1807658 (Refugee)

Case [2020] AATA 3190

1807658 (Refugee) [2020] AATA 3190 (20 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1807658

COUNTRY OF REFERENCE:                   India

MEMBERS:Deputy President Jan Redfern (Presiding)

Member Luke Hardy

DATE:20 August 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with direction that the applicant satisfies s.36(2)(aa) of the Migration Act 1958 and that s.36(3) of the Migration Act 1958 does not apply to the applicant.

Statement made on 20 August 2020 at 1:35 PM

CATCHWORDS

REFUGEE – Protection (Class XA) (Subclass 866) visa – India – application for protection on the basis of complementary protection criterion – applicant fears significant harm on the grounds of sexual orientation – claim about sexual orientated accepted −consideration of complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 – whether real risk of significant harm – impact of Supreme Court of India ruling that s 377 of the Indian Penal Code was unconstitutional in so far as it criminalised same-sex sexual activity between consenting adults – country information about whether LGBTI community face real risk of significant harm – consideration of whether the applicant has the right to third country protection under s 36(3) of the Migration Act 1958 –meaning of the right to enter and reside in a third country – whom Australia has protection obligations under s 36 of the Migration Act 1958 – decision under review remit with direction.

LEGISLATION

Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 36(2A), 36(3) – (5A), 48A, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES

1501021 (Refugee) [2017] AATA 2224

1514734 (Refugee) [2018] AATA 504

1615505 (Refugee) [2019] AATA 6440

Chan Yee Kin and Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2

Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147

Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91

Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33

Suntharajah v Minister for Immigration and Multicultural Affairs [2001] FCA 1391

SZGIZ v Minister for Immigration and Citizenship [2013] FCFCA 71

SZMWQ v Minister for Immigration and Citizenship [2010] FCAFC 97

SZRUH v Minister for Immigration and Border Protection [2014] FCAFC 43

SZTOX v Minister for Immigration and Border Protection [2015] FCAFC 77

V856/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1018

SECONDARY MATERIALS

Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954); Protocol Relating to the Status of Refugees, opened for signature 31 January 1967 (entered into force 4 October 1967)

Department of Home Affairs, Procedural Advice Manual 3 (PAM3) ‘Refugee and Humanitarian – Complementary Protection Guidelines’

Department of Home Affairs, Procedural Advice Manual 3 (PAM3) ‘Refugee and Humanitarian – Refugee Law Guidelines’

Department of Foreign Affairs and Trade, Country Information Report on India, dated 17 October 2018

Department of Foreign Affairs and Trade, Country Information Report on Nepal,

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AGLC
1807658 (Refugee) [2020] AATA 3190
Case
[2020] AATA 3190
Decision Date

CaseChat Overview and Summary

The applicant, who arrived in Australia on a student visa, sought a Protection (Class XA) (Subclass 866) visa based on complementary protection. The applicant claimed to fear significant harm in India due to his sexual orientation. The delegate initially accepted the applicant's homosexuality but was not satisfied of a real chance of persecution. The Refugee Review Tribunal (RRT) affirmed this decision, not being satisfied the applicant was homosexual. Following amendments to the *Migration Act 1958* introducing complementary protection, and a Full Federal Court decision clarifying the application of section 48A, the applicant lodged a second protection visa application. This was refused by a delegate, and the RRT affirmed that refusal, finding the applicant's claims regarding his sexual orientation lacked credibility. The matter was brought before the court for review.

The court was required to determine whether the applicant faced a real risk of significant harm in India on the grounds of his sexual orientation, thereby meeting the complementary protection criterion under section 36(2)(aa) of the *Migration Act 1958*. Additionally, the court had to consider whether the applicant had a right to third-country protection under section 36(3) of the Act, and what the meaning of such a right entailed in the context of Australia's protection obligations. The court also needed to assess the impact of the Supreme Court of India's ruling decriminalising same-sex sexual activity on the risk of harm faced by the LGBTI community in India, and whether the applicant could reasonably access protection in a third country.

The court found that the applicant is homosexual and that, despite the decriminalisation of same-sex consensual relationships in India, societal attitudes have not yet changed sufficiently. Country information indicated that homosexual individuals face a real risk of significant harm from certain segments of the community and the state may not provide adequate protection. The court also determined that the applicant could not reasonably avail himself of third-country protection in Nepal. This was due to the practical difficulties in obtaining a new Indian passport, given his fear of Indian authorities and the requirement to declare he had not sought asylum, as well as border closures and the risk of harm in Nepal itself.

The court decided to remit the matter for reconsideration with the direction that the applicant meets the criterion under section 36(2)(aa) of the *Migration Act 1958*, and that section 36(3) of the Act does not apply.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, we have decided to remit the matter for reconsideration with the direction that the applicant meets s.36(2)(aa) of the Act and that s.36(3) of the Act does not apply.BACKGROUND The applicant entered Australia on 30 December 2007 on a student visa that was renewed in July 2010 and then in June 2011. He lodged a protection visa application on 26 August 2011 before his student visa expired. On 16 November 2011 the applicant’s visa was refused by a delegate of the Minister. The delegate accepted that the applicant was homosexual but was not satisfied that he faced a real chance of being persecuted in India. The applicant sought merits review of this decision to the RRT. The RRT affirmed the delegate’s decision on 22 April 2013. The RRT was not satisfied the applicant was homosexual and was therefore not satisfied the applicant feared persecution. When the applicant made his first application for protection the criteria for protection was based on the Refugee Convention.[1] The Act was amended effective from 24 March 2012 to introduce a new criterion to allow for the grant of a protection visa based on Australia’s non-refoulment obligations under the International Covenant on Civil and Political Rights (‘the Covenant’) and Convention Against Torture and Other Cruel, inhumane or Degrading Treatment or Punishment. (‘CAT’).[2][1] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954); Protocol Relating to the Status of Refugees, opened for signature 31 January 1967 (entered into force 4 October 1967).[2] Migration Amendment (Complementary Protection) Act 2011. Relevant to the current application, s.48A of the Act imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. However, in SZGIZ v MIAC (‘SZGIZ’) the Full Federal Court held that the operation of s.48A of the Act, as it stood at the time of this visa application, was confined to making a further application for a protection visa which duplicates an earlier unsuccessful application.[3] Accordingly, as a result of the decision in SZGIZ an applicant is not precluded from making a claim for protection under the complementary protection criteria, even if an earlier claim based on the Refugee Convention had been refused.[3] SZGIZ v MIAC (2013) FCFCA 71 [38]. Following the decision in SZGIZ, the applicant lodged a second protection visa application on 19 May 2014. The delegate refused to grant the visa for the reasons set out in the decision record dated 26 February 2015. In short, the delegate did not accept that the applicant was homosexual. The applicant sought review and on 20 September 2016 the Tribunal affirmed the delegate’s decision, concluding that the applicant’s claims regarding his homosexual orientation lacked credibility.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In summary, the submissions are to the following effect:(1)The applicant is a homosexual. His family are strict Sikhs and would not accept his sexual orientation. He would be pressured to marry. Indian society is conservative and even though the Supreme Court decriminalised same sex consensual relationships in September 2018, attitudes in India have not yet changed.(2)There is country information, including in the most recent DFAT report, information from the Department and reports from other authoritative sources, that homosexuals face a real risk of significant harm from certain sections in the community and the state would not provide adequate protection from this. The applicant could not relocate to another area because these negative attitudes are widespread, and he would be exposed to a real risk of significant harm.(3)The applicant cannot avail himself of protection by moving to Nepal for three reasons. First, the applicant does not have a valid Indian passport, and this is essential to be allowed entry and residence in Nepal. Because his passport expired some time ago, he needs to reapply and disclose that he has made an application for protection in Australia. He does not wish to do this because he fears harm from Indian authorities or agents of Indian authorities due to his sexual orientation. It would not be reasonable to expect the applicant from to approach the authorities from whom he seeks protection to obtain a new passport. Applicants who wish to apply for an Indian passport form Australia must apply online through VFS Global. VFS Global requires that applicants complete a form, which includes a declaration that the applicant has not taken asylum or applied for asylum. As the applicant cannot declare this, he cannot successfully apply for an Indian passport in Australia. Secondly, there is evidence that Nepal closed its border to India in March 2020 given concerns about the spread of coronavirus and there is no guarantee that the applicant would be able to cross the border even if he was issued with a passport. Thirdly, the applicant would be exposed to the real risk of either serious or significant harm in Nepal because of his sexual orientation.CONSIDERATIONDoes the Tribunal accept the applicant’s claim that he is a homosexual? As already noted, this is a threshold factual issue. If the Tribunal does not accept that the applicant is a homosexual, there would be no basis for his claimed fear of harm. The delegate who assessed the original claim for protection in 2011 accepted the applicant’s claim that he was a homosexual but was not satisfied he faced a real chance of persecution and serious harm in India. On review, the former RRT did not accept the applicant’s claims to be a homosexual. The delegate considering the complementary protection claim also rejected the claim that the applicant was homosexual. When the claim for protection under the complementary protection criteria was considered by this Tribunal in 2016, the applicant provided evidence to support his claims, including screen captured information from his mobile telephone device and 16 witness statements from third parties, attesting to the truth of his claims. The applicant and [Person A] also gave evidence about their relationship at the hearing. The Tribunal member who considered the review did not accept the applicant’s evidence, the evidence of [Person A] or the supporting material provided.