2312386 (Refugee)
[2023] AATA 4413
•9 October 2023
2312386 (Refugee) [2023] AATA 4413 (9 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2312386
COUNTRY OF REFERENCE: India
MEMBER:Jason Pennell
DATE:9 October 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 9 October 2023 at 10.55am
CATCHWORDS
REFUGEE – protection visa – India – particular social group – homosexual – credibility concerns – evidence vague and lacking in any detail – delay in applying for protection – voluntary returns to country – information in previous visa application – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5L, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
MIMA v Khawar (2002) 210 CLR 1
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 August 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of India, applied for the visa on 5 July 2023. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(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 (s36(2)(b) and s36(2)(c) of the Migration Act 1958 (the Act)).
The applicant lodged an application for review of the delegate’s decision to the Administrative Appeals Tribunal (the Tribunal) on 16 August 2023 and provided the Tribunal with a copy of the delegate’s decision record.
The applicant appeared in-person before the Tribunal on 4 October 2023 to give evidence and present arguments. The Tribunal 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. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (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
The applicant claims he was born on [date] in Amritsar, Punjab, India. He claims that he is a citizen of India and that he is not a national of any other country.
The Tribunal notes that the delegate provided the Department with a copy of his passport and his biometric data.[1] 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] Protection Visa Refusal Decision Record dated 8 August 2023 Dept File No [number] DOC ID:11451205
The applicant first arrived in Australia [in] March 2014 on a student (TU 573) visa which was valid from 12 February 2014 to 30 August 2017.
The remainder of the applicant’s migration history is summarised in the delegate’s decision record as follows:
| Date | Event details |
| [Date]/10/2015 – [Date]/02/2017 | The applicant travelled overseas on multiple occasion while holding a student visa subclass TU - 573. |
| 06/11/2017 | The applicant was granted a student visa subclass TU - 500 |
| [Date]/12/2019 – [Date]/02/2020 | The applicant travelled overseas on multiple occasions while holding TU - 500 |
| 30/08/2020 | The applicant’s Student visa subclass TU - 500 ceased to exist and he became an unlawful non-citizen. |
| 27/11/2020 | The applicant was granted BV E upon his release from criminal detention on the basis that he would make the necessary arrangement to depart Australia. |
| 26/12/2020 | The applicant’s BVE ceased to exist. However, the applicant remained in Australia as an unlawful non-citizen. |
| 19/02/2022 | The applicant has been detained in [immigration detention centre] after his release from [the] prison. |
| 05/07/2023 | The applicant lodged a Protection visa application |
Applicant’s claims for protection
The applicant’s claims for protection are contained in his application for protection visa submitted to the Department on 5 July 2023 as follows[2]:
“Provide reasons why this applicant left that country or those countries:
‘Studying’
[2] Applicant’s Protection Visa Application, Dept File No [number], Doc ID No.11451195
Did this applicant experience harm in that country or those countries?
‘No’
Did this applicant move, or try to move, to another part of that country or those countries to seek safety?
‘No’
Give details for why this applicant did not try to move to another part of the country or those countries.
‘I am applying a protection claim from my home country because of my sexuality and I was [age] years old when I came to Australia which means I was kid when I was in my home country I found out about my sexuality when I was around 19 years old, So I didn't need to move to any part of India’
Explain what the applicant thinks will happen to them if they return to that country or those countries:
‘If I return to my home country I will get killed for sure because of my sexuality’
Does this applicant think they will be harmed or mistreated if they return to that country or countries?
‘Yes. India is a one of those country where normal people doesn’t like a gay person ever there are many erxamples of mistreated a gay person or got killed because of sexuality in India on internet also I will attach some of the files which shows how dangerous is it to live in India for a gay person’
Does this applicant think the authorities of that country, or those countries can and will protect this applicant if they go back?
‘No. Because I have seen with my own eyes that there is no rules or regulations for a gay person, there are thousands of gays who got killed or brutally smashed by some anti gays groups and no one said nothing about it, Also there a videos of politicians giving live speech in front of thousands people, saying wherever you see a gay person kill him/her they have no right to live with us’
Does this 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 there is not a single city or state where no one hates gay person’
The delegate summarised the applicant’s written and oral protection claims[3] as follows:
[3] Protection Visa Refusal Decision Record dated 8 August 2023, Dept File No [number], Doc ID No.11451205
· “He left his country (India) to study abroad;
· He did not experience harm in India;
· He realised that he was homosexual after arriving in Australia at the age of 19. As such, he did not need to hide or move to other parts of his country before coming to Australia;
· If he returns to India, he will be killed because of his sexual orientation;
· The mainstream Indian community is generally hostile towards gay individuals; the internet provides evidence supporting the mistreatment and even murder of gay individuals in India;
· The authorities will not protect him because there are no laws to protect the gay individuals in India. Many homosexuals have been killed or severely injured by anti-gay groups. Those groups were never questioned or held accountable for their actions. Even politicians were video recorded inciting hatred about homosexuals and urging the public to kill them.
· He does not think that he can relocate upon his return to India because all Indian cities reject gay people”.
The applicant’s evidence
The applicant’s evidence to the Tribunal was that he was born on [date] in Amritsar, Punjab, India. The applicant claims that he is a Sikh. He claims that he speaks reads and writes Punjabi and English. The applicant is not married.
The applicant’s evidence was that his parents continue to live in Amritsar. The applicant’s father works as a [Occupation 1]. The applicant has one sister who is married and continues to live in Amritsar.
The applicant attended school in Amritsar . His evidence was that he completed school but did not attend university or college in India. The applicant’s evidence was that he travelled to Australia to study. Upon arriving in Australia, he commenced a Certificate IV and Diploma in [Discipline 1] at [University 1]. In his protection visa application, the applicant claims he attended [named] TAFE. Nevertheless, the applicant’s evidence was that he did not complete the [Discipline 1] course. Instead, in 2019 he completed a Certificate III and Certificate IV [Discipline 2] Course at [named education provider].
After completing the [Discipline 2] course, the applicant worked driving a taxi in Melbourne for approximately two to three years. The applicant claims that he became addicted to drugs. As a result, [in] October 2020, he was convicted and sentenced to three months imprisonment for committing several crimes including theft of a motor vehicle and dealing with proceeds of crime.
The applicant’s evidence was that he applied for a protection visa because he fears returning to India because he is a homosexual. The applicant’s evidence about his claim of being a homosexual was vague and lacking in any detail. The applicant’s evidence was that he did not have any homosexual relationships prior to coming to Australia.
The applicant’s evidence was that after he arrived in Australia, he had a causal relationship with a person known as [Mr A]. The applicant was not able to provide any further details about [Mr A]. The applicant also claimed that he had a relationship with a male person known as [Mr B]. The applicant’s evidence about his relationship with [Mr B] was vague and lacking in any detail. His evidence was that he met [Mr B] while studying and they had a relationship for about 9 months from December 2017 to May 2014. The applicant claimed that they lived separately and would on occasions visit the shopping mall together. The applicant claims that [Mr B]’s parents took him away and stated that he does not know where [Mr B] is living now. The applicant did not know where [Mr B] was and had not been in contact with him.
The applicant’s evidence was that he would not be able to relocate to a larger city in India, such as New Delhi, because he would feel threatened. The applicant claims that the police target and hit people from the LGTBI community and that he would be harassed and threatened.
The applicant claimed that because he is a homosexual he will be seriously harmed if he is returned to India.
Applicant’s documents.
The applicant provided the Tribunal with the following documentation.
(a)Various screen shots of social media posts.
(b)Screenshot of article entitled ‘Three, Including Textile Businessman from South Deli, held for Killing ‘Gay’ salesman’ dated 2 February 2022
(c)Screenshot of article entitled ‘INDIA: Gay professor murdered at top university’ dated 2 May 2010.
(d)Screenshot of article entitled ‘Murder of a homosexual rocks capital, police widen investigation’
(e)Web link for article entitled ‘The Indian activist jailed for being gay’ dated 8 September 2018
(f)Web link for article entitled ‘India LGBT couples: ‘My parents were ready to kill me for their honour’’ dated 27 July
(g)Web link for article entitled ‘Kolkata: Parents threaten to kill gay couple, drive them out’ dated 21 November 2019
(h)Web link for article entitled ‘Man beaten up for being gay, cooks up ‘dacoity’ story’ dated 9 June 2017
COUNTRY INFORMATION
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 29 September 2023 (the DFAT Report),[4] in particular, those parts of the DFAT Report marked as Attachment A to this decision.
[4] DFAT Country Information Report on India dated 29 September 2023
CONSIDERATIONS OF CLAIMS AND FINDINGS
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 decision under review should be affirmed.
Credibility
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 of this is considered in these findings.
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, the fact 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.[5] In addition, the Tribunal is not required to accept uncritically any, and all the allegations made by an applicant.[6]
[5] Section 5AAA of the Act.
[6] 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].
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[7] Care must be taken not to exclude from consideration the totality of some evidence where a portion of it could reasonably have been accepted.
[7] Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J at [482].
If the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.[8] 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.
[8] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196].
In this case, the applicant’s evidence lacked credibility. For the reasons expressed below, his evidence in relation to him being a homosexual was vague and lacking in any detail. While the Tribunal has given the applicant the benefit of the doubt in assessing his claims, his delay in making his protection visa application, the fact that he had made multiple trips back to India, and his evidence to the delegate assessing his bridging visa application that he had a girlfriend for a period of a year and half had the effect of undermining his credibility of his claim that he feared returning to India because he was a homosexual.
Delay
Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[9] Even a three-month delay in lodging a protection visa application has been held to be a legitimate matter to be considered when assessing the genuineness or depth of an applicant’s fear of persecution.[10]
[9] Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370.
[10] Subramanium v MIMA (1998) VG310 of 1997.
In this case the applicant arrived [in] March 2014 on a student visa. The applicant’s movement record indicates that he travelled overseas on three occasions [between] October 2015 [to] February 2017. The applicant confirmed to the Tribunal that during this period he had returned to India on each occasion.
The applicant was then granted a further student visa on 6 November 2017. The applicant movement record indicates that the applicant travelled overseas [between] December 2019 [and] February 2020. The applicant confirmed to the Tribunal that during this period he had once again returned to India.
On 30 August 2020 he became an unlawful citizen.
[In] October 2020 the applicant was convicted and sentenced to three months imprisonment of the following offences.
(i)Theft of a vehicle (2x counts).
(ii)Deal with proceeds of crime
(iii)Commit indictable offence while on bail.
(iv)Recklessly causing injury
(v)Contra conditions of bail
(vi)Possess cocaine.
On 27 November 2020 the applicant was granted a bridging visa which expired on 26 December 2020. He remained in Australia as a non-lawful citizen and on 19 February 2022 was detained and placed in Immigration Detention.
On 5 July 2023, the applicant made his application for a protection visa, approximately nine years and three months after he first arrived in Australia.
When the applicant was asked why he had not made a protection visa when he arrived in Australia, the applicant stated that as he was on drugs and not mentally stable. He claimed initially when he was on a student visa he was then on drugs and unable to apply for a protection visa. However, in circumstances where the applicant had applied for a student visa and had made multiple trips between Australia and India, the Tribunal does not accept that he was unaware that he was not able to apply for a protection visa. While the Tribunal accepts that he had been on a student visa, it does not accept that as a reason not to have applied for a protection visa. In addition, the applicant claims that he was on drugs and was unable to apply for a protection visa. However, his evidence was that he worked for two years as a taxi driver. While the Tribunal accepts that being on drugs would have interfered with his ability to apply for a protection visa, in circumstances where he was able to hold down a job driving a taxi, the Tribunal does not accept that his drug addiction would have prevented him for making an application for protection as claimed.
In addition, the applicant stated that he had not made any application because he only realised, he was a homosexual in 2017. The applicant did not provide any evidence of the circumstances by which he discovered he was homosexual. In any event even if he only discovered his homosexuality in 2017, the applicant’s delay in making his application for protection remains significant. The Tribunal notes that, consistent with his movement records, he confirmed to the Tribunal that he travelled to India on two occasions [between] December 2019 [and] February 2020 without any fear of being harmed as a homosexual.
The applicant was placed in Immigration detention [in] February 2022 but only made his application for protection on 5 July 2023. The applicant’s evidence was that he had spent considerable time in detention due to him waiting for his parents to fund a lawyer for him. When they did not provide the funds, he applied for protection himself. However, in circumstances where the applicant’s evidence was that his family are not wealthy, as his father works [as an Occupation 1], the applicant was not able to explain why he believed his family would be able to fund a lawyer as claimed. As such the Tribunal does not accept that his delay in making his protection visa application was due to his family failing to fund a lawyer as claimed.
Therefore, based on the applicants’ delay in making his application for protection, the Tribunal, on an objective basis, has reservations about the genuineness and depth of the applicants’ fear of persecution[11] as claimed. Given the extensive delay of approximately nine years and three months from the date of him first arriving in Australia until making his application for a protection visa, the Tribunal has placed little weight on the applicant’s evidence in relation to his claim.
Accepted facts
[11] Subramanium v MIMA (1998) VG310 of 1997.
Based on the applicant’s evidence, the Tribunal finds and accepts that the applicant:
(a)was born on [date] in Amritsar, Punjab, India.
(b)is Punjabi Sikh.
(c)speaks reads and writes Punjabi and English.
(d)is not married.
(e)his parents continue to live in Amritsar.
(f)has one sister who is married and continues to live in Amritsar.
(g)attended school in Amritsar.
(h)travelled to Australia to study.
(i)completed a Certificate III and Certificate IV [Discipline 2] Course at [named education provider].
(j)worked driving taxi’s for approximately two years.
(k)was convicted and sentenced to three months imprisonment for committing several crimes in October 2020
Applicant’s refugee claim
A past fear of persecution is not sufficient
A past fear may be a relevant consideration in determining if the applicant has a well-founded fear of persecution. However, the relevant test, under s 5H(1) of the Act, is whether the applicant is outside his country owing to a present, well-founded fear of persecution for a reason that falls within the scope of s 5J(1)(a) of the Act, and is unable or unwilling, due to the present and well-founded fear, to avail himself of the protection of that country.[12] In this case the applicant’s evidence was that he did not suffer any serious harm prior to his arrival in Australia. His evidence was that he travelled to Australia to study.
Applicant’s well-founded fear of persecution
[12] Savvin v MIMA [1999] FCA 1265 (Dowsett J, 13 September 1999) at [60], referring to Chan v MIEA (1989) 169 CLR 379, s 5H of the Act.
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, 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.
Section 5L of the Act[13] states:
[13] 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.
In MIMA v Khawar (2002) 210 CLR [14] 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:[15]
'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.'
[14] MIMA v Khawar (2002) 210 CLR 1
[15] MIMA v Khawar (2002) 210 CLR 1 at [33]
In this case, the applicant claims that there is a real chance he will be seriously harmed if he is returned to India because he is 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
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.[16]
[16] Sections 5H(1) and 5J(1)(a) of the Act; see Applicant A v MIEA (1997) 190 CLR 225 at [240].
In Chan v MIEA[17] 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.[18]
[17] (1989) 169 CLR 379 at [396]
[18] (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
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.[19] 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.
[19] Chan Yee Kin v MIEA (1989) 169 CLR 379.
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 not have a well-founded fear of persecution as claimed on an objective basis.
Applicant’s claim as a refugee
Applicant as a Homosexual
The applicant claims that as a homosexual there is a real chance he will be seriously harmed if he is returned to India.
The Country Information reports that section 377 of the Indian Penal Code criminalised homosexual sex.[20] However, in 2018 in Navtej Singh Johar & Ors v Union of India [2018] [21] (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;[22] the obligation of the Government not to discriminate against citizens on the basis of their sex;[23] the right to expression;[24] and the right to live with dignity.[25] The Court reaffirmed its decision in Shafin Jahan v. Ashokan K.M (2018)[26] and Shakti Vahini v. Union of India (2018)[27] that an adult's right to choose a life partner of his (or her) choice is a facet of individual liberty.[28] 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.[29]
[20] DFAT report at p.36
[21] Navtej Singh Johar & Ors v Union of India [2018] INSC 746 (6 September 2018) liiofinda.org,
[22] 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.
[23] ibid
[24] ibid
[25] ibid
[26] Shafin Jahan v. Ashokan K.M [2018] INSC 258 (27 March 2018) liiofinda.org
[27] Shakti Vahini v Union of India [2018] INSC 27 (March 2018) liiofinda.org
[28] Navtej Singh Johar & Ors v Union of India [2018] INSC 746 (6 September 2018) liiofinda.org,
[29] 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[30] there remails a widely held anti-LGBTQI+ sentiment within the community and sectors of the public service and government.[31] 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.[32] The treatment of LGBTQI+ individuals vary depending on a number factors including disparities between urban and rural India, language, caste, class, and gender.[33] Its reported[34] 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.[35] 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.[36] Its reported that, particularly, in rural areas, the LGBTQI individuals continue to suffer physical attacks, rape and blackmail as well as broad social discrimination.[37] Its noted that such discrimination occurs at every level of society.[38]
[30] DFAT report at p.48
[31] DFAT report at p.48
[32] DFAT report at p.46
[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] DFAT report at p.48
[35] ibid
[36] 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/
[37] 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
It’s reported[39] that as distinct from gay and bisexual men, it is more common in India for men who have sex with men, but not to consider themselves part of the LGTBI community. Many of these men are married to women and want to remain so.[40] Regardless of their sexual identity, it is common for parents to arrange and pressure their son into marriage. It’s reported[41] that this tradition is so entrenched that those men who wish to live with another man are ostracised and could face violence.
[39] DFAT report at p.37
[40] ibid
[41] ibid
It’s reported that in urban areas there are venues for the LGBTQI community to meet and socialise, but not always openly.[42] Its reported[43] 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.[44]
[42] DFAT report at p.48
[43] 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
However, in this case, the applicant evidence in relation to him being a homosexual lacked credibility. His evidence was vague and lacking in any detail. Further, on occasions it was contrary to the evidence he had previously provided to the Department.
The applicant’s evidence was that he did not have homosexual relationships when he was in India. As such his reason for traveling to Australia was to study. The applicant’s evidence to the Department[45] was that he had known he was a homosexual ‘from the start’ However, when it was put to the applicant that he had travelled back to India on several occasions, he stated that he only discovered he was homosexual in or about 2017. The Tribunal notes that the applicant’s movement record[46] show that he returned to India on two occasions [between] December 2019 [and] February 2020. The applicant confirmed to the Tribunal that he did return to India [between] December 2019 [and] February 2020 on two occasions.
[45] Protection Visa Refusal Decision Record dated 8 August 2023 at p.3, Dept File No [number], Doc ID No.11451205
[46] Applicant’s Movement Record AAT file No 2312386 Doc ID:11563344
The applicant’s evidence to the Tribunal was that he had a causal relationship with a person known to him as [Mr A] for one month. The applicant did not provide the Tribunal with any evidence of his relationship with [Mr A], including how he met him and what [Mr A] did for work etc. In addition, the applicant did not provide any independent evidence of his relationship with [Mr A], such as photographs, social media posts, statement from an independent witness or family member. The only information the applicant was able to provide concerning his relationship with [Mr A] was that he is no longer in touch and does not know where he lives. Therefore, based on the applicant evidence the Tribunal does not accept that he had a casual relationship with a person called [Mr A] as claimed.
The applicant also claimed that he had an eight-to-nine-month relationship with [Mr B] that commenced in or about December about 2017. The applicant’s evidence to the Tribunal as to his relationship with [Mr B] was vague and lacking in any detail. His evidence to the Department was that he met [Mr B] while working at [Company 1]. However, his evidence to the Tribunal was that he met [Mr B] while studying. His evidence was that they did not live together but would meet on occasions to go to the shopping mall. The applicant was not able to provide any details of his relationship with [Mr B], including how many times a week they would see each other, who they would socialise with and where. In addition, the applicant did not provide any independent evidence of his relationship with [Mr B] including photos, social media posts or a statement by [Mr B] or other a mutual friend or acquaintance. Nevertheless, the applicant’s evidence to the Department[47] was that he broke up with [Mr B] because they had a fight and because of his detention. However, his evidence to the Tribunal was that they ‘broke up’ because [Mr B]’s parents had arranged a marriage for him. The applicant did not provide any details of [Mr B]’s marriage to the Tribunal, including when he was married and where. Nevertheless, the applicant’s evidence was that he is no longer in contact with [Mr B] and does not know where he lives. While the Tribunal accepts, he may have known [Mr B] while studying, based on his evidence it does not accept that he was in a homosexual relationship with him as claimed.
[47] ibid
The applicant’s evidence to the Department on 25 October 2022[48] in relation to his bridging visa application was that he had a girlfriend and that he had been in the relationship for approximately a year and half. The delegates decision notes that his evidence was that he had a relationship with a woman know as [Ms C]. The applicant’s evidence to the to the Department[49] was that his parents wanted him to marry [Ms C] but he was not interested. He claimed that she was merely a good friend with whom he took drugs and had sex with.[50] The applicant’s evidence to the Tribunal was that he had lied to the Department about having a girlfriend in his Bridging Visa application. He stated to the Tribunal that when his parents found out he was a homosexual they found a girl in India for him to marry so that he could get his visa. As a result, he informed the Department that he was in a relationship with a girl in Australia. The applicant was not able to explain to the Tribunal why he stated to the Department he had a girlfriend in Australia when a marriage was being arranged for him in India. He claimed that his parents had almost prepared his marriage in India when he was placed in immigration detention. The fact that the applicant continued to return to India is consistent with the fact that he may have had a relationship in India. Nevertheless, despite returning to India [between] December 2019 [and] February 2020 on two occasions the applicant was not able to provide any details, or any other independent evidence of parents having arranged a marriage for him as claimed.
[48] Decision Record dated 10 July 2023 Dept File No BCC20233825692 Doc ID:11451196
[49] Protection Visa Refusal Decision Record dated 8 August 2023 at p.3, Dept File No [number], Doc ID No.11451205
[50] ibid
The applicant provided some social media posts and screen shots in support of LGTBI community. The applicant did not provide any evidence of the relevance of the screen shots and social media posts. In fact, the social media posts did not appear to be by the applicant but rather random posts in support of the LGTBI community. As such the Tribunal places no weight on the media posts provided by the applicant.
Based on the applicant’s evidence and the available country information, the Tribunal does not accept that he is a homosexual as claimed. The applicant’s evidence to the Tribunal in relation to his sexuality was evasive and lacked credibility. In addition, his evidence in relation to his relationship with [Mr B] and his girlfriend was different to the evidence he provided the Department in both his protection visa application and his bridging visa application. Finally, the fact that the applicant had returned to India on multiple occasions, including after 2017, when he claims he discovered he is a homosexual, indicates to the Tribunal that the applicant does not hold a well-founded fear of persecution upon his return to India. The fact that the applicant continued to return to India on multiple occasion indicates that he had no fear of returning to the country.
Therefore, having considered the applicant’s claim singularly and cumulatively, based on the applicant’s evidence and in light of the available country information the Tribunal finds that the applicant is not a homosexual as claimed. Accordingly, the Tribunal finds that there is no real chance he will be seriously harmed if he is returned to India on the basis that he is a homosexual. Tribunal finds that the applicant does not face a real chance of serious harm, now or into the reasonably foreseeable future, for any reason.
The Tribunal is therefore satisfied that the applicant does not satisfy the criterion set out in s 36(2)(a) of the Act for a protection visa and as such he is not a person to whom Australia has protection obligations. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution.
Applicant’s complementary protection claim
The applicant claims that, without conceding in any way his claims under s 36(2)(a) of the Act, the same factual matrix would invoke Australia’s protection obligations under the complementary protection criterion pursuant to s 36(2)(aa) of the Act. Accordingly, the Tribunal has also considered the application of s 36(2)(aa) to the applicant’s circumstances. That is, the Tribunal has considered if the applicant faces a real risk of significant harm on his return to India based on his claims detailed above. The Tribunal notes that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[51]
[51] MIAC v SZQRB [2013] FCAFC 33
The Tribunal has found that the applicant is not a homosexual as claimed and as such does not face a real chance of serious harm as a homosexual upon his return to India. As the ‘real risk’ test is the same as the ‘real chance’ standard, for the reasons stated above in relation to the applicant’s claim, the Tribunal does not accept that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia to India because of he is homosexual as claimed.
Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk he will suffer significant harm as required by s 36(2)(aa).
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Act for the reasons mentioned s 5J(1)(a) of the Act. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s 36(2)(aa) and is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) based on being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Jason Pennell
Senior Member
ATTACHMENT A
Corruption
2.11 India ranked 85th out of 180 countries in Transparency International’s 2021 Corruption Perceptions Index, which measures public perceptions of corruption. GAN Integrity notes ‘high corruption risks’ with ‘widespread’ bribery and ‘especially prevalent’ corruption in judiciary, police and public services.
2.12 A government-led anti-corruption campaign which began in 2011 has had mixed reviews. A national anti-corruption institution, Lokpal, was formed in March 2019. According to Transparency International, perceptions of corruption remained relatively stable between 2011 and 2019, with a small rise in perceptions of corruption since 2011. Media analyses of the Lokpal have accused it of being ineffective: few complaints are made, many are frivolous, and there are vacancies in many key posts.
2.13 India’s rapid adoption of electronic automated transactions has reduced corruption. Some new forms of automation require fingerprint scanning and end-to-end encryption, which can significantly reduce corruption risk. These innovations have yet to be fully rolled out to all government transactions. People in India may still turn to bribes, especially when bureaucracy and decision making is slow or arbitrary, for example in the judiciary or with the police. DFAT understands that the level of corruption differs from state to state.
HIV
2.20 HIV treatment is generally available with second and third-line treatments provided, usually for free. Barriers to access might be related to socioeconomic status more broadly; for example, having to take time off work to access health care. Early testing and treatment is encouraged by the government, particularly in vulnerable communities such as the LGBTI community, hijra, men who have sex with men, sex workers and people who use drugs. Vulnerable people have access to pre-exposure prophylaxis (PrEP, a medication that prevents HIV transmission) and post-exposure prophylaxis (PEP, a medication that prevents infection if taken immediately after exposure), but these treatments are not free.
2.21 Some people with HIV refuse to accept that they have the condition, or the need to treat it, because of stigma. Sex can be associated with a strong taboo in India and there is a common perception among Indians that those who have HIV are promiscuous and that their diagnosis is a moral failing. Stigma is worse in rural areas, however transmission rates are far greater in cities.
2.22 The situation varies from state to state and according to individual circumstances, however most Indians can access HIV treatment if they need it. DFAT assesses that people living with HIV face a low risk of official discrimination and a moderate risk of societal discrimination.
Mental health
2.23 Sources told DFAT the number of mental health workers is not sufficient to service demand. There is a shortage of trained mental health workers which, in practice, means that not everyone who needs care can access it. Mental health care is more likely to be accessible in large cities, while healers and other non-professionally qualified people may provide care in rural areas.
2.24 Meeting with a counsellor or psychologist is strongly associated with shame for many Indians. This often means that patients will delay treatment until the problem becomes severe, and perhaps will not even seek treatment then. The stigma associated with poor mental health makes it difficult for mental health professionals and patients to build rapport or discuss issues or solutions effectively.
2.25 Mental health is not widely discussed in India, as a result, mental health literacy is low. It is possible that many people are unaware of their mental illness, or lack the knowledge or vocabulary to discuss mental health. Family is a critical aspect of Indian life and culture, and not all families are accepting of members who are living with mental illness. This stigma and taboo extends to employment and education, and those with mental illness are often ostracised at work or school.
2.26 Neurodiversity is poorly understood. People in the upper classes might be more likely to seek diagnoses and treatment for conditions such as autism spectrum disorder (ASD) and attention deficit hyperactivity disorder (ADHD) in children, whereas those with little or no education or exposure might not understand such diagnoses. Overall, understanding and acceptance is poor, and people living with these diagnoses may be expected by families, schools, workplaces and society more broadly to modify their behaviour without support, interventions or treatment.
2.27 DFAT assesses that people living with mental illness and/or neurodiversity face a low risk of official discrimination, except to the extent that they may not be able to access appropriate healthcare. This is true of many Indians with various medical issues, as outlined in the section on healthcare. Indians living with mental illness and/or neurodiversity face a moderate risk of societal discrimination.
RELIGION
3.9 According to 2011 census data (the most recent available), almost 80 per cent (more than 1 billion people) of the population of India is Hindu. Another 14.2 per cent of people are Muslims (just under 200 million), 2.3 per cent are Christians (around 27 million), 1.7 per cent are Sikhs (just under 21 million) and less than 1 per cent are Buddhists (just under 10 million). A further 1.3 per cent (around 18 million) follow other religions including Jain, Zoroastrian, Jewish and Baha’i faiths, and tribal religions. Muslims, Sikhs, Christians, Buddhists, Jain and Zoroastrians (Parsis) have been notified as minority communities under Section 2 (c) of the National Commission for Minorities Act, 1992.
3.10 The constitution prohibits religious discrimination and guarantees the right to freely practise religion and the right for religions to manage their own affairs. The constitution guarantees the right to propagate a religion except where that would affect the operation of some state laws. For information about conversion laws and policies in practice in some states, see Conversion and anti-conversion laws.
3.11 Both religious pluralism and communal violence have a long history in India. The situation has evolved in recent years with new political movements and the adoption of technology that can be used to disseminate information, and the use of social media to incite violence.
3.12 Research by the Pew Research Center published in June 2021 found that 84 per cent of people say that to ‘be truly Indian’ it is important to respect all religions. The same research found that more than 85 per cent people in each of six major religious groups surveyed (Hindus, Muslims, Christians, Sikhs, Buddhists and Jains) felt that they were free to practise their own religion, and most of those agreed that other religious groups were similarly free to practise their religions. According to the survey, communal violence, while often high-profile events that are covered extensively in the media, are not day-to-day issues for most Indians.
Sikhs
3.60 Sikhism is the dominant religion in Punjab. There are significant populations of Sikhs in nearby states such as Haryana, Delhi, Rajasthan, Uttar Pradesh and Uttarakhand and there are Sikhs all over the country. Sikhism was founded in Punjab in the late 15th century. Unlike Hinduism, it is monotheistic. Its religious values emphasise equality and service to the poor.
3.61 Sikhs commonly work in many industries, notably agriculture, transport and business. There are very senior Sikhs in politics and Sikhs are well represented in the armed forces. Sikh men in particular are readily identifiable because of their turbans and long, full beards. This visibility means that they are a common sight in the streets as well as in media and entertainment.
3.62 Some Sikhs claim that their beliefs are not properly recognised by the Indian Government as a religion; the constitution groups Sikhs, Buddhists and Jains with Hinduism, for example. This means that laws relating to Hindu marriage, for example, also apply to Sikhs. A small number of Sikhs, predominantly overseas are involved in the ‘Khalistan’ separatist movement, covered in the section on Punjab.
3.63 DFAT assesses Sikhs in India generally face a low level of official and societal discrimination and violence. This may be because most Sikhs live in Punjab, which is a majority Sikh state, and Sikhs outside of Punjab have strong communities based around their places of worship. However, DFAT is not aware of violence or discrimination commonly occurring against Sikhs in other parts of India.
Marriage (interfaith, inter-caste)
3.136 Interfaith and inter-caste marriages are legal and occur occasionally, however many Indian families still prefer marriages arranged within their own religion and caste. Most marriages in India are arranged marriages and the family of the prospective marriage partner will choose a spouse based on faith and caste considerations. A marriage outside this system is known as a ‘love marriage’. Those who choose to marry outside their religion or caste may experience shunning or violence from their families, but the outcome depends on the family and there is not a typical pattern of reactions. An inter-caste or interfaith marriage will not necessarily lead to violence, but it can.
3.137 Most people get married under the personal status laws of their religion – that is, the marriage legislation for Hindus (which also covers Sikhs, Jains and Buddhists), Muslims or Christians, respectively. These laws may prevent interfaith marriage. However, the Special Marriage Act 1954 is the secular marriage law available to any Indian that enables marriage without reference to any faith.
3.138 Forms of possible family harassment can vary. Honour crimes including acid attacks and homicides are a possibility. While these crimes are mostly associated with violence against women (and are described in the relevant section of this report) they can be perpetrated against men, especially in cases of interfaith and inter-caste marriage. In one case in Karnataka, parents harassed the couple by making missing person claims to police alongside threats. Others have reported being physically detained or locked up by their families, or hiding for fear that their families will find and kill them.
3.139 Couples from rural areas who enter inter-caste or interfaith marriages may attempt to move to the anonymity of urban areas. Some may contract agents who can arrange elopement. Factors that can affect inter-caste or interfaith couples moving to a larger city include their financial capacity, the degree to which their families have the power to find them, their educational background and employability, availability of a personal support network, and whether they appear ‘visibly different’.
3.140 One couple told Aljazeera in 2018 that they experienced discrimination in finding rental accommodation, for example. The interfaith status of their relationship was obvious because of their surnames. Another couple mentioned in the same article reported discrimination in accessing education for their daughter, again because their names revealed that they were an interfaith couple.
3.141 Sources told DFAT that state protection for couples subjected to family violence sometimes exists. In some cases, police will take action to protect the couple, sometimes with the payment of a bribe. Sources told DFAT that different couples have different experiences and that it is difficult to generalise.
3.142 DFAT assesses the treatment of people in interfaith and inter-caste marriages varies according to the families involved. It can range from approval in some families, to disapproval, ostracism, harassment, or violence.
Sexual Orientation and Gender Identity
Lesbian, gay and bisexual people
3.150 Sources told DFAT lesbian, gay, bisexual, transgender and/or intersex (LGBTI) people lack protection, have poor education and health outcomes, and face intolerance, abuse and violence in their daily lives. Discussion about sexuality is generally taboo in India, which means that LGBTI people often lead hidden lives.
3.151 Section 377 of the Penal Code, which criminalised sexual acts ‘against the order of nature’ (a euphemism for gay sex, but also oral and anal sex regardless of gender), was repealed in 2018 after the Supreme Court ruled that it was unconstitutional. Sources told DFAT that the repeal of the law has improved the lives of LGBTI people – police are less likely to extort them for bribes, and morale in the community has improved. However, sources told DFAT that a lot of people, including police, are not aware of the law reforms and will attempt legal action or extortion against people on the basis of the now-repealed law. Sources told DFAT that this kind of blackmail is sometimes applied against men who are victims of sexual assault.
3.152 There is a distinction between men who identify as gay or bisexual, and men who have sex with men but do not consider themselves part of the LGBTI community. The latter are much more common. Many men who have sex with men are married to women and want to remain married to women. Regardless of their identity or preferences, parents will likely arrange such a marriage for their sons anyway and may apply significant pressure to enter into such an arranged marriage. This cultural practice is so entrenched that most men would be unlikely to question it. Those that do, or who wish to live in a relationship with another man, may be ostracised and could face violence.
3.153 Same-sex marriage is not an available option under Indian law, though a long-running case on marriage equality remains before the Supreme Court. In contrast, heterosexual marriage is a touchstone aspect of life for most Indians. Exclusion from cultural mores that depend on marriage can be challenging or distressing. Sources told DFAT that (heterosexual) marriage is ‘essential’. An unmarried person will not be invited to social events. One expert source told DFAT that an unmarried person will ‘not be considered a social unit’. Not being in a heterosexual marriage, for most Indians, is ‘unthinkable’. Those who do not conform face ostracism from society.
3.154 There is a societal and family expectation that a man and his wife will care for his parents in old age, which may lead men who are attracted to other men to get married to a woman in order to have children who can perform that function. Australian-style social welfare programs do not exist in India and people depend on their families in times of sickness, age or distress.
3.155 The pressure on women (of any sexuality or gender identity) to get married is even stronger. Women do not have the same level of agency as men in traditional Indian society, and parents will expect their daughters to get married (to a man) and become part of his family. This leads to a sense of invisibility for lesbian and bisexual women. Once they have been married, women are sometimes pressured to produce a male child and heir, and might be blamed and considered a failure if they do not do so.
3.156 Most LGBTI people are not open about their sexual orientation or gender identity because being open can lead to significant discrimination. According to a 2019 survey by UNESCO, more than half of LGBTI children in Tamil Nadu had dropped out of classes or school altogether because of often-violent bullying. Sources told DFAT that even Indians working in multinational companies in India (a small segment of the population) experience stigma and discrimination at work.
3.157 As many LGBTI people were forced into isolation with families during the COVID-19 pandemic, support services reported much higher rates of violence perpetrated by families against LGBTI people during that time, along with higher rates of suicide and self-harm.
3.158 While society is broadly conservative to the exclusion of LGBTI diversity, there are pockets of acceptance, especially in large cities (particularly Delhi and Mumbai) among the upper classes. Even in more tolerant contexts, many LGBTI people may experience tolerance rather than acceptance. A trend toward including LGBTI characters (albeit as minor characters, although on at least two occasions with an LGBTI main plot) in Bollywood cinema or television shows is slowly raising societal acceptance. Sources told DFAT it is possible for upper class, educated gay men (much less so women) to relocate to a big city and live a relatively uninhibited life. Sources claim that, while there are an increasing number of ‘gay nights’ in bars or pride parades, most socialising happens in people’s homes. The use of ‘dating apps’ like Grindr, Scruff and Growlr have allowed LGBTI men more access to interaction. DFAT is not aware of similar opportunities for LGBTI women to socialise.
3.159 DFAT assesses that LGBTI people face a high level of societal discrimination and a moderate risk of official discrimination. Violence against LGBTI people perpetrated by families is common, however it depends on the family. Non-family violence is less common, but this may be because few LGBTI people are willing to come out due to the need to avoid discrimination and violence from their families.
Hijra, transgender men and transgender women
3.160 Hijra is a South Asian male-to-female transgender identity that has been part of the cultural landscape of India and other South Asian countries for centuries. Hijra are part of a unique and ancient culture, but transgender people in the sense familiar to Western readers (including female-to-male transgender people) also exist in India as elsewhere in the world. Article 15 of the Constitution 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 that provision, including the right for hijra to self-determine their gender identity regardless of gender affirmation surgery. This right was reversed in 2019 legislation that requires transgender people to demonstrate that they have had gender affirming surgery to access legal recognition of their gender identity. In August 2020, the Government of India formed a National Council for Transgender Persons to advise on relevant policy and legislation affecting transgender persons. Many states of India also have ‘transgender welfare boards’, which deal with hijra affairs.
3.161 While hijra 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 violence. Some families disown and evict their hijra children, while some hijra children run away and seek refuge in hijra communes.
3.162 Many hijra have little formal education (often because they have been rejected by their families) and can find it difficult to secure employment. Discrimination limits employment opportunities. They traditionally work in begging, performing religious rituals or the beauty industry.
3.163 Hijra may face discrimination when seeking access to goods and services, including education, employment and health care. In healthcare settings, hijra report discriminatory 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. Some doctors will refuse to touch them. Sources told DFAT that hijra will often not seek out health care for fear of discrimination. They are also discriminated against in accessing hotels, shopping centres and other public spaces; for example, they may be questioned or refused entry.
3.164 Hijra report an absence of police protection makes them easy targets for extortion and sexual violence. Sources told DFAT that hijra may be exposed to significant violence, including child trafficking and castration without consent, in response to demand from sex work clients for sex workers who have been castrated. Sources told DFAT that they are vulnerable to rape outside these contexts, including on public transport.
3.165 Words to describe different transgender identities might not exist in Indian languages and the word ‘hijra’ might be used when a different word is used in English. Hijra generally does not refer to female-to-male transgender people. Educated transgender people might prefer terms more familiar in the west and expressed in English, such as ‘transman’ or ‘transwoman’, and do not participate in hijra culture. While there is some societal acceptance of hijra, non-hijra transgender people are very likely to be ostracised and misunderstood, and perhaps no distinction would be made from other LGBTI people, covered above.
3.166 Transmen experience discrimination but may have an easier time ‘passing’ as men than transwomen do as women. While this can reduce discrimination, that experience is not universal. Speaking to The Guardian, the owner of the first transgender men-run hair salon in India said that during the COVID-19 pandemic he was providing food rations to transgender people who were ‘educated and skilled but jobless due to their gender’. He also noted that some transgender people were forced to ‘return to unsupportive and abusive families in their villages’.
3.167 DFAT assesses that hijra experience a high risk of societal discrimination, a moderate risk of official discrimination, and a moderate risk of societal violence. Non-hijra transgender people experience a high risk of societal and a moderate risk of official discrimination and violence, consistent with other LGBTI people.
‘Conversion’ practices
3.168 According to Human Rights Watch, the National Medical Commission ordered publishers and medical schools to edit textbooks and curricula to exclude discriminatory and ‘unscientific’ portrayals of LGBTI people in October 2021, suggesting there had been lack of access to LGBTI-appropriate health care for most LGBTI Indians, and illustrating discriminatory attitudes in health care and society.
3.169 Regardless, some people believe that sexual orientation or gender identity can be changed either through medical or religious practices. For example, the ABC reported in December 2021 that a woman was taken to a witch doctor to be exorcised of her lesbian sexuality. LGBTI people (children and young adults especially) may be subject to ‘conversion therapy’; attempts to change a person’s sexuality or gender identity that may amount to torture. Methods of ‘conversion’ for boys and men sometimes involve connecting electric currents to the scrotum or anus and, for women and girls, can include ‘corrective rape’ by a man with the intention that a woman who has been raped will ‘discover’ that she is actually heterosexual or cisgender. Hot irons are sometimes applied against the skin.
3.170 DFAT is aware of media reports of the use of petrol, fire or sharp instruments applied to the hair or skin, or the forced use of herbal or other ‘medical’ concoctions. These ‘therapies’ do not change sexual orientation or gender identity but are highly traumatic and associated with suicide of victims. They can take place in the home, in temples or religious venues, or in hospitals. DFAT assesses that LGBTI people in general face a moderate risk of violence in the form of conversion practices.
TORTURE AND CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
Torture
4.21 Some sources told DFAT that torture is uncommon in India and, when it does occur, there is a good chance that it will be investigated and prosecuted by police. Other sources claim that Indian police have been accused of regularly using torture to extract confessions, which is sometimes euphemistically known as ‘the third degree’. The method of torture in that case is beating, done in a way that avoids leaving obvious marks. Methods of torture also allegedly include hanging suspects upside down, depriving suspects of food, drinks or use of a toilet, and preventing sleep. In her 2020 book on torture, US academic Jinee Lokaneeta claimed that police use torture to extract confessions due to the short investigation time (24 hours) before they must take an accused before a magistrate (see Arbitrary Arrest and Detention).
4.22 The National Campaign Against Torture, an NGO, claims that police enjoy impunity in cases of torture and that the true extent of the problem is difficult to assess; only those cases that attract a media ‘outcry’ are investigated. The NGO released figures in 2020 on allegations of torture in 2019 that found 117 people died in police custody, while 1,606 deaths were recorded in judicial custody. According to the same report, 500 people allegedly died due to torture in police custody between 2005 and 2018 and there were no convictions.
4.23 Those numbers are likely to be a very small fraction of the number of people held in police or judicial custody in India, noting the sheer size of the population. However, according to critics of the government, available statistics about torture are probably underreported because people believe, rightly or wrongly, that allegations of torture will not be properly investigated or that the police have impunity.
4.24 Some NGOs claim that torture is endemic in police custody and prisons, but figures are not reliable. Torture is not so widespread that every person taken into custody would experience it and, as discussed in Police, the vast majority of Indians have very little contact with police. Thus, there is a low risk of torture. 4.25 For information on treatment of LGBTI people that may amount to torture, see ‘conversion’ practices.
Police
5.4 The Constitution of India devolves responsibilities for police and public order to the states. According to sources, many Indians will choose not to contact the police, even if they are victims of crime. The 2019 Status of Policing in India Report found that two in five police officers surveyed said that people were hesitant to rely on them. The 2018 version of the same report found that only one in five of more than 15,000 people surveyed had recent contact with the police, and those that did were more likely to be male and wealthy. Those who contacted police may well have paid a bribe for the police to take action.
5.5 Indian police forces have few women members (about 10 per cent of officers), which likely deters women from reporting crimes, given the conservative and sex-segregated nature of Indian society. See section on state protection for women.
5.6 A key consideration when dealing with Indian police is whether a ‘First Information Report’ (FIR) is made. These are the first reports made by police before they initiate a criminal investigation. Critics of the police claim that police will often refuse to register a FIR; in practice that police action depends on individual police officers and can be arbitrary. The consequences of an FIR not being registered are that the crime is not investigated and no police remedy will be available. As it is the initial action of a police investigation, subsequent police investigation is not possible without an FIR. For example, in a sexual assault case if an FIR is not registered, police arranged medical investigation or care or the taking of a statement will not proceed.
5.7 Some media reports allege that some police forces are poorly equipped to fight crime, however this is likely to vary from place to place. Police stations may lack access to basic amenities such as running water or toilets. The Union Minister of State for Home admitted in March 2023 that dozens of police stations do not have access to a vehicle and hundreds do not have a telephone. Some police officers complain that they are overworked or lack adequate training.
5.8 DFAT understands that if a person of interest is being sought by another state, the states would work together in securing the arrest and extradition of that person, however there is no formal state extradition requirement. DFAT understands state police do not have sophisticated online databases to track offenders; such work may be done manually, but details are not clear and, in practice, it would probably depend on the individual police officers and police forces involved. In spite of that, in general, DFAT understands that there is a good degree of cooperation between state police forces and interstate arrest and extradition may be possible.
INTERNAL RELOCATION
5.19 There are no legal barriers to internal relocation and India has a long history of internal migration. In practice, relocation is mostly intra-state rather than interstate. This probably reflects the way in which languages and cultures tend to be divided in India along state-lines; people in the same state will speak the same language as the internal migrant. However, in the northern (not north-eastern) states generally all people speak Hindi, giving greater scope for internal migration.
5.20 Many internal migrants experienced significant hardship during the COVID-19 pandemic because of lockdowns that prevented people who had moved for work from earning an income. This, in turn, caused many people to travel to large cities in search of employment or essential supplies. Conversely, many internal migrants returned home to their families when they were unable to work.
5.21 According to the World Bank, factors that may limit interstate relocation include non-portability of welfare entitlements (some social welfare programs are only available within a state or require an established residence), preferential treatment of former students from local educational institutions, and domicile requirements for state government jobs. A 2014 article from the Migration Policy Institute lists lack of education, access to financial services and the predominance of the agricultural sector as other factors.
5.22 In general, internal relocation is a practical option for most people seeking escape from violence related to marriage choices but this would be limited by the factors discussed above. For women, relocation might involve becoming a single woman. LGBTI people are unlikely to be able to relocate away from discrimination anywhere in India, but an upper class LGBTI person might find some safety in a large city (see Sexual Orientation and Gender Identity).
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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5H Meaning of refugee
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.
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5J Meaning of well-founded fear of persecution
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.
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.
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.
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.
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.
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
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.
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.
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Protection visas – criteria provided for by this Act
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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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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