1615505 (Refugee)

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
LEGISLATION
Migration Act 1958 (Cth), ss 5J, 5L, 36(3), 351, 417, 501J
Migration Regulations 1994 (Cth), Schedule 2
CASE
Appellant S395/2002 v MIMA (2003) 216 CLR 473
Applicant A v MIEA (1997) 190 CLR 225
CSV15 v MIBP [2018] FCA 699
EZC18 v MHA [2019] FCCA 464
MIMAC v SZRHU (2013) 215 FCR 35
MIMIA v VBAO of 2002 (2004) 139 FCR 405
SZMWQ v MIAC (2010) 187 FCR 109
V856/00A v MIMA (2001) 114 FCR 408
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 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 themself 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 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 others
a.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 India
b.physical harm, exploitation, rape, torture and/ or risk of death by the authorities, his family or others who identify him as gay
c.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
He has thought about self-harming. The pressure from his family and the expectation to marry a woman causes him the most stress. Homosexual and single people suffer social exclusion in India
His mother fears his father will commit suicide due to the stress and shame the applicant has caused him, and the applicant fears his father will kill him also.
He changed his profile picture to a rainbow to show his support for gay marriage equality in [Country 1] and a cousin from [Country 2] questioned this and advised him to remove the photo
The terror of his family finding out is what stopped him from applying for protection. He claims he thought if he told the government or psychologists that he would risk being exposed and he was afraid of his sexuality being `official'.
After being caught by immigration at his workplace he told the department that he feared returning to India as he was gay. His friend Ms [A] encouraged him to apply for protection
The Delegate’s decision
As above, the delegate 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 however 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. For the same reasons as listed above the delegate found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to India, there was a real risk the applicant would suffer significant harm.
Hearing
At the hearing the applicant gave evidence entirely consistent with his claims. He was able to detail his experience of realising he was same sex attracted, the confusion this led to for him, how he was teased and singled out for the way he walked and spoke, the difficulties this posed in his conservative family and conservative environment, and about his experiences as a same sex attracted person at school in India. He spoke of the difficulties he faced because he did not walk ‘correctly’, he explained the photos that had been provided and said that they were a ceremony with the local religious leader who performed a service at the applicant’s house yearly to stop the applicant being homosexual. The applicant spoke of his experiences in Australia exploring his sexuality and identity as a gay male. He said he had not disclosed his sexuality to his immediate family but had tried with cousins but had met resistance and a suggestion that he could ‘fix’ his sexuality. He said he had posted in support of same sex marriage in Australia but had been warned not to do so by family members. He spoke of his intimate relationships with males in India and Australia. The applicant explained that he tried to ignore that his student visa ceased and he was scared to go to the authorities. He said that he was living as an openly gay man in Australia. The applicant said that he was afraid if he returned to India, he feared his father, his extended family, the community and society. He said he feared the police if he was openly gay, and would force him to take his own life, his family to honour kill him or be forced to get married. He said he could not relocate in India because gay people were treated badly everywhere in India. He said he could not work as [his occupation here] in India because as soon as they found out he was gay he would lose his job. In all of his evidence, the applicant was convincing and credible, and I accept his evidence in total.
I also took evidence from Ms [A], Mr [B], and Mr [C]. Ms [A] told me that she had known the applicant for many years, and had introduced him to the gay scene in Melbourne. She had seen him becoming more comfortable with his sexuality and having relationships with men. Mr [B] said that he had been through the same situation as the applicant, and that it was very bad and dangerous being gay in India. He said many of his gay friends in India had been forced to be married to women and were not having a happy life. Mr [C] said that he had been the applicant’s boss and he got to know the applicant well. He said the applicant is an amazing person, a valued staff member, and a dear friend, and said that he feared for him if he had to return to India. He said he was worried about his mental health and wellbeing around his friends, family and society. All of the witnesses confirmed that the applicant was living as an openly gay man in Australia. The witnesses were credible and convincing and I accept all of their evidence unreservedly.
I discussed country information about India and the treatment of homosexuals in India with the applicant at the hearing.
s.36(3) and Nepal
I then raised s.36(3) with the applicant and discussed the potential implications with him. I discussed the Nepal-India Treaty of Peace and Friendship and the administrative arrangements put in place by the government of Nepal. I discussed with him country information about the situation for homosexuals in Nepal.
The applicant responded that as an openly gay person he would face discrimination and there was also the language barrier to consider as he did not speak Nepalese. He said that it was accessible so any of his family members could come there and force him to return with them.
I noted that he spoke English, which was a common language in Nepal, and that I was not sure his family would be motivated to come to Nepal to seek him out, nor that they would become aware. He said that he was certain they would, it was not far from where they were. He said the issue would be discrimination. He said in addition he had never lived anywhere else and there was a very conservative religious belief in Nepal and it was still a dominant Hindu country. His representative submitted that his family have kept track of his movements and want to know where he had gone to, and that they could track him from [Social media 2], and this will raise more questions about why he has gone there and will complicate the situation with his family. She noted that an openly gay Indian may not be able to navigate the situation in Nepal in the same way as a local and may have trouble accessing work and housing, and that a lot of the things he would face in India he would face in Nepal.
The applicant confirmed that he had a new Indian passport valid until 2026.
After the hearing the applicant’s representative provided a submission in which she set out that the applicant feared harm in Nepal on the basis of his status as an openly gay man, an Indian, and a member of [Caste 1]. She stated that his family will be able to find him in Nepal and seek to harm him. She outlined his mental fragility, his inability to speak Nepali, lack of financial means to establish himself, that he has no knowledge of Nepal and that Nepal is a poor country at risk of natural disasters, and that the applicant is mentally fragile.
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 immediate family other than a [sibling] live there. I find that the applicant came to Australia in 2006 on a student visa.
The applicant claims to be homosexual and I found his evidence and that of his witnesses on this point entirely credible and compelling. The applicant’s evidence was internally consistent, detailed, and corroborated by the evidence of the witnesses and the other information he was able to provide. I accept that he has been living in Australia for many years now as an openly homosexual man. I accept that he has had homosexual relationships in Australia and that he had a homosexual relationship in India prior to coming to Australia. I accept that the applicant identifies as gay to friends and others in the community 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.[1]
[1] 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.[2]
[2] Country Policy and Information Note – India: Sexual orientation and gender identity and expression, UK Home Office, October 2018; “Unnatural Offences" - Obstacles to Justice in India Based on Sexual Orientation and Gender Identity, International Commission of Jurists (ICJ), February 2017; Freedom House, Freedom in the World 2019: India, F4.
It is axiomatic that homosexuals or homosexual men in India constitute particular social groups.[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, his local community or forced into a marriage.
I also accept that the real chance of persecution relates to all areas of the 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 before me, 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 an open or “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?
I 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 I 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 another.
I discussed with the applicant 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. I explained to the applicant that country information I had had regard to, which 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 at the hearing valid until 2026, appeared to allow him to enter and reside in Nepal, and I noted that these arrangements appeared to indicate that he could enter Nepal at the border, and reside there.[6] The applicant raised concerns that as an openly gay person he would face discrimination and that because he did not know Nepalese there was a language barrier.
[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, I note 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’. The evidence before me therefore does not support the existence of practical barriers for Indian citizens being able to travel to and enter Nepal.[12]
[10]    See ‘Information for Indian Nationals, Nepal Immigration, available at
[11]    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, I have 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,
·Voter ID issued by the Government of India.
·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, I note my finding above that the applicant is an Indian national.
At the hearing I discussed this information with the applicant. He agreed that he had a valid Indian passport valid until 2026. He said that there would be a language barrier with police and he had not lived anywhere else, so he did not know if he could live there. He said that it was a Hindu dominant country.
Taking into account all the discussion above, I find that the applicant has an existing right to enter and reside in Nepal. I note that s.36(3) does not permit a decision maker to consider whether the exercise of a right to enter and reside is ‘reasonable’, rather it requires consideration of whether a person has taken ‘all possible steps’ to avail themselves of a right to enter and reside. I find that while the applicant may face challenges in establishing himself in Nepal, s.36(3) does not incorporate any requirement to consider matters such as a person’s ability to obtain employment or accommodation, or to access welfare benefits upon taking up residence.[16] Nor are Australia’s protection obligations enlivened by virtue of the possibility that a person may suffer privation or be exposed to significant difficulties in maintaining a lifestyle by exercising such a right outside Australia.[17]
[16] SZMWQ v MIAC (2010) 187 FCR 109.
[17] SZMWQ v MIAC (2010) 187 FCR 109 per Rares J at [32]. However, in SZRTC v MIAC [2014] FCAFC 43 at [48].
I have considered whether the applicant has taken all possible steps to avail himself of his right to enter and reside in Nepal. On the evidence before me, I find the applicant has not taken all possible steps to avail himself of his right to enter and reside in Nepal. I find therefore that s.36(3) applies in the applicant’s case.
Does the applicant have a well-founded fear of being persecuted for one of the enunciated reasons or is there a real risk of him suffering significant harm in Nepal?
As discussed with the applicant, if the Tribunal finds that s.36(3) applies, the Tribunal must then consider s.36(4):
36(4)     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.
Having concluded that the applicant has an existing right to enter and reside in Nepal, I have considered the applicant’s claims to have a well-founded fear of persecution in Nepal or whether there are substantial grounds to believe there is a real risk he would suffer significant harm in Nepal, or that he has a well-founded fear of being removed from Nepal to India. The applicant at the hearing and in the post hearing submission provided a range of reasons why he faces serious or significant harm in Nepal.
The applicant’s family members

The applicant claimed that his family will come to Nepal and force him to return or may harm him in Nepal. I noted that I was not sure that they would be motivated to do so or aware of his being in Nepal such that I might consider there to be less than a real chance/risk. In the post hearing submission this claim was reiterated and the applicant provided a statement in which he reiterated the discussion he had had at the hearing about the influence his father had had on him growing up, his financial reliance at times on his family, and his interactions with his [sibling] in [Country 2] and being pressured about what he posts on [Social media 2]. He said he is trying to appease his family, and that they see their lives as being affected by what he does. His father speaks to him at least weekly and interrogates him about his life. In 2014 he tried to slow down communication with his family but it was impossible. He gave evidence that his parents came to Australia and stayed with him and his boyfriend and the applicant had to pretend they were not together. He said his father was very suspicious and would harangue him and telling him of the shame he brought to the family. The applicant said that there was no way he could disappear from his family’s life and live freely anywhere in the world – they will track him down or send someone to get him. There are many family members who would gladly try and find him including through [Social media 2] which is an important part of his family life. His family will track him down out of concern but also to control him and keep pressure on him to conform. He fears they will bribe Nepalese authorities to find out his visa information and why he went there. They will send spies or come to take him back to India or harm him in Nepal.
I have considered the applicant’s claims. I accept that the applicant’s family and relatives may become aware that he is living in Nepal as an openly gay man, but I do not accept that they would be motivated to travel there and either harm him or forcefully bring him back. I accept that the applicant has suffered criticism and as child was beaten by his father. The applicant claims that most recently his father has harangued him when his father and mother travelled to Australia, but that is all. I understand that the applicant claims he had to hide his relationship with his then boyfriend, and his sexuality, but that they suspected him, and his father argued and lectured him. But they did not, on his evidence, harm him nor did they force him to return to India. I understand that the applicant’s brother in law asked him to take down a post on same sex marriage on his [Social media 2] page. But I do not accept that any of this supports that they would take further steps including any treatment that would constitute serious or significant harm if he is in Nepal and living as an openly gay man and they become fully aware (as opposed to suspecting) of his sexuality. I accept that his father and family would be distressed by this and would argue and harangue the applicant, but I find that their most recent behaviour does not support that they would engage in more serious mistreatment, nor in any significant physical ill-treatment or significant physical harassment, nor any more serious psychological ill-treatment or harassment, even were they to become aware. The applicant gave evidence that his father has beaten him, but only when he was a child and I do not accept that his father, nor anyone else in his family, would do so to the applicant, as an adult, now. I accept that there are reports or Indian families who do harm or even kill members of the family who they feel have besmirched the family honour, and I accept that the applicant may genuinely fear that this may occur, but there are two factors which mean I do not accept that there is a real chance or a real risk of his family doing this to the applicant in Nepal because firstly their past behaviour does not indicate to me that they will engage in significant violence against the applicant. Secondly the applicant would not be geographically proximate to his family, which I find would lessen the risk of them being motivated to travel to Nepal and harm him. The applicant fears they will travel there and abduct him and harm him or force him into a marriage. I do not accept there to be a real chance or a real risk of this – again their past behaviour does not indicate to me that they would do so, nor that they would be motivated to travel to Nepal to do so. I find that it is far more likely (such that it reduces any risk of them seriously or significantly harming him to less than a real chance or real risk) that his family will choose to disown or simply cease contact with the applicant on becoming fully aware of his sexuality, including social media contact, and ignore his existence in Nepal. I do not accept that the applicant has established that they will be motivated and capable of harming him as he has claimed.
On the basis of all the evidence before me, I do not consider the applicant has made out a case that there is a real chance or real risk that his father, family or relatives will subject him to serious or significant harm in Nepal or force him to return from Nepal to India. I find that the applicant does not have a well-founded fear of persecution from his father, family or relatives were he to enter and reside in Nepal and that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant entering and residing in Nepal that there would be a real risk he would suffer significant harm for this reason.
Harm from the community in Nepal
The Tribunal discussed the situation for LGBTI persons in Nepal. The applicant claimed at the hearing that being an openly gay person there he would face discrimination and that there was a language barrier as he does not know Nepalese. He said as a gay Indian he would face discrimination and there would be a language barrier with police. He said he had never lived anywhere else. He said that Nepal is still a strongly Hindu country.
In the post hearing statement he said that he was not convinced that a poor country that is traditional and religious will be welcoming of him, a gay Indian. He noted they had changed their laws but had many years of mistreating gay people, and had rejected same sex marriage and he wished to get married and have a family. He would not know where to look for a job in [his industry] or find a place to rent and does not have any savings and does not speak Nepali. He said he is also an Indian from a lower caste, [Caste 1] and this will work against him. His life has been here in Australia. He thinks his only choice will be to kill himself if he is deported. In the submission accompanying his statement the applicant’s representative set out that the applicant feared harm in Nepal on the basis of his status as an openly gay man, an Indian, and a member of [Caste 1]. She outlined his mental fragility, his inability to speak Nepali, lack of financial means to establish himself, that he has no knowledge of Nepal and that Nepal is a poor country at risk of natural disasters, and that the applicant is mentally fragile. The applicant’s representative submitted various reports dealing with the situation of homosexuals in Nepal.
This includes information from sources such as the Unite Nations Development Program country report, Amnesty International, the International Commission of Jurists and several NGOs, academic articles and newspaper reports, indicating that harassment, discrimination and abuse of LGBTI community continued by both government and citizens, and that the legal reforms have not led to fundamental change.[18] These reports state that political advances have not necessarily translated into the daily lives of LGBT individuals who may experience discrimination and violence in all aspects of their lives,[19] that discrimination persists on the basis of gender, caste, class, ethnic origin, sexual orientation, gender identity and religion, nor that legal changes provided protections for such marginalised communities,[20] and that discrimination against LGBTI people remains rampant in the labour market, schools and hospitals.[21] NGOs including the Blue Diamond Society submit that rights of people are being violated, there are arrests under the Public Offences Act 1970 (POA), and discrimination is committed by State officials and members of society,[22] and other reports highlight that Constitutional changes have not affected the lived experiences of LGBTI people who continue to be marginalised and discriminated against.[23]
[18] See summary of country information provided by representative, Tf.191 – 185.
[19] Being LGBT in Asia: Nepal Country Report, UNDP/USAID 2014.
[20] Nepal 2017-2018, Amnesty International
[21] International Commission of Jurists, Nepal: Implement Supreme Court Ruling on Protecting the Rights of LGBTI persons. 21 December, 2017.
[22] Blue Diamond Society and Heartland Alliance submission to Human Rights Committee, The Violations of the rights of lesbian, gay, bisexual, transgender and Intersex persons in Nepal. Geneva, June, 2013.
[23] HRW, Climate of Fear Imperils LGBT people, 1 April, 2013; Williams Institute, Survey Illuminates impact of discrimination on LGBT people in Nepal, 30 October, 2014; Gender and Sexuality in Nepal: The Experiences of Sexual and Gender Minorities in an Rapidly Changing Social Climate, S. Greene SIT Graduate Institute/Study Abroad, Spring 2015.
I discussed the DFAT country report on Nepal with the applicant, and noted to him that the report supports the view that the situation in Nepal for LGBTI people has changed rapidly over recent years and that the report concludes that there is a low risk of official discrimination and harassment and the risk is declining overall. The DFAT report states:
3.76 The new constitution has granted sexual and gender minorities a number of rights and allows the state to pass laws to protect, empower and advance their interests. Nepal is one of the few countries in the world to have such constitutional provisions. Practically speaking, local LGBTI NGOs report that LGBTI people face discrimination in accessing government services, including accessing citizenship documents and in accessing police protection from violence and harassment.
3.77 The Government has yet to implement Supreme Court orders from 2007 and 2008 abolishing all laws that discriminate against LGBTI people. Citizens can now obtain third-gender identity documents. Pride parades and transgender beauty contests have taken place in Kathmandu and LGBTI NGOs operate openly. In April 2014 the Ministry of Women, Children and Social Welfare assigned a focal person for sexual and gender minorities and funding for LGBTI advocacy groups has decreased in recent years.
3.78 According to a 2007 court ruling, genders other than ‘male’ or ‘female’ should be able to listed on identity documents, including citizenship certificates and passports. A further court ruling in 2017 re-emphasised the government’s responsibility to issue such documents. These reforms have been introduced gradually. According to Freedom House, the first time a third-gender passport was issued was in 2015.
3.79 DFAT assesses that LGBTI people face a low risk of official discrimination and harassment and a moderate risk of societal discrimination. LGBTI people face a low risk of violence. While the risk of discrimination, harassment and violence is declining overall, the risk is lower in general in urban areas. General community attitudes towards same sex relationships remain negative. LGBTI people from lower castes or from lower socio-economic backgrounds face a higher risk of harassment, discrimination and violence.^[24]
[24] DFAT ‘Country Information Report: Nepal, 1 March 2019, 3.76 – 3.79.
I have had regard to the DFAT report, as I am required. I note the discussion and conclusion. I note that this is one of the most contemporaneous source materials before me. I have carefully considered the objections raised to this report and its conclusions by the applicant’s representative but I do not find those concerns compelling. The DFAT report explains the purpose and scope of the report, indicating that it is prepared with DFAT’s on-the-ground knowledge as well as access to open sources which are listed and also sources which may not be cited to protect the source, and that the report is distinct from Australian government policy with respect to Nepal. I find that the report has been produced by professionals within DFAT who have weighed and drawn on sources to make appropriate and professional judgments. I consider the report an authoritative, useful country overview which as noted is the most contemporaneous detailed source I have before me. I find no substance to the concerns raised by the representative in relation to the report or the manner in which assessments are made. I explained to the applicant that the DFAT report appeared to me to be consistent with other more recent information, and I referred to the Human Rights Watch Report of 2017, which notes that homosexuals now enjoy social and political rights putting the country leagues ahead of much of the world.[25] I note that Nepal has been described as ‘one of the most progressive countries in terms of gay rights in the region’.[26] I raised with the applicant information about the situation for LGBTI people in Nepal which indicates that, since 2007, no laws criminalise homosexuality in Nepal.[27] The most recent US Department of State Country report on human rights practices in Nepal, published in March 2019, relevantly states:
Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity
No laws criminalize same-sex sexual activity, and lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons actively advocated for their rights. The constitution contains provisions outlining protections for LGBTI persons, but LGBTI activists continued to press for further legislation to increase protections for gender and sexual minorities.
In August the cabinet registered an amendment to the 2006 Citizenship Act that officially recognizes nonbinary gender identity for citizenship documents. This step is intended to reduce discrimination experienced by transgender persons. The current civil code, however, defines marriage only between opposite-sex persons, which LGBTI activists have interpreted as a sign of bias against LGBTI persons.
According to local LGBTI advocacy groups, the government did not provide equal opportunities for LGBTI persons in education, health care, or employment (see section 7.d.). Additionally, advocacy groups stated that some LGBTI persons faced difficulties in registering for citizenship, particularly in rural areas.
Although several LGBTI candidates ran for office in local elections in 2017, LGBTI activists noted that election authorities prevented one person who self-identified as third gender from registering as a candidate for vice mayor because electoral quotas required the individual’s party to register a “female” candidate for the position. Separately, LGBTI activists stated that some transgender persons refrained from voting out of fear of harassment or social scorn because transgender persons were forced to stand in lines reflecting the gender on their citizenship documents, regardless of whether they had changed gender in practice.
According to LGBTI rights NGOs, harassment and abuse of LGBTI persons by private citizens and government officials declined during the year, especially in urban areas, although such incidents still occurred. Several NGOs praised the government, specifically the Ministry of Women, Children, and Senior Citizens, for taking the initiative in organizing LGBTI-related trainings and sensitivity programs to reduce violence and discrimination targeting LGBTI persons.
LGBTI rights groups reported that gender and sexual minorities faced harassment from police during the year. The Nepal Police HRS confirmed that some low-level harassment occurred because many citizens held negative views of LGBTI persons. The HRS added that the Nepal Police were not immune to such social prejudices. According to LGBTI advocacy group Blue Diamond Society, in February police officers assaulted two transgender women without cause. After registering the case with police and the NHRC, the victims received a formal apology and the police paid medical expenses.[28]
[25] HRW, How did Nepal become a Global LGBT Rights Beacon?, 11 August, 2017.
[26]    ‘Nepal leads on gay rights with international parade’, ABC News, 30 August 2010.
[27]    ‘Nepal leads on gay rights with international parade’, ABC News, 30 August 2010, available at
[28] United States Department of State, 2018 Country Reports on Human Rights Practices: Nepal, 13 March 2019, >
I have had regard to the history of reform in the area of LGBTI rights in Nepal. In doing so I note that Nepal is an impoverished country and the reform of LGBTI rights needs to be seen in this context. In 2007 and 2008, a series of rulings by the Nepalese Supreme Court gave rise to rights and protection to lesbian, gay, bisexual, transgender and intersex (LGBTI) persons in Nepal. These rulings directed the government to amend all sexually discriminatory laws.[29] I note country reports indicating that in recent years the High Court has declared that gays and lesbians have equal rights and that discrimination would ‘not be tolerated.’[30] More recent reports indicate that same sex sexual acts are legal in Nepal, and that in January 2015 a committee established by order of the Supreme Court in Nepal to review the legal rights of LGBT recommended same-sex marriages be legislated.[31] On 16 September 2015 the Constitution was amended to enable citizens to choose their preferred gender identity on citizenship documents, making gender and sexual minority discrimination unlawful, and allowing these citizens to participate in state mechanisms and public services to promote inclusion.[32] The submissions claims that the exclusion of same-sex marriage in 2018 reforms to the Civil Code Act, and the fact that many of the recommendations of the Supreme Court in 2007 have not been implemented indicates that progress in law reform has been inconsistent.
[29]    ‘Country Reports on Human Rights Practices for 2010 – Nepal’, US Department of State, 8 April 2011, Section 6; ‘Annual Report 2009 – Nepal’, Amnesty International, 28 May 2009; ‘Countries at the Crossroads 2010 – Nepal’, Freedom House, 7 April 2010, p.11.
[30]    ‘Society Lags Behind Progressive Laws on Homosexuality’, Pulitzer Center on Crisis Reporting, 3 January 2010.
[31] Carroll, A., Itaborahy, L., International Lesbian, Gay, Bisexual Trans and Intersex Association (ILGA) State-Sponsored Homophobia – a world survey of laws: criminalisation, protection and recognition of same-sex love, May 2015 (10^th Ed) -
[32] Gay law net, Laws – Nepal,
I have considered the claim made in the post hearing submissions that the POA has been used to harass and intimidate LGBTI people and that LGBTI people are being arbitrarily arrested. I note that the claims from sources that the POA was used to harass and intimidate,[33] and the arrests,[34] focus on the period in 2013 – 2014 when Chudamani Sharma was the chief district officer (CDO) of Kathmandu and had ordered police not to assist LGBTI persons, closed down Blue Diamond the LGBTI NGO, and that dozens of people had been arrested under the POA around April 2013 and men who identified as feminine, or transgendered women, were at particular risk.[35] However, I note that Sharma is no longer the chief district officer of Kathmandu, that the courts responded strongly and appropriately to his actions,[36] and that the use of the POA in this manner appears to have been isolated to that distinct period and does not reflect the current situation in Nepal. Furthermore, from the Human Rights Watch 2017 article and the 2019 DFAT report, it appears that the situation for LGBTI people in Nepal had improved and that the government, police and the authorities more generally are committed to this improvement, which has been recognised by NGOs as noted in the Human Rights Watch article.[37] Indeed, the founder of BDS and Member of the Constituent Assembly, Sunil Pant stated that Nepalese society is relatively tolerant of gays and lesbians compared to neighbouring countries such as India and Bangladesh, and that social acceptance is growing.[38] Pant is quoted as stating that “Nepal is going through tremendous transformation - politically, socially, economically, legally - so a lot of communities who had no space or voice before have emerged.”^[39]
[33] Kaleidescope Human Rights Foundation. Shadow Report to the UN Human Rights Committee regarding Nepal’s protection of the rights of LGBTI persons. Feb. 2014.
[34] Blue Diamond Society and Heartland Alliance submission to Human Rights Committee, The Violations of the rights of lesbian, gay, bisexual, transgender and Intersex persons in Nepal. Geneva, June, 2013.
[35] Leach, A., ‘LGBTI human rights work in crisis in Nepal’ Gay Star News, 4 April 2013; Leach, A., ‘Biggest LGBTI rights group in Nepal has licence renewed’ Gay Star News, 12 June 2013; Blue Diamond Society and Heartland Alliance submission to Human Rights Committee, The Violations of the rights of lesbian, gay, bisexual, transgender and Intersex persons in Nepal. Geneva, June, 2013
[37] HRW, How did Nepal become a Global LGBT Rights Beacon?, 11 August, 2017; DFAT ‘Country Information Report: Nepal, 1 March 2019, 3.76 – 3.79.
[38] ‘Nepal leads on gay rights with international parade’, ABC News, 30 August 2010.
[39] ‘Nepal, thanks to Maoist rebels, is emerging as Asia’s pioneer regarding rights for LGBT people’, The Huffington Post, 4 December 2011, available at 11/11/09/nepal-asia-pioneer-lgbt-rights_n_1084188.html

I have carefully weighed the information before me. I accept that LGBTI people in Nepal face discrimination. I accept that they would face some challenges in their daily lives. I accept that in the past there have been instances of police harassment of homosexual men and women, but on the information before me, this was largely confined to the period in which Sharma was CDO who is no longer in that position, and that the USDOS report states that ‘According to LGBTI rights NGOs, harassment and abuse of LGBTI persons by private citizens and government officials declined during the year’, and also that an assault by the police of two transgender women resulted in a formal apology and payment of the women’s’ medical bills by the police.[40] Consequently, I find that the risk of police or the authorities committing violence or harassment to the level of serious harm or significant harm against LGBTI persons is declining.
[40] United States Department of State, 2018 Country Reports on Human Rights Practices: Nepal, 13 March 2019,
I accept that Nepal remains a poor, conservative country and that there is still some level of discrimination of LGBTI persons in Nepal and there is not a full acceptance of homosexuals in Nepalese society. I accept that there may be negative social attitudes towards LGBTI people in Nepal. I accept that there may be incidences of non-violent harassment as well as discrimination. I have carefully considered the country information. Some of the information provided in the submission is now some years old and I do not accept accurately reflects the situation in Nepal now. The more recent information, including the DFAT report and the USDOS report, as well as the HRW 2017 article, when viewed in the context of the history of reforms of LGBTI rights in Nepal indicates that there is a reasonable degree of tolerance of LGBTI persons in Nepal, particularly in urban areas, a growing acceptance of LGBTI persons in Nepal, that LGBTI persons enjoy social and political rights, that homosexual people are not routinely subject to harm by either the police, other authorities or the general population, and that the authorities are attempting to create a legal space and equality for LGBTI people.
I accept that the applicant will live openly as a homosexual in Nepal and not conceal or supress his homosexuality in any way. I find that he would choose to live in Kathmandu or another urban area, in order to secure employment and accommodation, and where the chances of harm and discrimination according to the DAT report are lower. I accept that the applicant’s homosexuality may come to the attention of members of the community in Nepal. I accept that the applicant may face harassment, discrimination and negative attitudes from the community. On the country information before me I do not accept that there is any real chance or real risk of the applicant being seriously or significantly harmed by the police or other authorities, under the POA or otherwise. On the country information I do not accept that he would suffer violence or other forms of serious harm from members of the Nepalese community. In making these findings I have had regard to the most recent country information and in particular to the indications that the situation is improving (although I accept is not perfect), with violence and harassment against LGBTI persons declining over the more recent periods.
I have considered whether any harassment and discrimination he might suffer, which I have accepted there to be a real chance or real risk he will on the country information, including harassment and societal discrimination even if cumulatively experienced, such as verbal remarks or disapproval by society, would amount to serious or significant harm. I do not accept that it does. I find on the country information that such harassment and discrimination would constitute only declarations of intent rather than the jeopardising of his well-being or livelihood in a material way, or the likelihood of harm, even if suffered over a long period of time. [41] Taking account of all of the information before me I find that the harassment, discrimination and negative attitudes he is at a real chance or risk of facing does not come within the meaning of serious or significant harm as defined.
[41] MIMIA v VBAO of 2002 (2004) 139 FCR 405.
I have considered whether the applicant would face serious or significant harm for reasons of his Indian nationality, or whether his Indian nationality places him at particular additional risk of serious or significant harm. As noted to the applicant at hearing, the country information does not indicate that there is a real chance of all Indians in Nepal suffering serious harm or that there are substantial grounds to believe there is a real risk to all Indians in Nepal suffering significant harm in Nepal. I have had regard to the country information provided in the post hearing submission but these articles are focused on the relations between the governments of the countries and this is the level at which they describe there being ‘anti-Indian sentiment’, and the articles only speculate on any antipathy towards individual Indians and I give this what appears to be blog post and newspaper article very little weight.[42] I note other sources speak of Nepal as a country of great diversity, culturally and religiously,[43] largely living in harmony.[44] I do not accept on the information before me that there is any real chance or real risk the applicant would suffer serious or significant harm in Nepal for reasons of his Indian nationality or any related reason in Nepal, and considering the information before me I am not satisfied that the applicant’s Indian nationality increases his chance of serious or significant harm to the level of a real chance or real risk.
[42] Tf 186 – 185. Dr. Narad Bharadwaj, ‘Why Anti-Indian Sentiment Grows in Nepal?’, The Rising Nepal, undated, National Herald, ‘Anti-India sentiment in Nepal rising as PM Sher Bahadur Deuba begins bilateral visit’, 23 Aug 2017
[43] DFAT ‘Country Information Report: Nepal, 1 March 2019, United States Department of State, 2018 Country Reports on Human Rights Practices: Nepal, 13 March 2019,
[44] ‘Nepal, thanks to Maoist rebels, is emerging as Asia’s pioneer regarding rights for LGBT people’, The Huffington Post, 4 December 2011, available at 11/11/09/nepal-asia-pioneer-lgbt-rights_n_1084188.html
I have considered the claim that the applicant, as a member of [Caste 1], part of the Dalit caste, will face serious discrimination and serious or significant harm. I am not aware that the applicant claimed to be a member of [Caste 1], nor that he would face any harm on this basis, until the post hearing submissions, but even if I accept that he is a member of this caste, I do not accept that he will suffer serious or significant harm for this reason. I accept that caste is an important aspect of identity in Nepal. However, I note and place reliance on DFATs assessment that whilst traditionally discriminatory attitudes to Dalits and lower castes exist, this is a particular issue in Nepal’s rural areas, and experienced less in urban areas, and that there are legal protection criminalising discrimination on the basis of caste.[45] Whilst there is some risk of exploitation, violence and social exclusion, I do not accept that this reaches the level of a real chance or a real risk in the applicant’s circumstances, because I have found the applicant will live in Kathmandu or another urban area, where discrimination or harm on the basis of caste is lower,[46] and that ‘large urban centres such as Biratnagar and Pokhara, today reflect the significant ethnic, religious and caste diversity of Nepal and as such provide accessible opportunities for relocation within Nepal.’[47] I do not accept on the information before me that there is any real chance or real risk the applicant would suffer serious or significant harm in Nepal for reasons of his [Caste 1] caste or any related reason in Nepal, and considering the information before me I do not accept that the applicant’s [Caste 1] caste increases his chance of serious or significant harm to the level of a real chance or real risk.
[45] DFAT ‘Country Information Report: Nepal, 1 March 2019, 3.49 - 3.55; United States Department of State, 2018 Country Reports on Human Rights Practices: Nepal, 13 March 2019, National/Racial/Ethnic Minorities section
[46] United States Department of State, 2018 Country Reports on Human Rights Practices: Nepal, 13 March 2019, DFAT ‘Country Information Report: Nepal, 1 March 2019, 5.19.
I have considered the applicant’s claim that his inability to speak Nepalese will expose him to serious or significant harm in Nepal and I understand that this may present difficulties for him. However, as I noted to him at the hearing he is a proficient English speaker and also speaks Punjabi and Hindi. As I noted to him, especially in urban areas, there is a great deal of tourism in Nepal and demand for English speakers to service the tourism industry. I find that these language skills will provide him with a basis to communicate with many people in Nepal, and that the difficulties presented will not rise to the level of serious or significant harm for the applicant.
The applicant claimed he would suffer a level of discrimination that would lead to him being denied work, housing, health care or government services. On the information before me, I have accepted that the applicant may face low level societal discrimination including in education, health care, or employment as a homosexual Indian of [Caste 1] in Nepal. However, noting the Constitutional rights discussed above making discrimination against sexual minorities unlawful and that the evidence points strongly to the existence of a growing and significant level of acceptance of LGBTI people, I do not accept the applicant will be denied employment, health care, education or other services in Nepal such that he is at a real chance or real risk of facing serious or significant harm.
I have carefully considered the information and evidence before it, and does not accept that there is a real chance the applicant will suffer serious harm, or that there are substantial grounds to believe there is a real risk he will suffer significant harm, for reasons of his sexual orientation as a homosexual man or in any other manner connected with his sexuality.
I have also considered the applicant’s claims and submissions that his psychological state will deteriorate if he is forced to enter and reside in Nepal and he may feel he has no choice but to take his own life. I accept that the applicant is integrated into the Australian community and that he feels safe and settled here. I accept that his mental health may suffer if he is removed there. On the evidence before me however, I do not accept the applicant’s psychological health is such as to indicate the low level of discrimination as a homosexual and any difficulties he may experience establishing himself in Nepal are such as to amount to serious or significant harm. I do not accept the applicant has a real chance of serious harm or a real risk of significant harm if he were to enter and reside in Nepal on this basis. Self-harm or mental health arising from being returned (or removed) cannot constitute persecution because it does not have the necessary character of harm or conduct inflicted or carried out against the person (by a persecutor). Under the defined terms of significant harm, these are framed in terms of harm suffered because of the acts of other persons and do not encompass harm arising from mental illness or harm that a non-citizen would suffer as a result of any other illnesses arising on return to a receiving country,[48] nor do they encompass self-harm.[49] I do not accept therefore that there is a real chance or a real risk that the applicant will suffer serious or significant harm, as defined, on the basis of his mental health declining if removed to Nepal, nor if he chooses to self-harm if he is removed to Nepal.
[48] CSV15 v MIBP [2018] FCA 699 at [34].
[49] CSV15 v MIBP [2018] FCA 699 at [34]; EZC18 v MHA [2019] FCCA 464 at [73].
I have considered whether the applicant’s individual claims, cumulatively, would together create a real chance or real risk of him being subjected to serious or significant harm in Nepal in the reasonably foreseeable future. I have considered whether the combination of him being an Indian national; being an open homosexual; his [Caste 1] caste, his inability to speak Nepalese; and his mental health lack of family support would, cumulatively, cause him to be at risk of suffering serious or significant harm in Nepal now or in the foreseeable future. Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before me, and given my findings and reasons in relation to each of these matters, I do not accept that there is a real chance the applicant faces serious harm amounting to persecution for these reasons, nor that there are substantial grounds for believing that there is a real risk he will suffer significant harm were he to enter and reside in Nepal.
On the basis of the above findings, and having considered the applicant’s claims individually and cumulatively, I do not accept that there is a real chance the applicant would suffer persecution if he enters and resides in Nepal now or in the foreseeable future. Accordingly, I find that the applicant does not have a well-founded fear of persecution in Nepal. Further, on the basis of the above findings, and having considered the applicant’s claims individually and cumulatively, I find that there are not substantial grounds for me believing that, as a necessary and foreseeable consequence of him availing himself of the right in s.36(3), there is a real risk of the applicant will suffer significant harm in Nepal.
Will Nepal return (refoule) the applicant to India?
As discussed with the applicant, if I find that s.36(3) applies, in addition to s.36(4), I must also consider s.36(5) and (5A), which provide that:
36(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.
36(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.
I find that under the terms of the Treaty, the government of Nepal agreed to grant Indian nationals reciprocal privileges to Nepali citizens in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature. On the evidence before me, and having regard to the applicant’s circumstances and claims, both individually and cumulatively, I do not accept there is a real chance the Nepalese authorities or government would return him to India or any other country and, accordingly the I find that his fear of being returned to India or any other country by Nepal is not a well-founded fear, and that s.36(5) and (5A) are not enlivened.
I find that the applicant has a right to enter and reside in Nepal and has not taken all possible steps to avail himself of that right. Furthermore, I find that the applicant does not have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion in Nepal and that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing himself of the right in s.36(3), there would be a real risk of the applicant suffering significant harm in Nepal. I further find that the applicant does not have a well-founded fear of being returned from that country to a country where he has a well-founded fear of being persecuted. Nor does the applicant have a well-founded fear of being returned by Nepal to a country where there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing himself of the right in s.36(3), there would be a real risk of the applicant suffering significant harm. Accordingly, Australia does not have protection obligations in respect of the applicant: s.36 of the Act.
Ministerial intervention
The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
I have had regard to the circumstances. The applicant gave evidence at the hearing that he was integrated into the Australian community, that he had a circle of friends and colleagues that cared for him. Many of them came to the hearing. his employer, in particular, gave detailed and moving evidence that the applicant was an integral to his small business and he needed him to help him run and manage the business. He said losing the applicant would be devastating and the business could not function. The applicant and his representative have also given evidence that the applicant would suffer significant psychological hardship if he is removed to Nepal. It may also be significant that, as above, I have accepted the applicant cannot return to India. He has been in Australia for many years.
I have considered the ministerial guidelines. Whilst the applicant and his representative have not provided as much material as I had hoped, I consider that there may be scope to refer this case because of the applicant’s psychological state which may result in continuing hardship to the applicant if removed, and because there is evidence which I accept that his removal may lead to damage to a small business. Further, the applicant has remained in Australia for many years and has integrated well into the community.
The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417 and s501J)’ and will refer the matter to the Department.
Conclusions
For 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).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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 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 6440

6 September 2019

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Immigration

Administrative Law

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Jurisdiction

Statutory Construction

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Procedural Fairness