1605348 (Refugee)

1605348 (Refugee) [2018] AATA 785 (14 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1605348
COUNTRY OF REFERENCE:                  India
MEMBER:C. Packer
DATE:14 March 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 14 March 2018 at 12:07pm

CATCHWORDS
Refugee – Protection visa – India – Social group – Homosexual – Muslim - Previous harassment and discrimination from family and society – Now in same sex marriage – India rarely if at all prosecutes cases involving consenting adults – Police protection available - Ill-treatment and harassment does not lead to real chance of serious harm amounting to persecution

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, 438,499
Migration Regulations 1994, Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33
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] October 2008, as a holder of a Student visa, and had travelled on an Indian passport issued [in] 2000 and valid to [date] 2010. He now holds an Indian passport issued in Australia valid to [date] 2020.
[In] April 2015 the applicant applied for a Protection (Class XA) visa.
The applicant did not attend an interview with a delegate.
[In] March 2016 the delegate refused the application.
[In] April 2016 the applicant applied for review of the delegate’s decision.
On 1 March 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 claims to be a homosexual man. However, I do not accept that the applicant will be unable to live and maintain an independent lifestyle in India away from his family. As well, country information shows that section 377 Indian Penal Code 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 with a partner, will be prosecuted if returned to India, or prosecuted if he engages in a homosexual lifestyle, or face serious harm or significant harm in India from his father, family, police, the authorities, or persons in the community. 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 written application, the applicant stated that he was born and raised in Hyderabad in Andhra Pradesh state (in Telangana state since [date] June 2014). He stated that in Hyderabad he had completed Year [number] schooling and attained a [tertiary qualification], and at [an Australian] University had studied from November [year] to March [year]. He stated he knew Urdu, Hindi and English languages. He stated he had previous work at a [workplace] in Bangalore in 2004 and in Australia as [an occupation] from 2009 to January 2014 and was thereafter unemployed. He stated he was a Muslim and had a father and [siblings] in India, and a [sibling] in [another country], and he stated he contacted them by phone. He travelled to Australia as a student and arrived [in] October 2008. At the hearing the applicant said he had worked as [an occupation] for a year after January 2014 and then did more [of the same] work until the current application had been made in April 2015 when he ceased work because he had no permission to work. He said his partner financially supported him. However, after the partner said the applicant continued to do some work regularly, the applicant agreed he did in fact do work now and then.
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 family, the authorities and the general community. His key claims as summarised are:
·His sexual orientation is homosexual. He fears that he will be harmed and killed in India as homosexuality is against the law.
·His family are strict Muslims and when they discovered he was attracted to men they beat him and locked him in a room for two days. He was taken to a psychiatrist who said he was perfectly alright, and to an Islamic scholar who said he should repent. His family closely watched him. At [a certain age] he had a relationship with a man in India but this ended when the families became aware.
·People in the community knew he was homosexual. He had been harmed, called names, and people stopped talking to him. When he got into a fight and later went to the police they were very indifferent about the matter.
·To get away from his family he moved to Bangalore where he worked in a [workplace] for a year. But there the workers came to know he was homosexual and called him names, and he was sacked.
·He returned to Hyderabad and went to University but at University he faced mental abuse.
·His family have pressured him to marry.
The applicant claims he fears his family, the authorities and the community will harm him because of his Membership of a particular social group of homosexual men.
Evidence
The evidence before the Tribunal includes the following material:
·the applicant’s Protection visa application form lodged [in] April 2015, which includes reasons for seeking protection in Australia
·passport pages
·the Protection visa decision record (‘delegate’s decision’) dated [in] March 2016, which is the subject of this review
·the application for review, which has attached to it a copy of the delegate’s decision
·submission dated [in] March 2018 and country information
·Certificate of Marriage [in] February 2018
·photos and videos sighted at the hearing
·a medical certificate for [Mr A] dated [in] March 2018, letters of support, joint bank account details and identity documents
The applicant appeared before the Tribunal to give evidence and present arguments, on 1 March 2018. The representative was present. The hearing was conducted in 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. 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. A witness, [Mr A], who is said to be the applicant’s married partner also gave evidence.
The Department had not issued a certificate under s438 of the Act.
Assessment of claims
The applicant claims to be a national of India. I sighted his Indian passport at the hearing and partial photocopies were made. 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 for the purpose of assessing both the applicant’s protection claims, and his claims against the complementary protection grounds. Having considered the material before the Tribunal including the applicant’s evidence given at the hearing, I accept he has the claimed identity.
The applicant’s narrative is centred on his homosexuality and his claim to fear harm in India is based on several main elements: a fear of harm from the authorities; a fear of harm from the community, and a fear of his family.
He has spoken of his childhood when he realised he was homosexual. He has spoken of the time when he told his family of his sexual orientation and their bad reaction. He says he once had an active homosexual relationship with a school friend [but] this ended when their families became aware. He says he moved to Bengaluru (Bangalore) for a year but when he lost his job for being gay he returned to Hyderabad and attended University where he was hassled. He says that in Australia he has had a gay lifestyle. He provided a Certificate of marriage to show he married [Mr A] [in] February 2018, and his evidence is that they met in April 2017 and they had lived together from August 2017.
At the hearing the applicant provided scant evidence that showed he lived with his male partner. Other than photos of the marriage dinner attended by friends of the partner and documents/cards concerning the wedding, there was little evidence of the nature of the relationship. The applicant struggled to find photos or videos on his phone that showed the couple, and he only found a handful that showed them together. He said they had a joint bank account but didn’t bring evidence of it, and he said they shared a bedroom in a three bedroom apartment rented by another man, but had not brought evidence of this living arrangement. He named gay saunas he had attended and made some other gay references, and he showed me a [social media] account that had men matching. The partner also gave evidence of the relationship albeit some details differed from the applicant’s account. After the hearing he provided documents to support his claims that included letters of support and joint bank account details. Having considered the material before the Tribunal including evidence from a range of media, the applicant’s evidence at the hearing, and the evidence of his witness, I cannot discount the possibility that the applicant’s sexual orientation is homosexual and that he is in a married relationship as he claims.
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.
At the hearing the applicant gave vague evidence when I asked where in India he would go if he returned. At times he said he could not return to Hyderabad because of his family there. I consider that if he returns to India it is likely he would go to either Hyderabad where he lived most of his life, or Bengaluru where he once lived. At the hearing I discussed country information concerning Hyderabad, and Bengaluru that is considered the IT capital of India, as well as Mumbai that is the centre of the Indian Hindi-language film industry (ie Bollywood).
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 representative 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. But I acknowledged that despite the current Court proceedings and the growing optimism in India about the decriminalisation of consensual same-sex relations, section 377 IPC continues to be valid.
At the hearing I pointed out country information showed in practice the authorities rarely if at all prosecute cases involving consenting adults. 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 that he would be harassed as he had previously been in India, and he would not be able to get work or rent accommodation as an openly-gay man. He claimed that if he was living with his partner in India he would come under greater scrutiny and pressure and they would be discriminated against and harmed. 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[5]. I also discussed the finding of the UK Upper Tribunal[6] 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.
[5] UK Home office report at 4.3.3, 4.3.4
[6] UK Home office report at 2.3.5 to 2.3.7
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.
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 a male same-sex sexual act is 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, and whether or not he is accompanied by his partner, 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 India. The DFAT report 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. Nonetheless, as discussed below news reports show that gay men and gay culture are increasingly visible in India with gay pride marches in Indian cities and news reports do not show police were targeting gay men at the time. My discussion at the hearing encompassed particular considerations of a UK Upper Tribunal[7] that “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 and 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.
[7] UK Home office report at 2.3.8
In sum, I do not accept there is a real chance or a real risk that the applicant, an openly same-sex oriented male, and whether or not he is accompanied by his partner, will suffer ill treatment, extortion, harassment and discrimination from the police or Indian authorities, even when taken cumulatively, that amounts to serious harm and persecution or significant harm.

Harm deriving from the general community

At the hearing when the applicant spoke of the problems he would face in India he claimed that as an openly gay man/couple he would not be able to rent a place to live and particularly if he lives with his partner they would attract adverse attention. He indicated that in the past he had been hassled in public and by neighbours. He claimed that he would not be able to get work and he pointed to his past experience of being sacked from a [work place] in Bengaluru when he was outed. However, the country information and material before the Tribunal does not show that openly same-sex oriented males or couples would be unable to rent in an urban environment. Indeed, the applicant’s evidence is that when he worked in Bengaluru in 2004 and was known to be gay he first lived with his [sibling] but then moved to other accommodation where he lived at times with a distant relative, and friends including gay men. 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 gay men and gay culture are increasingly visible in India with gay pride marches in Indian cities. Country information[8] shows that in Hyderabad the first queer parade was held in 2013, and by 2017 about 1,000 people participated. The applicant once lived and worked for a year in Bengaluru and country information[9] shows that the LGBT community in Bengaluru recently had its tenth annual pride march in November 2017 where over 7,000 people participated. India’s largest, annual LGBT Pride March is held in Mumbai[10], and on 28 January 2017 around 10,000 people marched.
[8] Article in Indiatoday, 11 February 2013, Gay pride and a colour riot: Hyderabad gets its own first queer parade, [ Article in The New Indian Express, 27 November 2017, Queer Habba: Over 7,000 take out march for Namma Pride, [ 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, [
Apart from public celebrations, there is a growing and confident gay culture in Indian cities. As I pointed out, an internet search[11] for any city in India shows for locals and tourists a number of gay organisations and a number of ways for gay men to meet and socialise and seek support in a secure environment. These links show Westerners are not uncommon in Indian cities and particularly in Bengaluru and Mumbai given their size, wealth and particular industries, and even if his partner does live with him in India, I do not accept the applicant would have an elevated social profile such that he would have an increased chance of being targeted for harm. Most of the organisations have additional links to other social, support, and health contacts. As well, the applicant has been away from India for a decade and at the hearing I discussed country information[12] that showed in the past decade many businesses including big IT companies in India had sought to create LGBT-friendly workplaces.
[11] LGBTQ groups online through Meetup, [
[12] The Wire article, Despite Laws, Companies in India LGBT-Friendly, 27 January 2018, [>
I acknowledge that a gay man may face ill treatment, harassment and discrimination from the general population and in a workplace. However, as discussed at the hearing, country information[13] 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[14] that I give weight to shows that in India 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. In light of country information and the applicant’s evidence about his life in India before he came here, I do not accept that as a practising Muslim in India he faces a greater chance or risk of harm.
[13] UK Home office report at 3.1.2
[14] UK Home office report at 3.1.3
Indeed, in India the applicant would return to live in an urban environment and as discussed at the hearing the cities of Bengaluru and Mumbai in particular are considered progressive. As well, the applicant’s profile as a mature [age] man is ostensibly that of a Muslim man who had been raised in an affluent family environment, is well-educated and fluent in English. He has demonstrated that he is able to live independently as he did so for a long period in Bengaluru and he has made his way in Australia where he has lived independently for a decade.
Having considered the applicant’s personal circumstances and profile, together with the reports about the LGBT communities in Hyderabad, Bengaluru and Mumbai, I am satisfied that he would be able to find suitable accommodation in any of those cities and live there, whether or not with his partner, as an openly same-sex oriented male or couple. I do not accept that in India the applicant will be unable to: get accommodation; live with his partner; or get and keep work. 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, and whether or not he lives with his partner in India, 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 stated he fears his family will harm him in India. His evidence is that they never approved of his homosexuality or gay lifestyle and even a month ago his father offered him [an amount] as a dowry if he got married to a woman. His family are strict Muslims and he said he continues to be a practising Muslim who attends Mosque and his partner who is a practising Christian had even attended with him once. He spoke of how he had been poorly treated when he lived at home in Hyderabad and how his [relative] who was a political leader had bullied him saying why do you walk and talk like that. At [age] he had a relationship with a man but this ended when the families became aware. The family became upset when he refused to enter an arranged marriage and he was hit a few times. He then moved to Bengaluru where he worked in a [workplace] from January 2004 to January 2005.[15] He stated in Bengaluru he lived with his married [sibling] for a couple of months, and later with the [sibling]’s [family member], and also with friends some of whom were gay. When I asked whether he lived a gay lifestyle there he agreed he did, and he added that the neighbours had been harsh towards him. As I pointed out and he agreed, his evidence is that he lived independently in Bengaluru, he worked, and his gay lifestyle was known to his family as he had stayed for a time with a [sibling] and other relatives. He stated that when he lost his [workplace] job he returned to the family home in Hyderabad and then attended University where he was bullied. The family pressured him to marry but he refused and this led him to be hit a few times and sent to a 40 day congregational program at the Mosque. He then decided to come to Australia as a student. In the application he indicated the family had once locked him in a room for two days; he was taken to a psychiatrist who said he was perfectly alright, and to an Islamic scholar who said he should repent; and his family closely watched him.
[15] His application Part C, Q85
However, as I pointed out at the hearing, his evidence about his family life in Hyderabad does not support his claims that they will harm him if he returns to India. In his narrative the family have known he is homosexual since he was a teenager but had never seriously harmed him. He has rejected and well resisted the family pressure to marry including when he was much younger and actually living at home where the pressure would have been greatest. While at times family members hit him in anger or locked him in a room when he would not comply with their wishes, this was neither sustained nor serious. He had been sent to religious studies at the Mosque but that did not lead to harm. His family knew that he led a gay lifestyle in Bengaluru but did not seriously harm him either then or when he later returned to live in Hyderabad. Indeed, despite all of this the family supported him while he completed his tertiary studies and then supported his travel as a student to Australia- a liberal country where the family were unable to keep a close watch on him. In light of the applicant’s evidence about his family and family life when he was a teenager and a young man and his travel to Australia, I do not accept that the applicant in fact fears that any family member including the father or [relatives] will harm him on return.
Nor do I accept that the applicant would be unable to live away from the family home in Hyderabad. As earlier discussed, he is well-educated and fluent in English and in the past had lived independently for a long period in Bengaluru and he has lived independently for a decade in Australia, and this leads me to consider he will be able to live independently on returning to India. As an independent and mature man I do not accept that he can be forced or required by his family to attend any Mosque programs.
In sum, I do not accept there is a real chance or a real risk that the applicant, an openly same-sex oriented male, and whether or not he is accompanied by his partner, will suffer ill treatment and harassment from his family including his father or [relatives], even when taken cumulatively, that amounts to serious harm and persecution or significant harm. I do not accept that the [relative] who is a political leader will use his political connections to harm the applicant. I do not accept that the family pressure and bribes to marry, which he has well resisted for many years, amounts to serious harm or significant harm.
I have also considered the psychological harm that the applicant may face from state and non-state actors. Country information referenced in my foregoing discussion 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 from neighbours and work colleagues. 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.
In the applicant’s narrative he has been in a relationship since last year and now a marriage with his partner. If his partner does not accompany him to India, or if the partner is not able to stay there, I acknowledge that the applicant will be separated from his partner for a period and while he seeks to migrate to Australia as a partner of an Australian citizen. This separation will reasonably cause depression and anxiety. But on the material before the Tribunal 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, or such that he will be unable to live and work there, or suffer serious harm or significant harm.
His travel
The applicant departed India on his genuine India passport that expired, but he has been issued a new Indian passport in Australia valid to [month] 2020. He will be able to fly to and enter India without difficulties. While he has stayed and worked in Australia and sought protection, there is no material before the Tribunal that shows he will face harm on his return for reason of anything he has done in Australia including his return as a person who had unsuccessfully sought Australia’s protection.
Cumulative
As well, I have considered the cumulative risks and impact upon the applicant, whether or not he is accompanied by his partner, 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, whether or not he is accompanied by his partner, 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
I considered whether on the evidence before me, 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. For the reasons set out above, I have not accepted there to be a real chance that the applicant will suffer serious harm if he returns to India, now or in the foreseeable future. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. It follows that I do not accept there to be a real risk that the applicant will suffer significant harm from anyone for the same reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to India.

As well, I consider it is reasonable for the applicant to live away from Hyderabad and in a city such as Bengaluru or Mumbai. As discussed above, his evidence is that he was able to live and work in Bengaluru for a long period. He is a mature man who has acted independently in making his way to Australia and living here for a decade. He is well-educated and has some employment experience in India and Australia. He knows Urdu, Hindi and speaks English fluently, so has good language skills that will be of great benefit in getting work. I consider it would be reasonable for him to relocate to Bengaluru or Mumbai.
Overall 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.

Article in The Times of India, 20 February 2017, Rainbow comes alive in Hyderabad as LGBT community marches for equality, [ in HindustanTimes, 11 February 2017, Mumbai Pride March: LGBT supporters share their hopes for the future, [ pride events in Bangalore (Bengaluru), [ bangalore/];
LGBT culture in Bangalore, [ (Wikipedia used with caution);
Bombay Dost, [ IndianDost, [
Gay Bombay, [
Mumbai: Gay and Lesbian tripadvisor (considered with caution as it is general information for visitors)[

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1605348 (Refugee) [2018] AATA 785

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[2018] AATA 785

14 March 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction