2403570 (Refugee)

[2024] AATA 2570

2403570 (Refugee) [2024] AATA 2570 (17 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2403570

COUNTRY OF REFERENCE:                   India

MEMBER:Sydelle Muling

DATE:17 June 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 June 2024 at 12:40pm

CATCHWORDS

REFUGEE – protection visa – India – particular social group – homosexual – religion – Sikh – employment – health treatment – fear of killing – concealed sexual orientation in Australia – delay in applying for protection – decision under review affirmed

LEGISLATION

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

CASES

Selvadurai v MIEA & Anor (1994) 34 ALD 346

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 22 February 2024 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 8 February 2024. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria for a protection visa.

3. The applicant appeared before the Tribunal on 10 May 2024 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

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CLAIMS AND EVIDENCE

10. The applicant claims to be a citizen of India who was born on [date] in [City 1], Punjab. According to his protection visa application, the applicant’s ethnicity is “Sikh” and his religion Sikhism. He resided in [Village 1], in Punjab from [specified year] to [April] 2018. He is fluent in Punjabi. The applicant travelled to [Country 1] for work purposes from [February] 2000 to [February] 2010. He was married [in] February 2012. The applicant departed India legally on [a day in] April 2018, arriving in Australia on [the following day] on a Temporary Activity (Subclass 408) visa.

11. The applicant presented his claims in his protection visa application, summarised as follows:

    ·He left the country because he was in trouble with his relatives and because he is gay, and it was hard for him to live in India.

    ·He has no mother and father.

    ·Indian people do not recognise his feelings. Although it is not an offence to be gay, a majority of people in India are against it.

    ·He left for [Country 1] at a very young age and there he became gay. He had been in a relationship before, but [Country 1] was where he met many gay friends.

    ·In India nowhere is safe. Others who returned to India from [Country 1] had life threatening experiences. It was a nightmare for him to go back to India.

    ·He will most likely be killed if he returns to India. He will not have employment or good health treatment in India.

    ·He will not get protection from the authorities as India is a corrupt country and the value of human life is very cheap.

    ·The LGBTQ community is a minority in India. Only the wealthy can enjoy large gatherings in gay clubs, not like the poor.

12. The delegate was not satisfied Australia had protection obligations in respect of the applicant and refused the protection visa application on 22 February 2024.

13. On 13 March 2024, the applicant emailed the Tribunal to advise that there was an error in his protection visa application form which he wished to correct. He advised that he was in [Country 2] from 2007 to 2018 and not 2000 to 2010 as written in his application form.

14. The applicant appeared before the Tribunal on 10 May 2024 and gave oral evidence about his circumstances in India, the reasons he left the country and why he does not want to return there now. The evidence will be discussed below, in the analysis and findings.

15. During the hearing, the applicant indicated he had evidence of communications with his wife which supported his application for protection. The Tribunal gave the applicant until 17 May 2024 to advise whether or not he intended to submit certified translations of these communications. On 20 May 2024, the applicant wrote to Tribunal regarding his inability to have his wife’s [Messaging Service 1] chat translated by that date. On 21 May 2024, the Tribunal wrote to the applicant granting him additional time, until 4 June 2024, if he wished to provide certified translations of this evidence. On 31 May 2024, the applicant wrote to the Tribunal advising that he was unable to provide certified translations of the communications with his wife due to the cost. The applicant attached copies of three screenshots of [Messaging Service 1] messages purportedly between him and his wife, with translations prepared by him.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issues in this review are whether there is a real chance that, if the applicant returns to India, he will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to India, there is a real risk that he will suffer significant harm for the purpose of s 36(2)(aa) of the Act.

17. For the following reasons, the Tribunal has concluded that the matter under review should be affirmed.

18. The applicant travelled to Australia on a valid Indian passport and states that he is a national of India. The Tribunal accepts on the evidence before it, namely a copy of the applicant’s passport, that India is the applicant’s country of nationality and receiving country for the purposes of complementary protection.

19. The applicant claimed in the hearing that he came to Australia in April 2018 [for professional activities]. He also claimed that he wanted to get away from India because he felt his life was at risk there because he is gay. He stated that he used to feel very insecure in India because his family does not allow “those sort of things”. He also explained that he is a Sikh and in his religion being gay is not considered a good thing. He stated that when he came to Australia, he realised the law was more liberal and friendly towards these communities, so he wanted to spend his life here. When asked what he believes will happen if he returns to India, the applicant stated he feels his wife does not like him so maybe she might try to have him killed. In response to the Tribunal’s question as to why his wife would kill him, the applicant stated because he is gay and people in his community do not accept this kind of thing. He also claimed his uncle is a member of the Shiromani Akali Dal party and questions why “this kind of person” has been born into their family.

20. The applicant’s evidence in the hearing was that he became aware of his sexual orientation in 2004 or 2005 when he was living in the village and hanging out with boys. He stated he had a few friends who were gay in a village 2-3km away and in college there were a few guys who were gay, but no-one considered them good. When the Tribunal asked the applicant how he met these gay men from the village 2-3km away, the applicant spoke about one man, [Mr A], who ironed clothes near where he used to catch the bus and no-one else. His evidence was that he did not have a relationship with [Mr A] but used to have sexual encounters with him from sometime in 2003 until 2007, when he left India to go to [Country 2] for employment. Apart from [Mr A], the applicant claimed to have had a relationship for 5 months between November 2003 and April 2004 with a guy named [Mr B], who lived in his village. His evidence was that he had been friends with [Mr B] since 1990, [Mr B] was not gay and that he had forced [Mr B] to have sex with him. He claimed to have been intimate with [Mr B] on two occasions and apart from that they would hug each other very often. With respect to his experiences in [Country 2], the applicant claimed to have had casual sexual encounters. When asked how he came to meet other gay men in [Country 2], he stated that they used to meet him in his room. In response to the Tribunal’s question as to how he would identify other gay men, he explained that on Friday nights during drinks, people would identify who was gay; they would say “so if you want you can have sex with them”. In terms of Australia, when asked if he had met other gay men here, the applicant spoke about a guy from [Country 3] he met on the train in 2019 or 2020 whom he chatted with. The applicant stated that he met this guy only the once and he had no physical or sexual relationship with him. He confirmed he has had no relationships whilst in Australia nor has he had any sexual encounters with men. 

21. The Tribunal does not accept the applicant is gay or that he has engaged in homosexual experiences with other men. The Tribunal finds the applicant’s evidence and overall narrative regarding his sexual orientation and sexual encounters in India and [Country 2] to be basic, superficial and unconvincing. The applicant’s evidence regarding his realisation that he was gay was that he felt the need to be with a guy and to have sex with him. Further, when the Tribunal asked the applicant about how he felt once he identified as gay given that he claimed homosexuality is not accepted in his religion, the applicant stated he had no control over his feelings despite the fact he knew this was not acceptable. The Tribunal finds the applicant’s responses to what are fairly fundamental questions regarding his identification as a gay man to be evasive and lacking. The applicant did not articulate any emotional aspect of being gay or provide any meaningful discussion of his sexuality’s impact on his life. While the Tribunal appreciates that articulating emotional processes can be difficult, including due to strong cultural and religious reasons, the Tribunal observes the applicant was open and forthright when discussing his claimed sexuality and sexual experiences. The Tribunal also finds the applicant’s account of his sexual encounters in India and [Country 2] to be in very general and broad terms about having physical relations without providing any context or detail as to how these encounters arose. For example, when the Tribunal observed that there was a difference between hanging out with boys and identifying that he was sexually attracted to men and asked the applicant to expand on how he came to that realisation, the applicant referred to the fact that when he used to hang out with boys, they used to touch each other and from there they ended up having intercourse. Similarly, when discussing his alleged relationship with [Mr B], particularly how he came to know [Mr B] and that he was also gay, the applicant spoke about the fact [Mr B] was not gay and that he had forced [Mr B] to have sex with him. His evidence was that he used to ask [Mr B] to have sex and “then he got into those kinds of things and that is how they ended up having intercourse”. The Tribunal finds the applicant’s evidence regarding his sexual orientation and sexual experiences simplistic, general and somewhat flippant, particularly when considered in the context of his evidence regarding the cultural and religious disapproval of such relationships. Overall, the Tribunal finds the applicant’s evidence regarding his experiences to be unpersuasive. Accordingly, it does not find the applicant’s claims regarding his sexuality credible.   

22. The Tribunal finds the applicant’s evidence about his wife’s knowledge of his alleged homosexuality implausible. According to the applicant, initially only the villagers knew about his sexual orientation and treated him badly but now his wife knows. He suggested she had discovered this from neighbouring ladies. The applicant stated he was not sure when his wife came to know he is gay but claimed that she “showed her intention” in 2018. The Tribunal notes the applicant’s evidence in the hearing was that people in his village came to know about his sexuality in 2004 or 2005 by the way he walked and because he used to sit or hang out with [Mr A], whom people knew was gay, so he was treated badly by being bullied. He also spoke about feeling unsafe when he visited India during the 11 years he was working in [Country 2], suggesting that his sexual orientation was known by the community for a significantly long period of time. Further, he claimed that his uncle confronted him about his sexuality around 2005 or 2006. Yet, despite the fact the applicant claimed in the hearing he had been married to his wife from May 2004, it was only in September 2018, after he came to Australia, that she allegedly challenged him about “all the actions he had been doing in the village”. Given the applicant’s evidence with respect to the level of knowledge in his village about his alleged homosexuality and how long this had been known, the Tribunal finds it unbelievable that the applicant’s wife would not have known that the applicant is gay at an earlier time or if she did, that she would have waited until the applicant had left the country to come to Australia to confront him about it. The Tribunal also finds the applicant’s evidence regarding what his wife allegedly knows to be vague and unconvincing. As noted, the applicant referred to his wife talking about his actions in the village and about whatever he had been doing in the past being not good, with no reference to his sexual orientation or the fact that he is allegedly gay.  

23. The Tribunal has taken into consideration the recording of a message from the applicant’s wife left on his mobile phone in February 2024, which the applicant played during the hearing, and was translated by the interpreter. During the hearing the applicant claimed to be worried about returning to India because of the way that his wife has spoken to him over the phone and the way she has texted him. He claimed to be scared that his wife will not let him live in India. In the message, the applicant’s wife spoke about the applicant not having contacted her over a 3 year stretch and having not replied to her messages for 3 years and questioning the reason behind the applicant’s contact with her at this time. The applicant’s wife states that the applicant and his family are very mean, and she inquires as to the applicant’s purpose in reaching out to her. The applicant’s wife states that she and the applicant’s children have been trying to contact him during that time, but he has not contacted them. The applicant also showed the interpreter a message he had sent his wife, presumably in response, in which he wrote he did not need anything, if she can trust him and he knows that everyone is better than him. The Tribunal finds that there is nothing in the applicant’s wife’s message suggesting that the applicant is gay. While the applicant’s wife seems to be unhappy given the applicant appears to have ceased any contact with her and her children over the last few years, the Tribunal does not accept that this message is evidence of any risk of harm the applicant faces from his wife on his return to India because of his alleged homosexuality. The Tribunal has also considered translations of [messages] the applicant claims to have sent to his wife on 21 and 22 February 2024 which he submitted following the hearing. As the applicant appears to have only translated his messages and not his wife’s messages, the Tribunal finds the context of the conversation between the applicant and his wife is unclear. It also observes that there is nothing in these messages which relate to the applicant’s alleged sexual orientation or suggests any threat of harm to the applicant despite the applicant’s confirmation in the hearing that the issues with his wife are connected with his homosexuality. The Tribunal finds the messages presented by the applicant to the Tribunal both during and after the hearing do not support the applicant’s claims or alleviate its concerns regarding the credibility of his claim to be gay. 

24. The Tribunal has also taken into consideration the applicant’s evidence in the hearing that he has not been open about his homosexuality in Australia. As noted above, the applicant claimed that once he came to Australia, he realised that the law here was more liberal and friendly towards the gay community, so he wanted to spend his life here. Yet, the applicant’s evidence demonstrates a reticence in living openly as a homosexual over the substantial number of years that he has lived in Australia. The applicant’s evidence in the hearing was that he has no gay friends. He appears to have only met one [Country 3] man once while on a train several years ago whom he chatted with. There was nothing in the applicant’s evidence to suggest that this [Country 3] man was homosexual or that their interaction was anything but a casual conversation. The applicant confirmed he has no presence on social media or on dating applications. When asked if he had participated or engaged with the LGBTQ community in Australia in any way, the applicant claimed he had contacted the LGBTQ community seeking some help with his protection visa application but was told they were unable to assist him. Later in the hearing, when the Tribunal raised its concern that the way he has conducted his life in Australia was not consistent with someone trying to live life as a gay person freely, the applicant claimed to have googled “LGBTQI Melbourne community” in 2022 and had spoken to someone from an organisation based in [Suburb 1] about meeting people from the same community. The applicant could not recall the name of the organisation or the person he spoke with but claimed he was sent a registration form which he filled out and returned however he did not receive any reply.

1. When the Tribunal noted how he had spoken earlier in the hearing about Australia being more liberal and queried what activities he has engaged in in terms of enjoying the freedoms he has here as a gay man, the applicant responded that initially he came to Australia [for professional activities] and then he was working part-time so he had no time “for all these things”. The applicant spoke about feeling more relaxed in Australia once he came to know that everyone is treated equally here and he was never bullied. Yet his evidence was that he had never had a sexual encounter with a man over the last 6 years he has been in Australia or had a relationship with a man. When asked why not, the applicant stated because of the language barrier and because where he works, the people are mostly from the Punjabi community, so he spends most of his time working. It is unclear whether the applicant is suggesting that he has not been in a relationship or sexually active in Australia because most of his time has been spent working or because the people he works with are from the Punjabi community. Regardless, the Tribunal notes the applicant’s evidence in his protection visa application suggests he had no difficulty making gay friends in [Country 2] where he worked with people from India and had drinks after work with other Punjabis, as he claimed in the hearing. In these circumstances, the Tribunal does not accept the applicant’s employment is a reasonable explanation for why he has not met any gay men or had any sexual relationships of any kind during the many years he has lived in Australia. While the Tribunal appreciates that the applicant may find it more difficult to communicate with some people because of his English skills, the Tribunal finds the way the applicant has conducted his life in Australia (which is essentially to conceal his alleged sexual orientation) is not consistent with his stated intention of wanting to live in Australia as gay man or even his alleged actions in India and [Country 2], including the casual relationship he had with the man who ironed clothes near the bus stop in a village 2-3km from his home, who he claimed everyone knew was gay and finding sexual partners through gossiping during Friday night drinks. The Tribunal has considered the applicant’s evidence in the hearing that initially he was living with his [relative]. The Tribunal does not accept the applicant’s living arrangements in Australia are a reasonable explanation for suppressing his sexual orientation given that his evidence in the hearing was that people in his village came to know about his alleged homosexuality in 2004 or 2005, his uncle confronted him about his sexuality around 2005 or 2006, and even his wife allegedly demonstrated awareness of this in September 2018. In these circumstances, the Tribunal finds it questionable that the applicant would have to maintain a façade with respect to his sexual identity amongst his relatives. The Tribunal is concerned that the applicant has not sought to explore or express his alleged homosexuality in any way during his many years in Australia. Based on this, and the findings above, the Tribunal finds the applicant’s concealment of his alleged sexuality whilst in Australia is because he is not homosexual.

2. The Tribunal has also had regard to the fact that according to the delegate’s decision, a copy of which was provided by the applicant to the Tribunal, the applicant was sent correspondence from the Department inviting him to provide additional information about his claims because what he had provided in his protection visa application form was lacking substantiating details. The applicant did not respond to this invitation apart from providing an uncertified copy of the biodata pages of his expired passport and an uncertified copy of an entry visa to [Country 2]. When asked why he did not reply to this invitation which included a long list of questions which directly related to the very limited information he had provided in his protection visa application, the applicant explained that as he was in the detention centre there was no way he could get all the documents required, he is not very good with English so was not sure how to reply and he did not have a lawyer in the detention centre. As the Tribunal put to the applicant, his evidence was that he had the assistance of someone in the detention centre to make his application for protection, therefore it has serious concerns that if he feared being harmed if he returned to India because of his sexuality, he did not seek the assistance of this person or someone else to answer the questions sent to him by the delegate to assist them to make a decision on his application. The Tribunal notes the applicant’s evidence that the person who completed his protection application form charged money and he did not have any money. Even if the applicant did not have the money to pay the person who had prepared his protection visa application, the applicant’s evidence in the hearing was that he can read English although he sometimes finds it hard to understand. The Tribunal does not accept that if the applicant has a genuine fear of persecution because he is gay that he would not have answered to the best of his ability those questions he could understand, or as previously mentioned, sought some assistance to provide the specified details or answers to the questions sent to him by the delegate about his claims for protection. The Tribunal finds that this confirms its doubts about the credibility of the applicant’s claims.

3. The Tribunal has also taken into consideration the applicant’s delay in applying for protection. According to the information he provided in his protection visa application, the applicant arrived in Australia in April 2018 on a subclass 408 Temporary Activity visa however has claimed he left India because of his fears related to his alleged homosexuality. He first applied for protection on 25 April 2022, some 4 years after he arrived in Australia, however this application was invalid. The applicant lodged the current application for protection on 22 February 2024 almost two years later, on the day he was to be deported from Australia according to his evidence in the hearing. The Tribunal notes that when it put this information to the applicant and asked him to explain why he waited several years to first seek protection in April 2022, the applicant stated that he did not want to share that he is gay in Australia so was trying to hide “this thing”. He explained that his lawyer initially applied for a student visa for him and when that was refused and he later came to know there were laws that support the LGBTQ community, he thought of applying for a protection visa. With respect to why he waited almost two years to apply again after his first application for protection was deemed invalid, the applicant claimed to have lost his mobile and to have not had contact with his lawyer, so it was not until he was caught by police that he learned that the protection visa application had been refused. The Tribunal does not accept the applicant’s explanations that he did not want to disclose his sexual identity and that he lost his mobile and contact with lawyer, addresses the Tribunal’s concern regarding his delay in seeking protection. The Tribunal does not accept that if the applicant had a subjective fear of persecution if he returned to India because of his alleged sexuality, he would have waited over four years to first apply for protection and then almost another two years after that to apply again as he was due to be deported. The Tribunal refers to the decision in Selvadurai v MIEA & Anor (1994) 34 ALD 346 in which Justice Heerey found that a delay in lodging a refugee application was a legitimate factual argument and an obvious one to consider in assessing the genuineness, or at least the depth, of an applicant’s alleged fear of persecution. His Honour went further and found that such a delay is a legitimate matter which the Tribunal is entitled to take into account when deciding whether to believe an applicant. The Tribunal finds the applicant’s lengthy delay in seeking protection confirms it concerns regarding the genuineness of his fears and the veracity of his claims.

4. Although the Tribunal is mindful of the fact that there is no test to determine a person’s sexuality, taking into consideration the Tribunal’s concerns regarding the applicant’s evidence, his delay in seeking protection and not responding to the Department’s invitation to provide information to substantiate the limited claims made in his protection visa application and the lack of expression of his alleged homosexuality over the considerable number of years he has lived in Australia, the Tribunal does not accept that the applicant is gay.

5. As such, the Tribunal does not accept that the applicant has engaged in intimate or sexual relationships with men in India or [Country 2], including with a man who ironed clothes in a nearby village or his friend [Mr B], as he claimed. The Tribunal does not accept that the applicant was subjected to teasing or bullying by people in his village in India because of the way he walked or because people knew about what happened where he used to get his clothes ironed. Nor does it accept the applicant had a fight or wrestled with the family of [Mr B], as he claimed in the hearing or that he was confronted by his uncle about his sexuality in 2005 or 2006 and his wife in September 2018 about his actions in the village.

6. For the reasons provided above, the Tribunal finds that the applicant’s claim that he is gay is not credible. It therefore does not accept that he was perceived to be gay in the past in India or that he would be perceived as such on his return to India. As such, it does not accept that the applicant would face a real chance of serious harm, including being denied employment or health treatment as he explained in the hearing, because of his alleged sexual identity from his wife, his brothers-in-law, his uncle, the people in his village or anyone else. Accordingly, the Tribunal finds the applicant’s fear of persecution based on his alleged sexual identity is not well-founded.

7. The Tribunal notes that in the applicant’s protection visa application he claimed that he will not have employment if he went back to India. When asked to explain this claim further, the applicant responded that he did not mention anything like that. He subsequently stated that because people in his village, including his family, do not like him and because of embarrassment he will not be able to work anywhere. While the Tribunal notes the applicant clarified that the issues relating to employment, as well as health treatment, raised in his protection visa application are connected with his alleged homosexuality (which the Tribunal does not accept is credible), the Tribunal has considered the issue of employment more generally, particularly in light of the fact the applicant has been away from the country for a number of years and claims to be estranged from his relatives, or at least his wife, although again he claims this to be due to his alleged homosexuality. The Tribunal notes the applicant’s evidence in the hearing when asked about his employment in India was that he had his own business farming [crops]. He explained he had 1 ½ acres of land located in his village which he worked on by himself, including after he returned to the village when he ceased his [degree] in [year]. His evidence was that he did not have any other employment in India. He confirmed that the land he farmed was still there although in his grandparent’s name and yet to be transferred to him. The Tribunal has taken into consideration the applicant’s evidence in the hearing that he was responsible for farming this land since he was 10 years old, when it would have been in his grandparent’s name. As such, the Tribunal does not accept that the fact that the land has not been transferred to the applicant since his grandparents passed away would affect his ability to resume farming it as he did in the past. Further, the Tribunal has taken into consideration the fact the applicant has many years work experience not only in [Country 2] as [an occupation 1], but also in Australia, which may assist him in finding employment on his return. Considering this, the Tribunal finds that there is no real chance the applicant would suffer serious harm, including significant economic hardship that threatens his capacity to subsist, or denial of the capacity to earn a livelihood of any kind, where that denial threatens his capacity to subsist, as defined in s 5J(5) of the Act.

8. The Tribunal notes in addition to not having employment in India, the applicant claimed in his protection visa application that he would also not have health treatment. When asked to explain, the applicant stated that if he fell sick or had a health issue, there will be no one to support him. The applicant’s evidence was that he does not currently have any particular illnesses or conditions which require medical treatment. When asked if there was a specific issue that he would face in respect of health treatment, the applicant responded, “no such issue”. The Tribunal refers to the country information it discussed with the applicant in the hearing from the DFAT country report on India which provides that health services are the responsibility of the states and public health services, and quality and services vary between states. Broadly speaking, richer states (for example southern states such as Kerala) and large wealthy cities (such as Delhi, Kolkata and Mumbai) have better services available while less developed states and cities have less advanced services available. World-class facilities in cities cater to the upper class. In rural areas, health care is delivered in public health centres or community health centres, with more complex cases referred to district and sub-district hospitals or tertiary or specialty facilities in cities. With hundreds of millions of internet subscribers and smartphone users across India, the Government of India has invested significantly in digital health care systems to improve information-sharing and access to quality health care. This includes access to tele-health services for those in rural areas, which has improved access to health care for some, although is not necessarily more affordable.[1] Based on this information, the Tribunal does not accept that the applicant will be denied health treatment for any reason if returned to India.

   [1] Department of Foreign Affairs and Trade, Country Information Report on India, dated 29 September 2023 at 2.15 – 2.19.

9. For the reasons provided above, the Tribunal does not accept that the applicant faces a real chance of being persecuted for any of the reasons outlined in s 5J(1)(a) of the Act, including because he is allegedly homosexual. The Tribunal therefore finds the applicant’s fear of persecution is not well-founded.   

10. In light of the Tribunal’s findings above that the review applicant is not a homosexual and has not engaged in any homosexual encounters or relationships with other men, the Tribunal finds that there are no substantial grounds for believing that as a necessary and foreseeable consequence of the review applicant being removed from Australia to India, there is a real risk that he will suffer significant harm for that reason.

11. Nor does the Tribunal accept, for the reasons provided, that there are grounds for believing that as a necessary and foreseeable consequence of being returned to India, there is a real risk that the applicant will suffer significant harm related to having no access to medical treatment or being unable to subsist.

12. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).

    CONCLUSION

13. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

14. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

15. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

    DECISION

16. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Sydelle Muling
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …