1702194 (Refugee)

1702194 (Refugee) [2021] AATA 2922 (30 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1702194

COUNTRY OF REFERENCE: India
MEMBER:James Silva
DATE:30 June 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 30 June 2021 at 2:21pm
CATCHWORDS
REFUGEE – protection visa – India – particular social group – male homosexual – homosexual living with HIV – pressure to marry a woman – abuse by relatives – state protection – access to appropriate retroviral medication – employment – return visits to India – right to enter and reside in Nepal – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIMAC v SZRHU [2013] FCAFC 91
SZTOX v MIBP [2015] FCAFC 77
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is a man in his [age range] who claims to be an Indian citizen.
The applicant most recently arrived in Australia [in] October 2011, as the holder of a [temporary] visa. He lodged an application for a protection (class XA) visa on 27 April 2016. On 3 February 2017, the delegate of the Minister for Immigration and Border Protection (the delegate) refused the application pursuant to s.65 of the Migration Act 1958 (the Act).
This is an application for review of that decision.
The applicant attended a Tribunal hearing on 7 August 2020.
For the reasons set out below, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
CRITERIA FOR A PROTECTION VISA
The issues in this case are: (1) whether the applicant meets the refugee criterion, as a person who has a well-founded fear of persecution in India for reason of his race, religion, nationality, political opinion or membership of a political opinion (in particular, on the basis of his homosexuality and/or his HIV status) and if not, (2) whether he is eligible for complementary protection, on the basis of a real risk of significant harm if he returns to India. A summary of the relevant law is set out in Attachment A.
CLAIMS AND EVIDENCE
Protection claims
The applicant is a gay man living with HIV. He claims to have had a difficult life in India growing up gay, due to social stigma, sexual abuse and threats. He claims to fear discrimination and persecutory harm if he returns to India, at the hands of some [relatives], society at large and potentially the police. While there may be few occasions when his HIV status comes to light, he claims that he cannot be expected to conceal his sexuality or alter it (by succumbing to pressure to marry a woman) so as to avoid a real chance of persecution in India.
Background
The applicant is [an age] year old man from Chennai. His languages are English, Tamil and Hindi. He identifies as a Hindu.
The applicant was born and grew up in [Town 1], a residential area some [distance] from central Chennai. He lived there until he first left India for Australia, in 2007.
The applicant attended school [between specified years]. He repeated [a specified year], and then went on to study at [a specified type] college in [District 1], some [distance] from his home. He continued living at home and commuted to the college campus.
The applicant [worked] in call centres in Chennai; he said that, in practice, this meant answering calls from [overseas] customers. He worked in one call centre in [a named location in] Chennai, from August 2004 to April 2006; and later in another, in [another location] Chennai. The applicant claims that he was virtually forced to resign the latter job in February 2007.
The applicant’s parents are from [Village 1], a village some [distance from] Chennai. He has [specified family members]. They all live in Tamil Nadu. He said that his father worked as [an occupation] in New Delhi and used to return to Tamil Nadu infrequently. He is now retired. The applicant said that he has occasional contact with his parents, perhaps once a month; he does not send money back to them. His contacts with his [siblings] are limited to birthday greetings and the like. He is not in contact with other family members.
The applicant stated that although his family is now based in Chennai, they return to [Village 1] at least once a year and for major occasions (such as [family] weddings). At hearing, he also said that he was actually born therein [Village 1]. The Tribunal does not accept on the available evidence, including the applicant’s passport and birth certificate, that he was born there. It is concerned that he exaggerated the importance of this place, to bolster his protection claims.
The applicant said that he has lost touch with friends, former colleagues and other people in India.
The applicant currently holds an Indian passport issued in [Australia] in [2012], valid for ten years. As noted in the delegate’s decision record[1], he first arrived in Australia [in] February 2007, just after his [specified] birthday, as the holder of a [student] visa. He was subsequently granted a student [further stay] on 15 December 2009; and [another] temporary visa on 2 June 2011. He applied for a skilled [permanent] visa. The Department refused that application on 15 January 2015, on the grounds that he did not meet the health criterion, on the basis of his HIV status. The Tribunal affirmed the decision to refuse the visa on 1 April 2016.
[1] The applicant provided a copy of this with his application for review.
The applicant is currently living and working in [Town 1].
The applicant is represented in this matter by his registered migration agent, [Representative A].
Evidence
The evidence before the Tribunal includes the following relevant material:
§ The applicant’s protection visa application form and annexes, lodged on 27 April 2016. The applicant set out his protection claims in a detailed five-page statement.
§ Identity and similar documents:
-   Photocopy of the applicant’s current Indian passport, issued in [Australia] in [2012] and valid to [2022].
-   Birth certificate from [Town 1], [location], [District 1], Tamil Nadu.
-   Academic certificates from India and Australia.
§ Supporting documents:
-   Letter from [Mr A], dated 14 April 2016, claiming to have been in a romantic relationship with the applicant since early 2013.
-   Letter from [Doctor A] dated 7 March 2016 concerning the applicant’s health.
-   Prescription for an antiviral drug.
§ General letters of support from [Member of Parliament A]; [College 1] (principal and executive principal).
§ Recording of a protection visa interview (Department interview) held on 25 January 2017.
§ The protection visa assessment and decision (‘delegate’s decision record’) of 3 February 2017, which is the subject of this review.
§ The application for review, to which the applicant attached a copy of the delegate’s decision record.
The Department file includes correspondence relating to the applicant’s application for a bridging visa, and for permission to work, with evidence from a bank account, utility bills, insurance and the like to support this.
The applicant submitted a range of general documents which the representative invited the decision-maker to ‘take into consideration […] in exercising your discretion’. These go to his character and his contribution to the local community. The Tribunal has examined these to determine if any are relevant to its assessment of his protection claims. They include bank statements (as proof of income and expenses); utility bills; reference letters from [the named] Executive Principal of [College 1] (29 March 2016) and [the named] Princple of [College 1] [specified] Campus (21 March 2016; and [Member of Parliament A] (23 March 2016).
The applicant appeared before the Tribunal on 7 August 2020, to give evidence and present arguments. The hearing was conducted in English, in which the applicant is fluent. [Representative A] accompanied him to the hearing. The applicant did not present any witnesses.
The Tribunal received further materials during the course of this review: These include a submission of 31 July 2020 with a range of country information relating to gays in India, and the treatment of HIV/AIDS. The Tribunal has also taken into account the Department of Foreign Affairs and Trade’s (DFAT) most recent country information report, from December 2020,[2] and other recent materials, including on COVID-19 developments in India and Nepal, which it refers to in the body of this decision.
[2] DFAT, Country Information Report – India, 20 December 2020
Receiving country
The applicant claims that he is a national of India. He holds an Indian passport and speaks Tamil and Hindi, as well as English. There is nothing to suggest he has the nationality of any other country. The Tribunal accepts he is a national of India, which is the receiving country for the purpose of assessing his protection claims.
CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS
Credibility
The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence.
The Tribunal is particularly mindful of the need for care in assessing claims about sexual orientation. It may be easy to assert such claims and associated harm, yet difficult for applicants to substantiate or for decision-makers to evaluate them. By their very nature, they involve private matters of self-identity and sexual conduct, and sometimes personal issues or incidents that may be stressful or unresolved. The applicant alluded to such matters in his claims and evidence. In addition to the question of the applicant’s homosexuality, which it accepts, the Tribunal appreciates the sensitivity surrounding issues such as the applicant’s own coming to terms with that, alleged abusive conduct in India and Australia, and his HIV status.
The Tribunal accepts the applicant’s basic claim relating to his homosexuality and his HIV status. It nonetheless has some concerns that he tended to give an exaggerated, one-sided account of his past experiences in India.
Homosexuality
The applicant has consistently claimed to be gay, and given some information about his experiences in India and Australia, which the Tribunal addresses in detail below.
In relation to India, he gave a detailed and generally credible account of the difficulties he faced growing up gay in a conservative society. Nonetheless, the Tribunal found some his evidence about his knowledge of LGBTI activities in India (both prior to his departure from India, and of more recent favourable developments), and his account of his experiences in Australia, to be somewhat selective and patchy. The Tribunal addresses these below.
Experiences in India
The applicant described the difficulties he had growing up, coming to terms with feeling different and alone; the impact on him of negative social attitudes to homosexuals, including from family members and colleagues; and instances of pressure, discrimination and abuse.
These claims are relevant to the review in several respects: (a) they describe his experiences as a young gay man in India, and hence go to his claimed sexual orientation; (b) they go to his aversion of returning to India or turning his mind to that possibility; and (c) the illustrate family and societal attitudes that are potentially relevant when assessing his prospects on return to India.
Growing up gay: The applicant described a growing realisation that he was different from other boys, for instance, in terms of his interests (indoor activities like reading, rather than sports), emotions and mannerisms. He also mentioned that his growing up in [a mainly female] household reinforced this; his father spent most of the year in Delhi for work. At times, he experienced confusion, loneliness and even self-loathing; and he became self-conscious and introverted.
The Tribunal takes into account that LGBTI individuals have unique experiences in developing a sense of self and identity, and how to relate to society. Articulating this can be difficult. Overall, the Tribunal considers the applicant’s written and oral evidence about his early years to be broadly consistent with his claims.
Social pressure and hostility: The applicant wrote that his family pressured him to fit in and ‘behave normal[ly]’ (although they did not know about his sexual orientation as such). At school, some students abused him verbally, using anti-gay slurs[3] and on one occasion they assaulted him. His mother, on learning about the bullying, suggested that he had brought this on himself through his behaviour. At hearing, the applicant restated that his flamboyant manner and his interests attracted scrutiny. In response, he pretended to be straight, above all trying to ensure his family did not discover his sexuality.
[3] The applicant referred to the Tamil term ombodhu (‘nine’), a derogatory word for transgenders, which is also applied to effeminate or non-conforming men generally.
Abuse by uncle: The applicant claims that a few months after the bullying occurred, his mother asked an uncle to visit, to help ‘discipline’ him (implicitly, to teach him life skills or instil more manliness in him). The background to this was that the applicant lacked a father figure, as his father worked on long-term projects in northern India, and did not come home often. The uncle initially mocked the applicant, warning him that unless he changed his ways; that his family would disown him; and that he would end up as a prostitute.
The applicant claims that his uncle started to sexually abuse him. This ‘torture’ lasted for about four years. The uncle also threatened to tell the applicant’s mother that he was indeed an ombodhu. The applicant felt dirty and shameful and, over time, started wondering about his sexuality. When the applicant tried to tell his mother about the abuse, she disbelieved him, stating that he was bringing shame to the family. Eventually, the uncle and his family moved to Mumbai, and had no further contact with the family.
Discrimination: The applicant claimed that the constant teasing and discrimination he experienced affected his schooling and later work. Following a suicide attempt, his father suggested that he repeat [a specified year]. In college, he was isolated and ‘never spoke to anyone’ (about his sexuality).
Within six months of completing school, he found work with [Employer 1], where he met a gay [foreign] client, [Mr B]. He wrote that he and this person had a physical relationship. After workmates found out about it, his manager called him in and threatened to call the police if the applicant did not resign. The applicant resigned following this conversation. At hearing, the applicant described his former colleagues mocking [Mr B] (who they evidently perceived to be gay). One evening, the applicant drove [Mr B] to his accommodation, and ended up having a sexual encounter with him. His colleagues surmised that the applicant had slept with [Mr B], and then started saying things about him (the applicant). The applicant indicated that this led to the confrontation with his boss, and his virtual dismissal. The Tribunal signalled its disquiet about aspects of this claim, such as how the applicant’s colleagues would even know what happened between him and [Mr B], or be confident enough in any suspicions as to force his resignation.
Uncles in [Village 1]: The applicant said that his [uncles] are landholder/farmers in [Village 1]. They were abusive during his return visits there, and were involved in the marriage arrangement. He claimed that, through the family, they know his whereabouts in Australia and would be able to locate him anywhere in India.
Knowledge about gays in India: The applicant claims that the information he was able to gain about homosexuality in India indicated that it was taboo throughout the country. He read about arrests, and that the only places gay men could meet were in parks or seedy hotels.
During the exchange at hearing, the Tribunal asked if the applicant had had any positive recollections, or had obtained any other information about gays in Chennai or India more generally. He replied obliquely that in India he had been pretending to be straight. He had not made enquiries, even online, for fear that people would discover his sexuality. Even when he dared to look up these issues, the information he discovered was usually negative. He said he confided in no one (implicitly, apart from [Mr B] during their encounter.
Prior knowledge about Australia: In light of the applicant’s claim that he came to Australia to escape this situation, the Tribunal asked what information he obtained prior to leaving India. He replied vaguely that he had heard of greater acceptance of gays in other countries generally, including from cousins and relatives living abroad. However, he did not have specific information about Australia, and did not make contact with anyone to discuss or verify what he had heard.
The applicant said that his parents and sister know nothing about his sexuality; they only ask if he is interested in anyone (implicitly, a woman to marry).
The Tribunal asked the applicant whether he has any more recent information about the situation for gays in India; particularly in light of the voluminous country information that he had provided. He indicated that he is not interested in this, as he is mentally living in Australia and does not want to engage with his past in India.
Return trips to India: The applicant claims that during his most recent visit to India, his family again pressured him to marry an Indian woman. He deflected the discussion by stating that he did not yet have permanent residency, so will be unable to sponsor a wife to join him in Australia. He added that he ‘literally escaped India’ on that last occasion. At hearing, he repeated that he came under pressure to marry, and that he ‘dodged a bullet’ (but conceded that he did not ‘literally’ flee the country).
Experiences in Australia
The applicant gave slightly more information about his experiences in Australia. During the course of the exchange, he alluded to the following:
§his somewhat introverted personality;
§his satisfaction with living in rural locations and socialising with mainly straight colleagues and friends; and
§his mostly casual contacts with gay men; while he expressed interest in having a long-term relationship, he had shied away from commitments (in large part because he was reluctant to give the impression he was relying on Australian partners to secure permanent residency).
The applicant’s description of his experiences in Australia seemed straightforward and unembellished. He seemed comfortable with the Tribunal’s enquiries, but did not take much initiative to submit documentary evidence or propose witnesses to substantiate his claims.
§ The applicant said that he studied in Australia mostly in the company of Indian friends and did not disclose his sexuality to them. He had the opportunity to meet some gay men through online dating sites, such as [example]. Some of these involved just friendship and others were sexual encounters. During the course of the hearing, he mentioned having other online accounts, on [website names], the last two of which are specifically for gay men.
§ He met a man named [Mr C], and they dated for two, almost three years. He said that there are photographs of the two of them at parties; and he named some mutual friends who knew of the relationship. The applicant did not produce any photographs or statements relating to this. The applicant broke off the relationship after discovering [Mr C’s] misconduct. The applicant provided a copy of a Schengen visa he had obtained, ostensibly to travel to Europe with [Mr C] before their breakup.
§ The applicant confirmed that he had also dated [Mr A]. They lived separately in [city]; [Mr A] is now [interstate]. The applicant said that they are now in occasional contact. He said that, as in other relationships, he found himself pushing [Mr A] away because he felt uncertain about his future (i.e. his visa status) and did not want to rely on him for permanent residency.
§ In a similar vein, the applicant said that he had been seeing [Mr D] until recently. They met on [a website] and were in a relationship for about two years. [Mr D] had been working as a nurse in [City 1]. He moved in with the applicant for a while in [Town 3], but then moved to [Town 1] to be closer to work. The applicant said that they had disagreed over family issues (meeting each other’s families), and are not really together any more. He said that people in [Town 3], including their mutual friends and work colleagues, had known about the relationship.

The applicant appeared to speak candidly about his relationships, and indicated that his contacts in [Town 3] and [Town 1] would be available to confirm the claims. That said, it is striking that the applicant did not present, or show interest in obtaining, more recent statements of support, evidence of his online activities or photographs, to support his claims (including his sexuality, and his successive relationships). As a general observation, the Tribunal also found some loose ends in the applicant’s evidence, such as his claim that his relatives in India bullied and used anti-gay slurs against him, yet do not actually know he is gay; his account of having successive relationships in Australia, of about two years’ duration; and his description of his adverse experiences in India.
Despite these misgivings, the Tribunal accepts on the evidence as a whole that the applicant is gay, as claimed. It also accepts that he has experienced some social discrimination in India, including pressure to marry. It also accepts that, while he is content in living in rural NSW and meeting occasional contacts through online apps, he is generally accepted by friends as gay, and would be interested in a relationship in due course.
HIV status
The applicant has been living with HIV since 2010. According to his evidence at hearing, his current treatment consists of one pill per day, and his current viral load is ‘undetectable’. The applicant’s treating physician is in [Town 1]. A pharmacist sends the medication to him by mail in [Town 3]. The applicant said that he always declares his HIV status where required; for instance, it is apparent on his [website] profile.
The applicant’s conduct and his need for protection
The Tribunal understands the delegate’s concerns about the applicant’s return to India on several occasions, his delay in seeking protection, more than four years after his most recent entry into Australia; and his travel to other countries without seeking protection there. However, it notes that he was actively engaged with the Department throughout this process, in the course of seeking skilled visas. As noted above, his application for a permanent skilled residence visa was rejected on the basis of his HIV status. In these circumstances, the Tribunal considers the applicant’s conduct to be broadly consistent with the substance of his protection claims (including his HIV status and his past tension with his family). It draws no adverse inferences in terms of the credibility of his claims, or his need for protection.
The applicant’s fears
The Tribunal accepts that the applicant is a gay living with HIV, and that he genuinely fears persecution on the basis of his sexuality and HIV status.
ASSESSMENT: REFUGEE CRITERION
In order to meet the refugee criterion, a person must have a well-founded fear of persecution for one or more of the reasons mentioned in s.5J(1)(a), namely race, religion, nationality, membership of a particular social group or political opinion. The Tribunal assesses this in applicant’s future conduct and country information.
Country information: gay men
In India, homosexual activity was illegal under s.377 of the Indian Penal Code, which prohibited ‘carnal intercourse against the order of nature with any man, woman or animal’.[4] From 2009, there were numerous court cases challenging this provision. On 6 September 2018, the Supreme Court delivered a landmark decision in effect decriminalising homosexuality, having found in effect that the prohibition on consensual same-sex relations between adults in private was unconstitutional, as it violated the identity of an individual, the right to equality and the right to privacy.[5]
[4] ‘State-Sponsored Homophobia 2017 – A World Survey of Sexual Orientation Laws: Criminalisation, Protection and Recognition’, International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), May 2017, pp.39 & 124, CISEDB50AD4462; ‘India's highest court to review colonial-era law criminalising gay sex’, The Guardian, 8 January 2018, [CXBB8A1DA21097].
[5] The Indian Express, ‘Section 377 verdict: History owes apology to LGBTQ community for delay in justices, centuries of ostracism, suffering, says SC’, 7 September 2018, [CXBB8A1DA34927]; BBC News, ‘India court legalises gay sex in landmark ruling’, 6 September 2018, [CXBB8A1DA34899]; The Indian Express: ‘‘Section 377 verdict: What the Judges ruled’, 7 September 2018, [CXBB8A1DA34926]
The most recent DFAT report, dated 10 December 2020, includes the following information concerning the treatment of LGBTI individuals, which includes a paragraph on gay men.
3.160 Until a September 2018 Supreme Court judgement, section 377 of the Penal Code criminalised homosexuality. In 2018, however, the court decriminalised adult consensual same-sex relationships and declared section 377 unconstitutional. Sources told DFAT attitudes towards gay men have not changed, despite the change in the law. Sources claim police still use many ‘nuisance laws’ to arrest, harass, manipulate and bribe gay men whose families are not aware of their sexual orientation. Sources told DFAT it is possible for middle class, educated gay men to relocate in India. However, this had to be weighed against the concept and custom of family ties, which were hard to break. Local sources claim while there are ‘gay nights’ in a few bars, there are no safe spaces for gay men.
The DFAT report addresses the situation for LGBTI persons more generally:
3.155 Local sources told DFAT lesbian, gay, bisexual, transgender and/or intersex (LGBTI) persons lack protection, have poor education and health outcomes, and face intolerance, abuse and violence in their daily lives. Attitudes towards and experiences of LGBTI individuals can vary, in part due to disparities between urban and rural India, language, caste, class and gender. According to a 2019 International Commission of Jurists (ICJ) report, LGBTI persons face extensive rights violations in relation to:
§housing and within the home, including discrimination in the rental market, denial of housing, segregation into poorly resourced neighbourhoods, violence and harassment (from landlords, neighbours, family and police), and homelessness;
§all stages of the employment process, including unequal access to educational opportunities, discrimination during the recruitment process, discriminatory and gendered work conditions, and lack of job security; and
§access to public spaces, including harassment, physical and verbal violence, denial of access, invasive surveillance and discriminatory pricing.
Other reports (which includes open-source material that DFAT may have drawn on) are consistent with DFAT’s advice, and give further details. As discussed at hearing, there has been a marked increase in LGBTI events and campaigns across India, including Chennai where there have been numerous initiatives.[6] In Chennai, for instance, the Chennai Rainbow Committee had been established in 2014 and expanded in 2018 to the Tamil Naidu Rainbow Collective, to raise the visibility of LGBTI persons and provide related services. The Tribunal drew on, among other things, an anecdotal account of growing up gay and HIV in Chennai[7], and the website of Orinam Chennai Pride.[8] Surprisingly, the applicant appeared to have little knowledge of or interest in these matters.
[6] State-Sponsored Homophobia 2019’, Mendos, L R, International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), 20 March 2019, p.136, 20190327100813
[7] Reddit News, Shobha Warrier, The world through the eyes of a gay person,
[8]
The reports indicate that the BJP-led government has signalled that it would oppose attempts to establish broader rights for LGBTI persons, in areas such as marriage, adoption and inheritance.
The Tribunal has found numerous other reports of the treatment of LGBTI persons, from (among others) the US Department of State, NGOs and the media, covering a wide gamut of discrimination, violence and other behaviours. It is mindful of the limitations of the available material. First, it appears that much discrimination and violence goes unreported, including for reasons of stigma and lack of effective protection. Second, there tends to be a focus on the transgender community, which is at one both more visible and more vulnerable. All of this calls for caution in how to use this information in assessing the situation for gay men.
The Tribunal accepts as reliable DFAT’s overall assessment: ‘Attitudes towards and experiences of LGBTI individuals can vary based on a range of factors (such as disparities between urban and rural India, language, caste, class and gender). DFAT assesses, in general, LGBTI individuals who express openly their sexual orientation and gender identity face a moderate risk of societal and official discrimination. This can include harassment, exclusionary practices, arbitrary arrest, detention and violence.’
In the Tribunal’s view, the question remains of the extent to which this reporting helps in assessing the prospects for a particular gay man, particularly one living with HIV. This will need to be a highly individual assessment, reflecting among other things how open they are about their sexuality; their past experiences; their relationship status (including future intentions); whether they are in a city, educated and/or middle class; and their family dynamics (including the thorny issue of how they and their family negotiate expectations about marrying and having children).
Country information: people living with HIV
The DFAT report does not specifically address the situation for people living with HIV. However, the Tribunal has consulted a range of information relating to both the availability of HIV medications and associated services in India, and more generally, the treatment of persons living with HIV.
In September 2018, the Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency (AIDS) Syndrome (Prevention and Control) Act, 2017, which prohibits discrimination against persons with HIV/AIDS in accessing healthcare, employment, accommodation, and education, came into force in India.[9] The representative provided country information indicating that, despite such progress, there remain high levels of discrimination and stigma, as gay men with HIV are ‘extremely marginalised’ and face ‘immense psychosocial stressors’, arising from both actual and perceived attitudes.[10] This in turn leads to reduced health outcomes.
[9] HIV, AIDS Act comes into effect’, Press Trust of India, 12 September 2018, CXBB8A1DA35233; ‘Law to check bias against HIV/AIDS patients kicks in’, Live Mint, 11 September 2018, CXBB8A1DA35235
[10] BMC Public Health, 2018: A randomized clinical efficacy trial of a psychosocial intervention to strengthen self-acceptance and reduce HIV risk for MsM in India: study protocol
Much of this material relates to male homosexuals (or more generally, MSM, men who have sex with men). They describe a complex interplay of factors such as community attitudes, family pressures (in particular to marry and have children) and various mental health issues associated with low self-esteem, etc. In the Tribunal’s view, these broad factors are obviously relevant to an overall assessment, but its focus must be on whether they involve or contribute to ‘serious harm amounting to persecution’ or ‘significant harm’. The practical issues that arise include whether the applicant will be able to secure appropriate retroviral medication (as his current regimen appears to be effective); what risks might arise in the process of obtaining the medication or treatment; and whether there are other circumstances in which he may be required to disclose his HIV status and face discrimination (including where it is not overt).
The applicant’s conduct on his return to India
The applicant was uncertain about his immediate plans if he were to return to India, although he thought that he would initially go to Chennai. He stressed that he would face pressure to marry there, and face challenges in starting all over again and having to support himself. The Tribunal accepts that he would initially return to Chennai, given his prolonged absence from India. However, as noted at hearing, he speaks Hindi and in-demand skills, and the Tribunal considers that he would be well-placed to look for opportunities in other major Indian cities.
For the reasons discussed at hearing, the Tribunal considers that the applicant faces a very small chance of experiencing serious harm as a homosexual man living with HIV in Chennai, or India as a whole. Most sources indicate significant changes in values and attitudes towards the LGBTI community in India, and good prospects for further progress. The applicant is from one of India’s largest and most cosmopolitan cities, where there are a range of support services for LGBTI persons, and health services for those with HIV. He is a speaker of English, Tamil and Hindi; he has transferrable work skills in [specified areas]; his HIV is undetectable and effectively managed with readily available medication; and he chooses to live a low-key lifestyle that would not typically draw attention to his sexuality. All these factors point towards him not having a well-founded fear of persecution on refugee grounds.
Nonetheless, the Tribunal is mindful of other country information relating to the slow pace of changes in attitudes to homosexuality, the continued stigmatisation of HIV, and the associated discrimination and violence that occurs from time to time. The applicant’s personal circumstances, including the fact of past hostility from family members, the fact that he is the only son and remains unmarried at [age], and the passage of almost ten years since he last returned to India, are all factors that make his return to India as a gay man living with HIV more difficult – first, in terms of his relations with his family and community, and second, in terms of finding accommodation, employment, medical facilities and a community in which he can live safely, and without fear of discrimination, stigmatisation and possibly violence.
The Tribunal accepts that the applicant genuinely fears persecution if he returns to India, and that this fear relates to his membership of particular social groups, such as ‘gay men in India’ and/or ‘gay men living with HIV in India’. (s.5J(1)(a)). Section 5J(1)(b) requires that there must be a real chance of persecution. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. This is a close call in the present case. The Tribunal is not persuaded that all gay men, or all gay men living with HIV, have a well-founded fear of persecution in India. However, it notes DFAT’s recent assessment that LGBTI individuals face a moderate risk of societal and official discrimination, which can include harassment, exclusionary practices, arbitrary arrest, detention and violence. The Tribunal considers that the applicant’s lack of family support, his lengthy period of absence from India and his HIV status may all add to the risk of such mistreatment, in Chennai or elsewhere. In these circumstances, it finds that there is a small but nonetheless real chance of the applicant facing persecution if he returns to India now or in the reasonably foreseeable future.
Section 5J(1)(c) requires that the feared persecution relates to all areas of India. At hearing, the applicant contended that even if he went to Mumbai or another large city, he would feel compelled to tell his family where he lives, and they would ultimately reveal that to members of his father’s family, who would locate and persecute him throughout the country. The Tribunal considers that, if the applicant has a well-founded fear of persecution from these individuals, it would be a reasonable step within the meaning of s.5J(3) for him to not reveal his whereabouts to them. The Tribunal finds contrived and unpersuasive the applicant’s suggestion that disclosing his exact place of residence to his family is a required behaviour (or culturally expected), and that it would not be reasonable for him to withhold this information, if he feared that it could lead to his persecution. Nonetheless, taking into account the factors listed above, particularly the continued presence of anti-gay sentiment in India and the added stigma attached to HIV, the Tribunal is satisfied that the feared persecution relates to all of India. In light of this analysis, the Tribunal finds that the applicant meets s.5J(1).
The Tribunal accepts that ‘male homosexuals in India’ and ‘male homosexuals in India living with HIV’ are particular social groups, and that the applicant is a member of both. Country information indicates that, in India, this group consists of those men who identify as gay and seek relationships on this basis. The Tribunal finds that the applicant’s sexual orientation and his HIV status are characteristics that he shares with other members of these groups, that these are innate characteristics, and that they are not based on a fear of persecution: s.5L. Even though the Tribunal is not satisfied that the applicant’s membership of these particular social groups do not of themselves give rise to a well-founded fear of persecution, it finds that this membership of these particular social groups is the essential and significant reason for the feared harm: s.5J(4)(a).
Section 5J(4)(b) requires that the persecution must involve serious harm to the person. Although some of the discrimination, stigma and ostracism that the applicant referred to does not necessarily amount to serious harm, having regard to the non-exhaustive instances cited in s.5J(5), the Tribunal takes into account that these can affect the applicant’s access to accommodation, employment and medical services, and that there are potential threats from relatives and the broader community, the risk of police harassment, arbitrary arrest and detention, and blackmail; and instances of violence. The Tribunal is satisfied that this involves serious harm within the meaning of s.5J(4)(b). Given that this harm arises from entrenched societal and official anti-LGBTI sentiment, it is also satisfied that the associated conduct is systematic and discriminatory: s.5J(4)(c). The applicant therefore meets s.5J(4).
Section 5J(2) provides that person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country. Although the Supreme Court judgement of September 2018 in effect decriminalised same-sex relations and conduct in India, this does not equate to the provision of effective protection from persecution. As noted in the most recent DFAT report: ‘Sources claim police still use many ‘nuisance laws’ to arrest, harass, manipulate and bribe gay men whose families are not aware of their sexual orientation.’ The Tribunal is unable to verify these reports or gauge how representative they are. On the available material, it is unable to be satisfied that the applicant has effective protection measures available to him in India, in relation to the feared persecution, from the State or any other organisation: s.5LA.
As noted in the most recent DFAT report, LGBTI individuals face risks of discrimination and associated mistreatment, which can include detention and violence. It is also satisfied that the feared harm may involve discrimination (including in the areas of accommodation, employment and access to medical services), threats from relatives and the broader community, intimidation, and the risk of police harassment or blackmail. The Tribunal finds that such harm constitutes serious harm amounting to persecution, having regards to the instances cited in s.5J(5); and it finds that this involves systematic and discriminatory conduct. The applicant therefore meets s.5J(4).

Section 5J(3) provides that a person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution. However, this does not apply to a modification that would (among other things), require the person to alter their sexual orientation or gender identity, or conceal their true sexual orientation, gender identity or intersex status: s.5J(3)(c)(vi). The Tribunal considers that, while the applicant may be able to reduce the risk of persecution – for instance, by presenting as a heterosexual, foregoing the possibility of meeting partners or forming a relationship, or by denying his HIV status in situations except where it is likely to be uncovered through medical tests – this falls within the exception of s.5J(3)(c)(vi).
As noted above, there was also discussion at hearing of whether the applicant could avoid a real chance of persecution by not giving his relatives (or even his parents) his exact location in India, to prevent hostile family members pursuing him. The Tribunal has concluded on the facts that this is a reasonable step to avoid a particular instance of potential persecution. However, it does not address the broader persecution that the applicant faces as a gay man with HIV, on the facts of this case. In sum, s.5J(3) therefore does not apply to his circumstances.
Accordingly, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for reasons of his membership of a particular social group, that is, homosexual males living with HIV. He therefore meets s.36(2)(a).
Third Country Protection
Having found that the applicant meets s.36(2)(a), the Tribunal must now assess whether Australia is taken not to have protection obligations because of the availability of protection in a third country, under s.36(3), which is subject to the qualifications in s.36(4), s.36(5) and s.36(5A). There were no submissions or discussion on this matter, but the Tribunal has decided that it can make a decision in the applicant’s favour on the available material.
Section 36(3)
Subsection 36(3) 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.’
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[11]:
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.
[11] Treaty of Peace and Friendship, Media Centre, Ministry of External Affairs, Government of India, >
On the face of it, the 1950 Treaty suggests that the applicant may have a right to enter and reside in Nepal, as an Indian national.
There is a body of caselaw on the meaning and application of s.36(3), some of which have considered its application to the rights of nationals from India and Nepal in their respective countries. In MIMAC v SZRHU[12], the Full Federal Court found that, while the 1950 gives a mutual right of residence to the citizens of India and Nepal, decision-makers must also assess the administrative arrangements for entry, and whether there is also a right to reside. The Full Federal Court also noted in SZTOX v MIBP[13] that a proper construction of s.36(3) ‘must accommodate the potentially wide range of laws and executive acts which could create a right or entitlement in the relevant sense’. It concluded that the existence and source of the right “are therefore a matter of evidence”.[14]
[12] MIMAC v SZRHU [2013] FCAFC 91
[13] SZTOX v MIBP [2015] FCAFC 77
[14] Ibid [41] and [42].
In other words, the Tribunal must determine whether the applicant has a right to enter and reside in Nepal having regard to the terms of the 1950 Treaty as well as the administrative arrangements for entry by Indian nationals into Nepal.
Administrative requirements: The Tribunal must consider what arrangements apply to the applicant’s entry into Nepal. Given the finding above that the applicant has a well-founded fear of persecution in India, the Tribunal addresses what arrangements would apply if he were to fly directly from another country into Nepal.
According to the Nepalese Department of Immigration website[15], Indian nationals arriving in Nepal ‘are required to produce passport/election card (Voter ID issued by Election Commission) sufficient enough to prove their Indian nationality’. However, the only entry point for ‘by air’ passengers is Tribhuvan International Airport, for which passports or other travel documents are required.
[15] Arrival/Departure Information (immigration.gov.np)
The applicant holds an Indian passport that expires [in] 2022. Open sources, including the International Air Transport Association (‘IATA’), indicate that incoming Indian nationals travelling to Nepal from a country other than India would need to present a passport with a minimum validity of six months from the date of entry.[16]
[16] Refer COISS, Standard Q&A report dated 20 December 2019, p21 and COISS Q&A report dated 15 August 2017.
At face value, this strongly suggests that the applicant has an existing right to enter and reside in Nepal. However, there are two factors that arguably could affect the Tribunal’s assessment relating to the application of s.36(3). These are: (a) the fact that the applicant’s Indian passport will cease to have at least six months’ continued validity as of 10 July 2021, and therefore not be a valid passport for entry into Nepal by air from a country other than India; and (b) the impact of COVID entry restrictions into Nepal, to the extent that there have been intermittent bans on all incoming international flights into Nepal from time to time.[17]
[17] For instance, all international flights were banned from 7 May to 30 May 2021, with the exception of flights between Kathmandu and New Delhi under an ‘air bubble arrangement’ between the two countries, which is not relevant to the applicant’s circumstances.
Both of these issues involve complex, evolving fact situations.
§ For instance, while the applicant currently holds an Indian passport, it is difficult to predict whether he would be able to secure a flight to Kathmandu within the timeframe to allow him to enter the country on that document; or the processing times for replacement Indian passports; and/or whether he would be able to meet all the requirements for the grant of a full Indian passport that would permit his travel to a third country. On the available information, the Tribunal is satisfied that the applicant holds an Indian passport that enables him to exercise his right to enter and reside in Nepal; and that applying for a replacement Indian passport is within the scope of the ‘all possible steps’ that he should take to avail himself of that right.
§ In relation to COVID travel restrictions, the Tribunal notes that large numbers of Nepalese and Indians have returned to their respective countries during the most recent COVID-19 waves[18], with a resultant spill-over of COVID cases. Nepal has taken various public health measures, such as banning international flights and, in early May, banning Indians from using Kathmandu as a transit, after Indians increasingly flew out of Kathmandu following flight restrictions from India.[19] The Tribunal is of the view that the current public health measures and policy settings do not undermine the applicant’s right to enter and reside in India, within the meaning of s.36(3). However, it acknowledges that such administrative arrangements could – taking into account their scope, duration and implementation, for instance – in effect negate the rights set out in the Friendship Treaty. In light of the Tribunal’s analysis and findings in relation to s.36(4), however, it is not necessary to examine this in further detail.
[18] Anjana Pasricha, May 11, 2021: Nepal Struggles With 2nd COVID Wave as India's Outbreak Spills Across Border: Voice of America - English (voanews.com)
[19] ABC News, 9 May 2021: Nepal’s coronavirus cases surge as infections spill over from neighbouring India,
The Tribunal is satisfied, for the purpose of this decision, that the applicant has, at the time of this decision, an existing right to enter and reside in Nepal, either temporarily or permanently, and that he has not taken all possible steps to avail himself of that right. He therefore falls within the scope of s.36(3).
Section 36(4)
Section 36(4) states: ‘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 […]’.
DFAT’s most recent country information report on Nepal, dated 1 March 2019, notes that Nepal provides constitutional guarantees for sexual minorities, and the ‘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. Overall, DFAT assessed that LGBTI people face a ‘low risk of official discrimination and harassment, and a moderate risk of societal discrimination’. It goes on to notes that LGBTI people in urban areas face fewer risks of harassment, discrimination and violence compared to those in rural settings, or from lower castes or lower socio-economic backgrounds.
More recent reports, such as the most recent US State Department Report on Human Rights Practices in Nepal[20], confirm the generally positive trend in observance of LGBTI rights, but notes the persistence of low level harassment. Nepal’s lockdown to prevent the spread of COVID-19 is reported to have negatively affected LGBTI people’s livelihoods and exacerbated social isolation linked to mental health problems, often triggered by a lack of family support, discrimination and prejudice.[21]
[20]Country Reports on Human Rights Practices for 2020
[21]
The Tribunal has found limited information regarding the treatment of persons living with HIV in Nepal. The US State Department reported that there was no official discrimination against high-risk groups that could spread HIV/AIDS, but noted that ‘societal discrimination and stigma against persons with HIV and those at high risk of HIV remained common, according to NGOs.’
The Tribunal has considered the applicant’s prospects in Nepal, if he were to avail himself of the right to enter and reside in that country. Although Nepal’s official policies appear generally favourable, societal practices and discrimination towards LGBTI people and those living with HIV vary according to location, caste and social status. The Tribunal considers that the applicant is at added risk, as a person who does not speak the local language, who does not have a support network, and who faces challenges in finding accommodation, employment and medical services, particularly given the current impact of the COVID pandemic in Nepal. In the Tribunal’s view, these difficulties amplify the risk that of the applicant facing discrimination, as a gay man living with HIV (and requiring access to medications and health services). The Tribunal finds that there is a real chance of such discrimination, considered cumulatively, amounting to serious harm. On the available evidence and taking into account his particular circumstances, the Tribunal finds that the applicant has a well-founded fear of persecution for reason of his membership of a particular social group, namely homosexual men living with HIV, in Nepal. He therefore falls within the scope of s.36(4).
Summary
In sum, the Tribunal is satisfied that the applicant has a well-founded fear of persecution within the meaning of s.5J, based on his membership of two particular social groups (male homosexuals in India, and male homosexuals in India living with HIV). It finds that he is outside his country of nationality, India, and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself of the protection of that country. He is therefore a refugee within the meaning of s.5H. The Tribunal is also satisfied that although the applicant appears to have safe third country protection in Nepal, within the meaning of s.36(3), he falls within the exception provided for in s.36(4).
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
James Silva
Member

ATTACHMENT A – RELEVANT LAW
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 B, immediately below.
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.
Extract from Migration Act 1958
5 (1) Interpretation
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.
…

United States Department of State • Bureau of Democracy, Human Rights and Labor, page 30,

[2021] AATA 2922

30 June 2021

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