1807658 (Refugee)
[2020] AATA 3190
•20 August 2020
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 HardyDATE: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, dated 1 March 2019
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84 - Consideration of Protection Visa applications, 24 June 2019
STATEMENT OF DECISION AND REASONS
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (‘the Act’).
The applicant, [removed], is a citizen of India. He seeks protection in Australia from being persecuted in India for reasons of being a homosexual.
The applicant first made a claim for protection in 2011. His first claim was refused and a second application was made. This claim was also refused and the applicant sought review of this decision to the former Refugee Review Tribunal (‘RRT’). After the amalgamation of the RRT with this Tribunal effective from 1 July 2015, the decision was reviewed by the Tribunal, which affirmed the decision of the delegate to refuse the second application. The applicant appealed this decision and in 2018, the applicant’s case was remitted to the Tribunal for reconsideration by the Federal Court of Australia.
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.
The applicant sought judicial review in the Federal Circuit Court, which dismissed the application on 29 March 2017. The applicant then appealed to the Federal Court which allowed the appeal on 15 January 2018, ordering the matter to be remitted to the Tribunal for reconsideration according to law.[4] Relevantly, the Full Federal Court found that the decision of the Tribunal was legally unreasonable in circumstances where the Tribunal rejected corroborative evidence from ‘independent’ witnesses where there was no logical, rational or probative basis to conclude their evidence was false.[5]
[4] DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 Kenny, Kerr and Perry JJ.
[5] Ibid [37] to [45].
On 24 April 2018 a telephone directions hearing was conducted with the applicant and his lawyer, a registered migration agent, to discuss the key issues in dispute and the proposed conduct of the hearing. The applicant advised that he wished to rely on the evidence of several third parties, including his partner, [Person A].
The applicant appeared before the Tribunal on 21 June 2018 to give evidence and present arguments. He was represented by a lawyer and migration agent. Prior to the hearing, the applicant provided additional evidence, which included statements from the applicant, his partner and third parties, photographs and submissions about country information. One of the matters raised by the applicant was fear of harm from persecution in India because he was a homosexual and of the Sikh faith. In particular, the applicant relied on s.377 of the Penal Code of India, which, among other things, criminalised same-sex sexual activity.
On 6 September 2018 the Supreme Court of India handed down a landmark decision ruling to the effect that s.377 of the Penal Code was unconstitutional in so far as it penalised same-sex sexual activity between consenting adults.
Following this judgment, the applicant was invited to provide submissions on the impact of the decision on his claims for protection. He was also invited to attend a further hearing on 24 October 2018. The applicant attended the hearing with his representative and further written submissions were provided on 28 September and 2 November 2018. The applicant subsequently changed representation and his new representatives made a request to the Department and the Tribunal for access to documents, which were provided in December 2019 and January 2020. The Tribunal requested updated country information from the Department, including information about the impact of the Supreme Court decision, and this was provided to the Tribunal on 20 December 2019. This information was provided to the applicant and his new representatives and further submissions and evidence were provided to the Tribunal between February and 4 June 2020. The evidence and the effect of the various submissions is summarised below.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (‘the Regulations’).
The applicant has already made a claim for protection which has been refused. This claim was made pursuant to the Refugee Convention criteria in s.36(2)(a) of the Act. The applicant sought review to the former RRT and this decision was affirmed. He did not appeal this decision. Having regard to the principles set out in SZGIZ, the Tribunal is precluded from again considering the Refugee Convention criterion in s.36(2)(a) of the Act, and has proceeded on the basis that it can only consider the applicant’s claims under the complementary protection provisions in s.36(2)(aa) of the Act. This is not in dispute.[6]
[6] At the first hearing before the Tribunal the applicant’s representatives confirmed that the applicant’s claims were based on complementary protection T12 – 13.
As such, the issue for determination in these proceedings is whether the applicant meets the complementary protection criteria under the provisions of s.36(2)(aa) of the Act.
Subsection 36(2)(aa) of the Act provides that a person may meet the criteria for the grant of a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Subsection 36(2)(aa) of the Act refers to a real risk of an applicant suffering significant harm. The real risk test imposes the same standard as the real chance test applicable to the assessment of well-founded fear in the Refugee Convention definition.[7] A real chance is one that is not remote or insubstantial or a far-fetched possibility.[8]
[7] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
[8] Chan Yee Kin and Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
Significant harm for these purposes is exhaustively defined in s.36(2A) of the Act (refer s.5(1) of the Act). 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. Relevant to this case,
“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.
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 (refer s.36(2B) of the Act).
Relevant to the circumstances of this case, s.36(3) of the Act provides:
Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
It is also relevant to note that subss 36(4) to (5A) of the Act provides:
(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.
In other words, s.36(3) of the Act does not apply if a visa applicant has a well-founded fear of persecution in the third country or if there are substantial grounds for believing an applicant will face significant harm in the third country or if there is a well-founded fear that the visa applicant will be refouled by the third country.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.84[9], made under s.499 of the Act, the Tribunal is required to take into account policy guidelines prepared by the Department, relevantly in this case, Procedural Advice Manual 3 - ‘Complementary Protection Guidelines’ and country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
[9] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84 - Consideration of Protection Visa applications, 24 June 2019.
The most recent reports from DFAT relevant to this case are the Country Information Report for India dated 17 October 2018 and the Country Information Report for Nepal dated 1 March 2019. We have considered these reports, together with other relevant country information, including country information referred to by the applicant’s representatives. We have also considered the Department guidelines to the extent that these are relevant to the consideration of the decision under review. Generally, these guidelines contain an analysis of the law, examples of how the law has been applied in various jurisdictions and guidelines to decision-makers on how the law is to be applied. Our analysis of the country information and any relevant guidelines is set out later in these reasons.
QUESTIONS FOR DETERMINATION
Having regard to the material before the Tribunal and the issues in dispute, the issue for determination is whether Australia has protection obligations to the applicant under s.36(2)(aa) of the Act, namely, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia and returned to India, there is a real risk that he will suffer significant harm.
In considering this issue, the following questions arise:
(1)Is the Tribunal satisfied that the applicant is a homosexual?
(2)If so, is the Tribunal satisfied that there is a real risk the applicant will suffer significant harm if he is returned to India, specifically [city]? In considering this question, the Tribunal must also consider in whether the applicant could relocate to another area or obtain state protection such that he would not face a real risk of significant harm on his return?
(3)If the applicant faces a real risk of significant harm, has the applicant taken all possible steps to avail himself of protection in another country pursuant to s.36(3) of the Act? Relevantly, because citizens of India have rights to enter and reside in Nepal in certain circumstances, does the applicant have such a right and does this relieve Australia of its obligation to provide protection in any event?
CLAIMS AND SUBMISSIONS MADE BY THE APPLICANT
The applicant is a Sikh from [city] in the state of Jammu and Kashmir. He claims that he faces significant harm in India due to his sexual orientation. According to the applicant, sexual acts commonly associated with homosexuality remain subject to harsh and discriminatory penalties in India under s.377 of the country’s Penal Code. He claims that non-state agents will subject him to assault and other degrading treatment if his sexual orientation is suspected or somehow divulged. His status as a secular Sikh who has abandoned the turban and shaved his beard makes him a more conspicuous subject of attention in society and will likely invite increased curiosity about him especially amongst other Sikhs, who traditionally do not tolerate homosexuality. He claims that present legal and parliamentary efforts to decriminalise these acts, if they succeed, will not change conservative and discriminatory public attitudes overnight. He claims that a lack of state protection, the pervasiveness of prejudice in India and other factors mean that he cannot avoid significant harm by relocating within that country.
The applicant claims to have been aware of being gay since he was 15 years old. He claims he had a relationship with his neighbour whose family later moved houses. He further claims that his father suspected he might be homosexually inclined and tried to find a woman for him to marry. According to the applicant, his father arranged and paid for him to study in Australia and that the motivation for this was to give him time to grow up and become ‘normal’. He claims that his father warned him not to return to India unless he returned to ‘normal’.
The applicant also claims he was introduced to a gay Sikh couple through one of his teachers in [city]. He had casual sexual relations with one member of the couple when the other member was not home. He claims that he later met other gay men, in and around 2010, and had casual sexual relationships with them.
In 2010 the applicant’s father is said to have put him in contact with a family friend who ran a [business] in [city], with a view to employment. He claims this person turned out to be ‘gay friendly’. This friend was unable to employ him but introduced him in 2011 to a gay employee who introduced him to a Hunter region resident, [Person B]. The applicant claims he and [Person B] later became sexual partners. After this relationship broke down, the applicant met and entered into a relationship with [Person A], who he met on a dating website. The applicant claims that he and [Person A] have been in a relationship since this time.
The applicant claims he was initially interested in pursuing permanent residence through study and Australia’s skilled migration program but chose in 2011 to apply for a protection visa when the skills categories were tightened. He claimed to have done this at the suggestion of his first gay partner in Sydney. He claims he did not want to return to the prospect of returning to India and being forced to marry a woman.
The applicant’s former and current representatives provided numerous submissions about the veracity of the applicant’s claims together with country information about the circumstances in India and Nepal.
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.
CONSIDERATION
Does 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.
The Tribunal is not bound by the previous findings of the delegates, which are themselves in conflict, or the previous factual findings of the Tribunal or the former RRT. Indeed, we would be in error to adopt the findings of the previous Tribunal which were found to be legally unreasonable having regard to the available evidence.
At the telephone directions hearing, it was submitted the Tribunal should now find that the applicant meets the criteria for protection based on the strength of the findings of the Full Federal Court. This submission was rejected.
While the Federal Court found there was no logical, rational or probative basis to reject the corroborative evidence of at least four witnesses, this does not lead to the inevitable conclusion we should accept this evidence without scrutiny. Relevantly, the evidence of these witnesses was not previously tested by the Tribunal. It is our role to consider this matter afresh and, if unpersuaded by the evidence of the applicant and [Person A], test the veracity of the evidence provided by the third parties in the form of statutory declarations or statements. It is also relevant to note that even if we accept the applicant’s claim that he is a homosexual, this does not mean his claim for protection should be accepted. The critical issue that then falls for determination is whether this means the applicant faces a real risk he will suffer significant harm if he returns to India.
These matters were discussed at the directions hearing and the Tribunal directed that the applicant provide a list of witnesses he proposed to call and any further submissions and country information he intends to rely upon. The Tribunal also provided the applicant with a copy of DFAT country Information reports on Nepal and India.
Prior to the hearing the applicant provided:
(1)submissions in relation to the country information, including media reports, about the treatment of homosexuals in India;
(2)statements from the applicant, [Person A] and his father, [Person C], and a statutory declaration from [removed], all attesting to the applicant’s homosexuality and the nature of the close and loving relationship between the applicant and [Person A];
(3)confirmation that [removed] and two other witnesses who had provided statutory declarations in support of the previous hearing ([removed] and [removed]) would be available to give evidence at the hearing;
(4)copies of photographs of [Person A] and the applicant socialising and copies of photographs of [Person A] featuring amongst other things a tattoo on his back with the applicant’s name; and
(5)a copy of a relationship certificate dated 9 December 2016 registered with the New South Wales Registry of Births Deaths and Marriages citing the applicant and [Person A] as being in a relationship.
The Tribunal had requested that two witnesses who had previously provided statutory declarations in support of the applicant’s claims, [Person B] and his wife, be available to give evidence at the hearing. According to the applicant’s representative, both had declined on the basis they no longer wished to be involved. If their evidence had been crucial the Tribunal could have summonsed them to attend the Tribunal to give evidence. For the reasons outlined below, their evidence was not considered to be so. The Tribunal accepted the explanation about why they had declined to give evidence and proceeded without their attendance.
The applicant and [Person A] provided statements to the effect that they had met about two and a half years ago, have been in a relationship since this time and while they did not currently live together, they spent weekends and sometimes weekdays together. The applicant further said stated that his family was against homosexuality and that he was now openly gay and did not feel he could return to India. He believed he would be killed.
The statement from [Person A’s] father acknowledged and welcomed the relationship between [Person A] and the applicant. [Person A’s] father stated that he has Bell’s Palsy and Parkinson’s disease and that [Person A] lives at home in the capacity of joint carer, which he states is the reason why the applicant and [Person A] have not yet started cohabiting. [Person C] stated that he was very supportive of the relationship between the applicant and his son. The statement from [removed] was to the effect that he had known the applicant for several years, he was a homosexual and they had previously been in a relationship.
The statutory declarations from [removed] and [removed] were to the effect that they had met the applicant on an online dating website and had previously been in a casual sexual relationship with him.
The submission included independent news reporting about honour killings, other violence, vilification and various forms of discrimination towards LGBT persons in India. In particular, some of the submitted reports discuss policy reversals and reform-stalling in India’s Supreme Court after an attempt by the High Court of Delhi to read down s.377 of the Penal Code a decade ago. The applicant argues that even if s.377 is repealed there is a vocal body of opposition to such a move and a culture of bigotry in India that no law reform will quickly dissolve.
At the Tribunal hearing, the applicant presented a current and valid Indian passport that was issued to him on 10 February 2017 and valid to 9 February 2019. He gave evidence about his early experiences and sexual orientation. His evidence was detailed and credible. He also gave evidence about his relationship with his father. According to the applicant, his father did not speak directly with him of concerns about his sexual orientation but spoke, as it were, through his mother, expressing concern, for example, that he was friends with a neighbour they took to be gay. He said that when his father arranged through an agent to have him live in Australia, he never actually mentioned the issue of concerns or suspicions about the applicant’s sexual orientation. His father only ever directly expressed an interest in the applicant coming to Australia to study.
In other evidence the applicant gave a detailed and credible account of his past relationship with [Person B] and how they fell out over time. He said that although relations with [Person B] had been friendly enough at the time he provided earlier supporting evidence, this disintegrated over time such that it would not be easy to persuade [Person B] to provide evidence in support at this time. This explanation was plausible and credible. As such, we do not draw negative inferences about the applicant’s failure to obtain further corroborative evidence from [Person B]. If [Person B] evidence had been crucial we could have summonsed him. The applicant’s representative made such a request prior to the hearing but this request was refused pending the hearing.
Evidence was taken from the applicant and [Person A] both separately and together. Overall, they gave detailed, unforced, credible and consistent evidence regarding the inception and development of their relationship over time, and about each other.
The applicant gave evidence about related matters, including family and health issues affecting the time the applicant and [Person A] spent together. They currently live apart while [Person A] assists as a joint carer for his ill father and the applicant operates a small business from his home. This evidence was both plausible and consistent with the evidence given by [Person A] and the statement provided by [Person C]. They both claimed they look forward to residing together when life becomes more practical to manage from the one home. [Person A] noted that he and the applicant had obtained a certificate confirming their relationship some years back; being the relationship certificate dated 9 December 2016 which was provided prior to the hearing. [Person A] said he and the applicant had both discussed marriage, now that marriage equality was legislated in Australia, but had decided not to let the present protection visa application dictate the timing of something so personal.
[Person A] explained that he had converted to Hinduism in his early teens and said that his interest in Hindu and broader Indian culture was probably a factor in his initial attraction to the applicant. He said that if the applicant were refused a protection visa, he would accompany him to India, or Nepal, for as long as it might take to sponsor him to return here on a partner visa. The applicant raised concerns that negative attention would be paid to him and [Person A] if they appear together in public, partly due to [Person A’s] appearance and grooming. He claims it would be unreasonable to expect him to hide his relationship with [Person A] in India in order to help them avoid harassment. He explained in some detail about his relationship with the applicant, how they met, his initial reticence to become involved in dating websites and their usual weekly pattern in their relationship. [Person A’s] evidence was credible, detailed and consistent with his statement and the evidence of the applicant.
In addition to the evidence of the applicant and [Person A], the photographs and the previous evidence being screen shots from the applicant’s mobile device, the Tribunal had statements from three independent witnesses, being [removed], [removed] and [removed]. There was no reason to believe these statements were false or contrived. All witnesses were available to give evidence if required, either by telephone or at an adjourned hearing. There was a statement from [Person C], who was available by telephone if required. Given [Person C’s] ill health and having regard to our level of satisfaction with the evidence of the applicant and [Person A] about their relationship, the Tribunal decided it was unnecessary to telephone [Person C]. The Tribunal also decided it was unnecessary to summons [Person B] or his wife to give evidence. We accept the applicant’s explanation of why [Person B] had refusal to participate in the hearing. Given the time that had passed since the original application and the break down in their relationship it is both plausible and understandable that [Person B] no longer wished to assist the applicant. Moreover, there was other independent evidence available to the Tribunal which corroborated the applicant’s claims.
The applicant provided the Tribunal with an updated statutory declaration in February 2020 to the effect that he was still in a relationship with [Person A], he remained concerned about acceptance of his homosexuality by both his family and the community if he returned to India, he was concerned about returning to Jammu Kashmir, which was a war zone, and he was concerned that his passport which had expired could not be renewed because on the last occasion, he had been told by the Indian High Commission that he would not be able to get a passport in the future. [Person A] also provided a statutory declaration to the effect that he and the applicant were still in a relationship, that he was a carer for his father and they were therefore not living together but spent weekends together and that he was concerned about the applicant having to return to India. [Person A’s] father, [Person C], provided a further statutory declaration to the effect that he could confirm that the applicant and his son were in a committed and loving relationship and that the applicant was part of their family. [Person A’s] brother provided a statutory declaration confirming his view that the applicant and his brother were in a same-sex relationship. There was also a further statutory declaration provided by a family friend of [Person A] who had known [Person A] and his father for over 20 years. He stated that he had had dealings with the applicant and in his view the applicant and [Person A] were in a relationship that he would be prepared to provide oral evidence to this effect.
In summary, the evidence of the applicant and [Person A] at the hearing was plausible, credible and consistent. Their evidence was tested by the Tribunal over an extensive period during the hearing. There is independent evidence corroborating their evidence lodged as recently as February 2020 and, as observed by the Full Federal Court, there is no basis on which to conclude that this evidence is false. We therefore accept the applicant’s claim that he is a homosexual.
Is there a real risk the applicant will suffer significant harm if he is returned to India?
The applicant is an unmarried Sikh from [city] in the state of Jammu and Kashmir. We accept that he is homosexual and is currently in a relationship with an Australian citizen, who he has known for several years. We also accept the applicant’s evidence that his family would not be tolerant of his sexual orientation and in fact may reject or ostracize him but we are not satisfied that his family would harm him. The applicant has not given evidence to this effect, but rather his evidence is that others may do so to restore the family honour.[10] We do not accept that this would be the case and there was no evidence to support this. In our view, this claim is speculative.
[10] Refer to statutory declaration dated 17 February 2020 at [7] and [8].
We nonetheless accept that there is a real risk the applicant will face significant harm if he is returned to India, specifically his hometown of [removed], and that he cannot reasonably relocate to another area or avail himself of state protection such that he would not face such a risk. This finding is essentially based on our acceptance of the applicant’s claims and available country information about the current position in India.
As already noted, in September 2018 the Supreme Court of India found that part of s.377 of the Indian Penal Code, insofar as it criminalised homosexuality, was invalid. At the hearing and in various submissions following the delivery of the judgment, it was submitted that India was a conservative society and it was too early to say whether the judgment had or would have a significant and far-reaching impact on Indian society and attitudes to homosexuality.
In our view, this is borne out by the available country information.
According to the report of DFAT dated 17 October 2018:
LGBTI
3.54 People who are lesbian, gay, bisexual, transgender or intersex (LGBTI) are often subject to physical and emotional abuse by their families and wider society. In 2018, the New York Times interviewed gay and transgender people across India about their experiences. They reported sexual assault, shunning by parents, social isolation, employment discrimination and vulnerability to police abuse.
3.55 Until a September 2018 Supreme Court judgement, Section 377 of the Penal Code criminalised homosexuality. LGBTI people claimed that, while the law was not regularly enforced, it was used as a way to extract bribes or as a means of extortion. Homosexuality is now legal in India but LGBTI groups say this has not changed societal views on LGBTI people.
3.56 Hijra live within their own communities and may not connect to the rest of the LGBTI community. Many hijra are transgender or intersex, but not all transgender or intersex people are hijra. Hijra tend to be associated with dancing and entertainment, but also sex work. They may face discrimination when seeking access to goods and services, including education, employment and health care but are generally revered by Indian society. A bill to prevent discrimination against transgender and intersex people is currently being considered by the Indian parliament.
3.57 In July 2016, the government abstained on a UN resolution that created a UN expert post to address discrimination against LGBTI persons and voted in favour of amendments to weaken the mandate, saying the Supreme Court was still to decide on the issue of LGBTI rights.
3.58 Local sources say some parents accept their child being gay, as long as they still get married to opposite sex partners. Class also plays an important role: wealthier LGBTI people can live openly in cities and are accepted. For the ordinary person, particularly in rural areas but also in urban areas in many cases, it is difficult to live openly and many face discrimination in accessing housing and employment.
3.59 LGBTI women face problems related both to their sex and their sexuality and gender identity (see Women). Lesbians report feeling unsafe and sometimes being forced to marry men.
3.60 DFAT assesses that people who openly identify as lesbian, gay, bisexual, transgender or intersex face a moderate risk of official and societal discrimination and may face societal violence. The removal of section 377 of the Penal Code, while a victory for gay men in particular, does not necessarily prevent or reduce widely-held anti-gay and anti-LGBTI sentiment.
The assessment made by DFAT is corroborated in the context of the applicant’s circumstances by a report provided by the Country of Origin Information Services Section of the Department of Home Affairs (‘COISS’) dated 20 December 2019. This COISS report is based on various source materials which are referenced in the report. The report does not itself set out matters of opinion but rather summarises or describes the information contained in what are generally authoritative sources. The report addresses questions raised by the Tribunal and was provided to the applicant for consideration. Relevantly, the report notes as follows:
Jammu and Kashmir is reported to be one of the most conservative states in India regarding same-sex relationships. There are varying reports regarding whether a September 2018 judgment of India’s Supreme Court decriminalising part of Section 377 of the Indian penal code, which had criminalised homosexuality in India, applied to Jammu and Kashmir as the state had its own constitution and criminal law. In any event, the Rambir penal code in the state has now been repealed and the Indian penal code applies. Despite the September 2018 Supreme Court judgment, LGBTI (Lesbian, Gay, Bisexual, Transgender and Intersex) persons in Jammu and Kashmir reportedly still face a struggle as tolerance towards homosexuals has lessened with the intensification of Islamic conservatism over the years.[11]
[11] COISS, Standard Q&A report dated 20 December 2019, p3.
This COISS report further notes, referring to a report entitled Politics and Society Between Elections 2019.dated 26 March 2019,[12] as follows:
In relation to the Sikh community’s attitudes towards and treatment of male homosexuals in Jammu and Kashmir, a September 2019 India Today article refers to the findings of a report based on a survey ‘conducted in 12 states with over 24,092 respondents in 2018’, which included questions on attitudes in India to same-sex relationships. It was ‘the first time that questions pertaining to homosexuality were asked after the Supreme Court's judgement’ in September 2018 which ‘decriminalised homosexuality’ in India. The report said that ‘[t]he results indicate a deeply conservative society where one in every two respondents strongly believe that same-sex relationships have no place the [sic] in society’. Jammu and Kashmir was one of four states ‘that showed the highest rejection to same-sex relationships’, with 63 per cent of respondents in that state strongly disagreeing ‘with the acceptance of LGBT+ community in the society’. Across religions, the report indicates that 40 per cent of Sikh respondents surveyed in the 12 states ‘rejected same-sex relationships’.[13]
[references omitted]
[12] Report from the Centre for Regional Political Economy, Azim Premji University and Lokniti dated 26 March 2019.
[13] COISS, Standard Q&A report dated 20 December 2019, p5.
Relevant to the applicant’s circumstances, the COISS report refers to the Thematic Report of the State of Punjab published by DFAT in December 2016, which noted that Punjab is “home to three-quarters of India’s Sikh population” and that:
The overwhelming majority of LGBTI people in Punjab keep their sexuality a private matter, to avoid societal and familial discrimination and violence.[14]
[14] DFAT Thematic Report on the State of Punjab dated 7 December 2016 [3.37].
The COISS report also notes that the United States Department of State reported in March 2019, that while the Supreme Court ruling was welcomed, it was “too early to determine how the verdict would translate into social acceptance” and that the LGBTI community still “faced physical attacks, rape, and blackmail. LGBTI groups reported they faced widespread societal discrimination and violence, particularly in rural areas”.[15] COISS notes an article by an LGBTI advocate in February 2019 to the effect that he came out as a gay man in Mumbai and that there have been Gay Pride walks in Kolkata, Delhi and Bangalore following the Supreme Court ruling, but also notes the observations in the Centre for Regional Political Economy report as follows:
[u]rban centres are generally considered more tolerant and accepting of diverse identities compared to rural areas… the results show striking similarities in urban and rural responses and in fact, a slightly more conservative urban populace.[16]
[15] Ibid p12, referring to Country Reports on Human Rights Practices for 2018 – India, United States Department of State, p48.
[16] Report from the Centre for Regional Political Economy, Azim Premji University and Lokniti dated 26 March 2019, p91.
In summary, having reviewed the available country information from a variety of sources cited in the report, COISS observed that while there is evidence of changes following the 2018 Supreme Court ruling with LGBTI life reportedly becoming more integrated into mainstream society and the media in India, it is also reported that the homosexual community still faces stigma and violence and that discrimination remains in a deeply conservative society. [17] Having reviewed those sources, we agree with this observation.
[17] COISS, Standard Q&A report dated 20 December 2019, p10.
The DFAT report and the various sources cited in the COISS report are authoritative, cogent and relevant to the applicant’s circumstances. Accordingly, based on the country information in these reports, we find that there is a real risk that a homosexual man of Sikh religion would face significant harm in the form of stigma or, worse, violence and that this could be the case in his hometown of [removed] and in other locations, such as in the state of Punjab and even in large cities such as Mumbai and Delhi. We accept the applicant’s evidence that his family are not supportive of his sexual orientation and would be unlikely to support him on his return, which would exacerbate his difficulties living in a conservation society as a homosexual male. Significant harm includes both mental and physical cruel or degrading treatment. In our view there is evidence that, despite the 2018 Supreme Court ruling, the LGBTI community still faces the potential of violence, verbal abuse and harassment and stigma which is widespread across India.
We also note that this finding is consistent with country information provided by the applicant’s representatives[18] and the findings of the Tribunal in 1501021(Refugee) [2017] AATA 2224 at [53], 1514734 (Refugee) [2018] AATA 5045 at [51] to [67] and 1615505 (Refugee) [2019] AATA 6440 at [43] to [46]. Prior to finalising this decision the applicant’s representative provided a further submission referring to an unreported decision of the Tribunal dated 11 August 2020. As this decision is consistent with our findings, but is unreported and there is a confidentiality order in respect of this decision we see no reason to refer to this matter in any detail.
[18] For instance, Amnesty International Report 2017/18, The State of the World’s Human Rights; Freedom House, Freedom in the World 2019 – India, 4 February 2019; US Department of State, Country Report on Humans Rights Practices – India, 13 March 2019; and US Department of State, Overseas Advisory Council, India Crime and Safety Report New Delhi, 3 April 2020.
Having regard to the applicant’s circumstances, we accept that the applicant faces a real risk of assault, physical abuse and other manifestations of homophobia in India and that this would amount to significant harm for the purposes of s.36(2A) of the Act. We are not satisfied that there is any area of India where the applicant can relocate where there would not be such a risk (refer s.36(2B)(a) of the Act) or that the applicant could not obtain, from an authority in India, protection such that there would not be a real risk that he will suffer significant harm (refer s.36(2B)(b) of the Act).[19] We also find that the risk faced by the applicant is not one faced by the population generally but rather, is faced by him personally (refer s.36(2B)(c) of the Act).
[19] Refer also MIAC v MZYYL [2012] FCAFC 147 where the Full Court held that s.36(2B)(b) of the Act requires the Minister to be satisfied that the protection available would remove the real risk of significant harm to the non-citizen to something less than a real one.
Accordingly, on the evidence before us, we are satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk that the applicant will suffer significant harm. As such, we are satisfied the applicant meets the criteria in s.36(2)(aa) of the Act.
Third Country Protection
Having found that the applicant meets s.36(2)(aa) of the Act, it is necessary for us to consider whether protection is available from another country under s.36(3) of the Act such that Australia does not have protection obligations.[20]
[20] Refer SZRUH v MIBP [2014] FCAFC 43 (Griffiths and Tracey JJ) at [24] and [25] in which it is observed that s.36 of the Act provides for a ‘cascading’ series of qualifications that must be worked through be decision-makers.
First, we must consider whether the applicant has the right to enter and reside, either permanently or temporarily, in another country. Secondly, we must form a view about whether the applicant has not taken all possible steps to avail himself of that right. Thirdly, we must be satisfied that, even if there is such a right, the applicant would not be refouled or that he would not face persecution on the refugee grounds or significant harm under the complementary protection provisions in that country.
Article 7 of the Treaty of Peace and Friendship between the Government of India and the Government of Nepal (‘1950 Treaty’), signed at Kathmandu on 31 July 1950, provides as follows:
Article 7
The Governments of India and Nepal agree to grant, on reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature.[21]
[21] Treaty of Peace and Friendship, Media Centre, Ministry of External Affairs, Government of India,
As such, on the face of it, the applicant may have a right to enter and reside in Nepal because he is a national of India.
When the issue of whether s.36(3) of the Act applied was raised with the applicant at the adjourned hearing, there were a few months left before his passport was due to expire. The applicant accepted that he had not applied for protection from Nepal and his reason for this was that he did not wish to seek protection from Nepal because relocating to Nepal would not be viable for him and, potentially [Person A], who gave evidence that if the applicant was removed from Australia to India or Nepal, he would probably accompany him. It was clear from the applicant’s evidence that he did not wish to avail himself of protection in Nepal because he does not speak the language, has no connections in Nepal and did not believe he would have adequate employment prospects. There is well established authority these matters do not in themselves would exclude the operation of s.36(3) of the Act.[22] The applicant also said that he feared persecution and/or discrimination in Nepal because he is homosexual. This may be a claim that, if established, would exclude the operation of s.36(3) of the Act by reason of subss.36(4) to (5A) of the Act. However, this does not arise unless we are satisfied the applicant has a right to enter and reside in Nepal.
[22] See for instance SZQRM v MIAC [2010] FCAFC 97 [82], [109] and MZAIU v MIBP [2015] FCCA 1898.
The majority of the Full Federal Court in MIMAC v SZRHU [2013] FCAFC 91 (‘MIMAC v SZRHU’) found that the 1950 Treaty, while giving a mutual right of residence, did not give rights of entry and, as such, we also need to evaluate the administrative arrangements for entry to be satisfied whether such a right existed.[23] The Court also noted, agreeing with Allsop J (as he then was) in V856/00A v Minister for Immigration and Multicultural Affairs (‘V856/00A v MIMA’), that the right to enter and reside, was not a legally enforceable right but a “liberty, permission or privilege lawfully given”.[24]
[23] MIMAC v SZRHU [2013] FCAFC 91 [90].
[24] V856/00A v MIMA [2001] FCA 1018 [31]; Buchanan J in MIMAC v SZRHU [45], [62] and [89]
In SZTOX v MIBP [2015] FCAFC 77, the Full Federal Court confirmed that the right in s.36(3) of the Act is not confined to a right which is sourced in domestic law but it might also lie in an executive act, such as a Treaty, executive policy or other executive instrument. The Court emphasised that these examples are not exhaustive and that the proper construction of s.36(3) of the Act “must accommodate the potentially wide range of laws and executive acts which could create a right or entitlement in the relevant sense”.[25] Relevantly the Court noted that the existence and source of the right “are therefore a matter of evidence”.[26]
[25] SZTOX v MIBP [2015] FCAFC 77 at [41].
[26] Ibid [42].
As such, whether the applicant has a right to enter and reside in Nepal is a matter for us to determine based on the terms of the 1950 Treaty and the administrative arrangements for entry by Indian nationals into Nepal.
The right referred to in s.36(3) of the Act must be a presently existing right available at the time of decision, and not a right that merely could be acquired. This was considered by Gray J in Suntharajah v MIMA [2001] FCA 1391. Relevantly, his Honour observed at [20]:
I am also of the view that the Tribunal was in error, as a matter of law, in holding that a right to enter and reside, for the purposes of s 36(3), exists when the country concerned is a signatory to the Convention. It would be possible to read s 36(3) as imposing on every applicant for a protection visa an obligation to approach every other country that has accepted obligations under the Convention before approaching Australia. For a number of reasons, that cannot be the proper construction of the subsection. Australia's obligations under the Convention are coextensive with those of other signatories. It would be a repudiation of Australia's obligations if Australia were to assert that it owed protection only to a person with a well-founded fear of persecution for a Convention reason in his or her own country who had failed to claim the protection of every other country which has undertaken obligations under the Convention. A statute should not readily be construed as repudiating Australia's international obligations. In the second place, the purpose of the legislation is apparent from its terms, from its context in the Migration Act, from its context in the judge-made law relating to protection in a third country, from the explanatory memorandum accompanying the bill that became the Border Protection Legislation Amendment Act 1999 (Cth), from the tabling speech of Senator Patterson when that bill was tabled and from the words of Senator Patterson in response to a question from Senator Bartlett in relation to that tabling speech. These matters are dealt with extensively in the judgment of Stone J in Applicant C and I do not need to repeat them in detail. What s 36(3) requires is an existing right to enter and reside. Such a right will only exist with respect to a country with which an applicant for a protection visa has some kind of connection, usually if not invariably by reason of having spent time in that country and the ability to resume residence there. If it were the case that the present applicant's student visa would be cancelled by the UK authorities as soon as he arrived in the UK, the fact that he might then be able to make his claim to protection to those authorities, who might admit him to the country while they deal with it, does not constitute a right to enter and reside for the purpose of s 36(3).
[Emphasis added]
The representatives for the applicant provided country information from the Bureau of Immigration, Ministry of Home Affairs, Government of India on its website about the documents required for Indian citizens going to or coming from Nepal by air which relevantly provides as follows:
(i) Valid National Passport.
(ii) Photo Identity card issued by the Government of India/State Govt./UT Administration in India to their employees or Election ID card issued by the Election Commission of India.
(iii) Emergency Certificate issued by Embassy of India, Kathmandu.
(iv) Identity Certificate issued by Embassy of India, Kathmandu.[27]
………………….
[27] >
This is consistent with current information on the Department of Immigration for Nepal website which states:
Identity documents required for Indian citizen[s] going to/coming from Nepal by Air:-
1.Valid National passport.
2.Photo Identity card issued by the Government of India/State Govt./UT Administration in India to their employees or Election ID card issued by Election Commission of India.
3.Emergency Certificate issued by Embassy of India, Kathmandu.
4.Identity Certificate issued by Embassy of India, Kathmandu.
…
Note:-
…
3.The Emergency Certificate & Identity Certificate issued by the Embassy of India, Kathmandu will be valid for single journey for travelling back to India.[28]
[28] >
It is evident that this information relates to travel between India and Nepal and not from other countries to Nepal. In our view, the relevant question is whether the applicant has an existing right to enter Nepal from Australia, not India.
This is because s.36(3) of the Act does not call for consideration of whether, if the applicant is removed from Australia and returned to India, he could then acquire a right to relocate to Nepal. There are several difficulties with this proposition. First, even if the applicant returns to India, it is unclear whether he would be able to effectuate such a right and, as already noted, any right must be existing or presently available at the time of our decision and not prospective or speculative. In this regard s.36(3) of the Act is different to s.36(2B)(a) of the Act which seems to contemplate a forward-looking consideration about whether internal relocation is possible. Even if internal relocation is possible the decision-maker must still consider whether this can be done without further exposing an applicant to significant harm. Secondly, but related to the first matter, we must assess whether Australia has protection obligations at the time of our decision, albeit taking into account events that may occur in the foreseeable future. It is flawed logic to make an assessment that Australia does not have protection obligations on the basis that an applicant should return to the country from which the Tribunal is satisfied there is a real risk of significant harm in order to apply for protection from a third country. Australia’s obligation to provide protection arises at a particular point of time and to say this may be obviated at some time in the future, and therefore s.36(3) of the Act may apply, would defeat the purpose of the protection provisions in s.36(2) of the Act.
The applicant’s right to enter Nepal is based on the 1950 Treaty, his Indian nationality and the administrative arrangements in Nepal as to entry for Indian nationals.
The Department of Immigration for Nepal website notes that Tribhuvan International Airport is the only international airport of Nepal.[29] The Immigration Office, is said to be the “key frontline office” under the Department of Immigration assuming central role in regulating Arrival and Departure of Nepali and foreign nationals. It is based at the International Airport and therefore is the only entry and exit point for 'By Air' passengers travelling to and from Nepal. All foreigners travelling to, within and from Nepal are required to hold a valid and genuine passport and visa, except Indian nationals “arriving from India” who require a valid passport or an election card (being described as a “Voter ID issued by the Election Commission”).
[29] type="1">
In answer to the question about what documents are required for an Indian national travelling by air to Nepal from Australia, the COISS report refers to a previous COISS Q&A report dated August 2017, which noted that information from the International Air Transport Association (‘IATA’) as at 9 September 2016 recorded that a passport valid for a minimum of 6 months from the arrival date would be required by an Indian national travelling to Nepal by air from a country other than India.[30]
[30] Refer COISS, Standard Q&A report dated 20 December 2019, p21 and COISS Q&A report dated 15 August 2017.
Because this information is nearly four years old, we consulted the IATA Travel Centre website and established that this still appears to be the case.[31]
[31]
Accordingly, it appears that an Indian national would not need a visa to enter Nepal by air from Australia but would need a passport valid for at least 6 months from the date of arrival. We have no evidence about whether the applicant could travel to Nepal via India, but if so, the applicant would still need a valid passport or an election card. According to the applicant, he has neither.
Based on the evidence provided to the Tribunal, we accept the applicant does not have a valid passport, his passport having expired on 9 February 2019. The applicant cannot use his expired passport. We also accept the applicant’s evidence that he is not in possession of an election card. Even if the applicant had an election card, this may not assist in gaining entry to Nepal by air from Australia for the reasons we have already outlined.
The applicant now submits that he will not be able to renew his Indian passport while in Australia and therefore does not have a right to enter Nepal. He says that he has not taken steps to obtain the passport and to thereby enter Nepal, firstly, because he does not want to alert authorities but, secondly, and perhaps more relevantly, because he will not be able to obtain one. It is further submitted that VFS Australia is instructed by the High Commission of India and the Consulate General to process all applications for a passport and that it will only accept online, filled and printed applications at its various locations in the online application provided. The online application includes a declaration that any applicant for a new passport needs to complete to the effect that the applicant has not “taken asylum nor applied for asylum/refugee status”.[32] The applicant submits that he cannot make this declaration and therefore cannot obtain an Indian passport. As such, it is submitted that the applicant does not have an existing right to enter Nepal.
[32] >
We have verified this information from the VFS Global website and we are satisfied that the applicant would have to complete a declaration, being an affidavit in accordance with “Form I”, which requires the applicant for the passport to declare as follows:
I owe allegiance to the sovereignty and integrity of India
I have not acquired or applied for citizenship of another country
I have neither taken asylum nor applied for asylum/refugee status
Taken together, these declarations are significant. While the applicant has not acquired or applied for citizenship, he has applied for asylum in Australia, has lived in Australia since 2007 and says he fears returning to India. He cannot make a declaration in accordance with the last requirement and it is questionable whether he could make a declaration in accordance with the first.
It is uncontroversial that the applicant has not applied for the renewal of his passport or for a new passport. He submits that even if he did apply, when he applied for the renewal of his last passport he was told he would have to return to India. We cannot verify this, nor has this issue been tested because the applicant has made no attempt to renew the passport or obtain a new passport since its expiry.
We accept that the applicant does not have a passport and the only way he can get a passport is to apply through VFS Australia by completing the online forms. It is clear from the evidence on the relevant website that the applicant cannot complete the required Form I declaration because he cannot make the declaration sought. He has applied for asylum in Australia. However, in order to apply for a new passport, he must complete this declaration. It is also relevant to note that according to the Form I “incomplete applications will not be accepted” and completing the affidavit containing the declarations referred to above is “required for the issue of a New Passport”. A new passport is needed if the application is made one month after the expiry of the old passport.
Based on the material available to the Tribunal, we are therefore satisfied the applicant cannot apply or obtain an Indian passport from Australia to seek protection in Nepal through direct entry. There is no evidence about whether the applicant can enter Nepal by taking a flight through India but, even if this was possible, it is evident that the applicant still does not have the necessary travel documents for entry to Nepal via India.
Accordingly, it appears that the applicant does not have an existing right to enter Nepal. However, this may not be the end of the matter because the applicant has not taken steps to renew his passport or obtain a new passport nor did he take steps prior to the expiry of his passport to enter Nepal directly under the 1950 Treaty. This raises questions about the operation of s.36(3) of the Act in circumstances where there is evidence that a right may have been able to be exercised at some time in the past but it is no longer available at the time of the decision.
The question that arises is how should this be characterised? Does the applicant have an existing right in respect of which he has not availed himself and thereby, not taken all possible steps to avail himself of third country protection or does the applicant no longer have an existing right, because he cannot avail himself of the right at this time? The applicant did not make submissions in relation to this issue other than to contend after the event that his passport could not be renewed in Australia, which we accept on the available evidence.
The issue of whether protection was available in Nepal and whether the applicant had or could avail himself of the right to enter and reside in Nepal was raised with the applicant at the adjourned hearing. He did not address the issue other than to say that he did not wish to apply for protection in Nepal for the reasons outlined earlier in this decision. In other words, the applicant did not consider Nepal an acceptable option for protection and therefore did not seek to avail himself of any right he may have to enter and reside in Nepal.
Whether protection is available is a question of fact that will be informed by an applicant’s circumstances and country information. The determinative issue is not about whether it would be reasonable for an applicant to avail himself or herself of the right to enter and reside in another country, although it is understandable that the applicant would raise concerns about whether protection is in fact available when asked the question about whether he has taken all possible steps. Relevantly, s.36(3) of the Act provides that Australia’s obligations are obviated in certain circumstances but that the provisions do not apply if there is a real risk the non-citizen would be persecuted, face significant harm or be refouled. At a practical level, the issues are therefore closely related.
In this case, when the applicant was asked this question, he could have applied to renew his passport but he could not have gained entry to Nepal because his passport would have expired in four months, which was less than what was required to permit entry under the Nepali rules. If the applicant had applied for a new passport at that time, he may not have encountered the difficulties that he now has, although what may or may not have happened is speculative and arguably irrelevant to our task. Suffice to say, the applicant’s now expired passport only had two years validity at the time of issue, adding weight to the applicant’s contention that he would have difficulty in renewing the passport. Notably, there is country information to the effect that Indian nationals who are deported from Australia will be issued with an ‘Emergency Certificate’ which is a one-way travel one-time document issued to Indian nationals who do not hold valid Indian passports.[33] There is also information to the effect that in practice access to passport services for Indian national refugees and asylum seekers are restricted and will be assessed on a case by case basis.[34]
[33] DFAT Country Information Report – India, dated 17 October 2018, pg 28.
[34] Section 36(3) of the Act requires the decision-maker to form a view about whether the non-citizen has not taken all possible steps to avail himself or herself of the right to enter and reside in a third country. As already noted, this right must be a presently existing right, not a previous or prospective right, and this is consistent with the legislative framework which requires assessment at the time of decision. While there may be an apparent inconsistency given the use of past tense to describe the obligation to take all possible steps, this needs to be read in the context that the assessment of the steps taken must still apply to an existing right, namely existing at the time of the decision, and not some past or future time.
101. This issue is discussed in the Department’s Refugee Law Guidelines, which provide at [4.3] as follows:
If a right to enter and reside has lapsed, it is self-evident that the right is no longer current and cannot be exercised. Decision makers may consider what an applicant may need to do in order to renew the right. However, in this context, the same considerations apply to examining the initial right. That is, if the person has to undertake steps that require discretionary or decision making processes, then there is no current right.
102. This guidance specifically relates to applications under s.36(2)(a) of the Act but we can see no reason why this does not equally apply to the consideration of applications under s.36 (2)(aa) of the Act. The Refugee Law Guideline is helpful even though it does not expressly resolve the apparent conflict within s.36(3) of the Act about what is meant by the need to have taken all possible steps in the context of a right that may no longer exist. To give the provision meaning, this must mean that the task of the decision-maker is to consider whether all possible steps have been taken in connection with an existing or current right.
103. In V856/00A v MIMA, Allsop J rejected the submission that the right under s.36(3) of the Act meant “practical capacity to bring about a lawful entry” although he accepted that a right may be “inchoate”.[35] While Allsop J did not need to go further, his observations highlight the fact that, depending on the case, there may be a fine distinction between a presently available right and a right that may be acquired by applying for it. The first would fall within s.36(3) of the Act, the second may not.
[35] V856/00A v MIMA [2001] FCA 1018 at [25] and [26].
104. In this case, the right to enter Nepal is not only informed by the 1950 Treaty and the applicant’s Indian nationality but by the administrative arrangements in Nepal which apply to entry. This is consistent with Full Court authority in MIMAC v SZRHU. These arrangements are significant and require more than a simple or straightforward administrative action. As noted by the Refugee Law Guideline, giving effect to such a possible right would entail the applicant undertaking steps that would require a discretionary or decision-making process, notably, by a third party and outside the control of the applicant. As such, the right to enter could not be properly described as “inchoate” let alone existing or current.
105. The operation of s.36(3) of the Act was further explained by Rares J in SZMWQ v Minister for Immigration and Citizenship [2010] FCAFC 97 as follows:
40 A significant feature of s 36(3) is that it qualifies, but does not exclude, Australia’s protection obligations under the Convention that s 36(2) recognises. The qualification is the requirement that the applicant for a visa under s 36(2) must first have taken all possible steps to avail himself or herself of any right to enter or reside in the other country. Of course, the applicant for a protection visa would not have to engage in a futile exercise. Thus, for example, he or she need not have attempted to exercise the right, if the other country had so qualified his or her posited right to enter and reside in it, that the applicant could not succeed in entering or, if he or she did, in residing there. But, success in the enjoyment of a right focuses attention on the nature of the right.
[Emphasis added]
106. While there is no directly authoritative caselaw that would provide guidance in a case such as this, having regard to the principles set out above we find that s.36(3) of the Act does not apply. This is because we are satisfied on the evidence before us that the applicant could not make an application for entry to Nepal or indeed for the renewal of a passport in Australia and that to do so at this point of time would be futile. These matters are outside his control and any right to enter Nepal is prospective and conditional on the issue of a passport.
107. As such, s.36(3) of the Act does not apply to the applicant in respect of Nepal and there is no need for us to consider whether the applicant would be refouled or whether he would face persecution on the refugee grounds or significant harm under the complementary protection provisions if he was to enter and reside in Nepal.
DECISION
108. The Tribunal remits the matter for reconsideration with direction that the applicant satisfies s.36(2)(aa) of the Act and that s.36(3) of the Act does not apply to the applicant.
Jan Redfern PSM
Deputy PresidentLuke Hardy
Member
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