1515485 (Refugee)

1515485 (Refugee) [2018] AATA 724 (26 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1515485
COUNTRY OF REFERENCE:                  India
MEMBER:C. Packer
DATE:26 February 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 26 February 2018 at 5:23pm

CATCHWORDS
Refugee – Protection visa – India – Social group - Homosexual – General discrimination from community – Societal and family pressure – Health – State protection available – Access to medical treatment

LEGISLATION
Migration Act 1958, ss 5(1), 5H(1)(a), 5H(1)(b), 5J(1)-(6), 5K-LA, 36(2)(a), (aa), (b), or (c), 36(2A) and (2B), 65, 499
Migration Regulations 1994, Schedule 2

CASES
S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71

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 (the delegate) to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a man [age], born in India and a citizen of India.
The applicant arrived in Australia [in] December 2014, as a holder of a [temporary] visa, and had travelled on an Indian passport issued [in] 2017 and valid [to] 2017.
[In] December 2014 the applicant applied for a Protection (Class XA) visa.
The applicant did not attend an interview with the delegate.
[In] October 2015 the delegate refused the application.
[In] November 2015 the applicant applied for review of the delegate’s decision.
On 9 January 2018 the applicant attended a Tribunal hearing.
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether the applicant is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.
The applicant’s narrative is centred on his homosexuality and his HIV+ status, and his claim to fear harm in India is based on several main elements: a fear of being controlled by his father; a fear of engaging in gay sex and then being extorted for money by police or criminals because section 377 Indian Penal Code makes the conduct of ‘carnal intercourse against the order of nature’ a crime; a fear of being discriminated against when seeking a job because he is HIV+; a fear of being rejected by gay men because he is HIV+. However, I do not accept that the applicant will be unable to live and maintain an independent lifestyle away from his father in Mumbai. As well, country information shows that section 377 IPC is infrequently if at all applied to consenting adults. After carefully considering the material and evidence before the Tribunal, I do not accept there is a real chance or a real risk that the applicant, an openly same-sex oriented male who engages in consensual sex, will be prosecuted if returned to India, or prosecuted if he engages in a homosexual lifestyle, or face serious harm or significant harm in Mumbai from his father, family, police, the authorities, or persons in the community. I find that his claim he will be discriminated against if he seeks future employment in [a certain industry] is unsupported by evidence and speculative. I find that should some gay men reject him because he is HIV+, such rejection is not persecution or significant harm. I conclude that the decision under review should be affirmed and my assessment follows.

CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS

Background

The applicant’s protection visa application provided some basic background information, and the applicant supplemented this with further details at the hearing. In the application, the applicant indicated that he was born and raised [in] Kerala State. He then lived in [(an area of Mumbai)] in Maharashtra State from 2001. He completed Year 12 in [year] and then travelled to Australia in March 2009 to undertake training to be [an Occupation 1]. He subsequently had four trips away until his final departure [in] January 2014 after he had completed his [Occupation 1] Licence and relevant training requirement. He showed parents in India and no siblings. The only employment he showed was low level work [in] [Australia]. At the hearing the applicant said that he has permanent part-time work [and] he received no financial support from his parents.
According to its most recent 2011 census, India’s population was approximately 1.21 billion with an average annual population growth rate of 1.64%. Population densities were highest along India’s coastline and the Indus-Gangetic plain south of the Himalayas. Despite hosting some of the world’s largest cities, including Mumbai (18.4 million), Delhi (16.3 million) and Kolkata (14.1 million), and a rapid rate of urbanisation, approximately 68% of India’s population still lives in rural areas. India is a diverse, multi-ethnic and multi-lingual society. India’s two official languages are Hindi and English, but India’s states legislate their own official languages. The Republic of India is a federal constitutional democracy, made up of 29 states and seven union and national territories (controlled by the Central Government). India’s Constitution divides powers between the Central Government and the states, with some areas of shared responsibility. The President of India has formal executive power but acts on the advice of ministers.[1]
[1] The Department of Foreign Affairs, DFAT Country Information Report India 15 July 2015 (July 2015 DFAT report India)
Summary of claims
The applicant claims to fear harm and ill treatment in India from his father, police and the general community. His key claims as summarised are:
·His sexual orientation is homosexual.
·He kept in touch with friends in India and one friend told his parents about his lifestyle. When he returned home in January 2014 his parents were hostile and verbally accosted him and restricted his lifestyle.
·He needed to return to Australia to correct an issue with his [work] [and] he considered this was a good opportunity to flee India.
·He fears if he returns to India his father will force him to live at home and control his life. He fears his father can find him anywhere he lives as his father is well connected with high profile people and politicians.
·He fears that he will be harmed in India as homosexual sex is against the law and this assists extortion and blackmail by police, criminals and people in the community.
·He is HIV+ and fears that he will be discriminated against when seeking employment.
·He fears that gay men will reject him because he is HIV+.
Evidence
The evidence before the Tribunal includes the following material:
·the applicant’s Protection visa application form lodged [in] December 2014, which includes a typed statement dated [in] December 2014 that gives reasons for seeking protection in Australia
·passport page
·the Protection visa decision record (‘delegate’s decision’) dated [in] October 2015, which is the subject of this review
·the application for review, which has attached to it a copy of the delegate’s decision
·letters dated [in] December 2014 and [in] December 2017 from [a certain] Health Centre
·school document
·submissions of 8 and 22 January 2018, country information and Supreme Court of India judgement
·photos and other supporting documents concerning his sexuality
·medical report dated [in] January 2018
The applicant appeared before the Tribunal to give evidence and present arguments, on 9 January 2018. A witness [also] gave evidence, and the representative attended. The applicant spoke fluent English. At the start of the hearing I asked whether he was well and able to talk about his story, and he stated he was. After the hearing the applicant provided a medical certificate dated [in] January 2018 that stated he suffers from anxiety and depression and “He is extremely anxious about being persecuted if he returns to India due to his sexual orientation.”. During the hearing he appeared to fully understand questions and he gave coherent answers and explanations. I assess that he was competent to give evidence and had a full opportunity to put forward his story and arguments.
I fully considered the submissions provided by the applicant and his representatives and note that AAT decisions are not precedents.
The Department had not issued a certificate under s438 of the Act.
Assessment of claims
The applicant claims to be a national of India. A copy of his Indian passport is on the Department’s file. All the available evidence, including the applicant’s oral evidence and familiarity with India, supports his claim to be an Indian national. India is therefore the receiving country both for the purpose of assessing his protection claims, and his claims against the complementary protection grounds. As well, I accept he has the identity he claims.
The applicant’s narrative is centred on his homosexuality and his HIV+ status, and his claim to fear harm in India is based on several main elements: a fear of being controlled by his father; a fear of engaging in gay sex and then being extorted for money by police or criminals; a fear of being discriminated against when seeking a job because he is HIV+; a fear of being rejected by gay men because he is HIV+. As I later discuss, the scenario of being set up for extortion after engaging in gay sex with a stranger is not implausible as country information shows there have been occurrences where criminals or police have used the fact that ‘carnal intercourse against the order of nature’ is illegal in India to blackmail/extort money from gay men.
Having considered the material before the Tribunal including documentary evidence from a range of media, the applicant’s evidence at the hearing, and the evidence of his witness, I accept that the applicant’s sexual orientation is homosexual.
In light of the letter dated [in] December 2017 from [a certain] Health Centre I accept that the applicant is an HIV+ man who successfully takes medication for that condition.
I accept that male homosexuals form a particular social group (PSG) in India because they share a common characteristic that cannot be changed and have a distinct identity which is perceived as being different by the surrounding society. I also accept that HIV+ gay men/men/people form a PSG in India because they share a common characteristic that cannot be changed and have a distinct identity which is perceived as being different by the surrounding society.
Harm deriving from the Indian authorities
In considering whether the applicant may face a real chance of serious harm now and in the reasonably foreseeable future, I note the guidance provided in S395/2002 v Minister for Immigration and Multicultural Affairs in which Justices McHugh and Kirby stated that consideration must be given to whether there is ‘a real chance that the applicant will be prosecuted if returned to the country of nationality?’ Country information including the information provided by the applicant and his representatives shows that to conduct ‘carnal intercourse against the order of nature’ is a crime in India. The July 2015 DFAT report India stated in part:
3.57 India has an active and increasingly visible lesbian, gay, bisexual, transgender, and intersex (LGBTI) community. However, homosexuality remains a social taboo and discrimination on the grounds of sexual orientation is prevalent in India, particularly in rural areas. Credible non-government organisations claim that it would be extremely difficult in practice to live in a publicly acknowledged homosexual relationship, and the overwhelming majority of gay people in India prefer to keep their sexuality a private matter. There is considerable familial and societal pressure on gay people to enter into a heterosexual marriage.
3.58 Section 377 of the Indian Penal Code makes it a crime to conduct ‘carnal intercourse against the order of nature’, punishable by imprisonment for life, or for up to ten years with a fine. This section has been the subject of numerous court cases in recent years, most recently by the Supreme Court in December 2013, which reinstated the offence. Since the 2013 Supreme Court ruling, a number of arrests have occurred under Section 377. India’s LGBTI community has argued that even if legal punishments are not upheld by the judiciary, the existence of Section 377 can be used as a means of harassment.
I find that section 377 of the Indian Penal Code provides for a penalty of imprisonment for life, or for up to ten years with a fine, and I accept that the nature and severity of the harm feared constitutes serious harm, as well as significant harm for the purposes of complementary protection. I next considered whether there is a real chance or a real risk that the applicant will suffer such harm.
At the hearing I pointed out an article[2] in the Oxford Human Rights Hub that discussed the Indian Supreme Court’s current proceedings concerning section 377 IPC. The article explained that the Indian Supreme Court has created something called the “curative jurisdiction”, which allows proceedings to continue even after the dismissal of a review, and for the Court to overturn its own decision, in certain rare and limited circumstances. A curative petition was brought to the Supreme Court, albeit it was considered the odds remained stacked against it succeeding. But in August 2017 a nine-judge bench of the Supreme Court decided an important constitutional case[3] concerning whether there was a right to privacy under the Constitution. The article stated in part:
At the end of August, by a unanimous order, the Court held that privacy was indeed a fundamental right under the Constitution. More specifically, however, a plurality of four judges singled out Koushal vs Naz Foundation as a judgment that was clearly and evidently wrongly decided. In particular, the plurality observed that the Koushal judgment’s holding that only a “minuscule minority” engaged in same-sex relations completely misunderstood the nature and concept of rights. The plurality went on to hold that, in its view, sexual orientation was definitively protected under the fundamental right to privacy. The plurality’s view on the correctness of Koushal vs Naz Foundation was endorsed explicitly by one of the five separate opinions, and implicitly by the others, all of which held that the right to intimate decision-making was a facet of privacy. The plurality also concluded by noting that it was not specifically overruling Koushal only because that case was still pending in curative proceedings.
The judgment of the nine-judge bench should make it clear that the premise of Koushal vs Naz Foundation is no longer valid. Consequently, when the Court next hears the curative petition, it can do one of three things: overturn the Koushal judgment then and there, and restore the judgment of the Delhi High Court; remand the case for a fresh hearing in view of the holding in the right to privacy case; or, acknowledge that Koushal is no longer good law, while refraining from invoking the curative jurisdiction. In this last eventuality, the moment the Court dismisses the curative petition, a fresh challenge to Section 377 is almost a certainty- and that will allow the Court to overrule Koushal in the normal course of things.
Whatever the outcome of the curative petition, the Supreme Court’s privacy judgment has ensured that sooner or later, consensual same-sex relations in India will be judicially decriminalized.
[2] Oxford Human Rights Hub article, The Indian Supreme Court’s “Curative” Hearing in the “LGBT Case”, 30 October 2017, [ Puttaswamy v Union of India
My discussion pointed out that there is optimism in India that sooner or later, consensual same-sex relations in India will be judicially decriminalised. The applicant responded that he cannot wait for what might happen in the future. I acknowledge that despite the current Court proceedings and the growing optimism about the decriminalisation of consensual same-sex relations, section 377 IPC continues to be valid.
At the hearing I pointed out that country information showed there are few or rare convictions under section 377 IPC and my discussion referenced the report- UK Home Office Country Policy and Information Note India: Sexual orientation and gender identity, February 2017.[4] That report set out information about the enforcement and consequences of section 377 IPC as follows:
[4] [ Sexual_orientation_and_gender_identity.v2.0.pdf]
4.3.1 The Supreme Court of India noted in its judgment of 11 December 2013 that fewer than 200 people had been prosecuted under Section 377 IPC since it came into force 150 years ago. A minority of those cases involved consenting adults.
4.3.2 According to various reports cited by the Immigration and Refugee Board of Canada, the threat of being charged under section 377 is sometimes used by police to harass and discriminate against LGBT people in public spaces.
4.3.3 The Times of India reported on 29 September 2016 that, according to the National Crimes Record Bureau, police in various states and Union Territories registered 1,347 cases and arrested 1,491 people under section 377 during 2015, including 207 minors and 16 women. In 2014, 1,148 cases were registered. The article noted, ‘Though the figures do not give a [break-down] of the gender of the victims, it mentions that in 814 cases, the crimes were committed against children. The remaining crimes were committed against adults, but the report does not specify whether the acts were consensual.’
4.3.4 The organisation Erasing 76 Crimes commented in October 2016, ‘Some observers believe that the vast majority of arrests under India’s Section 377 have been for sexual assault of minors, especially boys.’
4.3.5 The National Crime Records Bureau recorded the following data:
2015 (Source: Crime in India 2015 Statistics)
1,347 cases were registered (reported by the police) in 2015 under Section 377 IPC (table 1.3); charge-sheets were submitted in 1,006 cases (tab.4.1); 1,491 persons were arrested (tab.12.1), of whom 177 were children and 16 were women. Transgender persons were not counted separately (tab.12.2). Trials were completed in 378 cases, resulting in 175 convictions, 203 were acquitted or discharged (tab.4.5). In 814 of the 1,347 cases registered, the victims were children (tab.6.3) At the end of the year 2015, 199 persons were in custody while their cases were being investigated; a further 480 were in custody pending trial; a total of 1,841 persons were on bail (tabs.12.3-12.4).
2014 (Source: Crime in India 2014 Statistics)
1,148 cases were registered in 2014 under Section 377 IPC (table 1.3); 113 cases for investigation were carried over from 2013 (tab 4.1); charge-sheets were submitted in 879 cases (tab.4.1); 1,279 persons were arrested in 2014 (tab.12.1), of whom 207 were children and 14 were women. Transgender persons were not counted separately (tab.12.2). Trials were completed in 233 cases, resulting in 100 convictions, 133 were acquitted or discharged (tab.4.5). In 765 of the 1,148 cases registered, the victims were children (tab.6.2).
4.3.6 The National Crime Records Bureau, in recording arrests and convictions under section 377, did not differentiate between consensual or non-consensual sexual relations.
4.3.7 CPIT [Country Policy and Information Team] has not found evidence in other reports or articles that any persons have been tried and convicted under section 377 since December 2013 in cases involving sexual relations between consenting adults.
4.3.8 The Pink News, in February 2015, quoted the chairman of India’s Law Commission as stating: “Section 377 is discriminatory in its application, unreasonable in its intent, deprives a group of its personal autonomy and violates individual privacy and human dignity ... Consequences of the laws in our country on gay sex include damage to the psychological well-being of homosexuals, encouragement of violence and facilitation of police harassment and discrimination against the LGBT community.”

During the hearing the applicant’s response was to produce an article[5] that discussed how gay men had been filmed having sex and then blackmailed, and that also stated “Home Ministry figures show there were 778 cases registered under Section 377 from January to September last year, from which 587 people were arrested. There is, however, no break-up of how many of those charged were heterosexual or LGBT people”. The applicant stated that even accounting for the population of India the number of arrests is still a high number. But as I discussed, to be successfully prosecuted under section 377 IPC would ostensibly need particular evidence, prosecutions are rare, and reports show that a majority of the crimes had been committed against children[6]. My comment also encompassed the February 2017 UK Home Office report that set out the finding of the UK Upper Tribunal[7] that ‘Prosecutions for consensual sexual acts between males under section 377 IPC are, and have always been, extremely rare.’ Indeed, the February 2017 UK Home Office report indicated that the Country Policy and Information Team had not found evidence in other reports or articles that any persons have been tried and convicted under section 377 since December 2013 in cases involving sexual relations between consenting adults. As discussed at the hearing, news reports show that gay men and gay culture are increasingly visible in India and India’s largest, annual LGBT Pride March is held in Mumbai[8], and on 28 January 2017 around 10,000 people marched. News reports do not show police were targeting gay men at the time, and ostensibly show that Mumbai is one of India’s most cosmopolitan and progressive cities.
[5] Report from Reuters FEATURE-Blackmail and abuse: Gay sex ban in India stirs violence - TRFN, 7 April 2015, [ UK Home office report at 4.3.3, 4.3.4
[7] UK Home office report at 2.3.5 to 2.3.7
[8] Article in MumbaiMirror, 28 January 2017, Mumbai Pride 2017: It's all about equality, [ .indiatimes.com/mumbai/other/mumbai-pride-2017-its-all-about-equality/articleshow /56826678.cms]; Article in The Indian Express, 30 January 2017, India’s largest LGBT Pride March held in Mumbai, [ Article in HindustanTimes, 11 February 2017, Mumbai Pride March: LGBT supporters share their hopes for the future, [>
At the hearing I discussed the February 2017 UK Home Office report’s policy summary about their consideration of issues:
3.1.1 Although male same-sex sexual acts are criminalised in India, in practice the authorities rarely prosecute cases involving consenting adults. There are no laws relating to lesbian sexual activity. The Indian Supreme Court ruling has directed the central and state government to implement specific measures to safeguard the rights of transgender persons, specifically Hijras.
3.1.2 While LGBT persons (or those perceived to be) may suffer ill treatment, extortion, harassment and discrimination from police officers and the general populace, the prevalence of such incidents is generally not such, even when taken cumulatively, as to give rise to a real risk of an LGBT person suffering treatment which would amount to persecution or serious harm.
3.1.3 Where, in individual cases, an LGBT person demonstrates that she or he will encounter a level of societal hostility which puts them at real risk, the person would generally be able to seek protection from the police. For persons who become victims of police misconduct, avenues of redress may exist.
3.1.4 Internal relocation to avoid any risk of ill-treatment by non-state actors is likely to be both relevant and, depending on the particular circumstances of the person concerned, reasonable.
3.1.5 As a consequence, a person who fears persecution on the basis of their sexual orientation is unlikely to qualify for asylum or humanitarian protection and where their claim is refused, it must be considered for certification.
As I pointed out at the hearing, the Tribunal is not bound by UK policy. Nonetheless, I have considered and give weight to the February 2017 UK Home Office report. I have considered the country information about the use of section 377 IPC and the scant prosecutions in India, a country of more than 1.21 billion, and consider the country information shows that although male same-sex sexual acts are criminalised in India, in practice the authorities rarely if at all prosecute cases involving consenting adults. Accordingly, I do not accept there is a real chance or a real risk that the applicant ‘will be prosecuted if returned’ to India. As well, I do not accept there is a real chance or a real risk that the applicant, an openly same-sex oriented male, will be prosecuted in India if he engages in a homosexual lifestyle now and in the reasonably foreseeable future.
I next considered the applicant’s claims that he will face ill treatment, extortion, harassment and discrimination from police and others in Mumbai. At the hearing a main focus of the applicant’s discussion about his fear of the consequences of having gay sex in India concerned the possibility of being set up for extortion and blackmail, even though in his narrative the father has told everyone the family knows about the applicant’s sexuality. The applicant’s contention is supported by the DFAT report that stated India’s LGBTI community has argued that even if legal punishments are not upheld by the judiciary, the existence of Section 377 can be used as a means of harassment. The applicant produced an article[9] that told the story of a gay man being extorted after being filmed in a public toilet having forced sex, and occurrences such as gangs whose modus operandi is to befriend victims on gay dating sites, meet in a hotel room and take compromising photos and then extort/blackmail, and a post-hearing submission provided additional articles. The applicant contended that if he used a gay dating site he knows that police sometimes made false profiles to lure men to homes in order to extort money. He said the effect of this is that it will be hard for him to meet new gay men in Mumbai as he will always be on edge that the person will seek to extort money from him.
[9] Report from Reuters FEATURE-Blackmail and abuse: Gay sex ban in India stirs violence - TRFN, 7 April 2015, [>
At the hearing I acknowledged that reports show such occurrences have happened in India, but pointed out country information does not show such ill treatment and extortion is widespread or frequent. The applicant responded that many people may not have reported such ill treatment, and I acknowledge that such ill treatment would likely be under-reported in light of its nature. The applicant also responded that he would be one of the biggest targets for ill treatment/extortion in Mumbai because people know his family has money. When I pointed out that people would only know his family had money if he told them, the applicant claimed that his family is very popular at least in [the suburb]. He said his father is very influential and knows politicians, and a [relative] had been a [senior official]. However, those claims of social connections are not compelling evidence that the applicant’s family ties would be known away from the family and their circle of friends/connections. Nor did I find persuasive his contention that in the past his parents had somehow found out he had smoked a cigarette 30 kilometres from home and this showed he was recognised throughout Mumbai and would be recognised as a big target throughout Mumbai including in the gay scene. I acknowledge that the family is likely to be affluent as they had been able to financially support the applicant when he studied in Australia for a number of years. But there is no material before the Tribunal that shows the applicant’s family is so wealthy and high profile that the applicant and his name would be recognised as being linked to that family throughout Mumbai, a city of more than 18 million. In sum, I do not accept that the applicant would have an elevated social profile in Mumbai such that he would have an increased chance of being targeted for extortion or blackmail. At the hearing my comments about country information encompassed the February 2017 UK Home Office report and the particular considerations of a UK Upper Tribunal[10] that stated “Some persons who are, or are perceived to be, same-sex oriented males suffer ill treatment, extortion, harassment and discrimination from the police…; however, the prevalence of such incidents is not such, even when taken cumulatively, that there can be said in general to be a real risk of an openly same-sex oriented male suffering treatment which is persecutory…’. I have considered and give weight to the UK Home Office report. I consider the country information shows that in India while some men who are, or are perceived to be, same-sex oriented males suffer ill treatment, extortion, harassment and discrimination from the police, the prevalence of such occurrences even when taken cumulatively is not such that it can be said there is a real chance of persecution or a real risk of significant harm now and in the reasonably foreseeable future.
[10] UK Home office report at 2.3.8
Additionally, as I pointed out, Mumbai is one of the most progressive cities in India, and that Mumbai is a sophisticated mega-city ostensibly means there are considerable ways for gay men to meet and socialise in a secure environment. As discussed at the hearing, even my simple internet search of readily available information had shown the existence of a number of organisations[11] in Mumbai that concerned and assisted gay men. Most of these organisations had additional links to other social, support, HIV+ and health contacts. This included social groups that had the aim of enabling gay men to safely meet and socialise in a safe and friendly environment. It is reasonable to consider that locals in Mumbai would know of more groups of gay men who meet and socialise safely. I asked him whether he had done an internet search of organisations in Mumbai and the applicant responded that he had looked up organisations and he mentioned the Nazz Foundation which he said was the main organisation fighting for legalisation and they do help if people are persecuted or if police extort money, as he had read reports they have got involved and the money was returned. The applicant’s evidence shows that he is aware of the gay community in Mumbai and his anecdote about the Nazz Foundation supports the UK Home Office report’s conclusion that “For persons who become victims of police misconduct, avenues of redress may exist.”.
[11] Bombay Dost, [ IndianDost, [>
In sum, I am not satisfied that the applicant has a family or social profile that would be recognised throughout Mumbai away from his family and friends/connections. I do not accept he would have an elevated profile of being wealthy or well-connected, such that he would be a target for extortion or blackmail. While the police have been reported to at times ill-treat, extort, harass and discriminate gay men, particularly at typical pick-up points, and while this is likely under-reported, I am not satisfied that these occurrences even when taken cumulatively, lead to the applicant, an openly same-sex oriented male, facing a real chance of serious harm amounting to persecution, or a real risk of significant harm, at the hands of the police or other Indian authorities now and in the reasonably foreseeable future.
Harm deriving from the general community
I have considered the evidence of the witness that the applicant would not be safe in India but give it no weight in light of his evidence that he had never visited India and had not researched the conditions for gay men there.
I acknowledge that criminal elements have at times been reported to seek to entrap and extort gay men, and this might be under-reported. I acknowledge that a gay man may face ill treatment, harassment and discrimination from the general population. However, as I discussed at the hearing, the country information shows that in India while some men who are, or are perceived to be, same-sex oriented males suffer ill treatment, extortion, harassment and discrimination from the general population, the prevalence of such occurrences even when taken cumulatively is not such that it can be said there is a real chance of persecution or a real risk of significant harm. And as discussed at the hearing, country information that I give weight to shows that where a gay man demonstrates that he will encounter a level of societal hostility which puts him at real risk, the person would generally be able to seek police protection.[12] This finding is reinforced by the applicant’s evidence that he would be on edge whenever he dated which ostensibly shows he would exercise a degree of caution when dating a stranger or if he cruised at a typical pick-up point, and regardless, in Mumbai there are a number of ways for gay men to meet and socialise and seek support in a secure environment.
[12] UK Home office report
In sum, while the general population have been reported to at times ill-treat, extort, harass and discriminate gay men, and while this is likely under-reported, I am not satisfied that these occurrences even when taken cumulatively, lead to the applicant, an openly same-sex oriented male, facing a real chance of serious harm amounting to persecution, or a real risk of significant harm, now and in the reasonably foreseeable future. And while criminal elements/bad men have at times been reported to seek to entrap and extort gay men, and this might be under-reported, I am not satisfied that these occurrences even when taken cumulatively, lead to the applicant, an openly same-sex oriented male, facing a real chance of serious harm amounting to persecution, or a real risk of significant harm, now and in the reasonably foreseeable future.
His family and family expectations
At the hearing the applicant spoke of how in India the general public are not accepting of homosexuals, at least the society he comes from as it is very conservative. In this regard he said that the father had told all of the family and family friends about the applicant’s homosexuality and subsequently none of his relatives had contacted him in Australia; he had been ostracized by all his relatives, family friends, and everyone he knew growing up. While he has ostensibly shamed his family and been ostracized by them, and while this would limit the applicant’s social circle in Mumbai in the future, I find that the severity does not amount to serious harm or significant harm.
The applicant claims he fears being controlled by his father if he returns to India. He claims he could not live independently as no matter where he lived the father would organise for him to be abducted and then forcibly require him to live in the family home and live according to the father’s wishes. Country information shows there is ‘considerable familial and societal pressure on gay people to enter into a heterosexual marriage’[13] and I acknowledge that the applicant would likely face such familial and societal pressure to conform. But I am not satisfied such familial and societal pressure to conform amounts to serious harm or significant harm.
[13] DFAT report India
In the applicant’s narrative his parents and in particular his father had been wholly controlling of his life after he returned to India in January 2014 and they would have forcibly kept him at home had he sought to leave or would have forcibly brought him back. He claims it got so bad at home that he said to the father something along the lines of “Okay fine I won’t have sex with any man while I live here- I just want to focus on my [career]”. But as I pointed out, in light of the applicant’s portrayal of the father as a threatening and controlling parent who had placed him under house arrest, it is difficult to accept that the father then permitted him to return to Australia and even funded his travel. He responded that he promised not to have gay sex and said he had to fix the issue with his [work], and although the father was not fully convinced the mother had transferred money from the father’s account and it was just the day before he flew from India that the father was told. Nevertheless, the applicant’s narrative about the father just acquiescing to the applicant’s arrangement to return unaccompanied to Australia funded by the father’s money- the place where the applicant had developed an open gay lifestyle and where the father would have no control over the applicant at all- does not support the applicant’s portrayal of the father as a controlling parent who would even resort to abduction and violence to get his way. In sum, I cannot discount the possibility that in 2014 the father sought to pressure the applicant to conform to the father’s wishes, but I find unconvincing his claim that he was unable to live away from home because of a fear that the father would have abducted him and forcibly kept him at home.
As well, since 2014 the applicant has matured and has now lived an independent lifestyle away from his parents for a number of years. His evidence is that the father has not spoken to him and has not sent money to him since he came here, and the father in a fit of anger has revealed the applicant’s lifestyle to everyone the family knows. As I put to the applicant, the father does not speak to him now and has ostensibly washed his hands of his son and so would have scant interest in controlling the applicant on return to India. I find unpersuasive his response that the mother would pressure the father to get him to live in the family home in light of the applicant’s evidence about his mother’s close and ostensibly supportive relationship with her son. As I pointed out, he is a mature man [age] who has been living independently in Australia for a number of years, and in India, whether or not the father has influential friends, his father would have no power to force him to live in the family home. I have considered but do not accept the applicant’s claims that the father will force him to live at home and control his life, and find him anywhere he lives and force him home. I do not accept the father can force him to enter an arranged marriage. Based upon his evidence and his profile I do not accept that the applicant, would experience the harm that may be imposed by his family, including pressure to modify his behaviour, in such a way that he would be unable to resist, or were he to resist the impact would amount to serious harm or significant harm.
While the overwhelming majority of gay people in India prefer to keep their sexuality a private matter, as discussed at the hearing news reports show that India’s largest, annual LGBT Pride March is held in Mumbai, and on 28 January 2017 around 10,000 people marched. The reports and publicity around the event, together with the existence of gay groups and businesses in Mumbai suggest the gay community in Mumbai is increasingly open and confident. The applicant is a well-educated and mature man who speaks fluent English and who has been raised in an affluent family environment. For the past several years he has made his own way in Australia and has found accommodation and employment and lived independently. Having considered the applicant’s personal circumstances and profile, together with the reports about the LGBT community in Mumbai, I am satisfied that he would be able to find suitable accommodation in Mumbai and live there as an openly same-sex oriented male.

I have also considered the psychological harm that the applicant may face from state and non-state actors despite him not claiming past harm in this form. After the hearing the applicant provided a medical certificate dated [in] January 2018 that stated he suffers from anxiety and depression and “He is extremely anxious about being persecuted if he returns to India due to his sexual orientation.”. Country information referenced throughout this decision as well as the applicant’s claims give examples such as police harassment and societal and familial disapproval expressed verbally, and the applicant speaks of social discrimination including rejections from gay men. I consider these circumstances as cumulative over time. Having carefully considered all of this, I find that the psychological harm the applicant faces in the reasonably foreseeable future does not amount to serious harm or significant harm.
His health condition
I accept that the applicant is an HIV+ gay man who is successfully taking antiretroviral medication in Australia. But as discussed at the hearing, he will be able to access free antiretroviral medication in Mumbai. Country information[14] shows that in April 2017 the Indian Parliament passed the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Bill, 2017. This includes a new test-and-treat policy that commits to providing access to free HIV treatment for everyone living with HIV in the country. And while there had at times been drug stock-outs in the past, the new policy also entailed strengthening the procurement and supply chain management system as well as sustained community participation. On his return to Mumbai the applicant would need to navigate the health system there, but there is no material before the Tribunal that suggests the applicant, a well- educated man, would face difficulties in accessing treatment. In light of the Indian government’s commitment and the applicant’s personal circumstances I find that in Mumbai now and in the reasonably foreseeable future the applicant will be able to seek and get free treatment and antiretroviral medication as a matter of practice.
[14] The Indian Express article, What is HIV/AIDS Bill? All your questions answered, 13 April 2017, [ UNAIDS article, India to provide HIV treatment to all who need it, 1 May 2017, [ Article in Avert, India to provide free treatment for all people living with HIV, 3 May 2017, [ Avert, HIV and AIDS in India
The applicant has spoken of a fear of being discriminated against when seeking a job because he is HIV+, and a fear of being rejected by gay men because he is HIV+. But as discussed at the hearing, country information[15] shows the 2017 legislation also:
·     Seeks to criminalise discrimination against the HIV community, and lists that denial or discontinuation of employment, education, healthcare services, renting or residing property, standing for public or private office - will count as discrimination along with unfair treatment in any of these categories.
·     Prohibits HIV testing being used as a pre-requisite for securing a job, accessing health care or education.
·     Provides that no person shall have to undergo an HIV test or medical treatment without giving informed consent. An HIV+ person shall have to disclose their HIV status only if required by a Court order. However, informed consent does not include screening by licensed blood banks, medical research or any such purpose where the test is anonymous and not meant to determine the said person’s HIV status.
[15] The Indian Express article
The applicant responded that if he sought employment in [in his industry] he would be required to be tested for HIV. When I queried whether he had researched whether his HIV+ status would affect him becoming licensed he responded that he would get the licence (having earlier said he would be able to get [a certain issue] corrected in Australia) but the licence would indicate he was HIV+. He claimed this would mean that he would be unsuccessful in seeking a job and they could work around it to reject him. But as I put to him, he has not yet sought [the particular] work, and his claim that this would happen to him in such a way is speculative and particularly as such denial of employment will count as discrimination and is criminalised. I do not accept that the applicant’s HIV+ status would preclude him from employment in [that industry]. Regardless, he would be able to seek work other than in [that industry] and would not be prevented from working because of his medical condition. I reject his speculation that his HIV status would become public because it would be on his [Occupation 1] licence in light of the legislation that provides a right to privacy.
At the hearing the applicant spoke of his concern that gay men would reject him if he told them he was HIV+, as some gay men had done in Australia. He said that because of the antiretroviral medication he was undetectable and so he could not pass on the virus, but in India gay men would not understand this and so a greater proportion than in Australia would refuse to have sex with him and this constituted discrimination. But as I discussed at the hearing, the country information shows the Indian government is committed to addressing the problems of the HIV community in India that includes men who have sex with men, and that the National AIDS Control Program has made the elimination of stigma and discrimination a major focus, and recognises that a person living with HIV has the right to privacy and confidentiality about their HIV status and treatment. I am satisfied that the applicant’s family, people in the general community, and gay men, will not know the applicant is HIV+ unless he tells them.
His evidence suggests he would advise gay men about his HIV+ status before sex in some circumstances. But I do not accept that such refusals to have sex with him, or a greater rate of refusals compared to Australia, amounts to discrimination rising to the level of persecution or significant harm. The applicant has not claimed despite ample opportunity and there is no material before the Tribunal that shows gay men and/or the LGBT community would seek to harm him should persons discover his health condition.
The applicant has not claimed despite ample opportunity and there is no material before the Tribunal that shows his HIV+ status will attract serious harm or significant harm from the Indian authorities or general community. Indeed, as I pointed out at the hearing the country information about the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Bill, 2017 shows that the Indian authorities are seeking to assist the HIV+ community that includes men who have sex with men, and seeking to address instances of general harm. In sum, I do not accept there is a real chance or a real risk that the applicant’s HIV+ status and treatment will lead to him facing serious harm or significant harm from the Indian authorities or general community or the LGBT community or his family or anyone else, now and in the reasonably foreseeable future.
After the hearing the applicant provided a medical certificate dated [in] January 2018 that stated he suffers from anxiety and depression and “He is extremely anxious about being persecuted if he returns to India due to his sexual orientation.”. The certificate adds that the applicant had been advised to seek psychological help “and he is quite keen to do this”. I have given appropriate weight to the medical report. But I note the diagnosis is ostensibly based on the sole consult and the applicant had not previously sought psychological help or counselling for his problems, and the doctor did not consider the applicant’s psychological problems were of such severity that the applicant was immediately referred to an expert. The applicant’s evidence at the hearing was that he has lived and worked in Australia for years and has been able to financially support himself. There is no material before the Tribunal that psychological help or counselling or medical help is unavailable in Mumbai or that he would be prevented or hindered from getting such help, and I find he will be able to access appropriate psychological and counselling services. In light of the foregoing and having particular regard to the applicant’s scant mental health needs here, the nature of the symptoms discussed in the certificate, and the applicant’s account of his psychological state- I am not satisfied the applicant will have psychiatric disorders that will attract the adverse attention of people in India such that they will seek to harm him. I am not satisfied that in India there is a real chance that his future condition will result in him experiencing serious harm including a threat to his life or liberty; significant physical harassment; significant physical ill-treatment; significant economic hardship that threatens his capacity to subsist; or denial of capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist. Nor am I satisfied his future condition will result in a real risk that he will suffer significant harm for the purposes of complementary protection.
His travel
The applicant departed India on his genuine India passport that expired [in] 2017. But as discussed at the hearing, he is an Indian national and he will be able to get an Indian passport or travel document and return to India without difficulties. While the applicant has stayed and worked in Australia and sought protection, I do not accept these actions will cause him to face harm on his return to India.
Cumulative
As well, I have considered the cumulative risks and impact upon the applicant were the above listed agents/actors to bring to bear upon him their actions concurrently, but I do not accept that the risk of harm to the applicant increases when considering the potential persecutors concurrently. While there are some possible inter-relationships between state and non-state actors such as but not limited to the family informing the police, I find that the risk would not increase such that there is a real chance of serious harm or a real risk of significant harm.
I have also turned my mind to whether the combined psychological pressure on the applicant arising from a fear of harm derived from a number of different directions would cause the applicant serious harm or significant harm, but I find that it would not. As such even when considered cumulatively, I do not accept that the level of risk and the degree of harm is such that the applicant faces a real chance of serious harm in the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of returning to India.
Refugee criterion
In light of the above assessment, the Tribunal finds that in India the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for the reasons he claims. The Tribunal finds that in India the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for one or more of the five reasons set out in s.5J(1) of the Act either when looked at individually or cumulatively. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

Complementary protection

In light of the above assessment, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm, either when looked at individually or cumulatively. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative criterion in s.36(2)(aa). However, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

The Tribunal affirms the decision not to grant the applicant a Protection visa.

C. Packer
Member

ATTACHMENT A – RELEVANT LAW

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, 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.

Refugee

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 themself 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.

Complementary protection

If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

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.

Gay Bombay, [ Mumbai: Gay and Lesbian tripadvisor (considered with caution as it is general information for visitors)[

Key Legal Topics

Areas of Law

Immigration
Administrative Law

Legal Concepts

Judicial Review
Jurisdiction
Procedural Fairness
Statutory Construction

Actions

Download as PDF Download as Word Document

Citations

1515485 (Refugee) [2018] AATA 724

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71

[2018] AATA 724

26 February 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction