1609192 (Refugee)

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 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, which are extracted in the attachment to this decision.
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 (2B), which are extracted in the attachment to this decision.
Subsection 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. They provide as follows:
Protection obligations
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that
(a) the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A) Also, subsection (3) does not apply in relation to a country if:
(a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.
This means that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s.36(4), (5) or (5A) are satisfied, in which case the s.36(3) preclusion will not apply.
The Full Federal Court in MIMAC vSZRHU (2013) 215 FCR 35, has held that the term ‘right’ in s.36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.
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.
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].
The affidavit from the applicant’s father states that the deponent is the father of the applicant, that the applicant is residing in a foreign country and believes in gay relationship and the family does not like this, that the deponent has disowned the applicant from his property and is not responsible for the actions of the applicant. It is verified [in] 2017.
A copy of [a newspaper], dated [in] 2017, includes a public notice from the applicant’s father in essentially the same terms as the above affidavit.
At the hearing the applicant provided further documents, including photographs of him with a variety of people and several message threads as well as copies of documents already provided.
I noted to the applicant that I had read the letter from his treating psychiatrist and accepted that the applicant suffered from generalised anxiety disorder and panic disorder. He said that he was taking [Medication 1] and another drug for his anxiety and he also took nurofen forte regularly. He said that because of the medication, he had lost a significant amount of weight. I noted to the applicant that I would adjourn the hearing for him to take his medication and that he could have breaks whenever he chose. I also explained to him that if there was anything else that could be done to make the hearing a better experience for him, I could try and arrange this. I assess that the applicant was able to give his evidence at the hearing and was able to participate meaningfully in the process. I have also taken account of his diagnosis when assessing his claims below.
I discussed his claims with him at the hearing. The applicant was able to provide further detail about his claims. He explained that he had come to Australia in April 2008 on a student visa. He had returned to India for two months in January 2012. He explained that he had developed panic attacks after returning from visiting India in 2012 and his doctor started giving him medication. He said he had been taking it for years and was not doing well, he mentioned the weight loss and the fact that he often could not sleep. He said he was scared about what would happen to him if he returned to India. The applicant confirmed that his parents and [sibling] lived in [City 1] in Punjab. He said that he was afraid that his immediate family, his father’s brothers or the Sikh community in [City 1] would kill or seriously harm him. He said he could not be himself and would have to get married and pretend not to be gay. He said that he may kill himself if he had to go back.
The applicant’s homosexuality
At hearing the applicant discussed his sexuality. He explained that he had realised he was gay in 2010 when he had spent the night with a Chinese guy who he had met on [a website] where you can find hot guys. He explained further that he had had some experiences in India with guys. He said he had felt bad when he went with guys because the Sikh religion says that homosexuality is not ok. The applicant said that in 2011 he had cut his hair which was taboo for Sikhs but he had done this because the boys did not like his turban and he did not like the way his long hair looked.
The applicant said that when he returned to India in early 2012 he had been caught by a family member kissing a guy. His family had yelled at him and his mum slapped him. She is a very strict Sikh. He then stayed at a cousin’s for a week because he was scared what his family might do, and he had then returned to Australia.
The applicant said that he had had a boyfriend for four years in Australia. He lived in Australia with a cousin who was not unhappy with the applicant’s sexuality, his boyfriend living there or the applicant having parties there.
The applicant took me through the message threads and the photos of him with a variety of men – these photos were all taken in Australia, some at his home, some in clubs or other locations.
The affidavit and newspaper ad
The applicant initially said he had not spoken to his immediate family since 2012 when he had returned to Australia. He said he spoke to friends in India. He said he didn’t speak to his family because his mum would yell at him because she is a strict Sikh and he felt scared. He then said he had spoken to his mum 1 ½ years ago, and his aunty 6 months ago but she had died recently.
I asked the applicant about the affidavit and newspaper advert said to be from his father, disowning the applicant. The applicant said that his father got upset and said ‘I don’t like him (the applicant) anymore, I don’t want to give him anything and if he comes here I will harm him’ and then he did the newspaper and the affidavit. I asked why his father would do this in 2017 not in 2012 at the time or after the applicant had been in India. The applicant said maybe his family thought he would change. I asked where he had got the affidavit and newspaper article from and the applicant said a friend of his who worked in a café, the applicant’s father had told this friend to send this to the applicant by email. I expressed some doubt about why the applicant’s father would send these documents to the applicant, given that they said the father was disowning the applicant and it seemed would therefore want no more to do with the applicant. The applicant said they sent it to tell him they had done these things. The applicant was unable to explain further why or how he had obtained these documents.
I then discussed with the applicant country information which notes that the manufacture and use of fraudulent documents is prevalent in India, including for immigration purposes, with such documents including newspaper articles as well as other documents.[1] I explained that when I considered the doubts I had about his claims of how he got the documents, and why they were given to his friend to send to the applicant, that he had not explained why this had been done by his father at this point in time, in 2017, rather than 2012, with this country information, it might lead me to doubt the genuineness of these documents and have concerns that they were fraudulent. The applicant said that these were genuine documents.
[1] DFAT Country Information Report India, 17 October 2018, 5.28.
Assessment of claims
On the basis of the applicant’s evidence and his Indian passport, I accept that he is an Indian citizen from [City 1], Punjab in India. I accept that his parents and [sibling] live in [City 1]. I find that the applicant came to Australia in April 2008 on a student visa, and that he studied [Discipline 1] and then sought a skilled visa, which was refused and this refusal was affirmed by the Tribunal. The applicant sought Ministerial Intervention which was not considered. The applicant then lodged the application for the protection visa.
The applicant claims to be homosexual and, despite some concerns with his evidence, I accept this – his claims are largely consistent, his evidence about his relationships with men in Australia (but not in India) was spontaneous and detailed, and supported by the photographs he provided. His discussion of his realisation of his sexuality, whilst brief, appeared consistent with someone whose upbringing had told him this was wrong and who was then coming to the realisation of this identity. I accept that the applicant has been reasonably open about his sexuality in Australia – including attending gay bars and venues, having casual gay sex, and public displays of affection and his sexuality towards partners and other males. I accept that the applicant identifies as gay to friends, family and others in Australia.
I discussed the following country information about the situation for homosexuals and other LGBTI individuals in India with the applicant:
LGBTI
3.54 People who are lesbian, gay, bisexual, transgender or intersex (LGBTI) are often subject to physical and emotional abuse by their families and wider society. In 2018, the New York Times interviewed gay and transgender people across India about their experiences. They reported sexual assault, shunning by parents, social isolation, employment discrimination and vulnerability to police abuse.
3.55 Until a September 2018 Supreme Court judgement, Section 377 of the Penal Code criminalised homosexuality. LGBTI people claimed that, while the law was not regularly enforced, it was used as a way to extract bribes or as a means of extortion. Homosexuality is now legal in India but LGBTI groups say this has not changed societal views on LGBTI people.
3.56 Hijra live within their own communities and may not connect to the rest of the LGBTI community. Many hijra are transgender or intersex, but not all transgender or intersex people are hijra. Hijra tend to be associated with dancing and entertainment, but also sex work. They may face discrimination when seeking access to goods and services, including education, employment and health care but are generally revered by Indian society. A bill to prevent discrimination against transgender and intersex people is currently being considered by the Indian parliament.
3.57 In July 2016, the government abstained on a UN resolution that created a UN expert post to address discrimination against LGBTI persons and voted in favour of amendments to weaken the mandate, saying the Supreme Court was still to decide on the issue of LGBTI rights.
3.58 Local sources say some parents accept their child being gay, as long as they still get married to opposite sex partners. Class also plays an important role: wealthier LGBTI people can live openly in cities and are accepted. For the ordinary person, particularly in rural areas but also in urban areas in many cases, it is difficult to live openly and many face discrimination in accessing housing and employment.
3.59 LGBTI women face problems related both to their sex and their sexuality and gender identity (see Women). Lesbians report feeling unsafe and sometimes being forced to marry men.
3.60 DFAT assesses that people who openly identify as lesbian, gay, bisexual, transgender or intersex face a moderate risk of official and societal discrimination and may face societal violence. The removal of section 377 of the Penal Code, while a victory for gay men in particular, does not necessarily prevent or reduce widely-held anti-gay and anti-LGBTI sentiment.[2]
[2] DFAT Country Information Report India, 17 October 2018.

This is entirely consistent with other Government and non-government reports on the situation for LGBTI in India.
It is axiomatic that homosexuals in India constitute a particular social group.[3] I find that the characteristic of the group is their shared homosexual sexual identity (whilst noting that this does not require active sexual activity or experiences), which I accept the applicant shares, and that characteristic is innate or immutable. The applicant satisfies s.5L.
[3] Appellant S395/2002 v MIMA / Appellant S396/2002 v MIMA (2003) 216 CLR 473; Applicant A v MIEA (1997) 190 CLR 225 at 265.
I accept that the applicant fears being persecuted for reasons of his membership of the particular social group homosexuals or homosexual men in India. On the basis of the country information above and his evidence, I accept that there is a real chance, that is, one that is not remote, that if the applicant were to return to [City 1], he would be seriously harmed, in the form of significant physical ill treatment or harassment, for the essential and significant reasons of his membership of this group. This harm would be targeted at him as an Indian homosexual and systematic and discriminatory. Specifically I consider it likely and not remote that he would be physically harmed by his family or forced into a marriage.
I also accept that the real chance of persecution relates to all areas of a receiving country – the applicant has lived openly in Australia, and as discussed below cannot modify such behaviour. If he was forced to relocate, even to an urban centre such as New Delhi or Mumbai, he would do so without family support or standing. The country information above establishes that were he to live elsewhere in India as an openly gay, ‘ordinary person’ he would face a moderate risk of official and societal discrimination and may face societal violence, and may have difficulties accessing employment and housing. I consider that the country information, which accords with other country information, is that openly gay persons throughout India face some risk, without the support of family or class, of violence or discrimination, which I find rises to the level of serious harm and is more than remote.
Effective protection is not, on the country information, accessible by homosexuals in India.[4]
[4] See in particular DFAT Country Information Report India, 17 October 2018 at 5.3 – 5.5 in relation to police forces in India, State-Sponsored Homophobia: A World Survey Of Sexual Orientation Laws: Criminalisation, Protection And Recognition’, International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), May 2017, UK Home Office, Country Policy and Information Note India: Sexual orientation and gender identity and expression, Version 3.0, October 2018, 4.4 Police conduct
The applicant cannot be expected to take reasonable steps to modify his behaviour so as to avoid a real chance of persecution because I find to do so would conceal an innate or immutable characteristic of the applicant and/or conflict with a characteristic that is fundamental to the applicant’s identity, being his sexuality or sexual identity. I also consider, as above, that the applicant has lived in Australia as a reasonably “out” gay male, and cannot be required to be more discreet in expressing his sexuality or sexual identity on return – such action would reveal persecution in the form of suppression of the very protected characteristic the legislation is designed to protect.[5]
[5] Appellant S395/2002 v MIMA / Appellant S396/2002 v MIMA (2003) 216 CLR 473
I find that the conduct of the applicant in Australia is otherwise than for the purpose of strengthening his claims to be a refugee, but to express his sexual identity and sexuality.
The applicant therefore meets s.5J, and I find has a well-founded fear of persecution if he returns to India.
However, this is not the end of the inquiry. As I discussed with the applicant, the legislative scheme sets out that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless certain conditions apply: s. 36(3)
Does the applicant have a right to enter and reside in Nepal?
The Tribunal explained to the applicant that it had to consider whether or not he has a presently existing right to enter and reside in a third country, within the meaning of s.36(3), and that if he did, then he may be excluded from Australia’s protection obligations, unless the Tribunal was satisfied that he has a well-founded fear of persecution in that country or that there are substantial grounds to believe there is a real risk he would suffer significant harm in that country, or that he has a well-founded fear of being removed from that country to India.
The Tribunal discussed s.36(3) and the issues relating to the Indo-Nepal Treaty of Peace and Friendship of 1950 as well as the administrative arrangements for entry of Indian citizens to Nepal which appeared to give the applicant, because of his Indian nationality, the right to enter and reside in Nepal. The Tribunal explained to the applicant that country information the Tribunal had had regard to, and which had been set out in the delegate’s decision provided to the Tribunal by the applicant, appeared to indicate that Articles 6 and 7 of the Treaty, and the administrative arrangements for entry by Indian citizens, as set out on the Nepal Immigration website, a Nepali government site, which listed identity documents which would allow Indian citizens to enter Nepal including, relevantly, a passport, which he presented to the Tribunal at the hearing valid until 2021, appeared to allow him to enter and reside in Nepal, and the Tribunal noted that these arrangements appeared to indicate that he could enter Nepal at the border, and reside there.^[6] The applicant raised concerns that he would be harmed in Nepal, either by Nepalese or by the Sikh community there.
[6] Accessed at the Government of India Ministry of External Affairs website;
Section 36(3) provides that:
Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
Section 36(3) requires a right to enter and reside in another country; that right may be temporary or permanent, and there is no restriction on the manner in which the right arises or is expressed. The section does not refer to, or presuppose, a legally enforceable right under domestic law. The issue was considered by the Full Federal Court in MIAC v SZRHU, where the Court held that it is sufficient to have a ‘liberty, permission or privilege lawfully given’ which has not been withdrawn.[7] The relevant ‘liberty, permission or privilege’ must be a permission which obtains its effective substance from its grant “and thereafter from the lack of any withdrawal of it and from the lack of any existing prohibition or law contrary to its exercise.”[8] The right referred to in s.36(3) must be an existing right, and not a past or lapsed right, or a potential right or an expectancy.
[7] MIMAC v SZRHU [2013] FCAFC 91 (Tracey, Buchanan, Flick, Robertson and Griffiths JJ, 14 August 2013).
[8] V856/00A v MIMA (2001) 114 FCR 408 per Allsop J (at [31]), cited in MIMAC v SZRHU [2013] FCAFC 91 (Tracey, Buchanan, Flick, Robertson and Griffiths JJ, 14 August 2013) per Buchanan J at [45]. Justice Buchanan (at [89]), all other members of the Court agreeing, endorsed this construction by Allsop J.
In SZRHU the Court considered the bilateral agreement between India and Nepal known as the Indo-Nepal Treaty of Peace and Friendship of 1950, and directed that the Tribunal should pay regard to the actual terms of the Treaty, and evaluate whether, in combination with the terms of the Treaty, the administrative arrangements for entry by Nepalese citizens at the Indian border (or any other arrangements with respect to entry identified by it) satisfy the test of a ‘liberty, permission or privilege lawfully given’, to enter and reside in the country. In this context, the Tribunal notes that Article 7 of that Treaty provides that Indian nationals such as the applicant can enter and reside in Nepal:
The Governments of India and Nepal agree to grant, on a reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature (own emphasis).[9]
[9] Accessed at the Government of India Ministry of External Affairs website; >
Available information indicates that the administrative arrangements relating to the entry of Indian nationals into Nepal allow them to enter Nepal without seeking a visa or other permission and that these arrangements pertain under the provision of the treaty.[10] According to a 2013 article by Professor of Economics and Executive Director of the Centre for Economic and Technical Studies in Nepal Hari Bansh Jha, ‘there is no need of passport or visa formalities among the border inhabitants or other nationals of Nepal and India. The nationals of one country can enter into the other country through the border not merely through the checkpoints but through any point’.[11] This article states that while there are 22 official checkpoints along the Nepal-India border, citizens of Nepal and India ‘can cross over the border without any restriction from any point’. Nationals of other countries ‘require both an entry and exit visa and they must cross over the border through six immigration points’. The article also comments on the ability of Nepalese and Indian citizens to escape from one country to the other, stating that when ‘there is any political upheaval in one country, people easily escape by crossing over the border’. There is no evidence before the Tribunal that indicated the existence of practical barriers for Indian citizens being able to travel to and enter Nepal.[12]
[10]    See ‘Information for Indian Citizens’, Nepal Immigration, available at    Jah, H 2013, ‘Nepal’s Border Relations with India and China’, Eurasia Border Review, Spring, p. 63, available at
[12]    Searches conducted on CISNET, open source search engines, human rights organisations, non‑government organisations, international news outlets and academic journals.
In this context, the Tribunal has taken into account relevant immigration laws in Nepal with regard to the entry rights of non-citizens, including the Immigration Act 1992, the Immigration Regulations 1994 and including the Immigration Procedures 2008, as those laws are published on the website of the Department of Immigration, Nepal, as the ‘Immigration Manual’.[13] Relevantly, the Immigration Procedures 2008 prescribe in Paragraph 8.4 the following requirements for the entry into Nepal of Indian citizens:
[13]    See Nepal Government, Immigration Manual, available at
To allow Indian citizens to make travel on the basis of the following document:
Passport, or
Driving license with photograph, or
Identity card with photograph issued by a governmental body, or
Ration card with photograph, or
Voter identity card with photograph, or
Registration certificate issued by the Indian embassy to the Indian citizen staying in Nepal, or
Ad hoc/temporary identity card issued by the Indian embassy to the Indian citizen in the event of exigency, or
Document with photograph and setting out identity, issued by the sub-divisional magistrate or authority there above.
This information is replicated on Nepal’s Department of Immigration website.[14]
[14]    See ‘Information for Indian Citizens’, Nepal Immigration, available at >
The website of the Embassy of Nepal in New Delhi provides information about the various visa types issued by the Embassy for entry to Nepal of non-Nepalese nationals, and, provides the following information for ‘Indian nationals’ entering Nepal by air at Tribhuvan International Airport, Kathmandu:[15]
[15]    See Embassy of Nepal, New Delhi, ‘Visa Information’ available at
Visa for Indian Nationals:
Effective from 1st October 2000 an Indian citizen over the age of 10 years travelling between India and Nepal by air would have to keep in his possession any of the following documents to establish his/her identity as an Indian citizen:
Valid Indian passport; or
Photo identity card issued by the Government of India, or any State Government or Union Territory Administration in India, or the Election Commission of India; or
Emergency certificate issued by the Embassy of India in Nepal.
The above information indicates that an Indian national is required to present at least one of the mentioned documents to ‘establish’ his nationality before he will be admitted into Nepal. This information indicates that, on producing one of those documents to an immigration border official in Nepal, an Indian citizen will be admitted into Nepal. Indeed, it is the fact of having Indian nationality that creates the right of entry and the passport or other form of identity document is merely evidence of the right of entry. The passport or other ID document does not create the right, and the ‘right’ to enter Nepal exists at all times a person is a national of India, and an Indian national merely needs to present one of the prescribed documents at the border to be admitted into Nepal. In this regard, the Tribunal notes its finding above that the applicant is an Indian national.
At the hearing I discussed this information with the applicant. He noted he did not have a valid Indian passport, his passport having expired in 2017. He said that he had attempted to renew his passport twice but the Indian Embassy had refused to renew his passport because he was seeking asylum. He said that the Embassy had required him to provide evidence of his visa status in Australia and he had had to provide his bridging visa E grant notice along with the notification he had lodged a valid protection visa application with the Australian government.
I note that the forms to be filled in when someone applies for a replacement passport at the Indian Embassy in Australia require an applicant to provide:
Current Visa Status
VEVO/Visa Grant Notice/Visa sticker is an acceptable proof for a valid visa status. For all bridging visas, a ‘Visa Grant Notice’ must also be provided (along with VEVO) clearly specifying the category of visa applied for.[16]
[16]
In this case I note that the applicant holds a bridging visa. I further note that where there is more than a month between the expiry of someone’s passport and their application for a new passport, they must fill in form ’I’[17] which requires a person to declare that they ‘have neither taken asylum nor applied for asylum/refugee status’[18]
[17]
[18]
These documents and the information they contain support the applicant’s claim that he has been refused a passport by the Embassy on the basis that he has sought protection in Australia. I accept this evidence of the applicant. I find that the Embassy has refused to issue a passport to the applicant and, given the above requirements, will not issue him with a passport in the future.
If this is the case, it appears to me that the applicant suffers from a significant practical impediment to exercising his right to enter and reside in Nepal.
Whilst it appears clear that the ‘right’ arises from his undisputed Indian nationality, the applicant suffers from an inability to establish that right at present. The administrative arrangements of Nepal make clear that an applicant must provide some form of evidence of that right in order to be admitted via the airport (I accept that the situation would be very different were the applicant to be travelling overland from India). As I understand the arrangements, the applicant would not be allowed to travel to Nepal because he does not hold a valid Indian passport, a photo identity card issued by the Government of India, nor an Emergency certificate issued by the Embassy of Indian in Nepal and therefore would not be granted entry as an Indian national. I consider that there is no basis to conclude that he would be granted one of these documents in the future.
It appears to me therefore that in the particular circumstances of this applicant, the right to enter and reside in Nepal can be characterised as a potential right or expectancy which he cannot, it appears to me, access. It is, in his case, a right without substance for it requires the active participation of his State in order for him to enjoy the right, but his State has refused to provide him with the evidence he requires to make use of the right.
In the applicant’s circumstances, it appears to me, it appears that he does not have a right to enter and reside in Nepal as I understand that following the judgment in SZRHU. I find that the applicant does not engage s.36(3) and therefore that Australia does have protection obligations in regard to the applicant.
Conclusions
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Sean Baker
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 4209

14 August 2019

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction