2307915 (Refugee)

The applicant, an Indian national, sought review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa. The applicant claimed to fear persecution in India due to his homosexuality, alleging a fear of physical assault, killing, and forced marriage. He also contended that he would be unable to obtain effective protection from the state and that internal relocation was not a viable option.

The Federal Circuit Court was required to determine whether the applicant had established a well-founded fear of persecution for a reason falling within the definition of a refugee, specifically whether he belonged to a particular social group defined by his homosexuality. The court also had to consider whether the applicant could access effective protection from the Indian state and whether internal relocation would be reasonable.

In his reasoning, Judge Pennell applied the principles established in *Minister for Immigration and Ethnic Affairs v Teoh* and *Applicant S20/2002 v Minister for Immigration and Multicultural Affairs*. The court found that the applicant's fear of persecution based on his homosexuality was well-founded, considering the evidence of discrimination and violence against homosexual individuals in India. The court also determined that the applicant would not be able to access effective protection from the state and that internal relocation was not a reasonable alternative given the pervasive nature of the discrimination.

Consequently, the court set aside the Minister's decision and remitted the matter to the Minister for reconsideration according to law.