1609192 (Refugee) - [2019] AATA 4209

1609192 (Refugee) [2019] AATA 4209 (14 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1609192
COUNTRY OF REFERENCE:                  India
MEMBER:Sean Baker
DATE:14 August 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 14 August 2019 at 8:55am

CATCHWORDS
REFUGEE – protection visa – India – particular social group – homosexual – disowned by family – real chance of physical harm – forced into marriage – right to enter and reside in Nepal – significant practical impediment – proof of nationality – renewal of passport refused by Indian Embassy – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5L, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIMAC v SZRHU (2013) 215 FCR 35
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

The applicant is a [age] year old Indian national who was born and lived in [City 1], Punjab before coming to Australia in April 2008. He claims to fear harm in India as a homosexual.
This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 June 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of India, applied for the visa on 6 October 2015. The delegate refused to grant the visa on the basis that the delegate did not accept that the applicant was homosexual as claimed.
CRITERIA FOR A PROTECTION VISA
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.
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 themselves of the protection of that country: s.5H(1)(a). In the case of a person…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1609192 (Refugee)

Details

AGLC: 1609192 (Refugee) [2019] AATA 4209
Case: [2019] AATA 4209
Decision Date: 14 August 2019

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an individual claiming to be homosexual and a national of India. The applicant asserted that he feared harm upon return to India due to his sexual orientation, citing societal opposition, familial rejection, and the existence of Section 377 of the Indian Penal Code, which criminalises sodomy. The applicant also raised concerns about his ability to enter and reside in Nepal, and the potential for harm or return to India from that country. The decision under review was made by the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the applicant would face harm on return to India, and whether he possessed a right to enter and reside in Nepal, or would face harm there and be returned to India. The Tribunal was required to consider the applicant's claims of being homosexual, the risks associated with this status in India, and the practical impediments to seeking refuge or protection in Nepal. The Tribunal also had to determine the applicant's nationality and assess his claims in light of relevant policy guidelines and country information.

The Tribunal found that the applicant was a national of India. It considered the applicant's claims that he feared harm due to his homosexuality, including threats from his family and societal disapproval, and the criminalisation of sodomy under Section 377 of the Indian Penal Code. The Tribunal also examined the applicant's assertion that he had a right to enter and reside in Nepal, and the potential for harm or return to India from Nepal. After considering the evidence and submissions, the Tribunal concluded that the matter should be remitted for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 The issue in this case is whether the applicant is, as he claims to be, homosexual, whether he will be harmed for this reason or on any other basis on return to India, and whether he has a right to enter and reside in Nepal or will be harmed there or returned to India. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Identity and Nationality The applicant claims to be a national of India. He has provided a copy of his Indian passport to the Department and to the Tribunal. At the hearing he also said that he was a national of India and had lived in India prior to his travel to Australia in 2008. On this basis I find that the applicant is a national of India which is also his receiving country. I have assessed his claims against India.Claims In his protection application he claims:·His status is gay. He fears for his life as it is not safe and everyone opposes his status in every part of India;·No one will support him in India, neither his parents or society. Indian society is not ready to legalise gay marriage;·He said he experienced harm in that country and said that his parents and society have given him warnings that they will kill him on return as they felt embarrassed by him;·He did not seek help because the lower courts would ignore it, the bureaucracy is filled with conservatives and the Supreme Court knows Parliament will throw a tantrum that it cannot ignore;·He did not try to move because India is not ready to accept gay marriage and the laws and court are the same all over India. Homosexuality is against Indian culture, against nature and science. The SC had protected Indian culture and not favour of homosexuality. He has not stand in India;·He fears he will be harmed on return because although a person cannot be prosecuted for being homosexual, sodomy is a criminal offence under s.377 of the Penal Code. His life is in danger as a gay and this is a criminal offence in India. He did not attend an interview with the Department. The applicant provided the delegate’s decision to the Tribunal as well as his Indian passport. On 23 August 2018 the applicant provided to the Tribunal a letter from a GP on his medical condition, an affidavit from his father and a newspaper notification of a public notice from his father that there is no connection with his family. The letter from [Dr A], consultant psychiatrist, undated, indicates that he is the applicant’s treating psychiatrist, that the applicant is diagnosed with generalised anxiety disorder and panic disorder and continues to experience ongoing symptoms and is treated with [Medication 1].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully given to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s.36(3) does not apply because of the operation of s.36(4), (5) or (5A).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.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant is, as he claims to be, homosexual, whether he will be harmed for this reason or on any other basis on return to India, and whether he has a right to enter and reside in Nepal or will be harmed there or returned to India. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Identity and Nationality The applicant claims to be a national of India. He has provided a copy of his Indian passport to the Department and to the Tribunal. At the hearing he also said that he was a national of India and had lived in India prior to his travel to Australia in 2008. On this basis I find that the applicant is a national of India which is also his receiving country. I have assessed his claims against India.Claims In his protection application he claims:·His status is gay. He fears for his life as it is not safe and everyone opposes his status in every part of India;·No one will support him in India, neither his parents or society. Indian society is not ready to legalise gay marriage;·He said he experienced harm in that country and said that his parents and society have given him warnings that they will kill him on return as they felt embarrassed by him;·He did not seek help because the lower courts would ignore it, the bureaucracy is filled with conservatives and the Supreme Court knows Parliament will throw a tantrum that it cannot ignore;·He did not try to move because India is not ready to accept gay marriage and the laws and court are the same all over India. Homosexuality is against Indian culture, against nature and science. The SC had protected Indian culture and not favour of homosexuality. He has not stand in India;·He fears he will be harmed on return because although a person cannot be prosecuted for being homosexual, sodomy is a criminal offence under s.377 of the Penal Code. His life is in danger as a gay and this is a criminal offence in India. He did not attend an interview with the Department.