1514734 (Refugee)

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.