1807658 (Refugee)

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.