1600637 (Refugee)

[2018] AATA 4656

1600637 (Refugee) [2018] AATA 4656 (9 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1600637

COUNTRY OF REFERENCE:                  India

MEMBER:Meena Sripathy

DATE:9 November 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 November 2018 at 2:10pm

CATCHWORDS

REFUGEE – protection visa – India – particular social group – homosexual men – disapproval from family – discrimination and hostility towards LGBT persons – state protection available – consensual gay sex legalised in India – not taken steps to explore his sexuality in Australia – credibility issues – evasive to Tribunal’s questioning about sexual history – oral evidence contradicts written evidence – decision under review affirmed 

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499

Migration Regulations 1994 (Cth), Schedule 2

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 24 December 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 22 December 2014. The delegate refused to grant the visa on the basis that the delegate was not satisfied that there is a real chance the applicant will suffer persecution or a real risk he will suffer significant harm if the foreseeable future if returned to India. The delegate concluded that the applicant could rely on state protection against harm from family or community and/or that he could avail himself of protection elsewhere within the country.  

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 decision under review should be affirmed.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

5. 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

1. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

Evidence before the Department

1. Information in the application form provides that the applicant is a [age] year old married Sikh man from the state of Haryana, India. He indicates one residential address form birth until his departure from India in September 2014. He provides details of a wife, [age] year old daughter, parents and three brothers in India. He indicates he has studied to the level of Year [grade] in India and came to Australia on a [temporary] visa, but doesn’t provide any details of past employment.

2. In a statement setting out his reasons for claiming protection, the applicant states he was having problems with his marriage for many years and could not understand why but later on realised it was because he was attracted to his own sex.  He discovered this when one day he was at a party and got drunk and ended up having sex with his male friend.  From then onwards they had an intimate relationship but discreetly.  He continued to be unhappy with his wife. He realised that he could not continue with this double life and had to get out of India because he could not be openly gay there. He would be stigmatized for life and harmed or killed by his wife’s family and religious fanatics. He came to Australia and has been enjoying life freely and is openly gay here. He fears for his life if he were to return to India. He is known in the Indian community here to be gay and his family knows of this and told him not to come back and stigmatize their lives and be harmed by various religious groups. There is no safety in India because it is a situation of anarchy.  He seeks protection in Australia.

3. The applicant was interviewed by an officer of the Department on 18 November 2015 and the Tribunal has listened to an audio recording of the interview. Relevant information provided at the interview is included in the delegate’s decision record. The Tribunal notes the applicant told the delegate at the interview that his first intimate experience with a man in India occurred some 6 months prior to coming to Australia, and that they had sexual encounters about 3-4 times after that.

4. In her reasons for decision, the delegate accepted, given that he had an arranged marriage at a young age and may not have had many options at that time, that the applicant was either homosexual or bisexual.  However, she was not satisfied that he faced a well founded fear of persecution, or a real risk of significant harm on the basis that he could rely on state protection from harm from private actors. The delegate was also not satisfied that he faced a real chance of persecution in all areas of the country. 

Evidence before the Tribunal

1. In a submission dated 1 August 2018 from his representative, it was claimed that the applicant fears harm on the basis of his homosexuality in the form of honour killings due to the disrepute he brings to his family, and also social and economic isolation and physical ill treatment, harm and harassment from those in society who hold extremist views on homosexuality.  It is submitted that state protection is ineffective, particularly given the existence of s377 which provides that homosexual sex is an offence; and that he is unable to relocate to any other part of India given his qualifications and language barriers which will mean he is denied a livelihood and capacity to subsist. Therefore he is at risk of persecution upon return to India. It is also submitted that he will face a real risk of significant harm in the form of death, physical injury, imprisonment, communal isolation and deprivation of livelihood.

2. At the hearing the Tribunal explained the issues arising in the case.  It explained that this is a fresh review of the decision and the Tribunal will be considering all of the issues arising, including whether the Tribunal is satisfied that he is homosexual as claimed and whether he faces a real chance of serious harm on this basis or significant harm upon return to India.  The Tribunal would also consider whether he can access effective state protection and whether he would face a real chance of harm in all areas of the country.

3. The applicant gave the following evidence about his current circumstances. He lives alone, at the same address since his arrival. He works 10-15 hours per week, earning between $150-200 per week and pays $70-75 per week in rent.  When asked what he does the rest of his time he said he is mostly at home because he does not speak English and is trying to improve his language skills.

4. He confirmed he has no family in Australia. In India he has his wife, two children, parents and three brothers. When asked to clarify how many children he has, he stated he has a son, who was [age] years old when he left, and a daughter who was [age] years when he left.  The Tribunal put to him that in his application form and to the delegate at interview he stated he only had one daughter, whereas it was noted that he mentioned two children when interviewed by the post prior to being granted his visitor visa and raised the issue of the concern this may cause to the Tribunal’s assessment of how reliable and credible his testimony is. He said in response that he may have misunderstood the questions previously, and reiterated that he has two children. His children live at home with his wife, who lives in the same house as his parents and youngest unmarried brother.  His other two brothers are married and live separately with their families in the same village. His father supports his wife and children.

5. The Tribunal asked the applicant about his marriage, noting that he appears to have been quite young at the time.  He said he married around [year], and was around 18 or 19 years old. His wife was a few years older. Regarding his young age, he said that is just how it was at that time and that it was arranged. His older brother married before him and the second brother [number] years after him. His youngest brother is still unmarried. The Tribunal noted that given his younger brother is [age] years old and still unmarried, this appears to contradict his claim that they marry young in his community.  He made no comment.

6. He said he is not in touch with his family.  He last had contact with his daughter some time ago, he cannot recall exactly when.  Since then they appear to have changed their number and he has had no recent contact.

7. The Tribunal asked the applicant why he came to Australia in September 2014 and why he went to[Town 1],. He said the conditions in India were such that he had to leave. He had no contact or connections here, the person he contacted to arrange to get out of India told him this was the place to come to. The Tribunal asked the applicant why he applied for a passport in 2006, noting this was the issue date of the passport on which he entered. He said he applied for a passport around the time that conditions for him were not good and it was suggested that he should get a passport.

8. The Tribunal turned to the applicant’s claims and asked when he started to feel attracted to members of the same sex.  He explained that for some time there were people in his village for whom he felt some attraction but not much, but slowly over time he started to feel more of an urge to act on it. Once he started, there were more men/boys who felt similarly and they would find him and they would have sexual activities in the bushes.  Initially it was not so often but then it began to increase. The Tribunal asked when this started. The applicant was vague and evasive about details, saying that he cannot remember dates or times.  It asked whether it was before or after his daughter and son were born. He said he cannot really recall but it may have been after his daughter was born but before his son. When asked how often or regularly he would engage in these activities, the applicant said again, non specifically, initially it was rare, secret and hidden but then over time it became more often, every second or third day. When asked over what period of time, he did not answer.  He said initially he tried to hide but then it became more public and more frequent. When asked to provide details about the specific people he had relations with, the applicant was evasive, saying only that it was slow at first and he had some regular boys he went with but could not provide any names.

9. The Tribunal asked the applicant if, given his passport was issued in 2006 and he did not depart until 2014, he engaged in these activities over these 8 years? He agreed that he was doing it continuously over this period. The Tribunal asked if anyone physically harmed him for engaging in this behaviour. He said they abused and hurt him. When asked to specify what he meant by ‘abuse’ he said his wife and daughter quarrelled with him; his relatives told him that he must either stop the behaviour or leave the area.  They were not happy that he was engaging with boys in the village and considered him a bad influence. The Tribunal asked if anyone ever complained to the police about his behaviour. He said they did not but they threatened to. The applicant was unable to respond clearly to the Tribunal’s question, repeated several times, of when his family discovered this and started threatening him in this way. When asked why he decided to leave in 2014, he said the situation had become very bad, and his wife and family were forcing him to stay at home.  His daughter was very upset about it. They were all fighting all the time. His in laws also learned about it and he stopped visiting their place.

10. The Tribunal put to the applicant that his account to the Tribunal was quite different to the written statement of claims in his application and his oral evidence to the delegate.  There he referred to a party when he got drunk and slept with a friend of his, with whom he had relations 3-4 times after that. Before the delegate he said this incident occurred about 6 months before he came here and he referred to no other incidents of relations with men.  The Tribunal put to the applicant that the inconsistent accounts of his past experiences may lead the Tribunal to have concerns about the credibility of his claims and it may not accept he is telling the truth.  In response the applicant said what he said there and today is all the truth.  He had relations with men in India, initially it was not frequent or open but later it became obvious and known.  Just before he came here it became quite well known.  He said nobody would make up a story like this and leave their family and children if it were not true.

11. The Tribunal asked the applicant about his experiences since coming to Australia in 2014.  He said he has a friend here, named “[Mr A]”.  He comes and meets him and they have relations.  When asked when and how they met, he was evasive and vague, saying only that “[Mr A]” met him when he was out.  They meet outside, near his house, in the evenings.  They don’t talk much because of the language barrier, they just engage in sex.  He met him 4-5 months ago.  He doesn’t know his last name or what he does.

12. When asked if he has done anything else to explore his sexuality since coming to Australia, he said he hasn’t. He avoids the Indian community because he is afraid word will go back to his village. He has tried to look for organisations here and heard that there are some groups in [City 1] but he has not found them yet. He referred again to his ‘language problem’.

13. The Tribunal asked the applicant if he considered finding some other place in India he can live, away from his family. He said he understands he is not allowed in India to do what he has done.  It is not acceptable in his religion or the society as a whole.

14. The Tribunal asked the applicant if he was aware of developments relating to homosexuality in India, such as court cases that have addressed this issue. It explained that it is required to consider the circumstances he will face in India if he returns, having regard to the independent information. He said he does not know about these things. The Tribunal put to the applicant that it must consider whether he faces a real chance of serious harm throughout the country and in this context, given he fears his family and local community, it must consider whether he will be safe from them in another part of India. In response the applicant referred to the lack of freedoms in India and the inability of a man to marry another man throughout the country. In his religion and society it is not acceptable, like it is here.  He said if he goes anywhere his family will find him and harm him.  When asked whether anyone has harmed him in the past, he said they argued with him, fought with him and his father bashed him in the past.  He was never hospitalised for it but his father told him he had disgraced the family. When asked who he feared outside the family, he referred to the lack of freedom in India.

15. The Tribunal put to the applicant that it had to consider whether he would face serious harm given what he would do upon return, and in assessing this it may take into account what he has done here in Australia. Given that he has not taken any steps to explore his sexuality and live openly as a gay man here, it may find he is unlikely to do so upon return.  It put to him, if it accepted his claims about his past behaviour, it may find that he could continue to engage in having sex with men as he appeared to do for many years before in another part of India away from his family. He was invited to respond to these issues.  In response he said that the reason he hasn’t done more here is because of his language issue. If he spoke English he would have done more. Once he ‘fixes’ his language problem, he will be able to get on with his life here.  He would like to meet the right man for himself and get married.

16. At the conclusion of the hearing the applicant’s representative requested a period of two weeks to prepare a response to issues that arose during the hearing.  The Tribunal indicated it would allow him 2 weeks, to the 30 August. 

17. On 21 August the Tribunal received a submission from the applicant’s representative. With regard to the number of children he has, it is submitted the applicant’s different answers was the result of an innocent error as the questionnaire he was asked to complete only had room for one child so he did not mention the second one. It is submitted that he gains nothing but not disclosing the second child and it was the result of a mistake. Regarding the matter of why the applicant applied for his passport in 2006 when he only travelled to Australia in 2014 the applicant states that he always wanted to leave India for a better life and this is a common aspiration for many Indians, and they apply for passports to ensure they are prepared for travel when an opportunity arises. The arrival of the applicant in 2014 was precipitated by the events that are mentioned in his protection claims. The submission then goes on to repeat the written claims made by the applicant that 6 months prior to leaving India he attended a party, got drunk and had consensual sex with another man which then became a habit he could not stop.  His wife and close relatives came to know about his affair and he could not cope with the family pressures and this is why he fled India.  It is submitted to the Tribunal that, contrary to what the Tribunal put to him at the hearing, homosexuality is still a criminal offence in India and is unacceptable to the majority of its people and there are religious hardliners who resort to hate killings. Therefore it is a risk to be openly homosexual in India. It is unlikely the law will be amended in the near future to accept homosexuality because the majority of the people do not accept it.  The submission goes on to state that relocation is not an option for the applicant because he would have to love someone secretly due to stigma and fear and the applicant is adversely affected by his lack of formal academic qualifications and technical or work skills to obtain employment.  For these reasons the applicant fears he will be persecuted If returned to India. He fears for his life from extremists and imprisonment for engaging in homosexual activity and harm from his own relatives for damaging family reputation.

1. On 12 September 2018 the Tribunal wrote to the applicant and invited his comment on the recent Supreme Court of India decision, handed down on 6 September 2018, relating to s 377 of the Indian Penal Code.  This decision found that adult gay sex is not a crime and to that extent s377 was violative of constitutional principles.[1]  It was also put to him that reporting on the case indicated that the government did not actively defend the provision. [2] 

   [1] >

   On 4 October 2018 the applicant’s representative provided a response.  The applicant submitted that although the law has changed the attitudes and cultural norms are strongly established in India and still weigh heavily against same sex relations. He stated that s377 of the Penal Code has been in existence in India for 150 years and is entrenched in the mainstream society and that acceptance of gay sex cannot be expected in the immediacy of the judgement. Attitudes held against gay sex has not changed much in rural settings to which the applicant belongs.  In reality a large part of the society still considers gay relationships as something abnormal, as such gay people become subject to victimisation and stigmatisation in society.

FINDINGS AND REASONS

1. In assessing the applicant’s claims, the Tribunal has taken into account the information in the Department’s file including his application for the Protection visa, the documents and information he provided to support his claims, his evidence to the delegate at interview and the evidence he gave when he appeared before the Tribunal and documents and information submitted to the Tribunal in support of the review. 

2. It has also had regard to other independent information regarding the treatment of homosexuals in India.   

Nationality

1. On the basis of the evidence of the applicant’s passport the Tribunal finds that he is a citizen of India and India is his country of nationality and the receiving country for the purposes of this assessment of protection obligations. 

Assessment of claims

1. The Tribunal’s first task in determining whether the applicant is owed protection is to make findings of facts on relevant matters.  The task of fact-finding often involves an assessment of an applicant’s credibility.  In this context, the courts have made it clear that the Tribunal must be sensitive to the potential difficulties faced by asylum seekers in putting forward their claims, and that the Tribunal should adopt a reasonable approach to making its findings with regard to credibility and afford the benefit of the doubt to asylum seekers who are generally credible but unable to substantiate all of their claims.  However, the Tribunal is not required to accept uncritically any and all claims made by an applicant.  In assessing his credibility, the Tribunal has had regard to its ‘Guidance on the Assessment of Credibility’.

2. The applicant claims that he feels attraction to persons of his own sex and was engaging in sexual activities with men in India, which was known to his family, relatives and local community.  He fears harm if he returns to India from his family, local community and the state on the basis that he wants to be open about his homosexuality and it is condemned by his religion and family and considered illegal by the state.

Is the applicant homosexual as claimed?

1. The Tribunal has carefully considered the applicant’s evidence to the Department and Tribunal regarding his sexuality. For reasons which are explained more fully below, the Tribunal has serious concerns about the credibility of the applicant’s claims regarding his sexuality and his history of sexual activities and does not accept that he has given credible or truthful evidence about these matters.  It rejects his claims that he is an openly homosexual man, that he engaged in sex with other men in India in the past, or that he has engaged in sex with any men in Australia. It does not accept that he will live as an openly homosexual man if he were to return to India or engage in sex with men there.

2. His written claims and oral evidence to the Department was significantly different and inconsistent with his oral testimony to the Tribunal. In his written claims he referred to attending a party, getting drunk and having sex with a male friend and subsequently embarking on a relationship with him after this.  He elaborated on this claim in his oral evidence to the delegate at interview, stating this occurred about 6 months prior to departing India.  He made no reference to any other sexual experience with men apart from this in his written statement or at the Department interview.  However in his oral evidence at hearing, he gave a very different story about his sexual history in India. He said he started having sexual encounters with men in his village from many years ago and that the occurrence of this increased over time to the point that he was engaging in sex once every several days, and that he had been doing this for up to 8 years prior to departing India.  However, he was unable to provide any more than sparse and vague details to support these claims.

3. The Tribunal put to the applicant at the hearing that he provided a very different account of his sexual history in his written claims and to the delegate. In response he denied that it was inconsistent or significantly different, maintaining that what he said to the Department and Tribunal is all the truth. He repeated that he had relations with men in India, initially not frequently or openly but later it became obvious and known. At the request of his representative, the Tribunal allowed the applicant additional time to provide further response following the hearing.  However, the post hearing submission made no reference to the evidence given at the hearing, and only repeated again the written claims that he had sex with a man at a party about 6 months prior to coming to Australia and this then became a habit that was discovered by his wife and family.  

4. The Tribunal has carefully considered the evidence before it and the applicant’s response provided after the hearing and it concludes that he is not a credible or reliable witness.  It finds he has provided a very different account of his sexual history to the Department and Tribunal, and he has not satisfactorily explained the discrepancies in his evidence.  If he had in fact been engaging in sexual activities with numerous men over many years it would have expected him to have included this in his original written statement of claims lodged with the application.  His oral testimony about this history provided to the Tribunal was vague, evasive and lacking in convincing detail.  Even taking into account the sensitivity of elaborating on such matters, given the significance of his testimony to his application with no other corroborating evidence, and the clear inconsistencies with his prior written claim, the Tribunal found his testimony so evasive and superficial as to be lacking in any credibility.

5. The applicant’s evidence about his activities since coming to Australia adds to the Tribunal’s concerns about his credibility.  There is no reference to any attempts to explore his sexuality since coming to Australia in his written application or in his evidence to the Department at the interview.  Before the Tribunal he gave a vague and evasive response about seeing a man named ‘[Mr A]’ over the past 4-5 months with whom he has sex.  He was unable to provide many details about this person or how he came to meet him. He stated the reason he had not engaged any further about his sexuality in Australia was due to language barriers here.  The Tribunal was not convinced by this explanation and it does not explain why he has not made any effort to find other men in Australia with whom he shares a cultural or language background.  His explanation is also inconsistent with his written claims where he states he is ‘enjoying life freely’ and is ‘openly gay’ and is ‘known in the Indian community to be gay’. The Tribunal finds the applicant’s claims about his activities in Australia are inconsistent, unconvincing and lacking in credibility.  It also finds that it is not credible or consistent with his claimed sexual history that he would come to Australia in September 2014 after having allegedly engaged in regular and constant sex with other men (every 2 to 3 days according to his evidence) and not engage in any sexual activity for over 4 years.  His evidence about ‘[Mr A]’ was unconvincing and vague.

6. For the above reasons, the Tribunal does not accept the applicant’s evidence about his sexual history in India and his reasons for leaving. It finds he is not an honest or credible witness and on this basis the Tribunal rejects his claims.  It is not satisfied on the evidence before it that he was regularly and/or openly engaging in sexual activities with men in his village in India or that he engaged in sexual acts with various men and boys several times per week as claimed in his oral testimony. It also does not accept that he had sex with a friend of his at a party and that they had an intimate relationship after this as stated in his written claims. It does not accept that he has engaged in sexual activities with a man named [Mr A] in Australia, or with any man. The Tribunal does not accept that the applicant was or is homosexual in India or in Australia or that he intends to live as a homosexual man in India upon return to India, whether openly or not. 

7. The Tribunal finds, on the evidence, that the applicant is married and has two children of this marriage. On his own evidence, it accepts that they reside with his parents and unmarried brother. 

8. Given the above findings, the Tribunal will now consider his claims to fear persecution and/or significant harm on this basis in future if returned to India. 

Real chance of serious harm in the reasonably foreseeable future

1. Having rejected the applicant’s claims regarding his sexual activity  in the past or that he is homosexual and intends to live as an openly homosexual man in India upon his return, the Tribunal is not satisfied that he faces a real chance of serious harm on this basis were he to return to India in the reasonably foreseeable future. 

2. The Tribunal acknowledges that discrimination and hostility towards individuals who identify as lesbian, gay, bisexual, transgender or intersex (LGBTI) is prevalent within families and the wider society in India, and also amongst most religions and religious organisations, and that until recently, homosexual acts between consenting adults was criminalised.[3] On 6 September 2018 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.   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. However, despite this significant development, DFAT’s assesses, in its most recent Country Information Report that people who openly identify as lesbian, gay, bisexual, transgender or intersex face a moderate risk of official and societal discrimination and may face societal violence. The removal of section 377 of the Penal Code, while a victory for gay men in particular, does not necessarily prevent or reduce widely-held anti-gay and anti-LGBTI sentiment.  In addition to the DFAT Report, the Tribunal has considered other sources which have reported significant changes in values and attitudes to sexuality in India,[4] and it notes that there have been other significant Supreme Court judgments in recent years (officially recognising a third gender[5] and the right to privacy[6]) which, together with the recent judgement of the Supreme Court signal that there may be hope for the LGBTI community in India in the future. Against this, however, most major human rights reports continue to indicate discrimination and violence towards LGBTI persons continues, particularly in rural areas.[7]

   [3] See DFAT Country Report on India 17 October 2018, paragraphs 3.54-3.60, p 20. 56.      

   [4] See for example the results of 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.

   [6] Benjamin Kentish, India Declares Freedom of Sexual Orientation a Fundamental Rights, The Independent, 26 August 2017, US Department of State 2017, Country Report on Human Rights Practices for 2017– India, Section 6 Freedom House 2018, Freedom in the World 2018 – India, Section F, p.[6] < >

   However, the Tribunal has, above, rejected the applicant’s claims that he engaged in homosexual acts or identified as homosexual in India or that he intends to openly identify as homosexual upon return to India.  Therefore, it is not satisfied he faces a real chance of serious harm on the basis of being a homosexual if he were to return to India.

3. For these reasons, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

4. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal has considered whether there are 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 as defined in s36(2A) of the Act.

5. Having regard to the findings made above regarding the applicant’s circumstances and past experiences, and its findings rejecting his claims to be homosexual or to have engaged in homosexual activities in India or Australia, considering all of the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing there is a real risk the applicant will face significant harm if he returns to India. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

6. 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

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

Meena Sripathy
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:

(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)that is not inconsistent with Article 7 of the Covenant; or

(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)that is not inconsistent with Article 7 of the Covenant; or

(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)for the purpose of obtaining from the person or from a third person information or a confession; or

(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)for the purpose of intimidating or coercing the person or a third person; or

(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
receiving country,  in relation to a non-citizen, means:

(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5J Meaning of well-founded fear of persecution

1. For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note:    For membership of a particular social group, see sections 5K and 5L.

2. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:    For effective protection measures, see section 5LA.

3. A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

4. If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

1. 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.

2. In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K  Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L  Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA  Effective protection measures

1. For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

2. A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

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36Protection visas – criteria provided for by this Act

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(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.

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