1615505 (Refugee) [2019] AATA 6440 (6 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1615505
COUNTRY OF REFERENCE: India
MEMBER:Sean Baker
DATE:6 September 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 06 September 2019 at 12:12pm
CATCHWORDS
REFUGEE – protection visa – India – particular social group – homosexual – abuse and threats by parents, bullying by family and schoolmates – openly gay identity and lifestyle in Australia – integration into work and social life – not reasonable to relocate due to real chance of persecution in all areas of India – right to enter and reside in Nepal according to Nepal-India treaty – fear of persecution or risk of harm in Nepal, as gay man, Indian or low-caste – mental health – referred to department for ministerial intervention – decision under review affirmed
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 man from [City 1], Punjab, India. He claims that he is homosexual and for this reason will face persecution or significant harm on return to India. He claims he cannot relocate to Nepal because he will face persecution and/or significant harm there.
The delegate refused the application, finding that whilst they accepted that the applicant is gay and is unlikely to reveal his sexuality to his family as he has a genuine subjective fear his father will kill him, the delegate found that the discrimination that the applicant is likely to encounter in his home region does not amount to persecution, and further that internal relocation within India is a viable option to the applicant.
The applicant provided a copy of the delegate’s decision to the Tribunal.
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…
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.
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AGLC
1615505 (Refugee) [2019] AATA 6440
Case
[2019] AATA 6440
Decision Date
CaseChat Overview and Summary
The Administrative Appeals Tribunal considered the case of an Indian national seeking a protection visa. The applicant claimed to have experienced significant abuse and bullying in India due to his sexual orientation, including physical and verbal abuse from his parents, taunting from family and schoolmates, and a coerced sexual encounter. He stated that being openly gay is illegal in India and that he fears persecution, physical harm, exploitation, and social exclusion upon return. The applicant also claimed that relocation within India would not be a viable option due to widespread homophobic attitudes and that he would be unable to embrace his identity as a gay man, leading to mental harm.
The primary legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution for reasons of membership of a particular social group (homosexuals) in India, and whether he could reasonably relocate within India or obtain effective protection there. The Tribunal was also required to consider whether the applicant had a right to enter and reside in Nepal and if he would face harm there as an Indian national, a gay man, or a person of low caste.
The Tribunal found that the applicant was a national of India and had provided sufficient evidence to support this. It assessed his claims against India, noting his experiences of abuse and bullying. However, the Tribunal ultimately affirmed the decision not to grant a protection visa. While acknowledging the applicant's fears, the Tribunal's reasoning, as indicated by the outcome, suggests that the threshold for a well-founded fear of persecution, or the availability of effective protection or reasonable relocation options, was not met in this instance. The Tribunal also considered the applicant's potential right to enter Nepal but did not elaborate on the outcome of that consideration in the provided text.
The Tribunal affirmed the decision not to grant the applicant a protection visa.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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 2006. 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 and evidence The applicant is a national of India and arrived in Australia in 2006 at the age of [age] to pursue studying and break away from his family and othersa.In India he was under a lot of pressure from his parents who would physically and verbally abuse him. This was recurring from childhood for ‘talking and walking like a girl’ and to encourage him to be more masculine. The applicant was source of shame and stress for his family and he stopped talking with his father at this time b.Others such as his cousins and school mates also engaged in taunting behaviour The applicant fears a.persecution by the authorities in Indiab.physical harm, exploitation, rape, torture and/ or risk of death by the authorities, his family or others who identify him as gayc.social exclusion, abuse and discrimination (for example in the work force)d.he will not be able to embrace his identity as a gay man and consequently suffer mental harm Previously in India the applicant experienced bullying at school, university and by family members. He details that his father would beat him regularly and at the age of 19 in a university dormitory his bullies coerced him into engaging in sex as leverage to stop the bullying. This is also where he had his first hidden relationship with a man and he notes he has had continual contact with him until recently The applicant did not seek protection within India because there are no gay support groups, being gay is illegal and there are police operations that seek out gay men because of this and individuals will harm you if they come to know you are gay. The applicant would not want to make public his sexual orientation. The applicant does not believe that relocation within India is a viable option to him because what he fears is wide-spread across India and entrenched in a culture of homophobic attitudes. He also believes his family will continue to pressure him to get married. The applicant first identified as gay after his arrival in Australia in 2006, where he felt at ease embracing his sexual identity In 2009 the applicant met and became good friends with [Ms A]. Through her he was introduced to other gay men and the [Social media 1] app. He now uses [Social media 1], [Dating site 1], [Dating site 2] and [Computer-mediated communication] to communicate with gay men, have hook ups and go to gay venues. He has also attended the Pride March in St Kilda a few times. He also has gay Indian friends in Melbourne and they frequent gay venues hoping to meet potential boyfriends. He has no interest in marriage or chasing women. Between 2012 and 2015 he had a three year relationship with [a named person], but the relationship broke down. He attributes the relationship break down to the stress of not having a visa and his family asking his to return to India to get married
Decision
Reasons for decision
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Sean BakerMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…
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 decision under review should be affirmed.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 2006. 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 and evidence The applicant is a national of India and arrived in Australia in 2006 at the age of [age] to pursue studying and break away from his family and othersa.In India he was under a lot of pressure from his parents who would physically and verbally abuse him. This was recurring from childhood for ‘talking and walking like a girl’ and to encourage him to be more masculine. The applicant was source of shame and stress for his family and he stopped talking with his father at this time b.Others such as his cousins and school mates also engaged in taunting behaviour The applicant fears a.persecution by the authorities in Indiab.physical harm, exploitation, rape, torture and/ or risk of death by the authorities, his family or others who identify him as gayc.social exclusion, abuse and discrimination (for example in the work force)d.he will not be able to embrace his identity as a gay man and consequently suffer mental harm Previously in India the applicant experienced bullying at school, university and by family members. He details that his father would beat him regularly and at the age of 19 in a university dormitory his bullies coerced him into engaging in sex as leverage to stop the bullying. This is also where he had his first hidden relationship with a man and he notes he has had continual contact with him until recently