1514734 (Refugee)

1514734 (Refugee) [2018] AATA 5045 (19 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1514734
COUNTRY OF REFERENCE:                  India
MEMBER:Meena Sripathy
DATE:19 October 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 19 October 2018 at 4:50pm
CATCHWORDS
REFUGEE – protection visa – India – particular social group – homosexual male – family affiliation with Bharatiya Janata Party (BJP) – family pressure to marry – societal discrimination and hostility – state protection – internal relocation – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473
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 on 21 October 2015 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 on 23 December 2014. The delegate accepted the applicant’s claim that he was homosexual, but refused to grant the visa on the basis that he was not satisfied the applicant could not avail himself of effective state protection or he that he would face a well founded fear of persecution in all areas of the country. The delegate was also not satisfied that the applicant faced a real risk of significant harm for the same reasons.
The issues in this review are whether there is a real chance, if the applicant returned to India, that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to India, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CRITERIA FOR A PROTECTION VISA
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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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
Evidence before the Department
Information in the application form provides that the applicant is [an age] year old single man from Gujarat, India. He states his religion is Hindu. He is able to speak, read and write English, Hindi and Gujarati. He indicates two residential addresses in India, a home address [Town 1], Gujarat and a school address for one year ([period specified]) in Baroda. He has [specified family members] in India.
In his reasons for claiming protection, the applicant states that he is gay and from Gujarat and belongs to a conservative Hindu family. His close relatives have affiliation with the Bharatiya Janata Party (BJP) and the RSS. Due to his family’s religious belief and political views they consider homosexuality to be a disease and un-Indian. The applicant fears being targeted and harmed in India due to his sexual orientation. He fears his family and relatives will harm him for destroying their honour and reputation. He fears he cannot get protection from the state because homosexuality is a criminal offence in India and because of his family’s political and religious connections. He fears he cannot get state protection in any other part of India also.
In a further statement dated 8 September 2018 the applicant provided details of his claims. In the statement he explains he comes from a traditional Brahmin high caste family. His father [passed away] when he was [age] years old. He is the only son in his family. He has [specified family members]. His father has a [store] and after his death, the applicant’s uncle (father of [Relative A]) ran the store and supported the family. The applicant’s cousin, [Relative A] is gay and was granted a protection visa in Australia in 2012. The applicant described that he realised his sexuality from a young age as he never had feelings for girls as others did around him. He described two separate relationships he had in India while at school and issues experienced when his family came to know about it. He claimed he was pressured to marry at 19 years of age, and when he refused his family wanted him to leave India. He came to Australia on a student visa on the advice of his cousin, [Relative A] who was living here. He told him that he was gay and needed his help to get out of India. [Relative A] referred him to an agent and he was able to obtain a student visa and came to Australia [in] June 2013. He stayed with [Relative A] initially but did not know he was gay until later. He was told about Protection visas in June 2014 by [Mr A] whom he met through [Relative A]. He lodged his application in December 2014. The applicant describes a number of sexual liaisons he has had since coming to Australia. He is afraid to return to India because of the pressure on him as the only son in his family and because of his family and community’s hostile attitudes towards homosexuality. He fears that the future for gay men in his country is bleak and he will suffer serious harassment and harm and there is no where safe in India that he can live.
In September and October 2015, the following further statements in support of the application were submitted:
·Statutory Declaration from [Mr A] dated 26 September 2015 attesting to be a casual sexual partner and friend of the applicant.
·Statutory Declaration of [Ms B] dated [in] September 2015, attesting to knowing the applicant from his participation with her at the 2015 Mardi Gras parade [Organisation 1] float.
·Statutory Declaration of [Mr C] dated 14 September 2015, husband of the applicant’s cousin, attesting to his knowledge of the applicant’s sexuality.
·Letter dated [in] June 2015 from [Mr D], Board Member [Organisation 2] indicating the applicant requested to participate in the [Organisation 2] Float at the 2015 Mardi Gras parade and the writer met him that night, though he marched in the end with another float, [Organisation 1].
·Statutory Declaration of [Relative A], dated 18 September 2015, cousin of the applicant, attesting to his knowledge of the applicant’s sexuality.
·Representative’s country information submissions, providing details and extracts of country information regarding persecution against homosexuals in India.
The applicant was interviewed by an officer of the Department on 14 October 2015 and the Tribunal has listened to an audio recording of that interview. The delegate also took oral evidence from [Ms B]. The delegate was satisfied on the basis of the applicant’s evidence and supporting material that he was homosexual as claimed, but affirmed the decision on the basis that effective state protection was available in India and the applicant did not face a well founded fear of persecution in all areas of the country or a real risk of significant harm.
Evidence before the Tribunal
On 6 August 2018 the Tribunal received the following supporting documents:
·Statement dated 5 August 2018 from [a named person], stating that he met the applicant at the 2015 Mardi Gras and since then he has been in regular contact with the writer’s family and he attests to his character. The applicant has told him about his family issues and concerns about returning to India.
·Statement from [name], Coordinator of [Organisation 1] [in Region 1], dated 26 June 2018 attesting to her knowledge of [Ms B], and [Ms B’s] knowledge of the applicant.
·Statement of Judy Brown, President of [Organisation 1] who attests to have met the applicant and he is gay.
·Statement dated 31 July 2018 from [Ms B] attesting to the applicant’s sexuality on the basis of her friendship with him for the past 3.5 years.
·Photos of the applicant at Mardi Gras 2016
·Further country information articles relating to numbers of people arrested under s377 of the Indian Penal Code and updated information regarding persecution on the basis of homosexuality in India.
On the 10 August 2018 the applicant submitted further evidence in support of the application:
·Photos which purported to be of his ‘[relative]’ with various BJP leaders, including [a local] MLA of [a location], [named]; the Prime Minister, Narendra Modi; and Chief Minister of Gujarat, Vijay Rupani.
At the hearing the applicant advised that he was living with his cousin, [Ms C], her husband ([Mr C]) and [children], and another person, [named] who is a friend of [Mr C], in a three bedroom unit in [Suburb 1]. They have lived here for the past couple of months. Before this he lived with these same people at another address in [another suburb] for a year or so. He is working part time at a [business] and also studying in a [specified] course. He has completed one year of this course and has another one year to go. The applicant explained he previously started a [different specified] course when he first came to Australia but he failed a number of subjects and then stopped studying because he was not in a good frame of mind. He did not study at all between 2014 to 2017, when he started the present course. He had a history of depression and mental illness in this period.
The applicant said he has been dating a man called [Mr E] for the past few months. Before this he was in a relationship with [an ethnic background] man, [Mr F] for about a year. They lived together at an address in [a different suburb] from sometime in 2016-2017. The relationship ended when [Mr F] went [interstate] for work. The Tribunal asked the applicant about this relationship. He said they met at [a venue], exchanged numbers after that and started dating. The applicant suggested they move in together and they did. He said they did not have a lease in their names-his friend [Mr A] helped them by getting a lease in his name. The bills came to this address in [Mr F’s] name. When asked what evidence he may be able to show of this relationship, the applicant said they registered their relationship and he changed his address on his photo ID card. The applicant said he suggested to [Mr F] to apply for a protection visa on the basis of his sexuality, while they were together, and he did. The applicant said he attended with [Mr F] for the Department interview but was not interviewed by the officer. The application was refused on the basis that the delegate did not accept [Mr F] was homosexual. As far as the applicant knows [Mr F] applied for review of this decision but he does not know how the application has progressed. The relationship came to an end because [Mr F] was travelling [interstate] for work and decided to move up there. He had started seeing someone else up there.
Regarding his family the applicant confirmed he has another cousin in Australia, [Relative A], who is [Ms C’s] brother. He is not in contact with [Relative A] but knows he lives in [Suburb 2] and works at [a named business]. When asked why he is not in contact with [Relative A], the applicant said it was not for any particular reason. He said [Relative A] is not in regular contact with his sister either and he doesn’t know why.
The applicant told the Tribunal that in India he has [specified family members]. He doesn’t know exactly where [one sister] lives now because he is not in contact with her. After she married, when he was still in India, she went to Mumbai and she may still be there. His mother lives in Gujarat in the joint family home that he grew up in, with uncles [Uncle 1], [Uncle 2] and [Uncle 3]. [Uncle 1’s] [children], [Ms C] and [Relative A] live in Australia, and [Uncle 2] and [Uncle 3] each have one child, around [age] years of age, who live at home with them. When asked if the applicant grew up with [Ms C] and [Relative A], the applicant said they were sent away to boarding school before they came to Australia, so he did not see them very often, but he was closer to [Ms C] from the beginning.
The Tribunal asked the applicant why he came to Australia. He said he was treated like he had a disease in India and his relatives were mistreating him because they came to know about his sexuality. He contacted his cousin [Relative A] via [a messaging service] and asked him to phone him. He told [Relative A] about his sexuality and the hard time he was having in India and [Relative A] advised him to get a student visa and come to Australia. The applicant said [Relative A] arranged all of the papers and, as far as he knew, was his financial sponsor for the application. When he arrived in Australia he stayed with [Relative A] for the first couple of weeks but then he moved out with two friends he knew from India. He moved out because there wasn’t enough room for him at his cousin’s place. His cousin did not tell him about his own sexuality or that he had obtained his visa on this basis. He doesn’t know why he didn’t tell him. It was his cousin [Ms C’s] husband, [Mr C], who told him in or around December 2013, that [Relative A] was gay. The Tribunal asked the applicant if he knew if [Relative A] has returned to India. He said he does not know because he is not in contact with him.
The Tribunal asked the applicant about his experiences in India. He said he was attracted to boys from the beginning of his life, he liked being around boys and never felt anything for girls. He had his first experience around 9^th or 10^th standard, with a boy named [Friend A]. When his aunty and uncle found out they called his mother and uncles and told them. In response his mother moved in with him at his aunty’s place and kept a close eye on him. He did not continue the relationship with [Friend A] after that. He was taken back to [Town 1] after his exams and many restrictions were placed on him. Despite this he met and had a relationship with another boy, [Friend B] at high school. When his mother found out about this she told him to stay away from him. The applicant said his family started to pressure him to marry and eventually he told them he wouldn’t because he was gay. He said they had a puja to try and change him. They were very angry with him and basically wanted him out of their lives because of the shame he caused.
The Tribunal asked the applicant if he had any evidence of his relationships with [Friend A] or [Friend B] such as emails or photos. He said he did not have a phone at that time and has no evidence.
The Tribunal asked the applicant about his activities in Australia after he arrived here. He said he met [Mr A] through [Relative A] and it was [Mr A] who eventually told him about the option of applying for protection, this was not until around mid 2014. The applicant said he doesn’t know why [Relative A] never told him, he may have been afraid of the information about himself getting out to the family. The Tribunal put to the applicant its concern about the credibility of his claims that his cousin [Relative A] who he claims was instrumental in getting him here on a student visa not sharing with him the process about applying for protection sooner, if he was genuinely homosexual. It says in this context it may have concerns about the credibility of his claims as all of the evidence he has provided in support of his claims post date the application. It asked if he has any evidence to support his homosexuality claim prior to December 2014. He said he had been googling and researching homosexuality in Australia even before he came here, and started going out to [a location] and bars before this, but he didn’t know he needed to collect evidence and only started doing this after he sought advice from [a migration agent].
Regarding his participation in Mardi Gras, he said in 2015 he obtained a wrist band from [Organisation 2] and initially intended to march with them but then he could not find them and ended up at the [Organisation 1] group. There he met [Ms B] and marched with them. They became friends and have kept in touch since then. She is like a mother figure for him. Since then he has participated in Mardi Gras Parades in 2016 and 2017 with [Organisation 1] and [another group]. When asked if he had anything more to do with [Organisation 2] he said he met [Mr D] at the 2015 Mardi Gras and since then has attended various [Organisation 2] events. When asked to name any, he said he cannot recall exactly. He referred to a comedy event in February or March 2018 that he attended in [location]. He could not recall the name of the event or performers. He is not sure if it was a [Organisation 2] event or he just found out about it through them. He referred to [an event] as another event they hold but could not indicate when or if he attended. The Tribunal again referred to its concern about whether his evidence of involvement in the gay community is genuine or contrived. The applicant reiterated that he has been marching in Mardi Gras every year.

The Tribunal asked the applicant about his fears if he returns. He fears his uncles because they are involved in politics in India with the BJP and they are very homophobic. They have threatened him and harmed him before for this reason. When asked what harm he refers to he said his uncle hit him and showed the Tribunal a scar in his [body part]. The Tribunal put to him that it has not been able to find any evidence in an internet search about his uncle holding a position in the BJP or as an MLA in Gujarat. In response the applicant said he may go by the name [Uncle 2 fuller name] and referred to the photos he provided which he obtained from his uncle’s [social media] page. He said he is a ‘BJP cooperator’ and has a lot of political influence. The Tribunal invited the applicant to provide any further evidence to support his claims about his uncle’s political position and influence.
The Tribunal asked the applicant why, if he is fearful of his uncles, he cannot relocate to any other part of India and live separately from them. He said he cannot do this because his relatives will find him as they have a lot of influence and power. He said they will not tolerate him living anywhere in India because he brings shame on them and will affect their political aspirations. The Tribunal put to the applicant that it has information to indicate his cousin [Relative A] has returned to India since he has been here and this may contradict his claim that it is dangerous to return because of his uncles reactions. In response the applicant said he doesn’t know if his cousin has returned to India, but even if he has it is different because [Relative A] has a father to defend him whereas the applicant does not. He only has his mother and she is powerless and dependent on his uncles.
The Tribunal put to the applicant that it has considered independent information about homosexuality in India including the controversies surrounding s377 of the Penal Code, and subsequent change of government with the BJP coming into power, but there is also information that there are some signs that social attitudes are changing in India towards homosexuality and the Supreme Court has made several significant decisions since its 2013 judgement which may signal a change in the Court’s approach in future and invited his comments on this. The applicant said the public view in India will not change, and it is even difficult for a girl and boy to roam about. It is not easy or okay to be gay in India and he will not be able to live his life out and publically as he can here.
Evidence from [Ms B]
The Tribunal took oral evidence in person from [Ms B]. She stated she met the applicant in 2015 at the Mardi Gras parade in Sydney. She was introduced to him by the group coordinator as he did not know anyone. When asked if she knew how he came to be there, she said she never asked him that but assumes it was to meet other gay people and supporters. They talked that night and exchanged numbers and met a few months later. She invited him to her house for lunch and he met her husband and family. When asked if she knows about relationships the applicant had, she said she met [Mr F], who came up with him to her place. She understood they lived together for a period. They invited her and her husband to their place in Sydney but they did not make it. She said her observation of the two of them when she saw them together was that they seemed very content and compatible as a couple. She had no doubt they were together and thought they made a good couple. She does not know why the relationship ended because she did not ask.
The witness said they walked together again at 2016 Mardi Gras and have met again for lunch several times in Sydney. They are in contact by [a messaging service] regularly. She showed the Tribunal her phone which had messages going back to 2016. The Tribunal invited the applicant to submit screen shots of this message history.
The witness told the Tribunal the applicant told her about his problems in India and estrangement from his family and she felt very bad for him especially because of his lack of relationship with his mother.
The witness said her observation was that the applicant got very fearful when he spoke of going back to India. He often told her of the shame he brought to them and was afraid they would find him wherever he went.
When asked if she wanted to say anything else, the witness said the applicant is a very bright young man and she believed he would make a worthwhile and significant contribution to the community and it had been especially wonderful for her and her family to meet and support him.
The Tribunal asked the applicant why the man he is currently dating, [Mr E], did not come to given evidence in support. He said he asked him but he did not want to get involved and they have only just started seeing each other and only casually.
It asked him why his cousin [Ms C] has not given any evidence. He said he does not know, and maybe it is because she is concerned about what her parents would say. He was happy for the Tribunal to contact her now and provided her phone number.
Evidence from [Ms C]
[Ms C] answered the Tribunal’s call and gave the following evidence. She confirmed the applicant is her cousin, son of her uncle. Initially she said he visits her every Wednesday and Thursday, but when the Tribunal put to her that he said he lives with her, she changed her evidence and said he does live with her but is not named on the lease. When asked who else lives there, she said her brother [Relative A], her husband and her children.
The Tribunal asked the witness what she knows about the applicant’s situation in Australia. She said she knows that his family want him to come back to marry but he doesn’t want to because he doesn’t like girls. She said that some of their relatives are RSS workers and have conservative views. She said recently his sister contacted her to get his contact details but he didn’t want her to provide it. The witness said she doesn’t know if her father knows if the applicant is living with her but they would probably be angry if they did.
She said the applicant is not in touch with his [specified family members]. The witness said his mother does not live with her parents. They live separately. His mother lives in Ahmedabad or Baroda with her daughter. The witness said they never lived together as a joint family, her family has always lived separately. But when they were all young, her family would visit his family often.
In response to this evidence the applicant said that [Relative A] is only on the lease but not living with his sister. She said that he was because he is named on the lease. Regarding the joint family living arrangements, he said her parents were government employees so they had a government accommodation elsewhere but came to the family home regularly.
At the conclusion of the hearing the representative made submissions. Regarding credibility concerns, he emphasised that the witness’ evidence was consistent in material areas, namely that the applicant has had no contact with his mother and that her father is an RSS worker. The representative stated with regard to country information on the situation regarding homosexuality in India, the present government is clearly against it and recently they opposed a UN ban on the death penalty for homosexuality which indicates that there continues to be an anti gay environment there. He said there is no way anyone can confidently say what the Supreme Court will do on this issue in future. In any event the applicant’s main concern is from his uncles. For reasons of their own political survival they will not allow him to return and ruin their reputations and that is why he is at risk of harm there. He cannot be openly gay in India without coming to the attention of his relatives. If he leaves Australia, sooner or later his cousin here will have to tell them and they will look for him. It is dangerous to be an openly gay male in India.
The Tribunal allowed the applicant a period of 2 weeks to submit further supporting evidence arising from his evidence at the hearing.
On 3 September 2018, the applicant submitted the following further evidence relevant to matters arising from the hearing:
·A Statutory Declaration from the applicant reiterating his claim to be gay. He also confirmed his evidence about where he lives and provided an explanation for the contradictory evidence given by his cousin at the hearing.
·Applicant’s [public transport] statement for the period July 2108 showing frequent travel to [Suburb 1] in support of his claimed residence there.
·A Statutory Declaration from [Mr F], who states that he was previously in a homosexual relationship with the applicant and describes how they met and the circumstances in which the relationship ended.
·A letter dated 29 August 2018 from [Friend B], who states that he is an ex-boyfriend of the applicant and describes when and how they met and the applicant’s family circumstances.
·Screen shots of messages between the applicant and his witness [Ms B].
·Screen shots of messages between the applicant and [Mr F].
·[Named] Mental Health Service counselling records referring to the applicant’s disclosure about his sexuality and estrangement from his family to counsellors seen in 2015.
·[Mr F’s] Car insurance certificate for the period February to September 2017 indicating the applicant as a listed driver.
FINDINGS AND REASONS
In assessing the applicant’s claims, the Tribunal has taken into account the information in the Department’s file including his application for the Protection visa, the documents and information he provided to support his claims, his evidence to the delegate at interview and his evidence, documents and information submitted to the Tribunal in support of the review. It has also had regard to other independent information regarding the legal position and treatment of homosexuals in India.
Nationality
On the basis of the evidence of the applicant’s passport and his oral tesimony, the Tribunal finds that he is a citizen of India and India is his country of nationality and the receiving country for the purposes of this assessment of protection obligations.
Assessment of claims
The Tribunal’s first task in determining whether the applicant is owed protection is to make findings of facts on relevant matters. The task of fact-finding often involves an assessment of an applicant’s credibility. In this context, the courts have made it clear that the Tribunal must be sensitive to the potential difficulties faced by asylum seekers in putting forward their claims, and that the Tribunal should adopt a reasonable approach to making its findings with regard to credibility and afford the benefit of the doubt to asylum seekers who are generally credible but unable to substantiate all of their claims. However, the Tribunal is not required to accept uncritically any and all claims made by an applicant. In assessing his credibility, the Tribunal has had regard to its ‘Guidance on the Assessment of Credibility’.
The applicant claims to be gay and comes from a conservative, high caste Hindu family and has close relatives who are affiliated and influential in the BJP and RSS. He fears harm in India from his close family members and conservative religious groups on the basis of his sexuality and believes the police would not protect him because of the political influence of his relatives and general homophobia. He claims he cannot hide his sexuality and his sexuality is condemned by his religion and family and considered illegal by the state.
Is the applicant homosexual as claimed?
The Tribunal has considered the applicant’s evidence to the Department and Tribunal regarding his sexuality. It notes that the delegate found the applicant’s claim to be homosexual was credible and accepted it on this basis. On review, this issue was considered afresh by the Tribunal. While not without some doubts, the Tribunal has also concluded that it is satisfied he is homosexual. In reaching this conclusion the Tribunal gave weight to his oral evidence to the Tribunal where he gave a consistent and credible account of his history about his sexuality and past experiences in India; the corroborating evidence of a consistent history revealed to the counsellor he saw in 2015 and the testimony and supporting evidence provided by the independent witness, [Ms B], who has travelled from the [Region 1] in person to support his application both before the Department and the Tribunal. The Tribunal also notes and gives weight to the supporting statements and documentation provided to the Tribunal from two previous partners of the applicant which substantially supported his claims, including evidence of registration of the relationship with [Mr F] in December 2016. The existence of this relationship is also corroborated by common contact addresses notified to the Department in the period of their relationship and the attendance of the applicant at the interview of his then partner in his application.
On the other hand, there were matters which caused the Tribunal to have some doubts about the applicant’s claims. For example, the 18 month delay in making a protection application and fact that most of his evidence post-dated the application date. This was concerning in the context that he claimed that he came to Australia on the advice of, and with assistance from, a cousin who was also gay and had recently been granted protection on this basis and therefore it would have been reasonable to expect him to have lodged an application on this basis much earlier. The Tribunal doesn’t find all that convincing his explanation of ignorance about the option until advised by a partner/friend introduced to him by his cousin. The Tribunal also found troubling the limited support provided to him by his cousin; significant discrepancies in the applicant and his witness’ evidence about the cousin’s circumstances (such as where he was living and the degree of contact with him); and the cousin’s multiple return trips India which potentially contradicts the applicant’s claims about the hostility of his family towards homosexuality. However, on reflection, the Tribunal observes that most of the matters causing it concern relate to the actions/conduct (or omissions) of the applicant’s cousin and more likely reflect adversely on that individual’s credibility, which, strictly speaking, is not in issue before this Tribunal.
Ultimately, considering all of the evidence now before it and despite the concerns identified above, the Tribunal is prepared, on balance, to give the applicant the benefit of its doubts and accept that he is homosexual as claimed; that he had past gay relationships in India and Australia and has participated in, and lived as, an openly gay man in Australia. Given his profile and past experiences, it accepts he would choose to continue to live openly and publically as a gay man upon return to India and the Tribunal will now consider his claims to fear persecution and/or significant harm on this basis in future if returned to India.
Real chance of serious harm in the reasonably foreseeable future
The applicant claims he belongs to a conservative Hindu family, his father passed away when he was very young, and he is the only son in the family. There is no information before the Tribunal to contradict any of these claims, and his evidence as been consistent and on this basis the Tribunal accepts his claimed family composition and circumstances.
He has also claimed an uncle is politically active in the BJP and has political influence and ambitions. In support of this the applicant has submitted numerous photos purportedly relating to his uncle with prominent persons associated with the BJP Party. The Tribunal was unable to find any evidence of a person by the name the applicant gave for his uncle ([Uncle 2]) being elected as an MLA in [Town 1] as claimed initially.[1] When this was put to him at the hearing, the applicant stated that he may go by the name ‘[Uncle 2 fuller name]’ and he provided photos from his [social media] page. He referred to him as a “co-operator” in the BJP. Following the hearing he provided an identity card relating to an individual named as [family name variation]. Despite the fact that no explanations were included with the documentation to explain the discrepancies in the name and positions described compared with his oral evidence, the Tribunal is prepared to accept as possible, if not certain, that the applicant has a close relative who is politically active and may have a degree of political influence. In further support of this claim the Tribunal acknowledges the existence of a [social media] page for a person by the name [Uncle 2 name variation] where there are photos posted that suggest an affiliation with BJP.[2]
[1] >
On this evidence and available independent information about the views of the BJP and conservative elements of the Hindu community towards marriage and homosexuality generally, and prevailing social pressures in India on marriage and procreation, the Tribunal accept that the applicant holds a genuine subjective fear of serious harm in India from his family, community and the authorities on the basis of his sexuality. The Tribunal must also, however, be satisfied that there is an objective basis for that fear, in assessing whether he faces a real chance of serious harm upon return.
In considering this, it has considered country information submitted by the applicant as well as from other sources on the situation for homosexuals in India. In summary, this information supports a conclusion that there is still a significant level of community hostility to openly homosexual males and they are vulnerable to discrimination and abuse, even though as of very recently, homosexual acts are no longer illegal under the criminal law.
The most recent DFAT Country Report on India provides the following information in regard to the treatment of homosexuals:
3.54 People who are lesbian, gay, bisexual, transgender or intersex (LGBTI) are often subject to physical and emotional abuse by their families and wider society. In 2018, the New York Times interviewed gay and transgender people across India about their experiences. They reported sexual assault, shunning by parents, social isolation, employment discrimination and vulnerability to police abuse.
3.55 Until a September 2018 Supreme Court judgement, Section 377 of the Penal Code criminalised homosexuality. LGBTI people claimed that, while the law was not regularly enforced, it was used as a way to extract bribes or as a means of extortion. Homosexuality is now legal in India but LGBTI groups say this has not changed societal views on LGBTI people.
3.56 Hijra live within their own communities and may not connect to the rest of the LGBTI community. Many hijra are transgender or intersex, but not all transgender or intersex people are hijra. Hijra tend to be associated with dancing and entertainment, but also sex work. They may face discrimination when seeking access to goods and services, including education, employment and health care but are generally revered by Indian society. A bill to prevent discrimination against transgender and intersex people is currently being considered by the Indian parliament.
3.57 In July 2016, the government abstained on a UN resolution that created a UN expert post to address discrimination against LGBTI persons and voted in favour of amendments to weaken the mandate, saying the Supreme Court was still to decide on the issue of LGBTI rights.
3.58 Local sources say some parents accept their child being gay, as long as they still get married to opposite sex partners. Class also plays an important role: wealthier LGBTI people can live openly in cities and are accepted. For the ordinary person, particularly in rural areas but also in urban areas in many cases, it is difficult to live openly and many face discrimination in accessing housing and employment.
3.59 LGBTI women face problems related both to their sex and their sexuality and gender identity (see Women). Lesbians report feeling unsafe and sometimes being forced to marry men.
3.60 DFAT assesses that people who openly identify as lesbian, gay, bisexual, transgender or intersex face a moderate risk of official and societal discrimination and may face societal violence. The removal of section 377 of the Penal Code, while a victory for gay men in particular, does not necessarily prevent or reduce widely-held anti-gay and anti-LGBTI sentiment.[3]
[3] DFAT Country Information Report: India 17 October 2018, p 20

On 6 September 2018, as indicated in the latest DFAT Report above, the Supreme Court of India delivered a decision which has the effect that it is no longer an offence under section 377 of the Indian Penal Code to engage in consensual gay sex in private.[4] This judgement overruled a previous Supreme Court decision in 2013 which had set aside an order of the Delhi High Court made in 2009 decriminalising homosexuality.
[4] Gay sex is not a crime, says Supreme Court in historic judgement, The Times of India, 6 September 2018 >
While the judgement is highly significant and was the subject of substantial publicity, including a significant amount of public positive affirmation and tolerance of homosexuality in India there were also many contrary views expressed, such as the cautious response of the Rashtriya Swayamsevak Sangh (RSS) reiterating that although it agreed that homosexuality should not be a crime, it was against “nature” and social beliefs and they did not approve of it.[5] The Tribunal notes the ruling BJP did not oppose the judgement.
[5] Reactions to Section 377 verdict | Jamaat-e-Islami Hind expresses dismay >
The Tribunal has also considered reports regarding this provision predating the judgement. For example, a December 2013 BBC News article states in relation to Section 377 of the IPC, ‘Correspondents say although the law has rarely - if ever - been used to prosecute anyone for consensual sex, it has often been used by the police to harass homosexuals’.[6] A March 2014 article in The Hindu also indicates that ‘Section 377 is not used frequently as there have been less than 200 reported judgments in 150 years of the law’s existence’. Although the ‘prosecution of consenting homosexuals was infrequent, Section 377 was used by the police to harass and intimidate sexual minorities. In addition, the existence of this provision also prevented sexual minorities from accessing sexual healthcare’.[7]
[6] ‘India government asks court to review gay sex ban’ 2013, BBC News, 20 December < Accessed 11 June 2015 <CXC28129414387>
[7] Akila, R S 2014, ‘Section 377: The way forward’, The Hindu, 1 March < Accessed 5 June 2015 <CX1B9ECAB10873>
Regarding social attitudes towards homosexuality in India, a October 2014 paper by Dr. M V Lee Badgett includes information on attitudes toward homosexuals from the 2006 World Values Survey (WVS)[8] for India. In the 2006 survey, 64 per cent of the Indians surveyed said they believed that homosexuality was never justified, while 41 per cent said that they would not want to have a homosexual neighbour. Comparisons with data from earlier WVS surveys showed ‘that negative attitudes about homosexuality have diminished since 1990’ in India, but the paper indicates that ‘While these measures do not capture the full range of possible opinions and attitudes toward LGBT people, the WVS measures suggest that stigma of homosexuality is present and still very common in India’.[9]
[8] The WVS is ‘a periodic survey of attitudes and values of individuals that is conducted using the same survey instrument in many different countries’, the most recent survey being conducted in 2006. See: Lee Badgett, M V 2014, The Economic Cost of Stigma and the Exclusion of LGBT People: A Case Study of India, October, World Bank, p.8 <
[9] Lee Badgett, M V 2014, The Economic Cost of Stigma and the Exclusion of LGBT People: A Case Study of India, October, World Bank, pp.8-10 <>
A nationwide poll, conducted by the CNN-IBN television network and the Hindustan Times shortly after the 2009 court ruling that found Section 377 unconstitutional, ‘found that 73 percent of Indians believed that homosexuality should be illegal’. According to a March/April 2014 article in Foreign Affairs magazine, which refers to the poll, ‘the belief among social liberals and younger Indians that the 2009 verdict had reflected wide, if tacit, acceptance of homosexuality in their society’ was misplaced, and ‘In fact, far more Indians were dismayed by the 2009 verdict than applauded it… A coalition of conservative religious and political groups immediately appealed the decision to the Supreme Court, arguing that homosexuality was an offense against public morality and Indian cultural values’. The article indicates that prior to the fight against the law that resulted in the 2009 court ruling, ‘India’s gay rights movement had been limited to small pockets of activism around the country; the lawsuit represented its first highly visible, collective effort’. The subsequent December 2013 decision by the Supreme Court had ‘left the country’s LGBT population fearful, angry, and depressed’.[10]
[10] Trivedi, I 2014, ‘The Indian in the Closet’, Foreign Affairs, March/April <>
A December 2014 Thomson Reuters Foundation article also indicates that the December 2013 Supreme Court ruling was reported by activists to have ‘resulted in a marked increase in the persecution of’ LGBT persons, ‘forcing many to conceal their sexual identity’. Abhina Aher, programme manager for Pehchan, said that ‘Across the country, we are getting many more reports about threats, intimidation, police harassment, rapes and especially cases of blackmail and extortion’. Aher ‘was speaking at an event marking the first anniversary of the Supreme Court decision’, and ‘said her organisation had recorded 2,064 cases of violence against sexual minorities in the past year, but had no figure for previous years’. She also said that ‘In the past year, police have raided homes and arrested LGBT people, while extortion rackets by people in internet chat rooms posing as gays to entrap people were mushrooming’. Victims who were ‘from New Delhi, and states such as Maharashtra, Odisha, Gujarat and Andhra Pradesh, used the event to tell stories of abuse and discrimination since the Supreme Court ruling’.[11]
[11] Bhalla, N 2014, ‘Persecution of India’s sexual minorities surges after court ruling – activists’, Thomson Reuters Foundation, 11 December <>
The US Department of State Country Reports on Human Rights Practices have consistently over recent years referred to LGBTI persons facing physical attacks, rape, and blackmail, including in the most recent report for 2017.[12] The 2017 report also refers to police committing crimes against LGBTI persons and using the threat of arrest to coerce victims not to report the incidents, and that LGBTI groups reported they faced widespread societal discrimination and violence, particularly in rural areas.
[12] 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 < US Department of State 2017, Country Report on Human Rights Practices for 2017– India, Section 6 >
Freedom House reported for 2018 that ‘The penal code forbids “intercourse against the law of nature.” Discrimination against LGBT (lesbian, gay, bisexual, and transgender) people continues, including violence and harassment in some cases’.[13]
[13] Freedom House 2018, Freedom in the World 2018 – India, Section F, p.[6] < >
Even before the 2018 judgement, there were sources that reported significant changes in values and attitudes to sexuality in India;[14] and there have been other significant Supreme Court judgments in recent years, such as the 2014 decision which officially recognised eunuchs, inter-sex and transgender hijras as a third gender;[15] and a significant decision in August 2017 regarding the right to privacy.[16] These developments together with the recent judgement of the Supreme Court signal that there may be hope for the LGBTI community in India in the future.
[14] See for example the results of the The ILGA-RIWI Global Attitudes Survey on Sexual, Gender and Sex Minorities, 2017, in partnership with Viacom, Logo and SAGE: See DFAT Report paragraph 3.59, p16.
[16] Benjamin Kentish, India Declares Freedom of Sexual Orientation a Fundamental Rights, The Independent, 26 August 2017, >
However, as indicated in the most recent DFAT report (paragraph 55 above), these recent developments are unlikely to change longstanding societal views on LGBTI people so soon. In the Tribunal’s view, the weight of independent information before it, does not support a conclusion that recent positive developments on this front has translated into improvements in conditions or changes in societal values in the reasonably foreseeable future for LGBTI people living their lives in an open and public way as the applicant would intend to do.
Given its findings above about the applicant’s conservative Hindu background and open homosexuality, and taking into account the present situation evidenced in the country information above, the Tribunal finds there is a real chance, in the sense of one that is not remote or insubstantial, that the applicant will face serious mistreatment or harm for reasons of his membership of a particular social group, that is, male homosexuals, if he returns to India now or in the foreseeable future. While consensual homosexual sexual acts conducted in private are no longer illegal in India, there is substantial country information that suggests a high degree of societal discrimination and hostility prevails and there continues to be significant risks of sexual abuse, threats, intimidation, vulnerability to police abuse and harassment for homosexual males. There is continuing social stigma for homosexuals and social and employment discrimination is prevalent. There is considerable family and social pressure to enter a heterosexual marriage. Conservative religious elements remain hostile and opposed to homosexuality. The Tribunal is not satisfied on the existing evidence that police provide a reasonable level of protection for LGBTI people.
While acknowledging that there are LGBTI communities and organisations in India, and some visibility of gay people particularly in urban centres, the Tribunal cannot be confident, in light of the country information of discrimination, violence and abuse on the basis of homosexuality, that as an openly gay man the applicant would not face a real risk of the deliberate infliction of serious harm throughout India, even in large cities where the situation for them may be relatively more open and relaxed. For these reasons, the Tribunal is satisfied that in the present case a real risk of persecution exists in the country as a whole, and safe relocation within India is therefore not open to the applicant.
The Tribunal is satisfied that the essential and significant reason for the harm is the applicant’s homosexuality and it is satisfied that homosexual males constitute a particular social group within Indian society. The Tribunal is satisfied that the applicant would be unable to access effective state protection should he persecuted by non-state actors, despite the recent decriminalisation of homosexuality, given the history of reports of police harassment of homosexuals and also the possibility of political influence of his relatives and community.
The Tribunal accepts that the applicant cannot be required to take steps, for example, by repressing his sexuality or being discreet, to avoid offending his persecutors or to modify some attribute or characteristic to avoid persecution.[17]
[17] Appellant S395/2002 v MIMA (2003) 216 CLR 473 per McHugh and Kirby JJ at [40] and per Gummow and Hayne JJ at [80].
Accordingly, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for reasons of his membership of a particular social group, that is, homosexual males. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Meena Sripathy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2018] AATA 5045

19 October 2018

Key Legal Topics

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Immigration

Administrative Law

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Procedural Fairness

Statutory Construction

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Natural Justice

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