applicant’s family were granted 408 temporary activity visas.
On 27 March 2024 the applicant’s protection visa application was refused.
On 30 September 2024 the applicant’s father applied for a subclass 482 Labour Agreement visa, which was granted to him, his wife, and his [other children] on 5 December 2024 for a period of four years. The applicant is unable to apply for the subclass 482 visa that she would otherwise be eligible for as his dependent because of the s 48 bar that applies to non- citizens in the migration zone who have been refused a visa.
CLAIMS AND EVIDENCE
Protection visa application
The risk of harm to the applicant identified in the application was set out in the following terms:
[the applicant] has never met any person in Kenya face-to-face. She is a minor and under the care and support of her parents in Australia. No other person has legal custody or guardian rights over [the applicant].
At [age] years of age, she cannot earn an income, cannot support herself and must attend to her education with the support and direction of her parents.23
The type of harm that the applicant claimed to be at risk of was characterised as follows:
[the applicant] would experience emotional and psychological trauma if she were to be taken away from her parents and [siblings] and placed in the care of people she has never met in Kenya. [the applicant] only knows the Australian way of life and educational system.24
With respect to protection from an authority in Kenya, the applicant claimed that there were
2.5 million orphans in Kenya with competing needs, and that the authorities do not have capacity to adequately protect most of them.25
With respect to relocation, the applicant claimed that her close relations all live in Western Australia, and she has no family in Kenya or any other country outside Australia.26
Evidence before the Department
The applicant filed a letter from her primary school principal, her birth certificate, and a Kenyan passport issued in 2022 in support of her application.
The letter from the applicant’s primary school principal was written on the school letter head and confirmed that the applicant had been enrolled in kindergarten at the school since the
22 Movement Record for the applicant, generated 29 July 2025.
23 Protection visa application p 18
24 Protection visa application p 18-19
25 Protection visa application p 19
26 Protection visa application p 19
year she turned [age] and had been continuously enrolled ever since. It also included the following information about the applicant’s family:
[the applicant’s parents] have been very supportive parents who have taken every opportunity to be involved in our small rural school. They both attend school functions and are always happy to help where they can with school activities.
[the applicant] is always well dressed and takes pride in her presentation. Her parents attend school meetings and assemblies enjoying the opportunity to see [the applicant] perform and be a part of our school community.
The family have the highest standards of reliability and integrity. We have no hesitation in recommending the family to any organisation and would be happy to provide any further information you require.
The files which the Tribunal has referred to in the background above do not appear to have been before the decision maker in respect of the applicant’s protection visa application. They were not provided to the Tribunal with the Department’s file, and the information held on them is not referred to in the delegate’s decision. They were provided to the Tribunal in response to a summons for information held by the Department about the visas applied for and issued to the applicant’s immediate family members.
The delegate’s reasons for decision were very brief. After summarising s 36(2)(a) of the Act, the delegate considered and dismissed the applicant’s claims to be a refugee as follows:
However, the applicant’s claim [is] that they, as a minor, are unable to return to their country of citizenship (Kenya) because they are unable to support themselves as [an age-year-]old child without parents or legal guardians. The applicant also claims that they only know the way of life in Australia, not Kenya or any other country. These claims does not relate to any of the reasons in s5J(1)(a) and there is no other information before me to suggest that they will be subject to harm on their return to Kenya for one or more of those reasons.
With respect to the complementary protection criteria, the delegate said:
The applicant has not claimed that they will be arbitrarily deprived of their life, the death penalty will be carried out on them or they will be subjected to torture. There is also no information before me to indicate that the applicant would suffer any of these forms of ‘significant harm’ in s36(2A)(a)-(c) of the Act if they returned to their country of citizen, Kenya.
I have also considered whether the harm feared could constitute either of the other forms of significant harm in s36(2A)(d)-(e) of the Act - ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’. Both of these forms of significant harm are defined in s5(1) of the Act and require the act or omission of the perpetrator to inflict the requisite level of pain or suffering (for cruel or inhuman treatment or punishment) or to cause extreme humiliation (for degrading treatment or punishment) and be intentional. The ordinary meaning of intention implies a plan or aim and Australian case law has found that intention requires a perpetrator to have an ‘actual, subjective, state of mind’.
I acknowledge the support letter by [the school] and the provided information in relation to children in Kenya. However, there is no information before me to indicate that there will be a perpetrator of any harm to the applicant and no actual, subjective state of mind, meaning there will be no intention to inflict the requisite level of pain or suffering (for cruel or inhuman treatment or punishment) or to cause extreme humiliation (for degrading treatment or punishment).
For these reasons, I am not satisfied that the economic hardship the applicant claims they would face amounts to ‘significant harm’ under s36(2A) of the Act.
The delegate did not make any factual findings about where the applicant would live or how the applicant would be supported/support herself in Kenya.
Evidence before the Tribunal
Pre-hearing submissions
The applicant’s parents provided evidence of their current visa status and current address; they reside close to the applicant’s father’s workplace in [State 1]. Their visas expire on 5 December 2028, as do those of the applicant’s siblings.
On 11 July 2025 the Tribunal received a notice of change of address for the applicant. The covering email stated:
[the applicant’s father] secured employment in [redacted] [State 1] and he moved to [redacted] to commence work [in] Oct-2024. His wife, [other children] and he were granted Subclass 482 TSS visas on 05-Dec-2024 with a validity period of 4 years (to 05-Dec-2028).
[the applicant’s mother] and the children moved to [redacted] [in] Jul-2025 to join [the applicant’s father]. [the applicant] is now enrolled at the local primary school and will commence school at the start of term 3. Please see attached the change of address form.
The Tribunal has had the benefit of written submissions from the applicant’s migration agent dated 21 July 2025, which indicate that the applicant’s father plans to apply for Australian permanent residency with his family as soon as he meets criteria.27 The applicant’s agent submitted further that:
[the applicant] has grandparents, uncles, aunts and cousins in Kenya; however, she has never met them face-to-face. [the applicant] has had no opportunity to forge a close, loving and understanding relationship with her Kenyan relatives. Whilst she has occasional online or telephonic contact with some, they are strangers to her. She has never visited or lived in Kenya, has no friends in Kenya and is not familiar with the culture and lifestyle or climate of Kenya.
[the applicant] has a close and loving relationship with her parents and [siblings]. Her parents, [names omitted], have provided her basic needs of food, clothing and shelter throughout her life, and have provided for all her non-essential living expenses, her education fees and any extra-curricular requirements. [the applicant] is fully dependent on her parents for all aspects of her life.
…
For all intents and purposes, [the applicant] is Australian. She knows no other life, family, culture or climate. 28
The applicant’s father is [an Occupation 1], which is a Core Skills Occupation. The Tribunal accepts that there is a clear path for him to become a permanent resident of Australia if he remains in that role.
Evidence at hearing
The applicant and her parents appeared before the Tribunal on 28 July 2025 to give evidence and present arguments in support of the applicant’s claims. Their agent appeared with them and assisted the Tribunal with oral submissions.
27 Applicant’s agent’s submissions dated 21 July 2025 p 2
28 Applicant’s agent’s submissions dated 21 July 2025 p 2-3
Applicant’s father’s evidence
The applicant’s father described working in [Country 1] in the two years prior to his wife obtaining a student visa to Australia. He said that it was usual in Kenya for men to be separated from their families for work, often in [Region 1]. His reason for not accompanying his wife when she first went to Australia was that he had to give thirty days notice to his employer.
The applicant’s father said that when he applied for his student visa the agent they used to come to Australia was in Kenya, and they had relied on his information when the applicant was born. The applicant’s father said that he had not read the application for a student visa before it was submitted electronically, and that he didn’t know what was in it.
The applicant’s father said that he had not been the person corresponding with the Department through his email address. His agent had asked for access to his email address and he had provided it. He said that this was how it was done; he had friends using the same agent and they had done it the same way. The Tribunal asked the applicant’s father about the names on the birth certificate that was sent to the Department in error and he confirmed that he recognised the names and that they were the friends who used the same agent.
The Tribunal asked the applicant’s father about the reasons for delay in obtaining the applicant’s passport and he said that he had tried to get her a passport in 2018 but there was confusion about what she needed involving different numbers of pages and a paper shortage. He said that he had paid for the passport, but that it had not been available until he went to collect it himself in 2022.
The Tribunal asked the applicant’s father where the applicant would live if she had to return to Kenya, and he side stepped the question repeatedly, reiterating that it would be very bad for her. He said that his parents were over [age] and had [health conditions]. He described his siblings in Kenya as unstable and living in inaccessible areas. He said that his mother only speaks Jijuyu and his father has only a very small amount of English and struggles with the Australian accent; the applicant’s first language is English and she doesn’t speak any other language.
The applicant’s father said that he would not manage to stay in Australia alone if his wife and [children] returned to Kenya and said that he thought it would be very unfair on the [children] in any event; they have AFL teams in Australia and have education opportunities that aren’t available in Kenya. He indicated that his wife going back to Kenya without the [other children] was not an option that was available; it would be too difficult for him and for the [other children] here without her.
The applicant’s father confirmed that his primary goal was to stay in Australia. He said that he likes his current work, which is going well, and that his wife has secured a good job as [an Occupation 2] in [State 1].
The Tribunal asked the applicant’s father if he was concerned about gender inequality in Kenya, and he said that he thought the tribal culture was a bigger problem, that speaking against political parties was very dangerous, that young people were in trouble for protesting, and that the applicant was a girl who liked to speak her mind.
The applicant’s evidence
The Tribunal found the applicant to be a charming and clear spoken child, with firm views that she is not afraid to express. The applicant recalled meeting her grandparents in Australia and described them as good people that she liked. She expressed interest in
visiting them in Kenya, but (as one might expect of [an age-year-old]) showed much more enthusiasm for going on safari than in spending time with aged grandparents.
The applicant said that she would be afraid to go back to Kenya, even for a visit, by herself. Her analysis was practical; she said that she didn’t think she could manage to fly alone, and that she worried about whether there were a lot of bad people in Kenya. She said that she just didn’t know if there would be good people or bad people, and was doubtful about how to tell the difference.
The applicant also expressed concern that the medicine available in Kenya was not as good as what was available in Australia and noted that lots of people have died for want of medical attention in Kenya. She said that she had some allergies and was ‘picky’ and wasn’t sure she could manage without her parents’ care. She presented as a thoughtful and mature young woman who had given genuine thought to how she might manage living in Kenya and who was genuinely afraid that she would come to harm if she didn’t stay with her parents.
On enquiry from the Tribunal the applicant said that she wanted to be a doctor when she grows up, and she understands that it requires hard work and commitment.
The applicant said that she had been sad to leave her family in WA, and that she has no relatives where she’s living now. She described crying at the airport when they left but said that she kept in touch by telephone. She demonstrated a sweet relationship with her [siblings] (notwithstanding that they are a bit bossy); she understands from them that the pet guinea pig that she left behind has been married to a local rabbit; an unusual union but one that the Tribunal hopes will comfort the guinea pig for the loss of a charming owner.
The applicant described her current school to the Tribunal as slightly larger than her previous school in Western Australia. She said that her favourite subjects were music and English. Both of those favourite subjects reflect the priority that she gives to communication and the expression of emotion and ideas.
The Tribunal asked the applicant what she would do if she saw an adult doing something bad, and the applicant said quickly that she would not get involved but would put her headset on and pretend nothing was happening. That quick, clear answer caused the Tribunal to ask the applicant if she had seen an adult do something bad in the past. She said that she had not, and the Tribunal believed her. It is apparent, however, that she has reflected on the possibility of seeing adults do bad things and/or perhaps has been taught that it is safer not to intervene if adults are doing bad things. The Tribunal believed her evidence on this point and finds that she would not report to her parents if she was a witness to (or the victim of) an adult behaving badly in Kenya.
Applicant’s mother’s evidence
The applicant’s mother gave evidence about coming to Australia in 2015, which she did alone until her husband joined her in March 2015. She said that her [children] (then [ages]) stayed with her husband’s parents from the time that she left Kenya in February until they came to Australia in December that year.
The applicant’s mother said that her parents were younger than her husband’s but that the culture in Kenya was that children live with their paternal families. She showed signs of distress when she said this but said that it was the culture and they respected it.
She provided the Tribunal with details of her family and childhood, confirming that girls marry very young in Kenya and that some of the girls she knows have been married at 16. She said that she had always loved [Area of study 1] and recalled her grandmother being a village [Occupation 3]
and coming home happy from [performing work tasks]. She said that she had not been able to complete her [Area of study 1] studies, however, because of the mental struggle after she became pregnant with the applicant. She had difficulty speaking about this period of her life.
The applicant’s mother said that Kenya was not a safe place, and that women were not treated fairly there; she spoke forcefully about how far ‘behind’ Kenya is, not just with respect to gender equality but with regards to power balance generally, with a few powerful men who are very bad. She said that the risk was compounded for people coming from Australia who were thought to be rich and ran a risk of kidnapping; she said people just go missing in her part of Kenya.
She also expressed concern that children in Kenya are not given any second chances at school but can be subject to corporal punishment on little provocation and with no warning. Although she was clear that her daughter would not be at direct risk of corporal punishment from her grandparents, she did not share that confidence with regards to the aunts and uncles that she would come into contact with, who might physically harm her as a means of punishment (or otherwise).
When pressed by the Tribunal the applicant’s mother said that she would possibly accompany the applicant if she had to return to Kenya. She was in tears, however, and indicated that it would be a very difficult decision whether to take her [other children] with her if she did that, given their opportunities here.
Country information about Kenya
The Department of Foreign Affairs and Trade has not released a report for Kenya. It has provided travel advice, however, which advises a high degree of caution in Kenya overall “due to the threat of terrorism and violent crime” with higher levels applying ‘in some areas’.29
Save the Children has reported that more than half of Kenya’s population are children, and that one in every three girls experience sexual violence before their 18th birthday.30 UNICEF has reported that of a population of over 55 million people, nearly 25 million of them are under 18, that 13% of women in the age range 20-24 were married before they turned 18, and that 32% of women aged 15-49 years consider a husband to be justified in hitting or beating his wife if she burns the food, argues with him, goes out without telling him, neglects the children or refuses sexual relations.31
The US Department of State 2024 Trafficking In Persons Report for Kenya included the following information:
As reported over the past five years, human traffickers exploit domestic and foreign victims in Kenya, and traffickers exploit victims from Kenya abroad. Traffickers exploit women and children in sex trafficking, often facilitated by family members in informal settings and increasingly using online recruitment, throughout Kenya, including in extraterritorial sexual exploitation and abuse in Nairobi, Mombasa, and Kisumu… Traffickers exploit Kenyan children in labor trafficking in domestic service, agriculture, fishing, cattle herding, street vending, and forced begging. Climate change, including drought for four consecutive years, has increased trafficking risks due to livelihood loss, leading to higher numbers of irregular migration, child marriages for monetary
29 accessed by the Tribunal on 28 July 2025.
30 accessed by the Tribunal on 28 July 2025.
31 accessed by the Tribunal on 28 July 2025.
gain, and child labor. Reports indicate criminals and gang members may exploit children in forced criminal activity, including as drug couriers. 32
The International Commission of Jurists (ICJ) published an article on 30 August 2024 titled ‘Trafficking and Sexual Exploitation Impairs Women’s Fundamental Rights and Freedoms’ which included the following passages:
Women and girls in Kenya constitute a vulnerable population that is susceptible to the emerging scourge of modern-day slavery commonly known as human trafficking or trafficking in persons which is manifesting itself in the form of sexual exploitation.
…
It is estimated that over 40,000 young people are affected by sexual exploitation in Kenya’s Port City of Mombasa where some are forced to have group sex with tourists under the guise of sex tourism. This is a classic example of human trafficking in the form of sexual exploitation.
Economic hardships, limited opportunities and lack of education make women and girls easy targets of perpetrators of sexual exploitation.
…
Despite the prevalence of sexual exploitation of children and women in Kenya, the lack of a national database for recording child sexual exploitation cases makes it difficult to comprehend the actual magnitude of the scourge. This makes it difficult to come up with effective measures meant to combat the scourge.33
The Head of the United Nations Anti-Human Trafficking and Child Protection Unit (AHTCPU) Kenya reported in 2020 that an estimated 600 children per year are rescued by her unit from trafficking, and that awareness needs to be raised among police officers on these crimes.34
The SBS Cultural Atlas provides that:
Kenya is highly patriarchal in the rural areas of the country. Girls and boys will have fairly separate upbringings, with each being taught the duties and obligations specific to their gender. Women are often expected to be obedient to their husbands as well as not to challenge or disagree with their views. Gender roles and responsibilities tend to be well-defined. The primary responsibility of the man is to support the family financially. The man is considered the head of the household and will rarely participate in household chores. Meanwhile, women are expected to care for the home and children. In rural households that lack modern appliances, running water and electricity, women are responsible for carrying water and firewood over long distances to bring home to the family. Some women will engage in paid labour outside of the household, such as running salons or market stands.35
In 2025, The United Nations Women reported “deep-rooted rigid social and gender norms that position men and boys as superior to women and girls” which are used to “justify violence, including sexual violence against women and girls” and further:
32 accessed by the Tribunal on 28 July 2025.
33 and-freedoms/ accessed by the Tribunal on 28 July 2025.
34 frontline-to-end-human-trafficking---mueni-mutisya--head-of-ahtcpu--kenya.html
35 'Kenyan Culture- Family', Chara Scroope, Cultural Atlas, 1 January 2018: accessed by the Tribunal on 28 July 2025.
Gender biases and stereotypes in the family and community increase women’s and girls’ vulnerability to multiple forms of discrimination and violence in their lives. Strong social norms that view men as better leaders, managers, administrators, owners of assets and properties, technical experts, negotiators, politicians, etc. and women’s internalisation/acceptance of these norms inhibit progress in advancing gender equality and women’s empowerment by confining women to reproductive and care roles. Under patriarchy, communities are structured based on functioning modalities of space, with patriarchal power overriding formal law in certain settings. The socio- cultural factors that drive patriarchy extend gendered mindsets that infiltrate institutions and policies that overlook the biases in their administration. Although women’s equality and access to resources are supported by laws, policies and interventions, women themselves are complicit in their subjugation.36
The country information about children in institutions and state care is dire.37 However, for reasons set out below, the Tribunal considers it unlikely that the applicant will end up in an institution or state care; it is more likely that she will be in the care of elderly grandparents that she has not previously met in person.
REASONS AND FINDINGS
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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. A person is a refugee if 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). 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.
The Tribunal is satisfied of the applicant’s identity, that she is a non-citizen in Australia, and that the country of reference is Kenya.
Membership of a particular social group
The Tribunal has considered whether ‘female English speaking child returned to Kenya after being raised in Australia’ is a particular social group for the purposes of the Act. When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. Section 5L provides that a person is to be a treated as a member of a particular social group if a characteristic, other than a fear of persecution, is shared by
36'Sexual and Gender Based Violence and Harmful Practices in Kenya', UN Women, n.d., accessed 24 February 2025, p. 3
37 Department of Children’s Services Ministry of Gender, Children and Social Development 2008, A Technical Assessment of the Legal Provisions and Practices of Guardianship, Foster Care and Adoption of Children in Kenya, 1 November p.20
each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.
In this case, the applicant shares three prominent characteristics that give rise to persecution in Kenya and distinguish the persecuted group from society; she is female, she is a child, and she has been raised in Australia pursuant to the Australian language, culture, and sense of self-worth (with associated freedom to speak and act in accordance with fundamental human rights).
Will the applicant be with family if she returns to Kenya?
The balance of evidence persuades the Tribunal that there is a real chance that the applicant would return to Kenya alone. The applicant’s parents have previously left their [other children] in the care of their grandparents, coming to Australia without them in 2015. The applicant’s father has demonstrated his ability to prioritise his work over living with his family in Kenya, for good reason; he has been able to support them in ways that he would not otherwise be able to do. The applicant’s mother may want to return to Kenya with her daughter, but her husband presents as the more forceful partner and he is clearly of the view that the applicant’s mother and [siblings] need to remain with him in Australia.
The Tribunal finds that there is a real chance that the applicant will be sent to live with elderly grandparents, who are already passed the average life expectancy in Kenya and who speak limited or no English and are unlikely to be equipped to assist the applicant to avoid harm at school and in social environments. They may not even be able to protect her from her patriarchal relatives. The applicant may spend significant amounts of time alone, may travel alone, and will be exposed to adults who may cause her harm. The Tribunal is not satisfied that the applicant would report such harm; there is a real chance that the applicant will put on her headphones and try to ignore the wrongdoing.
Is there a real chance of serious harm?
Any child who is travelling alone is at risk of being targeted by criminals anywhere in the world. In Kenya, the country information suggests that such targeting may involve kidnap and trafficking, particularly because this particular child is an attractive, Westernised girl. The applicant was comfortable giving evidence to the Tribunal and is demonstrably capable of making quick connections with new adults asserting authority in a friendly manner. She is vulnerable to being manipulated.
The applicant’s inability to speak any local language in Kenya, coupled with a certain sassy confidence in herself, increase the risk that she will be targeted.
The applicant has been raised exclusively in a Western country which, although imperfect, is working proactively to eradicate gender inequality and give a strong voice to young women. The country information suggests that this increases the chance of harm in Kenya and increases the seriousness of the harm that is chanced. The latter includes sexual violence, trafficking, and systemic gender discrimination of the sort designed to denigrate and reduce the self-worth of women for the purpose of promoting the interests of men; behaviour identified as coercive control in Australia.
Is the risk of harm for the essential and significant reason of the applicant’s particular social group?
The country information for Kenya unequivocally supports the proposition that a Westernised female child is at risk of serious harm in Kenya for the essential and significant reason that she is a female child who values herself in accordance with principals of gender equality which are actively suppressed in Kenya.
The country information also establishes that the authorities are both unable and unwilling to protect this particular social group.
Is the applicant a refugee?
The Tribunal finds that there is a real chance that the applicant will be subject to serious harm if she returns to Kenya, that the harm will be for the essential and significant reason of her membership of the identified particular social group and that the authorities in Kenya are unable or unwilling to protect her.
There is no evidence that at the present time the applicant has the right to reside in any third country, and no basis for the Tribunal to find that relocation would assist the applicant. It is not reasonable to suppose that [an age-year-old] girl would be able to quickly modify her learned behaviour to suit a patriarchal family in Kenya, but in any event such a modification of behaviour would be unreasonable.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
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.
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