1931381 (Refugee)

1931381 (Refugee) [2020] AATA 662 (3 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1931381
COUNTRY OF REFERENCE:                   India
MEMBER:Damian Creedon
DATE:3 March 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 March 2020 at 4:54pm
CATCHWORDS
REFUGEE – protection visa – India – member of particular social group – homosexuality – fear of harm from family, community and police – homosexual lifestyle in Australia – victim of crime – student visa cancelled for non-enrolment – escape from detention centre – credibility – inconsistent evidence – delay in applying for protection – country information – legality of homosexuality – state and societal treatment of LGBTI people – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 October 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of India, applied for the visa on 12 October 2019. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
The applicant is a [age] year old man from [the] State of Punjab, India.
The applicant is of the Sikh faith, is of Punjabi ethnicity, and speaks Punjabi fluently and English only moderately.
The applicant is single. His parents reside in India together with his siblings, save for [one sibling] who has recently moved to Australia.
The applicant completed his secondary education in India before deciding to undertake international study in Australia.
The applicant did not work in India, and in Australia has [worked].
The applicant arrived in Australia [in] June 2014 pursuant to a [student] visa granted on 23 May 2014. That visa was cancelled on 21 February 2017 on the ground that the applicant had not been enrolled in a course of study since 1 February 2016.
[In] November 2017 the applicant was located and detained by [the Police], ultimately being transferred to [Detention Centre 1].
[In] January 2018 the applicant escaped from [Detention Centre 1].
[In] March 2019 the applicant was located by [the police] and detained as an unlawful citizen.
[Later in] March 2019 the applicant was transferred to [Detention Centre 2].
On 12 October 2019 the applicant lodged an application for a Permanent Protection Visa (subclass XA 866).
Despite an invitation to do so, the applicant did not an interview with the delegate.
Claims:
In his application for a protection visa[1] the applicant made the following claims:
[1] Document Reference [Number]; Generated: Sat, 12 Oct 2019 19:10:22, AEDT
(a)He left India in 2014 as he had planned to come to Australia ‘as it is the safest country to be’ a homosexual.
(b)He did not mention his homosexuality to his family as he was afraid of being killed or tortured.
(c)He was afraid that his family would take his sexuality as a shame on the family and that they would ‘do anything’ to ‘keep the honour and pride of the family’.
(d)He did not know anything about his sexual orientation until he grew older and learned that he had no interest in women.
(e)He has never felt attracted to women in his entire life.
(f)He has always feared revealing his sexual orientation to anybody in India as he was scared of the ‘torture, punishment, mistreatment and discrimination’ from the society he was living in.
(g)He considered his travel to Australia as an opportunity to escape from cultural and religious prejudice against homosexual men in India.
(h)He told his family about his homosexuality as they were planning an arranged marriage for him.
(i)His family ‘got angry’ and wanted to kill him as they considered him a ‘blot’ to the family and wanted to keep their honour and pride ‘alive’.
(j)He managed to convince them that he would change and needed more time to think.
(k)It was his plan to ‘escape’ from India as his family were planning to destroy his passport and ‘forcefully’ marry him off and if he refused they would kill.
(l)His family and other villagers demanded he marry and abandon his ‘aberrant’ ways or they would kill him.
(m)When he refused he was chased by his father and some villagers who first attacked him and then chased him.
(n)He was able to ‘escape the situation’ and went to Delhi.
(o)After he ‘escaped the situation’ he went to the Police.
(p)The Police refused to help him or assist him as ‘according to their beliefs’ they consider him a parasite and disease to the society for being gar and practicing ‘degrading acts’.
(q)The Police told him they would kill him or hang him if he was in their hands.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
(a)The applicant’s protection visa application forms completed on 12 October 2019 (visa application);
(b)The applicant’s identity documents being a certified copy of passport obtained from the Department’s file;
(c)The protection visa decision record dated 29 October 2019 (delegate’s decision record); and
(d)The review application form which did not include a copy of the delegate’s decision record.[2]
[2] The Tribunal obtained a copy of the delegate’s decision record from the Department and provided the applicant with a copy of it at the hearing in strict compliance with its statutory obligations under s.424AA. The applicant was content to rely on his oral submissions to the Tribunal.
The Tribunal has also had regard to:
(a)the Department of Foreign Affairs and Trade’s (DFAT)’s most recent ‘Country Information Report on India’, published on 17 October 2018 (DFAT Report – India);
(b)DFAT’s ‘Thematic Report Indian State of Punjab’, published on 7 December 2016; and
(c)The United Kingdom Home Office’s ‘Country Policy and Information Note – India: Sexual orientation and gender identity and expression’, published on 1 October 2018 (UKHO Report – India).
Country of reference / receiving country:
The applicant claims to be an Indian national. Based on the copy of his passport provided to the Department of Immigration and Border Protection (the Department) by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that India is his country of nationality and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.
Hearing:
The applicant attended a hearing on 28 February 2020. He was not represented. The hearing was assisted by an interpreter in the Punjabi and English languages.
The Tribunal asked the applicant about the completion of his Protection Visa application forms. The applicant stated that he had filled out the forms himself, with the assistance of a friend. He said that contents were true and correct and that he did not wish to add anything to them.
The applicant confirmed that he completed his high school education in India.
The applicant stated that he arrived in Australia in June 2014 to undertake higher education. When asked by the Tribunal why his student visa had been cancelled the applicant stated that he had been a victim of crime and that this incident had resulted in the cessation of his studies and, ultimately, the cancellation of his enrolment and his Student visa. When pressed by the Tribunal for details, the applicant stated that the incident occurred on the platform of the [Suburb] Train Station in [City 1] and had involved a [weapon] attack with the motive of robbery. The Tribunal asked the applicant whether he had been ‘mugged’ and the applicant agreed with this description of the incident. The Tribunal asked the applicant how it was that this event led to the cancellation of his Student visa and the applicant stated that he had been unable to pursue his studies due to an injury he sustained to his hand and that he had been unable to communicate his situation properly to his course provider. When further pressed by the Tribunal the applicant stated that he had reported the attack to [the police], however he was unable to provide any further details of the incident.
The applicant confirmed that, following the cancellation of his Student visa, he had been detained by [the police] [in] November 2017 and that he was transferred to the [Detention Centre 1].
The applicant confirmed that he escaped from the [Detention Centre 1] [in] January 2018. When asked by the Tribunal why he had escaped from the [Detention Centre 1] the applicant stated that other detainees had discovered his sexuality while he was in detention, that he had been ‘bullied’ and harassed by them on this account and that he had therefore decided to escape. He stated that he escaped with one other detainee.
The applicant confirmed that he was re-arrested and detained by [the police] [in] March 2019 and transferred to [Detention Centre 2] in Western Australia when he is presently detained.
When asked by the Tribunal why he had not made an application for a Protection visa in the more-than five years he had been onshore (to October 2019), the applicant stated that it was not until his current case manager had mentioned the prospect to him that he had realised that making such an application was an option for him.
The Tribunal asked the applicant whether he had told his parents about his sexuality before leaving India to come to Australia in 2014 and he stated unequivocally that he had not.
The Tribunal put to the applicant his movement record and the applicant agreed that he had not left Australia since arriving onshore in June 2014.
The Tribunal then asked the applicant why, in view of this evidence, his application form contained statements to the effect that he had told his family about his sexuality while in India, that they ‘got angry’, that they were ‘planning to destroy’ his passport and force him to into marriage there and that he was ‘chased’ by his father and ‘some villagers’ who ‘attacked’ him on account of his sexuality.
The applicant stated that a friend had helped him complete the form and that the information set out therein was not an accurate statement of the sequence of events.
The Tribunal stated to the applicant that it was concerned about the inconsistencies between the applicant’s visa application and his oral testimony; that it was not seeking to ‘catch him out’ or make him feel uncomfortable; but that it was imperative that he told the truth to the Tribunal so that the Tribunal could clearly understand his situation. The Tribunal stated to the applicant that if it were to conclude his evidence was unreliable then that conclusion would necessarily affect his case. The applicant stated that he understood the importance of telling the truth and re-iterated that his friend had not accurately recorded the events when typing the visa application. He stated in evidence that he did not know what his friend had written.
The Tribunal asked the applicant when he believed he discovered that he had an interest in males. The applicant replied that it was when he was aged about [number] years. He stated to the effect that at around that age a girl had proposed to him and he found that he was not at all attracted to her and that he preferred ‘boys’.[3]
[3] The Tribunal understood the applicant’s reference to ‘boys’ in the giving of his evidence to be intended by the applicant as a reference to ‘males’. Where the term appears in the Tribunal’s decision it is used in that way.
The Tribunal inquired as to whether the applicant was sexually active at that age. He stated to the effect that he found it difficult to find ‘anyone like him’ but that in the [number] grade, at around [number] years of age, he found two ‘friends’ at his high school. He stated that he met with these ‘friends’ at a park and that on occasion he was seen by people from his village who abused and threatened him for ‘being the way he was’.
He stated that at that time, as a result of his ‘activities’, ‘all the village came together’ and he was scared that they would kill his boyfriend. He stated that he ‘covered up’ the situation by saying that he was ‘just chilling’ with his friend in the park. He stated that, at a village meeting, his father was confronted by members of the village who stated to him words to the effect of ‘your son is getting out of hand’ and that they sought to arrange a marriage for him in an effort to change him.
He stated that at that time he told he father that he was not ready for marriage as he did not have a proper job and that he would do better to undertake education in Australia first. When the Tribunal put to the applicant that he was not being truthful to his family at that time about his sexuality, the applicant agreed that that was so (the Tribunal does not draw an adverse conclusion in respect of the applicant’s truthfulness on account of this admission). The applicant’s evidence was that the truth was that he did not want to marry a woman as he was not attracted to women but that he was not able to tell his family.
The applicant stated that after arrangements were made for him to travel to Australia his family ‘dropped him’ in Delhi one week prior to his departure. He stated that the pretext for being dropped a week early was to celebrate his departure with his friends, but that in fact he wanted to spend the week with his boyfriend and some ‘friends’ prior to his departure.
When asked by the Tribunal whether he interacted with the police in Delhi the applicant stated that he had. When pressed for details of the interaction, the applicant stated that ‘one day’ he interacted with the police. He stated that the police there are ‘racist’ and ‘corrupt’. When asked by the Tribunal why he came to the attention of the police, the applicant stated ‘the police are not interested in me’. When further pressed by the Tribunal, the applicant stated that on his last night in Delhi he was ‘having fun with his mates’ and ‘someone complained’ about the ‘bisexuals’. The applicant stated that the person was not known to him, that it was a member of the public, and that they observed ‘something wrong going on’.
The applicant stated that the police came and they ‘tortured us’. When pressed for details of the ‘torture’ the applicant stated he was ‘put behind bars’ and ‘bullied’. When further pressed as to the nature of the ‘torture’ the applicant stated that when he was in the police station he was ‘verbally bullied’ and that he was made to feel very uncomfortable and that the police ‘slapped his face’ and told him that what he was doing was wrong. The applicant stated that the incident lasted for 15 to 20 minutes before he was released. He stated that his friend’s brother came to the police station, that the friend’s brother had been at school with one of the police officers and that he convinced the police to let the applicant and his friends go.
The applicant stated that he then travelled to Australia as planned.
The applicant’s evidence is that at some time in 2016 he ‘started’ to tell his parents about his sexuality. When asked by the Tribunal for particulars of the conversations, the applicant stated to the effect that he started the conversations by ‘making a joke’ about a (male) friend who wanted to marry a ‘boy’. He stated, however:
But that was me.
He stated that he did not want to admit to being homosexual ‘straight away’ in conversations with his father at this time because his father ‘got angry’ when the topic was raised . When pressed by the Tribunal the applicant stated:
I was trying to tell [my father].

The applicant stated that when he escaped from the [Detention Centre 1] he had no money and was in a ‘panic’. He stated that he was living behind a church until he was discovered by an ‘Indian family’ who took him to their home, gave him food and accommodation and helped him to contact his family. He stated that they did not know about his immigration status, and in particular that he had escaped from [Detention Centre 1].
The applicant stated that with the help of this Indian family he telephoned his parents. He stated that it was at this time that he finally told his parents about his sexuality. When pressed for details the applicant stated to the effect that the memories were painful, that he had tried to forget them, that he recalled that he drank alcohol ‘a lot’ and was ‘shouting down the phone’ to his father. He stated that his father was saying words to him to the effect that he (the applicant) was ‘embarrassing the family’.
The Tribunal then inquired about his sexual partners in Australia. The applicant stated that he did not presently have a boyfriend and had not had a long-term relationship in Australia. In the course of his evidence the applicant stated that he had regularly attended a number of clubs in [City 1], identifying one club by name. The Tribunal asked the applicant where that club was located in [City 1], the nature of its target clientele and to describe its internal layout. The applicant provided this information without hesitation and with an ease and confidence sufficient to persuade the Tribunal that the applicant had regularly attended the club and was familiar with it.[4] The applicant stated in evidence that he went to the club to meet sexual partners. Overall, the Tribunal found the manner of the applicant’s presentation of this evidence persuasive. In particular the Tribunal is persuaded that the applicant attended the club as he described in evidence and that he did so to meet male sexual partners.
[4] An examination of the club’s website by the Tribunal confirms that the club holds itself out as having ‘[deleted]’ [sic: capitalisation]; that it was in operation at all material times; and that its internal layout and amenities are consistent with the applicant’s descriptions.
The Tribunal asked the applicant why he feared to return to India. He stated that if he returns to his country he will not have any support from his family, ‘not mentally, physically or financially’ and that he will be disinherited. The Tribunal asked the applicant whether that was different from his situation now. The applicant stated to the effect that it was not. He stated that his family has left him to ‘look after himself’.
The Tribunal noted to the applicant that his situation in this respect was therefore the same in Australia as in India and pressed him to describe why he feared returning. The applicant stated that he feared for his life. When pressed to explain why he feared for his life the applicant stated that the Indian ‘environment’, the ‘society’, was different and that it does not accept homosexual relationships. He stated that he would be subjected to bullying ‘a lot’ and ‘tortured’. When pressed for details regarding his fear of torture, the applicant stated that his family would lock him in a room, tie him, and not provide him with food. He stated that that has not happened to him, but that it ‘may’ happen. He stated that he has seen ‘YouTube’ videos and that he ‘knows that this can happen’.
The Tribunal discussed with the applicant Country Information taken from the DFAT Report - India.
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.
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.
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.
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.
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.[5]
[5] DFAT Report – India, paragraphs 3.54, 3.55, 3.57, 3.58 and 3.60
The applicant stated to the effect that, although homosexuality may now be legal in India, societal attitudes had not changed towards homosexual relationships and that people were still like ‘animals’ in this regard.
The Tribunal asked the applicant about relocating and suggested that he could move to Mumbai or Delhi, each of which have a more open and tolerant community. The applicant agreed that one could be more open in Mumbai and Delhi than in rural areas, but that he had ‘left his family’ and there would still be a threat of violence against LGBTI people in larger cities and that he would not be as free there as he could be in Australia.
The applicant further stated that he could not move anywhere in India as his family would know ‘straight away’ and would kill him.
Assessment of Claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
The Tribunal had initial reservations about the veracity, credibility and plausibility of the applicant’s claims by virtue of the internal contradictions in his visa application. When these contradictions were put to the applicant he maintained that the essentials of his written application were true but that his ‘friend’ had made mistakes in translating his words into written English. On balance the Tribunal is prepared to accept this contention as, in giving his oral evidence, the applicant appeared to the Tribunal to do so honestly and truthfully.
Overall, the Tribunal is persuaded by the applicant’s oral testimony that he is homosexual. In particular the Tribunal is persuaded that:
(a)the applicant first began to encounter his homosexuality at or around the age of [number];
(b)he had a boyfriend in India prior to his departure to Australia;
(c)his family and members of his village ‘suspected’ his sexuality on account of his observed behaviour;
(d)he experienced difficulty informing his family and members of his community about his homosexuality and that he did not do so before he left India;
(e)that the applicant lived as a homosexual male in Australia and has had homosexual partners here; and
(f)while resident in Australia the applicant informed his parents that he is homosexual.
The Tribunal also accepts that the applicant wishes to stay in Australia to make a future for himself.
However, the Tribunal considers that the applicant’s evidence was vague and lacking in detail in respect of his claims to holding a well-founded fear of persecution. The applicant’s only direct evidence of experiencing hostile behaviour was the incident he described with the Delhi police. In this regard the Tribunal accepts that the applicant may have had an interaction with the police, but the circumstances of how he came to the police’s attention and the manner of his treatment while engaging with police were vague and unpersuasive. The applicant’s responses to the Tribunal’s questions in respect of the issue were brief and he offered no detail. Responses such as being ‘bullied’ and ‘tortured’ were examples of the paucity of detail provided.
As to his more ‘general’ fears, the applicant also tended to speak less from personal experience but rather from generalisations – of what happens generally to people in India who are homosexual. For example, he spoke of having viewed ‘YouTube’ videos (by implication of mistreatment of LGBTI persons) but admitted that he himself had not experienced the behaviour exhibited therein.
Despite being pressed for detail, the applicant was unable to describe his fears other than in vague generalisations.
Country information
The Tribunal has read and had regard to the DFAT Report – India, and in particular to the paragraphs extracted above.
The Tribunal has also read and had regard to the UKHO Report – India and in particular the following extracts:
In general, state treatment of LGBT persons, even when taken cumulatively, is not sufficiently serious by its nature and repetition as to amount to persecution or serious harm.[6]
In general, the societal treatment of LGBT people in India, even when taken cumulatively, is not sufficiently serious by its nature and repetition as to amount to persecution or serious harm.[7]
Cumulative claims
[6] UKHO Report – India, para [2.4.13]
[7] UKHO Report – India, para [2.4.18]
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as contained in his application and as discussed in the hearing, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if he returns to India now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to India. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm
The Tribunal has considered the applicant’s claims under complementary protection.
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to India now or in the reasonably foreseeable future.
The Tribunal is satisfied there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflected on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk he will suffer arbitrary deprivation of his life or the death penalty. The Tribunal finds no grounds that suggest the applicant will be subject to significant harm for any reason if he returns to India. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India that there is a real risk that he will suffer significant harm.
Overall conclusion:
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Damian Creedon
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 662

3 March 2020

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Immigration

Administrative Law

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Procedural Fairness

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