1600637 (Refugee)

The applicant, an Indian national, sought review of a decision by the Refugee Review Tribunal (RRT) which affirmed the refusal of his application for a protection visa. The applicant claimed to fear persecution in India on the basis of his membership in the particular social group of homosexual men, alleging discrimination and hostility towards LGBT persons in his home country, exacerbated by disapproval from his family.

The primary legal issue before the Federal Circuit and Family Court of Australia was whether the RRT erred in finding that the applicant did not hold a well-founded fear of persecution for a reason specified in section 5 of the *Migration Act 1958* (Cth). This involved determining whether the RRT correctly assessed the availability of state protection in India, given the legalisation of consensual gay sex, and whether the applicant's claims regarding his sexuality and fear of persecution were credible.

Her Honour, Judge Sripathy, affirmed the RRT's decision, finding no error of law. The court noted that while discrimination and hostility towards LGBT persons exist in India, the RRT had properly considered the legalisation of consensual gay sex and the consequent reduction in the risk of persecution from state actors. Crucially, the RRT had also identified significant credibility issues with the applicant's evidence. The applicant's evasiveness when questioned by the RRT about his sexual history, and contradictions between his oral and written statements, led the RRT to conclude that his claims were not substantiated. The court found that the RRT's adverse credibility findings were open to it on the evidence before it.

The application for review was dismissed.