1608519 (Refugee)

[2019] AATA 5494

1608519 (Refugee) [2019] AATA 5494 (11 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1608519

MEMBERS:  Tania Flood

DATE:  11 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 11 April 2019 at 5:06pm

CATCHWORD
REFUGEE – protection visa – India – social group – homosexual – credibility issues – inconsistent claims – not homosexual and will not face serious harm in India – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499

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 26 May 2016 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 2 April 2016. The delegate refused to grant the visa on the basis that the applicant is not homosexual and therefore will not face serious or significant harm if he returns to India.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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 .

5. 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 themselves 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).

6. 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 soc:al 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. Additi.onal 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.

7. 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 (28), which are extracted in the attachment to this decision.

   Mandatory considerations

8. 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

9. 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

10. The issue in the present case is whether there is a real chance the applicant will suffer serious harm if he returns to India for reason of his race, religion, nationality, membership of a part,icular social group or political opinion or alternatively, 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.

11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Summary of claims and evidence

12. In his application for a Protection visa the applicant claims:

13. He was born in [City 1], Punjab, India.

14. His father, mother and [sibling] live in India.

15. He was born a Sikh.

16. He came to Australia on a student visa in 2008. In 2010 he attended Diwali Fair and met a few gay people. Up until then he did not want to be seen or associated with gay people. In India it is something looked down upon ashamedly.

17. He felt a sense of belonging and happiness talking and mixing with the gay peopre.

18. Before arriving in Australia he had feelings of being closer to gays. His experience at the fair renewed the sexual feelings he was trying to hide and was fearful of

19. From then on he frequently met gay people and interacted with them.

20. In 2011 he visited hotel in the city which is famous for homosexual gatherings. Since then he has continued to attend events and gatherings related to the homosexual community.

21. By mid-2013 he was very much aware of his homosexuality. However, he still didn't express it openly amongst his community for he feared their reaction.

22. He talked to his parents about his sexuality and they were horrified and said they would never support it.  They were expecting him to go to India and marry a girl.

23. He consulted a religious Pandit who told him that in India there is no place for homosexuality.

24. He met a person named [Mr A] and developed a physical relationship with him. They developed feelings for each other and started living together. They both share the same fears about going back to India and living openly as gays. They would be harmed or even killed by fundamentalists and terrorist groups.

25. He also fears going back to India because the community here knows about his sexuality and they believe it is disgraceful.

26. There is no safety in India as anarchy and restlessness is on the rise and the State does not have enough resources to cope with all the problems. The authorities will not support him as they believe gays are disgracing the religion of the country.

27. In a submission dated 13 February 2019 the applicant claims the following:

28. He is openly gay in Australia. He frequents gay circles, actively participates in gay events and attends popular gay clubs such as [Club 1], [Club 2], [Club 3] every few months to socialise and interact with the gay community. Due to his acceptance by the community he feels less ashamed of sexual identity.

29. His parents have still not accepted his sexual orientation. His parents were of the view that his sexual acts as a teenager were passing fancies and they thought he would eventually be like other boys. When he spoke to his parents as a grown up man they could not handle it and were appalled by his stance. Culturally and religiously he has brought shame to his family. His parents withdrawing funding for his studies in Australia was a way of them expressing their anger and frustration with him.

30. Contrary to the delegates opinion the applicant maintains that there are no inconsistencies in his claims. Homosexuality is still very alien to Indian society and his parent's reactions over the years show that they are still unable to accept their son as a homosexual.

31. Though India has become more tolerant to homosexuality and the Supreme Court recently held that homosexuality is not a crime punishable by law it is still unaccepted to the majority of people and there are religious hardliners who resort to killings. It is still impossible for a gay person to live openly in India. Gays in India are likely to be physically attacked, denied employment, denied accommodation, denied access to social events and places.

32. He fears harm from religious hardliners, his own family members and the community at large. He fears being the victim of an honour killing and being isolated socially and economically. He is also likely to face physical ill-treatment, harm and harassment from family and other sections of the population. The situation is further aggravated by the passive stand authorities take in such cases.

33. As to whether he can relocate, he is not properly qualified and is not able to communicate well in various dialects prevalent in India. Such circumstances would make life extremely hard for him to survive. He requires skills and knowledge to be able to relocate and secure employment. Without those skills he will be denied a livelihood and his capacity to subsist will be threatened. Employers are reluctant to employ gay people.

34. Similarly he will be at risk of significant harm and is therefore owned complementary protection.

35. He did not apply for protection until April 2015 because he was not aware that he could seek protection due to his sexual orientation. He also did not want to publicise his homosexuality to authorities and other people as he believes it is a personal preference.

    FINDINGS  AND REASONS

    Country of reference

36. Attached to the Department's file is a copy of the applicant's Indian passport which verifies his claimed identity and nationality. In the absence of any information to the contrary the Tribunal accepts the applicant is a national of India and has assessed his claims against India.

    FEARED HARM ON ACCOUNT OF HOMOSEXUALITY

    DECISION

37. The Tribunal has concerns about the truthfulness of the applicant's claims in respect of his homosexuality for the following reasons:

38. When the applicant was interviewed by the delegate he claimed that he had a sexual relationship with a neighbour in India which lasted for three or four years and which was later discovered by his mother and resulted in him being shamed and physically beaten by his mother.  He repeated these claims when he appeared before the Tribunal.

39. The Tribunal finds it significant that the applicant's written claims omit to mention the above. When discussing this at hearing the applicant stated that he spoke to somebody at a law firm and told her about his experiences and fears. He said he told her roughly about everything that happened and why and she wrote it all down. The Tribunal asked the applicant whether the statement which was prepared was read back to him before he signed it and he confirmed it was. The Tribunal asked him why then he did not question the omission of this relevant information from the statement and he replied "I have no idea". His representative added that sometimes people are reluctant to talk freely when they make their claims. The Tribunal acknowledges that the applicant raised the above claims with the delegate. The Tribunal has also considered the submission made by the applicant's representative. However, the Tribunal is not persuaded that this accounts for the omission of such relevant information from his initial statement of claims particularly as the applicant was comfortable to discuss his homosexuality with the lawyer from the outset.

40. Furthermore, the Tribunal finds the applicant's evidence as to when his family discovered his sexuality unconvincing. On the one hand he claims that his parents became aware that he was engaging in same sex activity when his mother found out about his sexual relationship with the neighbour before he even departed India.  However, as discussed with him during the hearing, his written statement of claims implies that he only discussed his sexuality with his parents sometime after mid-2013 when he was fully aware of his true sexuality. When questioned further at hearing the applicant added that he ceased studying in Australia after one semester because he didn't have any money and his parents refused to support him when he spoke to them about his sexuality. When asked when he started talking to them about his sexuality he said it was about three to four months after he arrived in Australia in February 2008.

41. The Tribunal has considered a newspaper clipping presented to the delegate as evidence of his parents attitudes towards him. The newspaper clipping is a public notice which declares the applicant to be out of his father's control and disowned by him. The applicant informed the Tribunal that his parents disowned him several years ago when he informed them he would not be returning to India and was applying for protection in Australia. The Tribunal pointed out to the applicant that the article does not expressly state the reason why his parents disowned him. The Tribunal finds it does not assist in determining whether he is homosexual or not and has afforded it little weight.

42. The Tribunal also considers the applicant has provided inconsistent claims in respect of his relationships with other men in Australia. In his written claims and in oral evidence to the delegate the applicant states that he met a person in Australia named [Mr A] and developed a physical relationship with him. He further stated that they developed feelings for each other and that they lived together for one year.  During the hearing the Tribunal asked the applicant whether he has had any same sex relationships in Australia. He said that he previously had a relationship with an Australian man called [Mr B] who he met at the gym in about 2014 or 2015. He said they lived part of the week together at his apartment. When asked whether he has had any other relationships in Australia he said he had casual sexual encounters with men after his relationship with [Mr B] ended but no other relationships.

43. The applicant stated that he was not in the relationship with [Mr B] when he was interviewed by the Delegate and the Tribunal is prepared to accept that might be the case. However, the applicant made no mention during the Tribunal hearing of his former relationship with [Mr A] when asked about the relationships he has had with men in Australia. The Tribunal considers the applicant was afforded the opportunity to discuss any of the relationships he has had with men in Australia and the Tribunal went so far as to enquire whether the applicant had relationships with men other than [Mr B]. Given he claims to have had a significant relationship with [Mr A], as they lived together for a year, the Tribunal considers the omission of any mention of this relationship at hearing to be significant.

44. The applicant claims to have been living openly as a gay person in Australia for several years.  When asked to describe how he lives his life as a gay person he said that he can date and go freely to bars or cafes (heterosexual or gay) and gay clubs without being harassed. When asked who he has revealed his sexuality to he said that one of his Indian flatmates knows and he talks to people he meets in bars. He confirmed he does not discuss his sexuality with people at work. When asked how he interacts with the gay community in Australia he said he goes out to gay clubs approximately five or six times a year and also attends music festivals and events at clubs as well as Mardi Gras. He added that he also frequents heterosexual venues.

45. The Tribunal finds the above responses in respect of his gay lifestyle in Australia to be general, lacking in detail and unconvincing. While he insists he is living openly as a gay person and to have no fears of harassment in Australia on his evidence he has only revealed his sexuality to one frfend. Other than his claims he has put forward no other evidence to substantiate how he has been living openly as a gay person in Australia for several years. During the hearing the applicant indicated that his [social media] account could elicit evidence of his homosexuality and/or gay lifestyle.  The Tribunal afforded him an opportunity at hearing to reveal that evidence. After a break in the proceedings the applicant advised the Tribunal that there is nothing of use to reveal.

46. The Tribunal also finds it highly problematic that the applicant only raised his fears of returning to India on account of his homosexuality on 2 April 2015 despite arriving in Australia in February 2008. During the hearing the applicant stated that he didn't know he was eligible to apply for a Protection visa in Australia and he didn't have the money to do so. While the Tribunal is prepared to accept that the applicant may not have initially been aware of the possibilities of applying for a Protection visa it finds it relevant that he claims in his written statement that by mid-2013 he was very much aware of his sexuality and was told by a religious Pandit that there is no place for people like him in India. Given this, and as discussed with him at hearing, in spite of living precariously in Australia as an unlawful citizen [in] December 2011 [in] April 2015, the Tribunal finds it difficult to accept he did not even attempt to make enquiries about his options to remain lawfully in Australia. The Tribunal considers the applicant has not adequately explained the long delay between his arrival in Australia and him making his claims for protection. The Tribunal considers this reflects poorly on his credibility.

47. Before the Tribunal hearing concluded the applicant requested that additional time be granted for him to retrieve data (photographs) from his old mobile phone to substantiate his claims. The Tribunal allowed the request and on 27 March 2019 the applicant's representative requested a further extension of time to do so. The Tribunal agreed to leave the matter open until 5 April 2019.

48. On 3 April 2019 the Tribunal received a submission from the applicant's representative. In response to the Tribunal's questioning at hearing as to whether the applicant could relocate to Nepal under the India/Nepal Treaty of Peace and Friendship, where the conditions for LGBTI persons are reportedly more favourable than India, it is submitted that the applicant cannot live in Nepal because it is culturally and religiously similar to India with regard to homosexuality. In any event the submission rejects the notion that the applicant has the right of residency in Nepal.

49. As to the evidence contained in his old phone the submission states the information was not recoverable. However, attached to the submission are "new" photographs taken of the applicant at [Club 4] and [Club 5] in Sydney.

50. The Tribunal has considered the photographs submitted post-hearing by the applicant. These photographs reveal a person with similar appearance to the applicant posing in photographs with men, some of which appear to be taken in a gay nightclub setting. The Tribunal is of the view that these photographs could easily have been procured after the hearing in an attempt to contrive evidence.  In any event, the photographs alone do not assist the Tribunal to determine whether the applicant is homosexual. The photographs merely reveal that the applicant was recently photographed in various social settings alongside other men who may or may not be homosexual themselves. The Tribunal has not afforded the photographic evidence any welght.

51. Cumulatively, the above concerns cause the Tribunal to doubt that the applicant's claims to be homosexual are true. On the available evidence the Tribunal is not satisfied that the applicant is homosexual.

1. In the view of the above finding, the Tribunal does not accept that there is a real chance that the applicant will suffer serious harm on account of his sexuality if he returns to India now or in the reasonably foreseeable future.

   Other claims

2. Whilst the applicant's written claim that there is no safety in India as anarchy and restlessness is on the rise and the State does not have enough resources to cope with all the problems, appears to have been made in the context of his claimed fears on account of his sexuality, the Tribunal has considered the claim more generally for completeness.

3. If indeed the security situation in India is as described, there is no evidence before the Tribunal to support that the applicant will be personally targeted by the persons causing such instability or that any harm he might encounter in the context of general insecurity in India will be because of any systematic or discriminatory conduct directed at him. Therefore the applicant does not have a well-founded fear of persecution for this reason.

4. The Tribunal also notes the information before it  that the applicant's parents may have  disowned him. Even if this is the case, the Tribunal is of the view the applicant has demonstrated his capacity to live a1lone  devoid of family support and financial assistance in the years he has lived in Australia.  In any event, it is not claimed and nor is it  submitted  that  this matter alone will result  in him being  seriously  harmed  on  return to India.

5. For all 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) of the Act

6. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. For the same reasons already articulated, the Tribunal is not satisfied that 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. Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

7. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.

   DECISION

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

   Tania Flood
   Member