1501021 (Refugee) - [2017] AATA 2224

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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1501021 (Refugee)

Details

AGLC: 1501021 (Refugee) [2017] AATA 2224
Case: [2017] AATA 2224
Decision Date: 21 August 2017

CaseChat Overview and Summary

The applicant, who arrived in Australia on multiple occasions since 2006, sought a protection visa. He claimed that as a homosexual Hindu man from Gujarat, India, he feared persecution upon return. His claims included the risk of being disowned and harmed by his family, forced remarriage, blackmail, violence, and a lack of police protection, particularly due to his ex-wife's family's knowledge of his sexuality. He also asserted that he could not relocate within India due to family business obligations.

The core legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically whether he possessed a well-founded fear of persecution for reasons of membership of a particular social group, defined by his homosexuality, and whether he could safely relocate to another part of India or to Nepal. The Tribunal was required to consider relevant Ministerial Directions, including policy guidelines from the Department of Immigration and country information assessments from the Department of Foreign Affairs and Trade.

The Tribunal considered extensive country information regarding the treatment of homosexual individuals in India and Nepal. It found that while Hinduism may not condone same-sex relationships, and there were risks of social stigma and family disapproval, the applicant had not demonstrated a well-founded fear of persecution amounting to a real chance of significant harm. The Tribunal noted that the applicant had been discreet about his sexuality in India and that his family was unaware of it. Furthermore, the Tribunal concluded that the applicant could relocate to another part of India, specifically citing the possibility of relocation to Nepal, where he could live safely and express his sexuality without fear of persecution. The applicant's claims of forced marriage and harm from his ex-wife's family were not substantiated to the Tribunal's satisfaction as constituting a well-founded fear of persecution.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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