Are you a LGBTI from India? Do you fear returning to India?

Our Expert Immigration Lawyers have more than 12 years of experience helping LGBTI people from India to get a PROTECTION VISA in Australia

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INDIAN LGBTI – PROTECTION VISA

On September 6, 2018, India’s Supreme Court ruled that consensual homosexual acts would no longer constitute a crime. The historic move reversed Section 377 of the Indian Penal Code which was a legacy from British colonial rule.

The Supreme Court in its judgment only held that consensual homosexual sex could not be a crime under the Indian Constitutional scheme. The judgment was therefore limited in its scope.

India does not have a comprehensive anti-discrimination code. While the Constitution prohibits discrimination, that only applies to the government. The private sector can discriminate with impunity in matters of employment, housing, health and education among other areas.

Gay and bisexual men, particularly in rural areas continue to suffer ill treatment and discrimination in many aspects of their lives, including education, work and public spaces.

In India, lesbian, gay, bisexual and transgender people are vulnerable to unofficial oppression as well as family and school bullying. Homosexuals are also forced into treatment to cure their sexual orientation.

A risk of persecution or serious harm for a lesbian woman in India, where it exists, arises from her family members.

Recent country information does not indicate that the situation for lesbians has changed significantly since the changes on Section 377 of the Indian Penal Code. Women’s sexuality is rarely discussed in India where women are expected to marry and have children and “corrective” rape, often by family men, is prevalent in rural areas. In a society where gender-based violence is widespread and conducted in public, many lesbians may find it difficult to come out even to their families.

According to Vyjayanti Vasanta Mogli, a transwoman LGBT activist and public policy scholar at Tata Institute of Social Sciences, “village medics and babas often prescribe rape to cure lesbians of homosexuality.

 

LGBTI INDIANS “WELL-FOUNDED FEAR OF PERSECUTION”

If you have a well-founded fear of persecution due to your gender identity or sexual orientation in India, you may be eligible for a Protection visa (subclass 866).

The first requirement states that you must fear persecution for at least one of five reasons specified in the Act:

  • Race
  • Religion
  • Nationality
  • Membership of a particular social group (PSG)
  • Political Opinion

LGBTI persons in India form a particular social group (PSG) within the meaning of the Refugee Convention because they share an innate characteristic or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to their identity or conscience that they should not be forced to renounce it, and have a distinct identity which is perceived as being different by the surrounding society.

Although LGBTI persons in India form a PSG, establishing such membership is not sufficient to be recognised as a refugee.

Our Immigration Lawyers can help you with your Onshore Protection Visa. Most of our LGBTI protection visa clients are international students and tourists who fear to return to their home country and would like to stay in Australia permanently. We have a proven success record in assisting nationals of India.

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FEAR OF PERSECUTION

Well-founded fear of persecution The Act states that a person has a well-founded fear of persecution if:

  • they fear persecution for at least one of five reasons specified in the Act (race, religion, nationality, membership of a particular social group, political opinion)
  • there is a real chance that, if the person returns to their home country, they would be persecuted for one or more of those reasons
    the real chance of persecution relates to all areas of their home country
  • at least one of the five reasons must be the essential and significant reason for the persecution
  • the persecution involves both ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.

COMPLEMENTARY PROTECTION REQUIREMENTS

The complimentary protection provisions enable visa applicants to claim protection on broader grounds than those contained in the Refugee Convention, reflecting Australia’s obligations under international human rights law.

International human rights law precludes countries from sending people back to places where they face a real risk of being arbitrarily deprived of their life, or a real risk of being tortured or exposed to other cruel, inhuman or degrading treatment or punishment.

MIGRATION ACT 1958 (CTH)

Section 36(2A) of the Migration Act 1958 (Cth) largely gives effect to those obligations in domestic law. People at risk of this kind of harm are eligible for a protection visa. In this way, human rights law provides a ‘complement’ to protection under the Refugee Convention, hence the name ‘complementary protection’.

Specifically, section 36(2A) provides that Australia is not permitted to remove people to countries where they face a real risk of one or more of the following:

  • arbitrary deprivation of life
  • the death penalty
  • torture
  • cruel or inhuman treatment or punishment
  • degrading treatment or punishment.

Complementary protection introduced greater efficiency, transparency and accountability into Australia’s protection regime. Prior to March 2012, Australia was unable to guarantee that people who did not meet the refugee definition in the Refugee Convention, but who nonetheless faced serious human rights abuses if returned to their country of origin or habitual residence, would be granted protection.

Particular social group

There are two types of particular social groups described in the Act. One provides criteria to be met if a person claims to have a well-founded fear of persecution because they are a member of a particular social group that consists of their family. The other type provides that a person will be a member of a particular social group if:

  • each member of the group shares a characteristic
  • the person shares, or is perceived as sharing, the characteristic
  • any of the following apply:
    • the characteristic is innate or immutable (cannot be changed)
    • the characteristic is so fundamental to a person’s identity or conscience, they should not be forced to renounce it (go against it); or
    • the characteristic distinguishes the group from the rest of society
  • the characteristic is not a fear of persecution.
Serious harm

To have a well-founded fear of persecution, the persecution feared must involve serious harm to the person. Serious harm includes, but is not limited to:

  • a threat to the person’s life or liberty
  • significant physical harassment of the person
  • significant physical ill treatment of the person
  • significant economic hardship that threatens the person’s capacity to subsist (ability to survive)
  • denial of access to basic services, where the denial threatens the person’s capacity to subsist (ability to survive)
  • denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist (ability to survive).
Systematic and discriminatory conduct

To have a well-founded fear of persecution, the persecution feared must also involve systematic and discriminatory conduct.

  • Systematic means the harm is not random or generalised, but is targeted against the person.
  • Discriminatory means the conduct of the persecutor affects the person or members of a group in a way that singles that person or a group out from the rest of the community.

This means that if the serious harm feared by the person is not directed at them or a group to which they belong, for one of the five reasons above, the person does not have a well-founded fear of persecution and will not be a refugee.

Real chance of persecution

For the fear of persecution to be well founded, there must be a ‘real chance’ that the persecution would happen in the reasonably foreseeable future if the person was to return to their home country. Real chance means that the fear of persecution is not remote or far-fetched.

If there is a place in their home country where the person can live without a well-founded fear of persecution, they will not be a refugee. However, they must be able to safely and legally access that place.

Seeking protection from authorities in their home country

If the government or other parties that control all or a large part of the person’s home country is willing and able to offer effective protection to the person, they might not meet the definition of refugee. However, the person must be able to access the protection and the protection must be of a durable nature (provided on an ongoing basis). If the protection is able to be provided by the government, the protection must also include an appropriate criminal law, a reasonably effective police force and an impartial judicial system. If this protection is able to be provided, the person does not have a well-founded fear of persecution and will not be a refugee.

A right to enter and reside in another country

If a person has a right to enter and reside in another country in which they do not fear persecution or significant harm, they must take all possible steps to exercise that right. If they do not, they might not be a refugee.

Modifying behaviours

According to the Act, a person does not have a well-founded fear of persecution if they can take reasonable steps to modify their behaviour so as to avoid a real chance of persecution their home country. However, this would not be the case if such a change would:

  • conflict with a characteristic that is fundamental to the person’s identity or conscience
  • require the person to conceal or hide a characteristic that is innate or immutable (one that they could not change), or
  • require the person to:
    • change their religious beliefs, including by renouncing a religious conversion, or conceal their true religious beliefs, or cease to be
    • involved in the practice of their faith
    • conceal their true race, ethnicity, nationality or country of origin
    • change their political beliefs or conceal their true political beliefs
    • conceal a physical, psychological or intellectual disability
    • enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child
    • alter their sexual orientation or gender identity or conceal their true sexual orientation, gender identity or intersex status.

Helping People Just Like You

What matters to us most is what our clients have to say about their experience once everything has been resolved. Below are some of the messages we have received from people we’ve represented.

Lach S
Lach S
We get our visa in record time Could not believe it. Immigration says 2 years and they get it in weeks. Mr andreas is very amazing man and me and family owe you and gold lawyers forever
Asmita Karki
Asmita K.
Thank you for Great service.Got Visa in very short period.The team was helpful all the way from start till visa grant.
The EM Fam
The EM F.
I am very pleased with these Migration Lawyers!I got both my Temporary and Permanent through them in a breeze! If you need your visas accepted go to them.They are the best!! Thank you!!
Gerlyn Oliva
Gerlyn O.
I came to Gold Migration lawyers few months ago distraught about my application for permanent residency.It was over 3 years ago since I have applied for my PR and still did not receive any approval. Gold migration gave me assurance that they will facilitate and follow up with the department. They were very detailed and precise with their advise. All requirements and paperworks were tripple checked by them before its submitted to the department.Very prompt in answering all queries and overall very happy with their service.I recieve my Permanent Residency today and I am extremely grateful for this fantastic Lawyers who made my dreams come true after few years of stressing and worrying about my status in Australia..Thank again Peter and your team for helping me..Will definitely recommend your firm to everyone I know whose struggling with their migration process.read more
Daniel Markos
Daniel M.
Best team of migration agents and lawyersAndreas helped me get my citizenship very fast .10 out of 10 thann you so so much
King Kaif
King K.
Thank you Andreas and team. The best law firm in town. i would highly recommend them for any migration n citizenship services. They were very prompt in following up with paper work for my citizenship which was complicated case. would rate them above 5 starsread more
Michael Gianoulias
Michael G.
Helped with my visa. Andreas is the best Greek agent in melbourne
tynal chruy
tynal C.
Very responsive and walked me through each steps along for the whole process.
Harry Milonakis
Harry M.
I wish I could give more than 5 stars. They are the best lawyers in Melbourne city. Andreas and Ramtin helped me so much and I couldn't have asked for a better service. Thank you so much and I will be recommending you to everyone I come across.read more

frequently asked questions

Can I lodge a Protection (866) Visa whilst in Australia?

If you are eligible, yes you can. The Protection (866) Visa can only be lodged whilst you are in Australia.

What are my options if I am not in Australia yet?

There are 4 different offshore visas that you may be eligible to apply for. They are the Refugee (200) Visa, the In-Country Special Humanutarian (201) Visa, the Emergency Rescue (203) Visa and the Woman At Risk (204) Visa.

How would I be eligible for a Protection (866) Visa?

You must be in Australia, and arrived here legally, on a valid visa, and be immigration cleared on arrival. You must also be a genuine refugee, meet the DHA’s identity requirements, not have held specific visas and more.

Do I need to have an interview with the Department of Home Affairs?

Yes, the DHA will interview you to discuss the claims on your application.

Can I travel back to my home country after a Protection Visa is granted?

A protection visa holder with Condition 8559 must apply to the DHA for permission to travel to their home country before they depart.

I am scared to go back to my home country because I will be persecuted. What are the different reasons that the DHA accepts this?

To have a well-founded fear of persecution, a person must fear serious harm because of their race, religion, nationality, membership of a particular social group and/or political opinion.