1617394 (Refugee)

1617394 (Refugee) [2020] AATA 5435 (12 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1617394
COUNTRY OF REFERENCE:                   India
MEMBER:Denise Connolly
DATE:12 November 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Statement made on 12 November 2020 at 8:21am
CATCHWORDS
REFUGEE – Protection Visa – India – homosexual woman –sexual orientation – Hindu Brahmin family– mental health issues - applicant may be forced into a heterosexual marriage– victim of an honour killing –relocation not possible –third country protection not available – decision under review remitted

LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994, Schedule 2
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 28 September 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of India, applied for the visa on 15 May 2015. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 19 October 2020 to give evidence and present arguments. The Tribunal also heard evidence from her psychologist, Ms [A] and her friend, Mr [B]. Her representative was also present at the hearing.
CLAIMS AND EVIDENCE
Background to the review
When making her protection visa application the applicant made the following claims. She was born on [date] in [Gujarat], India. She does not have the right to reside in any other country. She speaks, reads and writes in Gujrati, Hindi and English. She was in a de facto relationship with her female partner which started in Australia in September 2010. Her parents and brother reside in India. She had contact with her relatives outside Australia by phone once or twice a fortnight.
The applicant arrived in Australia [in] May 2009, using her passport issued by the Indian authorities [in] 2008, as the holder of a [Student] visa. Prior to coming to Australia, she lived in Gujarat where she had been a student. She completed higher secondary school in India. She completed Diplomas in Australia in the period July 2009 to January 2014. She then enrolled at university [in] March 2014 but did not complete that course. At the time of the visa application she worked in [Workplace 1], Sydney.
The applicant returned to India in October 2013 for 3 months.
The applicant claims that she belongs to a conservative Brahmin family from Gujarat. She is attracted to females. When she was in India, she could not reveal her sexual orientation except to her cousin [who] she had kissed. She was discreet in her sexual orientation. She became friends in Australia with an Indian woman, [Ms C], and developed an interest in her. She fears because of her sexual orientation she will be tortured and killed or forced to marry in India. She fears she will be targeted by her family, [Ms C]’s family or Hindu extremist organisations. Same sex relationships are prohibited under law and she will face serious harm and not be protected by the authorities.[1] [Ms C]’s father was a [government official] and has connections with the authorities. Hatred against same sex relationships is widespread in India. If she relocates, her family, or [Ms C]’s, will find them.
[1] Since making the visa application the law in India has changed and same sex relationships and sexual activity between consenting adults are no longer unlawful. India court legalises gay sex in landmark ruling, BBC News, 6 September 2018,
The applicant provided several photographs of her and [Ms C] in social and domestic settings, and of herself at Mardi Gras in 2015 and 2016.
The applicant provided a statutory declaration sworn by [Mr D] on 26 April 2016, a student studying with the applicant in Australia. He is a gay person on a protection visa in Australia. The applicant introduced him to [Ms C]. He built up a good relationship with the applicant and [Ms C] and believed, because of their body language, that their relationship was more than friendship. They were tender, loving, caring and had a genuine concern for each other. After he completed his course in May 2010 he did not have as much contact with the applicant but he met her again when working at [Workplace 1]. He asked her about [Ms C] but she did not seem to want to talk about her. He noticed in 2015 that the applicant was looking tense and depressed and not paying attention to her work. He indicated to her that he had concluded that she and [Ms C] were lesbians. He suggested she go to meet [a migration agent]. A few days later the applicant told him that she and [Ms C] had gone to see [the agent] and they had applied for protection. He has seen them as a couple many times and they do not hide their relationship. He believes they were in a genuine lesbian relationship until recently with when, due to [Ms C]’s family pressure, they ceased being a couple.
The applicant also provided a statutory declaration from [Ms E] in which she states that in October 2014 she met the applicant and her then girlfriend, [Ms C] who were on a dance floor, dancing like a couple. Ms [E] also worked in [Workplace 1]. The next day the applicant met Ms [E] at the [workplace] and asked her to be discreet about having seen her and [Ms C] the previous evening. She and the applicant ultimately became good friends and she would also meet [Ms C]. They disclosed to her their circumstances and that the applicant had applied for protection. The applicant told her their families were forcing them to return to India. She believes that the applicant and [Ms C] had a lesbian relationship but due to family pressure they stopped having a physical relationship.
The applicant also provided a statutory declaration from [Ms F] who met the applicant while sitting next to her in a [venue] in November 2015. They then had coffee together. In January 2016 she asked the applicant whether she had a boyfriend. The applicant told her she was in a relationship with a female. They then had sex, about three or four times. The applicant appeared unhappy. She told Ms [F] about her life. She recognised that she was not over her relationship with [Ms C]. She understands that the applicant has applied for protection on the basis of her sexuality, coming from a Hindu Brahmin family who will not allow her to have a relationship with a female.
The applicant provided a statutory declaration from [Ms C] attested on 26 April 2016. She states that she and the applicant were in an intimate lesbian relationship and both applied for protection on the basis of their relationship. [Ms C] had a very bad married life, having been forced by her family to marry. In 2015 her husband who was in India applied for a student dependent visa but she did not send him any supporting documentation. In October 2015 the Department refused his visa. The family became angry with her for not providing the documentation. She did not provide it because she did not want him to come to Australia as she was happy living as a lesbian. In November 2015 her older sister visited her in Australia. She stayed at the husband’s cousin’s place because the applicant and [Ms C] did not want her to know about their relationship. The next day her sister arrived saying that she wanted to see where she was living. [Ms C] then decided to stay at her husband’s cousin’s place until her sister departed. This made it hard for the applicant and [Ms C] to meet. Her sister then found out about her relationship with the applicant and that she had applied for protection. Prior to her marriage she told her sister about her sexuality and that she did not want to marry. After her husband left Australia in 2013 she told her sister about her circumstances. Her sister told her that she had informed [Ms C]’s husband about the protection visa application. Her husband and sister threatened her and said she needed to think about her life or they would tell her parents. In December 2015 her sister returned to India. [Ms C] decided she could not return to the applicant because she was scared about the future. She decided to do what her husband and sister wanted. They had asked her to withdraw her protection visa application or they would tell her parents. She decided to withdraw the application and her husband applied for a student dependent visa again. The applicant broke down when [Ms C] told her what she had decided to do.
[Ms C] states that in January 2016 the applicant told her about her relationship with [Ms F]. At the time her husband had doubts about whether her relationship with the applicant was over and he forced her to return to India. She went back to India in February 2016 to be with her husband and returned to Australia [in] March 2016. She is still living with the husband’s cousin who was preventing her meeting with the applicant. She was being pressured from her family to be with the husband. While no longer in a physical relationship she and the applicant continued to have an emotional connection.
The applicant provided a report from psychologist Ms [G] dated 13 August 2015 recording that she saw the applicant and [Ms C] together in her practice [in] August 2015. They reported that they believed they were in danger if they return to India and could be forced to submit to arranged marriages or killed for family honour. She recorded that they met in July 2009 and became lovers in late 2010 or early 2011.
Ms [G] reported that the applicant stated she has always felt that she was different from other girls as she was not interested in boys or attracted to them. The applicant has a cousin who declared her lesbianism to her. They planned to come to Australia together but the cousin could not afford it. Her visa was due to expire at the end of August 2015 and this was a cause of considerable distress. She had been unable to attend class since August 2014 due to her emotional distress and mental health issues. She applied for protection in May 2014 (sic – she applied in May 2015) and aimed to complete her studies once the visa was granted. She reported that if she returns to India she will be forced into an arranged marriage. If she were to disclose her sexual preference to her family she will be victim of an honour killing. She observed that the applicant’s mood was low and she was suffering stress and anxiety relating to her circumstances. She stated that the applicant had limited social connection in Australia and relied heavily on [Ms C]. She does not enjoy socialising and prefers to be alone. Ms [G] concluded that the applicant was suffering significant stress due to her circumstances and was in genuine fear should she return to India.
On 14 April 2016 the representative provided a 110 page written submission with country information, including over 200 hyperlinks and references. The Tribunal notes that some of that information is no longer relevant as it relates to the criminalisation of homosexuality in India. It also notes that some of the information relates to Muslim gay men. Some relates to a number of cities in India to which the applicant does not appear to have a connection or a recognised LGBTI community. As discussed with the representative at the hearing, it is unclear to the Tribunal why some of this information was provided as he has not made clear submissions about its relevance.
The applicant was interviewed by the delegate on 29 April 2016. The Tribunal has listened to the recording of that interview.
The delegate accepted that the applicant is a homosexual woman and that she had been in a committed relationship with another Indian woman but was prevented from continuing that relationship because of pressure from the partner’s family. She accepted that the applicant genuinely fears that her family will pressure her into marrying a man. However she found the applicant has qualifications and would be able to function in an area with an established LGBTI community and found that she would be able to relocate to such an area in India. Accordingly she formed the view the applicant’s fear of harm is not well founded. She was not satisfied that, once she relocates, there is a real chance of the applicant being persecuted in India, or a real risk she will suffer significant harm.
Information to the Tribunal
On 12 October 2020 the applicant’s representative provided a written submission listing hyperlinks to multiple country information reports, various articles, and Tribunal decisions. The representative submitted that members of the LGBTI community face targeted attacks, significant discrimination and degrading, inhuman and cruel treatment. It is submitted that, despite recent decriminalisation, the community continues to face discrimination and violence including in major cities.
The representative submitted that in India violence experienced by lesbian women exceeds that experienced by women in heterosexual relationships, including within the family. Lesbians are forced into marriage and punished by family members for exercising their sexual choice, they are subjected to home confinement, family expulsion, denial of economic and material resources, forced psychiatric treatment, forced termination of education, verbal humiliation and torment, physical assault, honour killing, forced reparative therapy to correct sexual orientation, and murder and rape. Lesbian women are also targeted by religious groups who incite community violence against them. Negative betrayals by the media and popular culture spread anxiety and intense social and cultural disapproval in some parts of India fuels underreporting of violence against lesbians. It is also submitted that lesbians are vulnerable to eviction by landlords and police violence. It is submitted that if the applicant, who is openly lesbian, returns to India she will face serious harm. During the current pandemic crisis she will face practical difficulties in moving to other areas of India and so internal relocation is not a reasonable option. The representative also submitted that, despite the decriminalisation of homosexuality, there have been no constructive changes in relation to the circumstances of lesbians in India. The LGBTI community continues to face harassment, bullying and humiliation.
The representative provided to the Tribunal evidence that the applicant has attended 20 sessions with Ms [A], Psychologist, [over] the period [September] 2016 to [September] 2020. Typically the applicant has been consulting Ms [A] on a monthly basis.
Hearing on 19 October 2020
The Tribunal asked the applicant about her family background. She indicated that her father, age [age], works [for] [the] government, [doing specific tasks]. He holds a [degree] and speaks English fluently. Her mother, aged [age], is a housewife and has never worked. Her brother, aged [age], has finished high school but because of COVID 19 he has been unable to commence at university.
The Tribunal asked the applicant about the family’s religious practice. She indicated that her family regularly attend temple, follow festivals and perform prayers. She used to practice in India but she no longer practices in Australia, although she attends temple about once a year for Diwali and prays at home.
The applicant said she maintains regular contact with her parents. She talks to her mother about two or three times a week, and regularly but less frequently to her father. She has little to do with her brother as he was quite young when she came to Australia. Her parents are very worried about her because she is not married. She is from an upper middle class family. Typically the expectation is that she would have married at age 25 to 26, when she had finished her education. Her parents did look for matches for her and have had about three or four men in mind but she has managed to persuade them to put off marriage. The Tribunal asked how she did this. She indicated she told them she would prefer to finish her Bachelor degree before she married. However she indicated that her parents are anxious about her unmarried status and continue to raise the issue and pressure her.
The applicant indicated she last saw her parents in 2013. She indicated this has been her choice because once she arrived in Australia she knew she would not go back to India. The Tribunal asked how she has explained to her parents her decision to remain in Australia. She indicated that they think she is in a relationship with an Australian man.
The Tribunal asked the applicant about her studies. She commenced a [degree] in India but left to come to Australia when she was halfway through that course. She told her parents that she wanted to do her Bachelor and Master degrees in Australia and they were willing to fund her because of the status gained by studying abroad. She arrived in Australia [in] May 2009 and completed [courses]. She did these courses on the advice of a migration agent who indicated that she would have a better chance of securing residence in Australia with those qualifications. He advised her not to do a [specified higher education couse], which was her preference, because it would give her no guarantee of residency here. Her parents knew she was studying [a specified field] and accepted that it was a vehicle for residence in Australia. Her parents paid for her first course and half of her second course but she paid the rest herself. The Tribunal questioned why her parents stopped funding her education. She indicated that she did not want to be indebted to her parents and so she told them she would pay for her own education. She also completed a [course] in 2011 which she paid for herself. She was under significant financial stress and was borrowing money from friends to complete the course. She did have to ask her parents for some money in 2010 or 2011, which they sent.
The Tribunal asked the applicant whether her parents expected her to complete a Bachelor degree while in Australia. She indicated that they did expect her to get a degree and they think she has a Bachelor degree. They think that she is in the process of applying for permanent residence on the basis of [specified]skills. She acknowledged that she has been misleading her parents because she is scared to tell them the truth.
The Tribunal asked the applicant if she has told her parents about her sexual orientation. She stated that she has not told them because she can’t just yet. She is not settled here and she will not tell them if she does not get a protection visa. The Tribunal asked why she has not told her parents that she is a lesbian. She indicated that if she tells them she cannot go back to India. She is not telling them in case her visa application is not successful and she is forced to return to India. She is not ashamed of being a lesbian; if she gets protection visa she intends to tell them straight away.
The applicant confirmed that her parents have not visited her in Australia, claiming that they did not want to disrupt her brother’s study. The Tribunal explained that this suggests that they appear to be comfortable with her living independently and this might cast doubt on her claim that they would force her to marry. She indicated they always make enquiries about whether she is seeing someone. She has never asked them to visit her here in Australia but they have asked her to return to India to marry. So far she has been able to avoid succumbing to their pressure.

The Tribunal ask the applicant about her relationship with [Ms C]. She indicated that they were first sexually intimate in 2010 when she was living [in] [Suburb 1]. [Ms C] had been living in [City 1]. She enrolled in a [course] along with the applicant. She would stay with the applicant for three days for the purposes of attending the course.
The Tribunal asked about the end of the relationship. She said it ended in 2015. However they reconciled for a short period in 2016. It was on and off and ended definitely in 2017 and she has not seen her since. Her husband told [Ms C] that if she let him come to Australia, he would tolerate their relationship. However he then reneged on that arrangement and put pressure on [Ms C] to end the relationship because he wanted her to have a baby. [Ms C] found the family pressure too much to handle and she ended their relationship.
The applicant indicated that she first thought she might be a lesbian when she was in [school]. However she did not have the words to describe it and she found her feelings for girls confusing. She went to a girls’ school so she was always surrounded by girls. She discussed her feelings with a close friend [and] her friend said “that’s a lesbian”. Her friend was accepting of this and the applicant was not ashamed. She then talked to her cousin about her sexual orientation and her cousin suggested they come to Australia and live together. The Tribunal asked if she sought any support from LGBT groups when she was at university in India. She indicated that she did find the LGBT group at the university in Gujarat, but she was not ready to disclose her sexuality and she feared exposure, so she did not approach the group. She was also focused on her studies.
The Tribunal asked the applicant why she could not live in New Delhi or Mumbai where the country information indicates there are thriving LGBT communities. The applicant indicated that she has no family or friends in New Delhi or Mumbai and she would not have any support. Also her parents would put pressure on her to return home. The Tribunal noted that they had not put such pressure on her to return home since she had been in Australia.
The Tribunal asked the applicant about any other relationships she has had since her relationship with [Ms C]. She indicated that she has not had any other sexual relationships since she last saw [Ms C] in 2017. She saw a woman named [Ms F] , also known as [Ms F], who she met in 2015. She was looking for comfort at the time because her relationship with [Ms C] had ended. [Ms F] was fun to be with, but it was only a sexual relationship. She thinks it lasted a few months until about April 2016. She thought they met in about November and started having sex in about January. She would meet [Ms F] at her place [while] her parents were out. She did not meet with her many times.
The Tribunal ask the applicant why [Ms C]’s husband did not tell her family about her relationship. She indicated that he was from a different city. He threatened to tell the family but it was the only weapon he had. He used to say “I’ll tell your family” to control [Ms C].
The Tribunal asked the applicant how she expresses her sexuality here in Australia. She indicated that she wants to go out and meet other girls but she does not socialise with anyone. She described a solitary lifestyle, with her only social contact being at work.
The Tribunal noted the applicant had provided photographs of her at Mardi Gras. She indicated that she marched with Trikone in 2016.[2] Her gay friend, [introduced] her to Trikone. She last had contact with him in 2018. She attended Mardi Gras in 2016 with [Ms F] but at the time she was not mentally stable. The Tribunal asked the applicant about the connection, friendship and support she currently receives. She indicated that she does not have a support network. She has been locking herself away since 2017, practically and emotionally. She has some social contact at work, at [Workplace 1] but they are not really her friends. They also express negative views about the LGBT community. Many of her fellow employees at [Workplace 1] are Indian and homophobic. The Tribunal asked why she has continued to work there if that was the case. She indicated that there was nothing else she can do as her only work experience is [this kind of] work. She does not feel that she needs a social life. When she was with [Ms C] she did not need anyone else. While she has had some social contact with others they are not really part of her life.
[2] Trikone Australia is a non-profit, volunteer-led social-support organisation for lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ+) people of South Asian descent living in Australia,
The Tribunal asked the applicant if she has ever socialised with [Ms C] or other friends in any gay or lesbian social venues. She indicated that she has not done this since about 2011 when she had a few friends from college. However since she broke up with [Ms C] she has not been in the right state of mind.
The Tribunal asked the applicant how her life would be different if she lived as a lesbian woman in India, given that she does not appear to be openly lesbian in Australia. She indicated that she does not have to hide her sexuality in Australia and that she can admit it at work. The Tribunal noted that she has stated that she has not told the colleagues at work that she is a lesbian. The applicant indicated that she does not feel safe to do this until she knows she has a protection visa. She is scared as there may be people here who have some connection to her community in India as there are colleagues at work from Gujarat. She fears they will tell her parents.
The Tribunal noted that the applicant has claimed her parents will force her into a heterosexual marriage. However it explained it may not accept they will force her to marry, given they have taken no forceful steps in the 11 years since she has been in Australia. It explained it may form the view her parents are more progressive and have allowed her to live as she chooses in Australia. The applicant indicated they think she might be living with a man here in Australia. She acknowledged they would not come to Australia and drag her back to India. But she still feared that they might force her to marry if she returns to India.
The Tribunal asked the applicant about her mental health status. She indicated she has been seeing Ms [A] every 4 to 6 weeks for several years. She cannot afford to pay the full fee and Ms [A] has agreed to see her for $10 per session. She took [medication] for about two years but her depressive illness returned when she stopped taking it. She last took it in 2019 and would prefer not to take it again. Her doctor referred her to the psychologist who she finds to be helpful, particularly when she gets calls from her family questioning why she is not agreeing to marry. She has Facetimed with a few men based in India, referred by her parents, but she has managed to persuade her parents that she is not interested until she secures permanent residence in Australia. Her parents think she is waiting to be granted a skilled visa.
The Tribunal asked the applicant if she has made any enquiries about lesbian groups in India. She indicated she has made no enquiries because since she came here in 2009 she has decided that she does not want to live in India. She does not believe things have improved much in India. She is aware LGBT people are still being killed.
The Tribunal questioned whether the applicant’s parents would force her into marriage given they have not been particularly proactive since she came to Australia. She was emphatic that once she is in India her family will force her to marry. She does not believe she could relocate and live in New Delhi safely. She would be scared for her life because her parents would be able to find her.
The Tribunal explained that it may not accept that her parents would have her killed in honour. She indicated they might do this because her father has significant investment in the family name. He also has contacts with power.
The Tribunal referred to the country information indicating that LGBT communities in India’s major cities appear to be growing and thriving. It indicates that lesbians can live openly in the major cities. It noted she has a [qualification], she is trilingual and she has employment experience. The applicant indicated she would not be able to live in an Indian major city because she does not have a [degree]; she only has a [vocational level of qualification]and she has no relevant work experience. She would not be able to secure employment in any of the major cities in India. She would have no idea about how to establish a life in India. Employment is highly competitive in India and she would not be able to return to tertiary studies because she would not have her parents’ support. She is very worried about being unemployed in a major city. Also girls in India are sexually assaulted if they do not have the protection of their family. She cannot pretend to be a straight woman. She would have no social life and no friends in India. She would continue to be under pressure from her family to return home to marry. They are unaccepting of LGBT people. She does not want to be forced to marry a man. While the law has changed she does not believe anything else has changed in India.
The Tribunal spoke to the applicant’s witness, Mr [B]. He lives in [a town], NSW and last saw the applicant in person when he left [Workplace 1] in 2017. He has kept in touch with her and talks to her on the phone every one or two months. He understands that she is very depressed because of her circumstances. He believes that it will save her life if she is granted the visa.
The Tribunal also took evidence from Ms [A], the applicant psychologist. She started seeing the applicant in August 2015 for anxiety and depression. The applicant has demonstrated significant distress with depression and severe anxiety over the period of the consultations. Her anxiety has been slightly alleviated by COVID 19 because her parents cannot travel to Australia. She fears what her parents would do if they discover her sexuality. Ms [A] has no doubt about the applicant’s sexuality. She has been consistent through all sessions over the four years of consultations. She has expressed a desire to live in a supporting and loving relationship and does not believe she will find a partner in India. She fears being persecuted by her family and any partner’s family. She has expressed why she cannot live in the South Asian region given her sexuality. She has discussed her plans for the future which include moving to [State 1], although Ms [A] does not clearly understand the applicant’s motivation for this, given she has no social connection in [State 1]. She leads a very restricted life because of her fear of discovery.
The applicant indicated that she has heard about [State 1] from colleagues at [Workplace 1]. She has wanted to go there because it sounds beautiful. She wants to live near [a] national park in [State 1]. She has looked into study options in [State 1]. She wants to study [in a new field].
The Tribunal asked the applicant if she had any other evidence to give. She indicated that this is not just about sex; she fears if she goes back to India her parents will force her to marry. If she goes back she will never be able to tell them about her sexuality. She fears she will be suicidal. She also fears violent crime in the major cities in India.
The representative made the following submissions. The applicant has been open about her sexuality to friends and her psychologist. She is not ashamed of her sexuality but she fears serious harm on the basis of it. She does not believe she will be able to have an open lesbian relationship in India.
After the hearing the representative provided further written submissions including a statutory declaration from the applicant repeating evidence already given to the Department and the Tribunal. She made assertions that her father has connections and that he will be able to track her down in all areas of the country by using a private detective. She provided information about private detective agencies in India. She claimed that she does not have an Aadhaar card which is essential for Indian residents. Without that card she cannot open a bank account, seek employment or find accommodation. To apply for such a card she needs to have resided in India for a period of time. She would not be able to apply for the card without visiting her hometown or contacting her family.
The representative provided information about private detective agencies in India and country information about the Aadhaar number. He also provided articles about parents threatening to kill a gay couple in Kolkata, sexual assault of women in India, custodial torture in India, email exchanges between the applicant and Trikone in March 2016 leading up to the Mardi Gras, and a copy of the applicant’s Mardi Gras 2016 ticket.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Relevant to the circumstances of this case, s.36(3) of the Act provides:
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.
In other words, s.36(3) of the Act does not apply if a applicant has a well-founded fear of persecution in the third country or if there are substantial grounds for believing an applicant will face significant harm in the third country or if there is a well-founded fear that the applicant will be refouled by the third country.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.
The relevant DFAT Country Information Reports for India, dated 17 October 2018, and Nepal, dated 1 March 2019, have been considered. The Tribunal also considered other country information provided by the representative and otherwise available to the Tribunal.
CONSIDERATION OF CLAIMS AND EVIDENCE
Nationality
The Tribunal finds that the applicant is a citizen of India, based on her Indian passport and oral evidence, and will assess her claims on this basis. The Tribunal finds that she is outside her country of nationality. Citizens of India have rights to enter and reside in Nepal in certain circumstances. This is discussed in more detail below.
The applicant’s claim to be a lesbian
The delegate accepted that the applicant is a homosexual woman and that she had been in a committed relationship with another Indian woman but was prevented from continuing that relationship because of pressure from her partner’s family.
The Tribunal is satisfied the applicant’s claim to be a lesbian has been consistent since she first applied for the visa in 2015. It finds Ms [A]’ evidence, that the applicant has been consistent through all sessions over the four years of consultations in her claims to be a lesbian, to be persuasive. It also finds the supporting statements from [Mr D], [E] and [Ms F] to be consistent with the applicant’s claims to be a lesbian. There is no evidence before the Tribunal that raises any significant doubt about this claim. The Tribunal accepts the applicant’s explanation for why she has not told her parents. While she is not actively involved in any LGBT organisations in Australia, the Tribunal formed the view, from her evidence and presentation, that this is because the applicant is essentially a reserved person who might not benefit from or enjoy that kind of engagement. Accordingly the Tribunal accepts the applicant’s claim to be a lesbian.
Is there a real risk the applicant will suffer significant harm if she is returned to India?
The applicant is an unmarried Brahmin woman from [Gujarat]. The Tribunal accepts she has had at least one same sex relationship in the past and that she wants to have another same sex relationship in the future. It accepts her family are Brahmin and while her father is educated, her parents are conservative and will want her to marry if she returns to India. The fact that her parents have not pressured her into marrying thus far might raise some doubt as to whether they will in the future, however the Tribunal accepts that the applicant’s residence in Australia has made it more difficult for her parents to be forceful in this regard. Having regard to the country information the Tribunal notes DFAT has reported that “some parents accept their child is gay, as long as they still get married to opposite sex partners”.[3]
[3] DFAT Country Information Report India 17 October 2018, p 20
Ultimately the Tribunal accepts that the applicant’s family would not be tolerant of her sexual orientation and might try to force her to marry a man. The Tribunal has formed the view, having the advantage of taking her oral evidence at a 3 hour hearing, that the applicant may not be able to resist this pressure and she may be forced into a heterosexual relationship.

The Tribunal has considered the applicant’s evidence regarding her fear that she might fall victim of an honour killing. It is not persuaded that this would be the case and there was no evidence to support this except her own assertions. It has formed the view this claim is speculative.
However given the Tribunal accepts that there is a realistic possibility the applicant may be forced into a heterosexual marriage it finds there is a real risk she will face significant harm if she is returned to India, specifically to her parents’ home town in [Gujarat].
The Tribunal has considered whether the applicant can reasonably relocate to another area or avail herself of state protection such that she would not face such a risk. The applicant is emphatic she cannot relocate in India because her parents will in any case find her. The Tribunal has considered her evidence about the work of private investigators in searching for family members. It notes the applicant has regular contact with the parents despite not living in India for 11 years. It accepts that if the applicant returned to India and relocated her parents would probably go to lengths to find her.
The Tribunal has also considered the applicant’s claims that she cannot relocate to a major city even if it has support for and tolerance of the LGBT community because she will have no friends or family to support her, she is not adequately qualified, her employment experience is limited to [specified] work and, lesbian women experience disproportionate sexual violence in India, even in major cities.
The representative has submitted country information which supports the assertions that violence experienced by lesbian women exceeds that experienced by women in heterosexual relationships. Lesbian women are also targeted by religious groups who incite community violence against them. Negative betrayals by the media and popular culture spread anxiety and intense social and cultural disapproval in some parts of India. This fuels underreporting of violence against lesbians. Lesbians are vulnerable to eviction by landlords and police violence. Despite the decriminalisation of homosexuality, there has been little constructive changes in relation to the circumstances of lesbians in India. The LGBTI community continues to face harassment, bullying and humiliation. The Tribunal has had regard to that country information referred to in multiple articles and accepts that this is a reasonable reflection of the situation in India for lesbian women.
According to the DFAT report dated 17 October 2018:
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.
…
3.57 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.
DFAT’s assessment is corroborated by a report provided to another Tribunal by the Country of Origin Information Services Section of the Department of Home Affairs (‘COISS’) dated 20 December 2019 (referred to in AAT case number 1807658). The COISS summarises the information contained in authoritative sources. Relevantly, the report notes as follows:
The overwhelming majority of LGBTI people in Punjab keep their sexuality a private matter, to avoid societal and familial discrimination and violence.[4]
[4] DFAT Thematic Report on the State of Punjab dated 7 December 2016 [3.37].
The COISS report also notes that the United States Department of State reported in March 2019, that while the Supreme Court ruling was welcomed, it was “too early to determine how the verdict would translate into social acceptance” and that the LGBTI community still “faced physical attacks, rape, and blackmail. LGBTI groups reported they faced widespread societal discrimination and violence, particularly in rural areas”.[5]
[5] Ibid p12, referring to Country Reports on Human Rights Practices for 2018 – India, United States Department of State, p48.
Having regard to the country information from a variety of sources cited in the report, COISS observed that while there is evidence of changes following the 2018 Supreme Court ruling with LGBTI life reportedly becoming more integrated into mainstream society, it is also reported that the homosexual community still faces stigma and violence and that discrimination remains in a deeply conservative society. [6]
[6] COISS, Standard Q&A report dated 20 December 2019, p10.
The DFAT report and the sources cited in the COISS report are relevant to the applicant’s circumstances, and persuasive. Accordingly, based on the country information in these reports and the country information provided by the representative, the Tribunal finds there is a real risk that a lesbian woman would face significant harm in the form of stigma and possibly violence in her hometown in Gujarat and even in large cities such as Mumbai and New Delhi. The Tribunal accepts her family are highly unlikely to be supportive of her sexual orientation and highly unlikely to support her if she were to return to her hometown and reveal her sexuality and highly unlikely to facilitate her relocation. This is in the context of the applicant already suffering long term anxiety and depression which is likely to be exacerbated by isolation and fear if she were to relocate to a major city in India. The Tribunal is of the view the applicant may suffer mental and physical cruelty or degrading treatment even if she relocates in India.
Having regard to the applicant’s circumstances, the Tribunal accepts she faces a real risk of assault, physical or sexual abuse and/or other manifestations of homophobia in India and that this would amount to significant harm for the purposes of s.36(2A) of the Act. It is not satisfied there is anywhere in India where the applicant can relocate and not be at such risk. It is not satisfied the applicant will be able to obtain protection from an authority in India, such that there would not be a real risk that she will suffer significant harm. The Tribunal finds the risk faced by the applicant is not one faced by the population generally but rather, is faced by her personally because of her sexual orientation.
Accordingly, on the evidence before it, the Tribunal is satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk that the applicant will suffer significant harm. As such, the Tribunal satisfied the applicant meets the criteria in s.36(2)(aa) of the Act.
Third Country Protection
Having found that the applicant meets s.36(2)(aa) of the Act, it is necessary for the Tribunal to consider whether protection is available from another country under s.36(3) of the Act such that Australia does not have protection obligations.
The Tribunal has considered whether the applicant has the right to enter and reside, either permanently or temporarily, in another country. Article 7 of the Treaty of Peace and Friendship between the Government of India and the Government of Nepal (‘1950 Treaty’), signed at Kathmandu on 31 July 1950, provides as follows:
Article 7
The Governments of India and Nepal agree to grant, on 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.[7]
[7] Treaty of Peace and Friendship, Media Centre, Ministry of External Affairs, Government of India,
On the face of it, the applicant may have a right to enter and reside in Nepal because she is a national of India. However the Tribunal finds it unnecessary to determine this issue because it has formed the view that, for the same reasons the applicant cannot relocate in India, it would be unreasonable for her to relocate to Nepal. There is no evidence to suggest she has family or friends in Nepal. The Tribunal is of the view her anxiety and depression would make it extremely difficult for her to relocate safely to a third country. The Tribunal also notes from the relevant DFAT report that:
women in Nepal face high levels of societal and official discrimination and a moderate risk of violence. However, the experience of individual women varies. Women from poorer or lower-caste backgrounds experience a higher risk of discrimination and violence.[8]
[8] DFAT, Country Information Report – Nepal, 1 March 2019, p. 223, para [3.75].
DFAT also assesses that police effectiveness in Nepal is limited by a lack of resources, corruption, nepotism and a culture of impunity, particularly among low-level officers. Nepali police agencies are hindered by a lack of adequate transportation, training, and equipment. Many crimes in rural areas occur with inadequate police intervention or follow-up.[9]
[9] DFAT, Country Information Report – Nepal, 1 March 2019, p. 29, para [5.7].
The Tribunal is also not satisfied the applicant would be able to secure employment and accommodation for herself. In these circumstances there is a real risk that she would find herself unemployed, homeless and exposed to a significant risk of sexual violence and gender-based discrimination. It is of the view this would amount to significant harm. The Tribunal is satisfied therefore that there are substantial grounds for believing the applicant will face significant harm in Nepal.
The Tribunal therefore finds that s.36(3) would not apply, and does not apply, to exclude the applicant from Australia’s protection obligations.
The Tribunal has considered the criterion in s.36(2)(aa). It is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.
Denise Connolly
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

accessed 29 October 2020

[2020] AATA 5435

12 November 2020

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