1514734 (Refugee)

Case [2018] AATA 5045

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

  1. 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).

  2. 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.

  3. 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.

  4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CRITERIA FOR A PROTECTION VISA

  5. 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…

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1514734 (Refugee) [2018] AATA 5045
Case
[2018] AATA 5045
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a protection visa. The applicant, a gay male from Gujarat, India, claimed he feared persecution due to his sexual orientation, his family's affiliation with the Bharatiya Janata Party (BJP) and the RSS, and the societal discrimination and hostility he anticipated upon return. He also argued that he could not receive adequate protection from the Indian state due to his family's connections and the historical criminalisation of homosexuality.

The primary legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution for reasons of membership in a particular social group, specifically homosexual males, and whether Australia had protection obligations towards him under the Migration Act 1958. This involved assessing the risk of significant harm, the availability of state protection, and the possibility of internal relocation within India. The Tribunal was required to consider relevant country information, including recent legal developments regarding homosexuality in India and prevailing societal attitudes.

The Tribunal reasoned that while consensual same-sex acts were decriminalised in India by a Supreme Court judgment in September 2018, this legal change had not yet translated into a significant improvement in societal attitudes or a reduction in discrimination and hostility towards homosexual individuals. It noted substantial country information indicating ongoing risks of sexual abuse, threats, intimidation, police harassment, and social and employment discrimination. The Tribunal found that homosexual males constituted a particular social group and that the applicant's homosexuality was the essential and significant reason for the feared persecution. It was not satisfied that the police provided a reasonable level of protection, particularly given the applicant's family connections, and concluded that safe internal relocation within India was not a viable option. The Tribunal accepted that the applicant should not be required to conceal his sexual orientation to avoid persecution.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfied the criterion under s.36(2)(a) of the Migration Act, finding he had a well-founded fear of persecution and that Australia had protection obligations towards him.

Orders

Orders of the court

Full text does not contain this section.

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 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 EVIDENCEEvidence 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.

Decision

Reasons for decision

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).DECISIONThe Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.Meena SripathyMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

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 EVIDENCEEvidence 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.