2007537 (Refugee)

2007537 (Refugee) [2021] AATA 2452 (7 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2007537
COUNTRY OF REFERENCE:                   India
MEMBER:Michael Hawkins AM
DATE:7 May 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 May 2021 at 7:43am

CATCHWORDS
REFUGEE – protection visa – India – Federal Circuit Court remittal – particular social group – female homosexual – credible witness – fear of telling conservative family – possible physical harm – being forced into an arranged marriage – consequence of being disowned – right to enter and reside in Nepal – expired Indian passport – tolerance of homosexuality in Nepal – single women – sexual harassment or violence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
ECY17 v Minister for Immigration & Anor [2020] FCCA 2989
MIMAC v SZRHU [2013] FCAFC 91
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
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 Immigration and Border Protection on 9 September 2015 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 November 2014. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations under section 36 of the Act and subclause 866.211 of Schedule 2 to the Migration Regulations 1994 (“the Migration Regulations”).
On 14 August 2017 the First Tribunal affirmed the delegate’s decision. That decision was set aside by the Federal Circuit Court on 23 April 2020 by consent. The matter is now before the Tribunal pursuant to an order of the Court.
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
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 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: s.36(2)(aa) (‘the complementary protection criterion’).
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 she 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 woman from [Town 1], Gujarat, India.
From birth until January 1984, the applicant and her family resided in [Town 1], Gujarat, India.
Between January 1984 and November 2007, the applicant and her family resided at [address], India.
On 18 September 2007 the applicant lodged an application for a Higher Education Sector visa (TU 573) (“student visa”). On 31 October 2007, the student visa was granted.
[In] November 2007, the applicant arrived in Australia.
On 11 February 2010, the applicant lodged an application for an Education and Training Sector visa (TU 572) (“student visa”). On 15 April 2010, the student visa was granted.
On 29 June 2010, the applicant applied for a Skilled – Graduate visa (VC 485) (“skilled visa”). On 15 November 2011, the skilled visa was granted.
The applicant also lodged an application for a Skilled – Independent visa (VB 885) (“permanent visa”). On 18 February 2014, the permanent visa was refused.
On 8 March 2014, the applicant lodged an application for review of the permanent visa refusal decision with the Migration Review Tribunal (“MRT”). [In] October 2014, the MRT affirmed the decision.
On 12 November 2014, the applicant lodged an application for a Protection visa (XA 866).
The applicant attended an interview with the delegate on 1 May 2015.
Claims:
Summarised from the applicant’s XA 866 protection visa application and written claims
The applicant claims she is a Hindu and a citizen of India.
The applicant claims that during her childhood, she felt like a boy and she used to dress and behave as a boy, participating in predominately male sports, such as cricket.
The applicant claims that when she was approximately 14 or 15 years old, she started to get attention from boys and they would seek to touch her when she participated in sporting games with them. The applicant claims she did not like the attention or the touching.
The applicant claims that in 1997, she commenced studying a [degree] at an all-girls college. The applicant claims that during her time at the college she started to question her sexuality when she noticed that she did not enjoy male attention, which was in contrast to the views of other girls in her college.
The applicant claims that at college, a man named [Mr A] started to pay her attention and asked her to be his girlfriend. The applicant claims she was pressured into accepting his offer of a relationship to stop the unwanted attention and teasing by the other girls in her college. The applicant claims that during her relationship with [Mr A], the applicant was confused and did not like [Mr A] buying her gifts.
The applicant claims that after approximately one month, [Mr A] came to the applicant’s home and tried to kiss her. The applicant claims she did not like the experience and asked him to leave her home immediately. The applicant claims that after he left the applicant washed her face 9-10 times. The applicant claims she stopped talking to [Mr A]. The applicant claims that a few days later, [Mr A] came to the applicant and told her that it was his right to kiss her. The applicant claims she told him she did not like such things and slapped him. The applicant claims [Mr A] then left and the applicant has not spoken to or seen [Mr A] since.
The applicant claims that after this incident, the applicant went and talked to one of her girlfriends at her college named [Ms B]. The applicant claims she told [Ms B] about [Mr A] and her feelings towards boys and that during their conversation [Ms B] told her she also had the same feelings towards boys. The applicant claims that after their conversation, the applicant and [Ms B] spent more time together both within the college and outside. The applicant claims they would show each other affection by hugging and kissing when they were alone.
The applicant claims that one day, [Ms B] told the applicant her family had arranged her marriage to a man. The applicant claims [Ms B] told the applicant she had initially refused to marry the man, but her parents forced her to accept after she could not provide a reason why she could not marry him.
The applicant claims she and [Ms B] decided they would go and tell [Ms B]’s parents they were in love. The applicant claims they decided not to disclose that they were in love with each other, instead telling [Ms B]’s family, [Ms B] was in love with someone who was not from her society and caste. The applicant claims [Ms B]’s mother was upset and told [Ms B]’s father and other family members. The applicant claims all of [Ms B]’s family members told her to forget about the relationship and accept the marriage proposal.
The applicant claims that after telling her family she did not want to marry the man, [Ms B] was hit and told she was not allowed to go outside. The applicant claims [Ms B] was told she was not allowed to choose a partner from another society and caste. The applicant claims she was told to leave [Ms B]’s house.
The applicant claims she returned to her home and told her parents about [Ms B] being forced to marry. The applicant claims her parents supported [Ms B]’s family. The applicant claims [Ms B] married the man. The applicant claims her relationship with [Ms B] ended and the applicant never spoke to or saw [Ms B] again.
The applicant claims she continued to study and whilst studying her family started to search for a husband for her. The applicant claims that as she is the only girl in her family, and that she was expected to marry. The applicant claims she knew she could not tell her family about her as she knew they would not accept her and may harm her and force her to marry.
The applicant claims she told her parents she wanted to complete her studies and then work before getting married. The applicant claims her parents accepted her proposal, but she knew they would pressure her in the future to marry.
The applicant claims that during her studies she saw opportunities to study in Australia and thought that this would be a way to leave India and her family’s pressures to marry. The applicant claims she told her family of her plans to study in Australia. The applicant claims her family was initially against the idea and wanted her to stay to marry. The applicant claims she explained that it would be a good opportunity to develop her career and that she would return to India after two years.
The applicant claims her family agreed to allow the applicant to study in Australia if she got engaged first. The applicant claims her family found a man for her to marry. The applicant claims the man came and met her. The applicant claims that upon meeting the man, he expressed an interest but told the applicant that she had to stop wearing jeans and shirts and to wear women’s clothing. The applicant claims she told him she was comfortable in the clothes she was wearing. The applicant claims the man became upset and told the applicant’s parents he would not marry her as he wanted to marry a girl not a boy.
The applicant claims her parents then told her to stop wearing men’s clothing. The applicant claims she refused and was slapped by her brother. The applicant claims her family burnt all her clothes and she was forced to wear women’s clothing.
The applicant claims her family then found another man for the applicant to marry. The applicant claims she met the man and the families agreed for the marriage to go ahead. The applicant claims the man’s family agreed for the marriage to occur after the applicant had finished her studies in Australia.
The applicant claims that in 2007, she applied for and was granted a visa to study in Australia. The applicant claims she planned to apply for permanent residency after she completed her studies so she did not to have to go back to India.
The applicant claims that after she finished her initial studies in Australia, she tried to gain a permanent residency visa but failed to achieve the International English Language Testing System (‘IELTS’) score required and her application was refused. The applicant claims that after her appeals in relation to the permanent residency visa became exhausted the applicant lodged an application for a protection visa.
The applicant claims she cannot return to India as she may be harmed because she is a female homosexual.
The applicant claims the harm she fears will be inflicted on her by her family, the Indian authorities and the Indian community in general.
The applicant claims she will not be provided with any protection from the harm she fears because homosexuality is a crime in India
Summarised from the applicant’s registered migration agent’s (“RMA”) written submission dated 30 April 2015
On 30 April 2015, the Delegate received a written submission from the applicant’s RMA. In summary, the written submissions outlined the applicant’s well-founded fear of persecution, country information in support of the applicant’s claims, the applicant’s inability to relocate to avoid the harm and the ability of the applicant to access protection in India.
Summarised from protection interview with the Delegate
Family background
The applicant claims her religion is Hindi and she continues to practice her religion in Australia.
The applicant claims her study in Australia was sponsored by her father’s friends. The applicant claims they provided sponsorship for two semesters and after that the applicant supported herself through paid employment. The applicant claims she currently works as an [Occupation 1] at [a workplace].
The applicant claims her parents remain residing in India and are retired.
The applicant claims to have three brothers. The applicant claims her brother, [Brother C] remains living with her parents and works in a small business which sells [goods]. The applicant claims her brother, [Brother D] resides in [Country 1] and works as a manager in a [company].
The applicant claims her brother, [Brother D] married in 2008 and divorced in 2010. The applicant claims the marriage had been arranged by the families. The applicant claims the marriage involved domestic violence and although the families intervened to try and save the marriage, the marriage broke down. The applicant claims the divorce caused her family to be talked about within their community. The applicant claims her parents have been active in seeking a new female for her brother to marry.
The applicant claims to speak to her parents and grandmother once every two or three months.
The applicant claims she has no family in Australia.
Sexual orientation
The applicant claims homosexuality is when a girl likes a girl and a boy likes a boy.
The applicant claims she does not like men. The applicant claims she does not like the attention and nor does she like them touching her. The applicant claims she finds a women’s physical appearance and bodies more attractive than a man’s.
The applicant claims it was when she was approximately five or six when she realised she felt like a boy. The applicant claims she would wear boy’s clothes and play predominately boys sporting games.
The applicant claims at college she did not enjoy the attention of boys as the other girls did. She stated this made her feel strange and confused.
The applicant claims that when a friend named [Mr A] started to pay attention to her she felt pressure to say she was in love with him as the other girls at her college had been teasing her because she acted differently to them. The applicant claims that approximately one month later [Mr A] came to her house and tried to kiss her. The applicant claims she was angry and pushed him away. The applicant claims she told him that she didn’t like what he did and asked him to leave. The applicant claims that after he left she washed her face many times as she felt dirty. The applicant claims that [Mr A] later tried to talk to the applicant about what happened saying that as they were boyfriend and girlfriend he was allowed to do those types of things. The applicant claims she slapped [Mr A] and he left. The applicant claims she never communicated with [Mr A] again.
Relationship in India
The applicant claims that in 1997, her first relationship commenced soon after she started studying at the all-girls college. The applicant claims [Ms B] was a senior at the college and the applicant met her through [a] club. The applicant claims they started to spend a lot of time together especially after [Ms B] was voted president and she was voted vice president of the [club].
The applicant claims that after the incident where [Mr A] tried to kiss her, [Ms B] noticed how upset and asked her what was wrong. The applicant claims she told [Ms B] what had happened and [Ms B] confided that she also felt the same way about boys.
The applicant claims her and [Ms B] started to spend a lot of time together. The applicant claims she was in love with [Ms B].
[Ms B]’s marriage
The applicant claims that during her relationship with [Ms B], [Ms B]’s family found a man for her to marry. The applicant claims she and [Ms B] were in shock when they were told this news by [Ms B]’s family. The applicant claims they both became scared and came up with a plan to tell [Ms B]’s family that she was in love with someone else from a different caste in order to stop the arranged marriage.
The applicant claims that [in] November 2002, she went with [Ms B] to tell [Ms B]’s mother that [Ms B] was in love with someone else. The applicant claims [Ms B]’s mother then told [Ms B]’s other family members. The applicant claims [Ms B]’s family were very angry and in response physically hurt [Ms B]. The applicant claims she tried to intervene but when she did she was told to leave and not tell anyone about what had happened. The applicant claims that after this the applicant tried to contact [Ms B] many times but her calls were not answered and nor would they answer the door when she attended [Ms B]’s house.
Relationships in Australia
The applicant claims that since living in Australia she has not openly told anyone she is a homosexual.
The applicant claims to have registered on three dating sites; ‘[Site 1]’, ‘[Site 2]’ and ‘[Site 3]’. The applicant claims she has chatted with people on these sites but has not taken it any further.
The applicant claims she has also attended some hiking activities with a women’s lesbian group ‘[Group 1]’. The applicant claims she has not attended these activities for approximately fifteen months due to the stress she has been under.
The applicant claims she has gone out on three dates with a woman named [Ms E]. The applicant claims [Ms E] is an Australian. The applicant claims that after the third date they decided to not go any further because they enjoyed different things. The applicant claims [Ms E] liked to drink and smoke and go out. The applicant claims she does not.

The applicant claims she would like to meet and date a lady from within her own Indian community. The applicant claims she would like someone good at heart who is a soft talker who smiles all the time.
Arranged marriage
The applicant claims she has not disclosed her sexual orientation to her parents. The applicant claims that if she did she believes she will be harmed, hit, discriminated against and forced to marry a man.
The applicant claims her family is very conservative and her getting married is important for them. The applicant claims her parents are ready for her to be married to a man and that they have stated to her that she is getting too old.
The applicant claims she fears on return to Indian, unmarried women are not meant to live in the family home without being married and she will be forced to marry. The applicant claims she does not want to marry as she will be raped if she does. The applicant claims that if she is forced to marry and discloses her sexual orientation to her husband, he will also harm and torture her and may even force her out of the marital home.
The applicant claims that when she was in India her parents had actively looked for a man to arrange her marriage to.
The applicant claims that since arriving in Australia, she has told her parents she is unable to return to India as the visa she holds does not allow her to travel. The applicant claims that at the beginning, her parents believed her and just asked her to return as soon as she could, however more recently her parents have gotten more upset and believe she is not returning to India because she is in a relationship in Australia.
Return to India
The applicant claims that if she returns to India, even if she does commence a relationship with a female, she is unable to live with them and disclose that they are partners. The applicant claims that if the neighbours/community where she was living found out that she was in a relationship with a female, her and her partner would be harassed and tortured and forced to leave. The applicant claims the torture would be in the form of physical and verbal abuse.
Authorities
The applicant claims she would be unable to go to the Indian authorities and report any harassment or torture because homosexuality is a crime in India and the Indian culture does not accept it, as it is viewed as not a natural thing. The applicant claims that some people within the Indian community see homosexuality as a disease and something they could catch.
Single female
The applicant claims that if she returns to India, she will be a single female who will be living on her own and this will cause her to be taken advantage of. The applicant claims she is scared she will be raped as there will be no one to protect her.
The applicant claims that in India she will have difficulties finding accommodation on her own. The applicant claims lots of questions will be asked of her and no one will rent to her as they will think she is involved in some sort of sexual activities.
The applicant claims that she fears she will not be offered any employment as sexual harassment is prevalent in India and there are no laws to stop it. The applicant claims that if she sought to complain nothing would be done because she is a single female.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
·The applicant’s protection visa application forms completed and lodged on 12 November 2014 (“visa application”);
·The applicant’s identity documents being a copy of her passport, birth certificate, passport photographs and educational certificates and records;
·The protection visa decision record (“Delegate’s decision record”) dated 9 September 2015;
·The review application form, which did not include a copy of the Delegate’s decision record;
·All documents submitted to the Department in support of the applicant’s protection visa application, including photographs of the applicant and her family, the applicant’s RMA’s written submission dated 30 April 2015, the applicant’s written statement of claims (undated), educational certificates and records;
·The applicant’s RMA’s written submissions dated 5 April 2016, 27 April 2016 and 12 April 2021; and
·The applicant’s statutory declaration dated 12 April 2021;
·Country information from the applicant’s submissions and other sources, as discussed at the hearing before the Tribunal on 14 April 2021. The Tribunal also had regard to the Department of Foreign Affairs and Trade’s (“DFAT”) most recent Country Information Report on India, published on 10 December 2020 (“the DFAT Report on India”) and DFAT’s most recent Country Information Report on Nepal, published on 1 March 2019 (“the DFAT Report on Nepal”)
Country of reference / receiving country:
The applicant claims to be a citizen of India. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that India is her country of nationality.
Hearing:
The applicant attended the hearing on 14 April 2021 which was conducted in-person at the Brisbane registry of the Tribunal. She was accompanied and represented by her RMA, who appeared via telephone. The hearing proceeded in the English language, but with the assistance of a Gujarati interpreter as required.
After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa, she must either be recognised as a refugee or be a person entitled to Complementary Protection.
The Tribunal explained that under Australian law, to be a refugee she must have a well-founded fear of persecution in India. This means the Tribunal must be satisfied that there is a real chance that she will face serious harm if she returned to India. The harm must be directed at her for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.
With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk she will suffer significant harm if removed from Australia to India.
The Tribunal read to the applicant a summary of her claims as set out above, that is, that she is a homosexual female, that she fears telling her family, that her family will not support her, will ask her to leave the family home and force her into an arranged marriage. The Tribunal asked the applicant whether her claims as read to her were accurate and complete. The applicant raised her claim that she would be a single female in India living on her own without protection. The applicant confirmed that they were accurate and complete and that she had no other claims.
The Tribunal noted the applicant’s statutory declaration dated 12 April 2021 which confirmed that the applicant maintained all of her claims submitted in the forms of submissions, statements and oral evidence to the department and the First Tribunal.
The Tribunal confirmed with the applicant that no witnesses were recorded for appearance during the hearing.
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. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. 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’. (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 discussed the applicant’s background and claims with her.
The Tribunal noted the applicant’s extensive statements, her evidence to the delegate and the evidence provided to the First Tribunal.
The Tribunal explained to the applicant that it had noted, and was impressed by, the consistency of her evidence throughout, and on that basis was prepared to accept her fundamental, or core, claims as follows:
The Tribunal accepts that the applicant is homosexual.
The Tribunal accepts that the applicant was in a lesbian relationship with her friend [Ms B] in India.
The Tribunal accepts that the applicant’s family have put pressure on her to marry, both after she arrived in Australia in 2007 and before that time.
The Tribunal accepts that, before she arrived in Australia her parents, in 2007, arranged for the applicant to meet with potential husbands on two occasions.
The Tribunal accepts that the applicant’s brother slapped the applicant and burnt her jeans and shirts when the applicant’s parents were told by a prospective husband’s parents that the applicant should not dress like a boy.
The Tribunal accepts that the applicant’s parents arranged for the applicant to marry the second boy they introduced to the applicant. The Tribunal accepts that the families agreed for the applicant to spend two years in Australia before returning to India to marry the boy.
The Tribunal accepts that the applicant has told her parents that she can not return to India because she is unable to travel on her visa. The Tribunal accepts that the applicant’s parents do not now believe this story.
The Tribunal accepts that the applicant has not been in a relationship since she separated from [Ms B] in 2002.

100. The Tribunal accepts that the applicant had three dates with a woman in Australia but that nothing further happened.
101. The Tribunal accepts that the applicant has chatted to other women occasionally on lesbian websites.
102. The Tribunal then discussed with the applicant that it would focus its further discussions on her claim to fear harm from her family, and the possibility that the applicant could relocate in India, and that such relocation would be reasonable and practicable. The Tribunal said it would also be necessary to discuss whether the applicant had a right to reside in Nepal, and whether she had attempted to exercise that right, and if not, that she might then be excluded from Australia’s protection obligations.
103. The Tribunal considered Country Information that it had obtained from the DFAT Report on India:
Sexual Orientation and Gender Identity
3.155 Local sources told DFAT lesbian, gay, bisexual, transgender and/or intersex (LGBTI) persons lack protection, have poor education and health outcomes, and face intolerance, abuse and violence in their daily lives. Attitudes towards and experiences of LGBTI individuals can vary, in part due to disparities between urban and rural India, language, caste, class and gender. According to a 2019 International Commission of Jurists (ICJ) report, LGBTI persons face extensive rights violations in relation to:
- housing and within the home, including discrimination in the rental market, denial of housing, segregation into poorly resourced neighbourhoods, violence and harassment (from landlords, neighbours, family and police), and homelessness;
- all stages of the employment process, including unequal access to educational opportunities, discrimination during the recruitment process, discriminatory and gendered work conditions, and lack of job security; and
- access to public spaces, including harassment, physical and verbal violence, denial of access, invasive surveillance and discriminatory pricing.

3.156 In urban areas, there are reportedly venues for the LGBTI community to meet and socialise, although not openly. In 2016, an online dating platform for the LGBTI community, ‘Amour Queer Dating’, was launched. There are also groups focused on support and advocacy for LGBTI women in Bangalore (ASQ), Mumbai (Labia), Kolkata (Sappho for Equality) and Chennai (Sahodaran) and trans-specific groups including Sampoorna, Tweet Foundation and Telangana Hijra Trans Intersex Samiti.
3.157 The constitution (Articles 14 and 21) guarantees the right to equality before the law and equal protection under the law. Article 15 prohibits discrimination on the grounds of sex. In 2014, the Supreme Court of India ruled the rights and freedoms of transgender people were protected under the constitution, including the right to self-perceived gender identity in the absence of gender reassignment surgery. In August 2020, the Government of India formed a National Council for Transgender Persons, to advise on relevant policy and legislation affecting transgender persons.
3.158 The Indian Armed Forces ban LGBT persons from openly serving. In December 2018, a member’s bill was introduced into parliament to amend the Army Act, (1950), Navy Act, (1957) and the Air Force Act, (1950) to allow LGBT persons to serve in the Armed Forces. In 2019, however, the Indian Army Chief General stated homosexuality would continue to be considered an offence in the armed forces. Under the Army Act, any person found guilty of unbecoming or, disgraceful conduct of a ‘cruel, indecent or unnatural kind’ can be imprisoned for up to seven years. Despite not detailing such conduct explicitly, the euphemistic language in the Act is interpreted to include same-sex sexual relations.
3.159 According to Human Rights Watch (HRW), LGBTI youth face harassment and bullying, and often skip school or drop out altogether to avoid humiliation and violence. HRW claims educators lack training to respond to the needs of LGBTI students and, at times, participate in harassment against them. In 2019, UNESCO reported bullying, harassment and violence resulted in the denial of educational training opportunities to LGBTI students. According to ICJ, barriers to LGBTI students’ participation include gender specific uniforms, lack of access to toilets and difficulties in obtaining accurate identity documents. ICJ cited cases of teachers beating and berating ‘effeminate’ male students and forcing transgender students to sit separately from their peers.
Lesbians
3.161 Local sources told DFAT the situation for lesbians is difficult in that they lack safe spaces and, particularly in rural areas, often cannot talk about their sexual orientation. While issues of sexuality are discussed more openly in cities, sources claim the lesbian community still lacks access to services in urban areas. Sources were aware of a number of suicides of lesbians in 2019. Although information on lesbians in India is scarce, DFAT understands lesbians often experience sexual, physical and emotional violence, including lack of control over resources or forcible psychiatric treatment. Lesbians report feeling unsafe and sometimes being forced to marry men. Reports suggest lesbians seeking to end sexual or physical abuse in such relationships would either need to leave the situation (and sever family ties), or deny their sexuality.

104. The Tribunal also noted the United Kingdom Home Office Country Policy and Information Note: India: Sexual orientation and gender identity, Version 2, February 2017 provides”
“b. State treatment of lesbians and bisexual women
2.3.9 The Upper Tribunal’s determination in the Country Guidance case AR and NH (lesbians) India CG [2016] UKUT 00066 (IAC) (heard on 23 June 2015 and promulgated 1 February 2016) found that ‘...both parties accept that there have been no prosecutions of lesbians under section 377 at all, and that in practice, section 377 is perceived in Indian law as inapplicable to lesbians.’ (Paragraph 64)
There are no other laws in India which criminalise lesbian sexual activity. Women are not, therefore at risk of prosecution for same-sex sexual activity (see Legal rights: Lesbian and bisexual women).
e. Societal treatment of lesbians
2.3.16in the case of AR and NH the UT found:

‘A risk of persecution or serious harm for a lesbian woman in India, where it exists, arises from her family members, and the extent of such risk, and whether it extends beyond the home area, is a question of fact in each case.
‘The risk of persecution or serious harm is higher for uneducated lower class lesbian women in rural areas, who remain under the control of their family members and may not be permitted to leave the home to continue meeting their lesbian partners.’
2.5.3In AR and NH (lesbians) India the UT found that:

‘Where family members are hostile to a lesbian woman’s sexuality, they may reject her completely and sometimes formally renounce her as a member of that family. In such a case, whether relocation to a city is unduly harsh will be a question of fact, depending on the ability of such a lesbian woman to survive economically away from her family and social networks.’
‘If a lesbian woman’s family wishes to pursue and harm her in the place of internal relocation, their ability to do so will depend on the reach of the family network, how persistent they are, and how influential. The evidence indicates that there is normally sufficient state protection for women whose families seek to harm them in their place of internal relocation.’
‘In general, where there is a risk of persecution or serious harm in a lesbian woman’s home area, for educated, and therefore ‘middle class’ women, an internal relocation option is available. They are likely to be able to relocate to one of the major cities in India and are likely to be able to find employment and support themselves, albeit with difficulty, and to live together openly, should they choose to do so. In general, such relocation will not be unduly harsh.’

105. The Tribunal accepts that section 377 is perceived in Indian law as inapplicable to lesbians, that there are no Indian laws which criminalise lesbian sexual activity and that there have been no prosecutions of lesbians under section 377 of the Indian Penal Code.
106. The Tribunal accepts the finding of the United Kingdom Upper Tribunal in AR and NH, that a risk of persecution or serious harm for a lesbian woman in India, where it exists, arises from her family members.

107. The Tribunal also accepts the Upper Tribunal’s finding that where family members are hostile to a lesbian woman's sexuality, they may reject her completely and sometimes formally renounce her as a member of that family. In such a case, whether relocation to a city is unduly harsh will be a question of fact, depending on the ability of such a lesbian woman to survive economically away from her family and social networks.
108. The Tribunal discussed the applicant’s family’s likely response to them learning of the applicant’s homosexuality.
109. The applicant explained that her family were very conservative and followed the rules of society strictly. They held the view that a single girl must be married.
110. The applicant was most concerned that she would be unable to remain at her home. That if she resisted getting married, her family would demand that she move out. She reiterated the social pressure to be married and that daughters have no choice.
111. The applicant stated that she believes her parents and family will physically assault her and restated that her brother had once slapped her.
112. The Tribunal asked about those circumstances. It asked whether the brother was acting on behalf of the parents or did he take it upon himself to slap her. The applicant replied that after her boyfriend’s parents had told her parents that they needed to teach the applicant how to dress, her parents and brothers became offended. She said her older brother became very angry and slapped her. She said that her father didn’t need to hit her as her brother had already done so. She went on to add that all of her clothes were burned.
113. Her concerns about being turned away from the family home lead into a discussion about the possibility of her relocating to another city, and whether that would be reasonable for her to do. The applicant had come armed to the hearing with many facts about the difficulties single women encounter in large cities. She stated that staying in a hotel would be expensive and unsustainable for her. She advised that there are about 73,000 beds in hostels for single women, but that there aren’t enough. She also stated that there is a three year limit on staying in the hostels. There is inadequate medical help for single women and curfews at night. She stated that there were men who hung out around the hostels seeking to take advantage of the single women and she stated that rejection of their approaches can lead to kidnapping and acid attacks. The applicant also stated that even if she had a partner, she would not be allowed to live with one in a hostel. Basically, she stated that living in a hostel makes her a target for sexual harassment because males know that the girls living in hostels have no family or physical support.
114. The applicant also stated that she would be required to provide the details of her family to a hostel, and she went on to add that her family may not want to help her.
115. The Tribunal asked the applicant about the possibility of taking an apartment as it was likely that she would get a job at some stage. The applicant replied that apartments were expensive and that to get an apartment would require references from her family. She also stated that apartment owners generally don’t want to give rooms to single girls, as they suspect they are involved in prostitution. Furthermore, any neighbours would not want a homosexual living next door to them.
116. The Tribunal asked the applicant about her employment prospects, noting that she had worked as an [Occupation 2] in India before traveling to Australia. She replied that she had only worked as an [Occupation 2] for three years and she doubted that she had adequate experience as there were many more people with greater qualifications than her looking for [Occupation 2] jobs. She said that she does not have enough experience. Further, as a single woman, she would endure more harassment in the workplace.
117. The Tribunal confirmed that the applicant had been working in [Occupation 1 in Australia]. She confirmed that was the case but only part time. The applicant then spoke again of employment conditions in India and drew comparisons between males and females – if a female complained about anything it was made clear to her that she could leave if she wanted to, that males don’t get punished and there is no support for females.
118. The representative submitted that notwithstanding any recent law changes in India, society has not changed and big cities have not changed. He stated that the applicant will have nothing to start life with in India if forced to return, that she will be homeless and that there is no state protection. He stated that there is gender inequality and that it will be difficult for her to survive.
119. The Tribunal considered the applicant’s claims and evidence. It was clear to the Tribunal that the applicant feared telling her family of her homosexuality. She feared the consequences of possible physical harm from family members if she returned to the home. She feared being forced into a marriage that she didn’t want. She also feared the consequence of being turned away from the home. And that in turn fed into her fears of being alone in India as a single woman requiring accommodation at a hostel.
120. At no time in her written claims or evidence, or in subsequent submissions, did she allude to concerns about her family following her or trying to track her down to inflict harm upon her. In fact, when advising that she might be required to leave details of family contact details, she advised that her family may not want to assist her.
121. The Tribunal accepts that the applicant subjectively fears the consequences of being turned away from her home and is very concerned about having to find a home in a big city. The consequences for the applicant are that she will be obliged to relocate.
122. The Tribunal accepts the country information above that states that ‘where family members are hostile to a lesbian woman’s sexuality, they may reject her completely and sometimes formally renounce her as a member of that family.’ The Tribunal accepts that this may be applicable to the applicant.
123. The Tribunal finds that the applicant’s family, while likely turning her away from the family home and possibly also disowning her, would not seek to track the applicant and seek her out to administer any harm to her.
124. This finding is of significance in the Tribunal’s consideration of the application of s.36(3) below.
Does the applicant have the right to enter and reside in Nepal?
125. The Tribunal explained to the applicant that it had to consider whether or not she has a presently existing right to enter and reside in a third country, being Nepal, within the meaning of s.36(3), and that if she did, then she may be excluded from Australia’s protection obligations, unless the Tribunal was satisfied that she has a well-founded fear of persecution in that country or that there are substantial grounds to believe there is a real risk she would suffer significant harm in that country, or that she has a well-founded fear of being removed from that country to India.

There is no requirement under s 36(3) that moving to the third country for protection be reasonable or practicable, only that they have a present right to enter and reside and have taken all possible steps to avail him/herself of a right to enter or reside. In considering ‘all possible steps’, that should not be read down and should not be construed as all ‘reasonably practicable’ steps. The Tribunal must be satisfied there is at least one possible step the applicant could have taken. The right referred to must be a presently existing right that is available at the time of decision, not a right that could be acquired at that time.

127. The applicant indicated that she was aware of the issue. The issue had been addressed by the representative in his submissions.
128. The Tribunal noted that the representative had addressed the issue in his submission and noted the representative’s submission as to how the applicant could not have a right to enter and reside in Nepal by reason that her passport had expired and that she would be required to advise the Indian High Commission of the fact of her protection visa application in order to obtain renewal of her passport.
129. The Tribunal noted s.36(3) and the issues relating to the Indo-Nepal Treaty of Peace and Friendship of 1950 as well as the administrative arrangements for entry of Indian citizens to Nepal which appeared to give the applicant, because of her Indian nationality, the right to enter and reside in Nepal. The Tribunal noted country information the Tribunal had had regard to, and which had been set out in the Delegate’s decision, appeared to indicate that Articles 6 and 7 of the Treaty, and the administrative arrangements for entry by Indian citizens, as set out on the Nepal Immigration website, a Nepali government site, which listed identity documents which would allow Indian citizens to enter Nepal including, relevantly, a passport, appeared to allow the applicant to enter and reside in Nepal, and the Tribunal noted that these arrangements appeared to indicate that he could enter Nepal at the border, and reside there. [1]
[1] Accessed at the Government of India Ministry of External Affairs website;
130. Section 36(3) provides that:
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.

131. Section 36(3) requires a right to enter and reside in another country; that right may be temporary or permanent, and there is no restriction on the manner in which the right arises or is expressed. The section does not refer to, or presuppose, a legally enforceable right under domestic law. The issue was considered by the Full Federal Court in MIAC v SZRHU, where the Court held that it is sufficient to have a ‘liberty, permission or privilege lawfully given’ which has not been withdrawn.[2] The relevant ‘liberty, permission or privilege’ must be a permission which obtains its effective substance from its grant “and thereafter from the lack of any withdrawal of it and from the lack of any existing prohibition or law contrary to its exercise.”[3] The right referred to in s.36(3) must be an existing right, and not a past or lapsed right, or a potential right or an expectancy.
[2]     MIMAC v SZRHU [2013] FCAFC 91 (Tracey, Buchanan, Flick, Robertson and Griffiths JJ, 14 August 2013).
[3]     V856/00A v MIMA (2001) 114 FCR 408 per Allsop J (at [31]), cited in MIMAC v SZRHU [2013] FCAFC 91 (Tracey, Buchanan, Flick, Robertson and Griffiths JJ, 14 August 2013) per Buchanan J at [45]. Justice Buchanan (at [89]), all other members of the Court agreeing, endorsed this construction by Allsop J.
132. In SZRHU the Court considered the bilateral agreement between India and Nepal known as the Indo-Nepal Treaty of Peace and Friendship of 1950, and directed that the Tribunal should pay regard to the actual terms of the Treaty, and evaluate whether, in combination with the terms of the Treaty, the administrative arrangements for entry by Nepalese citizens at the Indian border (or any other arrangements with respect to entry identified by it) satisfy the test of a ‘liberty, permission or privilege lawfully given’, to enter and reside in the country. In this context, the Tribunal notes that Article 7 of that Treaty provides that Indian nationals such as the applicant can enter and reside in Nepal:
The Governments of India and Nepal agree to grant, on a 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.[4]
[4] Accessed at the Government of India Ministry of External Affairs website; Available information indicates that the administrative arrangements relating to the entry of Indian nationals into Nepal allow them to enter Nepal without seeking a visa or other permission and that these arrangements pertain under the provision of the treaty.[5] According to a 2013 article by Professor of Economics and Executive Director of the Centre for Economic and Technical Studies in Nepal, Hari Bansh Jha, ‘there is no need of passport or visa formalities among the border inhabitants or other nationals of Nepal and India. The nationals of one country can enter into the other country through the border not merely through the checkpoints but through any point’.[6] This article states that while there are 22 official checkpoints along the Nepal-India border, citizens of Nepal and India ‘can cross over the border without any restriction from any point’. Nationals of other countries ‘require both an entry and exit visa and they must cross over the border through six immigration points’. The article also comments on the ability of Nepalese and Indian citizens to escape from one country to the other, stating that when ‘there is any political upheaval in one country, people easily escape by crossing over the border’. There is no evidence before the Tribunal that indicated the existence of practical barriers for Indian citizens being able to travel to and enter Nepal.[7]
[5]     See ‘Information for Indian Citizens’, Nepal Immigration, available at     Jah, H 2013, ‘Nepal’s Border Relations with India and China’, Eurasia Border Review, Spring, p. 63, available at
[7]     Searches conducted on CISNET, open source search engines, human rights organisations, non‑government organisations, international news outlets and academic journals.
134. In this context, the Tribunal has taken into account relevant immigration laws in Nepal with regard to the entry rights of non-citizens, including the Immigration Act 1992, the Immigration Regulations 1994 and including the Immigration Procedures 2008, as those laws are published on the website of the Department of Immigration, Nepal, as the ‘Immigration Manual’.[8] Relevantly, the Immigration Procedures 2008 prescribe in Paragraph 8.4 the following requirements for the entry into Nepal of Indian citizens:
[8]     See Nepal Government, Immigration Manual, available at
8.4   To allow Indian citizens to make travel on the basis of the following document:
·Passport, or
·Driving license with photograph, or
·Identity card with photograph issued by a governmental body, or
·Ration card with photograph, or
·Voter identity card with photograph, or
·Registration certificate issued by the Indian embassy to the Indian citizen staying in Nepal, or
·Ad hoc/temporary identity card issued by the Indian embassy to the Indian citizen in the event of exigency, or
·Document with photograph and setting out identity, issued by the sub-divisional magistrate or authority there above.
This information is replicated on Nepal’s Department of Immigration website.[9]
[9]     See ‘Information for Indian Citizens’, Nepal Immigration, available at The website of the Embassy of Nepal in New Delhi provides information about the various visa types issued by the Embassy for entry to Nepal of non-Nepalese nationals, and, provides the following information for ‘Indian nationals’ entering Nepal by air at Tribhuvan International Airport, Kathmandu:[10]
[10] See Embassy of Nepal, New Delhi, ‘Visa Information’ available at
Visa for Indian Nationals:
Effective from 1st October 2000 an Indian citizen over the age of 10 years travelling between India and Nepal by air would have to keep in his possession any of the following documents to establish his/her identity as an Indian citizen:
·Valid Indian passport; or
·Photo identity card issued by the Government of India, or any State Government or Union Territory Administration in India, or the Election Commission of India; or
·Emergency certificate issued by the Embassy of India in Nepal.
136. The above information indicates that an Indian national is required to present at least one of the mentioned documents to ‘establish’ his nationality before he will be admitted into Nepal. This information indicates that, on producing one of those documents to an immigration border official in Nepal, an Indian citizen will be admitted into Nepal. Indeed, it is the fact of having Indian nationality that creates the right of entry and the passport or other form of identity document is merely evidence of the right of entry. The passport or other ID document does not create the right, and the ‘right’ to enter Nepal exists at all times a person is a national of India, and an Indian national merely needs to present one of the prescribed documents at the border to be admitted into Nepal.
137. In this regard, the Tribunal notes and confirms its finding above that the applicant is an Indian national.
138. In considering the applicant’s right to enter and reside in a third country, the Tribunal has referred to Chapter 6 of the Immigration Manual 2008 and covers procedures relating to investigation into and action on immigration offences, and that at 6.1 it provides that:
6.1 In relation to persons deported by foreign countries and sent back to Nepal:
Obligation and working procedure of the Immigration Office:
1.1 Prior to receiving documents, the Immigration Office shall carry out a preliminary inquiry, based on the available documents, as to whether the person deported by a foreign country and sent back to Nepal is a citizen of Nepal or not, whether he or she is to be allowed to enter into Nepal or not.
1.2 If it appears from the inquiry referred to in clause 1.1 that such person is a citizen of Nepal or a person who is to be allowed to enter into Nepal, to receive the documents and person from the concerned airlines. If that person is not found to be a citizen of Nepal, not to receive that person and then the custody of that person shall remain with the concerned party.
For this purpose, if the visitor uses the travel document of the concerned country, to take such preliminary statements from him or her as to answer the following questions.
His or her name, surname, address, age and occupation, and his or her father's and grand-father's name:
Whether he or she has obtained citizenship certificate or passport or not. If yes, where, when and how he or she has obtained it. Description setting out its number and date.
Where is the passport obtained previously? What is its condition? After obtaining the passport, how did he or she obtain visa of which country? Which point did he or departed from and to which destination?
139. The Tribunal notes first that the Nepal Procedures Manual support Nepali legislation and policy and as such the reference to ‘immigration offences’ are to offences under Nepalese immigration law. The applicant has not committed offences under Nepali immigration law and involuntary removal from Australia would not constitute such an offence. On this basis, the Tribunal does not accept that provisions under Chapter 6 would apply to the applicant in the event she was removed involuntarily from Australia.

140. Even if the procedures applied to the applicant, the Nepal Immigration office would nonetheless identify the applicant as an Indian national from the documentation provided and based on the Treaty discussed above she will be found to be an Indian national and will be allowed to enter and reside in Nepal. In the applicant’s case, the provision above that “If it appears from the inquiry referred to in clause 1.1 that such person is a citizen of Nepal or a person who is to be allowed to enter into Nepal, to receive the documents and person from the concerned airlines” applies. The Tribunal finds the applicant has a presently existing right to enter and reside in Nepal. The Tribunal finds the administrative arrangements for entry in Nepal provide liberty, permission and privilege lawfully given to the applicant.
Passport renewal
141. The applicant’s representative submitted that the applicant’s Indian passport expired [in] September 2016.
142. The applicant’s representative advised that the applicant has not taken steps to obtain the passport after its expiry because she was not able to obtain a passport.
143. The representative submits that in order to obtain renewal of a passport, the applicant is required to provide a declaration to the effect that she has not “taken asylum nor applied for asylum/refugee status”. (Emphasis of Tribunal) The representative states that the applicant cannot make this declaration and therefore cannot obtain an Indian passport.
144. The representative, in his footnotes, referenced VFS Global which is responsible for renewing or providing new Indian passports. The Tribunal notes that VFS Global has provided clear particulars and requirements to obtain a passport or renew a passport in Australia by reference to the VFS website. The Tribunal has examined the processes described by the applicant’s representative and notes the requirements in the case of a expired passport that a checklist be completed.[11] The Tribunal notes that one of the requirements in the check list is that the applicant must provide her Visa Entitlement Verification Online (VEVO) and further notes that in relation to all bridging visas, a 'Visa Grant Notice' must be provided clearly specifying the category of visa applied for. The Tribunal suspects that the representative, by reference to “a statement in effect” in his submission, is suggesting this means the applicant is expected to disclose the basis on which she holds the bridging visa. The Tribunal understands that it is submitted that if the Tribunal insists the applicant approach the Indian authorities to obtain a new passport, the applicant would be forced to divulge her protection visa matters or claims to the authorities from whom she seeks protection.
[11] Accessed at the VFS Global website:
145. The Tribunal considered the Federal Circuit Court of Australia decision in ECY17 v Minister for Immigration & Anor[12].
[12] [2020] FCCA 2989
146. In that case, the Court considered whether the Tribunal had misunderstood one sentence in the VFS Global checklist requirements that the Tribunal considered in its reasons. The applicant in that case had submitted that if he applied for a replacement for his lost passport while holding a bridging visa he would need to produce, amongst other things, a “Visa Grant Notice” (along with any other VEVO requirements) clearly specifying the category of visa applied for.
147. The Court considered the checklist and held that it was open to three interpretations.
“The first possibility is that the requirement is that the passport applicant must identify not only the grant of a bridging visa but also the type or category of bridging visa obtained. That is the interpretation adopted by the Tribunal and, in my view, it was an interpretation open on the material. The second possible interpretation is that the passport applicant must identify if the category of bridging visa obtained is different from the particular bridging visa applied for. The third possibility, and that asserted by the applicant, is that the requirement is that the passport applicant identify the substantive visa relating to the grant of the bridging visa. That is a possible, but less likely interpretation. As I put to the applicant’s solicitor in oral argument, the bridging visa may be unrelated to any application for a substantive visa. For example, a bridging visa might be granted for the purposes of the applicant making arrangements to depart Australia.”[13]
[13] Ibid, paragraph 21.

148. The Judge went on….
“It is necessary to make a few observations about this instruction. First, the expression “clearly specifying the category of visa applied for”, was a reference to the content of the Visa Grant Notice, and was not a request for the applicant to disclose his protection visa application. Secondly, in respect of the instruction requiring that the Visa Grant Notice “clearly specify….the category of visa applied for it must be noted that the applicant had not been granted a protection visa, and hence he could not be in possession of a visa grant notice confirming the grant of a protection visa, if indeed that was what he was expected to produce.”[14]
[14] Ibid, paragraph 26

149. The Tribunal does not accept the representative’s submission that the applicant cannot enter or reside in Nepal as she does not have a valid passport and could not obtain a new passport from the Indian authorities unless she divulged her application for asylum or refugee status. The Tribunal does not accept that the applicant will be required to declare that she has sought asylum or declared her refugee status or that she will be denied a passport for this reason. The Tribunal finds the applicant has a presently existing right to enter and reside in Nepal. The Tribunal finds the administrative arrangements for entry in Nepal provide liberty, permission and privilege lawfully given to the applicant. The Tribunal is satisfied that the applicant can seek a renewal of her passport without having to disclose her refugee status or application for asylum.
150. Taking into account all the discussion above, the Tribunal finds that the applicant has an existing right to enter and reside in Nepal. The Tribunal notes that s.36(3) does not permit a decision maker to consider whether the exercise of a right to enter and reside is ‘reasonable’, rather it requires consideration of whether a person has taken ‘all possible steps’ to avail themselves of a right to enter and reside. The Tribunal finds that while the applicant may face challenges in establishing herself in Nepal, s.36(3) does not incorporate any requirement to consider matters such as a person’s ability to obtain employment or accommodation, or to access welfare benefits upon taking up residence. Nor are Australia’s protection obligations enlivened by virtue of the possibility that a person may suffer privation or be exposed to significant difficulties in maintaining a lifestyle by exercising such a right outside Australia.
151. The Tribunal has also considered whether the applicant has taken all possible steps to avail herself of her right to enter and reside in Nepal. On the evidence before it, the Tribunal finds the applicant has not taken all possible steps to avail herself of her right to enter and reside in Nepal. The Tribunal finds that s.36(3) applies in the applicant’s case.
152. If the Tribunal finds that s.36(3) applies, the Tribunal must then consider s.36(4):
36(4) 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.

153. Having concluded that the applicant has an existing right to enter and reside in Nepal, the Tribunal has considered the applicant’s claims to have a well-founded fear of persecution in Nepal or whether there are substantial grounds to believe there is a real risk she would suffer significant harm in Nepal, or that she has a well-founded fear of being removed from Nepal to India.
154. The Tribunal considered the applicant’s claim to fear harm as being a homosexual woman.
155. The Tribunal considered Country Information that it had obtained from the DFAT Report on Nepal:
India-Nepal Treaty of Peace and Friendship
5.20 There is a long history of free and unregulated movement of people between India and Nepal. The Anglo-Nepal War of 1814 and the subsequent treaty of peace signed between the British East India Company and Nepal in 1816 resulted in the first delineation of the border. The British maintained an open border to facilitate the free movement of people and goods between the two countries and a number of colonial era agreements were made to this effect.
5.21 India and Nepal agreed their Treaty of Peace and Friendship in 1950 (the Treaty). At the time, the Treaty was intended to maintain the special ties between Nepal and India that had existed in the British colonial era. Nepal also had security concerns following the Communist Revolution in China in 1949.
5.22 Article 7 of the Treaty provides for each country ‘to grant, on a 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’. The Treaty therefore provides for freedom of movement across borders between the two countries and equal rights in the participation in the economy and legal system. India has waived its right to reciprocity under the Treaty. Close collaboration between the two countries on foreign affairs and defence policy also occurs under the Treaty.
5.35 Indians living in Nepal are able to participate in Nepali society and enjoy the same rights as Nepalis, with the exception of being able to join the Nepali public service. The border is open and Indians may freely come and go from Nepal. DFAT is not aware of any patterns of systemic discrimination against Indians in Nepal.
LGBTI
3.76 The new constitution has granted sexual and gender minorities a number of rights and allows the state to pass laws to protect, empower and advance their interests. Nepal is one of the few countries in the world to have such constitutional provisions. Practically speaking, local LGBTI NGOs report that LGBTI people face discrimination in accessing government services, including accessing citizenship documents and in accessing police protection from violence and harassment.
3.77 The Government has yet to implement Supreme Court orders from 2007 and 2008 abolishing all laws that discriminate against LGBTI people. Citizens can now obtain third-gender identity documents. Pride parades and transgender beauty contests have taken place in Kathmandu and LGBTI NGOs operate openly. In April 2014 the Ministry of Women, Children and Social Welfare assigned a focal person for sexual and gender minorities and funding for LGBTI advocacy groups has decreased in recent years.
3.78 According to a 2007 court ruling, genders other than ‘male’ or ‘female’ should be able to listed on identity documents, including citizenship certificates and passports. A further court ruling in 2017 re-emphasised the government’s responsibility to issue such documents. These reforms have been introduced gradually. According to Freedom House, the first time a third-gender passport was issued was in 2015.
3.79 DFAT assesses that LGBTI people face a low risk of official discrimination and harassment and a moderate risk of societal discrimination. LGBTI people face a low risk of violence. While the risk of discrimination, harassment and violence is declining overall, the risk is lower in general in urban areas. General community attitudes towards same sex relationships remain negative. LGBTI people from lower castes or from lower socio-economic backgrounds face a higher risk of harassment, discrimination and violence.

156. This information tends to indicate that the central government has taken steps towards recognising the legal rights of the LGBTI community and that societal attitudes towards the LGBTI community, particularly in urban areas, are changing.
157. The Tribunal considers that the weight of independent information set out above indicates that there is a significant degree of tolerance of homosexuality in Nepalese society, that homosexual people are not routinely subject to harm by either authorities or the general population, and that the government, police and other authorities are attempting to create a legal space and equality for LGBTI people. The Tribunal has carefully considered the information and evidence before it, and does not accept that there is a real chance the applicant will suffer serious harm, or that there are substantial grounds to believe there is a real risk she will suffer significant harm, for reasons of her sexual orientation as a homosexual woman or in any other manner connected with her sexuality.
158. The Tribunal accepts that the applicant will live openly as a homosexual in Nepal and not conceal or supress her homosexuality in any way. On this basis, the Tribunal accepts the applicant’s homosexuality may come to the attention of members of the community in Nepal. Given the country information above, the Tribunal accepts the applicant may face harassment, discrimination and negative attitudes. The Tribunal has carefully considered whether any discrimination she might suffer for any of these reasons, including harassment and societal discrimination even if it is cumulatively experienced, such as verbal remarks or disapproval by society, would amount to serious or significant harm. However, the Tribunal considers the information before it does not indicate or demonstrate that the harassment, discrimination and negative attitudes she is at a real chance or risk of facing comes within the meaning of serious harm or significant harm.
159. The Tribunal considered the applicant’s claim to fear harm as being a single woman.
160. The Tribunal considered country information that it had obtained from the DFAT Report on Nepal as follows:
Women
3.61 The 2015 Constitution prohibits discrimination on the basis of gender in relation to inheritance and government employment and allows for ‘positive discrimination’ to establish special opportunities in relation to education, health, employment and social security. The constitution also prohibits physical, mental, sexual and psychological violence against women and establishes the right to compensation for such violence.
3.64 Nepali women and girls across society, regardless of their economic, caste or ethnic status, are vulnerable to violence in many forms, including rape, sexual abuse and human trafficking. Nepal’s laws contain a narrow definition of rape and have a 180-day limitation period for filing complaints. Penalties for marital rape are low and the crime is rarely reported. The 2017 criminal code set new, higher gaol sentences for rape, however DFAT is not aware of whether this provides an effective deterrent. Police frequently fail to register complaints or investigate and prosecute rape cases, and often divert cases to settlement though informal justice mechanisms, particularly in rural areas.
3.65 Reports of sexual assault to police are increasing as awareness of the criminal nature of that act and the police response increases. Most rapists are close family members and women from low socio-economic communities are particularly vulnerable.
3.68 Sexual harassment is a commonly reported problem. The practice is banned, but women’s groups report that penalties are not severe enough to act as a deterrent. Women who work in the informal sector are particularly vulnerable to sexual harassment.
3.75 DFAT assesses that women in Nepal face high levels of societal and official discrimination and a moderate risk of violence. However, the experience of individual women varies. Women from poorer or lower-caste backgrounds experience a higher risk of discrimination and violence.

161. The Tribunal notes and accepts the DFAT Report in respect to the treatment of women in Nepal generally and of single women in particular.
162. Based on this country information the Tribunal accepts that the applicant as a single woman may face a degree of social stigma and discrimination in Nepal. However, in considering the applicant’s circumstances in their totality the Tribunal does not accept that the applicant would be subjected to discrimination or social stigma of a degree or a kind to constitute serious harm or significant harm.
163. As discussed above, the applicant has educational qualifications and has an employment history as an [Occupation 2]. As also noted, she can read and write English. The Tribunal considers that the applicant has a level of education and an employment history which would provide her with the opportunity to work in Nepal and earn a living and subsist. She has also lived and resided in Australia, a country far removed from her own, for many years, without the support of family, which suggests to the Tribunal a degree of resilience that would enable her to assimilate into Nepal.
164. The applicant in giving her oral evidence did not refer to any other specifics in her own circumstances (except for her homosexuality which has been considered aforesaid) that would give rise to her facing discrimination or social stigma to a degree or kind that would amount to serious harm or significant harm.
165. As set out in s.5J(4) and (5) of the Act for conduct to be persecutory it must involve serious harm such as threat to life or significant physical mistreatment or economic hardship that threatens a person’s capacity to subsist. The Tribunal does not accept that the applicant would face hardship to a degree that she would be unable to subsist.
166. In terms of the applicant’s oral evidence and claim that as a single woman she fears violence and in particular sexual harassment and violence from men because she does not have a protector or family support, the Tribunal notes and accepts the DFAT Report which indicates that sexual harassment and sexual violence is a commonly reported problem in Nepal. In these circumstances the Tribunal cannot discount the possibility that the applicant may be subjected to a random act of sexual harassment or violence. However, the Tribunal does not accept that the applicant is more susceptible than any other woman (or person) or would be a particular target for such acts of violence.
167. Whilst the Tribunal accepts that there are systemic hurdles faced by women in Nepal, the Tribunal is not satisfied that there are any risk factors for the applicant that would lead to the Tribunal finding that there is a real chance of serious or significant harm for the applicant were she to enter and reside in Nepal merely on the basis of being a single woman.
168. The Tribunal accepts that there may well be some transition difficulties for the applicant in integrating into Nepalese culture, including language difficulties. However, the applicant, able to speak English, with her education, employment experience, her experience having settled in a different country earlier, will have the capacity to integrate into a new culture and language. The Tribunal accepts that the opportunities for the applicant in terms of further education, employment and the future may be perceived as being better in Australia as compared to Nepal. However, the Tribunal can not be satisfied that any of these matters would constitute serious or significant harm to be suffered by the applicant were she to enter and reside in Nepal.

169. The Tribunal is reminded of its earlier finding that the applicant’s family, while likely turning her away from the family home and possibly also disowning her, would not seek to track the applicant and seek her out to administer any harm to her. The Tribunal finds that the applicant’s family accordingly would not seek to track the applicant and seek her out to administer any harm to her in Nepal.
170. The Tribunal notes that the applicant will not have the protection of family in Nepal and acknowledges that she will not have family support in Nepal. However, having found that the applicant does not require protection from serious or significant harm on the basis of being a homosexual woman or a single woman in Nepal, the Tribunal does not need to consider this issue further.
171. The Tribunal has also considered whether the applicant’s individual claims, cumulatively, would together create a real chance or real risk of her being subjected to serious or significant harm in Nepal in the reasonably foreseeable future. The Tribunal has considered whether the combination of her being an Indian national; identifying as a homosexual; being a single woman, her inability to speak Nepalese; and lack of family support would, cumulatively, cause her to be at risk of suffering serious or significant harm in Nepal now or in the foreseeable future. Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before the Tribunal, and given its findings and reasons in relation to each of these matters, the Tribunal does not accept that there is a real chance the applicant faces serious harm amounting to persecution for these reasons, or that there are substantial grounds for believing that there is a real risk she will suffer significant harm were she to enter and reside in Nepal.
172. On the basis of the above findings, and having considered the applicant’s claims individually and cumulatively, the Tribunal does not accept that there is a real chance the applicant would suffer persecution for a Convention reason if she enters and resides in Nepal now or in the foreseeable future. Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution in Nepal. Further, on the basis of the above findings, and having considered the applicant’s claims individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of her availing herself of the right in s.36(3), there is a real risk of the applicant suffering significant harm in Nepal.
Will Nepal return (refoule) the applicant to India?
173. If the Tribunal finds that s.36(3) applies, in addition to s.36(4), the Tribunal must also consider s.36(5) and (5A), which provide that:
36(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.
36(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.

174. The Tribunal finds that under the terms of the Treaty, the government of Nepal agreed to grant Indian nationals reciprocal privileges to Nepali citizens in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature. On the evidence before the Tribunal, and having regard to the applicant’s circumstances and claims, both individually and cumulatively, the Tribunal does not accept there is a real chance the Nepalese authorities or government would return her to India or any other country and, accordingly the Tribunal finds that any fear of being returned to India or any other country by Nepal would not be a well-founded fear, and that s.36(5) and (5A) are not enlivened.
175. The Tribunal finds that the applicant has a right to enter and reside in Nepal and has not taken all possible steps to avail herself of that right. Furthermore, the Tribunal finds that the applicant does not have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion in Nepal and that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing herself of the right in s.36(3), there would be a real risk of the applicant suffering significant harm in Nepal. The Tribunal further finds that the applicant does not have a well-founded fear of being returned from that country to a country where she has a well-founded fear of being persecuted. Nor does the applicant have a well-founded fear of being returned by Nepal to a country where there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing herself of the right in s.36(3), there would be a real risk of the applicant suffering significant harm. Accordingly, Australia does not have protection obligations in respect of the applicant under the Refugees Convention or under Complementary Protection under s.36(2)(aa). Therefore, the applicant does not satisfy the criterion set out in s.36 of the Act.
CONCLUSION
176. The Tribunal finds that the applicant has a right to enter and reside in Nepal. The Tribunal finds that the applicant does not have a well-founded fear of being persecuted for and Convention reason, including reasons of race, religion, nationality, membership of a particular social group or political opinion in Nepal and that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing herself of the right in s.36(3), there would be a real risk of the applicant suffering significant harm in Nepal. The Tribunal further finds that the applicant does not have a well-founded fear of being returned by Nepal to India. Accordingly, Australia does not have protection obligations in respect of the applicant.
177. 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).
MINISTERIAL INTERVENTION
178. In all of the circumstances, and given the Tribunal’s strict application of the law, and its inability to consider discretionary factors that it might consider were it considering a cancellation of a visa, it may not be unreasonable to request of the Minister to intervene, given the length of time the applicant has been in Australia (since 2007), her contribution to society, the fact that her English is now quite accomplished, her educational achievements and her assimilation into society and the strength of bonds and connections made. This will be a matter for the applicant to consider.
DECISION
179. The Tribunal affirms the decision not to grant the applicant a protection visa.
Michael Hawkins AM
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.
…

[2021] AATA 2452

7 May 2021

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing