1703154 (Refugee)

[2017] AATA 2144

1703154 (Refugee) [2017] AATA 2144 (1 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1703154

COUNTRY OF REFERENCE:                  India

MEMBER:Michael Hawkins

DATE:1 November 2017

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 November 2017 at 4:59pm

CATCHWORDS

Refugee – Protection visa – India – Religion – Catholic – Social group – Homosexual – Mental Health issues – Sex Discrimination – Delays in lodging protection visa application – Fears physically and psychologically harm – No real chance of persecution – Right to enter and reside in a third country

LEGISLATION

Migration Act 1958, ss 5(1), 5H(1)(a)-(b), 5J(1), 5J(2)-(6), 5K-LA, 36, 36(2)(a)-(c), 36(2A), 36(2B), 36(3)-(5A), 65, 499

Migration Regulations 1994, Schedule 2

CASES

BZADA v MIC and RRT [2013] FCA 1062

Kavun v MIMA [2000] FCA 370

MIEA v Guo (1997) 191 CLR 559

MIAC v MZYYL [2012] FCAFC 147

MIAC v SZQRB (2013) 210 FCR 505

MIMAC v SZRHU [2013] FCAFC 91

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

Subramaniam v MIMA (1998) VG310

SZATV v MIAC (2007) 233 CLR 18

SZFDV v MIAC (2007) 233 CLR 51

Velauther Selvadurai v MIEA and Anor [1994] FCA 1105

Zhang v RRT & Anor [1997] FCA 423

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] February 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of India, applied for the visa [in] December 2015. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant is a refugee as defined by section 5J(1) of the Act, and nor was he satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to India, there is a real risk the applicant will suffer significant harm.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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.

6. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

7. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Relocation

1. Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

State protection

1. Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.

Mandatory considerations

1. 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.

CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Background:

1. The applicant is a [age] man from the town of Kochi, province of Kerala, India.

2. The applicant is of the Christian faith, is of Indo-Portugese ethnicity and speaks Hindi, [language] and English.

3. The applicant is single.

4. The applicant’s parents and sister live in Kochi, in India.

5. The applicant completed his Secondary School and Senior School Certificates in Kerala, in [date] and [date] respectively.

6. The applicant completed a Bachelor [degree] at [a tertiary institution] from [date] to [date] inclusive.

7. He completed a [Diploma] at [a tertiary institution] in [date].

8. The applicant’s current employment status is unemployed. He has previously worked in various [roles] since being in Australia.

9. The applicant was granted a [Student] visa [in] June 2009 which was valid until [date] March 2011.

10. The applicant arrived in Australia [in] July 2009 under passport number [deleted] issued [in] 2008 and expiring [in] 2018.

11. The applicant applied for a [Further] Stay Student visa (onshore) [in] March 2011 which was granted [in] April 2011 which was valid until [date] August 2012.

12. The applicant applied for a [Student] visa [in] August 2012.

13. The applicant’s Student Visa application was refused [in] November 2012.

14. The applicant was unlawful from [December] 2012.

15. The applicant applied for a protection visa [in] December 2015.

16. The applicant attended an interview with the delegate. His representative provided a submission in support of his claims on the day prior to the hearing of the Tribunal and a post hearing submission on 19 October 2017.

Claims:

1. The applicant claims that he is a homosexual.

2. The applicant claims that if he returns to India he will have to hide his sexual orientation.

3. The applicant claims that if he returns to India he will be seriously physically and psychologically harmed.

4. The applicant claims that he will not be able to get a job that reflects his level of training because of his sexuality.

5. The applicant claims that he discovered he was gay when he was [age] years of age and was once beaten at school because of a suspicion he was gay but could not tell his family.

6. The applicant claims that he once attended a gay event in India.

7. The applicant claims that he has been in a gay relationship for some months.

8. The applicant claims he opened up about his sexuality after his student visa application was refused, and he became part of the gay community in [Australian City 1] and made lots of friends.

9. The applicant claims that if his family found out he was homosexual, he would be taken to a mental health facility for treatment or to a catholic retreat for an exorcism. He claims his parents are strict Catholics and do not believe that homosexuality is real.

10. The applicant claims that if his extended family found out he was gay, he would be disowned.

11. The applicant claims that being gay is a crime in India and not socially accepted.

12. The applicant claims that if he returned to India and hid his sexual orientation he would become depressed and commit suicide.

13. The applicant claims that the police will not protect gay men.

14. The applicant claims that he cannot relocate without a family support network.

Evidence:

1. The Tribunal has before it a range of material, including, relevantly:

§The applicant’s protection visa application form completed and signed on [date] December 2015, lodged on [date] December 2015 (“visa application”);

§The applicant’s identity documents being certified copy of a passport;

§The protection visa decision record (‘delegate’s decision record’) of [date] February 2017;

§The review application form which included a copy of the delegate’s decision record;

§The applicant’s  representative’s submissions dated 24 September 2017 and 19 October 2017;

§Country information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on India, published on 15 July 2015 and Country Information Report, Nepal, dated 21 April 2016.

Country of reference / receiving country

1. The applicant claims to be an Indian national. Based on the copy of his passport provided to the Department of Immigration and Border Security (The Department) by the applicant, the Tribunal finds that India is his country of nationality and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

Hearing:

1. The applicant attended the hearing on 26 September 2017. He was accompanied by a friend, [Mr A].

2. The applicant was represented in relation to the review by a representative of his registered migration agent.

3. The applicant noted that the applicant intended to have a witness contacted by telephone during the hearing. The witness was [the] applicant’s cousin. The witness was the applicant’s first cousin, who moved from India to Australia about one year after the applicant. He resided in [City 2]. The applicant did not meet his cousin until three or four years after he arrived in Australia. The applicant stated that his cousin was aware that he was homosexual, and was now comfortable with that life choice. He would speak to how he believed the applicant’s family would react if they learned the applicant was gay.

4. The Tribunal attempted to contact the witness numerous times throughout the hearing, using both the Tribunal telephone and the applicant’s mobile phone. The witness did not answer the phone on any occasion. The Tribunal did note that the witness did take a call from the applicant during a break, whereby the applicant told the witness that the Tribunal would call him shortly. Notwithstanding this, the witness did not answer the call when made by the Tribunal some minutes later. The applicant commented that the witness may have then been at work.

   Claims

5. The Tribunal asked the applicant whether the statement and application forms were written and prepared by the applicant. He said they were. The applicant confirmed that he had signed the application forms and statement.

6. The Tribunal discussed with the applicant some of his background. The Tribunal asked the applicant whether his family knew that he was gay. He said he wasn’t sure. He said they could know, but that they might be in denial. He spoke of an example of someone his parents knew from their church. A man they knew disclosed that he was gay and remained a churchgoer. His parents were very bitter about this. When asked what “bitter” meant, the applicant explained that his parents thought it was unacceptable, in the sense that it was against the bible. The family also believed that the marriage of Elton John was unacceptable.

7. The Tribunal asked the applicant what it was that he feared in India. The applicant stated that coming out as gay is difficult. He had been to a gay bar in India, but had to flee because of the fear of arrest. He fears that if his family finds out, he may be forcibly taken to a mental institution. He said he had been threatened with the mental institution in the past. He later added that he feared being killed by anti-gay activists in India. The Tribunal noted that the applicant hadn’t previously mentioned or claimed this. The applicant gave no response to this, being very evasive of the question itself.

8. The applicant then admitted that his older sister already knows he is gay. The Tribunal asked was it not likely that she would have told his parents. He said he didn’t know. His sister is [older] than him. It was she who threatened him with the mental institution. Asked when that was, the applicant replied that she last threatened him with that when he was [age] years old.

9. The applicant stated that he was [age] years old when he arrived in Australia. His parents had funded him to travel to Australia to get an education.

10. The Tribunal asked the applicant whether he worked. He said he didn’t. Asked how he survived, he said his friends supported him.

11. The Tribunal proceeded to summarise all of the circumstances and claims set out in the applicant’s undated and unsigned statement that was referenced in his protection visa application. The Tribunal read specifically a summary of the claims set out in paragraphs 30 – 43 above. It asked the applicant if the claims read out to him were accurate. He agreed they were.

12. The Tribunal noted that the applicant had been unlawful for a period of three years from the date his visa expired to the date he filed his protection visa application. The applicant confirmed he knew he was breaking the law.

13. The applicant told the Tribunal that his relationship referenced in his application and before the delegate with [Mr B], had been terminated. [Mr B] had broken off the relationship when he learned that the applicant had failed in his visa application. He said that he could no longer afford to keep the applicant.

14. The applicant said he had no present long term partner, but many liaisons.

15. The Tribunal noted that without the evidence of [Mr B], did the applicant have any evidence that he was actually gay. The applicant offered that he had an explicit video of the two of them – the Tribunal stating that it was probably not necessary to go there. The Tribunal asked whether the applicant’s witness, [Mr A] could offer any evidence in support.

16. [Mr A] was a very impressive witness. He said the applicant had been living in his share house for 9 to 10 months. There were three people in total in the house. He said that he and his neighbours were complaining about the frequency of male traffic to the house to see the applicant.

17. [Mr A] stated that he did provide the applicant with free rent and food and support. He said he liked the applicant, as many people did. He said that he had a big house and was in a position to assist the applicant.

18. The applicant stated that his friends did support him, with one paying for him to see a counsellor.

19. [Mr A] said that when the applicant was on top of things, he was very generous to his friends. As the applicant was now in a time of need, his friends were supportive of him.

20. The applicant stated that he went to many of the gay bars, and noted that most people just wanted fun, but not commitment.

21. The Tribunal discussed with the applicant why it took him three years to make a protection visa application, from the time his Student visa application was refused. He said that he didn’t know about protection visas. The Tribunal noted that he said that he was a member of the gay community and had made many friends. Surely one of those community members would have told him something about protection visas. He replied that no-one knew anything about them. The Tribunal asked the applicant about his friends – was he active within the Indian community. The applicant said he was not. Most of his friends were back packers.

22. The representative spoke up saying that the Tribunal was unreasonable in having asked the same question three times already. The Tribunal stated that it kept asking the question, and would ask it again, until it got an answer from the applicant as to why he had not made his claims until three years after he had become unlawful. The representative stated that the applicant had said that his friends knew nothing about protection visas. The Tribunal asked the representative was it his submission that back packers didn’t know anything about Australian visa processes? The representative said that apparently the ones that the applicant knew did not. The Tribunal explained that without a reasonable or plausible explanation, it might draw an inference as to the applicant’s credibility and whether the applicant’s claims were genuine.

23. The applicant then stated that people had mentioned protection visas to him, but he didn’t know what to do. He approached [a refugee legal centre] in about September 2015, and said that it took about three or four months to prepare the application. He stated that he wasn’t confident to complete the forms on his own and he couldn’t afford a lawyer.

1. The applicant also stated that he was depressed at the time and wasn’t functioning. The Tribunal referred to his claims that stated that after he had come out, he was happy and made lots of friends. The applicant replied that he was depressed before he came out, but then came out and made lots of friends, but then sank back into a depression again later. The Tribunal noted that there was no medical evidence of him having any depression. The representative intervened and said he thought he had seen an email about medical evidence. The Tribunal replied that it had not.

2. The Tribunal referred to the applicant’s claims.

3. He claimed he was homosexual. The Tribunal said it would reflect on the evidence it had heard.

4. The applicant stated that he would have to hide his sexual orientation if he returned to India. The Tribunal asked why that was. He said that he feared what the community thought and his family.

5. He claimed that if he returned to India he would be seriously physically injured and psychologically harmed. The Tribunal asked why that would be the case. The applicant replied that he would be arrested, bullied and put in jail and would be assaulted. The Tribunal noted that this had not happened to the applicant, how did he draw that conclusion. He stated that that was what he heard about what happens when someone is in jail.

6. [Mr A] then intervened and gave an account of a friend of his who was educated with him in [another country], but who came from India. He returned to India after attending [a certain school] and was set upon and beaten.

7. [Mr A] also stated that in India a son must do what his father says. He stated that this will put the applicant in a difficult position.

8. The applicant had claimed that due to his sexuality, he will not be able to get a job that reflects his level of training. The Tribunal noted this was a subjective concern, as it was not aware of any country information that supported that proposition. The applicant stated that even in Australia, [a] workmate sexually harassed him because he was gay.

9. The applicant claimed he discovered he was gay when he was [age] years old and was beaten once at school on suspicion of being gay. The applicant confirmed that this had happened just once because his classmates thought he was a “homo”.

10. He stated he had attended a gay event in India once. It was at a bar, and attended by a lot of people who were gay. He stated that everyone at the event was concerned about the police attending as they believed someone who didn’t like gay people had alerted the police to their presence at the bar. The party dispersed. But he had a fear of being caught by the police while he was there.

11. He had claimed that he had been in a relationship for some months. The applicant stated that relationship had since ended.

12. The applicant had claimed that he opened up about his sexuality after his student visa application was refused and he became part of the gay community and made lots of friends.

13. The applicant argued in the hearing that this claim was not accurate, notwithstanding that at the beginning of the hearing he said the claims were accurate. He stated that he came out in 2010. But the Tribunal notes paragraph 5 of his statement that said “After my application for a further student visa was refused I did not know what to do and was in an unstable state of mind. At the same time, I was beginning to be open about my sexuality and relishing being able to express it in a safe and accepting environment. I became a part of the gay community in [Australian City 1] and made a lot of friends”. The applicant responded by stating he came out in 2010.

14. The applicant claimed that his parents are strict Catholics. He stated that they go to church every day.

15. The applicant and his representative confirmed that the applicant was not making a protection claim by virtue of him being a Catholic. But the representative did launch into an impassioned argument that the delegate had erred in questioning the applicant about his own religious beliefs. The Tribunal noted the submission.

16. The applicant claimed that if his family found out he was gay, he would be taken to a mental institution for treatment or to a Catholic retreat for an exorcism.

17. The Tribunal discussed with the applicant the plausibility of this claim. The Tribunal asked whether the applicant still believed that his parents could send a [age] year old grown man, who has been abroad for 8 years, and who was articulate, intelligent, and well-educated off to an institution. Did he believe they could manhandle him off to that institution because he was gay and would the institution take him in and keep him there?

18. The applicant spoke of the dishonour and shame he would bring upon his family if they found out about him being gay. The Tribunal noted that it was not certain that his family didn’t already know he was gay.

19. The Tribunal asked the applicant if he still feared being sent to the Catholic retreat. He spoke of the Retreat Centre which performed exorcisms on people. He didn’t know where it was. It did not do any physical harm to people, but the applicant claimed it would do him mental harm.

20. The Tribunal discussed with the applicant his claim that his extended family would disown him if they found out he was gay. The Tribunal confirmed this did not mean they would be violent to him.

21. The Tribunal noted that the applicant had already spoken of one cousin, who now lived in Australia, and who knew he was gay, but who had accepted the fact, and had now offered to be a witness for him.

22. The Tribunal attempted to call the witness but he did not answer the phone. Several attempts were made. The applicant rang him on his mobile phone and the Tribunal was prepared to take the call on the applicant’s mobile, but the witness again did not answer. The applicant believed the witness must have been at work.

23. The Tribunal asked the applicant what he believed the witness would tell the Tribunal. He said that the witness would say that his (the witness’) family and other cousins would disown him, that his own parents would disown him and that the applicant would be under threat of arrest by the police.

24. The Tribunal discussed country information with the applicant.[1]

    [1] DFAT Country Report, India

25. India has an active and increasingly visible lesbian, gay, bisexual, transgender, and intersex (LGBTI) community. However, homosexuality remains a social taboo and discrimination on the grounds of sexual orientation is prevalent in India, particularly in rural areas. Credible non-government organisations claim that it would be extremely difficult in practice to live in a publicly acknowledged homosexual relationship, and the overwhelming majority of gay people in India prefer to keep their sexuality a private matter. There is considerable familial and societal pressure on gay people to enter into a heterosexual marriage.

26. Section 377 of the Indian Penal Code makes it a crime to conduct ‘carnal intercourse against the order of nature’, punishable by imprisonment for life, or for up to ten years with a fine. This section has been the subject of numerous court cases in recent years, most recently by the Supreme Court in December 2013, which reinstated the offence. Since the 2013 Supreme Court ruling, a number of arrests have occurred under Section 377. India’s LGBTI community has argued that even if legal punishments are not upheld by the judiciary, the existence of Section 377 can be used as a means of harassment. The Asian Age[2] articulates that arrests pursuant to s377 are linked with cases of sexual assault and public indecency. There has been no information found indicating that any arrests have led to convictions under s377. There is, according to Human Rights Watch[3], currently a Bill before Parliament for the decriminalization of s377 that has popular support.

    [2] Sec 377: The battle for identity, Asian Age, R=The, 2 February 2016

    [3] Human Rights Watch World Report 2017, HRW, 13 January 2017, p321

27. Each state and union territory maintains separate police forces which, according to the National Crime Records Bureau (NCRB), had a combined strength in 2013 of 1.7 million officers of all ranks (although this varied considerably from state to state). In general, police in India have broad powers of arrest, including arrest without a warrant where they have a ‘reasonable suspicion’ of a connection to criminal offenses. To report a crime, citizens may lodge a First Information Report (FIR) at a police station. The Supreme Court has recognised the difficulty faced by some victims of crime in having an FIR registered, and has directed that the registration of FIRs should be mandatory for cognisable offences – those serious crimes for which police do not require a warrant to arrest a suspect.

28. The Tribunal discussed the articles that the applicant’s representative had submitted. The Tribunal noted that the articles all referred to homosexuals who had been jailed not so much because they were gay, but because they had been charged with sexual assaults and paedophilia. These articles were consistent with country information.

29. The representative suggested that people might make a false claim that the applicant was also a rapist or paedophile to have him charged. The Tribunal noted that people could do that to anyone, whether gay or not. He cited an example of the police actually raping two males because they were gay, but did not provide the source.

30. The Tribunal confirmed with the representative that he was submitting that the applicant could not receive state protection because he believed the police would be actors in the persecution. The representative agreed.

31. The Tribunal discussed the applicant’s claim that if he had to hide his sexual orientation, he would become depressed and commit suicide. The Tribunal asked the applicant whether he had had suicidal thoughts in the past. He said he had, when he was in India. The Tribunal confirmed no recent issues, not even when he was depressed. The Tribunal also noted the absence of any medical records at all attesting to depression or his state of mind.

32. The Tribunal discussed with the applicant his claim that that he could not relocate without a family network. The Tribunal noted that the applicant had moved to Australia on his own without a family support network. It confirmed that his cousin moved over a year later but that he moved to [City 2]and the applicant didn’t actually meet him until three or four years after he had moved to Australia. The applicant stated that when he moved over, he was receiving financial support from his family, but he wasn’t receiving that now.

33. The Tribunal discussed with the applicant that his reason for coming to Australia was to advance his education and that is why he had sought a student visa and then a further student visa. The applicant stated that his homosexuality was the reason behind his student visas.

34. The Tribunal discussed the prospects of relocation again. It asked the applicant whether he had considered relocating to Mumbai, which was a very cosmopolitan city and which was becoming more accepting of homosexuality and the LGBTI community.

35. He said that even in Mumbai it will take a long time to accept that it is OK to be gay.

36. The Tribunal discussed a summary of the following country information about relocating within India.

37. There is a very high rate of internal mobility within India. While India’s internal migration flows are substantial, they are difficult to enumerate. Migration data from the 2011 Census has been collected, but not yet released. The 2001 Census stated that there were around 307 million internal migrants in India, defining as a migrant anyone who lived in a place different to their place of birth or place of last residence. This figure represents approximately 30 per cent of India’s total population. Two hundred million of these internal migrants were long-term migrants who had permanently settled elsewhere. However, this definition included many people who had moved over very short distances within the same district, and likely missed a significant number of seasonal migrants, who had as much of a chance of being counted in their place of birth or last residence as they did at their new destination. In 2007-08, a National Sample Survey (NSS) conducted by the Ministry of Statistics and Program Information defined internal migrants as those who had stayed for six months or longer in a place different from their prior ‘usual place of residence’, thus excluding temporary, seasonal and circular migrants. The NSS counted 15 million short-term migrants, a figure well below the generally accepted level produced by other analysts.

38. According to the 2001 Census, the great majority of female internal migrants – 70 per cent – reported moving for marriage. However for males, internal migration was more often in search of employment  opportunities. Internal migration has played an essential role in India’s economic transformation by helping address labour shortages. Many who move for work are recruited through middlemen who may be from the same place of origin. Internal migration has seen the steady movement of people, especially from lower socio-economic backgrounds, from rural areas to India’s rapidly growing cities. While the 2001 Census reported that only 13 per cent of internal migrants had moved between states, this had nevertheless resulted in the establishment of many sizeable communities of ethnic groups outside of their home states, particularly in large urban centres like Delhi, Mumbai and Bengaluru (Bangalore). The 2007-08 NSS measured the migration rate in urban areas at 35 per cent.

39. Only a very small number of internal migrants – 0.5 per cent – reported in the 2001 Census that their reason for migrating within India was because of a ‘social or political problem’. This definition includes those who moved due to riots, terrorism, political problems or the prevailing law and order situation. However, this still implies that as of 2001, more than 1.5 million people had relocated to escape social or political problems.

40. The applicant said that his family could track him down in Mumbai. The Tribunal noted the population of Mumbai and asked how they could find him. The Tribunal noted that his family hadn’t tracked him down to Australia. The applicant said that was because it was a different country.

    Consideration of the application of subsections 36(3), (4), (5) and (5A) of the Act.

41. The Tribunal then referred to Nepal, it noting that the representative had referenced Nepal in his criticism of the decision of the delegate. It seemed that the representative was critical of the delegate for his “non-decision for the PA to enter into Nepal”.

42. The Tribunal discussed with the applicant the provisions of the Act relating to circumstances where an applicant may avail himself of a right to enter and live in another country.

43. Subsection 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. They provide as follows:

    Protection obligations

    (3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

    (4) However, subsection (3) does not apply in relation to a country in respect of which:

    (a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

    (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

    (5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that

    (a) the country will return the non-citizen to another country; and

    (b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

    (5A) Also, subsection (3) does not apply in relation to a country if:

    (a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and

    (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.

44. This means that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s.36(4), (5) or (5A) are satisfied, in which case the s.36(3) preclusion will not apply.

45. The Full Federal Court in MIMAC vSZRHU [2013] FCAFC 91, has held that the term ‘right’ in s.36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.

46. In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s.36(3) does not apply because of the operation of s.36(4), (5) or (5A).

    Does the applicant have the right to enter and reside in Nepal: s.36(4)

47. Under s.36(3) of the Act, as set out above, Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail themselves of a right to enter and reside in a third country, unless the conditions prescribed in either s.36(4), (5) or (5A) are satisfied.

48. In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s.36(3) does not apply because of the operation of s.36(4), (5) or (5A).

49. The Tribunal raised the issue at hearing that it may appear the applicant had a presently existing right to enter and reside in a third country, Nepal, where there may not be a well-founded fear of persecution or real risk of significant harm, or a well-founded fear that Nepal may return him to India.    

50. There exists a bilateral treaty between India and Nepal, known as the Indo-Nepal Treaty of Peace and Friendship of 1950, that allows Indian and Nepali nationals to enter each country without the need for a visa or other permission.  This treaty was considered in the case of SZRHU in which the Full Federal Court directed that the Tribunal should pay regard to the actual terms of the Treaty, and evaluate whether, in combination with the terms of the Treaty, the administrative arrangements for entry by Nepalese citizens at the Indian border (or any other arrangements with respect to entry identified by it) satisfy the test of a ‘liberty, permission or privilege lawfully given’, to enter and reside in the country. 

51. Article 7 of that Treaty provides that Indian nationals such as the applicant can reside in Nepal:

    The Governments of India and Nepal agree to grant, on a reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature.[4]

    [4] Accessed at the Government of India Ministry of External Affairs website; type="1">

52. Available information indicates that the administrative arrangements relating to the entry of Indian nationals into Nepal allow them to enter Nepal without seeking a visa or other permission and that these arrangements pertain under the provision of the treaty.[5]  According to a 2013 article by Professor of Economics and Executive Director of the Centre for Economic and Technical Studies in Nepal Hari Bansh Jha, ‘there is no need of passport or visa formalities among the border inhabitants or other nationals of Nepal and India.  The nationals of one country can enter into the other country through the border not merely through the checkpoints but through any point’.[6]  This article states that while there are 22 official checkpoints along the Nepal-India border, citizens of Nepal and India ‘can cross over the border without any restriction from any point’.  Nationals of other countries ‘require both an entry and exit visa and they must cross over the border through six immigration points’.  The article also comments on the ability of Nepalese and Indian citizens to escape from one country to the other, stating that when ‘there is any political upheaval in one country, people easily escape by crossing over the border’.  There is no evidence before the Tribunal that indicated the existence of practical barriers for Indian citizens being able to travel to and enter Nepal.[7]  

    [5]   See ‘Information for Indian Citizens’, Nepal Immigration, available at   Jah, H 2013, ‘Nepal’s Border Relations with India and China’, Eurasia Border Review, Spring, p. 63, available at

    [7]   Searches conducted on CISNET, open source search engines, human rights organisations, non‑government organisations, international news outlets and academic journals. 

53. The Tribunal has taken into account relevant immigration laws in Nepal with regard to the entry rights of non-citizens, including the Immigration Act 1992, the Immigration Regulations 1994 and including the Immigration Procedures 2008, as those laws are published on the website of the Department of Immigration, Nepal, as the ‘Immigration Manual’.[8]  Relevantly, the Immigration Procedures 2008 prescribe in Paragraph 8.4 the following requirements for the entry into Nepal of Indian citizens:

    [8]   See Nepal Government, Immigration Manual, available at

    8.4:     To allow Indian citizens to make travel on the basis of the following document:

    ·Passport, or

    ·Driving license with photograph, or

    ·Identity card with photograph issued by a governmental body, or

    ·Ration card with photograph, or

    ·Voter identity card with photograph, or

    ·Registration certificate issued by the Indian embassy to the Indian citizen staying in Nepal, or

    ·Ad hoc/temporary identity card issued by the Indian embassy to the Indian citizen in the event of exigency, or

    ·Document with photograph and setting out identity, issued by the sub-divisional magistrate or authority there above. 

54. This information is replicated on Nepal’s Department of Immigration website.[9]

    [9]   See ‘Information for Indian Citizens’, Nepal Immigration, available at >

    The website of the Embassy of Nepal in New Delhi provides information about the various visa types issued by the Embassy for entry to Nepal of non-Nepalese nationals, and, provides the following information for ‘Indian nationals’ entering Nepal by air at Tribhuvan International Airport, Kathmandu:[10]

    Visa for Indian Nationals:

    Effective from 1st October 2000 an Indian citizen over the age of 10 years travelling between India and Nepal by air would have to keep in his possession any of the following documents to establish his/her identity as an Indian citizen:

    ·Valid Indian passport; or

    ·Photo identity card issued by the Government of India, or any State Government or Union Territory Administration in India, or the Election Commission of India; or

    ·Emergency certificate issued by the Embassy of India in Nepal. 

    Does the applicant face a real chance of persecution or real risk of significant harm in Nepal:  s.36(4)

    [10]        See Embassy of Nepal, New Delhi, ‘Visa Information’ available at   

55. The Tribunal must, if finding that s.36(3) applies, determine that s.36(4) does not apply. That is, the applicant will still be owed protection in Australia if he has a well-founded fear of persecution or faces a real risk of significant harm in Nepal.

56. The applicant’s sister has long been aware of his sexual orientation, but has never harmed him.  There is no claim or evidence she has engaged anyone to find him, harm him, or otherwise made credible threats of harm to him in Australia.  There is a possibility, even likelihood that his parents are also aware of his sexual orientation, but they too have never harmed him.  There is no claim or evidence they have engaged anyone to find him, harm him, or otherwise made credible threats of harm to him in Australia. The Tribunal finds any suggestion they will engage someone to track him down in Nepal as mere speculation.  The Tribunal acknowledges Nepal is geographically closer to India than Australia, however it is a country of 28.9 million people with 1.183 million people living in the capital Kathmandu.[11]   

    [11] DFAT Country Information Report – Nepal (21 April 2016) at 2.6 and 2.8

57. The Tribunal has considered a variety of country reports on Nepal, including those referred to by the applicant’s representative. DFAT provides the following information on the treatment of LGBTI persons in Nepal:

58. The Government of Nepal does not recognise de facto and same sex partners but the new constitution has granted the right to equality to sexual minorities and allows the state to pass laws to protect, empower and advance the rights of sexual minorities. The Government has yet to implement Supreme Court orders from 2007 and 2008 abolishing all laws that discriminate against LGBTI (lesbian, gay, bisexual, transgender and intersex) people and to recognise same-sex marriage; as a result, same sex sexual activity can still technically be prosecuted however DFAT understands this law is not currently being implemented. Citizens can now obtain third-gender identity documents. Gay pride parades and transgender beauty contests have taken place in Kathmandu. In April 2014 the Ministry of Women, Children and Social Welfare assigned a focal person for sexual and gender minorities.

59. According to Human Rights Watch, threats and violent attacks on LGBTI rights activists have occurred. In February 2013, four transgender women were arrested under the Public Offense Act, a vaguely worded law that can result in up to 25 days in detention and a fine amounting to more than US$300. Given its vagueness, there are reports that the Public Offense Act is used by security forces to target people based on their sexual orientation and gender identity. DFAT is also aware of reports alleging harassment of members of the Blue Diamond Society, the national LGBTI umbrella organisation. According to Human Rights Watch, the government launched an investigation into the organisation for alleged corruption, despite the fact it had passed third party audits and inspections.

60. DFAT assesses that LGBTI people can face harassment by the authorities and other citizens, particularly in rural areas. General community attitudes towards same sex relationships remain negative. Nonetheless, there are examples of LGBTI people being able to be open with their families, communities and employers and to live without discrimination, although their gender, caste and ethnicity can also play a role determining the extent to which this is possible. [12]

    [12] At 3.60 to 3.62

61. The US Department of State reported the following on the situation for LGBTI persons in Nepal:

62. No laws criminalize same-sex sexual activity, and lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons actively advocated for their rights. The new constitution contains provisions outlining protections for LGBTI persons, but LGBTI activists continued to press for further legislation increasing protections for gender and sexual minorities.

63. In 2007 the Supreme Court directed the government to enact laws to protect LGBTI persons’ fundamental rights, enable third-gender citizenship, and amend laws that were sexually discriminatory. Implementation of the 2007 decision was initially slow, but in 2013 the Home Ministry started issuing citizenship certificates with an “other” gender category for those applying for citizenship. During the year the Home Ministry starting issuing passports with the “other” designation. The new constitution enshrines the right of citizens to choose their gender identity on citizenship documents, according to human rights lawyers. For the first time, the Ministry of Women, Children, and Social Welfare allocated a budget, 300,000 rupees ($3,000), for LGBTI-focused programs, in particular for raising awareness. According to local LGBTI advocacy groups, the government did not provide equal opportunity to LGBTI persons in education, health care, or employment (see section 7.d.).

64. According to local LGBTI rights NGOs, harassment and abuse of LGBTI persons by private citizens and government officials declined during the year, especially in urban areas, although incidents still occurred. Transgender individuals reportedly faced stigma in displaced persons camps following the April 25 earthquake.

65. LGBTI rights groups had divergent assessments of whether police harassment of gender and sexual minorities increased during the year. According to the local NGO Blue Diamond Society, police targeted transgender sex workers more than in 2014, subjecting them to as much as 25 days’ detention without charge under the Public Offense Act. The Nepal Police HRC documented one allegation of harassment of LGBTI persons by police, a decline from 2014. The HRC confirmed that some low-level harassment occurred because many citizens held negative views of LGBTI persons, and the Nepal Police were not immune to such social prejudices. The HRC continued to conduct LGBTI rights training and worked with LGBTI NGOs to minimize and prevent harassment.[13]

    [13] US Department of State Nepal 2015 Human Rights Report (May 2016)

66. A 2014 joint United Nations Development Program (UNDP) and United States Agency for International Development (USAID) report notes that Nepalese society is generally ‘tolerant’ towards diverse sexual orientations and gender identities (SOGI) partly due to two factors; historical prevalence and religious acceptance:

67. The context for LGBT advocacy in Nepal is complex, set in a tumultuous political environment and a complex society. Tolerance of diverse sexual orientations or gender identities (SOGI), i.e. being lesbian, gay, bisexual or transgender, can be perceived to be high. The visible presence of individuals of diverse genders and sexualities in Nepal goes back centuries and has been recorded in ancient religious texts. This is seen as contributing to tolerance. The main religions of Nepal, Hinduism and Buddhism, encompassing close to 95 precent of the population, are not seen as homophobic. The country lacks the violent religious extremism of some other countries in the region. The frequent gender segregation of society allows for a culture where friendship and physical contact between men is possible, and can enable male-to-male sexual activity (even though this may be related to sexual opportunity instead of sexual orientation or gender identity). Finally, in the last two decades there have been extraordinary political victories for LGBT advocacy, most prominently a Supreme Court ruling in December 2007 that promoted the human rights of LGBT people including anti-discrimination, same-sex marriage and the explicit recognition of transgender people.[14]

    Will Nepal return the applicant to India: s.36(5) and (5A)

    [14] United Nations Development Program and United States Agency for International Development 2014, Being LGBT in Asia: Nepal Country Report: A Participatory Review and Analysis of the Legal and Social Environment for Lesbian, Gay, Bisexual and Transgender (LGBT) Persons and Civil Society, 25 February, p.7 <

68. The Tribunal has considered whether s.36(5) or (5A) apply, such that s.36(3) does not apply. That is whether the applicant has a well-founded fear that Nepal will return him to India.

69. There is no evidence before the Tribunal that Indian citizens residing in Nepal, under the terms and administrative arrangements relevant to the Indo-Nepal Treaty of Peace and Friendship of 1950, have been returned without reason. 

    Post hearing submission

70. It was apparent to the Tribunal that the representative appearing before the Tribunal on behalf of the registered agent was not in a position to discuss the application of subsections 36(3), (4), (5) and (5A) of the Act during the hearing. Accordingly, the Tribunal invited the representative to make a submission to the Tribunal in writing within 14 days of the hearing. 

71. Upon prompting by the Tribunal, the representative offered a submission to the Tribunal on 19 October 2017.

72. The representative reiterated that the applicant steadfastly claimed he is a member of the LGBTI community and reminded the Tribunal that the delegate had accepted this. He provided photos from the applicant’s Facebook account evidencing the applicant in intimate contact with male friends.

73. The representative provided a letter of support from the cousin of the applicant who the Tribunal was unable to contact during the hearing. He also provided an additional letter from a friend and well-wisher of the applicant.

74. The representative restated that the applicant’s sister is aware that the applicant is gay and submitted that “it is not far-fetched to claim that because a family member knows then quite likely she would tell the parents”.

75. The representative noted the Tribunal questions of the applicant as to the delay in making his protection claims. He stated that the applicant could make his claims at any time – there was no time limit. The representative submitted that for the Tribunal to have a personal view different to the legislation enlivens bias and hence denial of procedural fairness.

76. The representative submitted that LGBTI people were discriminated against in India when applying for government jobs and more “professional” type employment.

77. The representative provided evidence of the applicant’s anxiety and depression. The Tribunal noted that the evidence was a medical report from a general practitioner who saw the client on one occasion [in] October 2017, a date which was after the hearing.

78. The representative submitted that relocation to Mumbai does not change the culture of police, family or society. The representative urged the Tribunal to consider the impact of social media. He said that word would spread to his parents in particular so it would be difficult for the applicant to hide in India.

79. The representative responded to the discussion in the hearing about the possible right of the applicant to enter and reside in Nepal. It is useful to include the representative’s submission in this respect in full:

    In “BEING LGBT IN ASIA” Nepal Country Report UNDP, USAID (2014); Bangkok it is said that Nepal lacks the violent religious extremism against LGBT people of some other countries in the region. It further states: “Political advances have not necessarily translated into the daily lives of LGBT individuals who may experience discrimination and violence in all aspects of their lives – in employment, family, health care and education. The government bureaucracy may not be interested or may not have the capacity to implement policies and laws that can benefit LGBT people. In a country blighted by extreme poverty, the human rights of LGBT individuals may take less priority than issues perceived to be more urgent such as fulfilling basic needs including having enough food and adequate shelter. In fact, human rights for any Nepali may be difficult to prioritize in the face of widespread and crushing poverty”. It is doubtful in this context whether sending someone to Nepal to extreme poverty passes the public interest test.

Assessment of Claims and evidence, and findings:

1. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

2. The Tribunal also notes that the recent decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:

   As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.

3. The Tribunal has considered carefully the applicant’s claims for a protection visa, both individually and cumulatively and makes the findings set out herein.

4. The Tribunal has some concerns about the applicant’s credibility and the genuineness of his claims. It has concerns about the plausibility of the explanations offered in response to the Tribunal’s questions.

5. The Tribunal discussed at length the reasons for the delay in the applicant making protection claims. It noted to the applicant that he had been in Australia unlawfully since [December] 2012. The applicant knew that he was in Australia unlawfully, and as he said to the delegate, he felt bad about that. But he claimed that he didn’t know about protection visas. The Tribunal discussed that response with him, that he was a member of the gay community, that he had many friends, that surely someone must have mentioned protection visas to him. He said initially that they had not. The representative had then intervened to argue that the Tribunal was being unreasonable in asking this question three times. The applicant said that his friends were backpackers. The Tribunal discussed with him that surely one of his back packer friends would have mentioned protection visas at some stage during the three years he was unlawful. He then sated that people had mentioned protection visas to him, but he didn’t know what to do. He said he had approached [a refugee legal centre], but couldn’t afford a lawyer. The Tribunal stated that it might have concerns about the genuineness of his claims in the absence of an explanation as to why he was unlawful for three years and then made a protection claim.

1. The Tribunal also noted the post hearing submission of the representative in relation to possible bias and denial of procedural fairness.

2. The Tribunal has had regard to the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:

   The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution….”

3. A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.

4. The Tribunal accepts that the applicant is gay as claimed. It accepts that he may have verbally taunted and that he may have been beaten at school once for appearing to be gay. It accepts that he most likely attended one gay event in India. It accepts that he was in a long term relationship until recently. It accepts that he opened up about his sexuality after his student visa was refused at the end of 2012.

5. The applicant made a number of claims contingent on if his family found out he was gay – he would be taken to a mental health facility, a catholic retreat for an exorcism, or that his extended family would disown him. He would have to hide his sexual orientation.

6. The Tribunal is troubled by this contingency. The applicant stated that his sister knew he was gay when he was [age] years of age. His representative reiterated that the applicant’s sister is aware of his homosexuality. When questioned, the applicant said he wasn’t sure whether his family knew already that he was gay. He said they could know and were in denial. The Tribunal discussed with the applicant whether his sister would not have told them.

7. The applicant said that it was only his sister who had threatened him with a mental institution – a threat made when he was [age] years of age. She was [his] elder. Despite this knowledge, and despite this apparent threat, the applicant remained in India for a further four years before he moved to Australia pursuant to a student visa, funded by his parents. His parents had made no threat to him during that four years, had made no threat to him before that time and have made no threat to him since he has been in Australia.

8. The applicant asked his cousin to be a witness for him and the cousin kindly provided a written letter to the Tribunal after it was unable to make contact with him during the hearing. The cousin confirmed he knew the applicant’s parents. He did not confirm that he actually knew the applicant was gay, but it can be implied from his comments about homosexuality in India. He confirmed that the applicant’s parents are devout practicing Catholics and would try to cure the applicant by forcing him to undergo psychological treatment or by performing an exorcism, or both, before handing him over to the authorities. The Tribunal was unable to test his assertion that the parents would hand the applicant over to the authorities and was unable to discuss with him whether the applicant’s family or extended family were already aware that the applicant was gay. Accordingly, the Tribunal has given this letter no weight.

9. The representative also obtained a letter from a friend who was also a mental health support worker. This friend confirmed that the applicant was gay by reference to knowledge of men he has met who the applicant was dating. But in relation to anxiety and depression, and pressure from his parents about his university attendance or being gay, the friend has used words to the effect that such was “reported” to him by the applicant. Accordingly, the Tribunal gives this letter no weight except to accept that it corroborates that the applicant is gay and that the applicant had told him that he was anxious and depressed about his university studies and the pressure his parents were putting on him.

10. A third letter is from a friend who makes an observation that the applicant has struggled with his sexuality during the time (six years) that this friend has known him. As this letter appears to contradict the applicant’s own evidence that he was happy and made lots of friends after he came out, the Tribunal gives this letter little weight.

11. The representative provided to the Tribunal photographs purporting to corroborate the applicant’s claim that he is gay. The photos were taken from the applicant’s Facebook account. The representative also asked the Tribunal, though not in this context, to consider the impact of social media, particularly in India where people are more interconnected.

12. The Tribunal does not accept that the applicant fears having to hide his sexuality in India if he is freely using social media to celebrate his sexuality in Australia. It is a worldwide web and Indian folk living in Australia may well communicate the message to friends and relatives in India.

13. When taking into account the applicant’s use of social media, the fact that his sister has known of him being gay since he was [age], the applicant’s evidence that he doesn’t know whether his parents may already be aware, the fact that the only threat he has ever received came from his sister when he was [age], his evidence that he hasn’t actually received any threat from his parents or family, that his cousin in Australia is apparently supportive of his lifestyle, that the applicant has not been secretive about his sexuality, the Tribunal does not accept that the applicant fears his parents and family finding out that he is gay and does not fear any repercussions from them knowing he is gay.

14. The Tribunal discussed at length the plausibility of the applicant’s claim that his family would or could take a grown [man], who has lived abroad for 8 years, who was educated, articulate and intelligent, off to an institution, and whether that institution would accept him. The representative provided an article about a Divine Mercy Retreat Center in Kudagama in Sri Lanka, noting that a minister at the Center had previously experienced a similar profound experience at a similar centre in Kerala (the applicant’s home town). The representative invited the Tribunal to regard the “healing services” referenced in the article as being akin to an “exorcism service, despite the article not referring to the word “exorcism” or “homosexuality” or anything similar anywhere within its text. The Tribunal does not accept that the applicant fears being sent to any such retreat or institution by his parents.

15. The applicant, during the hearing, stated that he fears being killed by anti-gay activists. The applicant had not made such a written claim. When asked to expand on this claim, the applicant was not responsive. The Tribunal does not accept that the applicant fears being killed by anti-gay activists.

16. The applicant claimed during the hearing that he has been depressed and suffered from anxiety. The Tribunal asked whether he had felt suicidal and he replied that he did once when he was in India. He said that he also felt depressed in 2012, just before he came out about his sexuality. That coincided with the time he lost his student visa and one of his friends had alluded to the same in his support letter – that he had been depressed about his parents pressuring him and about university. The Tribunal noted there was no medical evidence in support of this claim. Post hearing, the representative provided a letter from a general practitioner that referred to a visit form the applicant [in] October 2017, which was post hearing. The letter was a report of information provided by means of questionnaire to the doctor by the applicant. Given its date, and the nature of the content as being reliant on information provided solely by the applicant on the basis of just that single visit, the Tribunal gives the report no weight.

17. The Tribunal had discussed with the applicant at some length how he felt during that end of 2012 period. The Tribunal specifically referenced the applicant’s written claims that he had felt depressed until he opened up about his sexuality, then he made lots of friends and was happy. The Tribunal noted the letter from his friend that reported that the applicant had told him about struggling with his university because he was anxious and depressed due to the pressures from family in India and difficulty with the content of the university curse.

18. The Tribunal does not accept that the applicant has felt depressed or anxious about his sexuality, but rather felt anxious and depressed about his university course, the pressure his parents (who were funding him) were putting him on, and ultimately, the loss of his student visa.

19. Given that the Tribunal does not accept that the applicant fears any harm from his parents or family, or anti-gay activists, the issue is whether he fears harm from society or the police as claimed. Does being a homosexual constitute a particular social group for the purposes of the Act?

20. The applicant claims that he will not get a job that reflects his level of training because of his sexuality. The applicant has not sought employment in India to test his claim. The Tribunal notes the Degree and Diploma the applicant has acquired and further notes that neither are in fields that would draw adverse interest because of his sexuality. He claims he will be physically and psychologically harmed. The applicant admitted that he had had no experience of either when he was in India.

21. He claims being gay in India is a crime and not socially accepted and that the police will not protect gay men.

22. The Tribunal has considered the application of s5L of the Act as to whether the applicant is a member of a particular social group. A characteristic must be shared by each member of the group; the applicant shares, or is perceived as sharing, that characteristic and that characteristic is:

    ·     An innate or immutable characteristic;

    ·     So fundamental to a members identity or conscience, the member should not be forced to renounce it;

    ·     The characteristic distinguishes the group from society;

    AND the characteristic is not a fear of persecution.

23. Based on the country information set out above, the Tribunal accepts that homosexuals in India are identifiable by the common characteristic of their sexual orientation. That common characteristic sets them apart from society at large and that common characteristic is not their shared fear of persecution. It is the reason for the discrimination and other forms of mistreatment to which homosexuals in India are subjected. Therefore, homosexuals are a particular social group.

24. Country information demonstrates that anti-homosexual sentiment, prejudice and discrimination are widespread and endorsed and validated by the Indian authorities. The Tribunal accepts that gay men in India face discrimination and in some cases, harassment and assault.

25. Country information also suggests that there is a body of evidence that shows LGBTI individuals may also experience varying degrees of tolerance. The level of safety for gays in India depends heavily on the region. While dangers exist for gays anywhere in India, Mumbai is the country’s most gay friendly city and according to one gay social website, is a place where because of its rich diversity, has a thriving LGBT scene that is supported both socially and politically”.[15]

    [15] >

    The applicant had lived in India until he was [age]. He discovered he was gay when he was [age] and has visited a gay event, and on his own evidence, apart from the receipt of some verbal taunting and a beating on one occasion when he was at school, has not suffered any physical harm.

26. He has never had an encounter with the police. He had claimed he would be arrested, bullied and put in jail, but conceded he had only heard that. The Tribunal does not accept that the applicant will be arrested, bullied and put in jail because he is gay.

27. The Tribunal accepts that the applicant has attended a gay event in India and has had several homosexual relationships in Australia. He appears to have little interest in a long term relationship at present, instead enjoying many experiences and fun.

28. The Tribunal accepts that the applicant has suffered social discrimination in India when his school friends have realised that he was more interested in men than women. The Tribunal accepts that this social discrimination was hurtful and disrespectful. The Tribunal does not accept that this societal discrimination has amounted to serious harm.

29. The Tribunal notes the relevant law states:

    5J (4); “If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    i.that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    ii.the persecution must involve serious harm to the person; and

    iii.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:

    iv.a threat to the person’s life or liberty;

    v.significant physical harassment of the person;

    vi.significant physical ill‑treatment of the person;

    vii.significant economic hardship that threatens the person’s capacity to subsist;

    viii.denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    ix.denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

30. The Tribunal does not accept that the harm suffered by the applicant meets the definition of serious harm as set out in the legislation.

31. While the Tribunal is sympathetic to the applicant’s situation, and notwithstanding that LGBTI people may suffer discrimination and even harassment and assault, and the fact that the applicant is living differently to how he previously did in India, and even suffered verbal taunting and an assault as a schoolboy, the Tribunal is unable to be satisfied that there is a real chance that the applicant will be persecuted for reason of his membership of the particular social group ‘homosexuals in India’ if he was to return to India now or in the reasonably foreseeable future and it finds that his fear is not well-founded.

32. In assessing the applicant’s claims the Tribunal must look to the reasonably foreseeable future taking into account the applicant’s personal circumstances.

33. The Tribunal is not satisfied that there is a real chance that the applicant will be subjected to significant physical ill-treatment or psychological harm, amounting to persecution, if he returns to India now or in the reasonably foreseeable future. Country information supports India having a large law enforcement capability which is supported in turn by a sophisticated judicial system.[16] This information indicates that the applicant would be able to avail himself, if needed, of effective state protection from the risk of persecution of society and police, if returned to India.

    [16] US Department of State, India – Country Report on Human Rights Practices 2015, 13 April 2016, p13.

34. Whilst the applicant claims homosexuality is a crime, country information again indicates that s377 is only likely to be enforced in the event of sexual assault or public indecency. There is no information that people have been convicted pursuant to s377. And there is presently a Bill before Parliament to decriminalise homosexuality.

35. The applicant claims that if he returned to India and hid his sexual orientation he would become depressed and commit suicide. The Tribunal does not accept that the applicant will hide his sexual orientation. Apart from not revealing his sexuality to his parents (though he is not certain that they don’t already know, and his sister does certainly know as well as a cousin), he hasn’t hidden it in India, having attended a gay event there. He has not hidden it in Australia and has been active on Facebook celebrating his friendships and life without fear of that information finding its way to India via the World Wide Web. Accordingly the Tribunal does not accept that he will have cause to become depressed and suicidal.

Cumulative claims

1. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence country information, as well as having considered the personal circumstances of the applicant as contained in his application, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of his membership of a particular social group, or any other reason if he returns to India now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to India. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm

1. The Tribunal has considered the applicant’s claims under complementary protection. 

2. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to India now or in the reasonably foreseeable future.

3. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and country information, as well as having considered the personal circumstances of the applicant as contained in his application, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to India now or in the reasonably foreseeable future.

4. Accordingly, and applying the authority in MIAC v SZQRB (2013) 210 FCR 505, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.

Applicant’s right to enter and reside in Nepal.

1. For the sake of completeness, the Tribunal has considered the application of subsections 36(3), (4), (5) and (5A) of the Act.

2. The Tribunal had discussed at length the possibility that the applicant has a right to enter and reside in Nepal. The representative responded by written submission.

3. The representative did not address the issue of whether the applicant had a right to enter and reside in Nepal.

4. Taking into account the terms of the Indo-Nepal Treaty of Peace and Friendship of 1950 and the administrative arrangements referred to above, the Tribunal accepts that they satisfy the test of a ‘liberty, permission or privilege lawfully given’ to enter and reside in Nepal consistent with that described in MIAC v SZRHU and indicates that the applicant could enter Nepal and reside there.     

1. The Tribunal finds the applicant, as an Indian citizen with a current Indian passport (expiry date [2018]) has a presently existing right to enter and reside in Nepal. The Tribunal finds he has not taken all possible steps to avail himself of a right to enter and reside in Nepal, as he has not taken any steps to do so. The Tribunal finds Australia is taken not to have protection obligations to the applicant pursuant to s.36(3).

2. In considering whether the applicant faces a real chance of persecution or real risk of significant harm in Nepal, the Tribunal considered country information set out above and as discussed with the applicant.

3. The Tribunal considers the chance of the applicant’s family locating him in Nepal is remote, as well as the chance they will attempt to do so being mere speculation.  The Tribunal finds there is not a real chance his family will persecute him in Nepal.  The Tribunal finds there are not substantial grounds for believing the applicant faces a real risk of significant harm from his family in Nepal.

4. The representative responded to that country information by suggesting that as the government of Nepal was more focussed on priority issues such as poverty, than on human rights of LGBT people. And that sending someone to extreme poverty would not pass the public interest test. The Tribunal finds however that the applicant found his own way to Australia and adapted readily. The applicant makes friends easily and according to his friends, is kind and generous and that is reciprocated. He is well educated, is articulate and speaks multiple languages. He would find employment opportunities befitting his skills.

5. The Tribunal accepts that whilst homosexuality is not a criminal offence in Nepal, there remains a level of discrimination against homosexuals.  The Tribunal acknowledges the reports of harassment detailed by the Freedom House and Human Rights Watch reports, however gives weight to the report by the US Department of State that the level or harassment is declining.  Both the DFAT and US reports indicate the situation is better for people living in urban areas.  The Tribunal gives greater weight to the degree of tolerance in Nepal of homosexuality, the absence of laws criminalising homosexuality, and the efforts to remove laws discriminating against homosexuals. 

6. The Tribunal considers the applicant will live his life in Nepal as he has done in Australia, that is, living in an urban area and not hiding his sexuality.  For this he may encounter some negative remark and may encounter a level of discrimination and even harassment, of a kind and as he states he has experienced in Australia. The kind of discrimination and harassment he has experienced in Australia has not caused him serious or significant harm.  However, taking into account the available country information particularly the report by the US Department of State on the legislative protections in Nepal and the decline in harassment, the Tribunal finds the fear of persecution is not well-founded.  The Tribunal finds the applicant does not have a real chance of serious harm in Nepal or face a real risk of significant harm, either from the authorities or ordinary persons, for reason of his sexual orientation.

7. The Tribunal also discussed with the applicant whether Nepal might return the applicant to India.

8. There is no evidence before the Tribunal that Indian citizens residing in Nepal, under the terms and administrative arrangements relevant to the Indo-Nepal Treaty of Peace and Friendship of 1950, have been returned without reason. Given the lack of such evidence, the Tribunal does not accept there is a real chance he will be returned to India by Nepal.

9. The Tribunal finds there is not a well-founded fear Nepal would return the applicant to India or any other country, The Tribunal finds the qualifications in s.36(5) and (5A) are not enlivened.

   Conclusion: Refugee Criterion

10. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds the applicant also has a right to enter and reside in Nepal. The Tribunal finds he does not have a well-founded fear or being persecuted in India or Nepal and finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.

    Conclusion: Complementary Protection

11. Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that that are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India or Nepal or by India to Nepal that there is a real risk that he will suffer significant harm.

    Overall conclusion:

12. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

13. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

14. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

15. The Tribunal affirms the decision not to grant the applicant a protection visa.

Michael Hawkins

Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:

(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)that is not inconsistent with Article 7 of the Covenant; or

(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)that is not inconsistent with Article 7 of the Covenant; or

(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)for the purpose of obtaining from the person or from a third person information or a confession; or

(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)for the purpose of intimidating or coercing the person or a third person; or

(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
receiving country,  in relation to a non-citizen, means:

(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5J Meaning of well-founded fear of persecution

1. For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)   the real chance of persecution relates to all areas of a receiving country.

   Note: For membership of a particular social group, see sections 5K and 5L.

2. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note: For effective protection measures, see section 5LA.

3. A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)   conceal an innate or immutable characteristic of the person; or

   (c)   without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

4. If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)   the persecution must involve serious harm to the person; and

   (c)   the persecution must involve systematic and discriminatory conduct.

5. Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)   a threat to the person’s life or liberty;

   (b)   significant physical harassment of the person;

   (c)   significant physical ill‑treatment of the person;

   (d)   significant economic hardship that threatens the person’s capacity to subsist;

   (e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

6. In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K  Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)   disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L  Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)   a characteristic is shared by each member of the group; and

(b)   the person shares, or is perceived as sharing, the characteristic; and

(c)   any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)   the characteristic is not a fear of persecution.

5LA  Effective protection measures

1. For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)   protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

2. A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)   the person can access the protection; and

   (b)   the protection is durable; and

   (c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

..

36Protection visas – criteria provided for by this Act

…

(2A)A non‑citizen will suffer significant harm if:

(a)   the non‑citizen will be arbitrarily deprived of his or her life; or

(b)   the death penalty will be carried out on the non‑citizen; or

(c)   the non‑citizen will be subjected to torture; or

(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)   the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…