2307915 (Refugee)

[2023] AATA 3554

2307915 (Refugee) [2023] AATA 3554 (22 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2307915

COUNTRY OF REFERENCE:                   India

MEMBER:Jason Pennell

DATE:22 August 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 22 August 2023 at 12.35 pm

CATCHWORDS

REFUGEE – protection visa – India – particular social group – homosexual – physical assault – fear of killing – forced marriage – employment – state protection – internal relocation – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Applicant A v MIEA (1997) 190 CLR 225
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Khawar (2002) 210 CLR 1
Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan 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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 May 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of India, applied for the visa on 1 May 2023. The delegate refused to grant the visa on the basis that that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Migration Act 1958 (the Act)).

3. The applicant lodged an application for review of the delegate’s decision to the Administrative Appeals Tribunal (the Tribunal) on 5 June 2023 and provided the Tribunal with a copy of the delegate’s decision record.

4. The applicant appeared in-person before the Tribunal on 15 August 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The Tribunal has had regard to its objective of providing a mechanism of review that is fair, just, economical, and quick. As such, the Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.   

CRITERIA FOR A PROTECTION VISA

1. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

2. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

3. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

4. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

5. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

1. 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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

APPLICANT’S CLAIMS AND EVIDENCE

Applicant’s identity

1. The applicant claims he was born on [date] in [Town 1], Punjab, India. He claims that he is a citizen of India and that he is not a national of any other country.

2. The applicant provided the Department with an uncertified copy of his Indian passport.[1] The Tribunal notes that the delegate was satisfied of the applicant’s identity. The information provided by the applicant is consistent with his evidence to the Tribunal in relation to his identity. There is no evidence to suggest the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that the applicant is a citizen of India and as such his protection claims will be assessed against India as the country of reference and ‘receiving country’ respectively.

Migration history

[1] Applicant’s Passport Dept File [number] Doc ID: 11168646

1. The applicant was granted a [Student] visa on 6 February 2017 and first arrived in Australia [in] February 2017.  The applicant’s Student visa was valid until 14 February 2020. The applicant has remained onshore since arrival[2].

   [2] Applicant’s Movement Records, AAT File Number 2307915. Doc ID 11364208

2. On 17 February 2020 the applicant was granted a Bridging Visa A (WA 010) visa which ceased on 1 November 2021[3].

   [3] Ibid

3. As a result of the applicant’s unlawfulness in Australia, the applicant was first placed into the [named detention centre] on 2 April 2022 where he currently remains detained without a valid visa.

Applicant’s claims for protection

16.The applicant’s claims for protection are contained in his application for protection visa submitted to the Department on 1 May 2023. The applicant’s claims are:[4]

Provide reasons why this applicant left that country or those countries:

‘Study’

Did the applicant experience harm in that country or those countries?

‘Yes.’ I got bashed by a couple of people who doesn’t like LGBT Community and also I got bashed by my friends in high school and the main reason behind all these bashings because I am a gay person.’

[4] Applicant Protection Visa Application, Dept File [number] Doc ID:11169642

Did the applicant seek help within the country or those countries after the harm?

‘Yes. I have tried to talk to my parents, but they never listened to me and never let me finish my point.’

Did the applicant move, or try to move, to another part of the country or those countries to seek safety?

‘No. I was a teenager and also wasn’t able to work legally anywhere in India, so I had to live with my family.’

Explain what the applicant thinks will happen to them if they are return to that country or countries.

‘I will probably get killed.’

Does the applicant think they will be harmed or mistreated if they return to that country or countries?

‘Yes. Again, as I write in the last column, I will get killed by those who doesn’t like LGBT (Gay) people, There is thousands of groups who killed hundreds of gay people in past even you can find this information on internet and also I will provide that if needed.’

Does the applicant think the authorities of that country or those countries can and will protect this applicant if they go back?

‘No. Because no one likes LGBT community over there so even if you go to the police department to ask for help, they don’t even listen to you.’

Does the applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?

‘No. because this problem is not in any particular state, its in all over the country.’  

1. The delegate summarised the applicant’s protection claims as follows:[5]

   ·      “He left India to study but had experienced harm because he is a gay person.

   ·     He was bashed by a couple of people who don’t like LGBT community and was bashed by his own friends in high school.

   ·     He fears that if he returns to India, he will be killed by those who don’t like gay/LGBT people, indicating that there are thousands of groups who have killed hundreds of gay people in the past.

   ·     The authorities would not protect him because no one likes the LGBT community and if you ask the police for help, they don’t listen to you.’

   ·     He is unable to relocate in India because this problem is all over the country”.

Applicant’s evidence

[5]  Protection Visa Decision Record dated 26 May 2023, Dept File No [number], Doc ID: 11169653

1. The applicant’s evidence was that he was born on [date] in [Town 1], Punjab, India. However, he lived with his family in a village approximately 14 km from [Town 1] known as known as [Village 1], Punjab India. The applicant’s evidence was that he is Sikh and that he can read write and speak Punjabi and English. 

2. The applicant’s mother and father continue to live in [Village 1], Punjab. His father worked as a farmer growing [crops]. The applicant is an only child and does not have any brothers or sisters.

3. The applicant attended school up to [grade] in [Village 1], Punjab but, completed [later grades] at a government school in [City 1], Punjab. Its reported that [City 1] is a city of approximately [number] people that has many schools and other educational institutions offering education from primary to graduate degree courses. As a result, it is an educational hub for the nearby villages. Nevertheless, the applicant did not attend college or university.

4. After school the applicant worked for approximately 6 months as an apprentice [occupation 1] for a business known as [Employer 1] located in [Ludhiana] Punjab, India. He then attended an English-speaking course in [Town 2], Punjab India for approximately nine months, after which he stayed at his home for about 3 months prior to traveling to Australia.

5. The applicant’s evidence was that in India he suffered harassment because of his sexual orientation as a homosexual. The applicant’s evidence was that he did not have any partners in India. His evidence was that at about the age of 14 or 15 years, he was beaten up because he revealed to his friend that he was homosexual. The applicant’s evidence was that he tried to explain to his parents that he was homosexual, but they would not listen to him.  The applicant’s evidence is that if he is returned to India, his parents will force him into a heterosexual marriage.

6. Nevertheless, the applicant’s evidence was that his main reason for travelling to Australia was to study. He claims that he was not aware he could make a protection visa application at that time.  On 21 February 2017, the applicant commenced [an occupation 1] course in [Suburb 1]. The applicant’s evidence was that he has completed a [qualifications] in [occupation 1]. While studying, the applicant worked on a part- time basis in [specified businesses]. His evidence was that he fell into the wrong company and became addicted to drugs. The applicant was charged and convicted of stealing a motor vehicle and was sentenced to 6 months jail which he has served in Australia. The applicant has remained in immigration detention since being released from jail.

7. The applicant’s evidence was that in Australia he was in a relationship with a man known as [Partner A] who passed away from a heart attack in 2022. His evidence was that they met while the applicant was living in [Suburb 2], Melbourne.

8. The applicant seeks a protection visa because of his sexuality. He claims that if he is returned to India, he will be seriously harmed, including being killed, by members of the community who are against the LGBTQ community and in particular homosexuals.  The applicant’s evidence was that despite the change in the legal position in India in 2018, many groups within the community remain strongly opposed to homosexuality.  He claims that as a homosexual he will not be accepted in India and will find it difficult to find employment.

9. The applicant’s evidence was that the situation is the same all over India. As such, he will not be able to relocate to another town, city, or area within India.

COUNTRY INFORMATION

1. In accordance with Ministerial Direction No. 84 of 24 June 2019 made under s.499 of the Act, the Tribunal also had regard to the country information assessments prepared by DFAT. The Tribunal has referred to the DFAT Country Information Report on India dated 10 December 2020 (the DFAT Report),[6] in particular, those parts of the DFAT Report marked as Attachment A to this decision.

   [6]     DFAT Country Information Report on India dated 10 December 2020

CONSIDERATIONS OF CLAIMS AND FINDINGS

1. The issue in this case is whether the applicant is a person to whom Australia owes protection obligations pursuant to s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

Credibility

1. When assessing the applicant’s claims, the Tribunal must make findings of fact in relation to each claim. In doing so, the Tribunal is mindful of the difficulties faced by an applicant, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

2. The mere fact that a person claims fear of persecution for a 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 enough 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.[7] Nor is the Tribunal required to accept uncritically all the allegations made by an applicant.[8]

   [7]     Section 5AAA of the Act.

   [8]     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].

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[9] Care must be taken not to exclude from consideration the totality of some evidence where a portion of it could reasonably have been accepted.

   [9]     Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J at [482].

4. If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[10] However, such a benefit should 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.

Accepted Facts

[10] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196].

1. Based on the documentary evidence provided by the applicant to the Department and the Tribunal and his oral evidence to the Tribunal, the Tribunal finds and accepts that the applicant:

   (a)was born on [date] in [Town 1], Punjab, India.

   (b)lived with his family in [Village 1], Punjab India where his mother and father continue to live.

   (c)is Sikh.

   (d)can read write and speak Punjabi and English. 

   (e)does not have any brothers or sisters.

   (f)attended school up to [grade] in [Village 1], Punjab but, completed [later grades] at a government school in [City 1], Punjab.

   (g)worked for approximately 6 months as an apprentice [occupation 1] for a business known as [Employer 1] located in [Ludhiana] Punjab, India.

   (h)attended an English-speaking course in [Town 2], Punjab India for approximately nine months.

Applicant’s refugee claim

Relevant grounds

1. To be considered a refugee pursuant to s 36(2)(a) of the Act, then pursuant to s 5J(1)(a) of the Act, it is necessary that an applicant have a well-founded fear of persecution by reason of his race, religion, nationality, membership of a particular social group (PSG) or political opinion. In this case, the applicant it was open for the applicant to submit that his claim falls within s 5J(1)(a) as a member of a PSG as a homosexual person who fears he will suffer serious harm if he is returned to India.

2. Section 5L of the Act[11] states:

   [11] In Applicant A (1997) 190 CLR 225 re: Dawson J

   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.

1. In MIMA v Khawar (2002) 210 CLR [12] the High Court, when considering the refugee convention, found that it would be open for the Tribunal to declare that 'women in Pakistan' meets the description of PSG. On the issue of such a large group, His Honour Chief Justice Gleeson stated that:[13]

   'The size of the group does not necessarily stand in the way ... There are instances where the victims of persecution in a country have been a majority. It is power, not number, that creates the conditions in which persecution may occur.'

   [12] MIMA v Khawar (2002) 210 CLR 1

   [13] MIMA v Khawar (2002) 210 CLR 1 at [33]

1. In this case, the applicant’s evidence is that there is a real chance he will be seriously harmed if he is returned to India as a homosexual.  As such, the Tribunal accepts that he is a member of a PSG pursuant to s 5L of the Act.  Accordingly, it accepts that this claim falls within the scope of s 5J(1)(a) of the Act.

Applicant’s well-founded fear

1. An applicant must have a well-founded fear of persecution. Section 5J of the Act states that for the purposes of an application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and that there is a real chance that they will be persecuted for one or more of these reasons in the event they are returned to their receiving country. In the case of a PSG, the persecution said to be feared by the applicant must be for reasons of membership or perceived membership of the group.[14]

   [14]    Sections 5H(1) and 5J(1)(a) of the Act; see Applicant A v MIEA (1997) 190 CLR 225 at [240].

2. In Chan v MIEA[15] the Court, in considering the Convention, held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Dawson J noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[16]

   [15] (1989) 169 CLR 379 at [396]

   [16] (1989) 169 CLR 379 at [396]. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at [263] per Brennan CJ, Toohey, McHugh and Gummow JJ

3. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[17] Section 5J(4) of the Act requires that the reason for the persecution must be the essential and significant reason and that it must involve systematic and discriminatory conduct.

   [17]    Chan Yee Kin v MIEA (1989) 169 CLR 379.

4. In this case, the Tribunal has considered if there is a real chance that the applicant will be seriously harmed if he was returned to India. For the reasons expressed below, the Tribunal has found that the applicant does have a well-founded fear of persecution as claimed on an objective basis.

Applicant’s claim as a refugee

Applicant as a Homosexual

1. The applicant claims that as a homosexual there is a real chance he will be seriously harmed if he is returned to India. The applicant’s evidence was that in India he had not had any homosexual partners. However, his evidence was that he had experienced some discrimination and shame from school friends when he was around the age of 14 years when he admitted to a friend that he was homosexual. The applicant’s evidence was that while he was in Australia, he had a relationship with a person known as [Partner A] who passed away from a heart attack in 2022. His evidence was that they met while he was living in [Suburb 2], Melbourne. Based on the applicant’s evidence, the Tribunal accepts and finds that he is homosexual as claimed.

2. The country information reports[18] that India is a parliamentary democracy and operates under the Constitution of India (1950). The Federal Parliament is a bicameral system comprising an upper house, (the Rajya Sabha) and a lower house, (the Lok Sabha). The President is the constitutional head of the country with a Council of Ministers, with the Prime Minister as its head, to advise the President.[19] Similarly in states there is a Council of Ministers with the Chief Minister as its head, who advises the Governor.[20] Narendra Modi of the Bharatiya Janata Party (BJP) was first elected as Prime Minister of India in May 2014 and was re-elected for a further term in 2019. The BJP government has sought to align Indian nationalism with Hindu nationalism.[21] The legal system is a common-law system based on the English model, though separate personal law codes apply to Muslims, Christians, and Hindus. The judiciary is separate from the Legislature (Parliament) and the Executive (President), with various articles of the Constitution emphasising separation of functions and powers and the bodies themselves imposing checks and balances on each other.[22] The High Courts of India are the highest court in the State and Union Territories. The Supreme Court of India is the highest in the country and is the final court of appeal and is based in New Delhi.[23] The Indian constitution provides that the states are responsible for their police and public order. Each state and union territory maintains its own police force.[24] A centralised Indian Police Service (IPS) is organised into state cadres and provides leadership to both state and centralised forces.[25] However, the country information indicates that the informal justice system (family, friends, village elders or caste or religious Panchayats) is generally preferred over Courts and Police for the settlement of disputes, as police and Courts are considered slow, expensive, and complex.[26] In addition there is a disparity between rural and urban populations in the availability of and access to justice services including courts, police stations, legal aid clinics and lawyers.[27]

   [18]   DFAT p.18; National Portal of India, Governance & Administration; httpwww.india.gov.in/topics/governance-administration

   [19]  ibid

   [20]    ibid

   [21]  DFAT Report at p.35

   [22]  DFAT Report at p.61

   [23]   Melbourne University Asian Law Centre, ‘A brief Introduction to the Indian Judicial System and Court Hierarchy’ Mary Kozlovski, 2019.  ibid; DFAT Report p.59-60

   [25]  DFAT Report p.59-60

   [26]  DFAT report p.60-61

   [27]  ibid

3. A survey conducted by IPSOS[28] in 2021 reported that 3% of the population of India identify as homosexual (gay and lesbian), 9% identify as bisexual, 1% identify as pansexual, 2% identify as asexual and 2% identity as other. That is, 17% of the population identified as not heterosexual. However, it is noted that the sample came primarily form more urban, more educated, and more affluent areas that the general population.[29] ‘

   [28]  LGBT+ Pride 2021 Global Survey conducted April 23 – May 2021 htps://   ibid

4. In December 2019, the Indian Parliament passed the Transgender Persons (Protection of Rights) Act 2019 (TPPPRA).[30] The TPPRA prohibits discrimination towards transgender people in education, health, employment, and accommodation and established the national Council for Transgender Persons.[31] The TPPRA includes intersex person, Hirjas, Jogtas and Kinnars.[32]

   [30]  Transgender Persons (Protection of Rights) Act 2019 DFAT Report at p.48.

   [31]  DFAT Report at p.48

   [32]  ibid

5. The country information reports that Hijras hold a special place in India, having been part of the South Asian landscape for thousands of years.[33] Hijras are a distinct group, they are biologically males but have rejected their masculine identity. Traditionally, they have played a role on the margins of society as entertainers and as bestowers of curses and blessings.[34] While Hijras may be considered ‘transgender’, they often do not identify themselves as such. Rather, they can identify as ‘women’, ‘not-men’, ‘in-between man and woman’, or ‘neither man nor woman’. Most Hijras wear women’s clothing and have adopted female mannerisms, but they generally do not attempt to pass as women. Hijras identify as a community of its own, they have their own traditions, occupations, and languages and to become a Hijra there is an initiation process into a Hijra ‘family’, or small group, under the guidance of a guru teacher.[35]

   [33]   UK Home Office, ‘Country Policy and Information Note India: Sexual orientation and gender identity and/or expression. Version 5.0 August 2023 at [7.2] BBC News, ‘Blurring the gender lines in Bangladesh’, 30 November 2000; news.bbc.co.uk/1/hi/programmes/crossing_continents/asia/1035555.stm

   [34]  BBC News, ‘Blurring the gender lines in Bangladesh’, 30 November 2000; news.bbc.co.uk/1/hi/programmes/crossing_continents/asia/1035555.stm

   [35]  UK Home Office, ‘Country Policy and Information Note India: Sexual orientation and gender identity and/or expression. Version 5.0 August 2023 at [7.2] >

   Section 377 of the Indian Penal Code criminalised homosexual sex. However, in 2018 in Navtej Singh Johar & Ors v Union of India [2018] [36] (Navtej) the Supreme Court of India held that consensual same-sex acts between adults are no longer an offence under section 377 of the Indian Penal Code. The Court found this provision violated a number of protections afforded to citizens under the Constitution specifically: the right to equality before the law;[37] the obligation of the Government not to discriminate against citizens on the basis of their sex;[38] the right to expression;[39] and the right to live with dignity.[40] The Court reaffirmed its decision in Shafin Jahan v. Ashokan K.M (2018)[41] and Shakti Vahini v. Union of India (2018)[42] that an adult's right to choose a life partner of his (or her) choice is a facet of individual liberty.[43] However, Justice DY Chandrachud, in Navtej, indicated that de-criminalisation was the first step in the recognition of rights for LGBTQI+ individuals, stating that constitutional principles have application to a broader range of entitlements for members of the community. Non-consensual sexual acts against adults, all sexual acts against minors and bestiality remain criminal acts under s.377.[44]

   [36]   Navtej Singh Johar & Ors v Union of India [2018] INSC 746 (6 September 2018) liiofinda.org,

   [37]  The Constitution of India, Government of India, Ministry of Law and Justice, Government of India, Ministry of Law and Justice, 1 January 2007, CIS16386, Article 14.

   [38]   ibid

   [39]   ibid

   [40]   ibid

   [41]  Shafin Jahan v. Ashokan K.M [2018] INSC 258 (27 March 2018) liiofinda.org

   [42]    Shakti Vahini v Union of India [2018] INSC 27 (March 2018) liiofinda.org

   [43]  Navtej Singh Johar & Ors v Union of India [2018] INSC 746 (6 September 2018) liiofinda.org,

   [44]    UK Home Office, ‘Country Policy and Information Note India: Sexual orientation and gender identity and/or expression. Version 5.0 August 2023 at [7.2] >

   While Navtej is considered a significant step forward in the recognition of the rights of members of the LGBTQI+ community in India, particularity for homosexual men[45] there remails a widely held anti-LGBTQI+ sentiment within the community and sectors of the  public service and government.[46] Its reported that homosexual men, bi sexual men, lesbians, transgender and intersex people lack protection, have poor education and health outcomes and face intolerance abuse and violence in their daily lives.[47] The treatment of LGBTQI+ individuals vary depending on a number factors including disparities between urban and rural India, language, caste, class, and gender.[48] Its reported[49] that despite positive signs in the treatment of homosexual and bi-sexual men since Navteji they have continued to suffer ill treatment and discrimination, particularly in rural areas, in many aspects of their lives, including education, work and public spaces.[50] Many people in the LGTBQI community hide their sexual preferences out of fear of suffering discrimination and abuse at work or at college or university causing their positions to be compromised.[51] Its reported that, particularly, in rural areas, the LGBTQI individuals continue to suffer physical attacks, rape and blackmail as well as broad social discrimination.[52] Its noted that such discrimination occurs at every level of society.[53]

   [45]  DFAT report at p.48

   [46]  DFAT report at p.48

   [47]  DFAT report at p.46

   [48]  UK Home Office, ‘Country Policy and Information Note India: Sexual orientation and gender identity and/or expression. Version 5.0 August 2023 at [7.2]   DFAT report at p.48

   [50]   ibid

   [51]  BW Bussinessworld, ‘Modern India is still in closet’ 21 August 2023 ww.businessworld.in/article/Modern-India-Is-Still-In-Closet/15-06-2022-432724/

   [52]   US State Department, ‘Country Reports on Human Rights practices for 2021- India’ at p.55 https. The Hindu, ‘Safety at a price for Delhi’s queer community’ 25 June 2022, ww.thehindu.com/news/cities/Delhi/safety-at-a-price-for-delhis-queer-community/article65561151.ece

6. The authorities in India use nuisance laws to arrest, harass, manipulate, and bribe homosexual men whose families are not aware of their sexual orientation. Its reported[54] that the ability for police to assist the LGTBQI community has been undermined by inadequate training and equipment, limited resources, political influence, and corruption. It’s reported that some police have refused to register complaints made by the LGBTQI community owing to bias or stereotypes with reports of harassment and intimidation by the authorities against LGBTQI individuals.[55] 

   [54]    DFAT report at p.48

   [55]  Immigration and Refugee Board of Canada, 9 May 2019; >

   It’s reported that while its possible for middle class homosexual men to relocate in India, it runs contrary to the strong family ties to remain with the family. Marriage in India is almost never an option[56] with many homosexual men bowing to the unbearable social and family pressure to marry women.[57] Its reported that India’s respectable cultural tradition of revering elders results in both men and women lacking any agency when it comes to the decision of marriage.[58] In the case of homosexual men most are told to produce children and keep their sexuality a secret.[59]  As a result its reported that approximately 70 percent of gay men in India get married to wone by the time they are 30 years of age out of a fear of being socially ostracised.[60] .

   [56]  Times of India, ‘I am gay and was forced into marriage’ by Rupam Jain 2 June 2023, Ashraf, Fathima, ‘Pride Month Gets Physical after two years’, Times of India, 18 June 2022.  Cake, ‘Marital Blues: How Indian men are also pressured into getting married.’29 August 2015  Aljazeera, ’Indian Gay men’s wives ‘trapped’ in marriage’ by Betwa Sharma 22 August 2014. Shibu Times, ‘70% of all gay men give into social pressure and marry’ 7 March 2009, imesofindia.indiatimes.com/city/mumbai/70-gay-men-give-in-to-social-pressure-and-marry/articleshow/4236783.cms

7. Its reported that in urban areas there are venues for the LGBTQI community to meet and socialise, but not always openly.[61] Its reported[62] that venues in Deli have become more LGBTQI friendly and there is now an online dating platform for the LGBTQI community known as “Amour Queer Dating.’ However, access to clubs and other venues tend to be limited to the more affluent population due to the cost of attendance and the need to speak fluent English in the venues.[63]

   [61]   DFAT report at p.48

   [62]  Immigration and Refugee Board of Canada, 9 May 2019; The Hindu, ‘Safety at a price for Delhi’s queer community’ 25 June 2022, ww.thehindu.com/news/cities/Delhi/safety-at-a-price-for-delhis-queer-community/article65561151.ece

8. In this case, the applicant is from a poor family in a small village located in a rural area. The applicant and his family have limited financial resources. As such, if he is returned to India, his ability to access clubs and venues in urban areas will be limited due to his lack of education and lack of resources. In addition, the applicant evidence was that if he is returned to India, he will be pressured by his family to marry a woman from within his parent’s social network. The applicant’s evidence was that he had tried to speak about his homosexuality to his parent’s but that were not interested in discussing the matter with him. Rather they were focussed on him marrying a woman from within their community or faith. The applicant’s evidence was that as the only child there is a lot of pressure on him to marry and produce a child. He claims that it will be difficult for him to refuse his families wish due to the shame it will bring to the family.  Based on the available country information and the applicant’s evidence in relation to his family’s financial circumstances, the Tribunal accepts that the applicant would have difficulty in reallocating to a large urban area as claimed.  In addition, based on the available country information, the Tribunal accepts the applicant’s evidence that he would be forced into marriage with a woman upon his return to India.   

9. Based on the applicant’s evidence and the available country information, the Tribunal accepts there is a real chance the applicant will be seriously harmed if he is returned to India because he is a homosexual.

10. In reaching its conclusion that the applicant faces as real chance of persecution, the Tribunal finds that despite the decriminalisation of the homosexuality under s.377 of the penal Code since the decision of Navteji, that the societal attitude towards the LGBTQI community in India constitutes the essential and significant reason for the applicant’s fear of persecution.[64] In addition, the Tribunal finds that the persecution involves serious harm[65] and that it constitutes systematic and discriminatory conduct against the applicant and the members of the PSG.[66]

    [64] s.5J(4)(a) of the Act.

    [65] s.5J(4)(b) of the Act

    [66] s.5J(4)(c) of the Act

1. As a result, the Tribunal finds that because of being removed from Australia to India, there is a real chance the applicant will suffer serious harm by reason of him being a homosexual. The Tribunal is therefore satisfied that the applicant does satisfy the criterion set out in s.36(2)(a) of the Act for a protection visa and as the applicant is a non-citizen in Australia in respect of whom the Tribunal is satisfied Australia has protection obligations as a refugee.

2. In arriving at its decision, the Tribunal has considered those matters relevant to determining if the applicant is owed protection obligations under s.36(2)(a) of the Act. The applicant’s criminal history was not an issue relevant to this consideration. The Tribunal notes, however, that the applicant criminal history may be an issue for the Department in determining if his criminal record excludes him from Australia’s protection obligations.[67]

   [67] S.36(1C) of the Act.

CONCLUSION

1. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

DECISION

1. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Jason Pennell
Senior Member

ATTACHMENT A

DEMOGRAPHY

2.9 The sex ratio (number of females per 1000 males) in the country has grown from 933 in 2001 to 943 in 2011 and is higher in rural than in urban areas. While 28.5 per cent of the population is aged between 0-14, only 8.3 per cent is above the age of 60. The next census is due in 2021.

2.11Although the population is majority Hindu, in some states the majority of the population identifies with a single religion other than Hinduism. Muslims are a majority in the union territory of Lakshadweep (a tiny island chain off the southwest coast of India) and the far northern border union territory of J&K (particularly in the Kashmir valley). Christians are a majority in the three northeastern states of Nagaland, Mizoram and Meghalaya. Sikhs are a majority in Punjab. (For a breakdown of religious demography see Religion.)

Mental Health

2.39 Access to mental health care is difficult and patients are subject to stigma and discrimination. In July 2017, the Mental Healthcare Act (MHC Act) came into force, repealing the earlier Mental Healthcare Act (1987), which had been widely criticised for not recognising patients’ rights. Interest groups consider the MHC Act an improvement as it contains a ‘right to mental health care’ and repeals section 309 of the Penal Code (1860), which had criminalised attempted suicide by a mentally ill person. Other policy and programmatic interventions in this area include the National Mental Health Programme, 1982; and the District Mental Health Programme, 1996. In 2014, the government released the first National Mental Health policy of India, ‘New Pathways New Hope’, and in 2016 undertook the first National Mental Health Survey of India.

2.40 Access to mental health care is not uniform across the country, with availability of services significantly more limited in rural areas than in urban cities and large towns. Across the country, an estimated 150 million people (12.5 per cent of the population) are in need of active interventions for mental illnesses, including nearly 12 million who are living with serious mental disorders. Given the shortfall of specialist and health services for mental illness, treatment is often unavailable or inaccessible even for those who actively seek health care.

2.41 According to India’s National Health Profile 2018, there are 43 government mental health hospitals in India. West Bengal has five facilities; Gujarat and Maharashtra have four; Kerala and Uttar Pradesh have three; Jharkhand, J&K, Karnataka, Madhya Pradesh and Rajasthan have two; and the remaining states have one facility each. India has fewer than 4,000 mental health trained professionals – fewer than one per 100,000 population. Most services are located in major cities, which often leads to local healers and non-qualified providers being the first point of care, even for serious mental health conditions.

2.42 In practice, mental health programs continue to suffer from severe constraints in technical, human and material resources, and remain a low priority on the public health agenda. A 2017 WHO report that examined improving access to, and the appropriate use of, medicines for mental disorders found significant barriers to accessing medicines at all levels of the health care system. Many barriers are linked to stigma associated with mental disorders, duration and costs of treatment, and, in many areas, the geographical distance from health care providers.

HUMAN RIGHTS FRAMEWORK

2.57 India is a party to most of the core international human rights conventions. It has ratified the International Covenant on Civil and Political Rights (1979); the Convention on the Elimination of All Forms of Discrimination Against Women (1993) (CEDAW); the International Covenant on the Elimination of All Forms of Racial Discrimination (1968); the International Covenant on Economic, Social and Cultural Rights (1979); the Convention on the Rights of the Child (1992); and the Convention on the Rights of Persons with Disabilities (2007). India has signed but not ratified the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (1997), and the Convention for the Protection of All Persons from Enforced Disappearance (2007). India has not signed or ratified the second optional protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty, or the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families.

2.58 Section 15 of the constitution protects citizens from state discrimination on the basis of religion, race, caste, sex or place of birth. The same section protects people with those attributes from discrimination in access to shops, restaurants, hotels and places of public entertainment. In spite of these protections, local sources told DFAT discrimination on the basis of sex and gender, religious affiliation, caste, refugee status and tribe continues to occur (see Race/Nationality, Religion and Groups of Interest).

2.59 Legal protections exist for people living with disabilities including under the Persons with Disabilities Act (2016), which protects access to education, employment and welfare, however the opportunities are reportedly limited. Sexual orientation and gender identity, apart from hijra status, are not protected attributes (see Sexual Orientation and Gender Identity).

2.60 India underwent its third Universal Periodic Review (UPR) at the UN Human Rights Council in May 2017. Of the 250 recommendations made, the Indian Government accepted 152 and noted 98. India’s next UPR is due in 2022.

National Human Rights Institution

2.61India’s National Human Rights Commission (NHRC) was established in 1993 and has a broad mandate to inquire into and make recommendations about violations of human rights by the central and state governments, including through intervention in court proceedings. The NHRC can initiate inquiries on any of the issues under its remit. Governments are required to respond to the NHRC’s reports within a period of one month for general complaints, and three months for complaints relating to the armed forces; however, government responses are often delayed. The NHRC consults with civil society representatives, some of whom sit on NHRC committees. The NHRC is accredited by the UN-affiliated Global Alliance of National Human Rights Institutions as ‘fully compliant’ with the Paris Principles for national human rights bodies.

2.62The NHRC received around 86,000 complaints in 2018, with around a third of these relating to the police. Almost half (45.9 per cent) of the 2018 complaints came from Uttar Pradesh, with the NHRC recommending monetary compensation in around a third of cases. In the last five years, the average number of annual complaints was around 100,000, peaking in 2015 at 120,607. In April 2020, the NHRC received 2,582 new complaints and had nearly 23,000 registered matters under consideration. Critics claim the NHRC does not investigate every complaint and suffers from a lack of investigative capacity. The NHRC relies on information provided by India’s states, which withhold it in some cases.

2.63 The NHRC does not have the power to investigate acts committed by the military and paramilitary forces. It does, however, investigate and report on extrajudicial killings (see Extrajudicial Killings)

SECURITY SITUATION

2.64 The security situation in India varies over time and from place to place due to its size and diversity. Civil unrest, including violent rioting, is not uncommon. Drivers of civil unrest are complex and varied and may include tensions between different religious, social and ethnic communities (see Religion, Caste System and National Register of Citizens); insurgencies, terrorist attacks or protests motivated by ideological or political objectives; tensions along disputed border areas; and tensions within communities over issues such as land ownership and marriage-related disputes.

2.65 Crime rates across India vary. Over 5 million cognisable crimes (crimes allowing arrest without a warrant) were reported in 2018, according to government statistics. This represented a rise of 1.3 per cent over the previous year. Crime rates are significantly higher in large cities. Most Indians live their lives with a relatively moderate risk of criminal violence, although violence against women and LGBTI individuals occurs at higher incidences (see Women and Sexual Orientation and Gender Identity).

2.66 Misinformation spread on social media occasionally leads to violence. Rumours spread using social media platforms, such as Facebook, Snapchat, Twitter, WhatsApp and YouTube, about alleged crimes including child sexual abuse or human trafficking have led to occasional vigilantism. These events are unpredictable but tend to occur in rural areas and tend to be localised. In 2020, there was a proliferation of unverified messages and misinformation communicated on digital platforms about the COVID-19 pandemic, contributing to a sense of panic and alarm during the crisis.

3. REFUGEE CONVENTION CLAIMS

3.1 The Indian Constitution sets out fundamental rights to equality designed to prevent discrimination in the public sector under Articles 14 to 18. The right to equality includes equality before the law; prohibition of discrimination on the grounds of religion, race, caste, gender or place of birth; equality of opportunity in matters of employment; abolition of untouchability; and abolition of Indian honorific titles.

3.2 Indian law does not cover situations where discrimination on various grounds is practised in private sector organisations including clubs, societies, NGOs, educational institutions, hospitals, and Khap Panchayats (assemblies of male elders who assert considerable influence over village/clan affairs). Indian law does not cover discriminatory attitudes based on marital status, caste-affiliation, sexual orientation, disability, religion or food preferences.

3.3 In 2017, a comprehensive anti-discrimination bill was introduced to the Lok Sabha, seeking to cover direct and indirect discrimination, harassment, segregation and boycott (economic, social, and cultural) in both the public and private sectors. The bill has since lapsed. Multiple sources told DFAT discrimination is an everyday part of life in India

Sikhs

3.62 India has a Sikh population of 20.8 million people (2011 census). The growth rate of Sikhism declined since the 2001 census. Sikhism is the dominant religion in the state of Punjab (approximately 16 million people) with significant populations in Haryana (1.2 million), Delhi NCR (570,581), Rajasthan (872,930), Uttar Pradesh (643,500) and Uttarakhand (295,530).

3.63 India’s Sikh population has suffered from issues surrounding recognition. The constitution groups Sikhs, Buddhists and Jains with Hinduism; therefore they are not legally recognised as distinct religions.

3.64 One of the points of difference between Sikh groups is the extent to which they support the creation of an independent Sikh state known as ‘Khalistan’. The 1966 creation of the Punjabi-speaking Sikh majority state of Punjab went some way to addressing these demands. During the internal struggle within the Sikh community in 1982, separatist leader Jarnail Singh Bhindranwale and his followers moved into the Golden Temple complex in Amritsar. In June 1984, the Indian government ordered the army to eject Bhindranwale and his followers from the complex in an offensive known as ‘Operation Blue Star’. The army bombarded the Golden Temple complex, inflicting serious damage. Bhindranwale and many of his supporters were killed during the operation.

3.65 In retaliation for Operation Blue Star, two of then-Prime Minister Indira Gandhi’s Sikh bodyguards assassinated her at her home in New Delhi in October 1984. In the days following, mobs seeking revenge for the assassination attacked Sikh homes and businesses, including in New Delhi. Approximately 3,000 people, mostly Sikhs, were killed in the violence. Security forces carried out further operations to suppress Sikh separatism during the late 1980s, during which allegations emerged of torture, extrajudicial killings and deaths in custody carried out by security forces.

3.66 NGOs report communal violence disproportionately affects India’s religious minorities, in particular Muslims, but also Christians and Sikhs, who face varying degrees of socio-economic, cultural and legal discrimination. Reports of minor cases of violence against Sikhs occur. Media sources have reported isolated incidents involving Sikhs and the police in recent years:

- After a road accident in Mukherjee Nagar Delhi, in July 2019, an argument broke out between a Sikh ‘tempo’ driver and police, during which police beat the driver. After an inquiry, the police involved were dismissed from duty for ‘unprovoked, indiscreet and highly unprofessional’ behaviour.

- A 2018 article by Punjab-based Sikh Siyasat News (SSN) reported a mob attack in Karnataka injured a Sikh man and led to six arrests. The police report indicated the man was mistaken by the mob to be a ‘child lifter’ and the villagers, ‘unaware of [its] significance,’ mistook his kirpan (small sword used as an article of faith in Sikhism) as a weapon.

- Another 2018 SSN article indicates a family reportedly attacked in Haryana detailed police inaction on their case, and the police threatened to charge the family instead.

3.67 According to information cited by the Immigration and Refugee Board of Canada (IRB), since the late 1980s, Sikhs living outside Punjab mostly do so safely and integrate economically and socially into their communities. IRB notes while there can be localised discrimination, for example blocking entry to public areas or requiring the removal of articles of faith (turbans or kirpans) before sitting examination in educational programs, such issues are adequately addressed by local courts or police. Sikhs may face difficulties integrating in areas where a Sikh community does not already exist, and may face discriminatory treatment from law enforcement and government officials for wearing the kirpan.

3.68 DFAT assesses Sikhs in India generally face a low level of official and societal discrimination and violence.

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.

Gay men

3.160 Until a September 2018 Supreme Court judgement, section 377 of the Penal Code criminalised homosexuality. In 2018, however, the court decriminalised adult consensual same-sex relationships and declared section 377 unconstitutional. Sources told DFAT attitudes towards gay men have not changed, despite the change in the law. Sources claim police still use many ‘nuisance laws’ to arrest, harass, manipulate and bribe gay men whose families are not aware of their sexual orientation. Sources told DFAT it is possible for middle class, educated gay men to relocate in India. However, this had to be weighed against the concept and custom of family ties, which were hard to break. Local sources claim while there are ‘gay nights’ in a few bars, there are no safe spaces for gay men.

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.

Hijras/Transgender/third gender individuals

3.162 The term Hijra refers to a male to female transgender identity recognised in traditional South Asian cultures. According to local sources, Hijras are part of Indian tradition and hold a unique space in the community. While Hijras are sometimes called on to bless newborns, marriages and new houses in Indian society, their perceived ability to curse people can engender fear. Sources claim most families do not accept their male child behaving in ways considered feminine, and children who do so risk being subject to verbal or physical violence. Some families disown and evict their Hijra children, while some Hijras or transgender children run away and seek refuge in Hijra communes.

3.163 Hijras often live within their own communities and may not connect to the rest of the LGBTI community. Many Hijras are transgender or intersex, but not all transgender or intersex people are Hijras. Sources told DFAT Hjiras live in a strong structure with a guru. While traditionally castrated, many now take growth hormones. Many Hjiras have little formal education and can find it difficult to secure employment. They may face discrimination when seeking access to goods and services, including education, employment and health care. In the health care setting, Hijras report discriminative practices such as deliberate use of male pronouns, admission into male wards, harassment by hospital staff and patients, and, in some cases, denial of medical services. Hijras report an absence of police protection makes them easy targets for extortion and sexual violence.

3.164 In 2018, a transgender candidate in state elections in southern India went missing, feared kidnapped. She reportedly returned home after 36 hours, during which she claimed to have been held at knifepoint.

3.165 In 1994, transgender persons were granted the right to vote. In 2014, the Supreme Court, declared Hijras as socially and economically backward, and provided a reservation for them within the OBCs, entitling them to reservations in education and employment. Following this judgement, government documents such as voter ID cards, passports and bank forms started providing a third gender option, usually designated as ’other’ (O), ‘third gender’ (TG) or ‘transgender’ (T).

3.166 In 2019, the Transgender Persons (Protection of Rights) Act, 2019 (TPPRA) gave transgender persons a right to self-perceived identity. However, it requires registration with the government for official recognition as such, after submitting proof of gender reassignment surgery. The Act creates obligations for welfare, education, social security and health measures; non-discriminatory treatment in the employment context; and establishment of a National Council for Transgender persons (which occurred in August 2020). It provides a penalty for offences under the Act of between 6 months and two years imprisonment and imposition of a fine. The TPPRA includes intersex persons, Hijras, Jogtas, and Kinnars within its definition of transgender persons. The legislation has been criticised by HRW, ICJ, the transgender community and LGBTI activists across India, who state self-declared identity should form the basis for access to all social security measures, benefits and entitlements. In January 2020, human rights activist Swati Bidhan filed a constitutional challenge against the TPPRA in the Supreme Court. Sources told DFAT that, despite the TPPRA, transgender persons still function as non-citizens, with no rights to marry, inherit or take care of sick partners.

3.167 Attitudes towards and experiences of LGBTI individuals can vary based on a range of factors (such as disparities between urban and rural India, language, caste, class and gender). DFAT assesses, in general, LGBTI individuals who express openly their sexual orientation and gender identity face a moderate risk of societal and official discrimination. This can include harassment, exclusionary practices, arbitrary arrest, detention and violence. The removal of section 377 of the IPC, while a victory for same-sex men in particular, does not prevent or reduce widely held anti-gay and anti-LGBTI sentiment. Equally, the TPPRA, while providing a range of measures, has been widely criticised on a number of grounds and does not prevent or reduce anti-transgender public sentiment and treatment.

CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT

Arbitrary Arrest and Detention

4.30Article 21 of the constitution guarantees ‘no person shall be deprived of his life and personal liberty except according to procedure established by law’. Article 22 of the constitution guarantees the right of all arrested persons to be informed of the grounds of arrest as soon as possible. Section 50 of the CrPC provides a duty on the police officer arresting a person to inform them of the full particulars of the offence for which they are being arrested, or other grounds of arrest. Under Section 50A of the CrPC, every police officer or other person making an arrest must immediately inform the family, friends, or such other person that the arrested person may nominate, about the arrest. All detainees must be informed about their rights as soon as they are brought to the police station.

4.31 Article 22(2) of the constitution provides that every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours and no such person shall be detained in custody beyond this period without the authority of a magistrate. This right is also recognised in Section 57 of the CrPC.

4.32 Article 22 of the constitution guarantees the right of every arrested person to consult or be defended by a legal practitioner of their choice. In order for this right to be available to all, the Supreme Court has held that the State shall provide free legal services to such accused persons from the time they are first presented before the magistrate. However, the obligation of the State to provide legal aid does not extend to the period before that, such as during police interrogations.

4.33 In practice, local sources told DFAT legislative provisions are routinely not followed. Sources told DFAT, with nearly 70 per cent of those incarcerated being ‘undertrial’ (held in prison custody during or while awaiting trial for a crime) and with low conviction rates, the ‘process becomes the punishment’. According to NCRB statistics, around 74 per cent of the 330,487 undertrial prisoners in 2019 were confined for up to a year; 13 per cent for up to two years; 7 per cent for up to three years; 4 per cent for five years; and nearly 2 per cent for more than five years.

4.34 There are no official statistics on the frequency or consistency of application of procedural safeguards. In practice, however, local sources noted violations of procedural safeguards were common. Academics have reported cases of extended police custody without charge, as well as lack of access to lawyers, poor quality legal representation, and lack of access to charge sheets, including due to language barriers or illiteracy.

Preventive Detention

4.35 ‘Preventive detention’ arises in a situation when a person is detained and restricted from doing something that might lead to a deterioration of law and order, whereas an ‘arrest’ is done when a person is charged with a crime and, under Indian law, must be brought before a magistrate within 24 hours.

4.36 There are two separate pieces of legislation that deal with preventive detention: the Code of Criminal Procedure (1973) (CrPC) and the National Security Act (1980) (NSA). Both the CrPC and the NSA apply to all of India (including, since August 2019, to J&K – see Jammu and Kashmir). The CrPC is the main legislation on procedure for administration of substantive criminal law in India. The NSA deals with preventive detention in the contexts of national security, public order and essential services.

4.37 Section 151 of the CrPC provides that preventive detention is an action taken on grounds of suspicion that some wrong actions may be done by the person concerned. A police officer can ‘arrest’ an individual without orders from a magistrate and without any warrant if they have any information that such an individual can commit any offence. Article 22 (4) of the constitution provides that no law providing for preventive detention shall detain a person for a period longer than three months unless a bench of High Court judges or an Advisory Board (made up of retired judges) decides to extend the date. Article 22 (5) of the constitution states a detained individual should be made aware of the grounds on which they have been detained and be provided an opportunity to make representations against the case. Parliament may prescribe the circumstances under which a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board.

4.38 The NSA allows the central or state governments to detain suspects to prevent them from acting in a manner prejudicial to the security of the state or to the maintenance of public order or from the maintenance of supplies and services essential to the community. A person detained under the NSA can be held for up to 10 days without being told the charges against them. Preventive detention orders can be maintained for up to 12 months without a person being charged. In this period, a person can appeal their detention to a High Court advisory board, but they are not allowed a lawyer during the trial.

4.39 While the NCRB collects data on non-NSA preventive detentions (known as detenues), it does not collect data on NSA preventive detentions, as the police do not register First Information Reports in these cases. Therefore, no figures are available for the exact number of detentions under the NSA. Information provided by local sources supports the extent and volume of NSA data included in open source reporting and sources agree its use can be seen as an extrajudicial power. At end 2019, most detenues were held in central jails, with highest numbers in Tamil Nadu, Gujarat and J&K.

4.40 The Jammu and Kashmir Public Safety Act (1978) (JKPSA) can be used in J&K to hold suspects ‘acting in any manner prejudicial to the security of the State’ in administrative detention for up to two years (a period double that of India’s NSA). In August 2019, a former J&K chief minister was detained under the JKPSA (and charged six months later) for reportedly being a ‘threat to public order’. In a 2011 report, Amnesty International estimated there had been 8,000-20,000 detentions under the JKPSA over the previous two decades, although exact figures remain in dispute.

STATE PROTECTION

5.1 The Constitution of India devolves responsibility for police and public order to individual states and territories. States are responsible for preventing, detecting, registering and investigating crime and prosecuting criminals. The individual Indian State Police Services (see Police) comprise both state-based personnel and national personnel drawn from the central government. Separately, the central government, through the Ministry of Home Affairs (MHA), maintains a number of Central Armed Police Forces. These centralised forces manage internal security, including border control and protection of major infrastructure, under control of the Army (see Military). The MHA also oversees centralised police organisations, including the Central Bureau of Intelligence, Bureau of Research and Development, NCRB, National Investigation Agency, Training Academies and the National Disaster Response Force. These agencies may share information with their state counterparts. The central government provides financial assistance to the state governments under the Scheme of Modernization of State Police Forces for weaponry, communication, equipment, mobility, training and other infrastructure. In practice, funds under this scheme are not fully utilised across states.

Police

5.4 India’s constitution devolves responsibilities for police and public order to the states. Each state and union territory maintains its own police force, and two-thirds of this cohort hold junior ranks. The national corps within the Indian Police Service (IPS) are selected by competitive exams, hold senior ranking positions and enjoy other benefits, including housing and transport. According to a 2018 survey across 22 states, the Centre for the Study of Developing Societies found less than 25 per cent of Indians trust the police highly (compared to 54 per cent for the army). The World Justice Project’s 2020 Rule of Law Index ranked India 114 out of 128 countries with respect to order and security (see also Corruption). This measure considered issues such as crime, civil conflict and use of violence to redress personal grievances. Centralised Indian Police Service

5.5 Article 312 of the constitution establishes a centralised IPS. The IPS is organised into state cadres to provide senior-level leadership to state police forces and to centralised forces. The MHA is responsible for IPS officers and policy decisions, including structure, training, allocation, confirmation, pay, allowances and disciplinary matters. State and central governments review IPS budget allocations every five years. As at March 2019, there were 4,982 IPS officers spread across 26 state cadres, with the states of Uttar Pradesh, West Bengal and Maharashtra having the most IPS officers, and Uttarakhand, Tripura and Sikkim having the least. The MHA is also responsible for a range central police functions (see State Protection). State Police Services

5.6 According to The Economist, India’s 1.9 million police officers ‘do not enjoy a good reputation’. However, local sources report police effectiveness is hampered by lack of resourcing and infrastructure. Police budgets, on average, account for 3-5 per cent of state expenditure. The Status of Policing in India Report 2019 (which used official data drawn from the NCRB and the Bureau of Police Research and Development to assess police capacity and adequacy) found inadequate infrastructure (physical, technological, human), resourcing and training compromised police operations. According to the report, approximately 240 police stations across India have no access to vehicles; 214 have no access to telephones; 70 have no access to wireless connections; and 24 have no access to either telephone or wireless connections. On average, police stations in India have six computers per station, but states like Assam and Bihar have an average of less than one computer per station.

5.7 Lack of ‘boots on the ground’ is another key capacity problem. Police in India reportedly work at 77 per cent of their sanctioned personnel capacity. This equates to around 1.2 ordinary police officers per 1,000 people, about half the level recommended by the UN. Long working days and unpaid overtime are common complaints.

5.8 Representation of SCs, STs, OBCs and women in the police forces is poor, with large vacancies in these reserved positions. SCs, STs, OBCs and women are less likely to be recruited/posted at officer-level ranks than are general police personnel. The India Justice Report 2019 found women account for 7 per cent of police personnel.

5.9 To safeguard police operational autonomy from political interference, the Supreme Court directed states to introduce legal amendments to ensure police officers be guaranteed a minimum tenure of two years to function efficiently. However, in practice, over a quarter of police reportedly consider pressure from politicians is the biggest hindrance in crime investigation. Undermining safeguards, premature transfers of personnel are higher during election years, with the states of Uttar Pradesh and Haryana having the highest transfer rates. Premature transfers are also a common consequence of non-compliance with political pressure. The Economist reports lack of ‘man-power’ and ‘meddling politicians’, were in the top three problems facing police officers in India.

5.10 In India, for the police to investigate a case and commence the criminal justice process, they must prepare a First Information Report (FIR). According to 2018 NCRB data, where and how a person reports a complaint can influence their access to justice: 99 per cent of complaints routed through a court were registered as FIRs; 72 per cent of written complaints to the officer-in-charge of the police station were converted into FIRs; 53 per cent of written complaints were converted into FIRs; and only 5 per cent of oral complaints (where the duty officer takes down the details) were converted into FIRs. Only 3 per cent of complaints filed online (a new initiative in some states including Delhi and Uttar Pradesh) and 1 per cent of complaints taken by Emergency Telephone lines were converted to FIRs in the same period.

5.11 DFAT understands if a person of interest is being sought by another state, the states would work together in securing the arrest of that person. There is no state extradition requirement. DFAT understands state police do not have sophisticated online databases to track offenders; such work would be done manually. In general, there is a good degree of cooperation between state police services.

Detention and Prison

5.17 Prisons are governed by the federal Prisons Act (1984). The MHA is responsible for Indian prisons, while administration rests with state governments and union territories. Conditions vary from prison to prison although, in general, facilities in central prisons are better than those of district prisons. India’s prisons are operating beyond capacity. Poorly trained correctional staff operate on average between 30 to 40 per cent of their sanctioned strength. According to local sources, overcrowding leads to unsatisfactory living conditions, with dilapidated structures, lack of space, poor ventilation, and poor sanitation and hygiene.

5.18 Basic vegetarian food is provided, but prisoners may need to pay for additional items. DFAT understands prisoners generally get commissary access, access to free legal aid of variable quality, and general medical care. Specialist treatment is difficult and requires court permission, with surgery likely only in cases of genuine emergency. Pregnant prisoners lack adequate medical treatment and nutrition. Violence in prisons is present and there have been allegations of torture (see Torture). Discrimination towards lower castes and religious minorities also occurs. The National Legal Service Authority reports women prisoners often face abuse and violence.

5.19 According to NCRB statistics, 1,775 inmates died in prison in 2019. Of this figure, 1,544 reportedly died of natural causes and 165 prisoners of un-natural deaths, of which suicide (116) was the largest category, followed by accidents (20) and murder of inmates by fellow inmates (10). According to official statistics, the inmate to medical staff ratio was 243:1 in 2019. This shortfall may account for the high number of custodial deaths.

5.20 Local sources told DFAT inmates on death row suffered deteriorating mental health, as did the general prison population, due to prolonged periods of detention. Prisoners have limited access to mental health care. DFAT cannot verify whether prison conditions worsened inmates’ mental health, as the NCRB does not provide information on prisoners’ pre-existing mental health conditions.

5.21 According to NCRB prison statistics, the total inmate population at end 2019 was 478,600. Of this number, around 34 per cent were OBCs, 20 per cent SCs, and 11 per cent STs. Around 70 per cent of the total inmate population identified as Hindu, 20 per cent as Muslim, and the remaining 10 per cent as Sikh, Christian and others.

5.22 Prison occupancy levels of 118.5 per cent in 2019 exceeded the official prison capacity. Occupancy rates in Chhattisgarh, Delhi, Madhya Pradesh, Maharashtra, Meghalaya, Sikkim, Uttarakhandand Uttar Pradesh exceeded 150 per cent. According to media reporting in February 2020, the Supreme Court has linked overcrowding in India’s jails to ‘performance of courts’, and recommends reforms to address the issue. Potential reforms include issuing fines or releasing offenders on probation instead of incarceration. Average prison budgets across states and union territories stand at 0.2 per cent of state expenditure.

5.23 Females made up 4.1 per cent of the prison population in 2019, increasing by around 60 per cent in the last 15 years. According to India’s National Legal Services Authority, prison infrastructure is not able to keep up with the rising number of female inmates, who tend to face more obstacles than their male  counterparts. One-sixth of women prisoners are housed in women’s prisons; the rest are confined to enclosures in male prisons. In 2019, there were 1,779 children incarcerated with their mothers. Children may remain with their mothers until age six when they are handed over to a surrogate or institution. DFAT is not aware of official prison statistics on other vulnerable groups, including LGBTI persons, or persons with disabilities.

INTERNAL RELOCATION

5.29 India has a long history of internal migration; however, in practice, it remains predominantly intra-state rather than interstate. The complementary rights to reside and move freely throughout India are found in Articles 19(1)(d) and (e) of the constitution. Article 19(1)(d) guarantees all citizens of India the right to move freely throughout the territory of India including from one state to another or from one place to another in the same state. This right can be curtailed under the ‘reasonable restrictions’ in Article 19(5); that is, in the interest of the general public or for the protection of the interest of any ST. Article 19(1)(e) gives every citizen the right to reside and settle in any part of the territory of India, subject to the reasonable restrictions in Article 19(5). The freedom of movement and residence may be curtailed and suspended during an emergency. Equally, any restriction which maintains public peace or safety can been considered in the interests of the general public.

5.30 According to the World Bank, while internal migration in India grows, interstate movement remains low. Drawing on the 2011 census (latest figures), internal migrants numbered 450 million, an increase of 45 per cent over the 309 million recorded in 2001. Internal migrants as a percentage of population increased from 30 per cent in 2001 to 37 per cent in 2011. However, the nature of movement remains relatively unchanged from the 2001 Census. The bulk of movements (62 per cent) were within the same district, with 26 per cent between districts within the same state. Only 12 per cent of movements were across state borders. Interstate migrants represented 4 per cent of India’s population in 2011, a rate almost unchanged since 2001. Women made up the majority of intra-state migrants (63 per cent) with over half attributing marriage as the reason for migration. However, such migration tended to be a change in the usual place of residence across the village and town boundaries. Urban-to-urban migration remained the largest migration flow (46 per cent). Rural-to-urban migration flows remained stable and were roughly half of urban-to-urban flows (22 per cent). India’s census data does not capture seasonal, temporary and circulatory migration (mostly for employment) which is around 13.6 million persons annually and seven times larger than permanent/semi-permanent migration. Limits to Internal

Relocation

5.31 According to the World Bank, factors that may limit interstate relocation include non-portability of entitlements, preferential norms in educational institutions, and domicile requirements for state government jobs. Other factors, some historical, that limit mobility/interstate migration include: the prevalence of the caste system; traditional values; the diversity of language and culture; exploitation and political exclusion; lack of education; limited access to financial services and resources; and predominance of agriculture and semi-feudal land relations in India

5.32 Inability to access social protection is a further deterrent. In practice, difficulties in procuring registration documents including proof of residency and legal tenancy can restrict internal migrants’ access to public services including health and education and social security programs. These difficulties include complicated regulations and administrative requirements, and act as a disincentive, especially for temporary and seasonal migrants. Such people often face barriers in obtaining subsidised food and housing until they can establish identity and local residence

5.33 The absence of informal social networks that would normally assist with accommodation, employment and informal social protection may also limit relocation. Where local language and culture is different from region of origin, Indian nationals may also face harassment and political exclusion. Multiple sources told DFAT relocation in India is not straightforward, and many cultural, socio-economic and gender-based obstacles, in addition to language differences, prevail. Relocation of single women, women with children or victims of family violence

5.34 The Aadhaar Card provides access to government social welfare services, benefits and subsidies (see Unique Identification Numbers (UID) / Aadhaar) and its introduction may assist entitlement portability. However, requirements to provide details of a husband’s or father’s name can exclude single women, single women with children, and domestic violence survivors from government services and accommodation. While income tax provisions do not directly require women to use their husbands’ or fathers’ names, the Aadhaar card and passport both have this requirement.

5.35 Local sources told DFAT safe relocation for women and girls fleeing domestic or family violence within Indian states or elsewhere in India is practically impossible. There is limited availability of shelters/centres and, even where they are available, it is important to consider the situation a woman will face upon leaving such centres, where social support networks are unlikely. According to local sources, some women fleeing domestic violence stay in shelters for more than 10 years. There is little ability of state and NGO resources to reintegrate these women into the community. Sources in West Bengal told DFAT that, due to a shortage of women’s shelters, women from other states seeking accommodation in shelters were repatriated to their home states.

5.36 Local sources advised relocation would generally be possible for a single woman without children, who was able to access accommodation and support networks, or who was educated, skilled or wealthy enough to support herself. Relocation based on sexual orientation

5.37 Local sources told DFAT middle-class, educated, same-sex oriented males would be able to relocate internally to major cities in India more easily than could same-sex oriented males who are poorer or less well educated. DFAT does not have specific information on the ability of same-sex oriented women to relocate within India, but notes factors such as education level, socioeconomic status, financial independence and location (rural or urban) will impact on an individual’s ability to relocate safely (see Sexual Orientation and Gender Identity).

5.38 DFAT assesses individuals seeking protection from discrimination or violence may be able to access internal relocation options, although these may be more limited for some individuals depending on their personal circumstances. In particular, DFAT assesses women, including single women with children or those fleeing family violence, have limited access to internal relocation options

TREATMENT OF RETURNEE

5.39 DFAT is not aware of any evidence of mistreatment of returnees, including failed asylum seekers, by Indian authorities. India does not have a centralised registration system in place to enable the police to check the whereabouts of inhabitants in their own state, let alone in any of the other states or union territories. The Department of Home Affairs is required to notify Indian authorities prior to the arrival of escorted removals from Australia but does not track returnees after their arrival in India. Home Affairs does not routinely notify Indian authorities of unescorted returns and removals. UK Home Office reporting notes tracking and surveillance systems appear limited.

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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…