1501021 (Refugee)

1501021 (Refugee) [2017] AATA 2224 (21 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1501021
COUNTRY OF REFERENCE:                  India
MEMBER:Amanda Paxton
DATE:21 August 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 21 August 2017 at 12:57pm

CATCHWORDS

Refugee – Protection visa – India – Social group – Homosexuality – Can relocate to Nepal – Extensive country information – Can live safely in Nepal
LEGISLATION
Migration Act 1958, ss 5(1), 36(2)(a), (aa), (b), or (c), 36(3), (4), (5) and (5A), 36(2A) and (2B), 65, 91R(1), 91R(1)(a) - 91R(1)(c), 91R(2), 499
Migration Regulations 1994, Schedule 2
CASES

MIMA v Respondents S152/2003 (2004) 222 CLR
MIMAC vSZRHU [2013] FCAFC 91
MZZXS v MIBP [2015] FCA 1384
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of India, applied for the visa [in] March 2013 and the delegate refused to grant the visa [in] January 2015.
The applicant appeared before the Tribunal on 12 July 2016 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A] and [Mr B].
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing. The applicant provided a copy of the delegate’s decision record to the Tribunal.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Protection Obligations
Subsection 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. They provide as follows:
Protection obligations
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that
(a) the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A) Also, subsection (3) does not apply in relation to a country if:
(a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.
This means that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s.36(4), (5) or (5A) are satisfied, in which case the s.36(3) preclusion will not apply.
The Full Federal Court in MIMAC vSZRHU [2013] FCAFC 91, has held that the term ‘right’ in s.36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.
In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s.36(3) does not apply because of the operation of s.36(4), (5) or (5A).
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s claims in his written application can be summarised as follows:
·     The applicant was born in Navsari, Gujarat on [date], identifies as Hindu, and speaks, reads and writes in Gujurati, Hindi and English.
·     The applicant arrived in Australia on a number of occasions, the first in September 2006 on a [temporary] visa, departing Australia [in] September 2009 and returning in October 2009, departing again [in] December 2012 and most recently retuning to Australia [in] February 2013.
·     The applicant is homosexual, and has known himself to be homosexual since childhood. The applicant states that he was discreet about his sexuality in India, where Hinduism does not permit same sex relationships and considers homosexuality wrong and abnormal and he was not open about his sexuality with his family; should his family become aware of his sexuality, he will not be accepted, and that they would try to send him to a Hijra and forced into sex work.
·     The applicant entered an arranged marriage in 2003, and he and his wife came together to Australia. However, the marriage broke down when his wife found he was not interested in her sexually and they separated [in] December 2007, and were later divorced in April 2009.[1] She advised her family that the applicant was not a real man and they have spread rumours about him in the community. He fears that on return to India he will be forced to remarry under family pressure to relieve them of the shame they feel.
·     Other than his wife, the applicant has had no relationships with women and since coming to Australia he has been able to express his sexuality and his mental health has improved because he feels safe and secure.
·     The applicant feels vulnerable to blackmail and violence in India and without the protection of police, and describes an occasion of blackmail by a rickshaw driver with whom he had sex.
·     In Australia, the applicant has developed a strong network of supportive gay friends. Because he was not aware he could apply to remain in Australia on a Protection visa, the applicant made various other applications seeking to remain, but these were unsuccessful.
·     The applicant has not experienced harassment from his family because they are unaware of his sexuality but he believes that he will be disowned and beaten by the family if they discover he is gay because they will want to protect their honour and also maintain their business status in the community.
·     The applicant will be forced to be married, and potentially blackmailed and subject to physical attacks and will not have the protection of the police; and may face harm from his ex-wife’s family.
·     The applicant would have to deny his sexuality.
·     The applicant claimed he cannot relocate to another part of India, because his family will require him to be in the family business.
[1] [File number] f. 49
Accompanying his application, the applicant provided photos of his life in Australia as a gay man, educational certificates indicating academic achievement in a [tertiary level] degree from Gujarat, English studies and achievement in [courses], and as discussed below, a number of statutory declarations from the applicant’s friends and work colleagues attesting to the applicant’s sexuality and character and in some cases discussing their experiences as homosexual people in India and expressing strong support for this application.[2]
[2] [File number], ff. 36 - 43
The applicant provided further Statutory Declarations with his application for review which support the applicant’s claims to identify as gay and refer to the Indian Penal Code which criminalised homosexual acts.[3]
[3] AAT, ff. 41 - 46
Country of nationality
Applicant claims to be a citizen of India, and has provided the Tribunal with his valid passport. The Tribunal finds the applicant is a citizen of India.
Assessment of claims
The applicant’s Protection visa was refused by a delegate of the Minister for Immigration. The delegate found that the applicant has statutory effective protection in a third country, namely Nepal, as set out in subsection 36(3) of the Migration Act.
On the evidence before it, the Tribunal also considers the main issues in this review are whether the applicant can access third country protection, and if so whether he has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention or whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to that third country, there is a real risk that he will suffer significant harm.
The Tribunal had before it material including:
·     A statutory declaration dated [in] July 2016 from [name], supporting the applicant’s claim to be recognised as an openly homosexual person and to fear harm from his family because of his sexual orientation and that he will be forced to marry a woman;[4]
[4] AAT, f. 46
·     A statutory declaration dated [in] July 2016 from [Mr A], attesting to the applicant’s homosexual orientation and expressing concerns that India has again made homosexual acts a criminal offence, and that the applicant will be open to persecution and discrimination on this basis. [Mr A] supports the applicants claims to fear that he will be forced by his family to marry a woman;[5]
·     A statutory declaration dated [in] June 2016 from [name], supporting the applicant’s claims to be homosexual and to fear harm in India;[6]
·     A statutory declaration dated [in] June 2016 from [name], supporting the applicant’s claims to be homosexual and to fear harm in India;[7]
·     A statutory declaration dated [in] June 2016 from [Mr B], supporting the applicant’s claims to be homosexual and to fear harm in India;[8]
·     A letter from [name and occupation], [Facility 1], supporting the applicant’s claims to be homosexual and attesting to his employment skills and reliability;[9]
·     Photos of the applicant with his gay friends;[10]
·     Report on homosexual arrests in India under s. 377 of the Indian Penal Code (IPC) and country submissions;
·     Homosexuality in Nepal, report by Dr Sheleyah A Courtney, 27 April 2011;
·     A letter from [name], clinical psychologist, [name] Clinic dated [in] August 2016, verifying that the applicant attended the clinic for a psychological assessment [in] October 2015, and providing the opinion that the applicant presented with anxiety and obsessive traits.[11]
·     A letter from the applicant’s General Practitioner in Australia supporting the applicant’s application and putting the view that if the applicant were to come out as homosexual in India he would be at risk of abuse by his family.[12]
[5] AAT, f. 43
[6] AAT, f. 43
[7] AAT, f. 42
[8] AAT, f. reverse 42
[9] AAT, f. 41
[10] AAT, ff 33 - 40
[11] AAT, f. 52
[12] [File number], f. 51
On 5 July 2016, the applicant’s representative has put forward extensive information from various sources to indicate that there is persecution against homosexuals in India.[13]
[13] AAT, ff. 27 - 30
In their submission to the Tribunal [in] July 2016, the applicant’s representative sets out various reports on persecution against homosexuals in India.[14] Along with updated reports of statements from the ruling conservative party condemning homosexuality as a disorder and against acceptable cultural values and reports regarding homophobic attitudes leading to forced marriage, evidence is submitted that in December 2013 the Indian Supreme Court has recriminalized homosexuality. Reports indicating that police use section 377 of the Indian Penal Code to arrest gay men. Reports of physical attack, rape and blackmail of people in the LGBTI community are provided. It is submitted that relocation is not a reasonable option for homosexual men in India.
[14] AAT, ff. 27 - 30

The Tribunal discussed the applicant’s claims at the applicant’s Tribunal hearing, and found him to be sincere and genuine. The Tribunal also took evidence from his witnesses, [Mr A] and [Mr B], and found them to be credible and motivated by a genuine and sincere concern for the applicant.
On the basis of the applicant’s evidence to the Tribunal, which was entirely consistent with his various written statements, the Tribunal accepts the applicant is an Indian citizen from Navsari, Gujarat, and speaks primarily Gujurati, but also speaks Hindi and English. The Tribunal has assessed the applicant’s claims against India.
The Tribunal accepts the applicant’s mother and [sibling], who has a [certain] business, live in the city of Navsari, and that his [other siblings] are residents of the [country]. The Tribunal accepts the applicant studied in a good school in his town, and that following school, his [family members] started a small business for him to have a [certain] business, and that while this suited him he experienced problems talking with customers who were unhappy about the feminine way he spoke. The Tribunal accepts his [family member]’s supported his proposal to study in Australia, and that he came to Australia in September 2006, studying first a [course] but dropped this and completed a qualification in [another course].
The Tribunal accepts the applicant married in 2003 in India. The Tribunal accepts this was an arranged marriage and the applicant did not feel comfortable in the marriage. The Tribunal accepts the applicant’s evidence that he came to Australia thinking the marriage may improve here and that his wife might accept him as a gay person but the marriage deteriorated, although he tried to support in non-physical ways. The Tribunal accepts the applicant and his wife separated [in] December 2007 and that they divorced in 2009. The Tribunal accepts the applicant is no longer in touch with his former wife.
The Tribunal accepts the applicant recognised his sexuality when he was a very young child, and that he had various homosexual relationships since he was [age]. The Tribunal accepts the applicant had some casual partners but because he feared being beaten, he was clandestine about his sexuality, particularly as he was living in his small home town.
The Tribunal accepts that he was blackmailed by a rickshaw driver with whom he had sex, who later returned repeatedly asking for money and threatening to expose the applicant’s sexuality if he did not comply with his demands. The Tribunal accepts the applicant has a subjective fear that if he is openly gay, or if he approaches someone who is not gay, he may be subject to trouble such as blackmail or violence. The Tribunal accepts the applicant has a subjective fear of harm from people in the community who exploit the fact that homosexual acts are criminal offence in India. The Tribunal further accepts the applicant has a fear that his sexuality will be discovered and that he will face criminal penalty if this occurs.
The Tribunal accepts that in Australia, the applicant does not hold the same fears and has enjoyed the freedom of being able to express his sexuality openly and safely. The Tribunal accepts that after a few months in Australia, he met a couple of gay people and started his gay life here. The Tribunal accepts the applicant has not had long term relationships, but enjoys a full gay life in Australia and strong support from friends in the gay community. The Tribunal accepts the applicant works in a gay [facility] in the city, [Facility 1], and has worked for that company since 2010.
The Tribunal heard the evidence of the applicant’s witness, [Mr B], who testified that that he first met the applicant at [Facility 1], when he was studying at [institute] and exploring the gay scene here; that they became friends, have friends in common and colleagues at [Facility 1] and continue to catch up every now and again and talk about gay matters, politics and cultural matters including the stigma against gay people in India, family and community expectations. [Mr B] confirmed that the applicant is identified as a gay man in the community and is openly so in Australia. [Mr B] provided his understanding that the applicant is not open about his sexuality in India and has learnt to present in quite a reserved manner because of his background, and that there are strong pressures on the applicant to marry. [Mr B] expressed concern that the applicant has now been in Australia for a large part of his adult life, and has built a strong support system that would be hard to re-establish.
The Tribunal also heard evidence from the applicant’s friend, [Mr A], a resident of [suburb], who testified that he met the applicant through friends, and that they gradually became better friends as time went on. They had done yoga together, been on drives, and frequently go to each other places often for dinner. They are not in a relationship but are great friends. [Mr A] displayed considerable knowledge of India having spent some time there himself. He put the view that gay rights have gone into reverse and expressed concern that Prime Minister Modi was creating problems in neighbouring countries such as Nepal. He put the view that although Nepal has its own constitution, Modi would like Nepal to be declared a Hindu state (while noting this would be difficult to do this because a number of areas of Nepal are not Hindu, e.g. Buddhist areas.) [Mr A] confirmed that the applicant is recognised as homosexual, and expressed strong support for the applicant as an industrious, clever and good-hearted person who would make a strong contribution to Australia.
On all the evidence above, the Tribunal accepts that the applicant is homosexual. The Tribunal accepts the applicant’s evidence that in India he was discreet about his sexuality and his family are not aware he is homosexual. The tribunal accepts the applicant is open about his sexuality in Australia.
Harm from the applicant’s ex-wife’s family
The Tribunal considered the applicant’s claim that he fears serious or significant harm from his ex-wife’s family. The Tribunal sought further information about the nature of the harm the applicant fears from his ex-wife’s family. The applicant provided a response that the Tribunal considered to be very vague. He told the Tribunal that his ex-wife’s family do not live very close to his own family but that his relatives are connected through community networks. He stated that his ex-wife’s family are in contact with his mother and give her trouble by spreading gossip, saying the applicant left their daughter because he is not a real man and by excluding his family from functions and seeking to reduce his family status which worries his mother. The Tribunal has considered the social exclusion and gossip his mother may be exposed to by his former wife’s family, and has had regard to the non-exhaustive examples of serious harm in s.91R of the Act, and the definition of significant harm as exhaustively defined in s.36(2A) of the Act, and assesses that while this conduct may be uncomfortable for the applicant’s mother, it is not indicative that the applicant faces serious or significant harm at their hands. On the evidence before it, the Tribunal considers the possibility the applicant’s former wife’s family will seriously or significantly harm the applicant is remote.
Harm from the applicant’s relatives
The Tribunal has considered the claim that the he fears his own family will force him to re-marry to prove to his ex-wife’s family there is nothing the matter with him. The Tribunal suggested that as an independent man [age], it would expect the applicant to be able to resist their efforts to compel him to marry. On the evidence before it, the applicant’s relatives have made no effort to force the applicant to return to India from Australia nor have they taken any action to place pressure on him for any reason to return to India or to re-marry despite the applicant’s claims that his relatives are concerned about the gossip about him. On the evidence before it, the Tribunal considers there is no basis to find that the applicant’s relatives will change their conduct in the future and seek out the location of the applicant, and in some way force him to return and to marry, or undergo any other treatment against his will. On this basis, the Tribunal finds the possibility the applicant’s relatives will seriously or significantly harm the applicant in India in the future is remote.
The applicant stated that his family will tell him he must get married so his mother is respected and that they may withdraw support to him if he does not. The Tribunal accepts that the applicant may be placed under social pressure to marry and that he may not be supported by his family if he does not comply with their demands. However, having regard to the non-exhaustive examples of serious harm in s.91R of the Act, the Tribunal does not accept that withdrawal of support in these circumstances amounts to serious harm. The Tribunal takes into account the applicant’s qualifications and employment experience, and considers that he would be able to find employment of some kind in India, even noting below evidence of employment discrimination against homosexual men in India discussed below. That is, the Tribunal does not accept that the applicant will be denied the capacity to earn a livelihood, where the denial threatens his capacity to subsist; or that he will suffer significant economic hardship that threatens his capacity to subsist. The Tribunal has also had regard to definition of significant harm as exhaustively defined in s.36(2A) of the Act and finds the applicant does not have a real risk of significant harm as defined for reason of withdrawal of support from his family. The Tribunal finds there is not a real risk that the applicant will suffer significant harm for this reason.
Harm from the authorities or the community in general
The Tribunal has considered the applicant’s claims accepted above that he is homosexual; that he fears blackmail or violence, from people in the community who exploit the fact that homosexual acts are a criminal offence in India; and that his sexuality will be discovered and that he faces criminal penalties if this occurs.
In this consideration, the Tribunal has noted the country information provided to the Tribunal by the applicant. The Tribunal has also considered reports before it from credible sources including DFAT, the US Department of State, Human Rights Watch and Amnesty International discussed with the applicant that homosexual acts are a criminal offence in India and potentially punishable with long prison terms and being homosexual is not tolerated by the community generally by any of the religious faiths.[15] [16] [17] [18] There are also a number of reports put to the applicant of men being physically attacked for reason of their sexual orientation.
[15] DFAT, Country Report: India, 15 July 2015
[16] US State Department, Country reports on human rights practices: India , May 2015, available at Human Rights Watch, World Report 2014: India, April 2015.
[18] Amnesty International, Annual Report 2014: India , May 2015; Sitlhou, M, ‘India’s UN vote - A reflection of our society’s deep seated anti-gay prejudice’, Amnesty International, 20 April 2015, available at >
As discussed with the applicant, according to the DFAT ‘Country Report: India’, 15 July 2015:
3.57 India has an active and increasingly visible lesbian, gay, bisexual, transgender, and intersex (LGBTI) community. However, homosexuality remains a social taboo and discrimination on the grounds of sexual orientation is prevalent in India, particularly in rural areas. Credible non-government organisations claim that it would be extremely difficult in practice to live in a publicly acknowledged homosexual relationship, and the overwhelming majority of gay people in India prefer to keep their sexuality a private matter. There is considerable familial and societal pressure on gay people to enter into a heterosexual marriage.
3.58 Section 377 of the Indian Penal Code makes it a crime to conduct ‘carnal intercourse against the order of nature’, punishable by imprisonment for life, or for up to ten years with a fine. This section has been the subject of numerous court cases in recent years, most recently by the Supreme Court in December 2013, which reinstated the offence. Since the 2013 Supreme Court ruling, a number of arrests have occurred under Section 377. India’s LGBTI community has argued that even if legal punishments are not upheld by the judiciary, the existence of Section 377 can be used as a means of harassment.[19]
[19] DFAT, Country Report: India, 15 July 2015, p. 16
Advice from Amnesty International in April 2015, put to the applicant, reported that:
Data from the Ministry of Home Affairs reveals that a total of 750 cases were registered under Section 377, and 587 arrests made, from January to October 2014 alone, although it is hard to ascertain how many of the cases involved same-sex intercourse between consenting adults. Hyderabad based non profit, Telangana Hijra Transgender Samiti reported 40 attacks on transgender people from September 2014 till February 2015. Human Rights Watch reported that in many cases, police officials refuse to register complaints.
While speaking out against Section 377, the Law Commission Chairman Justice Ajit Prakash Shah said, “Consequences of the laws in our country on gay sex include damage to the psychological well being of homosexuals, encouragement of violence and facilitation of police harassment and discrimination against the LGBT community.” In cases that do not get registered, members of the community are often blackmailed or abused by the police themselves.
As per a recent report in Reuters, Humsafar Trust documented 500 reports of abuse of LGBT people in Maharashtra, Goa, Madhya Pradesh and Rajasthan in 2014. Not to forget the tragic case in 2010 of Shrinivas Ramachandra Siras, an Aligarh Muslim University professor who was filmed engaging in consensual sex with a man in his home. Despite the 2009 Delhi High Court judgment, the university suspended the professor after the incident broke out and asked him to vacate the house allotted to him.[20]
[20] Sitlhou, M, India’s UN vote - A reflection of our society’s deep seated anti gay prejudice, Amnesty International, 20 April 2015, available at
Reports discussed with the applicant refer to numerous cases of violence against LGBTI persons since the December 2013 Supreme Court decision being ‘instances of institutional violence – policemen are the accused’.[21] As discussed with the applicant, the Tribunal also takes into account information above that India does have an active and increasingly visible LGBTI community. As put to the applicant, sources refer to the presence of LGBT organisations and culture in urban areas in India, but less acceptance of homosexuality in rural areas. The USDOS reports on human rights practices in India for 2013 and 2014 discussed with the applicant both note that LGBT groups reported facing ‘widespread discrimination and violence throughout society, particularly in rural areas’.[22] However, the 2013 USDOS report also comments that ‘LGBT groups were active throughout the country mostly in urban areas.’[23] Other sources support the assessment, put to the applicant that while homophobia is still widely present in India, and while societal abuse, discrimination, and violence are declining, they are still dominant throughout the rural areas, but metropolitan cities such as Mumbai, Delhi, Bangalore, and Chennai have become the core cities of modern day LGBT culture. [24]
[21] Ratnam, D, ‘Ground Report: Crime and punishment’, Livemint, 5 December 2014, available at US Department of State 2015, Country Report on Human Rights Practices for 2014 – India, 25 June, Section 6 < <OG2B06FAF86>; US Department of State 2014, Country Report on Human Rights Practices for 2013 – India, 27 February, Section 6 < Accessed 11 March 2014 <CIS27397>
[23] US Department of State 2014, Country Report on Human Rights Practices for 2013 – India, 27 February, Section 6 < Accessed 11 March 2014 <CIS27397>
[24] Dewan, T 2015, ‘Hinduism and LGBT Rights in Indian Society’, in G Andreopoulos et al, Rights For All? Sexual Orientation, Religious Traditions and the Challenge of Inclusion, The Center for International Human Rights, John Jay College of Criminal Justice, City University of New York, February, pp.108 & 112-113 < <CISEC96CF1725>
Media reports of 2015 put to the applicant indicate that, “that though much prejudice remains in India, there is increasing support for their cause. Only about a dozen people attended India’s first gay pride march, in the eastern city of Kolkata in 1999. Now thousands gather there each year and similar events are held in Delhi, Mumbai and other major cities and every major city now has an openly gay nightlife, supporting a microeconomy of professional party organizers and clubs with names such as Boyzone and Desi Dykes’.[25][26]
[25] Burke, J 2015, ‘Mother seeks groom for her son in India’s first gay personals advert’, The Guardian, 20 May < <CXBD6A0DE6837>
In response, the applicant told the Tribunal that police and authorities do not support the gay community and people take advantage of gay people because it is illegal. He states he fears the opportunities for blackmail this creates. He has been in Australia now about nine years and he is much healthier because he feels safe. He feels great stress when he thinks about return to India, where people have no respect for others.
The Tribunal has considered the country information before it and finds that the weight of country information indicates that there are strongly held negative views towards homosexuality in India, homosexuals continue to face physical violence or threat of physical violence from members of the community and the police, and that despite improvements in police attitudes, some police continue to threaten, harass and commit crimes against homosexuals, and homosexuals continue to face significant discrimination in areas including employment and housing. The Tribunal accepts the applicant should not be required to conceal or suppress his sexual orientation or identity and should be able to live openly as a person who identifies as homosexual. The Tribunal finds that the particular social group of homosexuals is recognizeable in Indian society and distinct from Indian society. The Tribunal finds the applicant identifies as homosexual and would be identified with this group by society and the authorities.
On the country information before it, noting that homosexuality remains a social taboo and discrimination on the grounds of sexuality is prevalent in India, particularly in rural areas the Tribunal finds the applicant as a homosexual man has a real chance of serious harm in his home area, modest city in conservative Gujarat.
Further, in light of information indicating that the law in India imposes criminal sanction on the applicant’s sexual orientation, the generally hostile community attitudes towards gay men, and that the police throughout the country engage in mistreatment, extortion and harm of homosexual men, the Tribunal finds that the harm the applicant fears exists throughout the country and the level of state protection available to the applicant is not that to which citizens are entitled to expect according to ‘international standards’ (as per MIMA v Respondents S152/2003 (2004) 222 CLR 1).

Accordingly, the Tribunal finds that the applicant has a real chance of serious harm due to his membership of a particular social group, being a homosexual man in India.
Relocation
The applicant told the Tribunal that he had thought about relocating to another part of India, but given that homosexuality was a criminal offence nationally, he feared he would be subject to harassment, discrimination and harm if he is open about his sexuality anywhere in India.
The Tribunal has considered that s377 of the Indian Penal Code has effect across India, including in those areas of India that are more tolerant towards homosexuals. Accordingly, the Tribunal finds that there is no part of India to which the applicant could reasonably be expected to relocate where he would be safe from the persecution her fears.
For the reasons given above, the Tribunal finds the applicant satisfies the criterion set out in s.36(2)(a) for a Protection visa.
Does the applicant have the right to enter and reside in Nepal?
The Tribunal explained to the applicant that it had to consider whether or not he has a presently existing right to enter and reside in a third country, within the meaning of s.36(3), and that if he did, then he may be excluded from Australia’s protection obligations, unless the Tribunal was satisfied that he has a well-founded fear of persecution in that country or that there are substantial grounds to believe there is a real risk he would suffer significant harm in that country, or that he has a well-founded fear of being removed from that country to India.
The Tribunal discussed s.36(3) and the issues relating to the Indo-Nepal Treaty of Peace and Friendship of 1950 as well as the administrative arrangements for entry of Indian citizens to Nepal which appeared to give the applicant, because of his Indian nationality, the right to enter and reside in Nepal. The Tribunal explained to the applicant that country information the Tribunal had had regard to, and which had been set out in the delegate’s decision provided to the Tribunal by the applicant, appeared to indicate that Articles 6 and 7 of the Treaty, and the administrative arrangements for entry by Indian citizens, as set out on the Nepal Immigration website, a Nepali government site, which listed identity documents which would allow Indian citizens to enter Nepal including, relevantly, a passport, which he presented to the Tribunal at the hearing valid until 2021, appeared to allow him to enter and reside in Nepal, and the Tribunal noted that these arrangements appeared to indicate that he could enter Nepal at the border, and reside there. [27] The applicant indicated that he was aware of the issue.
[27] Accessed at the Government of India Ministry of External Affairs website;
Section 36(3) provides that:
Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
Section 36(3) requires a right to enter and reside in another country; that right may be temporary or permanent, and there is no restriction on the manner in which the right arises or is expressed. The section does not refer to, or presuppose, a legally enforceable right under domestic law. The issue was considered by the Full Federal Court in MIAC v SZRHU, where the Court held that it is sufficient to have a ‘liberty, permission or privilege lawfully given’ which has not been withdrawn.[28] The relevant ‘liberty, permission or privilege’ must be a permission which obtains its effective substance from its grant “and thereafter from the lack of any withdrawal of it and from the lack of any existing prohibition or law contrary to its exercise.”[29] The right referred to in s.36(3) must be an existing right, and not a past or lapsed right, or a potential right or an expectancy.
[28] MIMAC v SZRHU [2013] FCAFC 91 (Tracey, Buchanan, Flick, Robertson and Griffiths JJ, 14 August 2013).
[29] V856/00A v MIMA (2001) 114 FCR 408 per Allsop J (at [31]), cited in MIMAC v SZRHU [2013] FCAFC 91 (Tracey, Buchanan, Flick, Robertson and Griffiths JJ, 14 August 2013) per Buchanan J at [45]. Justice Buchanan (at [89]), all other members of the Court agreeing, endorsed this construction by Allsop J.
In SZRHU the Court considered the bilateral agreement between India and Nepal known as the Indo-Nepal Treaty of Peace and Friendship of 1950, and directed that the Tribunal should pay regard to the actual terms of the Treaty, and evaluate whether, in combination with the terms of the Treaty, the administrative arrangements for entry by Nepalese citizens at the Indian border (or any other arrangements with respect to entry identified by it) satisfy the test of a ‘liberty, permission or privilege lawfully given’, to enter and reside in the country. In this context, the Tribunal notes that Article 7 of that Treaty provides that Indian nationals such as the applicant can enter and reside in Nepal:
The Governments of India and Nepal agree to grant, on a reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature (own emphasis).[30]
[30] Accessed at the Government of India Ministry of External Affairs website; >
Available information indicates that the administrative arrangements relating to the entry of Indian nationals into Nepal allow them to enter Nepal without seeking a visa or other permission and that these arrangements pertain under the provision of the treaty.[31] According to a 2013 article by Professor of Economics and Executive Director of the Centre for Economic and Technical Studies in Nepal Hari Bansh Jha, ‘there is no need of passport or visa formalities among the border inhabitants or other nationals of Nepal and India. The nationals of one country can enter into the other country through the border not merely through the checkpoints but through any point’.[32] This article states that while there are 22 official checkpoints along the Nepal-India border, citizens of Nepal and India ‘can cross over the border without any restriction from any point’. Nationals of other countries ‘require both an entry and exit visa and they must cross over the border through six immigration points’. The article also comments on the ability of Nepalese and Indian citizens to escape from one country to the other, stating that when ‘there is any political upheaval in one country, people easily escape by crossing over the border’. There is no evidence before the Tribunal that indicated the existence of practical barriers for Indian citizens being able to travel to and enter Nepal.[33]
[31] See ‘Information for Indian Citizens’, Nepal Immigration, available at Jah, H 2013, ‘Nepal’s Border Relations with India and China’, Eurasia Border Review, Spring, p. 63, available at
[33] Searches conducted on CISNET, open source search engines, human rights organisations, non‑government organisations, international news outlets and academic journals.
In this context, the Tribunal has taken into account relevant immigration laws in Nepal with regard to the entry rights of non-citizens, including the Immigration Act 1992, the Immigration Regulations 1994 and including the Immigration Procedures 2008, as those laws are published on the website of the Department of Immigration, Nepal, as the ‘Immigration Manual’.[34] Relevantly, the Immigration Procedures 2008 prescribe in Paragraph 8.4 the following requirements for the entry into Nepal of Indian citizens:
[34] See Nepal Government, Immigration Manual, available at
8.4 To allow Indian citizens to make travel on the basis of the following document:
·Passport, or
·Driving license with photograph, or
·Identity card with photograph issued by a governmental body, or
·Ration card with photograph, or
·Voter identity card with photograph, or
·Registration certificate issued by the Indian embassy to the Indian citizen staying in Nepal, or
·Ad hoc/temporary identity card issued by the Indian embassy to the Indian citizen in the event of exigency, or
·Document with photograph and setting out identity, issued by the sub-divisional magistrate or authority there above.
This information is replicated on Nepal’s Department of Immigration website.[35]
[35] See ‘Information for Indian Citizens’, Nepal Immigration, available at >
The website of the Embassy of Nepal in New Delhi provides information about the various visa types issued by the Embassy for entry to Nepal of non-Nepalese nationals, and, provides the following information for ‘Indian nationals’ entering Nepal by air at Tribhuvan International Airport, Kathmandu:[36]
[36] See Embassy of Nepal, New Delhi, ‘Visa Information’ available at
Visa for Indian Nationals:
Effective from 1st October 2000 an Indian citizen over the age of 10 years travelling between India and Nepal by air would have to keep in his possession any of the following documents to establish his/her identity as an Indian citizen:
·Valid Indian passport; or
·Photo identity card issued by the Government of India, or any State Government or Union Territory Administration in India, or the Election Commission of India; or
·Emergency certificate issued by the Embassy of India in Nepal.
The above information indicates that an Indian national is required to present at least one of the mentioned documents to ‘establish’ his nationality before he will be admitted into Nepal. This information indicates that, on producing one of those documents to an immigration border official in Nepal, an Indian citizen will be admitted into Nepal. Indeed, it is the fact of having Indian nationality that creates the right of entry and the passport or other form of identity document is merely evidence of the right of entry. The passport or other ID document does not create the right, and the ‘right’ to enter Nepal exists at all times a person is a national of India, and an Indian national merely needs to present one of the prescribed documents at the border to be admitted into Nepal. In this regard, the Tribunal notes its finding above that the applicant is an Indian national.
In submission [in] June 2017, the applicant’s representative referred to his earlier submission that the critical question in the applicant’s case is whether the Treaty and the administrative arrangements provide a right of entry and residence in Nepal for Indian citizens. It is submitted that the Tribunal needs to look beyond the terms of the Treaty to the administrative arrangements at the land and air border of India. It is submitted that the Bureau of Immigration, Ministry of Home Affairs, Government of India in its website provides that an Indian travelling by Air must produce either of these documents:
(f) Valid National Passport.
(ii) Photo Identity card issued by the Government of India/State Govt./UT Administration in India to their employees or Election ID card issued by the Election Commission of India.
(iii) Emergency Certificate issued by Embassy of India, Kathmandu.
(iv) Identity Certificate issued by Embassy of India, Kathmandu.
(v) Persons in the age of group of above 65 years and below 15 years would be exempted from the requirement of approved identity documents mentioned at SL. No.
(i), (ii), (iii) and (iv). However, they must have some documents with photograph to confirm their age and identity such as PAN card, Driving licence, CONS card, Ration card etc.
(vi) Children between the age group of 15 to 18 years may be allowed to travel between India and Nepal on the strength of Identity certificate issued by the principal of the school in the proscribed Proforma.
(vii) In case of a family (family means husband, wife, minor children and parents) traveling together, the approved identification documents at SL. No. (I), (ii), (iii) and (iv) would not be insisted from all the family members if one of the adult members of the family has in possession of one of the prescribed identification documents at SL. No. (i), (ii), (III) and (iv). However, the other family members must have some proof of their identity with photograph arid their relationship as a family viz. CGI S card, Ration card, Driving license ID card issued by school/college etc,
In respect of entry to Nepal, the Tribunal considers the Nepal Procedures Manual to be the authoritative document, but notes the information submitted by the applicant’s representative is consistent with the Manual.
In their submission [in] August 2016, the applicant’s representative argues in MZZXS v MIBP [2015] FCA 1384, the Federal Court held that in order to evaluate whether there is a right to enter and reside in Nepal, the Tribunal must know the means by which entry is permitted, by reference to evidence of the existence and source of the right. It is submitted that the Immigration Manual, 2008 of Government of Nepal, which deals with the relevant legal provisions in relation to immigration matters in Nepal and referred to above, provides procedures at Chapter 6 relating to investigation into and action on immigration related offences and that these procedures will apply to the applicant, as a person deported to Nepal from foreign countries, and that these procedures do not expressly or implicitly provide that an Indian National who is deported to Nepal will be allowed to enter Nepal. The applicant’s representative submits that if there is no legal provision allowing an Indian national who is deported back to Nepal to enter Nepal, a failed asylum seeker of Indian nationality deported (involuntary returnee) to Nepal cannot enter Nepal and therefore, cannot reside in Nepal. It is submitted that this is a practical impediment the applicant will face if the Department takes steps to deport him to Nepal. It is submitted the applicant, a failed asylum seeker of Indian nationality (involuntary returnee) cannot enter and reside in Nepal and accordingly that Nepal cannot be considered as a safe third country option in the applicant’s case.
In considering the applicant’s right to enter and reside in a third country, the Tribunal has referred to Chapter 6 of the Immigration Manual 2008 and covers procedures relating to investigation into and action on immigration offences, and that at 6.1 it provides that:
6.1 In relation to persons deported by foreign countries and sent back to Nepal:
Obligation and working procedure of the Immigration Office:
1.1 Prior to receiving documents, the Immigration Office shall carry out a preliminary inquiry, based on the available documents, as to whether the person deported by a foreign country and sent back to Nepal is a citizen of Nepal or not, whether he or she is to be allowed to enter into Nepal or not.
1.2 If it appears from the inquiry referred to in clause 1.1 that such person is a citizen of Nepal or a person who is to be allowed to enter into Nepal, to receive the documents and person from the concerned airlines. If that person is not found to be a citizen of Nepal, not to receive that person and then the custody of that person shall remain with the concerned party.
For this purpose, if the visitor uses the travel document of the concerned country, to take such preliminary statements from him or her as to answer the following questions.
His or her name, surname, address, age and occupation, and his or her father's and grand-father's name:
Whether he or she has obtained citizenship certificate or passport or not. If yes, where, when and how he or she has obtained it. Description setting out it number and date.
Where is the passport obtained previously? What is its condition? After obtaining the passport, how did he or she obtain visa of which country? Which point did he or departed from and to which destination?
The Tribunal notes first that the Nepal Procedures Manual support Nepali legislation and policy and as such the reference to ‘immigration offences’ are to offences under Nepalese immigration law. The applicant has not committed offences under Nepali immigration law and involuntary removal from Australia would not constitute such an offence. On this basis, the Tribunal does not accept that provisions under Chapter 6 would apply to the applicant in the event he was removed involuntarily from Australia.
Even if the procedures applied to the applicant, the Nepal Immigration office would nonetheless identify the applicant as an Indian national from the documentation provided and based on the Treaty discussed above he will be found to be an Indian national and will be allowed to enter and reside in Nepal. In the applicant’s case, the provision above that “If it appears from the inquiry referred to in clause 1.1 that such person is a citizen of Nepal or a person who is to be allowed to enter into Nepal, to receive the documents and person from the concerned airlines” applies. The Tribunal finds the applicant has a presently existing right to enter and reside in Nepal. The Tribunal finds the administrative arrangements for entry in Nepal provide liberty, permission and privilege lawfully given to the applicant.
The applicant’s representative requested that the Tribunal address the following issues:
Whether a failed asylum seeker who is an Indian citizen would be granted an entry and reside in Nepal? As noted above, the Tribunal finds the Indo-Nepal Treaty of Peace and Friendship provides that the ‘right’ to enter Nepal exists at all times a person is a national of India, and an Indian national merely needs to present one of the prescribed documents at the border to be admitted into Nepal. The Tribunal finds that a failed asylum seeker who is an Indian citizen will be granted entry and residence in Nepal
Whether the Nepalese authorities would allow an involuntary (forced) returnee being an Indian national to enter and reside in Nepal? As above, the Treaty provides that the ‘right’ to enter Nepal exists at all times a person is a national of India, and an Indian national merely needs to present one of the prescribed documents at the border to be admitted into Nepal. The Tribunal finds that an involuntary returnee being an Indian citizen will be granted entry and residence in Nepal.
Whether the Nepalese authorities would allow an Indian national to enter and reside in Nepal without a valid passport or with an emergency passport issued by the Indian High Commission in Australia? As discussed, the Procedures identify the manner in which an Indian citizen’s citizenship is to be established. The Tribunal notes the applicant is an Indian citizen and on that basis is entitled to issue of one of the prescribed documents. On this basis, the Tribunal finds the administrative arrangements satisfy the test of a ‘liberty, permission or privilege lawfully given’, to enter and reside in the country.
In the submission [in] August 2016, the applicant also asks the Tribunal to identify what circumstances an Indian national residing in Nepal could be sent back to India, and in particular whether an Indian national charged with a criminal offence in Nepal would be sent back to India. It is submitted the applicant may be charged and convicted in Nepal under the Public Offences Act 1970 (POA) for his gay sexual orientation activities. The Tribunal considers this claim is based on a purely speculative scenario and notes that the test to be applied is that there is a presently existing right to enter and reside in a third country, which according to the information above, the applicant does have. For completeness, however, the Tribunal notes its finding below that the possibility the applicant will be charged under the POA for his gay sexual orientation activities is remote. As above, the Tribunal has found that the applicant, as an Indian national, does have a presently existing right to enter and reside in Nepal.

The applicant’s representative also requested the Tribunal provide evidence of administrative arrangements at the border between Nepal and India for an Indian travelling via air. The Tribunal has considered the terms of the Indo-Nepal Treaty of Peace and Friendship and the Nepalese Procedure Manual, both of which were before the applicant and discussed in the delegate’s decision provided to the Tribunal by the applicant and at the Tribunal hearing. The Tribunal regards these documents as appropriate evidence of administrative arrangements at the border.
Loss of passport
[In] June 2017, the applicant’s representative submitted that the applicant lost his passport in January 2017, and on the basis of the applicant’s statutory declaration to the police, the Tribunal accepts this is the case.[37] The applicant’s representative advised that the applicant reports that he does not want to approach the Indian High Commission to apply for a new passport as he fears that he would be forced to divulge his protection visa claims to the Indian High Commission. The applicant has instructed that he does not want to approach the Indian authorities because he fears harm from the Indian authorities or agents of the Indian authorities due to his sexual orientation. It is submitted that on this basis, the applicant is not able to provide a document to establish his identity as an Indian citizen for the purposes of entry into Nepal. It is further submitted that it is not reasonable to expect the applicant to approach the Indian authorities from whom he seeks protection to obtain a new passport.
[37] AAT, f. 69
It is submitted that VFS Global which is responsible for renewing or providing new Indian Passports has provided clear particulars and requirements to obtain a passport or renew a passport in Australia and referred the Tribunal to the VFS website. The Tribunal has examined the processes described by the applicant’s representative and notes the requirements in the case of a Lost/Damaged passport that a checklist be completed.[38] The applicant’s representative submits that one of the requirements in the check list is that the applicant must provide his Visa Entitlement Verification Online (VEVO) and further notes that in relation to all bridging visas, a 'Visa Grant Notice' must be provided clearly specifying the category of visa applied for. The applicant’s representative suggests this means the applicant is expected to disclose the basis he has the visa. It is submitted that if the AAT insists the applicant approach the Indian authorities to obtain a new passport, the applicant would be forced to divulge his protection visa matters to the authorities from whom he seeks protection.
[38] AAT, pp. 73 - 74
It is submitted that it is not reasonable to expect the applicant to divulge his protection visa matters to the Indian authorities to obtain the Indian passport, and in such a situation, the applicant cannot enter Nepal since he does not have a valid passport and would not be able to obtain a new passport from the Indian authorities unless he divulged his protection visa matters. Further, the applicant does not have any Indian Identity card or voter document. It is submitted that according to the current administrative arrangements, the applicant would not be able to enter Nepal and therefore, Nepal should not be considered as a safe third country.
The Tribunal has considered the applicant’s concerns and notes that the applicant is not required to disclose he has applied for protection in Australia in making a passport application. While the applicant will be required to provide proof of a valid visa status, such as a visa grant notice, such a notice will refer to the category of visa applied for, that is, a Bridging visa C. As such, the Tribunal finds the applicant’s application for a Protection visa will not be disclosed. The Tribunal further notes that Protection visa claims are private and confidential and as such are not disclosed to any third party. The Tribunal does not accept the applicant cannot obtain a passport from the Indian Embassy for this reason.
The Tribunal notes that the checklist on the VFS Global website, provided to the Tribunal by the applicant, requires that if you are applying for a new passport to replace a lost passport, an applicant must submit Form V. Form V is an affidavit for a passport in lieu of a lost or damaged passport, and requires the applicant state how and when the passport was lost/damaged and when a report was lodged and at which police station. The applicant for the new passport is required to provide details associated with the loss of the passport.[39] Noting the applicant’ statutory declaration to the [State] Police which contains relevant passport details, provided to the Tribunal by the applicant, the Tribunal considers the applicant can meet this requirement.
[39]
The applicant’s representative suggests that the Indian authorities require anyone who wants to renew or obtain an Indian passport in Australia must provide a declaration confirming that he has neither taken asylum nor applied for asylum/refugee status, a Form 1 (Attachment 2).[40] The Tribunal notes the VFS website indicates that this is not a required form for obtaining a new passport where it has been lost or damaged. The Tribunal does not accept the applicant will be required to declare that he has sought asylum or that he will be denied a passport for this reason. The Tribunal does not accept the applicant cannot obtain a passport from the Indian Embassy for these reasons.
[40] AAT, f. 72
Taking into account all the discussion above, the Tribunal finds that the applicant has an existing right to enter and reside in Nepal. The Tribunal notes that s.36(3) does not permit a decision maker to consider whether the exercise of a right to enter and reside is ‘reasonable’, rather it requires consideration of whether a person has taken ‘all possible steps’ to avail themselves of a right to enter and reside. The Tribunal finds that while the applicant may face challenges in establishing himself in Nepal, s.36(3) does not incorporate any requirement to consider matters such as a person’s ability to obtain employment or accommodation, or to access welfare benefits upon taking up residence.[41] Nor are Australia’s protection obligations enlivened by virtue of the possibility that a person may suffer privation or be exposed to significant difficulties in maintaining a lifestyle by exercising such a right outside Australia.[42]
[41] SZMWQ v MIAC (2010) 187 FCR 109.
[42] SZMWQ v MIAC (2010) 187 FCR 109 per Rares J at [32]. However, in SZRTC v MIAC [2014] FCAFC 43 at [48].
The Tribunal has also considered whether the applicant has taken all possible steps to avail himself of his right to enter and reside in Nepal. On the evidence before it, the Tribunal finds the applicant has not taken all possible steps to avail himself of his right to enter and reside in Nepal. The Tribunal finds that s.36(3) applies in the applicant’s case.
Does the applicant have a well-founded fear of being persecuted for one of the enunciated reasons or is there a real risk of him suffering significant harm in Nepal?
As discussed with the applicant, if the Tribunal finds that s.36(3) applies, the Tribunal must then consider s.36(4):
36(4) Subsection (3) does not apply in relation to a country in respect of which:
(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
Having concluded that the applicant has an existing right to enter and reside in Nepal, the Tribunal has considered the applicant’s claims to have a well-founded fear of persecution in Nepal or whether there are substantial grounds to believe there is a real risk he would suffer significant harm in Nepal, or that he has a well-founded fear of being removed from Nepal to India. The applicant at the Tribunal hearing and in his Statutory Declaration [in] October 2014, provided a range of reasons why he faces serious or significant harm in Nepal.[43]
The applicant’s family members
[43] [File number], f. 107
The applicant declares that his[sibling], who has a [certain] business in Gujarat often travels around India for business. He also has [relatives] who have businesses in Navsari who have friends in the Indian Police Department. The applicant claims his relatives are Hindu nationalists and follow strict conservative values and consider homosexuality a disease belonging to western culture and sinful and that people involved in such activities should be punished. He declares his [relative] frequently travels throughout India and sometimes to Nepal, and that he has friends who are members of the current ruling BJP. He further claims that one of his [relatives] also has [number] sons in the military, and his [relatives]’s [family member] is a BJP political member and previously village Sarpanch. The applicant claims his family members will use influence through their friends to convince the Nepalese authorities to trace the applicant. He claims his family will look for him, force him to return home and to marry, or force him to change his sexual orientation by conducting Hindu rituals or sending him to a psychiatric centre, or harm him.
The Tribunal has considered the applicant’s claim to have a real chance of serious harm or a real risk of significant harm at the hands of his relatives. The Tribunal has considered first whether the applicant’s relatives will know the applicant is residing in Nepal. When the Tribunal suggested that the possibility the applicant’s relatives will become aware of his residence in Nepal was remote, the applicant stated that they would become aware he was in Nepal because he would have to tell his mother where he was in case something were to go wrong for her and she needed to contact him. The applicant implied she will share the news with his relatives. The Tribunal acknowledges the applicant’s genuine attachment to his mother and the emotional difficulties that may present for him in not revealing to her his whereabouts. However, the Tribunal would expect that in the event the applicant faces serious or significant harm from his mother and relatives, that he would not reveal his whereabouts to them. The Tribunal drew from the applicant’s willingness to share his location with his mother the conclusion that he does not have a real chance of serious harm or a real risk of significant harm from his mother and relatives in India or in Nepal.
The Tribunal accepts the applicant’s evidence as set out above that his [sibling], [certain relatives] and other relatives have conservative Hindu values and negative views about homosexuals, that they have business interests and some travel around India and sometimes Nepal. On the same evidence as considered above in respect to the applicant’s claims to face a real chance of serious harm or a real risk of significant harm in India from his relatives, the Tribunal considers the possibility the applicant’s relatives will locate him in Nepal, force him to return and re-marry or seek to change his sexual orientation, send him to a Hijra and force him into sex work or beat him or harm him is remote. In this consideration, the Tribunal taken account that the applicant’s relatives may be conduct themselves differently if they became aware the applicant was residing in Nepal, noting that his relatives be more willing and/or able to track down the applicant because of Nepal’s physical proximity to India, the ability of Indian nationals to travel to Nepal and his [relative]’s travels to Nepal. However, considering there is no evidence before it that the applicant’ relatives have any interest in the applicant the Tribunal has formed the view that they will not display different conduct if they became aware the applicant was residing in Nepal.
The Tribunal also notes the applicant’s claim that some of his relatives have police and/or some political connections and has considered whether the police and/or political connections will extend to influencing the Nepalese police to locate the applicant and force him to return to India. On the evidence before it, the Tribunal does not accept the applicant’s relative’s influence extends to the Nepalese authorities or that they would use their connections to trace the applicant and force him to return. The Tribunal does not accept the applicant has a real risk of serious harm or a real risk of significant harm in Nepal on this basis.
On the evidence before it, the Tribunal considers there is no basis to find that the applicant’s relatives will change their conduct in the future and seek out the location of the applicant in Nepal, compel him to return from Nepal to India, and in some way force him to return and to marry, or undergo any other treatment against his will. The Tribunal has considered whether the applicant’s relatives may be more willing and or able to track the applicant because of Nepal’s physical proximity to India, the ability of Indian nationals to travel to Nepal, his [relative]’s travel to Nepal. On this basis, the Tribunal finds the possibility the applicant’s relatives will seriously or significantly harm the applicant in Nepal is remote. The Tribunal does not accept the applicant has a real risk of serious harm or a real risk of significant harm in Nepal on this basis.
As discussed above, the Tribunal accepts that the applicant’s family are unlikely to approve of his conduct should his status as a gay man become known to them, and they may withdraw support from him if he does not comply with their demands to change his behaviour and to marry. However, having regard to the non-exhaustive examples of serious harm in s.91R of the Act, the Tribunal does not accept that withdrawal of support in these circumstances amounts to serious harm. While acknowledging that the applicant would face challenges establishing himself in a new location, the Tribunal takes into account that the applicant is a mature man of [age] who has demonstrated an ability to live independently from his family over the years he has been in Australia. The Tribunal also takes into account the applicant’s qualifications and employment experience, and considers that he will be able to find employment of some kind to support himself in Nepal, as discussed further below. The Tribunal does not accept that the applicant will be denied the capacity to earn a livelihood, where the denial threatened his capacity to subsist; or that he will suffer significant economic hardship that threatens his capacity to subsist. The Tribunal has also had regard to definition of significant harm as exhaustively defined in s.36(2A) of the Act and finds the applicant does not have a real risk of significant harm as defined for reason of withdrawal of support from his family. The Tribunal finds there is not a real risk that the applicant will suffer significant harm for this reason.
On the basis of all the evidence before it, the Tribunal does not consider the applicant has made out a case that there is a real chance his relatives will subject him to serious or significant harm in Nepal. The Tribunal finds that the applicant does not have a well-founded fear of persecution from his relatives were he to enter and reside in Nepal and that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant entering and residing in Nepal that there would be a real risk he would suffer significant harm for this reason.
The applicant’s ex-wife’s family
The applicant further claims his ex-wife’s [relative], a member of Congress in Maharashtra will use his influence to trace him in Nepal because he left his wife due to his sexual orientation. The applicant further claimed [another relative] of his ex-wife is in politics and is a trouble maker. The Tribunal accepts the applicant’s ex-wife family may have some political connections. However on the evidence of the applicant, he has had no contact with his ex-wife’s or her family for more than eight years. The Tribunal considers it far-fetched and illogical that after such a period of time has elapsed the applicant’s ex-wife’s family will use their influence to trace the applicant in Nepal or seek to harm the applicant because he left his wife due to his sexual orientation. On the evidence before it, the Tribunal considers the possibility the applicant’s former wife’s family will seriously or significantly harm the applicant is remote.
Harm from the community in Nepal
The Tribunal discussed the situation for LGBTI persons in Nepal, noting the applicant declares he will not be safe as a homosexual in Nepal because Nepal is conservative, with a majority of people adhering to Hinduism just as in India, and because he does not have the protection of any relatives in Nepal. He claims that Nepalese people continue to target LGBTI people and that as the Nepalese are also anti-Indian, the risk he will face serious or significant harm will be enhanced because he will be identified as Indian because he does not speak Nepali.
The applicant’s representative submitted various reports dealing with the situation of homosexuals in Nepal, including Human Rights Watch reports dated 11 January 2006 and April 2007 concerning Maoist homophobia and discrimination against sexual-minorities.[44]
[44] [File number], ff. 96
The applicant’s representative has put forward information from sources such as the US Department of State, and Human Rights Watch, indicating that harassment, discrimination and abuse of LGBTI community continued by both government and citizens, and that no legal protections from discrimination or hate crimes exists in Nepal for LGBTI persons. In their submission [in] August 2016, the applicant’s representative provided country information from Freedom House, reporting that LGBT people face harassment by the authorities and other citizens, particularly in rural areas, although the Supreme Court ordered the government to abolish all laws that discriminate against LGBT people in 2007, and gave its consent to same-sex marriage the following year, the government has yet to implement these rulings.[45] It is further submitted that according to local LGBTI advocacy groups, negative perception of LGBTI people persist in families leading to discrimination and abuse in families and family pressure to marry, and in the broader community leading to abuse and derogatory words, even though Nepal's LGBT community has constitutional rights. [46] [47]
[45] Freedom House, Freedom in the World 2016 - Nepal, 14 July 2016, available at: ff. 72 - 93
[47] Star Observer, Nepal’s LGBTI community finds solace in social media, May 31, 2016, available at: >
Reports from the Nepalese Blue Diamond Society were also submitted that the government did not provide equal opportunity to LGBTI persons in education, health care, or employment; and that gay and lesbian sexual orientation is not widely accepted as normal in Nepal, and that gay males continue to hide their sexuality out of fear being scolded by the general public.[48] It is claimed that Nepalese law, policies and Court pronouncements have not been implemented at societal level.
[48] United States Department of State, 2015 Country Reports on Human Rights Practices - Nepal, 13 April 2016, available at: refworkl, org/docid/5716122fe. htm

100. The applicant’s representative submitted that in April 2013, there were allegations that approximately 50 LGBTIs had been detained by the police under the Public Offence Act 1970 (POA), subjecting them to up to 25 days' detention without charge under the Public Offence Act and that there had been complaints of verbal abuse, severe beatings and indiscriminate body searches. It was submitted that there is a real chance and a real risk the applicant will be arrested and detained under this act as a homosexual in Nepal.
101. In summary, it is submitted that persecution against homosexuals continues in Nepal which remains a conservative country; that homosexuals face harm in Nepal as a result of exercising their sexual preference; that there is a lack of protection for homosexuals; that internal relocation is not an option for homosexuals in Nepal; that homosexuals continue to face discrimination and harassment in Nepal; that gay men face immense social pressure because of their sexual orientation. On the basis of this information, it is submitted that Nepal should not be considered as a safe third country, particularly as the applicant is a gay male of Indian nationality and would therefore be particularly vulnerable for targeted attacks and harm in Nepal.
102. The Tribunal has considered the applicant’s claim that he will be subject to adverse treatment by anti-gay Maoist forces. The Tribunal does not consider that the attitudes attributed to the Maoist rebels pre-2007 are relevant to the current situation in Nepal. The Tribunal has taken into account information, cited by the applicant and discussed at hearing that after the Maoist rebellion and civil war in Nepal, and in the post war elections in 2006, Maoist sentiment turned to address Nepal’s diversity and inequality and in the process mobilised a campaign to guarantee equal rights for sexual minorities.[49] As discussed at hearing, while Maoist guerrillas were not liberal when it came to sexuality, the new social and political space for sexual minorities arising from Nepal’s attempted Maoist revolution, enabled significant change to occur and the gay rights lobby succeeded in convincing Nepal’s Supreme Court to instruct the new government to repeal age-old laws that made homosexuality a crime in 2007. [50] As put to the applicant, a year later, the court directed legislators to draft new laws guaranteeing equal rights for sexual minorities and convene a committee to consider the implications of legalizing gay marriage in the new constitution.”[51] A discussed, according to representatives of the LGBTI community, after 2007, people are changing; “Now they are able to accept people from the LGBTI community in their villages and even in their families.”[52] On the evidence before it, the Tribunal does not accept the applicant faces serious or significant harm on return to Nepal from anti-gay Maoists in Nepal.
[49] ‘Nepal, thanks to Maoist rebels, is emerging as Asia’s pioneer regarding rights for LGBT people’, The Huffington Post, 4 December 2011, available at 11/11/09/nepal-asia-pioneer-lgbt-rights_n_1084188.html
[50] ‘Nepal, thanks to Maoist rebels, is emerging as Asia’s pioneer regarding rights for LGBT people’, The Huffington Post, 4 December 2011, available at 11/11/09/nepal-asia-pioneer-lgbt-rights_n_1084188.html
[51] ‘Nepal, thanks to Maoist rebels, is emerging as Asia’s pioneer regarding rights for LGBT people’, The Huffington Post, 4 December 2011, available at 11/11/09/nepal-asia-pioneer-lgbt-rights_n_1084188.html
[52] ‘Nepal, thanks to Maoist rebels, is emerging as Asia’s pioneer regarding rights for LGBT people’, The Huffington Post, 4 December 2011, available at 11/11/09/nepal-asia-pioneer-lgbt-rights_n_1084188.html
103. The Tribunal raised with the applicant information about the situation for LGBTI people in Nepal which indicates that, since 2007, no laws criminalise homosexuality in Nepal.[53] The Tribunal notes that the most recent US Department of State Country report on human rights practices in Nepal relevantly states:
[53] ‘Nepal leads on gay rights with international parade’, ABC News, 30 August 2010, available at
Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity
No laws specifically criminalize same-sex sexual activity, and lesbian, gay, bisexual, and transgender (LGBT) persons actively and openly advocated for their rights. LGBT activists continued to press for protections for sexual minorities in the new constitution.
In 2007 the Supreme Court directed the government to enact laws to protect LGBT persons’ fundamental rights, enable third-gender citizenship, and amend laws that were sexually discriminatory. Implementation of the 2007 decision was initially slow. In 2013 the Home Ministry started issuing citizenship certificates with an “others” gender category for those applying for citizenship. In April the Ministry of Women, Children, and Social Welfare assigned an official to be the focal person for sexual and general minorities. According to Blue Diamond Society (BDS), a local LGBT advocacy NGO, the government did not provide equal opportunity to LGBT persons in employment, education, and health care.
Government authorities and private citizens reportedly harassed and abused LGBT persons, and the Nepal Police HRC documented two such incidents during the year, a decline from 2013. According to BDS, harassment of LGBT persons was common. BDS also stated the police targeted transgender sex workers, subjecting them to 25 days’ detention without charge. The Nepal Police HRC confirmed that some low-level harassment occurred because many citizens held negative views of LGBT persons, and the Nepal Police were not immune to such social perceptions. The Nepal Police HRC conducted LGBT rights training and worked closely with the LGBT community to minimize and prevent such harassment.^[54]
[54] US Department of State, Country Reports on Human Rights Practices for 2014 – Nepal; The Tribunal has also taken note of the following advice of the US Department of State put forward by the applicant in the submission of 22 April 2016:
LGBTI Rights: Same-sex sexual activity is not criminalized, and lesbian, gay, bisexual, and transgender (LGBTI) persons in Nepal actively and openly advocate for their rights. Nepal, however, remains a conservative and traditional society. Discrimination exists and there have been reports of non-violent harassment of LGBTI persons. Accordingly, LGBTI travellers may wish to be discreet and avoid public displays of affection.[55]
[55] US Department of State Bureau of Consular Affairs, Country information: Nepal, local laws and special circumstances,
105. The Tribunal considers it relevant that in 2007 and 2008, a series of rulings by the Nepalese Supreme Court gave rise to rights and protection to lesbian, gay, bisexual, transgender and intersex (LGBTI) persons in Nepal. These rulings directed the government to amend all sexually discriminatory laws.[56] The Tribunal accepts country reports, discussed with the applicant, indicating that in recent years the High Court has declared that gays and lesbians have equal rights and that discrimination would ‘not be tolerated.’[57] More recent reports discussed with the applicant in summary indicate that same sex sexual acts are legal in Nepal, and that in January 2015 a committee established by order of the Supreme Court in Nepal to review the legal rights of LGBT recommended same-sex marriages be legislated.[58] It has also been reported that the Constitution was amended on 16 September 2015 to enable citizens to choose their preferred gender identity on citizenship documents, making gender and sexual minority discrimination unlawful, and allowing these citizens to participate in state mechanisms and public services to promote inclusion.[59]
[56] ‘Country Reports on Human Rights Practices for 2010 – Nepal’, US Department of State, 8 April 2011, Section 6; ‘Annual Report 2009 – Nepal’, Amnesty International, 28 May 2009; ‘Countries at the Crossroads 2010 – Nepal’, Freedom House, 7 April 2010, p.11.
[57] ‘Society Lags Behind Progressive Laws on Homosexuality’, Pulitzer Center on Crisis Reporting, 3 January 2010.
[58] Carroll, A., Itaborahy, L., International Lesbian, Gay, Bisexual Trans and Intersex Association (ILGA) State-Sponsored Homophobia – a world survey of laws: criminalisation, protection and recognition of same-sex love, May 2015 (10^th Ed) -
[59] Gay law net, Laws – Nepal,
106. The Tribunal notes country information refers to the religious aspects that govern social life in Nepal and that this makes it difficult for homosexuals to come out to their families. An interview with a homosexual man reported that despite the ‘tremendous gains made by the gay community in Nepal’, the particular man did not want his identity made public as “he doesn’t feel safe coming out to his own family, including his wife.’[60] However, the Tribunal also notes reports discussed with the applicant that Nepal has been described as ‘one of the most progressive countries in terms of gay rights in the region’.[61] Further positive actions highlighted in a 2009 article on the International Gay & Lesbian Human Rights Commission website include the appointment of openly gay Member of Parliament (MP) and founder of gay rights organisation the Blue Diamond Society (BDS), Sunil Pant, to the Constituent Assembly, and the instruction by Prime Minister Pushpa Dahal Prachandra of ‘both the Foreign Ministry and Nepal’s Ambassador to the United Nations (UN) to support a statement at the UN General Assembly recognizing human rights violations based on sexual orientation and gender identity.’[62]
[60] ‘Society Lags Behind Progressive Laws on Homosexuality’, Pulitzer Center on Crisis Reporting, 3 January 2010, available at ter.org/blog/nepal-society-lags-behind-progressive-laws-homo sexualityformat=print
[61] ‘Nepal leads on gay rights with international parade’, ABC News, 30 August 2010.
[62] ‘Nepal: Lesbian Visibility Increases After the Government Recognizes LGBT Rights’, International Gay & Lesbian Human Rights Commission, 21 May 2009, available at
107. The Tribunal discussed with the applicant his submission that the Public Offences Act 1970 (POA) confers broad powers on law enforcement offices, as the Act fails to define what constitutes a public offence. The Tribunal noted information put to the applicant that this incident was linked to the former chief district officer of Kathmandu, Mr Sharma, who had also refused to issue an NGO licence for BDS, had harassed and ordered police not to assist LGBTI persons and that dozens of people had been arrested under the Public Offences Act around April 2013 and men who identified as feminine, or transgendered women, were at particular risk.[63] The Tribunal noted DFAT country information put to the applicant and cited below that the POA was reportedly used against transgender women, but reports from the BDS said that the physical harassment of LGBTI persons reported in April 2013 was connected to Sharma.[64] It was noted that the courts appeared to take complaints by BDS against Sharma seriously when the Patan Appellate Court summoned Sharma to explain why he would not renew BDS’s licence.[65] The Tribunal drew the conclusion that this incident of application of the POA in this manner was isolated to that period and did not reflect the current situation in Nepal. The Tribunal infers from this information that despite the brief period in which Sharma had tried to close down BDS and ordered harassment and arrests, it appeared to be that the situation for LGBTI people in Nepal had improved and that the government, police and the authorities more generally were committed to this, and this has been recognised by NGOs. The Tribunal noted that it appeared that life was harder for LGBTI people during the period in which Sharma had been the chief district officer (which from all reports had come to an end) and there appeared to be very few reports of LGBTI persons experiencing serious or significant harm since this period.
[63] Leach, A., ‘LGBTI human rights work in crisis in Nepal’ Gay Star News, 4 April 2013;
[64] Leach, A., ‘Biggest LGBTI rights group in Nepal has licence renewed’ Gay Star News, 12 June 2013;
[65] The Tribunal discussed with the applicant the DFAT country report on Nepal, and noted the report supports the view that the situation in Nepal for LGBTI people has changed rapidly over recent years although this is occurring in some respects unevenly. DFAT indicate that legislation does not as yet reflect the Constitution:
3.60 The Government of Nepal does not recognise de facto and same sex partners but the new constitution has granted the right to equality to sexual minorities and allows the state to pass laws to protect, empower and advance the rights of sexual minorities. The Government has yet to implement Supreme Court orders from 2007 and 2008 abolishing all laws that discriminate against LGBTI (lesbian, gay, bisexual, transgender and intersex) people and to recognise same-sex marriage; as a result, same sex sexual activity can still technically be prosecuted however DFAT understands this law is not currently being implemented. Citizens can now obtain third-gender identity documents. Gay pride parades and transgender beauty contests have taken place in Kathmandu. In April 2014 the Ministry of Women, Children and Social Welfare assigned a focal person for sexual and gender minorities.
3.61 According to Human Rights Watch, threats and violent attacks on LGBTI rights activists have occurred. In February 2013, four transgender women were arrested under the Public Offense Act, a vaguely worded law that can result in up to 25 days in detention and a fine amounting to more than US$300. Given its vagueness, there are reports that the Public Offense Act is used by security forces to target people based on their sexual orientation and gender identity. DFAT is also aware of reports alleging harassment of members of the Blue Diamond Society, the national LGBTI umbrella organisation. According to Human Rights Watch, the government launched an investigation into the organisation for alleged corruption, despite the fact it had passed third party audits and inspections.
3.62 DFAT assesses that LGBTI people can face harassment by the authorities and other citizens, particularly in rural areas. General community attitudes towards same sex relationships remain negative. Nonetheless, there are examples of LGBTI people being able to be open with their families, communities and employers and to live without discrimination, although their gender, caste and ethnicity can also play a role determining the extent to which this is possible.[66]
[66] DFAT ‘Country Information Report: Nepal, 21 April 2016, 3.60 – 3.62.
109. The Tribunal notes the DFAT country report on Nepal above, which it is required to have regard to, echoes the above positive developments, but also notes that ‘same sex sexual activity remains illegal with a maximum sentence of one year imprisonment’, and states that threats and violent attacks on LGBTI rights activists have occurred and that the Public Offense Act, a vaguely worded law that can result in up to 25 days in detention and a fine amounting to more than US$300 has reportedly been used by security forces to target people based on their sexual orientation and gender identity. The report references the investigation into BDS discussed above, and concludes that DFAT assess that LGBTI people can face harassment by the authorities and other citizens, particularly in rural areas, General community attitudes towards same sex relationships remain negative, but that there are examples of LGBTI people being able to be open with their families, communities and employers and to live without discrimination, although their gender, caste and ethnicity can also play a role determining the extent to which this is possible.’[67] Whilst the Tribunal has had regard to this information, the Tribunal gives this DFAT assessment very little weight. This is because it appears to run counter to all other sources the Tribunal has consulted, above, and does not reference where the statements are drawn from. This means the Tribunal cannot determine whether their statements are historical or current compared to the recent, referenced reports above. Consequently, the Tribunal can place little weight on their assessment, drawn as it is from potentially historical statements and references. The Tribunal therefore gives the assessment of DFAT in this respect very little weight and prefer the recent and referenced reports from ILGA, HRC and HRW.
[67] DFAT ‘Country Information Report: Nepal, 21 April 2016, 3.60 – 3.62.
110. The Tribunal discussed with the applicant the information before it from various sources including the BDS and noted that the founder of BDS and Member of the Constituent Assembly, Sunil Pant states that Nepalese society is relatively tolerant of gays and lesbians compared to neighbouring countries such as India and Bangladesh, and that social acceptance is growing.[68] In an article of December 2011 in The Huffington Post highlighting the positive change in societal attitudes towards homosexuality following the new Constitution in 2007, Pant is quoted as stating that “Nepal is going through tremendous transformation - politically, socially, economically, legally - so a lot of communities who had no space or voice before have emerged.”^[69]
[68] ‘Nepal leads on gay rights with international parade’, ABC News, 30 August 2010.
[69] ‘Nepal, thanks to Maoist rebels, is emerging as Asia’s pioneer regarding rights for LGBT people’, The Huffington Post, 4 December 2011, available at 11/11/09/nepal-asia-pioneer-lgbt-rights_n_1084188.html
111. While the Tribunal accepts that in the past there have been instances of police harassment of homosexual men and women, on the information before it, this was for a brief period of time, and associated with Sharma who is no longer in that position. On the information before the Tribunal, there is no real chance or real risk of the applicant facing police harassment amounting to serious harm or significant harm.
112. The Tribunal considers that the weight of independent information set out above indicates that there is a significant degree of tolerance of homosexuality in Nepalese society, that homosexual people are not routinely subject to harm by either authorities or the general population, and that the government, police and other authorities are attempting to create a legal space and equality for LGBTI people. The Tribunal has carefully considered the information and evidence before it, and does not accept that there is a real chance the applicant will suffer serious harm, or that there are substantial grounds to believe there is a real risk he will suffer significant harm, for reasons of his sexual orientation as a homosexual man or in any other manner connected with his sexuality.

113. The Tribunal has considered the available country information, as set out above, and accepts that Nepal remains a conservative country and there is still some level of discrimination of LGBTI persons in Nepal and that there is not a full acceptance of homosexuals in Nepalese society. The Tribunal accepts that there may be negative social attitudes towards LGBTI people in Nepal. The Tribunal accepts there may be incidences of non-violent harassment as well as discrimination.
114. The Tribunal accepts that the applicant will live openly as a homosexual in Nepal and not conceal or supress his homosexuality in any way on this basis, the Tribunal accepts the applicant’s homosexuality may come to the attention of members of the community in Nepal. Given the country information above, the Tribunal accepts the applicant may face harassment, discrimination and negative attitudes. The Tribunal has carefully considered whether any discrimination he might suffer for any of these reasons, including harassment and societal discrimination even if it is cumulatively experienced, such as verbal remarks or disapproval by society, would amount to serious or significant harm. However, the Tribunal considers the information before it does not indicate or demonstrate that the harassment, discrimination and negative attitudes he is at a real chance or risk of facing comes within the meaning of serious harm, for the purposes of s.91R(1)(b) and (2) or significant harm as defined in the Act.
115. The Tribunal notes the applicant claimed to be vulnerable to blackmail in India as a homosexual man and the Tribunal has considered whether there is a real chance or real risk the applicant faces such treatment in Nepal. In this consideration, the Tribunal notes that homosexuality is illegal in India and that it has found above that the applicant could not rely on the protection of authorities leaving him vulnerable to criminality such as blackmail. However, noting the Constitutional rights and the attitudinal changed in Nepali society discussed above, the Tribunal considers the possibility he is at risk of blackmail is remote. The Tribunal does not accept the applicant has a real risk of serious harm or a real risk of significant harm in Nepal on this basis.
116. The Tribunal has also considered the applicant’s claim that he will face discrimination in employment as a homosexual together with being Indian. On the information before it, the Tribunal accepts that the applicant may face low level societal discrimination including in education, health care, or employment as a homosexual in Nepal. However, noting the Constitutional rights discussed above making discrimination against sexual minorities unlawful and noting that the evidence points strongly to the existence of acceptance of a growing and significant level of acceptance of homosexuals, the Tribunal does not accept the applicant will be denied employment in Nepal such that he is at a real chance or risk of facing serious harm for the purposes of s.91R(1)(b) and (2) or significant harm as defined in the Act.
117. The Tribunal has considered whether the applicant would face serious or significant harm for reasons of his Indian nationality, or whether his Indian nationality places him at particular additional risk of serious or significant harm. As discussed with the applicant, the country information before it does not indicate that there is a real chance of all Indians in Nepal suffering serious harm or that there are substantial grounds to believe there is a real risk to all Indians in Nepal suffering significant harm in Nepal. According to Nepali LGBTI activist and Member of Constituent Assembly, Nepal is a country of great diversity, culturally and religiously, living in harmony.[70] While the Tribunal accepts that the applicant may face low level harassment or discrimination from certain members of the Nepalese community in Nepal because he is Indian, and that the chance or risk that he faces harassment and discrimination as a homosexual may be elevated because he is Indian, having carefully considered his individual circumstances and the overall weight of the country information, the Tribunal does not accept that there is a real chance the applicant would suffer serious harm in Nepal for reasons of his Indian nationality or any related reason in Nepal, and the Tribunal considers there are no substantial grounds for believing that there is a real risk he will suffer significant harm from members of the Nepalese society, or anyone else, on account of his Indian nationality in Nepal. Further, the Tribunal is not satisfied that the applicant’s Indian nationality increases his chance of serious harm for the purposes of s.91R(1)(b) and (2) or significant harm as defined in the Act.
[70] ‘Nepal, thanks to Maoist rebels, is emerging as Asia’s pioneer regarding rights for LGBT people’, The Huffington Post, 4 December 2011, available at 11/11/09/nepal-asia-pioneer-lgbt-rights_n_1084188.html
118. The Tribunal has considered the applicant’s claim that his inability to speak Nepalese will expose him to serious or significant harm in Nepal and the Tribunal acknowledges that this may present difficulties for him. However, the Tribunal noted throughout the hearing that he is a proficient English speaker and as accepted above, he also speaks Hindi. The Tribunal considers that these language skills will provide him with a basis to communicate with many people in Nepal, and that the difficulties presented will not rise to the level of serious or significant harm for the applicant.
119. The Tribunal has also considered the applicant’s claims that his psychological state will deteriorate if he is forced to enter and reside in Nepal. The Tribunal acknowledges that he has been in Australia now about ten years and that he enjoys life in Australia where he feels safe and open country, and that he feels great stress when he thinking about departure from Australia. The Tribunal has also taken into account [name] letter [in] August 2016, reporting that the applicant presented with anxiety and obsessive traits associated with uncertainty about his future. This letter confirms the applicant identifies as homosexual and that, “this has been an ongoing source of stress for him, as it is difficult for [the applicant] to work out how to both express his sexuality and also practice his Hindu faith. He [the applicant] reports that since being in Australia, he has felt more comfortable and able to expose himself to situations in which he can express his sexuality without fear of reprimand or punishment.” The applicant’s psychologist went on to state that:
He reports that in his country of origin India, he fears being public with his sexuality due to his fear of how he would be treated by others. He has cited examples to me in which he has experienced directly being blackmailed and threatened with public humiliation for attempting to express his sexuality whilst living in India. He reports his community hold very negative views about homosexual men, and that his often manifest in overt discrimination e.g., denied employment. [The applicant] fears that should he be forced to return to India that he will be greatly effected and restricted in his ability to live a full and meaningful life.
[The applicant] reported to me today that he has been advised by the Australian Department of Immigration that he may have the option of being settled in Nepal. He reports that he has similar concerns about being settled in Nepal, as he perceived there to be very little difference culturally with respect to attitudes towards homosexuals. He also worries that his family would be easily able to access him geographically and that this would complicate his ability to be an open homosexual man.[71]
[71] AAT, f. 52

120. The Tribunal has carefully considered this report and accepts that the applicant’s psychologist has assessed the applicant as presenting with anxiety and obsessive traits. However, on the evidence of the report the Tribunal does not accept the applicant’s psychological health is such as to indicate the low level of discrimination as a gay man and any difficulties he may experience establishing himself in Nepal are such as to amount to serious or significant harm. The Tribunal does not accept the applicant has a real chance of serious harm or a real risk of him suffering significant harm if he were to enter and reside in Nepal on this basis.
121. The Tribunal notes the applicant’s claim that he will not have the protection of family in Nepal, and the Tribunal acknowledges that he does not have family support. However, having found the applicant does not require protection from serious or significant harm because he is a homosexual Indian man in Nepal, the Tribunal has not considered this issue.
122. The Tribunal has also considered whether the applicant’s individual claims, cumulatively, would together create a real chance or real risk of him being subjected to serious or significant harm in Nepal in the reasonably foreseeable future. The Tribunal has considered whether the combination of him being an Indian national; identifying as a homosexual; his inability to speak Nepalese; and lack of family support would, cumulatively, cause him to be at risk of suffering serious or significant harm in Nepal now or in the foreseeable future. Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before me, and given its findings and reasons in relation to each of these matters, the Tribunal does not accept that there is a real chance the applicant faces serious harm amounting to persecution for these reasons, or that there are substantial grounds for believing that there is a real risk he will suffer significant harm were he to enter and reside in Nepal.
123. On the basis of the above findings, and having considered the applicant’s claims individually and cumulatively, the Tribunal does not accept that there is a real chance the applicant would suffer persecution for a Convention reason if he enters and resides in Nepal now or in the foreseeable future. Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution in Nepal. Further, on the basis of the above findings, and having considered the applicant’s claims individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of him availing himself of the right in s.36(3), there is a real risk of the applicant suffering significant harm in Nepal.
Will Nepal return (refoule) the applicant to India?
124. As discussed with the applicant, if the Tribunal finds that s.36(3) applies, in addition to s.36(4), the Tribunal must also consider s.36(5) and (5A), which provide that:
36(5)Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:
(a) the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
36(5A)Also, subsection (3) does not apply in relation to a country if:
(a)the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.

125. The Tribunal finds that under the terms of the Treaty, the government of Nepal agreed to grant Indian nationals reciprocal privileges to Nepali citizens in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature. On the evidence before the Tribunal, and having regard to the applicant’s circumstances and claims, both individually and cumulatively, the Tribunal does not accept there is a real chance the Nepalese authorities or government would return him to India or any other country and, accordingly the Tribunal finds that his fear of being returned to India or any other country by Nepal is not a well-founded fear, and that s.36(5) and (5A) are not enlivened.
CONCLUSION
126. The Tribunal finds that the applicant has a right to enter and reside in Nepal. The Tribunal does not accept that he has a well-founded fear of being persecuted in Nepal or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing himself of the right in s.36(3), there would be a real risk of him suffering significant harm in Nepal. The Tribunal find that the applicant does not have a well-founded fear of being returned by Nepal to India. Accordingly, Australia does not have protection obligations in respect of the applicant.
127. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
128. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Amanda Paxton
Member

[26] Trivedi, I 2014, ‘The Indian in the Closet’, Foreign Affairs, March/April < Accessed 6 June 2014 <CX321592>

[2017] AATA 2224

21 August 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness