1605348 (Refugee)

The applicant, a Muslim man from India, sought a protection visa based on his claims of being homosexual and facing potential persecution from his family and society. The dispute before the Tribunal concerned whether the applicant would face persecution, amounting to serious harm, if returned to India due to his sexual orientation and his same-sex marriage.

The legal issues before the Tribunal were whether the applicant would be prosecuted for engaging in a homosexual lifestyle in India, or whether he would face serious harm from his family, the police, authorities, or members of the community. The Tribunal was required to assess the real chance or real risk of such harm occurring, considering the country information regarding the application of Section 377 of the Indian Penal Code and the availability of police protection.

The Tribunal found that Section 377 of the Indian Penal Code is infrequently applied to consenting adults. It also concluded, after considering the evidence and country information, that there was no real chance or real risk that the applicant would be prosecuted or face serious harm in India due to his sexual orientation or his same-sex marriage. The Tribunal was not satisfied that the applicant would be unable to live an independent lifestyle away from his family in India.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa.