Tuesday, 11 November 2008

Indian man not gay- not a refugee: court

The Federal Court recently upheld a decision of the Refugee Review Tribunal in which the applicant was refused refugee status after claiming that he was gay and subject to prosecution in India.

When making his application for refugee status, the applicant stated that he came from a small village in Gudjurat. His parents were farmers. He said that he had been married in 1995 but separated from his wife in 2000 and claimed to have been a bisexual, pressured by his parents into the marriage. He claimed to the delegate that he had five or six homosexual relationships with neighbours since he had been 12 years old and that his last gay partner was a man called Naresh. He claimed that his relationship with Naresh commenced in 2000. He told the delegate that he and Naresh conducted their relationship both in hotels and elsewhere. Indeed he told the delegate that he had been caught by the police having sex with Naresh under a tree in the village in the middle of the day.

He told the delegate that he had never taken any interest in gay organisations, activities or issues in India and that he had left India and come to Australia with the assistance of his father and an Indian agent. He said to the delegate after almost three months in Australia, that he did not know any other gays here and had not had any contact with gay organisations or activities since his arrival.

The delegate accepted that the appellant had claimed a fear of persecution if returned to India for reasons relating to his membership of a particular social group namely homosexuals in India. The delegate noted that while there was evidence of negative societal attitudes to homosexuality in India she was not satisfied that the appellant had suffered persecution on account of his sexual orientation. She noted that his claims were "scant" and that there were many contradictions in his account of his personal details and the facts presented in his application for an Australian visa, his application for a protection visa and in the interview.

She found that his claims were not supported by any evidence and were, in most cases, inconsistent. Accordingly, she concluded that his fear of persecution was not well-founded. In essence, she did not accept that the appellant had substantiated his claim of having been persecuted on account of his sexual orientation. She noted in her reasons that, overall, his responses at the interview:"... were barely sufficient as to details of his alleged homosexual relationships and characteristic of someone who had been coached in regard to the claims made."

She noted that the claims appeared very similar to three other claims which had been made by other Indian nationals who shared accommodation with the appellant at Hillstone, near Griffith in New South Wales.

The delegate also said that there was no evidence before her to suggest that the appellant would be prevented from relocating within India to any of the cities which she identified as having many and varied organisations, associations and support groups established to assist homosexuals .

She concluded that his claims had been fabricated to support an application and was not satisfied that they supported the grant of any protection visa. Accordingly, she refused his claim for a protection visa.


The applicant appealed to the Refugee Review Tribunal, the Federal Magistrates Court and the Federal Court, being unsuccessful at every turn. The applicant said that he had never met Naresh's family, despite them living in the same village as him!

The applicant complained that the tribunal asked questions about private matters! Justice Rares held:

the tribunal did not act unfairly by asking questions about private matters.
Indeed, it could hardly have done otherwise given that the appellant was
asserting that his sexual orientation was the reason for his claimed fear of
persecution. He gave an account which the tribunal found, as had the delegate,
had many implausibilities.


This case is yet another example- if seeking to claim refugee status in Australia and rely on being gay, lesbian, bi or transgendered- have evidence.

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