1928313 (Refugee)

The applicant, a homosexual male from India, sought a protection visa. The dispute concerned whether the applicant met the criteria for a protection visa, either as a refugee or through complementary protection, given his claims of persecution due to his sexual orientation. The matter was before the Tribunal for review of a prior decision.

The legal issues before the Tribunal were whether the applicant qualified as a refugee under section 36(2)(a) of the Migration Act 1958, based on a well-founded fear of persecution for reasons of membership of a particular social group, and if not, whether he was entitled to complementary protection under section 36(2)(aa) due to a real risk of significant harm upon removal to India. The Tribunal also considered whether effective protection measures were available in India and if reasonable steps could be taken by the applicant to avoid any risk.

The Tribunal affirmed the decision not to grant the applicant a protection visa. It found that the applicant's claims, including past experiences of ostracism and abuse, did not establish a well-founded fear of persecution or a real risk of significant harm. The Tribunal considered the country information regarding India and concluded that the applicant's generalised assertions about societal attitudes and the corrupt nature of authorities were insufficient to demonstrate a real risk of harm that could not be mitigated by relocation within India or by state protection. The Tribunal noted that the applicant had not satisfied the criterion under section 36(2) and therefore did not meet the criteria for the grant of the visa.