1613777 (Refugee)

The Administrative Appeals Tribunal considered the case of an applicant from Peru seeking a protection visa. The applicant claimed to fear harm upon return to Peru due to his homosexuality, alleging past experiences of sexual assault and discrimination based on sexual orientation. The Department had previously refused the visa, finding insufficient evidence that the applicant was homosexual.

The Tribunal was required to determine whether there was a real chance the applicant would suffer serious harm if returned to Peru, either due to his race, religion, nationality, membership of a particular social group, or political opinion, or alternatively, whether there were substantial grounds to believe that as a necessary and foreseeable consequence of removal, he faced a real risk of significant harm. This involved assessing the applicant's claims against available country information regarding the treatment of homosexual individuals in Peru and considering the validity and relevance of certain documents subject to a public interest non-disclosure certificate.

The Tribunal noted that while same-sex relationships are legal in Peru, reports indicate conservative social attitudes, widespread discrimination, and violence against LGBTI individuals. It found that the country information suggested limited state protection for LGBTI people, with instances of harassment and abuse by authorities, and a lack of effective legal recourse. The Tribunal also addressed the public interest non-disclosure certificate, deeming it invalid as the material related to internal working documents and the applicant's identification, which was not in dispute. Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the Migration Act 1958, indicating that the applicant meets the criteria for a protection visa.